STATE v. WILLIAMSON (2004)

PART PUBLISHED OPINION

Thomas Williamson appeals his conviction and exceptional sentence for two counts of rape of a child, two counts of child molestation, three counts of tampering with a witness, and one count of bribing a witness.   He contends that the trial court should have granted his motion for a mistrial because of juror misconduct and should have allowed him to question the remaining jurors about the misconduct.   He also argues that the evidence was insufficient to find that he tampered with a witness. Finally, Williamson maintains that the court erred in imposing an exceptional sentence. Since our original opinion in this case, the United States Supreme Court has held that a jury must find the facts necessary to impose an exceptional sentence. Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). Because no jury found that excpetional sentence facts here, we vacate Williamson's exceptional sentence and remand for resentencing. We affirm his convictions.

FACTS

During the four years he lived with MK and her mother, Thomas Williamson forced MK to engage in sexual acts with him and others.   The conduct, which included improper touching and fellatio, started in 1998, when MK was six years old, and continued until a month before she was put into foster care in April 2001.

Sixteen-year-old DR often spent time at the Williamson residence.   He testified that from 1999 until April 2001, Williamson sexually abused both him and MK almost every weekend.   The incidents included fellatio and anal intercourse.   Williamson also masturbated while DR had fellatio with MK, and Williamson had fellatio with MK more than twelve times.

The State charged Williamson with four counts of child rape, two counts of child molestation, two counts of furnishing alcohol to a minor, four counts of witness tampering, and one count of bribing a witness.

Before the trial, Williamson met DR at a local motel.   He spoke to DR about changing his story and then drove DR to his attorney's office to recant.   Although DR did recant, he later decided to testify about the sexual conduct.

A month before trial, Williamson again met with DR and took him for a drive to Mt. Angeles.   During the drive, Williamson asked DR to recant his allegations of sexual abuse.   Williamson offered to give DR a share of his marital property after his dissolution if he would do so.   Williamson also asked DR to contact MK and tell her that her mother and father would go to jail if she did not take back her statement.   After the drive to Mt. Angeles, Williamson again drove DR to his attorney's office to recant.   After DR failed to go into the attorney's office, Williamson called DR and continued to urge him to recant.   DR never contacted MK about recanting.

Williamson denied any inappropriate contact with MK or DR. He admitted contacting DR before trial, but claimed he had asked him only to be honest.

Near the end of Williamson's trial, his attorney learned that a juror had allegedly discussed the case with co-workers and had already concluded that Williamson was guilty.   Williamson's attorney explained to the trial judge that she and her secretary were at a bar when a woman told them she had overheard one of the jurors say Williamson should be hung.   The attorney did not know the woman's name, but she gave the judge a physical description of her.

The trial judge first proposed making the juror the alternate, but when Williamson's attorney continued to object, the judge excused the juror and replaced her with an alternate.   Before excusing the juror, the judge asked her if she had talked with other jurors about the case.   The juror said she had not.   The trial court rejected Williamson's request to question other jurors about whether the juror had discussed the case, given her opinion about Williamson's guilt, or discussed any other improper matters with the other jurors.   The trial court also denied Williamson's motion for a mistrial.

The jury convicted Williamson of first degree child rape (count 1), third degree child rape (count 2), first degree child molestation (count 3), third degree child molestation (count 4), three counts of tampering with a witness (counts 10-12), and bribing a witness (count 13).   Calculating Williamson's offender score at 13, the judge imposed a 340-month exceptional sentence for the first degree child rape (MK) with shorter, concurrent sentences on the other counts.

ANALYSIS

I. Witness Tampering

Williamson argues that there was insufficient evidence that he induced a witness (MK) not to testify.   He contends that his words “contained no express threat nor any promise of reward.”   App. Br. at 19.   In addition, he maintains that insufficient evidence supports the conviction because neither he nor DR ever contacted MK.

 Evidence is sufficient to support a conviction if, viewed in the light most favorable to the prosecution, it permits any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt.   State v. Salinas, 119 Wash.2d 192, 201, 829 P.2d 1068 (1992).  “A claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom.”  Salinas, 119 Wash.2d at 201, 829 P.2d 1068 (citation omitted).   Circumstantial evidence and direct evidence are equally reliable.  State v. Delmarter, 94 Wash.2d 634, 638, 618 P.2d 99 (1980) (citing State v. Gosby, 85 Wash.2d 758, 539 P.2d 680 (1975)).

