State Of Washington v. Kenneth P. Zimmerman, Jr. ( 2020 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
DIVISION ONE
Respondent,
No. 81032-4-I
v.
UNPUBLISHED OPINION
KENNETH PAUL ZIMMERMAN,
Appellant.
DWYER, J. — Kenneth Zimmerman appeals from the judgment entered on
a jury’s verdict finding him guilty of attempted rape of a child in the second
degree and four counts of communication with a minor for immoral purposes. On
appeal, Zimmerman contends that the evidence presented at trial was insufficient
to support any of his convictions. Additionally, he asserts that the trial court erred
by incorrectly instructing the jury, improperly rejecting several of his proposed
jury instructions, and impermissibly preventing him from calling two witnesses.
Lastly, Zimmerman contends that the prosecutor engaged in misconduct during
closing argument. Because Zimmerman does not establish an entitlement to
relief on any of his claims, we affirm.
No. 81032-4-I/2
I
In December 2015, Zimmerman was arrested as the result of an
undercover operation initiated by the Washington State Patrol Missing and
Exploited Children Task Force. As part of this operation, Detective Jeff Bickford
posed as a 13-year-old girl named “Kaylee” and responded to ads on Craigslist.
Detective Bickford’s purpose was to “identify persons that were interested in
engaging in sexual activity with children.”
Detective Bickford found an ad posted by Zimmerman, entitled “looking for
young little girl – m4w.” 1 The ad stated:
Hello, I am looking for a young little girl for play. Looking for open
minded and obedient. Looking to pleased abs be pleased. Please
tell me about you and include a picture. Looking for kinky fun. Put
your favorite color in the subject line.
On December 14, 2015, Detective Bickford responded to Zimmerman’s ad
via e-mail, writing, “im totally bored…what kinda play r u into?” Zimmerman
responded, “Hello, I am b very open in play. I am a Dom. I like bdsm, dirty talk,
pda and whatever you like. My name is Ken. Hit me up let’s text a little and go
from there.” Zimmerman then provided his telephone number. Detective
Bickford replied, “i don’t no what ur talking about…im almost 14 but act way
older…I nvr herd of that stuff though.” In response, Zimmerman asked for
pictures, and Detective Bickford sent him an age-regressed photo of a female
detective and a telephone number to text. Zimmerman responded, “Pretty
picture, where are you from you said you just moved here? You should be in
1 “m4w” means “man for woman.”
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No. 81032-4-I/3
school what school do you go to? It was very important question are you
affiliated in any way with law enforcement?” Detective Bickford replied, “i don't
go to skoool here yet... what does affiliat mean?”
After a few more e-mails, Zimmerman started texting Detective Bickford
and, over the course of three days, the two exchanged 364 text messages. On
December 15, 2015, Zimmerman (1) asked for pictures of “Kaylee” multiple
times; (2) asked whether she had ever had sex; (3) asked why she was
interested in someone older; (4) asked whether she wanted to meet up either
that day or the following day; (5) asked about her mom and dad; and (6) inquired
into why “a pretty girl like [her] doesn’t have any boyfriends.”
On December 16, 2015, Zimmerman (1) asked for a “sexy pic” of “Kaylee”
and that she “show [her] tits”; (2) asked for “sexy pictures” with her “shirt off”; (3)
expressed that he wanted to see “Kaylee” the following day; (4) stated that she
would be “a little young to be [his] date” to a Christmas function; (5) asked about
“Kaylee’s” weight and size; (6) asked whether “Kaylee” had “ever put [her] mouth
on a cock before” and “how many”; and (7) stated that he could “come over
tomorrow around 6.”
On December 17, 2015, Zimmerman (1) asked whether “Kaylee’s” dad
was home; (2) inquired into what she was “going to wear for [him]”; (3) asked
whether “Kaylee” “shave[d] down in [her] vagina area”; (4) suggested that sex
with him may hurt because she is “not use to it”; (5) asked whether “Kaylee”
“use[d] a vibrator or fingers on [her]self”; and (6) stated that he was “fixed” and
“disease free” and, therefore, did not need a condom.
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No. 81032-4-I/4
That same day, Zimmerman also asked “Kaylee” for her address.
Detective Bickford responded, stating that “Kaylee” lived “in a hill by the hospital”
and by “the chickn plce call[ed] . . . ezls” near “the hospital.” At 7:10 p.m.,
Zimmerman texted “Kaylee” that he was about 15 minutes away from her
location. Zimmerman drove from a Fred Meyer store near Cheney Stadium to
the Hilltop neighborhood of Tacoma where Saint Joseph’s Medical Center is
located.
At 7:33 p.m., Zimmerman texted that he was “already up by the hospital.”
Over the next hour, Zimmerman described his activity as he was searching for
“Kaylee’s” house. He texted that a guy stopped him “wanting to know what [he]
was doing in [the] neighborhood,” that he had “been hanging out down here for
an hour [and] people ha[d] seen [his] car,” that “[t]here [were] black guys all over
the place [and] cars around here circling,” and that “[t]hey’ve seen [him] several
times and stop [him].” Detective Bickford texted Zimmerman the address for a
trap house, which was a house associated with the undercover police operation
and located by Saint Joseph’s Medical Center.
At 8:31 p.m., Zimmerman asked “Kaylee” to “walk up to the emergency
entrance to the hospital parking lot and . . . meet [him] there” because he “[felt]
safer doing that.” Around 8:30 p.m., police observed Zimmerman’s car in the
emergency room parking lot of St. Joseph’s Medical Center. Zimmerman then
drove past the trap house and appeared to be leaving the area. At 8:38 p.m.,
police arrested Zimmerman.
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Pursuant to a search warrant for Zimmerman’s cell phone, the police
found e-mails and text messages sent to “Kaylee,” the photographs sent by
Detective Bickford, Internet searches to the Craigslist ad, “looking for young little
girl – m4w,” and Internet searches for the location of Ezell’s Chicken and the
address of the trap house.
The State charged Zimmerman with one count of attempted rape of a child
in the second degree and four counts of communication with a minor for immoral
purposes. At trial, Zimmerman testified that he created the Craigslist ad and sent
the e-mails and text messages that were admitted into evidence. He also
testified that he drove to the area surrounding Saint Joseph’s Medical Center and
had no reason to be in that area except to meet “Kaylee.” However, Zimmerman
denied ever believing that “Kaylee” was a minor and further stated that he never
intended to meet or have sexual intercourse with the person he was texting.
The jury found Zimmerman guilty of all offenses charged. Zimmerman
filed a motion for arrest of judgment and new trial, which the trial court denied.
The trial court sentenced Zimmerman to an indeterminate sentence of 180
months to life for attempted rape of a child in the second degree and two
determinate sentences of 29 and 60 months for four counts of communication
with a minor for immoral purposes, 2 with all sentences to run concurrently.
