State Of Washington, V Duane Allen Moore ( 2014 )

FILED
COURT OF APPEAL _S
DIVISION II
Mil MAY 13
AM 9: 15
IN THE COURT OF APPEALS OF THE STATE OF WASI
DIVISION II Y
STATE OF WASHINGTON, No. 44221 -3 -II
Respondent,
v.
DUANE ALLEN MOORE, UNPUBLISHED OPINION
Appellant.
MELNICK, J.— Duane Moore appeals his conviction and sentence for second degree
assault, domestic violence, after choking his wife during an argument. He argues that ( 1) the
prosecutor committed misconduct during voir dire and closing argument when he argued facts
not in evidence, made improper statements about witness credibility, and shifted the burden of
proof; (2) the trial court erred when it allowed a witness to testify with a service dog; and ( 3) the
prosecutor improperly testified at the sentencing hearing. In a statement of additional grounds
SAG), Mr. Moore alleges misconduct from an interaction between a trainee bailiff and a
witness. Finding no error, we affirm.
FACTS
On July 22, 2012, when the Bremerton police responded to a domestic violence call, they
found Sabrina Moore " crying hysterically." 1 Report of Proceedings ( RP) at 151. She stated
that during an argument with her husband, Mr. Moore, he threw a plastic tea bottle at her back.
He then followed her onto the porch, backed her up against the railing, and choked her. Mr.
Moore put one arm in front of Ms. Moore' s throat and one arm behind it. A neighbor witnessed
the incident and intervened. Mr. Moore fled the scene in a friend' s car. Ms. Moore had a red
mark on her throat.
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The State charged Mr. Moore with second degree assault with a domestic violence
special allegation. At trial, Ms. Moore testified that Mr. Moore had choked her. Two neighbors
testified that they witnessed the Moores arguing when Mr. Moore grabbed Ms. Moore, hit her,
and placed an arm on her throat. Mr. Moore admitted to arguing with Ms. Moore but denied
touching her.
Prior to Ms. Moore' s testimony and outside the presence of the jury, the State moved the
court for permission to have a service dog accompany Ms. Moore on the witness stand. The
prosecutor advised the court that Ms. Moore was nervous and scared about testifying and that
defense counsel had no objections.
dire, juror opined that " beyond a reasonable doubt" did not
During voir a prospective
mean absolute certainty and that the jury would not get all the facts. 1 RP at 99. The prosecutor
responded by saying the jurors were in a difficult position because . "we know more about the
case than you do." 1RP at 100. Mr. Moore did not object.
Also, during voir dire, the prosecutor asked the jurors how they would prove that the
world is round. The jurors gave examples of information they would use to prove the world' s
shape. The prosecutor then asked, " Is it fair for me to say that you' re satisfied beyond a
reasonable doubt based on a common sense appreciation of the facts; is that correct ?" 1 RP at
106. The prosecutor relied on this semi -analogy again in closing argument and asked the jurors
to look at all of the testimony to see if it made sense. He suggested that the jury evaluate the
evidence and the credibility of the witnesses to determine if a physical confrontation occurred,
stating, "[ Y] ou can be satisfied beyond a reasonable doubt [ that Mr. Moore is guilty of second
degree assault] based on a common sense appreciation of the facts." 2 RP at 224. Mr. Moore
did not object.
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The jury found Mr. Moore guilty as charged. At the sentencing hearing, Ms. Moore did
not appear because, as the prosecutor stated, she was " extremely traumatized" by the event and
she feared Mr. Moore because of a " long history of domestic violence." RP ( Nov. 16, 2012) at
3. The prosecutor then informed the court that Ms. Moore' s teeth were chattering before she
testified at trial and that he had never seen a victim so scared to testify. Mr. Moore objected to
The overruled Mr. Moore' s objection. Ms. Moore
the prosecutor stating this opinion. court
submitted a written statement which the court read silently but did not make a part of the record.
Mr. Moore requested an exceptional sentence below the standard range.
