  IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                       ;
                                                 No. 69378-6-1                       CO ( 3
                      Respondent,          )
                                                 DIVISION ONE
              v.                           t                                         "'Vs
                                                 UNPUBLISHED OPINION            CD




SAMUEL KENNETH MCDONOUGH,                  ]
                                                                                5
                                                                                     T,'10
                      Appellant.                 FILED: March 10, 2014          ro




      Grosse, J. — Samuel McDonough contends evidentiary error and

prosecutorial misconduct occurred during his trial for indecent exposure and

attempted burglary.    Because the errors, if any, were harmless, we affirm his

conviction for indecent exposure.

                                         FACTS

      Based on allegations that McDonough exposed himself to employees of a

drive-through coffee stand and then attempted to enter the stand, the State

charged him with felony indecent exposure and second degree attempted

burglary, both with sexual motivation.

      At trial, the State's evidence established that on February 2, 2012,

Rachelle Hunt, Demi Ryerson, and Meisha Peffley were working at BigFoot Java,

a drive-though/walk-up coffee stand in Issaquah. Around 8:00 a.m., McDonough
walked up and ordered coffee. He paid for the coffee, left a tip, and asked to use

a restroom. Hunt told him that their restroom was for employees only.

       McDonough loitered on the property for the next 20 to 30 minutes. He sat

down on a cinderblock ledge about six feet from the stand. He made odd facial
No. 69378-6-1 / 2



expressions and blew kisses at Ryerson and Hunt, who made sure that the

stand's windows and doors were locked. Ryerson then noticed that McDonough

had exposed his penis and was masturbating while looking at her.           When

customers walked up, he stopped temporarily, "putting his penis away."

       Peffley subsequently observed McDonough masturbating and called 911.

A recording of the call was played for the jury.

       The women continued to watch McDonough from the back of the coffee

stand via video surveillance cameras.       When he could no longer see them

through the coffee stand windows, McDonough approached the stand and looked

in the windows. He appeared to turn the doorknob on the stand's door, but it was

locked.

       Around 8:35 a.m., Issaquah Police Officer Brian Horn arrived on the

scene. He observed McDonough moving quickly up an embankment near the

coffee stand.       He apprehended McDonough, placed him under arrest, and

searched him for weapons.         Over relevance objections, Horn testified that

McDonough had a folded pocket knife in his pocket.

          Issaquah Police Officer Ronald Adams testified that he arrived at the

scene after Officer Horn.     All three women were hiding and "were obviously

vis[ibly] shaken."

       Shortly after 9:00 a.m., Officer Horn interviewed McDonough at the police

station. An audio recording of the interview was played for the jury. During the

interview, McDonough said he was high on methamphetamine and had used it

six hours before. He also said he was diabetic and took insulin twice a day.
No. 69378-6-1 / 3



       He told Officer Horn that he purchased coffee at the coffee stand, asked to

use the restroom, and tipped the barista. When asked if he knew why the police

showed up, he responded, "[Sjome girls were weirded [sic] out by me, uh, just

hanging out around a parking lot." McDonough said, "I'm sure [the employees]

could tell I was high on meth . . . because I just-couldn't sit still." When told that

witnesses said he exposed his penis and masturbated, McDonough said, "They

might have mistook something for something else."         In response to additional

questions about exposing himself, McDonough stated, "It's a court case" and

explained that he was being as forthcoming as he could be under the

circumstances.

       McDonough talked about "being followed by the feds" and people on

Myspace. He said "every time I do drugs, there's all kinds of things going on, all

kinds of people. I don't know if they're following me ... . I'm probably - you

know, the drugs are having an effect but there's just got to be something going

on."

       McDonough said he had difficulty communicating with women or having

relations with them.   He also talked about social boundaries, saying that "[t]he

boundaries and the limits that other people like live by, they don't apply to me."

He then said, "I crossed some boundaries today," "I pushed boundaries." At one

point, McDonough said, "[S]ociety at large is almost all based on emotions

respect for each other. . ., do this and that and the other thing. I always seem to

get that wrong .... And, uh, maybe I'm just looking for a shortcut."
No. 69378-6-1/4



       Officer Horn described McDonough as "articulate," "intelligent with

understanding what [Horn] was asking," and "actually even stopped himself and

said, well, I have to think about how I want to say this."

       The defense called Dr. Steven Juergens, a psychiatrist specializing in

addiction. He testified that McDonough was suffering from methamphetamine-

induced intoxication, hyperglycemia, and underlying paranoid schizophrenia at

the time of the offense. According to Dr. Juergens, these conditions collectively

caused a methamphetamine intoxication delirium that diminished McDonough's

capacity to form the mental state for the offense—i.e., knowledge that his

conduct would cause a reasonable person affront or alarm.

