FILED
JULY 1, 2021
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, ) No. 37228-6-III
)
Respondent, )
)
v. ) UNPUBLISHED OPINION
)
ERIC RAY STALFORD, )
)
Appellant. )
PENNELL, C.J. — Eric Ray Stalford appeals his convictions for first degree rape of
a child and first degree child molestation. We affirm Mr. Stalford’s convictions, but
remand to correct scrivener’s errors on the judgment and sentence form.
FACTS
Eric Ray Stalford was charged with one count of first degree child rape and two
counts of first degree child molestation based on the information that a stepson, R.H.,
reported to his mother, church pastors, and a forensic investigator. Each count alleged
the acts occurred between December 21, 2013, and May 2, 2018.
R.H. was born in December 2009. He was nine and a half years old when he
testified at trial. The State successfully admitted R.H.’s child hearsay statements into
evidence.
No. 37228-6-III
State v. Stalford
During summation, the prosecutor focused their argument on R.H.’s credibility.
The framework of the prosecutor’s argument followed the court’s instruction to the jury
on credibility. The instruction read as follows:
You are the sole judges of the credibility of each witness. You are
also the sole judges of the value or weight to be given to the testimony of
each witness. In considering a witness’s testimony, you may consider these
things: the opportunity of the witness to observe or know the things he or
she testifies about; the ability of the witness to observe accurately; the
quality of a witness’s memory while testifying; the manner of the witness
while testifying; any personal interest that the witness might have in the
outcome or the issues; any bias or prejudice that the witness may have
shown; the reasonableness of the witness’s statements in the context of all
of the other evidence; and any other factors that affect your evaluation or
belief of a witness or your evaluation of his or her testimony.
Clerk’s Papers at 200-01.
Relevant portions of the prosecutor’s argument are reproduced below, with
emphasis given to the portions at issue on appeal:
You are the judges of the credibility of the witnesses, okay? And I’m
gonna argue to you that [R.H.] is a credible witness, okay? The judge has
told you—and you get all these instructions back there (indicating), but the
judge told you there’s some things that you can look at when you are
judging the credibility of a witness.
If you believe that witness, what things can you take into
consideration? The opportunity of the witness to observe or know the things
he or she testifies about. I like to call that “you know it ’cause you lived it.”
The ability of the witness to observe accurately. Could they see? Was it
dark? Was it light? Were they drunk? Were they high?
The quality of a witness’s memory while testifying. You can take
that into consideration. Absolutely. The manner of a witness while
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State v. Stalford
testifying. Comin’ in here and sellin’ somebody down the road. Oh, yeah, I
got a—I got a manner about it. Any personal interest a witness might have
in the outcome. A personal interest in the outcome of this case. If the
witness has a personal interest.
Any bias or prejudice the witness may have shown. Do they have a
motive to come in here and lie? Do they have a motive? You can take that
into consideration. And the reasonableness of the witness’s statements in
the context of all the other evidence that was given to you.
Does their testimony seem reasonable? Is it reasonable in light of
everything else you’ve been given in this case? Absolutely, and I argue to
you that [R.H.] was credible.
So, let’s go through a few of these things. The opportunity of a
witness to observe or know the things he testifies about. He knows because
he lived it. Eight-year-old child. Where did this happen? It happened in dark
rooms. Did he ever see the penis? Maybe he didn’t.
....
The shaking of the penis. Shaking penis? What? Shaking the penis.
Yeah, shaking it like this (indicating). Shaking it. Huh. What could that be?
Well, if you’re an eight-year-old little boy or if you’re a nine-year-old little
boy, that’s how you’re gonna describe it. And how can you describe it that
way? Because that’s what he lived through. You cannot describe it like that
unless you’ve lived it, and this kid lived it.
....
Remember how he told you, “He put my hand on there, and I would
pull it away,” and his dad would get mad. Yeah. How do you know that?
How do you know that your dad would get mad if you pulled your hand
away? Just makin’ that out of thin cloth—or maybe that’s not the right term,
but just making that out of thin air? No. That happened. That’s why he
knows that. Because he lived it.
....
How about the opportunity of the witness to observe or know the
things he talked about? Remember when he would say, “He would come in
my room before work,” and his dad, “Do you want to cuddle or do you want
to do something else?” Sometimes they would cuddle, but sometimes he
would say, “Let’s do something else, just to get him out of my face.”
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I mean, makin’ that detail up? No. That’s what an eight-year-old boy
would say. Credible. Credible.
What about the ability of him to observe accurately? Remember, this
happened when they were alone. Arguably most of it happened at night.
When it was dark. When it was quiet. When it was just the two of them.
Laying. Alone. And he gives you sensory memory, because that’s how he
remembers it.
