FILED COURT OF APPEALS DIVISION II 2615 FEB 24 AM 9: 25
STATE OF WASHINGTON BY IN THE COURT OF APPEALS OF THE STATE OF WIA YNGTON.
DIVISION II
STATE OF WASHINGTON, No. 44337 -6 -II
Respondent,
v.
UNPUBLISHED OPINION LEANNE MICHELLE BECHTEL,
Appellant.
MAxA, J. — Leanne Bechtel appeals her conviction for second degree murder for the
death of her former boyfriend' s daughter, AF. 1 She argues that the trial court erred under the
testify. She also argues Frye2 test and ER 702 by allowing the State' s biomechanics expert to
that the trial court erred by allowing the expert to show the jury an illustrative reenactment of
Bechtel' s account of how AF' s injuries occurred and by denying her motion for a new trial on
grounds that the jury committed misconduct regarding the playback of a 911 recording admitted
into evidence.
We hold that ( 1) the expert' s testimony was based on generally accepted principles in the
relevant scientific field, and Bechtel' s challenge to his specific conclusions did not implicate the
Frye test; ( 2) the trial court did not abuse its discretion by determining that the expert' s opinion
1 AF is a minor and is referred to by her initials. 2 Frye v. United States, 293 F. 1013 ( D. C. Cir. 1923). 44337 -6 -II
was helpful to the jury under ER 702; ( 3) the trial court did not abuse its discretion by allowing
the expert' s reenactment as demonstrative evidence; and ( 4) the trial court did not abuse its
discretion by denying Bechtel' s motion for a new trial based on alleged juror misconduct.
Accordingly, we affirm Bechtel' s conviction.
FACTS
In April 2008, Bechtel lived with her boyfriend, Chris Franks, his two young children,
and a large dog. One of those children was AF, a 3- year -old girl. One morning, while Bechtel
and AF were home alone, Bechtel called 911 and reported that the dog had knocked AF off a
couch, causing AF to hit her head against the ground. Bechtel said that AF was unresponsive,
which was soon confirmed by emergency responders. AF was taken to the hospital, where
doctors found signs of brain damage, a massive skull fracture, intracranial bleeding, and severe
cerebral swelling. Bechtel repeated the story about the dog knocking AF off the couch to Franks,
doctors, a social worker, and the police. AF died as a result of her injuries.
The doctors who treated AF suspected that her injuries were not caused by accidental
contact with a dog. Even while AF was in the hospital, police were investigating the possibility
of child abuse by interviewing Bechtel and searching the apartment. Nearly three years later, the
State charged Bechtel with second degree murder on a felony murder theory stemming from
assault of a child.
Throughout the resulting trial, Bechtel maintained through her attorney that her story
about the dog knocking AF from the couch was true. Bechtel argued that her story was at least
plausible enough to give rise to reasonable doubt that she harmed AF. However, Bechtel did not
testify at trial.
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Because the State had no direct evidence that Bechtel assaulted AF, the State relied
heavily on expert testimony at trial. One of the State' s experts was biomechanics professor Dr.
Wilson Hayes, who held an opinion that AF' s injuries were caused by a tremendous impact, one
much stronger than would be expected to result from even an accelerated fall from a couch.3
Bechtel moved pretrial to exclude Hayes' testimony on grounds that it was unhelpful and
unduly prejudicial. In the alternative, Bechtel requested that the trial court hold a Frye hearing to
determine whether Hayes' methods were reliable. The trial court declined to conduct a Frye
hearing and ruled that Hayes could testify as to the biomechanics of the defense theory of events.
But the trial court excluded under ER 702 testimony on a concept Hayes called the " factor of
risk," which quantified whether a particular injury was more probable than not under certain
conditions. Report of Proceedings at 167.
At trial, Hayes testified as to whether the events Bechtel described could produce AF' s
injuries. He reconstructed the events using Bechtel' s account to police, the laws of physics, and
studies of the forces required to produce certain injuries in adult populations. He compared those
reconstructed events to AF' s documented injuries. He used slides to visually demonstrate his
analysis to the jury, and the slides included illustrations of his reconstructions. He ultimately
testified that in his opinion, Bechtel' s version of events was incompatible with AF' s documented.
injuries. On cross -examination, Bechtel attacked Hayes' analysis, focusing especially on the
potential issues with using general population data in his analysis.
3 The State also called as witnesses at trial the physicians in AF' s treating medical team, the physician who conducted AF' s autopsy, and a renowned forensic pathologist from Philadelphia. These experts also believed that AF' s injuries were inconsistent with Bechtel' s version of the incidefit.
