State Of Washington, V. Charles Patrick Fallon

• Court: Court of Appeals of Washington
• Decided: November 14, 2022
• Docket: 83125-9
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

THE STATE OF WASHINGTON, No. 83125-9-I

Respondent, DIVISION ONE v.

CHARLES PATRICK FALLON, UNPUBLISHED OPINION

Appellant.

SMITH, A.C.J. —A jury convicted Charles Fallon of one count of first

degree rape, four counts of first degree child molestation, and one count of

communicating with a minor for immoral purposes. He appeals, asserting that

the prosecutor committed misconduct by misstating the burden of proof during

closing arguments and that the court impermissibly commented on the evidence

by using the victims’ initials in the to-convict instructions. We affirm.

FACTS

Charles Fallon lived in a travel trailer on a neighbor’s property in Renton,

Washington. He befriended families in the neighborhood and frequently played

with, and gave bike rides to, the neighborhood children.

Victims K.T. and R.K. remember playing with Fallon beginning when they

were approximately five years old. Both initially enjoyed spending time with

Fallon. But both stopped playing with Fallon between the ages of eight and ten

years old because of the molestation. A few years later, either K.T. or R.K. told

their friend J.S. that Fallon molested them when they were younger. J.S. told her

Citations and pin cites are based on the Westlaw online version of the cited material. No. 83125-9-I/2

father, P.S., who reported the abuse to a school guidance counselor. The

guidance counselor called the police.

Fallon was charged with one count of first degree rape, four counts of first

degree child molestation, and one count of communicating with a minor for

immoral purposes.

At trial, both K.T. and R.K. testified. During closing argument, the

prosecutor asserted to the jury that K.T. and R.K.’s testimony was credible. The

prosecutor argued: “And if you believe them, if you believe [K.T.] and [R.K.], if

you found them credible then you have been satisfied beyond a reasonable

doubt.” The prosecutor also stated: “The [jury] instructions tell you . . . testimony

is evidence. The evidence that [K.T. and R.K.] gave you[,] if you find that

evidence credible, you have been satisfied beyond a reasonable doubt.” Finally,

the prosecutor told the jury: “[I]f you find them credible, if you believe them, they

have established for you all the elements of each and every one of these crimes.

. . . [I]f you believe them when they tell you what happened, you are satisfied

beyond a reasonable doubt.” Defense counsel objected to each of these

statements as misstating the burden of proof. After a side bar with counsel, the

trial court overruled each objection.

The jury found Fallon guilty on all counts. Fallon appeals.

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ANALYSIS Prosecutorial Misconduct

Fallon contends that the prosecutor committed misconduct by misstating

the burden of proof and reversal is therefore required. We conclude that the

prosecutor did not commit misconduct and reversal is unwarranted.

Prosecutors have “ ‘wide latitude’ ” in closing argument to argue

reasonable inferences from the evidence at trial, including evidence regarding

the credibility of witnesses, but their argument must not misstate the applicable

law. State v. Crossguns, 199 Wn.2d 282, 296-97, 505 P.3d 529 (2022) (quoting

In re Pers. Restraint of Glasmann, 175 Wn.2d 696, 704, 713, 286 P.3d 673

(2012) (plurality opinion)); State v. Thorgerson, 172 Wn.2d 438, 448, 258 P.3d 43

(2011). The defendant bears the burden to prove prosecutorial misconduct.

Thorgerson, 172 Wn.2d at 442. To prevail on a claim of prosecutorial

misconduct, the defendant must demonstrate (1) that the prosecutor’s conduct

was improper and (2) the conduct was prejudicial in the context of the entire

record and the circumstances at trial. Thorgerson, 172 Wn.2d at 442; State v.

Emery, 174 Wn.2d 741, 760, 278 P.3d 653 (2012). If the defendant objected to

the alleged misconduct at trial, they must demonstrate that the prosecutor’s

misconduct resulted in prejudice that had a “substantial likelihood” of affecting

the jury’s verdict. State v. Magers, 164 Wn.2d 174, 191, 189 P.3d 126 (2008).