When sentencing Mr. Moore, the court stated its reasoning for imposing a mid -range 62-
month sentence was based on " the severity of the crime, your criminal history and because I, in
fact, heard the victim and I don' t find that it was de minimis so I don' t find there' s a basis for an
exceptional sentence downward." RP ( Nov. 16, 2012) at 35. Mr. Moore appeals.
ANALYSIS
I. PROSECUTOR ERROR
Mr. Moore argues that the prosecutor committed misconduct by arguing facts not in
evidence, implying that the jury' s job is to convict if it finds the State' s witnesses more credible
than the defendant, and misstating its burden of proof. We hold that the prosecutor did not
commit misconduct.
In order to prevail on a claim of prosecutorial misconduct, a defendant is required to
show that in the context of the record and all of the circumstances of the trial, the prosecutor's
conduct was both improper and prejudicial." In re Pers. Restraint of Glasmann, 175 Wash. 2d 696,
704, 286 P.3d 673 ( 2012). We review a prosecutor' s remarks during closing argument in the
context of the total argument, the issues in the case, the evidence addressed in the argument, and
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the jury instructions. State v. Dhaliwal, 150 Wash. 2d 559, 578, 79 P.3d 432 ( 2003). It is proper
argument that the evidence fails to support the defense' s theory. State v. Russell, 125 Wash. 2d 24,
87, 882 P.2d 747 ( 1994).
A. Arguing Facts Not in Evidence
First, Mr. Moore contends that the prosecutor' s statement during voir dire that the jurors
were in a difficult place because " we know more about the case than you do" was improper
because it argued facts not in evidence. 1 RP at 100. But the prosecutor' s comments during voir
dire were not evidence; therefore, he did not argue facts not in evidence. And the trial court
instructed the jury that the lawyers' statements were not evidence.
B. Credibility
Mr. Moore next argues that the prosecutor committed misconduct when he implied that
if it finds the State' s witnesses more credible than the defendant. The
the jury must convict
prosecutor merely argued that the evidence supported the State' s theory, not the defendant' s
theory, and that the jury should weigh credibility. Both arguments are proper topics for closing
argument. See Russell, 125 Wash. 2d at 87 ( it is not misconduct to argue that the evidence fails to
support the defendant' s theory); State v. Thomas, 150 Wash. 2d 821, 874 -75, 83 P.3d 970 ( 2004)
witness credibility is a jury question).
C. Burden of Proof
Lastly, Mr. Moore argues that the prosecutor misstated the burden of proof by using an
doubt encouraging the jury to common sense. We
analogy to describe reasonable and by use
disagree.
A prosecutor' s use of an analogy to explain the beyond a reasonable doubt standard is
reviewed on a case -by -case basis. State v. Fuller, 169 Wash. App. 797, 825, 282 P.3d 126 ( 2012),
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review denied, 176 Wash. 2d 1006 ( 2013). When the State uses an analogy that equates its burden
of proof to making an everyday choice or quantifies the level of certainty necessary to satisfy the
beyond a reasonable doubt standard, it commits misconduct. Fuller, 169 Wash. App. at 827; see
also State v. Anderson, 153 Wn. App. 417, 431, 220 P.3d 1273 ( 2009); State v. Johnson, 158
Wn. App. 677, 684, 243 P.3d 936 ( 2010). Where, as here, the State does not minimize its burden
of proof or shift the burden of proof to the defendant, there is no misconduct. Fuller, 169 Wn.
App. at 826 ( citing State v. Curtiss, 161 Wash. App. 673, 700 -01, 250 P.3d 496 ( 2011)).
Additionally, the State properly argued the law of the case by telling the jury it could use
common sense in assessing the evidence and the witnesses. The trial court instructed the jurors
that they must consider all admissible evidence and that they have a duty to assess the credibility
weigh the evidence. Within the context of closing argument, the
of the witnesses and
prosecutor' s statement about " a common sense appreciation of the facts" was not misconduct. 2
RP at 224. After making that statement, the prosecutor further argued that the State' s witnesses
corroborated each others' testimony and that their testimony " ma[ de] sense" while defendant' s
testimony was not supported by the evidence. 2 RP at 224. The prosecutor was referencing the
to find Mr. Moore guilty based on that evidence. This
evidence presented and urging the jury
was not improper.
