State Of Washington v. Chadwick Kalebaugh

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II

STATE OF WASHINGTON, No. 43218 -8 -II

Respondent,

V.

CHADWICK LEONARD KALEBAUGH, PART PUBLISHED OPINION

JOHANSON, A.C. J. — Chadwick Kalebaugh appeals his first degree child molestation

based five - HS. Kalebaugh that ( 1) the trial
conviction on conduct involving year -old argues

innocence, - -( ) - insufficient
2
I--- court' s - preliminary - instruction- undermined - his - presumption of-

evidence supports his conviction, ( 3) the prosecutor made improper arguments in closing, ( 4) the

trial court erroneously instructed the jury regarding " sexual contact," and ( 5) cumulative error

rendered his trial unfair. In the published portion, we hold that Kalebaugh failed to preserve the

preliminary instruction error. In the unpublished portion of this opinion, we hold that ( 1) the

State sufficiently proved the crime, ( 2) the prosecutor' s arguments were neither improper nor

prejudicial, ( 3) the trial court' s instruction was neither erroneous nor prejudicial, and ( 4)

Kalebaugh does not demonstrate cumulative error. Accordingly, we affirm.
No. 43218 -8 -11

FACTS

The events leading to Kalebaugh' s conviction occurred on the night of October 28

through 29, 2011, after a gathering at the Napavine home of Kristal Strong, where Kalebaugh

lived. Strong called police after a guest at the house, Jacob Murphy, accused Kalebaugh of

inappropriately touching HS. HS is the child of Tiffany,' who was also staying at Strong' s

house. The State charged Kalebaugh with first degree child molestation, alleging as aggravating

factors that Kalebaugh used a position of trust or confidence to facilitate the offense and knew or

should have known the victim was particularly vulnerable or incapable of resistance.

TRIAL TESTIMONY

At trial, the responding Napavine police officer, Noel Shields, testified that after

interviewing various residents and guests, he read the Miranda2 warnings to Kalebaugh, who

waived his rights and spoke voluntarily with Shields. Kalebaugh denied Murphy' s accusation,

claiming that he had not even been in the room with Murphy and HS at the time.
3
Only Murphy testified to having seen Kalebaugh touch HS. Murphy testified that

shortly after arriving of the -house, he laid down on a reclining couch -in the downstairs living- -
room to try to sleep. In the same room he saw two boys sleeping on another couch, and HS

sleeping on the loveseat. As Murphy was falling asleep, he opened his eyes and saw Kalebaugh
in the room.

We use initials and omit Tiffany' s surname to protect the minor victim' s privacy.

2 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 ( 1966).

3
In accordance with the trial court' s rulings, HS did not testify, nor did any witness testify, as to
any statements HS may have made concerning the events.

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No. 43218 -8 -II

Murphy saw Kalebaugh next to HS, " chest up against the love seat with his hand

underneath the blanket towards the little girl' s groin area . . . [ m] aking a back and forth

movement." 2 Report of Proceedings ( RP) at 74. When asked whether Kalebaugh' s arm was

over the area of [ HS' s] vagina," Murphy answered, " I couldn' t really tell because of the

blanket, but the direction of his arm looked like it was." 2 RP at 75.

Murphy testified that Kalebaugh' s back was to him at the time, so he could not see

Kalebaugh' s face or demeanor. Murphy acknowledged that no lights were on in the room, but he

testified that he had no trouble seeing because of the porch light shining in through a window.

On cross -examination, Murphy admitted that other than seeing Kalebaugh' s hand moving under

the blanket somewhere " above [ HS' s] knee and below her belly button," he could not tell what

was happening. 2 RP at 107.

As soon as Murphy opened his eyes and saw the movement, he confronted Kalebaugh,

saying, " You know what you are doing is way wrong." 2 RP at 77. Kalebaugh looked "[ 1] ike he

went to a surprise party," in Murphy' s words, then " rolled over . .. and pretended he. was

asleep 2 RP at - 7 -78 - - -- - - - - - -- — - - - - - -- - - -- - - --
7

The other evidence tending to support Murphy' s accusation came from Tiffany, who
4
described HS' s clothing after the incident . Tiffany testified that when she checked on HS after

hearing Murphy' s accusation, HS' s shorts were wrinkled and "[ p] ushed up towards her hip" on

the left side, exposing her underwear. 2 RP at 27. Tiffany testified that she had never seen HS' s

shorts in such a condition after sleeping. Tiffany also testified that she had known Kalebaugh for

4 A nurse practitioner testified that her examination of HS a few days after the incident revealed
no physical evidence of abuse but that she considered such an absence of findings normal in
child sexual abuse cases.

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No. 43218 -8 -II

only a couple weeks, and that she had not entrusted him with any caretaking responsibility for

her children.

JURY INSTRUCTIONS AND CLOSING ARGUMENT

The trial court' s preliminary oral instruction concerning reasonable doubt given to the

venire before voir dire included two additional sentences following the standard instruction

outlined in 11 Washington Practice: Washington Pattern Jury Instructions: Criminal 4. 01, at

85 ( 3d ed. 2008) ( WPIC):

If after your deliberations you do not have a doubt for which a reason can be
given as to the defendant' s guilt, then, you are satisfied beyond a reasonable
doubt.
On the other hand, if after your deliberations you do have a doubt for
which a reason can be given as to the defendant' s guilt, then, you are not satisfied
beyond a reasonable doubt.