Zimmerman appeals.
2 At sentencing, the trial court found that the evidentiary basis for Counts III and IV
involved the “same criminal conduct” as Count II. Thus, only two sentences were imposed on the
four counts.
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No. 81032-4-I/6
II
Zimmerman first contends that the evidence is insufficient to support the
jury’s guilty verdict on the charge of attempted rape of a child in the second
degree. Because a rational trier of fact could have found that he both intended to
have sexual intercourse with a 13-year-old and took a substantial step toward
doing so, we disagree.
A
When reviewing the sufficiency of the evidence to sustain a conviction, we
view the evidence in the light most favorable to the State, draw all reasonable
inferences from the evidence in the State’s favor, and interpret the evidence most
strongly against the defendant. State v. Salinas, 119 Wash. 2d 192, 201, 829 P.2d
1068 (1992). A claim of insufficiency admits the truth both of the State’s
evidence and all reasonable inferences from the evidence. Salinas, 119 Wash. 2d
at 201. The question on appeal is whether “any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.” Jackson
v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979).
B
Rape of a child in the second degree occurs
when [a] person has sexual intercourse with another who is at least
twelve years old but less than fourteen years old and not married to
the perpetrator and the perpetrator is at least thirty-six months older
than the victim.
RCW 9A.44.076(1).
To attempt a crime, the defendant must have the intent to commit a
specific crime and take a substantial step toward the commission of that crime.
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No. 81032-4-I/7
RCW 9A.28.020(1). “The intent required is the intent to accomplish the criminal
result of the base crime.” State v. Johnson, 173 Wash. 2d 895, 899, 270 P.3d 591
(2012).
Conduct constitutes a substantial step toward the commission of a crime if
it “is ‘strongly corroborative of the actor’s criminal purpose.’” State v. Townsend,
147 Wash. 2d 666, 679, 57 P.3d 255 (2002) (quoting State v. Aumick, 126 Wash. 2d
422, 427, 894 P.2d 1325 (1995)). Also, “any act done in furtherance of the crime
constitutes an attempt if it clearly shows the design of the defendant to commit
the crime.” State v. Wilson, 158 Wash. App. 305, 317, 242 P.3d 19 (2010).
However, “[m]ere preparation to commit a crime is not a substantial
step.” Townsend, 147 Wash. 2d at 679. Similarly, a defendant’s words, “without
more,” are insufficient “to constitute the requisite overt act.” State v. Grundy, 76
Wash. App. 335, 337, 886 P.2d 208 (1994).
In State v. Wilson, we held that the following conduct was sufficient to
establish both the requisite intent for attempted rape of a child in the second
degree and a substantial step toward the commission of that crime: Wilson
arranged via e-mail to have “oral and full sex” with a fictitious 13-year-old girl for
$300, went to the agreed upon meeting place while in possession of $300,
waited in his car for approximately 30 minutes, and admitted that he intended to
have sex with a 13-year-old. 158 Wash. App. at 317-18.
Similarly, in State v. Sivins, 138 Wash. App. 52, 64, 155 P.3d 982 (2007),
Division Three held that the following communications provided sufficient
evidence of the intent required for attempted rape of a child in the second
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No. 81032-4-I/8
degree: Sivins sent sexually graphic Internet communications to someone he
believed to be a 13-year-old girl, stated that he would have sex with her if she
wanted, and enticed her with promises of vodka and pizza. Additionally, the
court held that the acts of driving five hours to Pullman and securing a motel
room for two people were each “substantial steps that strongly corroborate[d]
[Sivins’s] intention to have sexual intercourse with [a 13-year-old].” Sivins, 138
Wash. App. at 64.
Here, there is sufficient evidence that Zimmerman intended to have sexual
intercourse with a 13-year-old. Like the defendant in Sivins, who sent sexually
graphic Internet communications to someone he believed to be a 13-year-old girl,
Zimmerman sent sexually graphic text messages to a fictitious 13-year-old girl.
For example, Zimmerman texted “Kaylee,” “So have you ever been with a guy
before have you ever had sex before,” “I wish you send a sexy pic of you,”
“Show your tits,” and “have you ever put your mouth on a cock before.” In
addition to these text messages, Zimmerman posted the ad on Craigslist,
which stated, “I am looking for a young little girl for play” and “Looking for kinky
fun.”
Indeed, just as the defendant in Sivins told a fictitious 13-year-old girl that
he would have sex with her if she wanted, Zimmerman’s text messages to
“Kaylee” demonstrate that he planned to meet her to have sexual intercourse. In
particular, Zimmerman texted “Kaylee,” “Maybe we could meet up tomorrow or
Thursday” and Detective Bickford responded, “u culd totally com ovr i guess... u
seem cool.” The following day, Zimmerman texted, “I can come over tomorrow
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No. 81032-4-I/9
around 6,” and “Kaylee” then described her house and the “chickn plce”
nearby. And the next day, Zimmerman requested directions to “Kaylee’s”
house while he was in the area, asked that she meet him at the hospital while
he was in the Saint Joseph’s Medical Center parking lot, and admitted that he
had no reason to be in the area except to meet “Kaylee.” A rational trier of
fact could conclude that these text messages—along with the Craigslist ad—
reveal Zimmerman’s intent to have sexual intercourse with a person whom he
believed to be a 13-year-old girl.
There is also sufficient evidence that Zimmerman took a substantial step
toward the commission of rape of a child in the second degree. Zimmerman
drove from a Fred Meyer store near Cheney Stadium to the Hilltop neighborhood
of Tacoma with no reason to be in that area except to meet “Kaylee.”
Additionally, Zimmerman remained in the area of what he believed to be
“Kaylee’s” home for nearly an hour. While he was in the area, Zimmerman
texted that he was “kinda spooked” by a guy that “stop[ped] [him] wanting to
know what [he] was doing in [the] neighborhood.” Zimmerman subsequently
informed “Kaylee” that he went to “the hospital where . . . its safe” because
“[t]here are black guys all over the place in here cars around . . . circling.”
Zimmerman then texted “Kaylee,” “Why don’t you walk up to the emergency
entrance to the hospital parking lot and I can meet you there I feel safer
doing that.” Around this time, police observed Zimmerman’s car in the
emergency room parking lot of St. Joseph’s Medical Center.
