State Of Washington, Respondent/cross v. Ronald Witthauer, Appellant/cross

Filed
Washington State
Court of Appeals
Division Two
July 16, 2019
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 50934-2-II
Respondent/Cross Appellant, UNPUBLISHED OPINION
v.
RONALD WITTHAUER,
Appellant/Cross Respondent.
GLASGOW, J. — Ronald Witthauer appeals from his convictions of second degree rape
and indecent liberties with forcible compulsion, where his victim was his adult niece, CZ. At
trial, the State presented DNA and other physical evidence, whereas Witthauer’s account of what
happened changed several times up to and including at trial.
Witthauer argues that the trial court erred when it prevented him from cross-examining
CZ about the prior revocation of her pharmacy technician license and that the prosecutor
committed misconduct during cross-examination of him and during closing argument. He also
asserts cumulative error deprived him of a fair trial. He contends that the court erred in imposing
a condition of community custody requiring him to obtain a chemical dependency evaluation.
He also filed a statement of additional grounds.
No. 50934-2-II
The State cross-appeals, arguing the trial court improperly merged Witthauer’s
convictions of second degree rape and indecent liberties with forcible compulsion during
sentencing.
We affirm Witthauer’s convictions. We affirm in part and reverse in part Witthauer’s
sentence and remand for the trial court to either make the requisite chemical dependency finding
or strike the challenged community custody condition.
FACTS
I. CZ’S ALLEGATIONS AND THE INVESTIGATION
CZ1 and her friend took their children swimming at a river on a midsummer day. While
they were there, CZ was talking to Witthauer about his recent breakup, first via Facebook and
then via phone call. Witthauer told CZ he was depressed about the breakup and asked her if she
would meet him so they could talk.
Witthauer, driven by his friend, Dan Hainley, then picked CZ up from a nearby Wal-Mart
while her friend took the children to her house. CZ’s friend testified that the plan was for CZ to
come pick up her son later that evening.
Witthauer was visibly intoxicated when he arrived. CZ denied drinking or consuming
drugs earlier that day, but she did have a couple sips of vodka in the car as Hainley drove them.
Rather than take CZ home as she expected, Hainley drove them to the home of CZ’s
grandmother (Witthauer’s mother), where Witthauer had a motor home parked on the property.
Witthauer asked CZ to stay and have a beer with him, and she agreed to stay for a short
while. Witthauer then brought CZ a beer—already opened—and they sat outside and started to
1
We use initials to protect the victim’s privacy.
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No. 50934-2-II
drink. After a few sips, CZ began to feel dizzy; she tried to stand but fell down because her legs
“were like jello.” Verbatim Report of Proceedings (VRP) (Vol. 3) at 219-20. CZ testified that
she was terrified and wanted to call her husband, but she had left her phone in Hainley’s truck.
Witthauer picked CZ up and carried her into the motor home, telling her that she was
drunk and she needed to “sleep it off.” VRP (Vol. 3) at 220-21. CZ said she yelled at Witthauer
to call her husband to pick her up and take her home; Witthauer told CZ he had called her
husband, but she did not believe him. Witthauer put her on the bed in the motor home, and then
went back outside with Hainley.
CZ testified that she laid face down on the bed, unable to move, until she eventually lost
consciousness. She woke up to the sound of Hainley’s truck starting up and Hainley and
Witthauer saying goodbye as Hainley drove off.
Witthauer then came into the motor home and asked CZ if she wanted to have sex with
him. CZ, still unable to move, told him: “No; you’re not funny. This is why people don’t like
you when you drink.” VRP (Vol. 3) at 225. Witthauer responded that he was not joking and
asked again if CZ wanted to have sex. She again said no, but Witthauer got on the bed and
straddled the backs of her legs. CZ tried to push him away, but he grabbed her arm and pinned it
to the bed as he pulled down her pants. CZ then tried to protect her vagina with her hand, but
Witthauer pulled it away, pressed down on her neck, and put his penis in her vagina. At some
point during the rape, Witthauer also put his finger in CZ’s anus. CZ lost consciousness during
part of the rape, but was awake when Witthauer finished, at which point he threw a blanket over
her, told her he loved her, and went to bed a few feet away.