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The defense called its own biomechanics expert, Dr. Colin Daly. Daly testified that
Hayes used formulae and tests commonly used in the field of biomechanics, but also that Hayes
erred in his application of those formulae and tests. Daly admitted that Hayes had based his
analysis on data generally accepted in the field of biomechanics. But Daly challenged the
accuracy of Hayes' analysis.
After closing arguments, the parties agreed that the jury could listen to an audio recording
of Bechtel' s 911 call during deliberations. The trial court arranged to have the recording played
in the courtroom adjacent to the jury deliberation room, but closed the courtroom to everyone
except the jurors. The door remained open between the courtroom and the jury deliberation
room during playback.
Following deliberations, the jury found Bechtel guilty as charged. After the jury
delivered its verdict, Bechtel' s counsel spoke with jurors who stated that some jurors were in the
courtroom and some were in the jury deliberation room during playback of the 911 recording.
Bechtel moved for a new trial based on her attorney' s affidavit describing what the jurors told
him. The trial court denied the motion.
Bechtel appeals her conviction and the trial court' s denial of her motion for a new trial.
ANALYSIS
A. ADMISSIBILITY OF EXPERT TESTIMONY
Bechtel concedes that Hayes was a qualified expert in the field of biomechanics.
However, she argues that the trial court erred in admitting his testimony regarding the likelihood
that AF' s injuries were caused by being knocked off the couch by the dog because ( 1) Hayes'
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opinions were not generally accepted in the scientific community, and (2) the testimony was not
helpful to the jury and therefore was inadmissible under ER 702. We reject both arguments.
1. General Principles
Expert testimony generally is admissible if (1) the witness is qualified as an expert, ( 2)
the expert relies on theories that are generally accepted in the scientific community, and ( 3) the
testimony would be helpful to the trier of fact. Johnston -Forbes v. Matsunaga, 181 Wn.2d 346,
352, 333 P. 3d 388 ( 2014). The second requirement involves application of the Frye test, and the
third requirement involves application of ER 702. See Lakey v. Puget Sound Energy, Inc., 176
Wn.2d 909, 918, 296 P. 3d 860 ( 2013).
The Frye test and ER 702 address different aspects of admissibility, but work together to
regulate expert testimony. " Frye excludes testimony based on novel scientific methodology until
a scientific consensus decides the methodology is reliable; ER 702 excludes testimony where the
expert fails to adhere to that reliable methodology." Lakey, 176 Wn.2d at 918 -19.
2. General Acceptance of Expert' s Theories
Bechtel argues that Hayes formed his opinion using methodologies not generally
accepted in the field of biomechanics. Therefore, she argues that the trial court should have
excluded his testimony based on a Frye' analysis. We disagree.
a. Application of Frye
If an expert's testimony is based on a novel scientific theory, trial courts employ the Frye
test to determine whether the testimony is admissible. Anderson v. Akzo Nobel Coatings, Inc.,
172 Wn. 2d 593, 600 -02, 260 P. 3d 857 ( 2011). Under this test, the trial court determines whether
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the theory and the underlying methodology have been generally accepted in the relevant
scientific community. Id. at 601, 603.
However, the Frye test focuses on general scientific theories, not particular opinions
based on those theories. Our Supreme Court has emphasized that " Frye does not require every
deduction drawn from generally accepted theories to be generally accepted." Anderson, 172
Wn.2d at 611. If an expert' s specific opinions are grounded in generally accepted science, Frye
is not implicated. Id. at 611 -12. " [ l]he application of accepted techniques to reach novel
conclusions does not raise Frye concerns." Lakey, 176 Wn.2d at 919.
We review de novo questions of admissibility under Frye. Anderson, 172 Wn.2d at 600.
We also review de novo a trial court' s denial of a Frye hearing, because denial of the hearing is
tantamount to a decision that the Frye test either has been satisfied or does not apply as a matter
of law. In re Det. ofBerry, 160 Wn. App. 374, 378, 248 P. 3d 592 ( 2011).
b. Opinions Based on Biomechanics
Biomechanics analysis is commonly accepted by Washington courts, and the underlying
science is not novel. See, e. g., Johnston-Forbes, 181 Wn.2d at 353; Ma' ele v. Arrington, 111
Wn. App. 557, 560 -61, 45 P. 3d 557 ( 2002). And Hayes based his analysis on biomechanics
studies and the laws of physics, all of which are generally accepted in the field of biomechanics.