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No. 81032-4-I/10
Thus, as with the defendant in Wilson, who drove to an arranged parking
lot and waited in the car for 30 minutes, Zimmerman drove from a Fred Meyer
store near Cheney Stadium to the area of what he believed to be “Kaylee’s”
home with no reason to be there except to meet “Kaylee,” remained in the area
for nearly an hour, and asked “Kaylee” to meet him at the hospital. A rational
trier of fact could conclude that Zimmerman drove to what he believed to be the
area of “Kaylee’s” home and asked her to meet him at the hospital in order to
facilitate sexual intercourse. Therefore, proof of these acts is sufficient to
constitute a substantial step toward the commission of rape of a child in the
second degree. See Townsend, 147 Wash. 2d at 679 (stating that conduct
constitutes a substantial step toward the commission of a crime if it “is ‘strongly
corroborative of the actor’s criminal purpose.’” (quoting Aumick, 126 Wash. 2d at
427)).
Accordingly, sufficient evidence supports the jury verdict on the charge of
attempted rape of a child in the second degree.
III
Zimmerman also contends that the evidence is insufficient to support his
convictions for Counts II through V of communication with a minor for immoral
purposes. We disagree.
A
The crime of communication with a minor for immoral purposes occurs
when
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No. 81032-4-I/11
a person . . . communicates with a minor for immoral purposes, or a
person . . . communicates with someone the person believes to be
a minor for immoral purposes.
RCW 9.68A.090(1).
The term “immoral purposes” is not defined by statute. See RCW
9.68A.011. However, our Supreme Court has explained that “the statute
prohibits communication with children for the predatory purpose of promoting
their exposure to and involvement in sexual misconduct.” State v. McNallie, 120
Wash. 2d 925, 933, 846 P.2d 1358 (1993).
B
As charged in the information, Count II concerned Zimmerman’s
communications with Detective Bickford, posing as “Kaylee,” “during the period
including the 14th and 16th days of December, 2015.” Further, the information
specifies that Count II regarded the “sending of an electronic communication, to
wit: e-mail messages.”
Considered in the context of the Craigslist ad, which had described
Zimmerman as “[l]ooking for kinky fun,” and “looking for a young little girl for
play,” the following e-mails exchanged between December 14 and 16 provide a
sufficient evidentiary basis for Count II: (1) Prior to “Kaylee” providing her age,
Zimmerman stated, “I am . . . very open in play[,] I am a Dom, [and] I like bdsm,
dirty talk, pda and whatever you like”; (2) Detective Bickford then sent
Zimmerman an e-mail stating, “i don’t know what ur talking about…im almost 14
but act way older…I nvr heard of that stuff though”; (3) Zimmerman subsequently
asked for pictures of “Kaylee” three times; and (4) Zimmerman, upon receipt of
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No. 81032-4-I/12
an age-regressed picture of a female detective, said, “Pretty picture, where are
you from you said you just moved here? You should be in school what school do
you go to? It was very important question are you affiliated in any way with law
enforcement?”
These messages provide sufficient evidence that Zimmerman was
communicating with someone he believed to be a minor for immoral purposes of
a sexual nature. 3 The message by “Kaylee” stating her age suggests that
Zimmerman believed he was communicating with a 13-year-old girl. Further, in
context, Zimmerman’s requests for pictures of “Kaylee” could lead a rational trier
of fact to believe that Zimmerman was asking for nude or semi-nude
photographs. After all, this e-mail exchange took place in response to
Zimmerman’s Craigslist ad “looking for a young little girl for play” and “for kinky
fun,” and, prior to asking for pictures, Zimmerman expressed his sexual
preferences as “a Dom” who “like[s] bdsm, dirty talk, [and] pda.” Lastly,
Zimmerman’s statement that “Kaylee’s” picture was “pretty” and his inquiry into
whether she was “affiliated in any way with law enforcement” could lead a
rational trier of fact to believe that Zimmerman was continuing his conversation
with “Kaylee” for an immoral purpose and was aware of the peril of doing so.
3 We do not hold that the jury could not consider evidence beyond that which we analyze
in resolving the evidentiary dispute as to each count. Rather, applying the Jackson standard, we
hold that a rational trier of fact could conclude, in light of the evidence that we describe
concerning each count, that Zimmerman communicated with a minor for immoral purposes.
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No. 81032-4-I/13
Zimmerman’s reference to law enforcement manifested a consciousness of guilt
that is probative of his intent and motivation. 4
Accordingly, sufficient evidence supports Zimmerman’s conviction on
Count II, communication with a minor for immoral purposes.
C
Count III concerned Zimmerman’s text messages on December 15, 2015.
The following text messages provide a sufficient evidentiary basis for Count III:
(1) Zimmerman asked for pictures of “Kaylee” multiple times; (2) Zimmerman
asked whether “Kaylee” had ever had sex; (3) Zimmerman asked why she was
4 For instance, in State v. Wilson, the defendant asked an undercover police officer, in
response to a Craigslist ad offering sex with a woman and her fictitious 13-year-old daughter,
“This isn’t some sort of Dateline thing is it?” 158 Wash. App. at 309. We noted this fear of being
discovered in declaring the evidence adduced sufficient to support his conviction for attempted
rape of a child in the second degree. Wilson, 158 Wash. App. at 320.
Likewise, in United States v. Farley, 607 F.3d 1294, 1334 (11th Cir. 2010), a federal
appellate court held that a defendant’s intent to engage in sexual acts with a person under the
age of 12 was revealed, in part, by his “repeatedly acknowledg[ing] his awareness that what he
planned to do was highly illegal.” In particular, the defendant “suspected out loud to [an
undercover officer] on seven different occasions [that he worried that he may be walking into] a
sting operation.” Farley, 607 F.3d at 1306. For example, the defendant “expressed some
concern that [the undercover officer] might be ‘a cop trying to entrap [him],’” “asked [the
undercover officer] to get a webcam so he could . . . make sure that she was ‘real and not some
cop or something,’” and requested the undercover officer to “‘please assure me that I am not
walking into some kind of Dateline type set up [and to] [r]epeat after me: I am not a cop, I am not
setting you up, I am not working under the authority of any police authority.’” Farley, 607 F.3d at
1301-05. All of this, the court reasoned, was evidence of his consciousness of guilt and, thus,
proof of his intent.
Similarly, the Pennsylvania Supreme Court held that a defendant’s intent to commit a
crime may be demonstrated by evidence of the defendant asking whether a purported accomplice
is affiliated with law enforcement. Commonwealth v. Murphy, 577 Pa. 275, 293, 844 A.2d 1228
(2004) (holding that a “jury could have found that [an accomplice] intended to aid [the principal] in
delivering the drugs based [partly] on his act[] of questioning [an undercover officer] to determine
if he was a police officer”). And Washington courts have long recognized the admissibility of
evidence bearing on a defendant’s consciousness of guilt. See e.g., State v. Bruton, 66 Wash. 2d
111, 112, 401 P.2d 340 (1965) (stating that “[i]t is an accepted rule that evidence of the flight of a
person” is admissible to demonstrate “consciousness of guilt”); State v. DeJesus, 7 Wash. App. 2d
849, 882, 436 P.3d 834, review denied, 193 Wash. 2d 1024 (2019) (holding that evidence of a
defendant filing a false police report to implicate someone else in a crime was properly admitted
to show consciousness of guilt); State v. Freeburg, 105 Wash. App. 492, 497-98, 20 P.3d 984
(2001) (“[E]vidence of resistance to arrest, concealment, assumption of a false name, and related
conduct are admissible if they allow a reasonable inference of consciousness of guilt of the
charged crime.”).