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No. 50934-2-II
CZ eventually got up and tried to leave, but the door was locked so she was forced to
spend the night in the motor home. She testified that she was terrified and thought Witthauer
would kill her if she tried to get away. She also testified that she never thought he would do
something like that to her, and she never would have gone with him that day if she had not
trusted him as her uncle.
The next morning, Witthauer behaved as though nothing had happened. He told CZ her
husband had been calling his phone. Witthauer then called CZ’s husband and put the phone on
speaker and stayed with CZ as she talked to her husband. CZ testified that she did not tell her
husband anything about the rape because Witthauer was standing right there with the phone on
speaker.
Witthauer then drove CZ home, still acting as though nothing had happened. They
stopped to see Witthauer’s friend, Tom Goringe, on their way, but CZ did not disclose anything
to Goringe because she was humiliated and worried about what Witthauer might do. CZ testified
that her goal was to “get out of that car alive” and to “[g]et home safe.” VRP (Vol. 3) at 235-36.
When CZ got home, she called a close friend, Ramona Lowe, and disclosed what
happened. Lowe testified that CZ was hysterical and crying so much she could barely talk.
Lowe told CZ to call the police and go to the hospital for a sexual assault examination. CZ and
her husband went to a hospital in Portland, Oregon later that day, where she underwent a sexual
assault examination and made a report to the police.
CZ told her examining nurse, Jane Valencia, about how Witthauer had raped her and held
her down by her neck. During the examination Valencia noted abnormal redness and swelling in
and around CZ’s vagina, white fluid in her vagina, and scratches on CZ’s arms and the back of
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No. 50934-2-II
her neck. However, Valencia could not say whether the vaginal redness and swelling resulted
from the rape or from CZ’s sexual intercourse with her husband two days prior. Valencia took
blood and urine samples from CZ, and also collected oral, vaginal, and cervical swabs.
CZ’s blood samples showed no signs of drugs or alcohol, but her urine samples contained
alcohol and the prescription drug clonazepam, a central nervous system depressant that slows
down brain activity, impairs motor skills, and can cause drowsiness and confusion, particularly
when combined with alcohol. Justin Knoy, a forensic toxicologist, testified that the test results
were consistent with a person consuming alcohol and clonazepam about 12 hours prior to the
sample being taken, though consumption could have occurred earlier or later.
In early August, Detective Elizabeth Luvera interviewed Witthauer, who told her that CZ
was drunk when he picked her up, that he slept in his truck that night, and that he did not have
sex with CZ. Witthauer also voluntarily gave Luvera a sample of his DNA.
CZ said that she and her husband use condoms when they have sex because she has a
sensitivity to semen that causes a burning sensation; she testified that she knew Witthauer had
ejaculated in her because her vagina was burning badly. The sample that Witthauer provided
matched DNA from sperm cells found in CZ’s vaginal and cervical swabs. After receiving the
DNA results, Detective Fred Nieman went to Witthauer’s motor home and took him into
custody. Also after the DNA test results revealed his DNA was in CZ’s vagina, Witthauer told
family members that there was a conspiracy against him to plant his DNA inside CZ.
II. PRETRIAL MOTION AND ORDER
Before trial, the State moved to exclude extrinsic evidence and limit cross-examination
regarding the Oregon Board of Pharmacy’s prior revocation of CZ’s pharmacy technician
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No. 50934-2-II
license. Witthauer sought to admit a letter from the Board to CZ, along with a certified copy of a
default order against her, revoking her license based on an allegation that she had used patients’
prescriptions to illegally obtain oxycodone for her own use. The trial court noted on the record
that the order was entered by default, because CZ never responded to the notice of proposed
disciplinary action.