 Here, Williamson asked DR to tell MK that her “daddy and mommy are going to jail if you don't recant your statement, take it back.”   Report of Proceedings (RP) (3/26/02) at 92.   Citing State v. Rempel, 114 Wash.2d 77, 785 P.2d 1134 (1990), Williamson argues that his message to MK was a “ true statement of the legal situation, not an inducement or attempted inducement.”   App. Br. at 17.   In Rempel, the court held that the defendant's apology, a statement that it was going to ruin his life, and a request that the victim drop the charges did not amount to a request to withhold testimony or a threat or promise to induce the victim to withhold testimony.  Rempel, 114 Wash.2d at 83, 785 P.2d 1134.   But Williamson's message went beyond the message in Rempel.   He specifically asked MK to take back her statement.   And he coupled the request with an explanation of the adverse consequences to him and his wife if MK did not.   Moreover, the consequences were not true.   Williamson's wife did not risk jail if MK testified.   Accordingly, Rempel does not help Williamson.

 We also disagree with Williamson that witness tampering requires an actual contact with the witness.   Tampering is an attempt to induce the witness not to testify.  RCW 9A.72.120. The statute states:  “(1) A person is guilty of tampering with a witness if he ․ attempts to induce a witness ․ to:  (a) Testify falsely or ․ to withhold any testimony.”  RCW 9A.72.120(1)(a).

 A person violates the witness intimidation statute even if the threat is not communicated to the victim.  State v. Anderson, 111 Wash.App. 317, 44 P.3d 857 (2002).   And a person is guilty of intimidating a judge even if the threat is not communicated.  State v. Hansen, 122 Wash.2d 712, 862 P.2d 117 (1993).   The statutory language here compels the same result.

 A person tampers with a witness if he attempts to alter the witness's testimony.  “A person is guilty of an attempt to commit a crime if, with intent to commit a specific crime, he or she does any act which is a substantial step toward the commission of that crime.”  RCW 9A.28.020(1).   Williamson completed his attempt to alter MK's testimony when he asked DR to talk with MK about changing her testimony.

Viewed in the light most favorable to the State, the evidence was sufficient to convict Williamson on the charge of tampering with the witness MK.

A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder shall be filed for public record pursuant to RCW 2.06.040, it is so ordered.

II. Mistrial

Williamson argues the trial court should have granted a mistrial after learning that a juror may have publicly expressed her opinion regarding the case.

A new trial is warranted if (1) the juror's actions actually constituted misconduct and (2) the misconduct affected the verdict.  Richards v. Overlake Hosp. Med. Ctr., 59 Wash.App. 266, 271, 796 P.2d 737 (1990) (citations omitted).   A strong, affirmative showing of juror misconduct is required.   Richards, 59 Wash.App. at 271, 796 P.2d 737.   Furthermore, “a decision of whether the alleged misconduct exists, whether it is prejudicial and whether a mistrial is declared are all matters for the discretion of the trial court.”   Richards, 59 Wash.App. at 271, 796 P.2d 737.  “Unless it clearly appears the court abused its discretion, the ruling will not be disturbed.”  State v. Kerr, 14 Wash.App. 584, 591, 544 P.2d 38 (1975).   Abuse occurs when the trial court's discretion is “manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons.”  State ex rel. Carroll v. Junker, 79 Wash.2d 12, 26, 482 P.2d 775 (1971) (citing MacKay v. MacKay, 55 Wash.2d 344, 347 P.2d 1062 (1959)).   Williamson bears the burden of proving abuse of discretion.  State v. Hentz, 32 Wash.App. 186, 190, 647 P.2d 39 (1982), reversed on other grounds, 99 Wash.2d 538, 663 P.2d 476 (1983) (citing United States v. Ochs, 595 F.2d 1247 (2d Cir.1979)).

Williamson asserts that even though he presented no affidavit from the woman in the bar, the trial court assumed that the information about the alleged juror misconduct was true.   Williamson points to a discussion in chambers between the trial judge and the attorneys.   When the court said there was an allegation that “she came on the jury with the idea she already made up her mind,” the deputy prosecutor interjected, “We don't know that.”   RP (4/02/02) at 627.   The court responded, “But that is the presumption.”   RP (4/02/02) at 627.   Yet later the judge said in referring to the allegation “[y]ou don't know that and there is no indication she talked to the other jurors.”   RP (4/02/02) at 630.   And still later when the judge called the juror in, he explained the accusation and said “[w]e don't know if that's true or not.”   RP (4/02/02) at 636. Thus, considering the entire record, we disagree that the trial judge assumed the misconduct had occurred.