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No. 81032-4-I/14
interested in someone older; (4) Zimmerman asked whether she wanted to meet
up either that day or the following day; (5) Zimmerman asked about “Kaylee’s”
mom and dad; and (6) Zimmerman inquired into why “a pretty girl like [her]
doesn’t have any boyfriends.”
Considered in the context of the Craigslist ad, a rational trier of fact could
infer from these text messages that Zimmerman communicated with “Kaylee” for
an immoral purpose of a sexual nature. Zimmerman inquired into “Kaylee’s”
sexual history, expressed that he was attracted to her, asked for pictures of her,
and asked whether she wanted to meet. Therefore, sufficient evidence supports
Zimmerman’s conviction for Count III, communication with a minor for immoral
purposes.
D
Count IV concerned Zimmerman’s text messages on December 16, 2015.
The following text messages provide a sufficient evidentiary basis for Count IV:
(1) Zimmerman asked for a “sexy pic” of “Kaylee” and that she “show [her] tits”;
(2) Zimmerman asked for “sexy pictures” with her “shirt off”; (3) Zimmerman
expressed that he wanted to see “Kaylee” the following day; (4) Zimmerman
stated that “Kaylee” would be “a little young to be [his] date” to a Christmas
function; (5) Zimmerman asked about “Kaylee’s” weight and size; (6) Zimmerman
asked whether “Kaylee” had “ever put [her] mouth on a cock before” and “how
many”; and (7) Zimmerman stated that he could “come over tomorrow around 6.”
These messages show Zimmerman asking for nude pictures of “Kaylee,”
expressing that she was too young for them to be seen together in public,
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No. 81032-4-I/15
inquiring into whether she had performed oral sex, and offering to drive to her
house the next day. From this, a rational trier of fact could infer that Zimmerman
was communicating with someone he believed to be a minor for immoral
purposes of a sexual nature. Accordingly, Zimmerman’s conviction on Count IV
is supported by sufficient evidence.
E
Count V concerned Zimmerman’s text messages on December 17, 2015.
The following texts provide a sufficient evidentiary basis for Count V: (1)
Zimmerman asked whether “Kaylee’s” dad was home; (2) Zimmerman asked for
her address; (3) Zimmerman suggested that they could meet at Ezell’s Chicken;
(4) Zimmerman inquired into what “Kaylee” was “going to wear for [him]”; (5)
Zimmerman asked whether “Kaylee” “shave[d] down in [her] vagina area”; (6)
Zimmerman suggested that sex with him may hurt because she is “not use to it”;
(7) Zimmerman asked whether “Kaylee” “use[d] a vibrator or fingers on [her]self”;
(8) Zimmerman stated that he was “fixed” and “disease free” and, therefore, did
not need a condom; and (9) Zimmerman asked “Kaylee” to “walk up to the
emergency entrance to the hospital parking lot and . . . meet [him] there”
because he “[felt] safer doing that.”
These messages reveal Zimmerman inquiring into how “Kaylee”
masturbated, questioning “Kaylee” about her vagina, explaining why he does not
need to use a condom when they have sex, requesting “Kaylee’s” address, and
asking for her to meet him at the hospital. From this, a rational trier of fact could
conclude that Zimmerman communicated with someone that he believed to be a
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No. 81032-4-I/16
minor for immoral purposes of a sexual nature. Thus, Zimmerman’s conviction
on Count V is supported by sufficient evidence.
IV
Zimmerman next contends that the trial court incorrectly instructed the jury
on attempted rape of a child in the second degree and communication with a
minor for immoral purposes. Additionally, he asserts that the trial court
improperly rejected his proposed jury instructions on attempted rape of a child in
the second degree, communication with a minor for immoral purposes, and
entrapment. We disagree.
A
Zimmerman asserts that the trial court did not properly instruct the jury on
the intent required for attempted rape of a child in the second degree.
Specifically, he contends that the phrase “with intent to commit that crime” in jury
instruction 6 impermissibly allowed the jury to speculate on what crime that might
be. Zimmerman is wrong.
Jury instructions are sufficient if they permit each party to argue his or her
theory of the case, are not misleading, and, when read as a whole, properly
inform the jury of the applicable law. State v. Aver, 109 Wash. 2d 303, 309, 745
P.2d 479 (1987). On appeal, “individual jury instructions [are read] ‘in the context
of the instructions as a whole.’” State v. Tyler, 191 Wash. 2d 205, 216, 422 P.3d
436 (2018) (internal quotation marks omitted) (quoting State v. Williams, 162
Wash. 2d 177, 182, 170 P.3d 30 (2007)).
The trial court’s jury instruction 6 stated:
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No. 81032-4-I/17
A person commits the crime of Attempted Rape of a Child in
the Second Degree when, with intent to commit that crime, he does
any act which is a substantial step toward the commission of that
crime.[5]
Next, the trial court’s jury instruction 7 stated:
A person acts with intent or intentionally when acting with the
objective or purpose to accomplish a result that constitutes a crime.
Additionally, the trial court’s jury instruction 8 stated:
A person commits the crime of Rape of a Child in the
Second Degree when that person has sexual intercourse with child
[sic] who is at least twelve years old but less than fourteen years
old and who is not married to the person and is not in a state
registered domestic partnership with the person and who is at least
thirty-six months younger than the person.[6]
Finally, the trial court’s jury instruction 12 stated:
To convict the defendant of the crime of Attempted Rape of
a Child in the Second Degree as charged in Count I, each of the
following elements of the crime must be proved beyond a
reasonable doubt:
(1) That during the period including the 14th and the 17th
days of December, 2015, the defendant did an act that was a
substantial step toward the commission of Rape of a Child in the
Second Degree;
(2) That the act was done with the intent to commit Rape of
a Child in the Second Degree; and
5 This language follows the Washington Pattern Jury Instruction applicable to all attempt
crimes:
A person commits the crime of attempted (fill in crime) when, with intent
to commit that crime, he or she does any act that is a substantial step toward the
commission of that crime.
11A W ASHINGTON PRACTICE: W ASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 100.01 (4th ed.)
(WPIC).