       On cross-examintion, Dr. Juergens said McDonough told him that he had

suffered from "meth-induced psychosis" on the day of the offense. McDonough

also said he took "a huge shot of amphetamines" within several hours of the

offense. When asked if his opinion would change if McDonough had actually

used methamphetamine six hours before the offense instead of two, Dr.

Juergens said that "even if he had done it four hours earlier, he still could have

been in - in a delirious or a high state." Dr. Juergens conceded that substance

abuse patients will sometimes lie to him.

       Dr. Juergens testified that in his state of delirium, McDonough "wasn't

making good decisions about what he was doing. He wasn't aware of all of the

input and how it would affect people and what was happening." His paranoia

also demonstrated a disordered thought process and contributed to his reduced

awareness of the consequences of his actions.            On cross-examination, Dr.
No. 69378-6-1 / 5


Juergens conceded that McDonough's behavior when he purchased coffee,

conversed with the barista, and left a tip was more consistent with awareness of

social acceptability than the absence of such awareness. Similarly, Dr. Juergens

stated that McDonough's flight upon the arrival of police indicated that "on some

level he had some sense that it's inappropriate to masturbate there

      Dr. Juergens was aware of McDonough's three prior incidents of indecent

exposure. He conceded that he did not make an independent determination as

to McDonough's mental state during those incidents. He said that McDonough

told him he was high on cocaine or methamphetamine during those incidents.

He admitted, however, that there was no evidence corroborating McDonough's

claim as to two of the incidents. In the third incident, McDonough approached a

woman, offered her cocaine, and while openly masturbating said, "I want to jump

your bones, and I think you're so sexy."

      The jury convicted McDonough of indecent exposure with sexual

motivation, but acquitted him of attempted burglary and the lesser included crime

of attempted criminal trespass.

                                    ANALYSIS


       McDonough contends the trial court abused its discretion1 when it
admitted evidence that the arresting officer found a knife in his pocket.       He

argues that the knife was irrelevant and, alternatively, that any probative value of

the evidence was substantially outweighed by the danger of unfair prejudice. We



1We review rulings on the admission of evidence for abuse of discretion. State
v. Powell. 126 Wn.2d 244, 258, 893 P.2d 615 (1995).
No. 69378-6-1 / 6



need not decide whether the evidence was properly admitted because any error

was harmless.

       Error in admitting evidence is harmless "'unless, within reasonable

probabilities, had the error not occurred, the outcome of the trial would have

been materially affected.'"2 McDonough's knife was only mentioned once at trial
and was not mentioned at all in closing argument. Significantly, the jury found

McDonough not guilty of attempted burglary—the only offense that the knife was

potentially relevant to. The acquittal on that charge demonstrates that, contrary

to McDonough's assertions, the knife evidence did not trigger a desire "to remove

McDonough from the community via incarceration, regardless of whether the

State had met its burden of proving the charge beyond a reasonable doubt."

Thus, even if the court abused its discretion, there is no reasonable probability

that the error affected the verdict.

        McDonough also contends that prosecutorial misconduct in closing

argument denied him a fair trial. McDonough bears the burden of showing both

improper conduct and prejudicial effect.3 To establish prejudice, he must show a
substantial likelihood that the misconduct affected the jury's verdict.4 We view
the challenged remarks in the context of the entire argument, the issues in the

case, the evidence addressed in the argument, and the instructions given to the




2 State v. Brown. 113 Wn.2d 520, 554, 782 P.2d 1013, 787 P.2d 906 (1989)
(quoting State v. Smith. 106 Wn.2d 772, 780, 725 P.2d 951 (1986)).
3 State v. Brown. 132 Wn.2d 529, 561, 940 P.2d 546 (1997), cert, denied. 523
U.S. 1007(1998).
4 Brown, 132 Wn.2d at 561.
No. 69378-6-1 / 7



jury.5 A prosecutor has wide latitude in closing argument to draw and express
reasonable inferences from the evidence.6

      McDonough contends the prosecutor committed misconduct when, over

defense objections, he made the following remarks:7
             "I have never been more scared in my life." When we think
      of the moments in our lives when we have the greatest amount of
      fear, the greatest amount of apprehension, for Meisha that day was
      going to be February 2nd, 2012. And we have to only imagine
      what it must have been like having to put forward a happy face, try
      to serve more customers, while at the same time having that level
      offear and anxiety that forces you to call 911 to get help.'81
             . . . And we must also imagine what it must have been like
      for Demi as she's putting forward this happy face, trying to serve
      customers, but knowing how violated she feels, how disgusted she
      is of the Defendant's actions. And how, just the very nature of
      where these young women are, Big[F]oot Java - I mean, they're
      trapped inside - it's essentially a fishbowl, visible to the outside
      world. The only . . . physical boundary that separates them from the
      outside world is a plane of glass. And yet, at the same time, there
      are additional boundaries that we have in place as a community,
      social boundaries that shield us . . . . [that] shield us from the
      Defendant's-or-or, protect us from people's actions. And in this
      case, these are boundaries that should have protected Meisha,
       Demi, and Rachelle from the Defendant.9
             But the reality is, on February 2nd, these boundaries that
      should have protected those girls - the Defendant didn't care. He
      didn't care about these boundaries. [Portions of the defendant's
       recorded statement to police are played.]