Bechtel argues that even if the general biomechanical analysis Hayes used to determine
the connection between impact force and injuries is generally accepted in the scientific
community, Hayes' methodology in this case is not generally accepted as required under Frye.
Br of Appellant at 24. Specifically, Bechtel focuses on Hayes' use of adult skull force tolerance
data to render opinions regarding the effect of force on a young child' s skull. Bechtel points out
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that some biomechanics researchers have warned against drawing conclusions about pediatric
injuries from data traditionally used to assess adult injuries. She argues that major limitations
exist when comparing adult skulls to pediatric skulls and that the literature indicates that the
mechanical properties of pediatric skulls are unknown.4 Therefore, Bechtel claims that opinions
based on a biomechanical analysis involving a pediatric skull cannot be made with scientific
certainty.
However, Hayes testified that his methodology for developing his opinions was grounded
in settled biomechanics principles. Because there is insufficient data on the force tolerance of
pediatric skulls, Hayes derived his data by scaling available adult data, " accounting for
geometric and material property differences specific to cranial sutures "5 at different ages. Clerk' s Papers at 167.
In his report, Hayes cited to a biomechanics textbook that describes in detail those
geometric and property differences at the various stages of skull development and outlines the
methods used to scale the data. See Narayan Yoganandan et al., Pediatric Biomechanics, in
ACCIDENTAL INJURY: BIOMECHANICS AND PREVENTION, 564 -579 ( Alan M. Nahum & John W.
Melvin eds., 2000). Bechtel has not shown that Hayes' scaling methods departed from the
4 Bechtel similarly argues that Hayes inappropriately incorporated into his analysis data from studies that included potentially relevant design limitations. But Bechtel does not question the principles and techniques underlying those studies or their use in biomechanics analyses generally. Instead, she again claims that Hayes' use of the resulting data in this particular case was inappropriate. This argument does not implicate Frye.
5 Cranial sutures are the fibrous spaces between the plates on a child' s developing skull that ossify with age.
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methodology described in that textbook.6 Other literature Hayes cited in his report explains that
scaling is an accepted technique in the field of biomechanics. See, e. g., Michael T. Prange et al.,
Mechanical Properties and Anthropometry ofthe Human Infant Head, 48 STAPP CAR CRASH J.
1, 2 ( 2004) ( " Because of [the] paucity of pediatric data, scaling methods have been employed to
determine the head injury tolerance of the child based on adult data. "). The record does not
show that Hayes' scaling methods departed from standard practices in his field.
In effect, Bechtel' s argument is that because of the lack of data regarding the effect of
force on a child' s skull, there is a risk that Hayes' opinions were unreliable. But issues with the
adequacy of particular data are properly addressed under ER 702, not Frye. See State v.
Gregory, 158 Wn.2d 759, 829 -30, 147 P. 3d 1201 ( 2006), overruled on other grounds by State. v.
W.R., Jr., 181 Wn.2d 757, 336 P. 3d 1134( 2014). And "[ i] f the methodology is sufficiently
accepted in the scientific community at large, concerns about the possibility of error or mistakes
made in the case at hand can be argued to the factfinder." State v. Russell, 125 Wn.2d 24, 41,
882 P. 2d 747 ( 1994).
Because the methods and principles underlying Dr. Hayes' analysis were not novel, we
hold that the Frye test was inapplicable. Therefore, we affirm the trial court' s denial of Bechtel' s
motions for a Frye hearing and to exclude Hayes' expert testimony.
6 Bechtel points out that this same textbook warns that there are significant limitations to the use of age scaling and that pediatric data may be too sparse to draw firm conclusions in individual cases. But because the techniques and principles of age scaling are not novel, this argument does not implicate Frye. Instead, it relates either to admissibility under ER 702 or the weight of the evidence. 44337 -6 -II
3. Admissibility Under ER 702
Bechtel argues that Hayes' testimony was not helpful to the jury. Therefore, she argues
that the trial court should have excluded his testimony under ER 702. We disagree.
a. General Principles
ER 702 generally governs the admissibility of expert testimony. Anderson., 172 Wn.2d at
600. ER 702 provides that testimony based on " scientific, technical, or other specialized
knowledge" is admissible if the trial court determines that it "will assist the trier of fact to
understand the evidence or to determine a fact in issue." Accordingly, expert testimony usually
is admissible under ER 702 if it will be " helpful to the jury in understanding matters outside the
competence of ordinary lay persons." Anderson, 172 Wn.2d at 600.