6 The language used in jury instruction 8 closely resembles the language in the
Washington Pattern Jury Instruction for attempted rape of a child in the second degree. The only
difference is that the trial court added the language, “and is not in a state registered domestic
partnership with the person,” which Zimmerman does not contest:
A person commits the crime of rape of a child in the second degree when
the person has sexual intercourse with a child who is at least twelve years old but
less than fourteen years old, who is not married to the person, and who is at least
thirty-six months younger than the person.
11 WPIC 44.12.
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No. 81032-4-I/18
(3) That the act occurred in the State of Washington.
If you find from the evidence that each of these elements
has been proved beyond a reasonable doubt, then it will be your
duty to return a verdict of guilty.
On the other hand, if, after weighing all the evidence, you
have a reasonable doubt as to any one of these elements, then it
will be your duty to return a verdict of not guilty.[7]
There are two reasons why the trial court’s instruction on attempted rape
of a child in the second degree was proper. First, jury instruction 12, standing
alone, clearly indicates the proper intent required for attempted rape of a child in
the second degree:
To convict the defendant of the crime of Attempted Rape of a
Child in the Second Degree as charged in Count I, each of the
following elements of the crime must be proved beyond a
reasonable doubt:
(1) That . . . the defendant did an act that was a substantial
step toward the commission of Rape of a Child in the Second
Degree;
(2) That the act was done with the intent to commit Rape of
a Child in the Second Degree.
This instruction plainly states that the intent required for attempted rape of a child
in the second degree is the intent to commit the base crime, rape of a child in the
second degree.
7
Jury instruction 12 also mirrors the Washington Pattern Jury Instruction:
To convict the defendant of the crime of attempted (fill in crime), each of
the following elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about [date], the defendant did an act that was a
substantial step toward the commission of (fill in crime);
(2) That the act was done with the intent to commit (fill in crime); and
(3) That the act occurred in the State of Washington.
If you find from the evidence that each of these elements has been
proved beyond a reasonable doubt, then it will be your duty to return a verdict of
guilty.
On the other hand, if, after weighing all the evidence, you have a
reasonable doubt as to any one of these elements, then it will be your duty to
return a verdict of not guilty.
11A WPIC 100.02.
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No. 81032-4-I/19
Second, jury instruction 6 is proper when read in the context of the
instructions as a whole. See Tyler, 191 Wash. 2d at 216 (“[I]ndividual jury
instructions [are read] ‘in the context of the instructions as a whole.’” (internal
quotation marks omitted) (quoting Williams, 162 Wash. 2d at 182)). In particular,
the term “that crime” in jury instruction 6 refers to rape of a child in the second
degree as set out in jury instruction 8. Indeed, jury instruction 6 mirrors the
language used in WPIC 100.01, which “may be used whenever an attempt to
commit a crime is in issue.” 11A WPIC 100.01, note on use. Nevertheless, any
potential confusion concerning the meaning of “that crime” in jury instruction 6
was clarified by reference to jury instruction 12, which, as explained above,
plainly states the appropriate intent for attempted rape of a child in the second
degree.
For these reasons, Zimmerman’s assignment of error fails.
B
Zimmerman next asserts that the trial court erred by not adopting his
proposed jury instructions on attempted rape of a child in the second degree.
A trial court’s refusal to give an instruction based on a ruling of law is
reviewed de novo. State v. Walker, 136 Wash. 2d 767, 772, 966 P.2d 883 (1998).
Zimmerman’s proposed instructions stated:
A person commits the crime of attempted rape of a child in
the second degree when, with intent to have sexual intercourse, he
or she does any act that is a substantial step toward the
commission of that crime.
The intent required for attempted rape of a child is the intent
to accomplish the criminal result: to have sexual intercourse.
(Emphases added.)
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No. 81032-4-I/20
These proposed instructions do not accurately state the law. While
attempted rape of a child in the second degree requires a goal of sexual
intercourse, it requires “sexual intercourse with another who is at least twelve
years old but less than fourteen years old and not married to the perpetrator and
the perpetrator is at least thirty-six months older than the victim.” RCW
9A.44.076(1). Put differently, Zimmerman’s proposed instruction is overbroad
regarding the nature of the sexual intercourse that must be intended. A trial court
is never required to issue a jury instruction that misstates the law. State v.
Summers, 107 Wash. App. 373, 387, 28 P.3d 780, 43 P.3d 526 (2001). Thus, the
trial court properly rejected this proposed instruction.
C
Zimmerman further asserts that the trial court’s jury instruction 14, which
defined communication with a minor for immoral purposes, provided no guidance
as to what statements meet the definition of “immoral purposes” and what
statements are protected speech.
Jury instruction 14 stated:
A person commits the crime of Communication with a Minor
for Immoral Purposes when he communicates with someone he
believes to be a minor for immoral purposes of a sexual nature.
Communication may be by words or conduct.
Our Supreme Court has upheld a jury instruction for communication with a
minor for immoral purposes that defined “immoral purposes” as “immoral
purposes of a sexual nature.” McNallie, 120 Wash. 2d at 933. The court reasoned
that the term “immoral purposes” was not unconstitutionally vague. McNallie,
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No. 81032-4-I/21
120 Wash. 2d at 931-32 (citing State v. Schimmelpfennig, 92 Wash. 2d 95, 102, 594
P.2d 442 (1979)).
Jury instruction 14 uses the very language approved of by the Supreme
Court. Therefore, the trial court’s challenged instruction was proper.
D
Zimmerman also asserts, without providing any support, that the trial court
erred by not giving his proposed jury instruction defining “immoral purposes” as
“unlawful sexual conduct.” Indeed, Division Two has held that the crime of
communication with a minor for immoral purposes was not intended to “proscribe
communications about sexual conduct that would be legal if performed.” State v.
Luther, 65 Wash. App. 424, 426, 830 P.2d 674 (1992). However, this holding was
made in the context of two 16-year-old persons who communicated about sexual
conduct that would have been legal if performed. Luther, 65 Wash. App. at 425-26.
It has no applicability to this matter.
At trial, Zimmerman did not contend that his conduct would have been
legal if performed. Rather, Zimmerman asserted that “immoral purposes” should
be defined as “unlawful sexual conduct” because his messages to “Kaylee” could
be interpreted as protected speech. The trial court denied Zimmerman’s
proposed instruction, reasoning that, if there were affirmative evidence that
Zimmerman thought he was communicating with a 17-year-old, then the
proposed instruction might have been appropriate under Luther.
Because Zimmerman did not present evidence that any of the sex acts
discussed in his communications with “Kaylee” would have been legal if
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No. 81032-4-I/22
performed, the trial court did not err by rejecting Zimmerman’s proposed
instruction.
E
Zimmerman additionally asserts that the trial court erred by refusing to
instruct the jury on the defense of entrapment to the charges of communication
with a minor for immoral purposes.