McDonough claims these remarks were improper in two respects.




5 Brown. 132 Wn.2d at 561.
6 State v. Stenson. 132 Wn.2d 668, 727, 940 P.2d 1239 (1997).
7 Br. ofAppellant at 17 (appellant's emphasis).
8 Defense counsel objected on grounds that the prosecutor's argument was "a
simple appeal to fear." The trial court responded, "You've made your record."
9 Defense counsel again objected, arguing that the prosecutor was appealing to
community safety. The objection was overruled.
                                         7
No. 69378-6-1 / 8


         First, he contends the references to "social boundaries" were an improper

appeal "to the jurors' notions of personal and community safety." We disagree.

A prosecutor commits misconduct if he or she "'appeals to jurors' fear and

repudiation of criminal groups'"10 or argues "that the jury should convict in order
to protect the community, deter future law breaking, or other reasons unrelated to

the charged crime."11 But the prosecutor's remarks in this case were directly
related to the elements of the charged offense.       To convict McDonough of

indecent exposure, the jury had to determine that McDonough exposed himself

"knowing that such conduct [was] likely to cause reasonable affront or alarm." In

essence, the jury had to consider whether "the common sense of society would

regard the specific act performed as indecent and improper."12 The prosecutor's
remarks regarding "social boundaries" were a proper attempt to illuminate this

point.

         Second, McDonough contends the emphasized portions of the remarks

amounted to an improper "golden rule" argument because they urged the jury to

sympathize with the victims by putting themselves in their shoes. Washington

courts have held that "golden rule" arguments are generally improper because

they invite the jury to decide the case "based on sympathy, prejudice or bias,

rather than on the evidence and the law."13 Our Supreme Court, however, has


10 State v. Ramos. 164 Wn. App. 327, 338 n.3, 263 P.3d 1268 (2011) (quoting
State v. Perez-Meiia. 134 Wn. App. 907, 916, 143 P.3d 838 (2006)).
11 Ramos. 164 Wn. App. at 338 (emphasis added).
12 State v. Eisenshank. 10 Wn. App. 921, 924, 521 P.2d 239, rev, denied. 84
Wn.2d 1003 (1974).
13 Adkins v. Aluminum Co. of Am.. 110Wn.2d 128, 142, 750 P.2d 1257 (1988).
                                         8
No. 69378-6-1 / 9



questioned whether the "golden rule" prohibition applies in criminal cases.14

Nevertheless, even assuming the prohibition applies here, we conclude there

was no prejudicial misconduct.

      A "golden rule" argument is improper to the extent it encourages the jury

to depart from neutrality and to decide the case "on the basis of personal interest

and bias rather than on the evidence."15 As noted above, the indecent exposure

charge required the State to prove that McDonough exposed himself "knowing

that such conduct [was] likely to cause reasonable affront or alarm."16 Thus,
what the victims observed, how they reacted, and how a reasonable person

would likely react in the victims' circumstances, were all relevant considerations

in determining whether McDonough's conduct would likely cause reasonable

affront or alarm.   As McDonough himself observes, "the victims' fears were

relevant to the charges and the prosecutor could properly highlight their

testimony." Viewed in this context, the challenged remarks were not an appeal to

decide the case on sympathy, but to assess the fear or alarm that a reasonable

person would experience in the victims' circumstances.        This was within the

range of proper argument.

       To the extent that asking the jury to "imagine," rather than consider, the

victims' fear was misconduct, there is no substantial likelihood that the remarks

affected the verdict. The remarks were brief and the court instructed the jury that

their decision was to be based on the evidence and not on "sympathy, prejudice,



14 State v. Borboa. 157 Wn.2d 108, 124 n.5, 135 P.3d 469 (2006).
15 Adkins. 110 Wn.2d at 139.
No. 69378-6-1/10



or personal preference." The jury is presumed to follow the court's instructions,

and their acquittal on the burglary charge is proof that they did.17 In addition, the
State presented a strong case and McDonough's mental state defense was

severely undermined by his prior acts of indecent exposure, his post-arrest

interview, and the fact that he stopped exposing himself when customers

approached the coffee stand.

      Affirmed.




                                                V^SWyw -^
WE CONCUR:




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16 (Emphasis added.)
17 State v. Russell. 125 Wn.2d 24, 84, 882 P.2d 747 (1994), cert, denied. 514
U.S. 1129(1995).

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