On the other hand, "[ b] efore allowing an expert to render an opinion, the trial court must
find that there is an adequate foundation so that an opinion is not mere speculation, conjecture, or
misleading." Johnston -Forbes, 181 Wn.2d at 357.. Conclusory or speculative opinions that lack
adequate foundation will not assist the jury and must be excluded. Stedman v. Cooper, 172 Wn.
App. 9, 16, 292 P. 3d 764 ( 2012).
Trial courts have broad discretion to determine the circumstances under which expert
testimony will be allowed. Johnston -Forbes, 181 Wn.2d at 354. Accordingly, we review the
trial court' s decision whether to admit expert testimony under ER 702 for an abuse of discretion.
State v. Green, 182 Wn. App. 133, 146, 328 P. 3d 988, review denied, 337 P. 3d 325 ( 2014). As
long as helpfulness is fairly debatable, a trial court does not abuse its discretion by allowing an
expert to testify. Miller v. Likins, 109 Wn. App. 140, 147, 34 P. 3d 835 ( 2001). And even where
the helpfulness of expert testimony is doubtful, courts favor admissibility. State v. King County
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Dist. Court W. Div., 175 Wn. App. 630, 638, 307 P. 3d 765, review denied, 179 Wn.2d 1006
2013).
Determining the admissibility of expert testimony depends upon the specific facts of each
case. Johnston -Forbes, 181 Wn.2d at 354. And "[ t]he broad standard of abuse of discretion
means that courts can reasonably reach different conclusions about whether, and to what extent,
an expert' s testimony will be helpful to the jury in a particular case." Stedman, 172 Wn. App. at
18.
b. ER 702 Analysis
Bechtel challenges the helpfulness of Hayes' testimony on four general grounds: that
Hayes' opinion ( 1) was based on speculation, ( 2) misleadingly drew conclusions about
individual circumstances from generalized population data, ( 3) was based on unreliable scaling
techniques, and ( 4) commented on Bechtel' s credibility.
i. Opinion Based on Speculation
Bechtel argues that Hayes' opinions were based on approximations and assumptions
instead of established facts. According to Bechtel, Hayes' opinion was improperly speculative
because important variables, such as the dog' s running speed and the exact location at which
AF' s body came to rest on the floor, were unknown. But Hayes testified as to how he reconstructed those unknown variables from other evidence, including photographs and diagrams
of the crime scene and studies of animal movement and motor vehicle accidents. He also
explained the effects of using plausible alternative values for those variables, in effect describing
a variety of related hypothetical scenarios. For each such scenario, Hayes' ultimate opinion was
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the same — the defense' s story of the events leading to AF' s injuries was incompatible with the
causation of those injuries.
Hayes did not rely on pure speculation to produce any of the variables in his analysis. He
constructed hypothetical scenarios based on known facts, the defense theory of events, and the
results of scientific studies. We hold that Hayes' opinion was not founded on mere speculation,
and that the trial court did not abuse its discretion in determining that there was a proper factual
foundation for his testimony.
ii. Use of Generalized Population Data
Bechtel argues that some of the studies on which Hayes relied involved generalized
population data even though variability exists among individuals, and therefore that Hayes'
testimony was misleading. Courts may exclude evidence that is likely to mislead the jury, and
the trial court in this case could have excluded Hayes' testimony on these grounds without
abusing its discretion. See Stedman, 172 Wn. App. at 21. In Stedman, Division One of our court
held that a biomechanics expert' s opinion formed using generalized population data derived from
studies of differing subjects can mislead the jury, and that a trial court " may regard such an
opinion as more likely to be misleading than helpful." 172 Wn. App. at 20 -21. However, the
court in Stedman did not hold that a trial court must —or even should —regard such an opinion as
unduly misleading.
Bechtel essentially argues that we should go further than the Stedman court and find that
a trial court abuses its discretion as a matter of law by allowing expert testimony based upon
generalized population data. We decline to broaden the Stedman rule as Bechtel suggests.