A trial court’s refusal to instruct a jury, if based on a factual dispute, is
reviewed for abuse of discretion. Walker, 136 Wash. 2d at 771-72. An abuse of
discretion exists when a trial court’s exercise of discretion is manifestly
unreasonable or based on untenable grounds or reasons. State v. Powell, 126
Wash. 2d 244, 258, 893 P.2d 615 (1995). If there is evidence to support a defense
theory, a defendant is entitled to have the jury instructed on that theory. State v.
Harvill, 169 Wash. 2d 254, 259, 234 P.3d 1166 (2010).
To be entitled to an entrapment instruction, “a defendant must present
evidence which would be sufficient to permit a reasonable juror to conclude that
the defendant has established the defense of entrapment by a preponderance of
the evidence.” State v. Trujillo, 75 Wash. App. 913, 917, 883 P.2d 329 (1994).
Moreover, defendants are entitled to an entrapment instruction when they “admit
acts which, if proved, would constitute [a] crime.” State v. Galisia, 63 Wash. App.
833, 837, 822 P.2d 303 (1992), abrogated on other grounds by Trujillo, 75 Wn.
App. 913.
The statute establishing entrapment as a defense provides:
(1) In any prosecution for a crime, it is a defense that:
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No. 81032-4-I/23
(a) The criminal design originated in the mind of law
enforcement officials, or any person acting under their direction,
and
(b) The actor was lured or induced to commit a crime which
the actor had not otherwise intended to commit.
(2) The defense of entrapment is not established by a
showing only that law enforcement officials merely afforded the
actor an opportunity to commit a crime.
RCW 9A.16.070.
There are two reasons why the trial court did not err by declining to issue
Zimmerman’s proposed entrapment instruction. First, Zimmerman did not admit
to acts that would constitute a crime. Instead, Zimmerman denied that he
believed he was communicating with a minor and stated that he never intended
to meet or have sex with the person he was texting and e-mailing. See RCW
9.68A.090(1) (stating that communicating with a minor for immoral purposes
occurs when “a person . . . communicates with someone the person believes to
be a minor for immoral purposes”).
Second, the trial court reasonably determined that the evidence supported
a finding that the criminal design did not originate in the minds of law
enforcement officials. Zimmerman created the Craigslist ad that stated, “I am
looking for a young little girl for play,” and initiated sexual conversations, such as
“I wish you send a sexy pic of you,” “Show your tits,” and “have you ever put
your mouth on a cock before.” From this evidence, the court reasonably
concluded that a defense of entrapment was never properly put at
issue. See Trujillo, 75 Wash. App. at 919 (affirming a trial court’s refusal to
instruct a jury on the defense of entrapment because there was insufficient
evidence to support the defense).
- 23 -
No. 81032-4-I/24
Accordingly, the trial court did not err by rejecting Zimmerman’s proposed
entrapment instruction.
V
Zimmerman contends that the trial court violated his Sixth Amendment
right to present a defense by refusing to let him call both Detective Sergeant
Carlos Rodriguez and Michael Comte, a sexual offender expert, as witnesses. 8
We disagree.
A
A claim of a denial of Sixth Amendment rights is reviewed de novo. State
v. Jones, 168 Wash. 2d 713, 719, 230 P.3d 576 (2010). However, defendants have
no constitutional right to present irrelevant evidence. Jones, 168 Wash. 2d at 720.
Evidence is relevant if it has “any tendency to make the existence of any fact that
is of consequence to the determination of the action more probable or less
probable than it would be without the evidence.” ER 401. Additionally, even
relevant evidence may be excluded “if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or
misleading the jury, or by considerations of undue delay, waste of time, or
needless presentation of cumulative evidence.” ER 403.
8 Zimmerman also asserts that the trial court erred by denying him access to the Internet
Crimes Against Children “sting operation” training materials. However, Zimmerman’s opening
brief does not cite to any authority that would allow for meaningful review. The Rules of Appellate
Procedure require “[t]he brief of the appellant . . . [to] contain . . . [t]he argument in support of the
issues presented for review, together with citations to legal authority and references to relevant
parts of the record.” RAP 10.3(a)(6). Accordingly, we decline to review Zimmerman’s argument
that he was entitled to utilize the training manuals in presenting his defense.
- 24 -
No. 81032-4-I/25
Further, “[a] witness may not testify to a matter unless evidence is
introduced sufficient to support a finding that the witness has personal knowledge
of the matter.” ER 602. Personal knowledge means “facts [that a witness] has
personally observed.” State v. Vaughn, 101 Wash. 2d 604, 611, 682 P.2d 878
(1984). The proponent of the testimony has the burden of introducing “evidence
‘sufficient to support a finding’ of personal knowledge.” Vaughn, 101 Wash. 2d at
611 (quoting ER 602). Accordingly, “testimony should be excluded . . . if, as a
matter of law, no trier of fact could reasonably find that the witness had firsthand
knowledge.” Vaughn, 101 Wash. 2d at 611-12 (citing 5 KARL B. TEGLAND,
WASHINGTON PRACTICE: EVIDENCE § 219 (2d ed. 1982)).
B
Zimmerman contends that the trial court denied his right to present a
defense by preventing him from calling Detective Sergeant Rodriguez as a
witness. He asserts that, as a supervisor to the sting operation, Detective
Sergeant Rodriguez would have had relevant information regarding his
whereabouts prior to his arrest.
Zimmerman’s offer of proof describing Detective Sergeant Rodriguez’s
proposed testimony consisted of (1) two police reports, one written by Detective
Sergeant Rodriguez and one written for him by another officer; (2) a transcript of
a pretrial interview of Detective Sergeant Rodriguez; and (3) an argument on the
record.
The police reports do not indicate that Detective Sergeant Rodriguez had
any personal knowledge of Zimmerman’s whereabouts prior to his arrest. One
- 25 -
No. 81032-4-I/26
report merely certifies that no forensic evidence was submitted to the Vancouver
Police Department, and the other states that Detective Sergeant Rodriguez
reviewed a report on Zimmerman’s cell phone.
The transcript of the pretrial interview with Detective Sergeant Rodriguez
also does not indicate that he had any personal knowledge regarding
Zimmerman’s location prior to the arrest. When asked about specifics regarding
the operation surrounding Zimmerman’s arrest, Detective Sergeant Rodriguez
frequently stated that he would have to refer to the police reports. For example:
[Counsel]: Are you aware that Mr. Zimmerman was arrested
more than a mile away from this predetermined
location?
[Rodriguez]: Ah, I would have to look at the other reports where he
was arrested.
In short, Zimmerman does not point to—and Detective Sergeant Rodriguez did
not make—any statement indicating that Detective Sergeant Rodriguez had any
personal knowledge regarding Zimmerman’s whereabouts prior to his arrest.