1 RP at 9. Kalebaugh did not object. Prior to closing argument, the court gave, orally and in

writing, the pattern instruction on reasonable doubt.

Also prior to closing argument, the trial court read the State' s proposed instruction

defining " sexual contact," which in addition to the pattern instruction, included the following

language: 5

Contact is intimate, if the contact is of such a nature that a person of
common intelligence could be fairly expected to know that under the
circumstances the parts touched were intimate and therefore the touching was
improper. When considering when a particular touching is done for the purpose
of gratifying a sexual desire, you may consider among other things the nature and
the circumstances of the touching itself. Sexual contact may occur through a
person' s clothing.

5 The pattern instruction defines " sexual contact" as " any touching of the sexual or other intimate
parts of a person done for the purpose of gratifying sexual desires of either party." 11 WPIC
45. 07, at 839.

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No. 43218 -8 -II

2 RP at 169. Kalebaugh objected to the State' s proposed instruction because of the language

added to the pattern instruction; he requested only the pattern instruction. The trial court

overruled the objection, stating that the State provided adequate authority for the proposed

instruction. The oral instruction deviated slightly from the written instruction provided to the

jury, which stated, " Contact is ` intimate' if the conduct is of such a nature." Clerk' s Papers ( CP)

at 25 ( emphasis added).

Kalebaugh also objected to two arguments the State made in closing concerning what is

an " intimate part" for purposes of "[s] exual contact." 3 RP at 11 - 12. First, the prosecutor argued

that " you as a jury get to decide what counts as an intimate part of the person' s body." 3 RP at

11. Second, the prosecutor stated that

even though the touching was above the knees and below the belly button, and
when asked[,] [ Jacob] Murphy said it was towards the middle of that zone, that' s
right over the vagina, and even if it was closer to the knees or closer to the belly
button, rubbing on her, that' s an intimate area. Anywhere in that zone is intimate.
You wouldn' t feel comfortable with a stranger touching you anywhere near,
probably nowhere on your body, but especially nowhere between that zone.
That' s an intimate part of your body.

3 RP -at 11 =12. The trial court overruled those two objections.

The jury returned a guilty verdict and found by special verdict that Kalebaugh had known

the victim was particularly vulnerable or incapable of resistance. The jury found, however, that

Kalebaugh had not used a position of trust or confidence to facilitate the crime. Kalebaugh

timely appeals.

ANALYSIS

PRELIMINARY INSTRUCTION

Although Kalebaugh did not timely object to the trial court' s preliminary oral instruction

about reasonable doubt to the entire venire, he now argues for the first time on appeal that it

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No. 43218 -8 -II

improperly imposed an articulation requirement, a manifest error affecting a constitutional right

warranting reversal. He analogizes the trial court' s preliminary oral instruction to " fill-in -he-
t

blank" prosecutorial misconduct cases and asserts that the trial court' s preliminary instruction

improperly shifted the burden of proof to Kalebaugh. We hold that Kalebaugh has not

demonstrated a manifest constitutional error and accordingly has failed to preserve this issue for

appellate review.

Generally, we will not entertain a claim of error not raised before the trial court. RAP

2. 5( a). An exception to that general rule is RAP 2. 5( a)( 3), which requires an appellant to

demonstrate a manifest error affecting a constitutional right. State v. Gordon, 172 Wn.2d 671,

676, 260 P. 3d 884 ( 2011). " Stated another way, the appellant ` must identify a constitutional

error and show how the alleged error actually affected the appellant' s rights at trial. "' State v.

O' Hara, 167 Wn.2d 91, 98, 217 P. 3d 756 ( 2009) ( quoting State v. Kirkman, 159 Wn.2d 918,

926 -27, 155 P. 3d 125 ( 2007)).

To determine if an error is of constitutional magnitude, we look to whether, if the

defendant' s alleged error is true, the error- actually violated the defendant' s constitutional rights. -

O' Hara, 167 Wn.2d at 98. An error is manifest if it is so obvious on the record that the error

warrants appellate review. O' Hara, 167 Wn.2d at 99 -100. But appellants must also demonstrate

actual prejudice," meaning the defendant must plausibly show the asserted error had practical

and identifiable consequences at trial. Gordon, 172 Wn.2d at 676..

No Washington case addresses whether if a trial court misstates the preliminary oral

instruction on reasonable doubt to the entire venire but gives a correct final oral and written

instruction to the empanelled jury, such a misstated preliminary instruction constitutes a manifest

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 No. 43218 -8 -II

error affecting a constitutional right. Accordingly, this is a matter of first impression in our state.

But we may look to other jurisdictions for guidance.