The trial court found that whether CZ dishonestly obtained prescriptions and then
diverted oxycodone was probative of CZ’s truthfulness. The trial court ruled that the defense
could ask whether she did these things on cross-examination. But under ER 608(b), the inquiry
would end with CZ’s answer and Witthauer could not further inquire, even if she denied it. The
court also ruled that Witthauer could not ask CZ about her license revocation or present extrinsic
evidence to show her license had been revoked. The court reasoned that the revocation order
does not state where the allegations arose from; in other words, which people
advised the investigator, or testified at the hearing, or otherwise let the Board of
Pharmacy know that [CZ] was alleged to have done these things in December of
2014. There’s no admission or other indication from her that, in fact, she did these
things, only that she didn’t contest the proceeding.
VRP (Vol. 1) at 37.
III. RELEVANT TRIAL TESTIMONY AND ARGUMENT
At trial, during his cross-examination of CZ, defense counsel asked if she had ever been
“accused” of diverting oxycodone, but the State objected based on the court’s pretrial ruling and
the court sustained the objection. VRP (Vol. 4) at 295. Defense counsel then asked if CZ had
ever diverted oxycodone for her own use, and she said she had not. Counsel asked once more,
and CZ again said “[n]o.” VRP (Vol. 4) at 295. Counsel then moved on to another line of
inquiry.
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No. 50934-2-II
A DNA expert testified to the DNA match. During his testimony, Witthauer admitted
that he had sex with CZ, but said it was consensual. Witthauer also admitted that he had lied
many times to detectives and his friends and family when he said he had not had sex with CZ,
and he invented a conspiracy theory in order to protect himself.
During cross-examination, the State asked Witthauer how many nieces he had, and how
many of them he had had sex with. Witthauer responded that he had four nieces, and he had had
sex with one of them. The State responded: “Would that answer change if there was DNA
evidence about other people?” VRP (Vol. 7) at 780. Defense counsel promptly objected, and
the trial court sustained the objection, instructing the jury to “[d]isregard any questions or
answering concerning allegations of misconduct with anyone else.” VRP (Vol. 7) at 781. The
State then moved on to another topic.
As a final and last minute witness, Witthauer called CZ’s mother. Defense counsel tried
to elicit from her details about multiple phone calls to family members that CZ allegedly made
on the day of the rape. Defense counsel apparently hoped to support the defense theory that CZ
was upset with her husband that day and had turned to consensual sex with her uncle for comfort.
CZ’s mother testified that she could not remember the details of that day and that she had
significant health problems, including recent strokes, that affected her memory.
The trial instructed the jury that “[a] reasonable doubt is one for which a reason exists
and may arise from the evidence or lack of evidence.” Clerk’s Papers (CP) at 23. In closing
argument, the prosecutor reiterated the definition of a “reasonable doubt” as “a doubt for which a
reason can be given.” VRP (Vol. 8) at 856. Witthauer did not object.
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No. 50934-2-II
Also during closing argument, as part of a broader discussion of the relative credibility of
witnesses, the prosecutor discussed Witthauer’s last minute decision to call CZ’s mother as a
defense witness. The prosecutor noted CZ’s mother’s serious medical and memory problems
and said: “And you know, that—that’s just really kind of a shame. . . . I don’t say that to be,
you know, rude to her. But, I mean, what is that? Who hangs their hat on that in a case? Why
would you even present that evidence if not as a distraction? It’s just—it’s a shame.” VRP (Vol.
8) at 876-77. Witthauer did not object.
The jury convicted Witthauer of second degree rape and indecent liberties with forcible
compulsion. The jury also found that he had used his position of trust, confidence, or fiduciary
responsibility to facilitate the commission of both crimes.
IV. SENTENCING
During sentencing, the court stated in its oral ruling that the two crimes merged, and that
it would only sentence Witthauer on his conviction for second degree rape. The State disagreed,
noting that merger and same criminal conduct are different concepts. The trial court did not
revisit the issue in the hearing. However, in its final written ruling, the court found that the two
crimes encompassed the same criminal conduct. The court sentenced Witthauer to 144 months
to life imprisonment. The court also imposed a condition of community custody requiring
Witthauer to complete a chemical dependency evaluation, without making a finding that such a
dependency had contributed to the commission of his crimes.
Witthauer appeals his conviction and sentence, and the State cross-appeals the court’s
verbal finding that the two crimes merged.