Moreover, Zimmerman fails to show how Detective Sergeant Rodriguez’s
testimony would have otherwise been relevant if he were allowed to be called as
a witness. In an argument on the record, Zimmerman asserted that Detective
Sergeant Rodriguez would have been able to testify about “the general way that
the surveillance units are set up,” “what, if any, records were taken or what
reports were made,” and “what might be available to corroborate the testimony of
other officers.”
The trial court appropriately found “that defense counsel’s suggestion that
[Detective Sergeant] Rodriguez knew ‘who did what’ . . . was not relevant . . . to
- 26 -
No. 81032-4-I/27
any issue at defendant’s trial, particularly when others who already testified at the
trial gave ‘who did what’ specifics.” Indeed, evidence is relevant if it has “any
tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable.” ER 401 (emphasis
added). Zimmerman fails to show how, precisely, Detective Sergeant
Rodriguez’s testimony would have been of any consequence.
Notably, in its order limiting the testimony of Detective Sergeant
Rodriguez, the trial court denied the State’s motion to exclude Detective
Sergeant Rodriguez as a witness. Instead, the trial court granted “the State’s
motion to limit testimony from Detective Sergeant Rodriguez and exclude the
subjects proffered by defense counsel.” In other words, Zimmerman was free to
call Detective Sergeant Rodriguez as a witness if Zimmerman could establish
that Detective Sergeant Rodriguez would have personal knowledge and that his
testimony would be relevant.
Accordingly, the trial court did not err in denying Zimmerman’s request to
call Detective Sergeant Rodriguez as a witness.
C
Zimmerman also asserts that the trial court erred by refusing to allow
Comte to testify as a sexual offender expert. Specifically, Zimmerman contends
that Comte’s testimony was necessary to remedy improperly-admitted testimony.
The improperly-admitted testimony alluded to by Zimmerman was the
following statement by Detective Bickford, made during Zimmerman’s cross-
examination of him: “It is my belief, based upon the text messages, that Mr.
- 27 -
No. 81032-4-I/28
Zimmerman believed he was talking to a child.” Zimmerman objected to the
response and subsequently moved to strike Detective Bickford’s answer.
Initially, the trial court overruled the objection. Consequently, Zimmerman
sought to add Comte as an expert witness to rebut Detective Bickford’s
testimony. Upon reexamining the testimony and the objection, the trial court
reversed course, stating that it should have sustained the objection. It then did
so, instructing the jury to disregard Detective Bickford’s statement. The trial court
then ruled that Zimmerman could not call Comte as a witness, reasoning that
doing so would create a “trial unto itself,” be “confusing for the jury,” “a waste of
time,” and “misleading.”
Given these circumstances, the trial court did not err by precluding Comte
from testifying. “[J]uries are presumed to follow the instructions provided.” State
v. Ervin, 158 Wash. 2d 746, 756, 147 P.3d 567 (2006). Here, the trial court
instructed the jury to disregard Detective Bickford’s challenged statement. The
trial court then properly applied ER 403 by ruling—given that the offending
statement had been stricken—that Comte’s testimony would create a “trial unto
itself,” be “confusing for the jury,” “a waste of time,” and “misleading.” See ER
403. Because Detective Bickford’s challenged testimony was stricken, there was
no testimony to rebut. The trial court correctly reasoned that any evidentiary
reply to stricken testimony would be nothing more than an unnecessary frolic in
the midst of a long, involved trial.
Accordingly, the trial court did not err by refusing to allow Zimmerman to
call Comte as an expert witness.
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No. 81032-4-I/29
VI
Zimmerman lastly contends that the prosecutor engaged in misconduct by
(1) misstating the law on attempt; (2) personally vouching for a witness, giving his
personal opinion, and speaking in the first person; (3) misstating the reasonable
doubt standard; and (4) misstating the law on communication with a minor for
immoral purposes. We conclude that the prosecutor did not engage in
misconduct in any of these respects.
A
“To prevail on a claim of prosecutorial misconduct, a defendant must show
first that the prosecutor’s comments were improper and second that the
comments were prejudicial.” State v. Warren, 165 Wash. 2d 17, 26, 195 P.3d 940
(2008). While “[a] prosecutor may argue reasonable inferences from the
evidence, [he or she] . . . may not make a ‘clear and unmistakable’ expression of
personal opinion.” Warren, 165 Wash. 2d at 43 (internal quotation marks omitted)
(quoting State v. Brett, 126 Wash. 2d 136, 175, 892 P.3d 29 (1995)). Additionally,
“[a] prosecuting attorney commits misconduct by misstating the law.” State v.
Allen, 182 Wash. 2d 364, 373, 341 P.3d 268 (2015).
In determining whether a prosecutor’s statements are prejudicial, “[t]he
court evaluates the conduct in light of the total argument, issues, evidence, and
jury instructions.” Warren, 165 Wash. 2d at 43. Further, prejudice is established if
“there is a substantial likelihood the misconduct affected the jury’s verdict.” State
v. Stenson, 132 Wash. 2d 668, 718-19, 940 P.2d 1239 (1997). When a defendant
objects or moves for mistrial on the basis of alleged prosecutorial misconduct,
- 29 -
No. 81032-4-I/30
deference is given to the trial court’s ruling on the matter. Stenson, 132 Wash. 2d at
719.
B
Zimmerman asserts that the prosecutor engaged in misconduct by stating
that a completed attempt crime cannot be abandoned. Specifically, the
prosecutor stated that “[t]he law does not allow, I changed my mind at the last
minute if you’ve already taken the substantial step.” Contrary to Zimmerman’s
present contention, this was a correct statement of the law. Indeed, it is well
established that, “[o]nce a substantial step has been taken, and the crime of
attempt is accomplished, the crime cannot be abandoned.” State v. Workman,
90 Wash. 2d 443, 450, 584 P.2d 382 (1978). Accordingly, the prosecutor did not
misstate the law.
C
Zimmerman also asserts that the prosecutor engaged in misconduct by
encouraging the jury to determine its own standards for what amounts to
communication with a minor for immoral purposes.
From his opening brief, it is unclear what statements, exactly, Zimmerman
contests. However, the prosecutor explained the crime of communication with a
minor for immoral purposes as follows:
Now, you’ll notice that the words ‘immoral purpose’ are not
defined for you legally. There are some phrases that have their
common meaning. So, you know, there was a Supreme Court case
. . . that said pornography is, you’ll know it when you see it. That’s
the definition of pornography. You know it when you see it. In
some respects, ‘immoral purposes’ are the same thing, not exactly,
but— . . . . A person commits the crime of communicating with a
- 30 -
No. 81032-4-I/31
minor with an immoral purpose if they communicate with someone
they believe to be a minor for immoral purposes of a sexual nature.