In Connecticut, for example, similar to our RAP 2. 5( a) analysis which requires an

appellant to demonstrate a manifest error affecting a constitutional right, its courts will address

the merits of an unchallenged claim of constitutional error if an appellant can show that the claim

is of constitutional magnitude and that the alleged constitutional violation clearly exists and

clearly deprived the defendant of a fair trial. See State v. Golding, 213 Conn. 233, 239 -40, 567

A.2d 823 ( 1989). Under this preservation standard, an appellant must show a clear constitutional

violation that clearly deprived him or her of a fair trial. State v. Figueroa, 235 Conn. 145, 184-

85, 665 A.2d 63 ( 1995). Essentially, in Connecticut, an appellant may raise for the first time on

appeal an alleged error regarding the trial court' s preliminary instruction only if "`considering

the substance of the charge rather than the form of what was said, it is reasonably possible that

the jury was misled. "' Figueroa, 235 Conn. at 183 ( quoting State v. Walton, 227 Conn. 32, 65,

630 A.2d 990 ( 1993)). In other words, Connecticut requires a showing of reasonable prejudice.

See Figueroa, -23 5 Conn. at 184. - And- Connecticut hold that, generally, improper -
I--_-- courts

preliminary instructions challenged for the first time on appeal do not give rise to prejudice

because preliminary instructions "` do not supersede those given after evidence and arguments "'

when the jury is properly instructed "` at the critical time, after all the evidence and after the

arguments of counsel. "' State v. Lewis, 220 Conn. 602, 614, 600 A.2d 1330 ( 1991) ( quoting

State v. Woolcock, 201 Conn. 605, 623, 627, 518 A.2d 1377 ( 1986)).

In Figueroa, for example, one of the trial court' s preliminary instructions stated that it

would be improper to use a " woman' s intuition" to determine reasonable doubt. 235 Conn. at

182 -83. The trial court then properly instructed the empanelled jury about reasonable doubt in
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No. 43218 -8 -II

its final written instructions. See Figueroa, 235 Conn. at 184. Figueroa argued that the trial

court' s preliminary instruction created an improper articulation requirement, an error that the

final instruction could not cure. Figueroa, 235 Conn. at 182 -83. The Connecticut Supreme

Court disagreed and affirmed Figueroa' s conviction, asserting that it was not reasonably possible

that the preliminary instruction misled the jury because the trial court " fully and correctly

instructed as to the principles of the defendant' s presumption of innocence and the state' s burden

of proof beyond a reasonable doubt at final instructions." Figueroa, 235 Conn. at 184.

Accordingly, Figueroa could not demonstrate prejudice and, therefore, did not preserve the issue

for appeal. See Figueroa, 235 Conn. at 184 -85.

Similarly, here, Kalebaugh cannot show a manifest error affecting a constitutional right.

Even assuming, without deciding, that the preliminary reasonable doubt instruction offered here
constitutes an error of constitutional magnitude, Kalebaugh does not demonstrate manifest error.

Therefore, as in Figueroa, he did not demonstrate prejudice and, consequently, did not preserve

this issue for our review. See RAP 2. 5( a).

Although the preliminary instruction error -was - obvious because of the Washington

Supreme Court' s directive in State v. Bennett, 161 Wn.2d 303, 318, 165 P. 3d 1241 ( 2007), to

only use the 11 WPIC 4. 01 language on reasonable doubt to instruct the jury, 6 Kalebaugh does

not show prejudice — he cannot show that the preliminary instruction had practical and

identifiable trial consequences. Like Figueroa, here the trial court made an error in articulating

the reasonable doubt standard in a preliminary oral instruction, but it properly instructed the jury,

orally and in writing, at the critical time —after the presentation of evidence. It is not reasonably

6 And 11 WPIC 1. 0 1, at 3 -8 ( 3d ed. Supp. 2011) uses 11 WPIC 4. 01' s language on reasonable
doubt. See 11 WPIC 1. 01 at 3 - 8; 11 WPIC 4. 01 at 85.
8
No. 43218 -8 -II

possible that the trial court' s preliminary instruction misled the jury considering that the trial

court properly instructed the jury on reasonable doubt in its final oral and written instructions,

which the jury used during deliberations. Like Figueroa, there is no reasonable possibility that

the preliminary instruction misled the jury.

Moreover, Kalebaugh' s reliance on prosecutorial misconduct cases is unpersuasive.

Prosecutorial misconduct cases do not help in determining whether Kalebaugh can show actual

prejudice from a preliminary instruction. In State v. Emery, 174 Wn.2d 741, 761, 763, 278 P. 3d

653 ( 2012), our Supreme Court simply said that in- blank"
the " fill - the - argument " could

potentially have confused the jury about its role and the burden of proof," and that a proper

instruction could have cured the potential confusion. ( Emphasis added.) Here, the trial court

actually read the empanelled jury the correct WPIC on reasonable doubt after the presentation of

evidence, and the jury received three hard copies for deliberations, potentially curing any

lingering confusion. We simply cannot draw clean parallels between cases involving a

prosecutor' s fill -n-the -blank argument during closing, and a trial court' s improper preliminary
i

instruction before the presentation of evidence:

Kalebaugh failed to demonstrate prejudice; accordingly, he did not properly preserve this

issue to be considered for the first time on appeal. See RAP 2. 5( a).

A majority of the panel having determined that only the foregoing portion of this opinion

will be printed in the Washington Appellate Reports and that the remainder shall be filed for public

record in accordance with RCW 2. 06. 040, it is so ordered.

SUFFICIENT EVIDENCE

Kalebaugh next argues that the State presented insufficient evidence that he touched HS' s

sexual or other intimate parts," or that he touched HS " for the purpose of gratifying sexual

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No. 43218 -8 -II

desire." Br. of Appellant at 27. We disagree because the jury could rationally have inferred

from the evidence that ( 1) Kalebaugh touched HS' s upper inner thigh under the clothing ( 2) to

gratify a sexual desire.