Williamson has the burden of proving misconduct.   Other than defense counsel's report, he presented no evidence of misconduct.   In fact, when the trial court called the juror in, she denied talking to the other jurors and tried to explain, “I haven't talked to anybody other than to say it's long.”   RP (4/02/02) at 637.   And absent any proof of misconduct, the trial court was not obligated to allow counsel to question the other jurors.  State v. Cummings, 31 Wash.App. 427, 642 P.2d 415 (1982).   The trial judge did not abuse his discretion in denying the motion for a mistrial.

III. Offender Score

Williamson argues counts 12 (witness tampering) and 13 (bribing a witness) should have been counted as one offense in his offender score.   Counts 12 and 13 both related to DR. Williamson was convicted of tampering with this witness as well as bribing him.   He argues that these crimes are the same criminal conduct because they required the same intent, were committed at the same time and place, and had the same victim.   Williamson makes the same argument about counts 11 (witness tampering MK) and 12 (witness tampering DR).

The trial court has discretion to treat two crimes as the same criminal conduct for sentencing if the crimes have the same criminal intent, are committed at the same time and place, and involve the same victim.  RCW 9.94A.589(1)(a).   We review a trial court's determination about same criminal conduct for abuse of discretion or misapplication of law.  State v. Maxfield, 125 Wash.2d 378, 402, 886 P.2d 123 (1994) (citing State v. Elliott, 114 Wash.2d 6, 17, 785 P.2d 440 (1990)).

Two crimes share the same criminal intent if the defendant's intent, viewed objectively, was the same from one crime to the next and if one crime furthered the other.  State v. Vike, 125 Wash.2d 407, 411, 885 P.2d 824 (1994) (citing State v. Dunaway, 109 Wash.2d 207, 215, 743 P.2d 1237, 749 P.2d 160 (1987)).   Even crimes with identical mental elements will not be considered same criminal conduct if they were committed for different purposes.  State v. Price, 103 Wash.App. 845, 857, 14 P.3d 841 (2000), review denied, 143 Wash.2d 1014, 22 P.3d 803 (2001) (citing State v. Haddock, 141 Wash.2d 103, 113, 3 P.3d 733 (2000)).

Citing State v. Sanders, 66 Wash.App. 878, 833 P.2d 452 (1992), Williamson argues, “[c]riminal attempts to influence a witness ․ necessarily have obstruction of justice as purpose.”   App. Br. at 21.   But the Sanders court was not considering same criminal conduct.   Rather, the court was addressing the defendant's claim that his wife should not have been allowed to testify because of the spousal privilege.  Sanders, 66 Wash.App. at 884, 833 P.2d 452.   In rejecting the argument, the court balanced the harm addressed by the witness tampering statute-obstruction of justice-against the need to preserve the privacy of marital communications.  Sanders, 66 Wash.App. at 883-84, 833 P.2d 452.   Thus, Sanders does not help Williamson.

And Williamson's objective intent was not the same in counts 11 and 12.   His statements to DR about DR's testimony were an attempt to get DR not to testify.   His statements to DR about MK's testimony were an attempt to get MK not to testify.   Thus, the first prong of the three-part test identified in RCW 9.94A.589(1)(a) is not met, and Williamson's argument that counts 11 and 12 constitute same criminal conduct fails.

Williamson's criminal conduct charged in count 12 (tampering DR) and count 13 (bribery DR) may have involved the same intent-to get DR not to testify.   But, the record does not show that the statements were made at the same time.   Williamson talked with DR during the ride up to Mt. Angeles.   The record does not show how long the ride took.   But Williamson dropped DR off near his attorney's office at the end of the trip with the understanding that DR would recant his testimony.   DR did not.   Instead, DR called his father, who took him home.   Later the same day, Williamson called DR and told him to get down to his attorney's office immediately because she was waiting for him.   Thus, the tampering discussion continued from the Mt. Angeles drive through the time DR had returned home;  the bribery discussion occurred during only part of the drive.   The trial court could have decided, without abusing its discretion, that the two crimes occurred at different times.   We conclude that the trial judge did not err in rejecting Williamson's argument that some of the crimes involved the same criminal conduct.

IV. Pro Se Statement of Additional Grounds

Williamson makes a number of pro se arguments.