In all criminal matters, the State carries the burden to prove each element

of the crimes charged beyond a reasonable doubt. Crossguns, 199 Wn.2d

at 297. “Arguments by the prosecution that shift or misstate the State’s burden to

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prove the defendant’s guilt beyond a reasonable doubt constitute misconduct.”

State v. Lindsay, 180 Wn.2d 423, 434, 326 P.3d 125 (2014). It is misconduct for

a prosecutor to ask the jury to decide who is telling the truth. Glasmann, 175

Wn.2d at 704. Likewise, it is also misconduct for a prosecutor to tell the jury it

must find that the State’s witnesses are lying in order to acquit the defendant.

State v. Fleming, 83 Wn. App. 209, 213, 921 P.2d 1076 (1996); State v. Barrow,

60 Wn. App. 869, 874-75, 809 P.2d 209 (1991). “The jury’s job is not to

determine the truth of what happened. . . . Rather, a jury’s job is to determine

whether the State has proved the charged offenses beyond a reasonable doubt.”

Emery, 174 Wn.2d at 760 (citations omitted). Therefore, asking the jury to

decide a case based who it believes is telling the truth or lying is misconduct

because it impermissibly shifts the burden away from the State. State v. Miles,

139 Wn. App. 879, 890, 162 P.3d 1169 (2007). However, credibility

determinations are squarely within the province of the jury. State v. Dietrich, 75

Wn.2d 676, 677-78, 453 P.2d 654 (1969).

Here, Fallon contends that the prosecutor committed misconduct by

misstating the burden of proof during closing argument. In his briefing, Fallon

takes issue with the following statements from the prosecutor’s closing argument,

emphasizing portions as follows: And if you believe them, if you believe [K.T.] and [R.K.], if you found them credible then you have been satisfied beyond a reasonable doubt. ... The instructions tell you, the instructions that Judge McKee gave you told you testimony is evidence. The evidence that they gave you[,] if

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you find that evidence credible, you have been satisfied beyond a reasonable doubt. ... And if the testimony that you heard from [K.T.] and [R.K.], if you find them credible, if you believe them, they have established for you all the elements of each and every one of these crimes. ... If you find them credible, if they laid that all out for you, you have been satisfied beyond a reasonable doubt. And that means you don’t get to throw up your hands and say I wish I had more evidence. I believe them, but I wish there was more. Because if you believe them and you know why there is no other evidence, but if you believe them and already have more than enough—. . .

And finally: And these two witnesses have told you what happened to them. And if you find them credible, if you believe them when they tell you what happened, you are satisfied beyond a reasonable doubt. There was no need that you get some corroboration.

Fallon contends that the italicized portions of the prosecutor’s argument

misstated the burden of proof because the jury could have found both victims to

be credible and still drawn other reasonable inferences from the evidence to find

Fallon innocent. Regarding the rape charge, Fallon contends that the jury could

have concluded from K.T.’s testimony that no penetration occurred and therefore

that the State had not met its burden of proving every element of the crime

beyond a reasonable doubt.1 And for the child molestation charges, Fallon

argues that even though both K.T. and R.K. testified that Fallon touched their

1 At trial, K.T. testified that Fallon tried to put his fingers inside her “but

was unsuccessful” in doing so. She testified that she knew he was trying because she felt discomfort and pain. She said the pain she felt was “outside” her vagina. But she also said that when she felt pain, Fallon’s finger was “[s]till on the outside but more towards the inside.” And she testified that she felt pain inside her vagina “maybe once or twice.”

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bottoms, the jury did not have to conclude that this touching was for sexual

gratification—it could have attributed the touching to Fallon’s “inability to

understand boundaries.” Lastly, Fallon argues that K.T.’s testimony did not

require the jury to find him guilty of immoral communication because the jury

could have found that Fallon “acted with a purpose unrelated to sexual

impropriety” when he requested that K.T. touch his “front part.”

Thorgerson is instructive here. In Thorgerson, the prosecutor discussed

the “beyond a reasonable doubt” burden of proof, argued that there were no

holes in the victim’s testimony, and advised the jury that it should not acquit the

defendant if it believed the victims and found her credible. 172 Wn.2d at 454.