We review claims of insufficient evidence to determine whether, " after viewing the

evidence in the light most favorable to the State, any rational trier of fact could have found guilt

beyond a reasonable doubt." State v. Salinas, 119 Wn.2d 192, 201, 829 P. 2d 1068 ( 1992). We

draw all reasonable inferences from the evidence in favor of the State and against the defendant.

Salinas, 119 Wn.2d at 201. A sufficiency challenge admits the truth of the State' s evidence and

all reasonable inferences from it. State v. Theroff, 25 Wn. App. 590, 593, 608 P. 2d 1254, affd,

95 Wn.2d 385, 622 P. 2d 1240 ( 1980). We leave credibility determinations to the fact fiizder and

do not review them on appeal. State v. Camarillo, 115 Wn.2d 60, 71, 794 P. 2d 850 ( 1990).

Under RCW 9A. 44. 083( 1), a person is guilty of first degree child molestation

when the person has ... sexual contact with another who is less than twelve years
old and not married to the perpetrator and the perpetrator is at least thirty -
six
months older than the victim.

Sexual contact means " any touching of the sexual or other intimate parts of a person done for the -

purpose of gratifying sexual desire of either party or a third party." RCW 9A.44. 010( 2).

First, regarding the touching of a sexual or other intimate part, we have held that the

upper inner thigh" is " intimate" for sexual contact purposes. State v. Harstad, 153 Wn. App.

10, 22, 218 P. 3d 624 ( 2009). Here, the jury heard eyewitness testimony that Kalebaugh' s hand

made a back and forth motion under the blanket in the vicinity of HS' s groin and that after HS

woke up, one leg of her shorts was pushed up, exposing her underwear. From those facts, the

jury could rationally have inferred that Kalebaugh placed his hand in contact with HS' s groin

area, her intimate parts.

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Second, regarding sexual gratification, we have held that "` [ p] roof that an unrelated adult

with no caretaking function has touched the [ unclothed] intimate parts of a child supports the

inference the touch was for the purpose of sexual gratification, "' although some additional

evidence is required. Harstad, 153 Wn. App. at 21 ( quoting State v. Powell, 62 Wn. App. 914,

917, 8.16 P. 2d 86 ( 1991), review denied, 118 Wn.2d 1013 ( 1992)). As just shown, the jury could

rationally have inferred that Kalebaugh touched HS' s upper inner thigh or groin area, an

intimate" area for purposes of sexual contact. The State also presented evidence that ( 1)

Kalebaugh made a back and forth movement on this intimate area; ( 2) Kalebaugh had no

caretaking role in HS' s life; ( 3) the events occurred at night while HS slept; ( 4) the events

occurred in a room where everyone else also appeared to be asleep; and ( 5) after Murphy

confronted Kalebaugh, a startled Kalebaugh feigned sleep, without offering any explanation.

From those facts, the jury could rationally have inferred Kalebaugh acted for sexual gratification.

Taken' in the light most favorable to the State, any rational trier of fact could have

inferred that Kalebaugh touched an intimate part of HS to gratify a sexual desire. Thus, we hold

that sufficient evidence supports his conviction. - -

PROSECUTORIAL MISCONDUCT

Kalebaugh next argues that the prosecutor made improper arguments concerning what

constitutes sexual contact, depriving him of a fair trial. Specifically, Kalebaugh argues that two

of the prosecutor' s statements to the jury misstated the law and constituted misconduct: ( 1) that

the jury gets to "` decide what counts as an intimate part of the person' s body, "' and ( 2) that the

entire zone between the knees and the belly button constitutes "` an intimate part of your body. "'

Br. of Appellant at 40 ( quoting 3 RP at 11 - 12). We disagree, because even if the prosecutor' s

statements were improper, Kalebaugh cannot show prejudice.

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An appellant claiming prosecutorial misconduct must show both improper conduct and

resulting prejudice. State v. McKenzie, 157 Wn.2d 44, 52, 134 P. 3d 221 ( 2006). A defendant

suffers prejudice only where there is a substantial likelihood the misconduct affected the jury's

verdict. State v. Brown, 132 Wn.2d 529, 561, 940 P. 2d 546 ( 1997), cent denied, 52' ) U. S. 1007

1998). We review a prosecutor' s comments during closing argument in the context of the total

argument, the issues in the case, the evidence addressed in the argument, and the jury

instructions. Brown, 132 Wn.2d at 561.

Regarding the first statement, Kalebaugh argues that it misstates the law because it allows

jurors to find that any body part is intimate, including a person' s forehead or elbow.

Kalebaugh' s argument mischaracterizes the record. The prosecutor' s argument as a whole

limited the focus to the between the belly button knees. Because Kalebaugh
jury' s zone and

bases his entire argument on a faulty premise, he does not demonstrate improper conduct.