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No. 50934-2-II
ANALYSIS
I. CROSS-EXAMINATION OF CZ
Witthauer argues the trial court denied him his right of confrontation by limiting the
scope of his cross-examination of CZ. Specifically, he asserts the trial court improperly
prevented him from asking her about the disciplinary proceeding that led to the revocation of her
pharmacy technician license. We disagree.
A. Right of Confrontation, ER 608(b), and Standard of Review
Criminal defendants have a constitutional right to confront and cross-examine adverse
witnesses. U.S. CONST. amend. VI; WASH. CONST. art. I, § 22; Davis v. Alaska, 415 U.S. 308,
315, 94 S. Ct. 1005, 39 L. Ed. 2d 347 (1974). In State v. Jones, our Supreme Court reiterated its
analysis for determining whether the exclusion of evidence violates a defendant’s constitutional
right to present a defense. 168 Wash. 2d 713, 720, 230 P.3d 576 (2010). The evidence that a
defendant desires to introduce “‘must be of at least minimal relevance’” because a defendant has
no right to present irrelevant evidence. Id. (quoting State v. Darden, 145 Wash. 2d 612, 622, 41
P.3d 1189 (2002)). To prevail on a claim that he was deprived of his Sixth Amendment right,
the defendant must at least make some plausible showing of how the subject of his cross-
examination would have been both material and favorable to his defense. State v. Gonzalez, 110
Wash. 2d 738, 750, 757 P.2d 925 (1988); see also United States v. Valenzuela-Bernal, 458 U.S.
858, 867, 102 S. Ct. 3440, 73 L. Ed. 2d 1193 (1982).
Even though there has been a recent split of authority about the structure of the legal test
for establishing a Sixth Amendment violation when a trial court excludes a defendant’s proffered
evidence, all of the cases agree that our first step is to review for abuse of discretion the trial
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No. 50934-2-II
court’s assessment of whether the excluded evidence was relevant. State v. Lee, 188 Wash. 2d 473,
486-88, 396 P.3d 316 (2017); State v. Clark, 187 Wash. 2d 641, 648-49, 389 P.3d 462 (2017); State
v. Blair, 3 Wash. App. 2d 343, 350-52, 415 P.3d 1242 (2018); State v. Horn, 3 Wash. App. 2d 302,
310-11, 415 P.3d 1225 (2018).
In this case, Witthauer argued in the trial court that he should have been permitted to
cross-examine CZ about her license revocation based on ER 608(b). Under that rule, a party
may inquire into specific instances of a witness’s prior conduct, for purposes of impeachment, if
the conduct is probative of the witness’s truthfulness or untruthfulness. ER 608(b). Conduct
involving fraud or deception can be indicative of the witness’s general disposition with regard to
truthfulness. State v. Johnson, 90 Wash. App. 54, 71, 950 P.2d 981 (1998). However, a witness’s
prior bad act may not be relevant when it is unrelated to the issues of the case. “The
confrontation clause primarily protects ‘cross-examination directed toward revealing possible
biases, prejudices, or ulterior motives of the witness as they may relate directly to issues or
personalities in the case at hand.’” Lee, 189 Wn.2d at 489 (quoting Davis, 415 U.S. at 316).
Although a trial court’s ruling limiting the scope of a defendant’s cross-examination of a witness
under ER 608(b) may implicate the constitutional right to confrontation, a defendant nevertheless
has no constitutional right to the admission of irrelevant evidence. See State v. O’Connor, 155
Wash. 2d 335, 348-49, 119 P.3d 806 (2005).
Moreover, ER 608(b) expressly does not permit introduction of extrinsic evidence to
prove specific instances of conduct. Instead, the party attacking the witness’s credibility may
only inquire into those instances on cross-examination. ER 608(b). “Specific instances on the
conduct of a witness . . . may not be proved by extrinsic evidence.” ER 608(b). As a result, if a
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No. 50934-2-II
witness denies the alleged conduct, the examining attorney cannot impeach using extrinsic
evidence.