....
How about the quality of his memory while testifying? What do you
think that number is right there (indicating): 484? It’s 484 days have passed
since he told his mom. Think about that. That’s a long, long time in the life
of a little boy.
Is he talking about this all the time? Huh-uh. Doesn’t want to talk
about it. Is he talkin’ about it with everybody at school? No. He’s not
talking about it. Think about that. 484 days, and all of a sudden, “Come on
up here. Let’s talk about it in front of everybody here.”
....
What about his manner while testifying. Did that look fun to you?
Was he just making this all up to get attention like you learned about? Oh,
you know, he just wants a bunch of attention. He just wants to come in here
and talk about this all the time, and talk about it with everybody. All you all
are lookin’ at him. All the people in the courtroom were lookin’ at him.
....
Was there any personal interest that the witness may have in the
outcome? Was there any motive brought out for this kid to be dishonest to
you? Anything? I mean, I’m—I’m trying to wrack my brain. Oh. That’s
right. That’s right. He was upset about his little brother being born so he’s
making this up about his dad. So—okay. I’m not sure where that goes.
I don’t know, ladies and gentlemen. Were there any adults who have
an interest in him being dishonest? I mean, when you think about it, kid’s
tellin’ the truth, kid’s lyin’, or maybe some adult’s gettin’ this kid to lie.
Any adults around him that want to sink this guy (indicating)? That are like,
“Okay, [R.H.] You know, you gotta go in there and you gotta say X, Y, Z,
P, D, Q, because this guy’s gotta go down. So, this is why and this is why.”
No. Everybody—nothing like that came out. Nothing. He loves his
dad. He lost his dad also, and he understands that, and he understood it from
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State v. Stalford
the very beginning. How would an eight-year old come up with all of this?
It’s impossible. Impossible.
Was any bias or prejudice shown? Does he hate his dad? Did he
want his dad to get in trouble? Did any of that come out? Huh-uh.
How about the reasonableness of his testimony in light of everything
else that you heard in this case? Okay. So, not just him, but what else
you’ve learned? They didn’t have a great sex life after the kid was born.
Now, don’t get me wrong. Every marriage that has a bad sex life does not
mean that this happens. I’m not saying that this is the smoking gun. Don’t—
don’t—but it’s a little piece of something, and it does make sense because
the sexual abuse started after [R.H.’s brother] was born. Something to think
about. Just a little piece of the puzzle.
Is it reasonable how it came out? It was spontaneous. “That looks
like semen.” Complete spontaneous disclosure. Completely spontaneous.
No one’s questioning him. Spontaneous. And then mom began to ask how
her eight-year-old child knows about semen, and that’s how this all came
out. It was spontaneous.
And when his mom asked, he told the truth. He told the truth. He also
told several important people in his life. Told Pastor Mel. Okay. Now, if
you’re a little eight-year-old boy in Sunday school and you’re actin’ up with
Jacob—and I forget the other kid—what happens? You go see Pastor Mel.
....
Pastor Mel was an authoritative figure in this little boy’s life. Pastor
Mel also knew the defendant. Pastor Mel talked to this kid, and before he
talked to this kid he told him, “You are not in any trouble. Your mom has
told me you’re not gonna get in any trouble. I just need to know that you are
telling the truth.”
....
And I also want you to think about the type of abuse he endured.
Does that make sense? Does it make sense that you would begin to trust a
child, get him to gain your trust, and that abuse starts slowly with touching
on the outside of the clothes? Yeah. Of course that makes sense.
....
Remember where it happened. The campouts. He called it “our
special time.” You can’t make that up. His room. Their room. Places that
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they could be alone. Think about where [R.H.] describes it happening. It
makes sense in light of all the other evidence that you’ve heard.
Remember that he wanted to keep baby out of the room. Remember
that he would—that [R.H.] told you, “He wanted me to go check on mom to
see if she was asleep so we could have our special time.” How do you make
that up unless it happened to you? You can’t. You cannot. Because that’s
exactly what his dad told him. And he remembers getting up and going to
check if his mother was asleep.
....
Remember when he—“Hey, [R.H.]. You ever lie?” “Yep, I’ve lied.”
How truthful is that? Yeah, he’s lied. “What was—[R.H.], tell me about one
of your lies?” “Well, one time I took four Skittles when I was supposed to
take two.” That’s it? Okay. Lied?
....
One thing about this kid is he’s a rule follower. “We’re not supposed
to talk about the case. You know, we’re not supposed to talk.” This is a
rule-follower kid. Yeah, kids fib, but eventually they end up tellin’ the truth.
4 Report of Proceedings (Aug. 30, 2019) at 784-87, 789-98 (emphasis added).
The prosecutor used a PowerPoint presentation to accompany summation.