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iii. Reliability of Scaling Techniques
Bechtel argues that.Hayes unreliably scaled data from experiments involving adult skulls
to render opinions regarding the effect of force on a young child' s skull, even though the
mechanical properties of the pediatric skull have not been fully studied. She claims that the
limitations inherent in the use of scaled data renders Hayes' opinions unhelpful. See Gregory,
158 Wn.2d at 830.
As with the use of generalized population data, the trial court reasonably could have
excluded Hayes' expert testimony based on the scaled data due to the limitations noted in the
scholarly literature. See Stedman, 172 Wn. App. at 21; see also, e. g., Yoganandan et al.,
Pediatric Biomechanics, at 576. Bechtel quotes a number of passages discussing the limitations
inherent to age scaling techniques. But these sorts of limitations are not so severe as to make the
resulting analysis unhelpful beyond any fair debate. In fact, the literature before us shows that
scaling adult data produces fairly accurate results. See, e. g., Prange et al., Mechanical Properties
and Anthropometry ofthe Human Infant Head, at 14. Because the helpfulness of the scaled data
was at least fairly debatable when the trial court ruled it admissible, we reject this argument.
iv. Expert Opinion on Defendant' s Credibility
Bechtel argues that Hayes' testimony should have been excluded because it improperly
addressed Bechtel' s credibility. Expert testimony that comments on the credibility of a witness
impermissibly invades the jury' s fact finding function. Green, 182 Wn. App. at 147; see also State v. Fitzgerald, 39 Wn. App. 652, 657, 694 P. 2d 1117 ( 1985) ( " It is improper for an expert to
base an opinion about an ultimate issue of fact solely on the expert' s determination of a witness' s
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veracity. "); 5B KARL B. TEGLAND, WASHINGTON PRACTICE: EVIDENCE LAW AND PRACTICE §
704. 10, at 284 -285 ( 5th ed. 2007).
The cases Bechtel cites for this argument involved witnesses actually testifying as to the
guilt of a defendant. See State v. Black, 109 Wn.2d 336, 349, 745 P. 2d 12 ( 1987); State v.
Garrison, 71 Wn.2d 312, 315, 427 P. 2d 1012 ( 1967). But Hayes testified only that the story of
events presented by the defense was incompatible with AF' s injuries. He did not comment,
directly or indirectly, on any particular witness' s credibility. Therefore, the trial court was not
obligated to exclude Hayes' testimony on that basis.
We hold that the trial court did not abuse its discretion by declining to exclude Hayes'
expert testimony under ER 702.
B. USE OF DEMONSTRATIVE EVIDENCE
Bechtel argues that the trial court abused its discretion by allowing Hayes to show the
jury an animated reenactment demonstrating the factual scenario he analyzed. She claims that
the information he used to create the reenactment was unreliable and the demonstrative evidence
was speculative, and therefore the potential prejudicial effect of the reenactment exceeded its
probative value. We disagree.
A trial court may admit demonstrative evidence as long as the experimental conditions
are substantially similar to the facts of the case and the probative value of the evidence
outweighs its prejudicial effect. State v. Hultenschmidt, 125 Wn. App. 259, 268, 102 P. 3d 192
2004). Where any differences between the facts of the case and the demonstrative evidence are
made clear at trial, a trial court may allow a witness to use that evidence. Jones v. Halvorson -
Berg, 69 Wn. App. 117, 126 -27, 847 P. 2d 945 ( 1993). Any dissimilarity ultimately goes to the
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weight of the evidence. State v. Finch, 137 Wn. 2d 792, 816, 975 P. 2d 967 ( 1999). We review
the trial court' s decision to allow demonstrative evidence under an abuse of discretion standard.
State v. Hunter, 152 Wn. App. 30, 41, 216 P. 3d 421 ( 2009).
Bechtel asserts that the information underlying Hayes' analysis may not have been
substantially similar to the facts of the case, and therefore that the demonstrative evidence was
misleading. Because Hayes' presentation illustrated the hypothetical scenario he analyzed, and
was not a reenactment of known events, it included elements not established by other evidence in
the case. But Hayes explained his inclusion of these elements and the sources and methods he
used to construct them. In context, there was little risk of confusion as to what the slides
showed. And the slides had value to the jury as it followed Hayes' highly technical testimony.
The presentation' s prejudicial effect was minimal, but its demonstrative value was high.
We hold that the trial court did not abuse its discretion by finding that the probative value
of the slides outweighed the prejudicial effect and potential to mislead the jury.
C. JUROR MISCONDUCT
Bechtel argues that the trial court abused its discretion by denying her motion for a new
trial based on juror misconduct. She argues that the trial court should have granted the motion
because the jury (1) violated RCW 4.44. 300 and ( 2) improperly emphasized the 911 call to the
exclusion of other evidence. We disagree with both arguments.