Regarding the second statement, Kalebaugh argues that it misstates the law because
Harstad holds that " only" body parts in close proximity to the primary erogenous areas are

intimate parts. Kalebaugh, however, mischaracterizes Harstad.- Harstad affirms the rule that -

contact is intimate if, under the circumstances, a person of common intelligence could fairly be

expected to know that the body parts being touched were intimate. 153 Wn. App. at 21. Here,

the prosecutor' s statement accurately reflected the law because rational jurors could conclude

from their common knowledge that the zone between the knees and the belly button is intimate

because of its close proximity to one' s erogenous areas. See Harstad, 153 Wn. App. at 21; State

v. Jackson, 145 Wn. App. 814, 819, 187 P. 3d 321 ( 2008). Thus, Kalebaugh fails to demonstrate

a misstatement of law or improper conduct.

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No. 43218 -8 -II

Even if we assume that the prosecutor' s statements were improper, Kalebaugh cannot

demonstrate a substantial likelihood that they affected the verdict. Based on Tiffany' s testimony

concerning HS' s shorts having been shifted to expose her underwear and Murphy' s testimony

that the touching occurred in HS' s groin area in the dark while she was sleeping, Kalebaugh does

not demonstrate that the jury' s verdict would have differed had the prosecutor not made those

two statements. Accordingly, Kalebaugh' s claim fails.

JURY INSTRUCTION

Kalebaugh next argues that the trial court' s instruction defining " sexual contact"

misstated the law to his prejudice. We disagree that the instruction misstated the law, but even if

it did, Kalebaugh does not demonstrate prejudice.

We review a challenged jury instruction de novo, examining it in the context of the

instructions as a whole. Bennett, 161 Wn.2d at 307 ( citing State v. Brett, 126 Wn.2d 136, 171,

892 P. 2d 29 ( 1995), cent. denied, 516 U. S. 1121 ( 1996)). The instructions must not mislead

jurors or fail to properly inform them of the applicable law. Bennett, 161 Wn.2d at 307 ( citing

State v. LeFaber, 128 Wn.2d 896, 903, 913 P. 2d 369 ( 1996), abrogated by O' Hara, 167 Wn.2d

91). We must reverse if a trial court' s erroneous instruction prejudiced the complaining party.

State v. Aguirre, 168 Wn.2d 350, 364, 229 P. 3d 669 ( 2010).

Kalebaugh challenges the trial court' s instruction, which Division One of this court held

valid in Jackson. " Contact is ` intimate' if the conduct is of such a nature that a person of

common intelligence could fairly be expected to know that, under the circumstances, the parts

touched were intimate and therefore the touching was improper." CP at 25; Jackson, 145 Wn.

App. at 819. He first argues that the trial court misstated the law when reading this instruction to

the jury by substituting " conduct" with " contact." He further argues that the instruction

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inappropriately allowed the jury to find any body part intimate without reference to the primary

erogenous areas. Both arguments fail.

Regarding the " contact" instead of " conduct" argument, the trial court' s written

instructions correctly stated " conduct," and the jury had three copies of the written instructions

for deliberations. Kalebaugh nevertheless argues that the oral instruction erroneously directed

the jury to focus on the contact rather than his overall conduct. To the extent that this oral

instruction confused the jury, it could reread the correct written instruction to cure any confusion.

Moreover, Kalebaugh cannot demonstrate prejudice. Conceptually, " contact" is simply. a

narrower subset of one' s " conduct." Kalebaugh does not demonstrate how the jury' s focus on

contact" rather than " conduct" prejudiced him. Thus, his claim fails.

Regarding the instruction as a whole, we disagree that it inappropriately allowed the jury

to find any body part intimate. Kalebaugh argues that the proper definition of "intimate" contact

comes from Harstad, where Division One determined, in addition to the approved language in

Jackson, "[ a] jury may determine that ` parts of the body in close proximity to the primary

erogenous areas' are intimate parts." 153 Wn. App. at 21 ( quoting In re Welfare ofAdams, 24 -

Wn. App. 517, 521, 601 P. 2d 995 ( 1979)). Contrary to Kalebaugh' s argument, Division One

never determined that courts must include the " close proximity" language in the jury instruction

or else the Jackson language would be misleading. See Harstad, 153 Wn. App. at 21. The

instruction here properly directed the jury to use its common knowledge to determine under the

circumstances if the parts touched were intimate. Jackson, 145 Wn. App. at 819. Regardless,

even if the instruction was erroneous, Kalebaugh does not demonstrate prejudice. The jury heard

testimony that HS' s shorts were shifted to expose her underwear and that the touching occurred

in HS' s groin area in the dark while she was sleeping. Kalebaugh does not demonstrate that the

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jury' s verdict would have differed had the trial court included the phrase " in close proximity to

the primary erogenous areas" in the sexual contact definition. Thus, his claim fails.

STATEMENT OF ADDITIONAL GROUNDS

Kalebaugh filed a statement of additional grounds. He asserts that although the trial court

sustained his objections, two of the prosecutor' s statements prejudiced him. We disagree.

The prosecutor' s first statement was that " the first part is there' s touching, either of a

sexual or other intimate part of the body, and I submit to you that I think both were touched

here." 3 RP at 12. The second statement was that "[ w] e don' t have the technology to go back in

time and stop bad things from happening. We don' t have the technology to take bad memories

out of people' s minds. Tiffany and [ HS] have to live with what happened." 3 RP at 40. The

trial court sustained both objections and instructed the jury to disregard the second argument.