Following a motion for a mistrial by Zimmerman, the trial court instructed
the jury to follow its instructions if there was a conflict with a statement made by
either attorney.
Standing alone, the prosecutor’s statement likening “immoral purposes” to
pornography may have been improper. However, the prosecutor then defined
the offense using the same language as the trial court’s instruction. Because the
trial court’s instruction was proper, the prosecutor did not misstate the
law. See McNallie, 120 Wash. 2d at 933 (upholding a jury instruction for
communication with a minor for immoral purposes that defined “immoral
purposes” as “immoral purposes of a sexual nature”).
In any event, the trial court did not err by refusing to grant Zimmerman’s
motion for a mistrial. See Stenson, 132 Wash. 2d at 719 (stating that where a
defendant objects or moves for mistrial on the basis of alleged prosecutorial
misconduct, deference is given to the trial court’s ruling on the matter). The trial
court instructed the jury to refer to the court’s instructions on the law, and “juries
are presumed to follow the instructions provided.” Ervin, 158 Wash. 2d at 756.
Therefore, no trial court error is established.
- 31 -
No. 81032-4-I/32
D
Next, Zimmerman contends that the prosecutor engaged in misconduct by
personally vouching for a witness, expressing his personal opinion, and speaking
in the first person. 9
Prior to closing argument, Zimmerman moved “[t]o prohibit the prosecutor
from expressing any personal opinions as to the credibility of any witness or the
guilt of the defendant.” The trial court granted Zimmerman’s motion.
At the start of his closing argument, the prosecutor stated that he would be
using the word “I” instead of “the State” because “[i]t’s just easier to speak in the
first person.” The prosecutor expressly stated that “nothing that you’re going to
hear . . . is my personal opinion.” Then, throughout his closing argument, the
prosecutor proceeded to speak in the first person. 10
Notably, the prosecutor also commented on Zimmerman’s credibility:
Defendant’s [Craigslist] ad is sexual in nature. His response—the
content about PDA, BDSM—by the way, you want a comment on
his credibility? He doesn’t know what BDSM means. He just put it
in his advertisement response, he didn’t know what it meant. Do
you buy that? I can’t stop you from it.
The prosecutor may have expressed his personal opinion by asking, “you
want a comment on his credibility?” This remark suggests that the “comment on
9 None of the prosecutor’s statements indicate that he personally vouched for a witness
during his closing argument or rebuttal, and Zimmerman’s brief does not provide any example of
this occurring. Accordingly, we decline to review whether the prosecutor personally vouched for a
witness. See RAP 10.3(a)(6).
10 The statements made by the prosecutor in the first person include: “I’m going to
suggest to you now that the evidence shows that the defendant is guilty;” “I’m going to suggest to
you that there are some conversations that individuals can have [depending on who is present];”
and “I want you to believe . . . the Mr. Zimmerman who shows up in Exhibits 1, 2 and 3. That’s
the guy who I want you to believe because everything that he said wasn’t motivated by his current
desire to pull something over on the 12 of you.”
- 32 -
No. 81032-4-I/33
[Zimmerman’s] credibility” is the prosecutor’s personal belief regarding
Zimmerman’s credibility, especially given that the prosecutor spoke in the first
person throughout the entirety of his closing argument. However, it is so that the
prosecutor prefaced his closing argument by stating that “nothing that you’re
going to hear . . . is my personal opinion.” Therefore, when the closing argument
is considered as a whole, the prosecutor’s statements are not unfairly
prejudicial. See Warren, 165 Wash. 2d at 43 (stating that, when determining
whether a prosecutor’s conduct is prejudicial, “[t]he court evaluates the conduct
in light of the total argument”).
E
Zimmerman finally asserts that the prosecutor engaged in misconduct by
trivializing the beyond a reasonable doubt standard and misstating the “abiding
belief” principle.
A prosecutor acts improperly by “trivializ[ing] and . . . fail[ing] to convey the
gravity of the State’s burden and the jury’s role in assessing its case against [a
defendant].” State v. Anderson, 153 Wash. App. 417, 431, 220 P.3d 1273 (2009).
The United States Supreme Court has upheld the use of the term “abiding
conviction” in a jury instruction, reasoning that ‘[t]he word ‘abiding’ . . . has the
signification of settled and fixed, a conviction which may follow a careful
examination and comparison of the whole evidence.” Hopt v. People, 120 U.S.
430, 439, 7 S. Ct. 614, 30 L. Ed. 708 (1887). Additionally, the Court has
described the beyond a reasonable doubt standard as “impressing upon the
- 33 -
No. 81032-4-I/34
factfinder the need to reach a subjective state of near certitude of the guilt of the
accused.” Jackson, 443 U.S. at 315.
Zimmerman first contends that the prosecutor trivialized the reasonable
doubt standard by stating, “A reasonable doubt is one for which a reason exists.”
However, this statement mirrors the language of the trial court’s jury instruction 2.
Indeed, our Supreme Court has upheld a jury instruction containing this
statement, reasoning that it “satisfied the minimum requirements of due
process.” State v. Bennett, 161 Wash. 2d 303, 318, 165 P.3d 1241 (2007).
Therefore, the prosecutor’s statement was proper.
Next, Zimmerman asserts that the prosecutor improperly described
“abiding belief” by equating it to doing the right thing. Zimmerman does not
quote any particular language used by the prosecutor, but he appears to refer to
this statement:
What [abiding belief] means is, when you are released from the
instruction the judge has given you about not talking to your friends
and family about this case and when they ask you . . . [w]ell, did
you reach the right decision? You bet we did.
The prosecutor’s description of abiding belief can be read in two ways.
First, it could be read as improperly stating that “abiding belief” means doing the
morally right thing. Second, it could be read as properly stating that “abiding
belief” means correctly applying the reasonable doubt standard.
In any event, the prosecutor’s description of “abiding belief” was not
prejudicial. Prejudice is determined “in light of the total argument, issues,
evidence, and jury instructions.” Warren, 165 Wash. 2d at 43. Prior to making the
statement quoted above, the prosecutor stated, “[I]t’s been suggested to you
- 34 -
No. 81032-4-I/35
that . . . abiding belief is a lasting and enduring belief, and that’s probably true.”
“Lasting and enduring belief” is a proper description of “abiding
belief.” See Hopt, 120 U.S. at 439 (stating that the word “abiding” is proper
because it has the signification of “settled and fixed”). The prosecutor then made
the statement quoted above, illustrating that an “abiding belief” is a lasting and
enduring belief. Accordingly, the prosecutor’s statements did not unfairly
prejudice Zimmerman.
Affirmed.
We concur:
- 35 -