CrR 7. 5( a)( 2) allows a trial court to grant a new trial because of jury misconduct.
However, a new trial is warranted only when the defendant has been so prejudiced that only a
new trial can insure that the defendant has been fairly tried. State v. Bourgeois, 133 Wn.2d 389,
406, 945 P.2d 1120 ( 1997). We review for an abuse of discretion a trial court' s denial of a
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motion for a new trial. State v. Pete, 152 Wn.2d 546, 552, 98 P. 3d 803 ( 2004). A trial court
abuses its discretion by reaching a conclusion no reasonable judge would reach. Id. We will
reverse a trial court' s denial of a new trial motion only where the moving party clearly shows
that the trial court abused its discretion. Id.
1. Violation of RCW 4. 44. 300
Bechtel argues that the jury violated RCW 4. 44. 300 by separating during deliberations
without the court' s approval. We hold that Bechtel did not show that the jury separated.
RCW 4.44. 300 provides that:
Unless the members of a deliberating jury are allowed to separate, they must be kept together in a room provided for them, or some other convenient place under the charge of one or more officers, until they agree upon their verdict, or are discharged by the court.
If the jury separates during deliberations in a criminal case in violation of R . CW 4.44.300, the
defendant is presumptively prejudiced. State v. Smalls, 99 Wn.2d 755, 766, 665 P. 2d 384
1983). If the State cannot rebut the presumption of prejudice, the trial court must grant the
defendant a new trial. Id. at 767.
Here, during playback of the 911 recording, some of the jurors were in the courtroom and
some were in the adjacent jury deliberation room. Bechtel argues that this constituted separation
of a deliberating jury within the meaning of RCW 4. 44. 300. However, the record indicates that
the trial court essentially expanded the jury deliberation room to include the courtroom for
purposes of playing the 911 recording. Only the jurors were allowed in the courtroom and the
door between the two rooms remained open throughout the playback of the 911 recording.
Based on these facts, the trial court found that for the duration of the playback the two rooms
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were effectively a single jury deliberation room within the meaning of RCW 4.44.300. In
addition, there is no evidence the jurors deliberated in separate groups or discussed the case at all
during the playback of the recording.
We hold that the courtroom was effectively an extension of the jury deliberation room
during the playback of the 911 recording, and therefore the jury did not separate during
deliberations. Accordingly, we hold that the jury did not violate RCW 4.44. 300 and the trial
court did not abuse its discretion in denying Bechtel' s motion for a new trial on this basis.
2. Improper Emphasis
Bechtel argues that the jury committed misconduct because having only a few jurors
listen to the 911 recording allowed those jurors to improperly emphasize that recording. We
disagree.
In general, a trial court may not inquire into the mental processes of deliberating jurors,
including the weight given to any particular evidence. State v. Jackman, 113 Wn.2d 772, 777-
78, 783 P. 2d 580 ( 1989). Admitted evidence may be used by a deliberating jury as it sees fit.
State v. Elmore, 139 Wn.2d 250, 294 -95, 985 P. 2d 289 ( 1999); State v. Castellanos, 132 Wn.2d
94, 97, 935 P. 2d 1353 ( 1997).
Bechtel relies on State v. Koontz, in which our Supreme Court held that a trial court
abused its discretion by allowing a deliberating jury to view video recorded testimony without
taking precautions to ensure that the jury would not unduly emphasize the testimony.? 145
7 Bechtel seems to argue that that the jury did not follow the court' s instructions intended to minimize undue emphasis. But the record does not show that the trial court actually instructed the jurors that they had to remain in the courtroom during playback. Therefore, Bechtel cannot show that the jurors committed misconduct by failing to follow the court' s instructions. 16 44337 -6 -II
Wn.2d 650, 660, 41 P. 3d 475 ( 2002). But as the court in Koontz made clear, a jury may
emphasize admitted recordings —as opposed to recorded testimony —as it wishes. 145 .Wn.2d at
659; see also State v. Oughton, 26 Wn. App. 74, 82, 612 P. 2d 812 ( 1980) ( holding that admitted
audio recordings must be made available to the jury for review during deliberations).
Here, the 911 audio recording was admitted, so jurors were free to review it as they
deemed appropriate. As a result, the jurors who chose not to listen to the 911 recording slid not
commit misconduct, and the trial court did not abuse its discretion in denying Bechtel' s motion
for a new trial on that basis.
We affirm Bechtel' s conviction.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2. 06. 040, it is so ordered.
We concur:
LEE, J.