ER 608(b) expressly leaves the scope of cross-examination “in the discretion of the
court.” We therefore review a trial court’s decision to admit or exclude evidence under ER
608(b) for abuse of discretion. See Lee, 188 Wn.2d at 486. Even where a defendant raises a
Sixth Amendment argument regarding the exclusion of evidence, we review for abuse of
discretion whether the trial court properly evaluated the relevance or probative value of the
evidence. See, e.g., Id. at 486-88; Clark, 187 Wn.2d at 648-49.
B. Evidence of CZ’s License Revocation
Witthauer argues the trial court erred in limiting cross-examination to asking CZ only
whether she had ever diverted oxycodone for her own use. He was not permitted to ask whether
she had ever been accused of doing so or ever had her pharmacy technician license revoked in a
disciplinary proceeding for that reason. He argues that an inquiry into the disciplinary
proceeding was relevant because “CZ’s credibility was the linchpin of the State’s case, and her
history of dishonest conduct [Witthauer’s] most cogent line of defense.” Br. of Appellant at 24.
Witthauer reasons that an inquiry into disciplinary proceedings for diverting oxycodone was also
relevant because CZ claimed she did not know how the clonazepam got into her system,
implying that Witthauer had drugged her.
However, the trial judge explained on the record that CZ’s license revocation occurred as
the result of a default order against her because she never responded to the allegations.
Therefore, evidence of her license revocation was not probative of her truthfulness because all it
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would demonstrate was that she was accused of doing something dishonest and she did not
respond to the accusation, not that she actually engaged in any dishonest conduct.
We hold that the trial court did not abuse its discretion. Testimony or evidence that
actually demonstrated that CZ committed dishonest acts would be relevant to her truthfulness,
and the trial court engaged in the appropriate ER 608(b) analysis allowing cross-examination of
the alleged dishonest conduct—whether she diverted oxycodone. But the Board’s default order
shows only that she was accused of dishonesty and did not contest the resulting disciplinary
proceeding. Such evidence is not relevant. Nor would it be reliably probative of whether she
actually committed the acts she was accused of because parties default for reasons other than
guilt. It was within the trial court’s discretion to allow cross-examination regarding whether CZ
had ever committed the specific instances of dishonest conduct, but to prohibit any inquiry into
whether she had been accused of or disciplined for such conduct, when evidence of this
particular disciplinary proceeding would not reveal the truth of the underlying accusation.
We hold that the trial court properly limited Witthauer’s cross examination. Because a
disciplinary proceeding resolved by default was not relevant or probative, its exclusion did not
violate ER 608 or the Sixth Amendment.
II. PROSECUTORIAL MISCONDUCT
Witthauer claims the prosecutor committed misconduct during his cross-examination of
Witthauer, when arguing the State’s burden of proof, and when commenting on the role of
defense counsel. We conclude that none of the challenged statements require reversal.
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No. 50934-2-II
A. Burden to Show Prosecutorial Misconduct
To prevail, Witthauer bears the burden to show that the prosecutor’s conduct was both
improper and prejudicial in the context of the entire record and the circumstances at trial. See
State v. Thorgerson, 172 Wash. 2d 438, 442, 258 P.3d 43 (2011). When a claim is made that the
prosecutor committed misconduct during closing argument, we review the prosecutor’s
statements “within the context of the prosecutor’s entire argument, the issues in the case, the
evidence discussed in the argument, and the jury instructions.” State v. Dhaliwal, 150 Wash. 2d
559, 578, 79 P.3d 432 (2003).
Where the defendant objected at trial, they must show there is a “substantial likelihood”
the improper statements affected the jury’s verdict. State v. Magers, 164 Wash. 2d 174, 191, 189
P.3d 126 (2008). However, “[t]he ‘failure to object to an improper remark constitutes a waiver
of error unless the remark is so flagrant and ill intentioned that it causes an enduring and
resulting prejudice that could not have been neutralized by an admonition to the jury.’”