The prosecutor told the jury: “Look, if you believe her, you must find him guilty

unless there is a reason to doubt her based on the evidence in this case.”

Thorgerson, 172 Wn.2d at 454. The defendant argued that the prosecutor

committed misconduct by telling the jury that there was no credible basis for

doubting the victim’s testimony. Thorgerson, 172 Wn.2d at 454. Our Supreme

Court concluded the statements, taken in context, did not amount to misconduct

because the prosecutor did not tell the jury there was a presumption that the

victim was telling the truth; rather, the prosecutor argued that the jurors should

believe the victim’s testimony, and if they did, they should find the defendant

guilty. Thorgerson, 172 Wn.2d at 454. The Court opined that this was not

misconduct, particularly given the latitude prosecutors have in arguing from the

evidence during closing argument. Thorgerson, 172 Wn.2d at 454.

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Here, the prosecutor’s statements do not amount to misconduct when

viewed in context of the entire case. The prosecutor clearly conveyed to the jury

that the State carried the burden of proof by stating: “Beyond a reasonable doubt

is the [S]tate’s burden and the [S]tate’s burden alone.” The prosecutor then

argued that the evidence the jury heard had “more than established this burden.”

The prosecutor argued the testimony at trial supported “[t]he only reasonable

inference”—that penetration had occurred—and told the jury that it was

“necessary that [they] conduct [a] credibility analysis” in evaluating the evidence

presented. This was not a misstatement of the burden of proof. Rather, the

prosecutor recounted the evidence and asserted that the jury should conclude

that the testimony supported a single reasonable inference. The prosecutor did

not, as Fallon contends, assert that the jury must convict if they found the

witnesses credible. The comments Fallon complains of are argument concerning

the reasonable inferences the jury could glean from the evidence, not

misconduct.

Use of Initials

Fallon argues that the use of K.T. and R.K.’s initials, rather than their full

names, throughout the jury instructions constituted an impermissible judicial

comment on the evidence. We disagree.

Article IV, Section 16 of the Washington Constitution provides that

“[j]udges shall not charge juries with respect to matters of fact, nor comment

thereon, but shall declare the law.” “This constitutional provision prohibits a

judge ‘from conveying to the jury [their] personal attitudes toward the merits of

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the case or instructing a jury that matters of fact have been established as a

matter of law.’ ” State v. Mansour, 14 Wn.App.2d 323, 329, 470 P.3d 543 (2020)

(internal quotation marks omitted) (quoting State v. Levy, 156 Wn.2d 709, 721,

132 P.3d 1076 (2006)) (review denied 196 Wn.2d 1040, 479 P.3d 708 (2021)).

“We review de novo whether a jury instruction constituted an improper comment

on the evidence ‘within the context of the jury instructions as a whole.’ ”

Mansour, 14 Wn.App.2d at 329 (quoting Levy, 156 Wn.2d at 721). We presume

a comment on the evidence is prejudicial and the State bears the burden of

showing no prejudice occurred. Levy, 156 Wn.2d at 725.

Here, Fallon contends that the judge commented on the evidence by using

K.T. and R.K.’s initials in the to-convict jury instructions. This court contemplated

the same issue in Mansour and held that the use of initials to identify a victim of

child molestation in the to-convict jury instructions is not a judicial comment on

the evidence. 14 Wn.App.2d at 330. In Mansour, we explained that the name of

the victim of child molestation is not a factual issue requiring resolution. 14

Wn.App.2d at 329. Therefore, using initials in to-convict instructions does not

impermissibly instruct the jury that a matter of fact had been established as a

matter of law. Mansour, 14 Wn.App.2d at 330. Also, a juror is unlikely to

presume that a complainant is a victim—or that the court considers them to be—

merely because the court chooses to use their initials. Mansour, 14 Wn.App.2d

at 330. We observed that “even the use of the term ‘victim’ has ‘ordinarily been

held not to convey to the jury the court’s personal opinion of the case.’ ”

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Mansour, 14 Wn.App.2d at 330 (quoting State v. Alger, 31 Wn. App. 244, 249,

640 P.2d 44 (1982)).

Nonetheless, Fallon argues that Mansour was wrongly decided and urges

us not to follow it. In support of his argument, Fallon cites the same cases and

recycles much of the same argument as the defendant in Mansour. As in

Mansour, we do not find the federal cases Fallon cites persuasive. All four are

civil cases in which the respective plaintiffs sought to use pseudonyms to conceal

their identities throughout judicial proceedings.2 See Jane Doe v. Cabrera, 307

F.R.D. 1, 2 n.2 (D.D.C. 2014) (permitting use of a pseudonym throughout the

pretrial process); James v. Jacobsen, 6 F.3d 233, 240-41 (4th Cir. 1993)

(considering pseudonym use throughout trial for parents to protect identity of

their minor children); Does I through XXIII v. Advanced Textile Corp., 214 F.3d

1058, 1068 (9th Cir. 2000) (considering pseudonym use throughout pretrial

proceedings); Jane Doe v. Rose, No. CV-15-07503-MWF-JCx, 2016 WL

9150620, at *1 (C.D. Cal. Sept. 22, 2016) (court order) (reserving for pretrial

conference whether plaintiff would be permitted to use a pseudonym at trial). By

contrast, here, both R.K. and K.T. were referred to by their full names throughout

trial and their identities were in no way concealed from the jury. Mansour

contemplated the same issue now before us and is controlling authority.3

2 And two of the cases he cites—Jane Doe v. Cabrera, 307 F.R.D. 1, 2 n.2

(D.D.C. 2014) and Jane Doe v. Rose, No. CV-15-07503-MWF-JCx, 2016 WL 9150620, at *1 (C.D. Cal. Sept. 22, 2016)—are the same cases the defendant in Mansour relied on. 3 Contrary to Fallon’s assertions, published opinions of this court do have

precedential value. See RCW 2.06.040 (“All decisions of the court having

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14 Wn.App.2d at 328-30 (concluding that the use of initials in the to-convict

instructions is not a judicial comment on the evidence).

Ignoring our holding in Mansour, Fallon tries to analogize the

circumstances here to those in State v. Jackman to assert that a to-convict

instruction that conveys to the jury that the defendant’s guilt has been proved is a

comment on the evidence. 156 Wn.2d 736, 132 P.3d 136 (2006). But Fallon’s

reliance on Jackman is misplaced. The defendant in Jackman was also charged

with communication with a minor for immoral purposes, of which age of the victim

is an element. In Jackman, a critical element of the crime at issue was whether

the victims were minors. 156 Wn.2d at 743. And because the two victims

testified that they had previously lied to Jackman about their ages at the time of

the offenses, their credibility was an issue at trial. Jackman, 156 Wn.2d at 744,

n.7. The jury could have chosen not to believe their testimony as to their correct

birth dates at the time of the events. Jackman, 156 Wn.2d at 744, n.7.

Therefore, the victims’ ages were a factual issue for the jury to resolve.

Jackman, 156 Wn.2d at 744. Thus, when the court in Jackman included the

victims’ birth dates in the to-convict instructions, it conveyed to the jury that those

dates had been proven true. 156 Wn.2d at 744. This was an impermissible

precedential value shall be published as opinions of the court.”); cf. GR 14.1 (“Unpublished opinions of the Court of Appeals have no precedential value and are not binding on any court.”). And “we are exceedingly reluctant to disagree with recent opinions.” Little v. King, 147 Wn. App. 883, 889, 198 P.3d 525 (2008).

10 No. 83125-9-I/11

judicial comment on the evidence because it allowed the jury to infer that the age

element had been proved by the State. Jackman, 156 Wn.2d at 744.4

Here, use of the victims’ initials is not a judicial comment on the evidence.

The victims’ ages were not a disputed element; they were all still minors at the

time of trial. Like in Mansour, we are unpersuaded that the use of R.K. and

K.T.’s initials here conveyed anything to the jury about the judge’s personal

attitudes on the merits of the case. For these reasons, we hold that the use of

the victims’ initials in the to-convict instructions was not a judicial comment on the

evidence

We affirm.

WE CONCUR:

4 We note, too, that the Jackman defendant did not take issue with the

court’s use of the victims’ initials in the to-convict instructions. 156 Wn.2d at 740- 41.