Because the trial court properly sustained both objections and instructed the jury to

disregard any argument not supported by the evidence, Kalebaugh does not demonstrate

prejudice warranting reversal. We presume that jurors follow the instructions provided. State v.

Ervin, 158 Wn.2d 746, 756, 147 P. 3d 567 ( 2006). And Kalebaugh presents no reason to believe - -

that this instruction failed to cure any prejudice; accordingly, his claims fail.

CUMULATIVE ERROR

Finally, Kalebaugh argues that even if we find that none of the errors discussed above are

sufficient grounds for reversal, their cumulative effect denied him a fair trial., Again, we

disagree.

We reverse a conviction under the cumulative error doctrine " when there have been

several trial errors that standing alone may not be sufficient to justify reversal but when

combined may deny a defendant a fair trial." State v. Greiff, 141 Wn.2d 910, 929, 10 P. 3d 390

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2000). Here, of the errors he preserved for appeal, Kalebaugh demonstrates no prejudice. Thus,

his claim fails.

We affirm.

A

r'
T
J

HANSON, A.C. J.
I concur:

PI' O' AR, J.

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No. 43218 -8 -II

BJORGEN, J. ( dissenting) — The logic and policy of the decision in State v. Emery, 174

Wn.2d 741, 278 P. 3d 653 ( 2012), impels the conclusion that the preliminary reasonable doubt

instruction in this prosecution was constitutionally flawed. Under the standards of State v.

O' Hara, 167 Wn.2d 91, 217 P. 3d 756 ( 2009), and State v. Gordon, 172 Wn.2d 671, 260 P. 3d ,

884 ( 2011), this constitutional error was manifest under RAP 2. 5( a), allowing Kalebaugh to raise

it for the first time on appeal. Accordingly, I dissent from the majority' s holding to the contrary.

Reaching the merits of the appeal, the reasoning of Emery obliges the conclusion that this error

requires reversal unless the State can prove it harmless beyond a reasonable doubt. Because the

State did not make that showing, I would reverse.

I. KALEBAUGH MAY CHALLENGE THE PRELIMINARY REASONABLE DOUBT INSTRUCTION FOR THE

FIRST TIME ON APPEAL

The trial court added the following passages to the standard Washington pattern

instruction on reasonable doubt in its preliminary oral jury instructions:

If after your deliberations you do not have a doubt for which a reason can be
given as to the defendant' s guilt, then, you are satisfied beyond a reasonable
doubt. --

On the other hand, if after your deliberations you do have a doubt for which a.
reason can be given as to the defendant' s guilt, then, you are not satisfied beyond
a reasonable doubt.

Verbatim Report of Proceedings ( VRP) ( Jan. 3, 2012) at 10. Kalebaugh did not timely object to

this instruction before the trial court. Thus, under RAP 2. 5( a) we are only obliged to consider his

challenge under limited circumstances, one of which is the claim of a manifest error affecting a

constitutional right.

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No. 43218 -8 -II

A. The preliminary reasonable doubt instruction was erroneous and affected a constitutional

right.

Determining whether challenged action was erroneous for purposes of RAP 2. 5( a)

necessarily bleeds into an analysis of the merits of the claimed error. As the court recognized in

State v. Walsh, 143 Wn.2d 1, 8, 17 P. 3d 591 ( 2001), in determining whether an error is manifest,

we " preview[] the merits of the claimed constitutional error to determine whether the argument is

likely to succeed."

In 2009 we held a prosecutor' s closing argument improper because it implied that jurors

needed to articulate the reason for any reasonable doubt. State v. Anderson, 153 Wn. App. 417,

431, 220 P. 3d 1273 ( 2009). The prosecutor had informed the jury that " 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." Anderson, 153 Wn. App. at 431. We explained that "[ b] y

implying that the jury had to find a reason in order to find Anderson not guilty, the prosecutor

made it seem as though the jury had to find Anderson guilty unless it could come up with a

reason not to," thereby undermining the -
presumption of innocence. Anderson, 153 Wn. App. at -

431.

Two years ago our Supreme Court affirmed the impropriety of such " fill -n- the -blank"
i

arguments in Emery, 174 Wn.2d at 759 -60. The court noted that " although the argument

properly describes reasonable ` doubt as a doubt for which a reason exists,' it improperly implies

that the jury must be able to articulate its reasonable doubt." Emery, 174 Wn.2d at 760 ( internal

quotation marks omitted). This " subtly shifts the burden to the defense," making it

inappropriate." Emery, 174 Wn.2d at 760.

18
No. 43218 -8 - II

The instruction here suffers from the same infirmity, which neither its passive

construction nor its status as a preliminary instruction can cure. The addition to the instructions

set out above tells the jury that it may acquit only if it has " a doubt for which a reason can be

given," imposing the same requirement to articulate doubt found wanting in Emery, 174 Wn.2d

at 760. The instruction also plainly implies that someone should be able to supply or articulate

that reason. Since the State will avoid supplying reasons to doubt its own case, the instruction

suggests that either the juror or the defendant should supply it, further undermining the

presumption of innocence.

The Emery court' s censure of the requirement to articulate a doubt is well anchored in

both logic and the realities of making a decision. In examining this type of requirement, an

article in the Notre Dame Law Review points out that

t]he need to assign a doubt implies that a generic doubt would be insufficient,
such as "I doubt the prosecutor' s case." Such a doubt would strike many hearers
of the instruction as too broad or diffuse to be anything more than a mere doubt or
a speculative doubt, and not one that " you can give a good reason for."

