¶30 (concurrence, in part, with dissent) — I agree with Justice Sanders that the prosecutor engaged in misconduct at the trial at which Richard Warren was convicted of molesting his eight-year-old stepdaughter, S.S. I also agree that the misconduct cannot be considered harmless. Warren’s conviction on this charge should, therefore, be reversed. I reach this conclusion because of the prosecutor’s frequent and flagrant misstatement of the burden of proof. The principle that a defendant is presumed to be innocent throughout the trial and that the burden resides with the State to overcome that presumption by evidence that is convincing beyond a reasonable doubt is, as Justice Sanders points out, a “ ‘bedrock’ ” upon which our criminal justice stands. Dissent (Sanders, J.) at 40 (quoting State v. Bennett, 161 Wn.2d 303, 315,165 P.3d 1241 (2007)). For the prosecutor to have asserted on three occasions during the trial that the State’s burden should be reduced was highly prejudicial to Warren. Although the trial judge endeavored to cure the error with an instruction to the jury, the impact of the instruction was, unfortunately, diluted by the trial judge’s statement that “ ‘we are playing with words here.’ ” Id. at 41 (quoting Report of Proceedings (Feb. 20, 2003) at 105). In sum, I conclude that under either a constitutional or nonconstitutional harmless error analysis, the misconduct was so significant that the error was not cured by the watered down jury instruction given by the trial judge.
*37¶31 Insofar as Warren’s conviction, at a second trial, on three charges of raping his stepdaughter N.S., I concur with the majority’s affirmance of these convictions. Although, as the majority concedes, the prosecutor made several improper arguments at this trial as well, I do not believe that the cumulative effect of this misconduct was sufficient to justify reversal.
¶32 I also agree with the majority that the trial court did not err in prohibiting Warren from having contact with his wife. The no-contact provision is, in my view, a crime related prohibition and one that was not objected to by Warren’s wife, Lisa. It cannot, in my judgment, be said that the condition is unlawful or unreasonable.