Thorgerson, 172 Wn.2d at 443 (quoting State v. Russell, 125 Wash. 2d 24, 86, 882 P.2d 747(1994)). Moreover, the “[f]ailure to request a curative instruction or move for a mistrial
‘strongly suggests to a court that the argument or event in question did not appear critically
prejudicial to an appellant in the context of the trial.’” In re Det. of Law, 146 Wash. App. 28, 51,
204 P.3d 230 (2008) (quoting State v. Swan, 114 Wash. 2d 613, 661, 790 P.2d 610 (1990)).
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No. 50934-2-II
B. Cross-Examination of Witthauer
Witthauer first argues that the prosecutor committed misconduct by suggesting during
cross-examination that Witthauer had victimized his other nieces. Witthauer objected. The court
sustained Witthauer’s objection and told the jury to disregard that line of questioning. The
prosecutor moved on to another topic.
We presume the jury follows the court’s instructions absent evidence to the contrary.
State v. Montgomery, 163 Wash. 2d 577, 596, 183 P.3d 267 (2008). Where the trial court has
sustained an objection, to warrant reversal for prosecutorial misconduct, the defendant must
show a substantial likelihood the exchange affected the jury’s verdict. Magers, 164 Wn.2d at
191.
Witthauer has failed to show that the jury ignored the trial court’s instruction that it
should disregard the questions and answers about Witthauer’s other nieces or that a substantial
likelihood exists that the exchange affected the jury’s verdict. Witthauer argues that admission
of extrinsic evidence concerning commission of other crimes is inherently difficult for the jury to
disregard, citing State v. Escalona, 49 Wash. App. 251, 255-56, 742 P.2d 190 (1987).
This case is distinguishable from Escalona. In that case, the victim gave unsolicited
testimony that the defendant, who was charged with assaulting him with a knife, “already ha[d] a
record and had stabbed someone.” Escalona, 49 Wn. App. at 255. On appeal, the court held that
although the trial court had sustained Escalona’s objection and instructed the jury to disregard
the testimony, the statement was “inherently prejudicial,” in light of the weakness of the State’s
case, because it suggested the defendant had committed a nearly identical crime in the past. Id.
at 256.
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No. 50934-2-II
Here, unlike in Escalona, there was a brief series of questions from the prosecutor
improperly implying that Witthauer may have victimized his other nieces, but there was no
testimony to lend credence to the improper questioning. Given the brief exchange, Witthauer’s
denial, the court’s swift and decisive ruling on the matter, and the instruction to the jury to
disregard the question, it is unlikely the jury understood the questions to mean that Witthauer had
committed other crimes. Also, defense counsel’s failure to move for mistrial suggests he did not
conclude that the State’s question so prejudiced the jury that it would deprive Witthauer of a fair
trial. See Law, 146 Wn. App. at 51.
Furthermore, the State’s evidence here was not weak. CZ’s account of what happened
was unwavering from the morning after the incident through trial. Her testimony was
corroborated by DNA evidence as well as visible physical injuries observed on the day after the
rape. Witthauer constantly changed his account of what happened. He initially denied sexual
contact with CZ. Then, after DNA results showed the presence of his semen in CZ’s vagina, he
said there was a conspiracy to steal his DNA and plant it on CZ. At trial Witthauer testified that
he had consensual sex with CZ.
The prosecutor’s questions here, while improper, were not so prejudicial in light of all of
the evidence that they denied Witthauer a fair trial. We hold that Witthauer has not shown a
substantial likelihood that the State’s line of questioning improperly affected the jury’s verdict.
C. State’s Explanation of Its Burden of Proof
Next, Witthauer argues the prosecutor committed misconduct by misstating the
reasonable doubt standard thereby shifting the burden of proof to the defense during closing
argument. Specifically, Witthauer argues the prosecutor’s statement here is analogous to “fill-in-
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No. 50934-2-II
the-blank” arguments, which Washington courts have held to be improper. Br. of Appellant at
35. We disagree.
In closing, the prosecutor recited the definition of a “reasonable doubt” as “a doubt for
which a reason can be given.” VRP (Vol. 8) at 856. Witthauer did not object. The court’s
actual instructions to the jury defined “reasonable doubt” as “one for which a reason exists and
may arise from the evidence.” CP at 23
“[T]he law does not require that a reason be given for a juror’s doubt.” State v.