A troubling conclusion that arises from the difficulties of the requirement of
articulability is that it hinders the juror who has a doubt based on the belief that
the totality of the evidence is insufficient. Such a doubt lacks the specificity
implied in an obligation to " give a reason," an obligation that appears focused on
the details of the Yet this is precisely the circumstance in which the
arguments.

rhetoric of the law, particularly the presumption of innocence and the state[' s]
burden of proof, require acquittal.

Steve Sheppard, THE METAMORPHOSES OF REASONABLE DOUBT: How CHANGES IN THE BURDEN

OF PROOF HAVE WEAKENED THE PRESUMPTION OF INNOCENCE, 78 NOTRE DAME L. REV. 1165,

1213 - 14 ( 2003) ( footnotes omitted). The article illuminates also how the requirement to

articulate doubt potentially creates a barrier to acquit for less- educated or skillful jurors:

If the juror is expected to explain the basis for a doubt, that explanation gives rise
to its own need for justification. If a juror' s doubt is merely, " I didn' t think the

19
No. 43218 -8 -II

state' s witness was credible," the juror might be expected to then say why the
witness was not credible.

A juror who lacks the rhetorical skill to communicate reasons for a doubt is then,
as a matter of law, barred from acting on that doubt.
Sheppard, 78 NoTxE DAME L. REv. 1213.

Where, as here, the State' s case depends on the credibility of a single witness, with little

in the way of corroboration, the implication that a juror must " give a reason" for any doubt poses

a particularly serious risk of undermining the State' s burden. Under the rationale of Emery, the

jury instructions at issue improperly shifted the burden of persuasion to the defendant.

The majority points out that the actual holding of Emery extended only to closing

argument and argues that its rule consequently does not apply to the jury instructions here at

issue. However, to a juror the gravitational field around the ex cathedra pronouncements of a

judge is by its nature much stronger than that around the arguments of an advocate. Thus, if the

requirement of articulability constituted error in the mouth of a deputy prosecutor, it would

surely also do so in the mouth of the judge. The Emery court itself effectively recognized this.

In declining to apply the constitutional harmless error standard, Emery noted that

closing argument cannot be likened to instructional error ... [ b] ecause jurors are
directed to disregard any argument that is not supported by the law and the court' s
instructions, [ and thus] a prosecutor' s arguments do not carry the imprimatur of
both the government and the judiciary.

Emery, 174 Wn.2d at 756 -59 ( internal quotation marks omitted). Here, the flawed instructions

carried that imprimatur. They fall beneath the rationale of Emery even more surely than does the

closing argument at issue in that decision.

Finally, there can be little contest whether this error affected a constitutional right. In

reviewing an unpreserved claim involving inadequate reasonable doubt instructions, our

20
No. 43218 -8 -II

Supreme Court considered the " failure of the court to state clearly to the jury the definition of

reasonable doubt and the concomitant necessity for the state to prove each element of the crime

by that standard ... a grievous constitutional failure." State v. McHenry, 88 Wn.2d 211, 214,

558 P. 2d 188 ( 1977). More specifically, the court characterized the articulability requirement at

issue in Emery as one that " touched upon the defendants' constitutional rights," after noting that

it " could potentially have confused the jury about its role and the burden of proof." Emery, 174

Wn.2d at 763. Consistently with these holdings, the Supreme Court recognized in State v.

Bennett, 161 Wn.2d 303, 315 -16, 165 P. 3d 1241 ( 2007), that the " reasonable doubt instruction

defines the presumption of innocence," which is " the bedrock upon which the criminal justice

system stands," and that the court, " as guardians of all constitutional protections, is vigilant to

protect the presumption of innocence." The State' s concession is correct that the instruction, if

erroneous, amounts to a constitutional error.

B. The instructional error was manifest under RAP 2. 5( a).

A " manifest" error under RAP 2. 5( a) is one resulting in " actual prejudice," namely

Practical
p and identifiable uences
consequences"
q 676(
at trial. Gordon, 172 Wn.2d at 676 internal quotation

marks omitted) ( quoting O' Hara, 167 Wn.2d at 99).

The O' Hara court clarified, however, that " to ensure the actual prejudice and harmless

error analyses are separate, the focus of the actual prejudice must be on whether the error is so

obvious on the record that the error warrants appellate review." O' Hara, 167 Wn.2d at 99 -100

citing State v. McFarland, 127 Wn.2d 322, 333, 899. P. 2d 1251 ( 1995); City ofSeattle v.

Harclaon, 56 Wn.2d 596, 597, 354 P. 2d 928 ( 1960)). Thus, " to determine whether an error is

practical and identifiable, the appellate court must place itself in the shoes of the trial court to

21
No. 43218 -8 -II

ascertain whether, given what the trial court knew at that time, the court could have corrected the

error." O' Hara, 167 Wn.2d at 100.