Because we hold that Mr. Moore has failed to establish any misconduct, we affirm the
trial court.
II. SERVICE DOG
For the first time on appeal, Mr. Moore argues that the trial court erred by allowing the
service dog to be present in court with Ms. Moore. He first argues that, by doing so, the trial
court improperly commented on the evidence. He then posits his confrontation and due process
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rights were violated by the dog' s presence. Because Mr. Moore failed to raise these issues at
trial, he has failed to preserve this issue.
We will not review an argument raised for the first time on appeal unless the challenging
party demonstrates a manifest constitutional error. RAP 2. 5( a)( 3). An error is manifest if it is so
obvious on the record that the error requires appellate review. State v. O' Hara, 167 Wash. 2d 91,
99 -100, 217 P.3d 756 ( 2009). The defendant must show actual prejudice, meaning the alleged
error had practical and identifiable consequences at trial. State v. Gordon, 172 Wash. 2d 671, 676,
260 P.3d 884 ( 2011).
Here, Mr. Moore fails to prove that any alleged errors were manifest. There is no
evidence in the record that the dog' s presence made Ms. Moore appear traumatized or
victimized, and thereby violated Mr. Moore' s due process rights, or acted as a comment on the
evidence. See State v. Dye, 178 Wash. 2d 541, 555, 309 P.3d 1192 ( 2013) ( holding that the court' s
decision to allow a service dog was reasonable and that there was no evidence on the record that
the dog made the victim witness appear " pitiful to the jury and `` presupposed the victimhood of
the complainant "). It is the responsibility of the party alleging error to make a record of that
error. Dye, 178 Wash. 2d at 556. Additionally, Division One of this Court rejected a similar
confrontation clause argument, holding that confrontation clause case law was inapposite
because the dog' s presence does not prevent face -to -face confrontation with the witness. State v.
Dye, 170 Wash. 340, 346, 283 P.3d 1130 ( 2012), aff'd by Dye, 178 Wash. 2d 541. We therefore
App.
reject Mr. Moore' s argument and affirm the trial court.
III. SENTENCING
Finally, Mr. Moore argues that the prosecutor violated the real facts doctrine and Mr.
due Ms. Moore' behalf Because Mr.
Moore' s process rights by testifying on s at sentencing.
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Moore received a sentence within the standard range, he cannot appeal his sentence. RCW
9. 94A. 530( 1); RCW 9. 94A.585( 1); State v. Williams, 149 Wash. 2d 143, 146, 65 P.3d 1214 ( 2003).
Therefore, the argument on the " real facts doctrine" is moot.
IV. SAG
In his SAG, Mr. Moore argues bailiff misconduct, judicial misconduct, and ex parte
communications arising from an incident where the trainee bailiff realized she recognized Ms.
Moore. Because there was no prejudice, we disagree.
The bailiff at trial was training a new bailiff. Before the second day of testimony, the
Ms. Moore The trainee
bailiff and trainee were standing in the hallway when walked past.
greeted" Ms. Moore and then realized that she knew Ms. Moore briefly four years ago. 2 RP at
184. The bailiff and trainee reported this to the trial court, which then informed the parties on
the record and allowed the parties to ask questions or raise objections. The bailiff clarified that
no jurors witnessed the interaction. Mr. Moore requested that the trainee not participate in the
rest of the trial, and the trial court dismissed the trainee.
This interaction did not prejudice Mr. Moore. No jurors witnessed the trainee bailiff
greeting Ms. Moore, and the trainee was dismissed from the rest of the trial at Mr. Moore' s
request. There is no evidence in the record that the jury knew about or was in any way
influenced the interaction. Nor is there any evidence of ex parte communication. The trial
by
court discussed the interaction in chambers with the bailiffs, but there is no indication that any
parties were present. Rather, it appears that both parties were told about the interaction
simultaneously on the record. We affirm.
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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: