IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 85919-6-I Respondent, DIVISION ONE v. UNPUBLISHED OPINION DAMIEN CHARLES McCARTER,
Appellant.
HAZELRIGG, A.C.J. — Damien McCarter appeals his conviction after a jury
trial for murder in the second degree—felony murder—with a domestic violence
designation, based on assault of a child in the first degree. McCarter contends
that the State’s medical witnesses provided improper opinion testimony, the
prosecutor committed misconduct in closing, and the trial court erred in limiting his
closing argument. He also avers the trial court erred in imposing an exceptional
sentence, in particular, challenging the sufficiency of the evidence as to the two
aggravating factors found by the jury. Because the only error was the court’s
limitation on defense counsel’s closing argument, which was harmless beyond a
reasonable doubt, we affirm.
FACTS
On December 9, 2019, the State charged Damien McCarter with murder in
the second degree—felony murder—based on assault of a child in the first degree,
and further alleged it was a crime of domestic violence. Thereafter, the State filed No. 85919-6-I/2
an amended information that included two additional aggravating circumstances:
that AM was a particularly vulnerable victim and McCarter abused a position of
trust. On December 3, 2019, officers responded to Mary Bridge Hospital and
spoke with medical staff regarding a 2-month-old child, AM, who had suffered a
decompressed skull fracture and several bilateral rib fractures while in the care of
his father, McCarter. AM ultimately succumbed to his injuries and passed away
on December 4, 2019.
The parties litigated a number of pretrial issues through motions in limine
and the jury trial began on May 16, 2022. Jennifer McCarter, 1 McCarter’s wife and
AM’s mother testified that her husband was the only person home with AM at the
time of the incident on December 3. In response to an e-mail from McCarter that
said, “I fell with [AM] going down stairs,” Jennifer explained that she immediately
left work and drove home where she found McCarter and AM waiting for her.
McCarter then told Jennifer that AM “had been dropped in his car seat and that he
wasn’t responding.” 2 Jennifer drove them to St. Michael’s Medical Center.
1 Because they share the same last name, we refer to the defendant as McCarter and
Jennifer by her first name for clarity. No disrespect is intended 2 In an interview with Detective Jennifer Rice, McCarter described the incident as follows:
He said that he put [AM] in his car seat and it was on the dining room table. He said he strapped [AM] in. He buckled him in. Everything was fastened except for the final adjustment of the harness. He picked up the car seat with his right arm in the back and his left arm in the front, and he lifted it off of the dining room table in a parallel fashion. As he turned—as he rotated, his left hand hit the back of a—hit a dining room chair on the back of his left knuckles, and he said that it was a zinger to his knuckle, and he just released the car seat. He described it as his—the momentum of his turning and hitting the dining room chair that his right hand flipped the car seat over and it landed face[ ]down on a carpeted floor. He said that [AM] was face[ ]down.
Rice recorded McCarter reenacting this incident in the home and that video was admitted as State’s Exhibit 37 and played for the jury at trial.
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Jennifer testified that due to the extent of the injuries, AM was airlifted to Mary
Bridge Medical Center and, shortly after she arrived at Mary Bridge, the doctors
there informed her that AM would not survive.
The State presented testimony from numerous medical witnesses. Dr.
Jason Tanguay, an emergency medicine physician, treated AM at St. Michael’s.
He recalled that AM had facial bruising and “needed imaging of the brain.” The
imaging showed “a skull fracture, and there was a significant associated
intracranial hemorrhage.” Dr. Jeffrey Flaskerud, a pediatric emergency medicine
physician at Mary Bridge, also treated AM. Flaskerud testified that AM “had a
depressed right-sided skull fracture” and both “left-sided subdural” and “left-sided
subarachnoid” hemorrhages. Additionally, AM had several bilateral rib fractures.
Flaskerud opined that the injuries were inconsistent with the claimed mechanism
of AM falling in a car seat because the “patient had left ear bruising, an area of
injury under the right eye, swelling on the right side of the head. That’s three
different traumas, not just one.” Flaskerud testified that it was “not possible, based
on [his] training and experience,” that all of AM’s injuries resulted from a single fall.
Further, Flaskerud stated that “rib fractures in pediatric patients” are “highly
suggestive of abuse” and AM’s elevated liver enzymes also suggested “[t]rauma”
or “abuse.” Dr. John Whitt, a pediatric intensive care physician at Mary Bridge,
cared for AM as well and testified that AM’s injuries could not be explained by the
car seat; rather, they were consistent with “nonaccidental trauma.” This conclusion
was shared by Drs. Ronald Grondin, Tito Monge, and Mauricio Escobar, all of
whom worked at Mary Bridge and examined or treated AM.
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Dr. Sarah Ann Farley, a pediatric radiologist, 3 found a linear fracture on the
side of AM’s head and an “overlying hematoma[4] within the scalp.” According to
Farley, this was a “severe traumatic brain injury” with “evidence of direct head
trauma.” Farley also identified multiple rib fractures, some of which showed
evidence of healing. She concluded that, overall, the findings were “very strongly
associated with nonaccidental trauma.” 5 Dr. Aditya Sunijda, a pediatric radiologist,
testified that she was most concerned by AM’s scan that showed “blood products
of varying ages within the brain,” which indicates “they were different times of
injury.” Sunijda stated that such findings are most commonly seen in
“nonaccidental trauma or child abuse.”
Dr. Kenneth Feldman is a pediatrician with Children’s University Medical
Group and was qualified as an expert in child abuse. He opined that AM’s “injuries
were indicative of repetitive child abuse.” Feldman testified at length that a single
fall could not cause AM’s injuries as there was “evidence of bilateral impact trauma
on opposite sides of the skull,” the type of head injuries AM sustained are “virtually
unheard of with normal short falls,” and such “short falls essentially never cause
rib fracture.” Dr. Jeffrey Otjen, a pediatric radiologist, testified as an expert on child
abuse and concluded, based on his review of AM’s scans, that “given the totality
of the imaging findings, nonaccidental trauma was the diagnosis.” He explained
that AM had “too many injuries to be accounted for by a single fall or drop.” Dr.
3 Farley explained that she is a diagnostic radiologist with “subspecialty training in imaging
pediatric patients.” She also clarified that a “diagnostic radiologist is a physician who has specialized training in interpreting medical imaging.” 4 Farley defined a hematoma as “a collection of blood.” 5 Farley is trained in recognizing “nonaccidental trauma,” which she described as “traumatic
injuries that are not typically seen in the context of accidental injury mechanisms.”
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Andrew Rosenberg, a pathologist, reviewed AM’s histological 6 slides and opined
that AM suffered “at least two episodes of severe trauma” and “based on the
distribution and types of trauma to the skeleton, it was secondary to physical child
abuse.” Dr. Emmanuel Lacsina, a forensic pathologist who performed an autopsy
on AM, concluded that the “cause of death [wa]s due to multiple blunt force injuries
to the head.” He ruled the death a homicide. Lacsina testified that “the severity
and multiplicity of the injuries indicate that they are inflicted injuries rather than
injuries sustained from an accident.”
McCarter testified in his own defense and reenacted his version of the
incident with AM’s car seat at trial. At the time of the incident, according to
McCarter, AM was “fully strapped in” to the car seat, which had a five-point
harness. Defense medical experts provided testimony in support of McCarter’s
version of events. Dr. Robert Bux, a forensic pathologist, testified that AM had
“metabolic bone disease” and opined that the car seat fall described by McCarter
could result in the injuries to AM. Dr. David Ayoub, a diagnostic radiologist, also
opined that AM’s skeletal images “showed significant metabolic bone disease,”
specifically, “rickets.” Ayoub testified that many of the injuries could be explained
by a single fall with the car seat. Dr. Marta Cohen, a pediatric pathologist licensed
in the United Kingdom, similarly concluded AM had “metabolic bone disease.” Dr.
Dale Vaslow, a neuroradiologist, testified that AM’s injuries were attributable to “a
6 Rosenberg defined “histological materials” as “microscopic. . . features that are present
in the bone tissue.” He further explained that histological slides are those created for use with a microscope by slicing “extremely thin sections of tissues” and “staining them with dyes so they can be easily visible. . . under the microscope” and that “the name of the slide that contains the stained tissue is a histological slide.”
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traumatic blow to the head.” The defense also called a biomechanical expert, Dr.
Chris Allen Van Ee, who concluded that AM’s head injuries “could have occurred
as a result of the fall.” Van Ee testified on cross-examination that he had done “a
lot of work, looking at chest injury . . . as well as rib fractures and when they occur”
and “even looked at rib fractures in children.” However, Van Ee offered no opinion
on AM’s rib injuries.
The jury found McCarter guilty as charged and returned special verdicts
finding the State had proved that AM and McCarter were members of the same
family or household for purposes of the domestic violence designation, along with
the aggravating factors of a particularly vulnerable victim and use of a position of
trust. The trial court determined that the special verdicts were a sufficient factual
basis to support an exceptional sentence above McCarter’s standard range.
Accordingly, the judge imposed 360 months in prison and entered corresponding
findings of fact and conclusions of law.
McCarter timely appealed.
ANALYSIS
I. Testimony on “Abusive Head Trauma” and “Nonaccidental Trauma”
McCarter first assigns error to the trial court’s ruling allowing the State’s
expert witnesses to opine that AM’s injuries were the result of “abusive head
trauma” and/or “nonaccidental trauma.” He avers the testimony failed to satisfy
the test set out in Frye v. United States, 54 U.S. App. D.C. 46, 47, 293 F. 1013
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(1923), and invaded the province of the jury with regard to fact-finding. Neither
argument holds merit. 7
A. Frye Test
“The standard governing the admissibility of testimony based on scientific
experimental procedures at a criminal trial was enunciated in Frye.” State v.
Martin, 101 Wn.2d 713, 719, 684 P.2d 651 (1984). Under the Frye test, “evidence
deriving from a scientific theory or principle is admissible only if that theory or
principle has achieved general acceptance in the relevant scientific community.”
Id. Admissibility under Frye is subject to de novo review, which “may extend
beyond the record and involve consideration of scientific literature as well as
secondary legal authority.” State v. Copeland, 130 Wn.2d 244, 255-56, 922 P.2d
1304 (1996).
“The Frye test is implicated only where the opinion offered is based upon
novel science.” Anderson v. Akzo Nobel Coatings, Inc., 172 Wn.2d 593, 611, 260
P.3d 857 (2011). “It applies where either the theory and technique or the method
of arriving at the data relied upon is so novel that it is not generally accepted by
the relevant scientific community.” Id. (emphasis added). Courts consider “(1)
whether the underlying theory is generally accepted in the scientific community
and (2) whether there are techniques, experiments, or studies utilizing that theory
7 In his reply brief, McCarter shifts his argument on this issue to ER 403, the basis for the
defense objection presented in motions in limine, and contends the trial court erred in admitting the testimony of abusive head trauma because it was “substantially more prejudicial than probative.” Far from raising this argument in his opening brief, McCarter fails to even mention ER 403 until his reply. “‘A contention presented for the first time in the reply brief will not receive consideration on appeal.’” State v. Tien Thuy Ho, 8 Wn. App. 2d 132, 140-41, 437 P.3d 726 (2019) (quoting Fosbre v. State, 70 Wn.2d 578, 583, 424 P.2d 901 (1967)). Thus, we do not reach the ER 403 argument on this challenge.
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which are capable of producing reliable results and are generally accepted in the
scientific community.” State v. Riker, 123 Wn.2d 351, 359, 869 P.2d 43 (1994).
In motions in limine, McCarter challenged Feldman’s proposed testimony
about “abusive head trauma” on the ground that it was “scientifically and medically
unreliable.” He also moved to exclude any reference to “abusive head trauma”
under ER 403 and on the basis that the phrase invaded the province of the jury.
However, McCarter did not present a challenge based on Frye at trial; the case is
not cited in his motions in limine before the trial court and the only reference to the
Frye standard contained in the record before us is from the State’s motion to
suppress Van Ee’s testimony concerning his “novel experiment.”8 In response to
the State’s contention in briefing that McCarter waived the issue by not raising it
until this appeal, he simply insists that “Frye is still important to the argument.”
“Failure to object to the admissibility of evidence at trial precludes appellate
review of that issue unless the alleged error involves manifest error affecting a
constitutional right.” State v. Florczak, 76 Wn. App. 55, 72, 882 P.2d 199 (1994).
To satisfy RAP 2.5(a)(3) and raise such an error for the first time on appeal, “an
8 While McCarter sought to exclude Feldman’s testimony of “abusive head trauma” and
compared it to “shaken baby syndrome,” which, he contended, “lacked a solid scientific foundation,” McCarter neither explicitly raised Frye nor challenged the methodology of the State’s expert opinions in relation to abusive head trauma and nonaccidental trauma. “‘The core concern [of Frye] is only whether the evidence being offered is based on established scientific methodology.’” In re Pers. Restraint of Morris, 189 Wn. App. 484, 492-93, 355 P.3d 355 (2015) (internal quotation marks omitted) (quoting In re Det. of Thorell, 149 Wn.2d 724, 754, 72 P.3d 708 (2003)). Thus, it is clear that McCarter’s challenge in the trial court was not based on Frye. Rather, McCarter’s objection to the State’s expert testimony at trial was ostensibly an ER 702 challenge, despite the fact that the evidence rule was not explicitly cited as the basis for his motion to exclude this testimony. For expert testimony to be admissible, “ER 702 requires that (1) the witness is qualified as an expert and (2) the testimony would be helpful to the trier of fact.” State v. Thomas, 123 Wn. App. 771, 778, 98 P.3d 1258 (2004). “Expert testimony is helpful if it concerns matters beyond the common knowledge of the average layperson and does not mislead the jury.” Id. However, as McCarter does not argue ER 702 on appeal, we need not consider whether the State’s expert testimony was admissible under that rule.
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appellant must demonstrate (1) the error is manifest, and (2) the error is truly of
constitutional dimension.” State v. O’Hara, 167 Wn.2d 91, 98, 217 P.3d 756
(2009). “Failure to lay an adequate foundation under Frye does not create
manifest constitutional error.” State v. Newbern, 95 Wn. App. 277, 288, 975 P.2d
1041 (1999). Thus, “[w]hen a party fails to raise a Frye argument below, a
reviewing court need not consider it on appeal.” In re Det. of Taylor, 132 Wn. App.
827, 836, 134 P.3d 254 (2006); see also State v. Hettich, 70 Wn. App. 586, 592,
854 P.2d 1112 (1993) (“[T]he Frye argument was not raised below, and therefore
need not be considered on appeal.”). Because McCarter did not raise the Frye
issue in the trial court, the challenge is waived. 9
B. Invading the Province of the Jury
McCarter avers that an opinion that a child suffered “abusive head trauma”
or “nonaccidental trauma” is not a diagnosis, but, rather, “a legal conclusion that
the accused is guilty of a crime.” We disagree.
“No witness, lay or expert, may testify to [their] opinion as to the guilt of a
defendant, whether by direct statement or inference.” State v. Black, 109 Wn.2d
336, 348, 745 P.2d 12 (1987). “Impermissible opinion testimony regarding the
defendant’s guilt may be reversible error because such evidence violates the
defendant’s constitutional right to a jury trial, which includes the independent
determination of the facts by the jury.” State v. Kirkman, 159 Wn.2d 918, 927, 155
P.3d 125 (2007). But “if the testimony does not directly comment on the
9 Even on the merits, the Frye challenge would likely fail as this court has held that evidence
of “abusive head trauma” as a diagnosis satisfies the Frye standard. See Morris, 189 Wn. App. at 493-94.
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defendant’s guilt or veracity, helps the jury, and is based on inferences from the
evidence, it is not improper opinion testimony.” State v. Johnson, 152 Wn. App.
924, 930-31, 219 P.3d 958 (2009).
McCarter argues that the opinions of the various medical experts that AM’s
injuries were the result of “abusive,” “nonaccidental,” or “inflicted” trauma were
improper as they implied the actus reus, or wrongful act, of assault, which was an
ultimate issue of fact for the jury to determine. To convict McCarter of murder in
the second degree—felony murder—the State was required to prove he caused
AM’s death in the course of committing assault of a child in the first degree against
AM. RCW 9A.32.050(1)(b). Although the expert testimony did imply the actus
reus of assault of a child, an expert may express an “opinion on a proper subject
even though [they] thereby express[] an opinion on the ultimate fact to be found by
the trier of fact.” Kirkman, 159 Wn.2d at 929. “The mere fact that the opinion of
an expert covers an issue which the jury has to pass upon, does not call for
automatic exclusion.” Id.
McCarter relies on Florczak, wherein one of the defendants, Terrell,
appealed convictions for one count of child molestation in the first degree and one
count of sexual exploitation of a minor against her three-year-old daughter, KT. 76
Wn. App. at 57-58. Wilson, a social worker who had treated KT, provided an expert
opinion at trial that KT suffered from post-traumatic stress syndrome, which was
“secondary, in this case, in KT’s case, to sexual abuse.” Id. at 74. On review, this
court explained that the expert had “rendered an opinion of ultimate fact—whether
KT had been sexually abused—which was for the jury alone to decide.” Id.
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“Because only Terrell and Florczak were implicated as possible abusers, this
segment of Wilson’s testimony amounted to an opinion that they were guilty, either
individually or jointly, of sexually abusing KT.” Id. The court held that the opinion
invaded the province of the jury, but also concluded that the error was harmless.
Id. at 74-75.
Unlike Wilson’s opinion testimony in Florczak, which only implicated the
defendants as the abusers, the State’s experts here did not exclusively implicate
McCarter as the one responsible for all of AM’s injuries. While the expert opinions
did assert that the injuries strongly suggested that AM was intentionally harmed,
touching upon an ultimate issue of fact for the jury, the experts concluded that
some of AM’s injuries occurred at different points in time, not just on the day of the
incident when McCarter was watching the child. Additionally, in Florczak, the State
charged the defendants based upon one photograph that showed Terrell and KT
in the nude and KT’s allegation that the defendants had sexually abused her on
numerous occasions. 76 Wn. App. at 58-59. Here, however, the physical
evidence of AM’s injuries was overwhelming and the expert testimony
characterizing those injuries as resulting from “abusive head trauma” and
“nonaccidental trauma” did not take away the jury’s role in finding whether the
injuries occurred by outside force at all, as opposed to a bone disease, or who was
responsible for them. Another critical point of distinction from Florczak is the fact
that this court has recognized “abusive head trauma” as a valid diagnosis. In re
Pers. Restraint of Morris, 189 Wn. App. 484, 493-94, 355 P.3d 355 (2015). Finally,
while McCarter challenges the opinions offered by a number of experts as they
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pertained to “abusive head trauma” or “nonaccidental trauma,” it is noteworthy that
he does not challenge the opinion of the forensic pathologist who performed AM’s
autopsy. Lacsina expressly concluded that the “cause of death [wa]s due to
multiple blunt force injuries to the head” and ruled the child’s death a homicide.
No expert witness directly commented on McCarter’s guilt or otherwise
testified that McCarter intentionally harmed AM, and no expert witness offered an
opinion as to the specific mechanism that caused AM’s injuries. Rather, each
concluded, based on their respective training, experience, and review of AM’s
medical records, reports, and imaging, that the injuries were due to “nonaccidental
trauma” and “abusive head trauma,” which was helpful to the jury in determining
the cause of AM’s injuries and whether those injuries could have been sustained
by one short fall as suggested by McCarter’s theory of the case. Thus, the
testimony regarding nonaccidental trauma and abusive head trauma was not
improper and the trial court did not err in admitting it.
II. Prosecutorial Misconduct in Closing Argument
McCarter next claims the prosecutor committed misconduct in closing
argument by shifting the burden of proof. According to McCarter, the prosecutor
did so by suggesting defense expert Van Ee needed to explain AM’s rib fractures.
“[T]o prevail on a claim of prosecutorial misconduct, the defendant bears
the burden of showing that the comments were improper and that they were
prejudicial.” State v. Ish, 170 Wn.2d 189, 195, 241 P.3d 389 (2010). “Allegedly
improper arguments should be reviewed in the context of the total argument, the
issues in the case, the evidence addressed in the argument, and the instructions
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given.” State v. Russell, 125 Wn.2d 24, 85-86, 882 P.2d 747 (1994). “Prejudice
is established only if there is a substantial likelihood the instances of misconduct
affected the jury’s verdict.” State v. Pirtle, 127 Wn.2d 628, 672, 904 P.2d 245
(1995). “Reversal is not required if the error could have been obviated by a
curative instruction which the defense did not request.” Russell, 125 Wn.2d at 85.
Prosecutors have “wide latitude to argue reasonable inferences from the
evidence,” but it is improper “to argue that the burden of proof rests with the
defendant.” State v. Thorgerson, 172 Wn.2d 438, 453, 258 P.3d 43 (2011).
“Generally, a prosecutor cannot comment on the lack of defense evidence
because the defendant has no duty to present evidence.” State v. Cheatam, 150
Wn.2d 626, 652, 81 P.3d 830 (2003). However, “the mere mention that defense
evidence is lacking does not constitute prosecutorial misconduct or shift the burden
of proof to the defense.” State v. Jackson, 150 Wn. App. 877, 885-86, 209 P.3d
553 (2009).
McCarter points to the following portion of the State’s closing argument:
[State]: Here’s where there’s a large hole in the defense theory of the case with their biomechanical expert. Dr. Van Ee was not asked to opine on whether the rib fractures could have resulted from this alleged fall, despite the fact he testified that he had done lots of work in chest injuries, rib fractures, seat belts, and car seats, so he certainly could have offered an opinion there. The only experts that do say the rib fractures were consistent are Dr. Ayoub, and he’s not a biomechanical expert. And why wasn’t Dr. Van Ee asked to provide an explanation for the rib fractures? Because those injuries would not have occurred in the fall described—
[Defense]: Objection, Your Honor.
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The trial court overruled the objection and explained the “argument that was
made is that there’s certain things that Dr. Van Ee did not testify to, that he did not
give an explanation about, that he has qualifications to give perhaps some opinions
and did not.” When the jury returned, the prosecutor continued: “So why didn’t Dr.
Van Ee provide an explanation for the rib fractures? Because they were not caused
by that fall. And Dr. Tencer testified to that.”
This was not improper burden shifting. In limited circumstances, “[a]
prosecutor can comment on the accused’s failure to present evidence on a
particular issue if persons other than the accused or [their] spouse could have
testified for [them] on that issue.” State v. Bebb, 44 Wn. App. 803, 815, 723 P.2d
512 (1986), aff’d, 108 Wn.2d 515, 740 P.2d 829 (1987). So long as the defendant
testifies, “prosecutors are permitted to comment on a defendant’s failure to
produce corroborative evidence to support their testimony and [] such comments
do not improperly shift the burden of proof.” State v. Sundberg, 185 Wn.2d 147,
155-56, 370 P.3d 1 (2016).
Here, McCarter maintained that AM’s injuries resulted from a single fall of a
few feet onto a carpeted surface while strapped in a car seat that appeared to have
a five-point harness; he testified to his version of events and provided two
reenactments. However, McCarter’s only biometrics expert, Van Ee, who had
experience in pediatric rib fractures, was not asked to provide an opinion as to
whether such a fall could result in AM’s multiple bilateral rib fractures. Thus, even
though the prosecutor commented on McCarter’s failure to present evidence in
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support of his testimony, the comment did not improperly shift the burden of proof.
See Id.
III. Trial Court Limitation of Defense Closing Argument
McCarter avers the trial court violated his “right to present a defense” by not
allowing defense counsel to describe the reasonable doubt standard during closing
argument.
The “right to present a defense” is the “right to offer the testimony of
witnesses, and to compel their attendance, if necessary.” Washington v. Texas,
388 U.S. 14, 19, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967); see also State v.
Lizarraga, 191 Wn. App. 530, 552, 364 P.3d 810 (2015) (“The fundamental due
process right to present a defense is the right to offer testimony and compel the
attendance of a witness.”). This due process right is guaranteed by the Sixth
Amendment to the United States Constitution and article I, section 22 of our state
constitution. Washington, 388 U.S. at 19; State v. Hudlow, 99 Wn.2d 1, 14-15,
659 P.2d 514 (1983).
Separately, the Sixth Amendment ensures the right to assistance of
counsel, 10 which “includes the right of counsel to argue the case to the jury,” and
this right may be infringed upon “where a trial court unduly limits the scope of
defense counsel’s closing argument.” State v. Frost, 160 Wn.2d 765, 773, 161
P.3d 361 (2007). The complete denial of a defendant’s right to have counsel
10 The Sixth Amendment guarantees criminal defendants “the rights to a ‘speedy and public
trial,’ to an ‘impartial jury,’ to notice of the ‘nature and cause of the accusation,’ to be ‘confronted’ with opposing witnesses, to ‘compulsory process’ for defense witnesses, and to the ‘Assistance of Counsel.’” Herring v. New York, 422 U.S. 853, 856-57, 95 S. Ct. 2550, 45 L. Ed. 2d 593 (1975).
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provide any closing argument is a denial of “the assistance of counsel that the
Constitution guarantees.” Herring v. New York, 422 U.S. 853, 865, 95 S. Ct. 2550
45 L. Ed. 2d 593 (1975). While closing argument does implicate the defendant’s
due process and Sixth Amendment rights, State v. Osman, 192 Wn. App. 355,
368-69, 366 P.3d 956 (2016), closing argument is not, as McCarter asserts, “[a]
critical part of the right to present a defense.”
Rather, McCarter’s challenge is based on the alleged violation of his right
to “‘have his counsel make a proper argument on the evidence and the applicable
law in his favor.’” Herring, 422 U.S. at 860 (quoting Yopps v. State, 228 Md. 204,
207, 178 A.2d 879 (1962)). Accordingly, we review this claim as an improper
limitation on closing argument, not as a violation of the “right to present a defense.”
The State concedes that the trial court’s limitation was erroneous but contends that
it was harmless. We agree with the State.
“Rulings by a trial court restricting the scope of argument are reviewed with
a view toward determining if the trial court abused its discretion.” State v. Perez-
Cervantes, 141 Wn.2d 468, 475, 6 P.3d 1160 (2000). “A court abuses its discretion
when an ‘order is manifestly unreasonable or based on untenable grounds.’” State
v. Rafay, 167 Wn.2d 644, 655, 222 P.3d 86 (2009) (quoting Wash. State
Physicians Ins. Exch. & Ass’n v. Fisons Corp., 122 Wn.2d 299, 339, 858 P.2d 1054
(1993)). An abuse of discretion also occurs if the trial court “‘base[s] its ruling on
an erroneous view of the law.’” Id. (quoting Fisons Corp., 122 Wn.2d at 339).
“[T]he trial court should restrict the argument of counsel to the facts in evidence
and the law as set forth in the instructions to the jury.” Osman, 192 Wn. App. at
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368. However, “[w]here a trial court goes too far in limiting the scope of closing
argument, a defendant’s constitutional rights may be implicated.” Frost, 160
Wn.2d at 772.
In Osman, this court addressed the trial court’s limitation on defense closing
argument concerning the meaning of “‘beyond a reasonable doubt.’” 192 Wn. App.
at 373-74. During closing argument, Osman’s attorney explained to the jury that
“an abiding belief of the truth of the charge” meant that “you can’t change your
mind and look back and say I wonder if I made a mistake,” whether it was “[a]
month from now” or “[a] year from now.” Id. at 374. The State objected and the
trial court sustained the objection on the basis that the description of “abiding
belief” was inaccurate. Id. On review, this court determined the trial court erred
because defense counsel’s argument “properly addressed the significance of
having ‘an abiding belief in the truth of the charge’” and it was “not an improper
characterization of the reasonable doubt standard.” Id. at 377.
Here, defense counsel described the burden of proof as follows:
So again, you know, the standard being beyond a reasonable doubt, it’s there because we’re talking about the individual now. We’re not talking about the general. You’re not here to solve the mystery. You’re here to hold the State to that burden. That’s, you know, fortunate for you and for anybody that’s charged with a crime. It’s fortunate because [] McCarter can count on you to hold the State to that burden. Holding the State to that burden lets you and any other jury that serves be able to make a decision and leave and be confident in that decision ten and twenty years from now.
The State then objected and the trial court sustained the objection.
This ruling was erroneous. Similar to the attorney in Osman who properly
used a duration of time to further explain an abiding belief, McCarter’s counsel did
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the same to describe the confidence that the jury should have in its decision.
Although McCarter’s proffered timeframe was longer than was determined
reasonable in Osman, nothing in that holding restricted the duration to that which
was provided in the facts of that case. Accordingly, as duration is a proper
consideration with regard to an abiding belief and it does not mischaracterize the
State’s burden, the trial court erred in sustaining the State’s objection to this
argument by the defense.
An erroneous “limitation of the scope of closing affects the ‘trial process
itself’ and is subject to a constitutional harmless error analysis.” Osman, 192 Wn.
App. at 377 (quoting Frost, 160 Wn.2d at 781-82) (internal quotations omitted). “In
order to hold the error harmless, we must ‘conclude beyond a reasonable doubt
that the jury verdict would have been the same absent the error.’” State v. Brown,
147 Wn.2d 330, 341, 58 P.3d 889 (2002) (quoting Neder v. United States, 527
U.S. 1, 19, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999)).
To convict McCarter of murder in the second degree—felony murder—the
State had to prove he intentionally assaulted AM, an infant, and recklessly inflicted
great bodily harm, which caused AM’s death. RCW 9A.32.050(1)(b);
9A.36.120(1)(b)(i). Although the specific mechanism that caused the injuries to
AM is unknown, McCarter confirmed that he was alone with AM when the injuries
took place and Jennifer testified that AM was healthy prior to the incident. This
strong circumstantial evidence provides a sufficient basis from which the jury could
conclude McCarter was the one responsible for AM’s severe injuries.
Circumstantial evidence is just as reliable as direct evidence. State v. Delmarter,
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94 Wn.2d 634, 638, 618 P.2d 99 (1980). While only McCarter knows exactly what
took place on December 3 and he testified that an accidental fall caused the
injuries to AM, numerous doctors who treated the infant testified that the nature
and extent of those injuries contradicted McCarter’s version of events. Specifically,
the State’s expert medical testimony was that AM’s injuries could not have been
the result of a single fall as his skull was fractured on one side and injured on the
other, and that the infant suffered numerous rib fractures on both sides of his body
that could not be explained by the car seat or the fall that McCarter described.
Additionally, the jury was provided a pattern jury instruction on the State’s
burden to prove each element of the crime beyond a reasonable doubt, which was
defined therein as follows:
A reasonable doubt is one for which a reason exists and may arise from the evidence or lack of evidence. It is such a doubt as would exist in the mind of a reasonable person after fully, fairly, and carefully considering all of the evidence or lack of evidence. If, from such consideration, you have an abiding belief in the truth of the charge, you are satisfied beyond a reasonable doubt.
This court “presume[s] the jury follows the instructions of the court.” Osman, 192
Wn. App. at 379. Based on the testimony of numerous doctors who treated AM
and medical experts who reviewed the medical evidence, as well as strong
circumstantial evidence, we conclude beyond a reasonable doubt that the jury
verdict would have been the same without the error. 11
11 McCarter also seeks reversal based on the “cumulative prejudice of multiple errors.” The
cumulative error doctrine “does not apply where the errors are few and have little or no effect on the trial’s outcome.” State v. Venegas, 155 Wn. App. 507, 520, 228 P.3d 813 (2010). Because only one error occurred, which was harmless beyond a reasonable doubt, the cumulative error doctrine is inapplicable here.
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IV. Exceptional Sentence above the Standard Range
McCarter’s offender score after trial was calculated as 0, based on his lack
of prior criminal history, and his standard sentencing range was determined to be
123-220 months in prison. When the State seeks a sentence above the standard
range, it must provide notice of the “aggravating circumstances upon which the
requested sentence will be based.” RCW 9.94A.537(1). The facts supporting
aggravating circumstances must be proved beyond a reasonable doubt and the
“jury’s verdict on the aggravating factor[s] must be unanimous, and by special
interrogatory.” RCW 9.94A.537(3).
The State sought an exceptional sentence above the standard range, based
on the facts of the case and the jury’s special verdicts as to the aggravating factors
presented at trial. It asked the court to impose 440 months in prison, “twice the
top of the standard range.” Defense counsel objected and argued in its sentencing
brief that the aggravators were
already part of the underlying verdict of guilty to [s]econd [d]egree [m]urder where the predicate felony violation was [a]ssault of a [c]hild in the [f]irst [d]egree. It would be inconsistent for a jury to return a guilty verdict against a parent of a child for [a]ssault in the [f]irst [d]egree, and not find both that the child was a particularly vulnerable victim and that the [p]arent was in a position of trust.
The defense asked the court for a sentence within the standard range. After
hearing argument from the parties at sentencing, the court found that the jury had
considered each aggravating factor under the relevant statute and “unanimously
found that the circumstances [were] proved beyond a reasonable doubt.” It
concluded that there were “substantial and compelling reasons to impose an
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exceptional sentence,” but declined to impose the 440 months requested by the
State and instead sentenced McCarter to 360 months in prison.
McCarter assigns error to the exceptional sentence based on sufficiency of
the evidence and, separately, to the trial court’s conclusion that it was supported
by substantial and compelling reasons. “[A]n exceptional sentence is subject to
review only as set forth in RCW 9.94A.585(4).” State v. Stubbs, 170 Wn.2d 117,
123, 240 P.3d 143 (2010). That provision provides the following:
To reverse a sentence which is outside the standard sentence range, the reviewing court must find: (a) Either that the reasons supplied by the sentencing court are not supported by the record which was before the judge or that those reasons do not justify a sentence outside the standard sentence range for that offense; or (b) that the sentence imposed was clearly excessive or clearly too lenient.
RCW 9.94A.585(4).
A. Sufficiency of the Evidence as to Aggravating Circumstances
This court reviews the jury’s findings on aggravating circumstances under
the sufficiency of the evidence standard. Stubbs, 170 Wn.2d at 123. Accordingly,
we consider “the evidence in the light most favorable to the State to determine
whether any rational trier of fact could have found the presence of the aggravating
circumstances beyond a reasonable doubt.” State v. Chanthabouly, 164 Wn. App.
104, 143, 262 P.3d 144 (2011). “[A]ll reasonable inferences from the evidence
must be drawn in favor of the State and interpreted most strongly against the
defendant.” State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). And
“circumstantial evidence is not to be considered any less reliable than direct
evidence.” Delmarter, 94 Wn.2d at 638.
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Here, the State alleged two aggravating circumstances in the amended
information: that AM was a particularly vulnerable victim under RCW
9.94A.535(3)(b), and that McCarter used his position of trust to facilitate the
commission of the crime pursuant to RCW 9.94A.535(3)(n). The trial court
instructed the jury on each of the aggravating circumstances, that the reasonable
doubt standard applied when deciding these aspects of the case, and that the
verdict on each of the aggravating factors must be unanimous. The jury found that
the State had satisfied its burden to prove each one beyond a reasonable doubt.
McCarter contends the “evidence does not support either aggravating factor.” We
disagree.
1. Particularly Vulnerable Victim
RCW 9.94A.535(3) provides that a sentencing court may depart from the
applicable standard sentencing range where certain aggravating factors have
been considered by a jury. One such circumstance is where the jury finds that the
“defendant knew or should have known that the victim of the current offense was
particularly vulnerable or incapable of resistance.” RCW 9.94A.535(3)(b). For this
aggravating circumstance to “justify an exceptional sentence, the State must show
(1) that the defendant knew or should have known (2) of the victim’s particular
vulnerability and (3) that vulnerability must have been a substantial factor in the
commission of the crime.” State v. Suleiman, 158 Wn.2d 280, 291-92, 143 P.3d
795 (2006). Only the third prong is at issue here as McCarter concedes in briefing
that “[a]s an immobile, preverbal newborn, A.M. likely had a particular vulnerability.
And as A.M.’s father and caretaker, [] McCarter likely knew this.”
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In State v. Berube, our Supreme Court explained, “Extreme youth is a valid
aggravating factor when considering the vulnerability of a victim.” 150 Wn.2d 498,
513, 79 P.3d 1144 (2003). Berube was convicted of homicide by abuse and given
an exceptional sentence based, in part, on the aggravating factor of the victim’s
vulnerability. Id. at 512. The victim was Berube’s son, Kyle, who was only 23
months old at the time he was killed. Id. at 513. Kyle had numerous injuries and
bruising across his body, and the cause of death was “blunt force impact to the
head.” Id. at 502. In addressing the aggravating factor of victim vulnerability, the
court explained that Kyle was “less than two years old,” he was “completely
dependent on Berube and [the codefendant] for his well[-]being,” he was “unable
to communicate to any other adult about the abuse,” and he lacked the “ability to
defend himself or to call for help.” Id. at 513.
The reasoning set out in Berube applies equally here. Not only was AM,
like Kyle, the child of the defendant, but AM was 21 months younger than Kyle. As
in Berube, the evidence here shows that AM was entirely dependent on McCarter
for his care and survival on the day he was injured, and because AM could not
speak, he could not communicate to any other adult, including his mother. It goes
without saying that a two-month-old infant is unable to defend themselves,
particularly against the physical force an adult is capable of generating. When the
evidence is viewed in the light most favorable to the State, a rational trier of fact
could have found AM to be a particularly vulnerable victim based on his extreme
youth, which was a substantial factor as it enabled McCarter to inflict injuries as
severe as those identified in AM by the various medical experts. Most critically,
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the court instructed the jury on the third prong McCarter now challenges, that the
“victim’s vulnerability must also be a substantial factor in the commission of the
crime” and that it was the State’s burden to prove this fact beyond a reasonable
doubt. Where, as here, there is no evidence of the contrary, the jury is presumed
to have followed the instructions of the court. Kirkman, 159 Wn.2d at 928. Thus,
we reject McCarter’s challenge to the factual sufficiency of this aggravating factor.
2. Use of Position of Trust
RCW 9.94A.535(3)(n) defines another aggravating circumstance that can
justify the imposition of an exceptional sentence as one where “[t]he defendant
used [their] position of trust, confidence, or fiduciary responsibility to facilitate the
commission of the current offense.” To determine whether the defendant “abused
a sufficient position of trust to merit an exceptional sentence,” courts consider the
duration and the degree of the relationship. State v. Grewe, 117 Wn.2d 211, 218,
813 P.2d 1238 (1991). “‘A relationship extending over a longer period of time, or
one within the same household, would indicate a more significant trust relationship,
such that the offender’s abuse of that relationship would be a more substantial
reason for imposing an exceptional sentence.’” Id. at 219 (quoting State v. Fisher,
108 Wn.2d 419, 427, 739 P.2d 683 (1987)). The age of the victim is also
considered; children are “among the most vulnerable members of society” and
“[o]ne aspect of children’s extreme vulnerability is their tendency to trust.” Id. at
221.
In Berube, this aggravating factor was another basis for the exceptional
sentence imposed. 150 Wn.2d at 513-14. The court noted the “fact that Berube
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was Kyle’s parent and [the codefendant] was a parent-figure gave them
unmonitored access to Kyle.” Id. at 513. Under the circumstances, the court held
that “Berube and [the codefendant’s] actions amounted to an abuse of their
position of trust toward Kyle.” Id. Here, just like the circumstances in Berube,
McCarter was AM’s father and he had unmonitored access to AM. Moreover,
McCarter and AM lived in the same house together and their relationship spanned
the entirety of AM’s brief life. Again, AM was only two months old at the time of
the incident; he was extremely vulnerable to McCarter who was able to inflict these
injuries because of AM’s age. When viewed in the light most favorable to the State,
the evidence is sufficient for a reasonable juror to conclude that McCarter abused
his position of trust to facilitate this crime. Just as with the particularly vulnerable
victim aggravating factor, the record establishes that the jury was properly
instructed on the statutory elements, the burden of proof and requirement for
unanimity. Because we presume that the jury followed the court’s instructions as
to its duty with regard to this special verdict, McCarter has failed to demonstrate
error on this issue.
B. Substantial and Compelling Reasons To Impose Exceptional Sentence
McCarter’s final challenge is to the trial court’s “finding” of substantial and
compelling reasons justifying the exceptional sentence. While this aspect of the
trial court’s ruling is set out as a conclusion of law, McCarter argues that this was
an improper finding of fact by the judge that violated his constitutional right to a
jury trial. We disagree.
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“The Sixth Amendment to the United States Constitution guarantees
criminal defendants a right to trial by jury.” State v. Sage, 1 Wn. App. 2d 685, 707,
407 P.3d 359 (2017). In Apprendi v. New Jersey, the Supreme Court held, “Other
than the fact of a prior conviction, any fact that increases the penalty for a crime
beyond the prescribed statutory maximum must be submitted to a jury, and proved
beyond a reasonable doubt.” 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d
435 (2000). Thereafter, the Court clarified that “the relevant ‘statutory maximum’
is not the maximum sentence a judge may impose after finding additional facts,
but the maximum [they] may impose without any additional findings.” Blakely v.
Washington, 542 U.S. 296, 303-04, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). In
light of Apprendi and Blakely, our legislature amended the Sentencing Reform Act
of 1981 (SRA), ch. 9.94A RCW, to require a jury to find “any facts supporting
aggravating circumstances beyond a reasonable doubt and by special
interrogatory.” Stubbs, 170 Wn.2d at 123 (citing RCW 9.94A.537(3)); LAWS OF
2005, ch. 68, § 1.
Under RCW 9.94A.537(6), if the jury finds an aggravating circumstance, the
trial court may impose a sentence beyond the standard range “if it finds,
considering the purposes of this chapter, that the facts found are substantial and
compelling reasons justifying an exceptional sentence.” (Emphasis added.)
McCarter argues that this judicial determination violates the Sixth Amendment
because it allows for an increase in the sentence based on a “finding by the court.”
This court has already considered and rejected the arguments McCarter
now presents. See Sage, 1 Wn. App. 2d at 707-09. Sage explained that
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“Washington cases recognize that once the jury by special verdict makes the
factual determination whether aggravating circumstances have been proved
beyond a reasonable doubt, ‘the trial judge is left only with the legal conclusion of
whether the facts alleged and found were sufficiently substantial and compelling
to warrant an exceptional sentence.’” Id. at 708 (quoting Suleiman, 158 Wn.2d at
290-91). On this point, Sage included a lengthy footnote listing authority from our
Supreme Court in support of its holding:
“In the context of discussions about standard of review, this court has held that whether a court’s stated reasons are sufficiently substantial and compelling to support an exceptional sentence is a question of law. State v. Cardenas, 129 Wn.2d 1, 6 n.1, 914 P.2d 57 (1997); State v. Chadderton, 119 Wn.2d 390, 399, 832 P.2d 481 (1992): State v. Grewe, 117 Wn.2d 211, 215-16, 813 P.2d 1238 (1991); State v. Nordby, 106 Wn.2d 514, 518, 723 P.2d 1117 (1986). In contrast, whether an aggravating factor is present in a particular case, in other words, whether a stated reason is supported by the record, is a factual determination. Nordby, 106 Wn.2d at 517-18; see also Cardenas, 129 Wn.2d at 5 (applying a clearly erroneous standard to this question); State v. Fisher, 108 Wn.2d 419, 423, 739 P.2d 683 (1987); State v. Woody, 48 Wn. App. 772, 776, 742 P.2d 133 (1987). Thus, whether a particular aggravating factor is supported by the record is a question of fact, while the question of whether the found factors are sufficiently substantial and compelling is a matter of law.”
158 Wn. App. 2d at 708 n.80 (quoting Suleiman, 158 Wn.2d at 291 n.3).
Sage also distinguished Hurst v. Florida, 577 U.S. 92, 136 S. Ct. 616, 193
L. Ed. 2d 504 (2016), on which McCarter heavily relies for his contention that the
judge’s determination constituted a prohibited finding of fact.
In Hurst, the Supreme Court held Florida’s death penalty procedure violated the defendant’s Sixth Amendment right to a jury trial because the jury’s findings of aggravating factors were advisory, resulting in prohibited fact finding by the judge. But the Florida statute at issue expressly state[d] that the jury findings were “advisory.” Former FLA. STAT. § 921.141 (2010). By contrast, under Washington procedure here, the jury exclusively resolves the factual question
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whether the aggravating circumstances have been proven beyond a reasonable doubt.
Sage, 1 Wn. App. 2d at 710 n.86.
While McCarter acknowledges the contrary holding in Sage, he claims it
was made “without reasoning or analysis.” Sage is well reasoned and squarely on
point; the opinion walks through the various procedural steps between verdict and
sentencing and explains which involve legal determinations or factual
determinations, including the proper party to reach them. 1 Wn. App. 2d at 709-
710. Thus, we follow Sage as controlling authority and conclude that the trial judge
did not engage in prohibited fact finding when it concluded under RCW
9.94A.537(6) that the jury found the aggravating factors had been proved beyond
a reasonable doubt and that those aggravators provided the proper legal basis for
an exceptional sentence outside McCarter’s standard range.
Affirmed.
WE CONCUR:
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