Kalebaugh, 183 Wash. 2d 578, 585, 355 P.3d 253 (2015). It is improper for the State to argue, “in
order to find the defendant not guilty, you have to say ‘I don’t believe the defendant is guilty
because,’ and then you have to fill in the blank.” State v. Anderson, 153 Wash. App. 417, 431, 220
P.3d 1273 (2009) (quoting VRP (Vol. 4) at 327-28). But, the Anderson court explained that a
prosecutor’s statement that “a ‘reasonable doubt’ is one for which reason exists,” was “not
inaccurate.” Id. at 430
Here, the prosecutor’s explanation of the State’s burden of proof did not amount to an
improper fill-in-the-blank argument. The prosecutor did not elaborate to suggest the jury
actually had to articulate a reason why Witthauer was innocent. Moreover, after making the
statement Witthauer complains of, the prosecutor correctly explained the State’s burden of proof,
using language that adhered to the relevant jury instruction, saying: “[I]f, as you discuss the
case, as you consider the evidence, fairly and fully, you have an abiding belief, a belief that lasts,
a belief that endures that the defendant did these things to [CZ], [then] you are convinced as the
law requires.” VRP (Vol. 8) at 856; see CP at 23. Unlike in Anderson, here, the prosecutor
directed the jurors to the instruction given by the trial court.
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No. 50934-2-II
In sum, the prosecutor’s statement did not impermissibly subvert Witthauer’s
presumption of innocence. It was not a fill-in-the-blank argument and, in context, it did not
suggest that Witthauer had the burden to prove his innocence. We hold this statement was not
improper.
D. State’s Comments on Defense Counsel
Witthauer also argues the prosecutor committed misconduct by “disparaging . . . defense
counsel” during his closing argument. Br. of Appellant at 38. In discussing CZ’s mother’s
testimony, the prosecutor noted her serious medical and memory problems and stated: “And you
know, that—that’s just really kind of a shame. . . . I don’t say that to be, you know, rude to her.
But, I mean, what is that? Who hangs their hat on that in a case? Why would you even present
that evidence if not as a distraction? It’s just—it’s a shame.” VRP (Vol. 8) at 876-77.
Witthauer did not object.
“It is improper for the prosecutor to disparagingly comment on defense counsel’s role or
impugn the defense lawyer’s integrity.” Thorgerson, 172 Wn.2d at 451. Thorgerson held it was
improper for the prosecutor to refer to defense counsel’s arguments as “bogus” or involving
“sleight of hand” because such arguments imply “wrongful deception or even dishonesty.” Id. at
451-52. Other cases holding a prosecutor’s statement to be improper in this context have
likewise involved suggestions that defense counsel was being dishonest or untrustworthy. See
State v. Warren, 165 Wash. 2d 17, 29-30, 195 P.3d 940 (2008) (claim that defense counsel’s
argument was “taking these facts and completely twisting them to their own benefit, and hoping
that you are not smart enough to figure out what in fact they are doing.”); State v. Gonzales, 111
Wash. App. 276, 283-84, 45 P.3d 205 (2002) (claim that prosecutors, unlike defense counsel, take
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No. 50934-2-II
an oath to “see that justice is served.”); State v. Negrete, 72 Wash. App. 62, 66-67, 863 P.2d 137(1993) (claim that defense counsel was being paid to twist the words of a witness).
The prosecutor suggested defense counsel only called CZ’s mother as a distraction, and
in doing so impugned his integrity. The comment also disparaged the choice to rely on a witness
with CZ’s mother’s health problems. Nevertheless, Witthauer has not established that the
remark was so flagrant and ill-intentioned that it could not have been cured by instruction. See
Negrete, 72 Wn. App. at 67-68; Warren, 165 Wn.2d at 30. Therefore, because Witthauer did not
object, he waives any error.
III. CUMULATIVE ERROR
The cumulative error doctrine does not warrant reversal where the errors are few and
have little or no effect on the trial’s outcome. State v. Venegas, 155 Wash. App. 507, 520, 228
P.3d 813 (2010). Witthauer bears the burden of showing cumulative error. State v. Asaeli, 150
Wash. App. 543, 597, 208 P.3d 1136 (2009). He has failed to do so here.