Although plausible arguments may be raised on either side, the unadorned language of

the challenged instruction offended the rationale behind Emery' s rejection of the articulability

requirement in closing argument. In even plainer sight, the challenged instruction violated our

Supreme Court' s directive in Bennett, 161 Wn.2d at 318, that trial courts must " use the WPIC

4. 01 instruction to inform the jury of the government' s burden to prove every element of the

charged crime beyond a reasonable doubt." As the court explained,

e] ven if many variations of the definition of reasonable doubt meet minimal due
process requirements, the presumption of innocence is simply too fundamental,
too central to the core of the foundation of our justice system not to require
adherence to a clear, simple, accepted, and uniform instruction. We therefore

exercise our inherent supervisory power to instruct Washington trial courts not to
use the Castle instruction. We have approved WPIC 4. 01 and conclude that
sound judicial practice requires that this instruction be given until a better
instruction is approved.

Bennett, 161 Wn.2d at 317 -18. Divisions One and Two of our court had both held, prior to

Kalebaugh' s trial, that failure to strictly adhere to our Supreme Court' s directive in Bennett

constitutes error. State v. Castillo, 150 Wn. App. 466, 472, 208 P. 3d 1201 ( 2009); State v.

Lundy, 162 Wn. App. 865, 871, 256 P. 3d 466 ( 2011), appeal after remand, 176 Wn. App. 96,

308 P. 3d 755 ( 2013). Under Bennett, the error in the instructions challenged here could hardly

7
be more manifest.

7 Bennett, admittedly, held that the prior Castle instruction at issue met minimal due process
standards. The focus in O' Hara, though, is on whether error is manifest, not whether every
ground of challenge is obvious.
22
No. 43218 -8 -II

The majority contends that the error cannot be manifest, because any error in the

preliminary instruction was cured by the proper written instruction given prior to closing

argument. However, the flawed instruction was among the first directions the jurors heard from

the trial court about the case and was not corrected until after all the evidence had been heard.

Thus, as they heard the evidence, this instruction was all the jury had before it on how it was to

weigh evidence. It fitted each juror with a distorted lens through which to view and weigh the

evidence as it was presented.

Even more to the point, the difference between the erroneous articulability requirement in

the first instruction and the correct statement that " a reasonable doubt is one for which a reason

exists" is subtle enough that many jurors would likely not take the proper statement as rescinding .

or qualifying the erroneous one. Compare VRP ( Jan. 3, 2012) with 11 WASHINGTON PRACTICE:
WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 1. 01 at 3, 4. 01 at 85 ( 3d ed. 2008). The

improper demand to articulate a reason can live quite comfortably with the requirement that a
8
reason must exist. The correct instruction cured nothing.

Kalebaugh alleges a manifest error affecting a constitutional right.- Accordingly, we must

reach it under RAP 2. 5( a).

II. THE INSTRUCTIONAL ERROR WAS NOT HARMLESS BEYOND A REASONABLE DOUBT.

The analysis under RAP 2. 5( a), above, disposes of the threshold question on the merits:

the challenged instruction was constitutionally erroneous. This leaves only the question whether

the error was harmless.

8
The Connecticut cases cited by the majority persuade neither that the preliminary instruction
here did no harm nor that the written instruction removed that harm.
23
No. 43218 -8 -II

Trial error of constitutional magnitude gives rise to a presumption of prejudice, and " the

State bears the burden of proving it was harmless beyond a reasonable doubt." State v.

Coristine, 177 Wn. 2d 370, 380, 300 P. 3d 400 ( 2013) ( citing Chapman v. California, 386 U.S.

18, 24, 87 S. Ct. 824, 17 L. Ed. 2d 705 ( 1967)). As shown above, the error here was of

constitutional magnitude.

Emery, however, the Washington decision treating the most similar error, did not apply

this standard, but rather followed the customary standard for prosecutorial misconduct to which

no objection was raised: the defendant must show that the remarks were so flagrant and ill-

intended that an instruction could not have cured the prejudice. Emery, 174 Wn.2d at 760 -61. In

giving its reasons for applying this standard, though, the court draws a sharp distinction between

closing argument and jury instructions:

Finally, closing argument cannot be likened to instructional error. Because jurors

are directed to disregard any argument that is not supported by the law and the
court' s instructions, a prosecutor' s arguments do not carry the imprimatur of both
the government and the judiciary.

Emery, 174 Wn. 2d at 759 ( internal quotation marks omitted). As already noted, the flaw before

us is instructional error, carrying the " imprimatur of both the government and the judiciary."

Thus, the very reason for rejecting the constitutional harmless error standard in Emery compels

its adoption here. The conviction must be reversed unless the State proves it harmless beyond a

reasonable doubt.

The evidence and argument fall far shy of this mark. The jury received the evidence at

trial through a filter that distorted how they were to evaluate that evidence. Only after all

evidence had been presented were they given the correct instruction, one with so subtle a

difference from the flawed instruction as to rob it of any curative influence. One of the law' s

24
No. 43218 -8 -I1

finest and most urgent balances rests between convicting the guilty and acquitting the innocent.

In these scales the central counterweight to the prerogatives of the prosecution is the requirement

that it prove guilt beyond a reasonable doubt. When that requirement is undermined, a just and

proper result is more the product of fortune, not reason. The error here was not harmless beyond

a reasonable doubt.

CONCLUSION

While I agree with the majority' s analysis concerning the sufficiency of the evidence, I

would reverse Kalebaugh' s conviction due to the error in the instruction on reasonable doubt.

BJ0RAAEN, J.

25