A section of the presentation was entitled “CREDIBILITY.” Ex. 8 at 10. Within this
section there were 11 slides, each with the heading, “[R.H.] = Credible.” Id. at 11-21.
Below each of the headings was a bullet point, quoting a portion of the court’s instruction
on credibility. For example, the first of the eleven slides had the bullet point: “The
opportunity of the witness to observe or know the things he testifies about.” Id. at 11.
Below the bullet point on each slide was a list of facts or issues in support of the
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State v. Stalford
applicable language from the instruction on credibility. For example, regarding a
witness’s opportunity to observe or know things, the slide contained the following list:
− Was it dark in those rooms? See penis?
− What did he know? Sensory memory Gross, sticky itchy, hairy [. . .]
− Body positions [. . .] Down there [. . .] I’m up here
− Shaking the penis—used his hand to show
− Blanket on the floor
− Remember his arm in his bedroom
− Pulled his hand away—Dad would get mad
− Left his hand there—then it got wet. How? from dad
Id.
Mr. Stalford never objected to the State’s argument or its PowerPoint slides. The
jury convicted Mr. Stalford as charged. He timely appeals.
ANALYSIS
Prosecutorial misconduct
Mr. Stalford contends the prosecutor committed misconduct in summation by
vouching for R.H.’s credibility. Because there was no objection, relief turns on whether
the prosecutor’s comments were so flagrant and ill intentioned that they could not be
adequately addressed by a curative instruction. State v. Korum, 157 Wn.2d 614, 650,
141 P.3d 13 (2006) (plurality opinion). Here, the standard is not met.
It is important to clarify what vouching is and what it is not. Vouching occurs
when a prosecutor provides personal assurances about the credibility of a witness or the
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merits of a case. State v. Ish, 170 Wn.2d 189, 196, 241 P.3d 389 (2010) (plurality
opinion). It can also happen when the prosecutor suggests information outside the record
supports its theory of the case. Id. The prohibition on vouching does not prevent the
prosecutor from arguing their case. The prosecutor can argue a witness’s credibility,
including explaining why a witness should or should not be believed. Especially when
there is no objection at trial, relief based on improper vouching is unwarranted unless it
is “‘clear and unmistakable’” that a prosecutor is inserting their personal opinion into the
case. State v. Brett, 126 Wn.2d 136, 175, 892 P.2d 29 (1995) (quoting State v. Sargent,
40 Wn. App. 340, 344, 698 P.2d 598 (1985)).
Viewed in context, the prosecutor’s arguments in Mr. Stalford’s case were
presented as reasons for why the jury should find R.H. credible; the prosecutor was not
expressing a personal belief. The prosecutor’s assertion that it was “impossible” for R.H.
to make up his version of events, for instance, was based on the evidence that R.H., as
an eight-year-old at the time he reported the abuse, had no personal interest in lying
about Mr. Stalford. The prosecutor linked this statement to R.H.’s frequent expressions
of (1) fear about losing his biological father and (2) love for his stepfather during the time
of the abuse. Arguing it was “impossible” for R.H. to lie about the abuse under those
circumstances was an overstatement if taken literally, but not misconduct.
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Our review of the prosecutor’s PowerPoint presentation shows it was also properly
presented as argument, not an expression of opinion. Each slide containing the heading
“[R.H.] = Credible” listed evidence supporting R.H.’s credibility. The slides did not
amount to vouching.
While some of the prosecutor’s words could be viewed as vouching if viewed in
isolation, context made the purpose clear. The fact that Mr. Stalford’s attorney did not
object bolsters our conclusion that the prosecutor made no clear and unmistakable
statements of personal opinion. There was no misconduct, let alone misconduct sufficient
to warrant reversal under the applicable standard of review.
Scrivener’s error in judgment and sentence
The parties agree Mr. Stalford’s judgment and sentence contains several
scrivener’s errors regarding the dates of his current offenses and the sentencing date for
several of his prior offenses. They also agree these errors should be corrected on remand.
We accept this concession. See State v. Coombes, 191 Wn. App. 241, 255, 361 P.3d 270
(2015).
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CONCLUSION
The convictions are affirmed. This matter is remanded for correction of scrivener’s
errors in the judgment and sentence. 1
A majority of the panel has determined this opinion will not be printed in
the Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.
_________________________________
Pennell, C.J.
WE CONCUR:
______________________________
Siddoway, J.
______________________________
Fearing, J.
1
The jury found Eric Stalford committed the current offenses between
December 21, 2013 and May 2, 2018. The date of entry of the judgment of conviction and
sentence for each of the prior Oregon convictions was March 9, 1999.
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State of Washington v. Eric Ray Stalford
Combined Opinion