As discussed above, Witthauer waived any claim of error with respect to the prosecutor’s
statements disparaging defense counsel. And there was no error with respect to the trial court’s
limitation of his cross-examination of CZ or the State’s explanation of its burden of proof.
Hence, the State’s improper cross-examination of Witthauer was the only preserved error, and
we have already concluded that Witthauer was not prejudiced. Accordingly, we reject
Witthauer’s claim of cumulative error.
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No. 50934-2-II
IV. CONDITIONS OF COMMUNITY CUSTODY
Witthauer challenges his condition of community custody that requires him to obtain a
chemical dependency assessment. We agree that this condition should be reversed.
A trial court lacks authority to impose a community custody condition unless it is
authorized by statute. State v. Kolesnik, 146 Wash. App. 790, 806, 192 P.3d 937 (2008). In order
to require an offender to obtain a chemical dependency evaluation, the court must find that the
offender has a chemical dependency that contributed to his or her offense. RCW 9.94A.607(1);
State v. Warnock, 174 Wash. App. 608, 612, 299 P.3d 1173 (2013).
The State concedes that the trial court made no express finding that Witthauer suffers
from chemical dependency, and so this condition must be stricken unless the court makes such a
finding on remand. We reverse the condition of community custody that requires Witthauer to
obtain a chemical dependency assessment and remand for the court to either make the requisite
finding or strike the condition.
V. STATE’S CROSS-APPEAL
In its cross-appeal, the State argues the trial court improperly merged Witthauer’s
convictions for indecent liberties and second degree rape. During sentencing, the court stated:
“I find the two cases merge, so I will not impose a separate sentence on Count II of that crime.”
VRP (Vol. 8) at 909. However, Witthauer’s judgment and sentence states only that the two
crimes constituted the same criminal conduct, a conclusion that the State agreed to at sentencing
and concedes is correct on appeal.
Although the State claims the court “enter[ed] a finding” that the two offenses merged,
Reply Br. of Resp’t. at 1, a superior court’s verbal ruling is not binding unless it is formally
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No. 50934-2-II
incorporated into the written findings, conclusions, and judgment. In re Det. of B.M., 7 Wn.
App. 2d 70, 84, 432 P.3d 459 (2019). “When the superior court’s written findings are
unambiguous, it is unnecessary to look to the oral ruling.” Id.
Witthauer’s judgment and sentence unambiguously listed both convictions and their
offender scores, and shows that the two convictions encompassed the same criminal conduct.
Any verbal ruling that the crimes merged was not binding, and we need not look any further than
the trial court’s unambiguous written ruling. Id. Because the State concedes the crimes
constitute same criminal conduct, the State shows no error in the judgment and sentence.
VI. STATEMENT OF ADDITIONAL GROUNDS
In his statement of additional grounds, Witthauer raises several claims of ineffective
assistance of counsel. None of his claims supports reversal.
Witthauer argues that his defense counsel was ineffective for failing to call an expert
rebuttal witness to counteract nurse Valencia’s testimony, and for failing to interview his friend,
Goringe, whom he and CZ visited the morning after the rape and who died before trial. Both of
these alleged errors rely on evidence that is outside the record before us so we do not consider
them in this direct appeal. State v. McFarland, 127 Wash. 2d 322, 335, 899 P.2d 1251 (1995).
Next, Witthauer argues he received ineffective assistance of counsel when his trial
counsel failed to object to the prosecutor’s allegedly improper remarks during closing argument
discussed above. Because we held above that the prosecutor’s comments during closing
argument did not amount to misconduct requiring reversal, counsel was not ineffective for failing
to object.
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No. 50934-2-II
CONCLUSION
We affirm Witthauer’s convictions. We affirm in part and reverse in part Witthauer’s
sentence and remand for the trial court to either make the requisite chemical dependency finding
or strike the challenged community custody condition.
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.
Glasgow, J.
We concur:
Worswick, J.
Lee, A.C.J.
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