A. Perjury and False Testimony

First, Williamson argues that his convictions must be set aside because DR committed perjury.   He asserts, “[a] conviction must be set aside if obtained by the knowing use of perjured testimony if there is any reasonable likely hood [sic] that the false testimony affected the outcome of the trial.”   Pro Se Stmt. of Add'l Grounds for Review (Pro Se Stmt.) at 1 (citing United States v. Polizzi, 801 F.2d 1543 (9th Cir.1986) and United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 3382, 87 L.Ed.2d 481 (1985)).   Williamson also argues that the State's negligent investigation resulted in false information and “an erroneous trial and conviction.”   Pro Se Stmt. at 4

A conviction obtained through the knowing use of perjured testimony is fundamentally unfair and must be set aside if there is a reasonable likelihood that the false testimony affected the jury's judgment.  In re Personal Restraint of Benn, 134 Wash.2d 868, 936-37, 952 P.2d 116 (1998) (citing United States v. Agurs, 427 U.S. 97, 103, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976)).

Although DR admitted that he made false statements under oath, there is no evidence that the State knowingly introduced perjured testimony.   Nor does the record support Williamson's claim that the State's negligent investigation produced false information.   And we do not consider matters outside the record on direct appeal.  State v. McFarland, 127 Wash.2d 322, 335, 899 P.2d 1251 (1995) (citations omitted).

B. Evidence Rulings

We review the trial court's evidence rulings for an abuse of discretion.   State v. Stubsjoen, 48 Wash.App. 139, 147, 738 P.2d 306 (1987).   Abuse occurs when the trial court's discretion is “manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons.”  Junker, 79 Wash.2d at 26, 482 P.2d 775 (citing MacKay, 55 Wash.2d 344, 347 P.2d 1062)).   Williamson bears the burden of proving abuse of discretion.  Hentz, 32 Wash.App. at 190, 647 P.2d 39.

Williamson contends that the trial court abused its discretion by excluding evidence of DR's credibility.   He cites to portions of the record containing a discussion about whether to allow the State to bring in evidence that Williamson had sex with another child.   The court ruled that this testimony was irrelevant.   Generally evidence of other crimes is not admissible to prove the defendant's propensity to commit the crimes charged.  ER 404(b).  The trial judge has discretion to admit such evidence for specific purposes.  ER 404(b).  But because of the harmful effect such evidence has, the trial court must balance its probative value against its prejudicial effect before admitting the evidence.  ER 403;  State v. Smith, 106 Wash.2d 772, 775-76, 725 P.2d 951 (1986).   Here, the trial judge balanced prejudice and probative value in Williamson's favor and excluded the evidence.   Williamson has not shown that the evidence was more probative on DR's credibility than harmful to Williamson's propensity to sexually abuse children.   We find no error.

Williamson also argues that the trial court violated his Sixth Amendment right to confront a witness because the State provided prejudicial evidence to the jury about an individual who was not present at trial.   Williamson points to DR's testimony that another child knew about Williamson abusing DR but that she was asleep during those incidents.

The Sixth Amendment assures the defendant the right to confront witnesses against him.   DR testified about an incident involving DR, DR's friend, and Williamson.   But DR's friend was not a witness in this case, so Williamson had no right to confront him.   DR was the only witness regarding the event in question, and Williamson had the opportunity to cross examine DR.

Williamson next argues the trial court erred by allowing the State to present testimony about claims not disclosed in discovery.   Williamson does not clearly identify the “nature and occurrence” of the alleged error as required by RAP 10.10(c).  And this matter appears to be based on evidence outside the record and thus we do not consider it.  McFarland, 127 Wash.2d at 335, 899 P.2d 1251.

Williamson contends that the trial court improperly allowed DR to testify about the use of sex toys during the sexual misconduct.   But the evidence was part of the charged sexual misconduct and was relevant;  the trial court did not abuse its discretion by admitting this evidence.

Williamson argues that the trial court improperly allowed opinion testimony regarding his guilt.   He cites to DR's testimony about reporting the abuse to CPS and the police.   He also cites to his own son's testimony, later stricken from the record, that Williamson had previous problems with alcohol and the law.

Generally, a witness may not give an opinion as to a defendant's guilt.   State v. Black, 109 Wash.2d 336, 348, 745 P.2d 12 (1987) (citing State v. Garrison, 71 Wash.2d 312, 315, 427 P.2d 1012 (1967)).   But “testimony that is not a direct comment on the defendant's guilt or on the veracity of a witness, is otherwise helpful to the jury, and is based on inferences from the evidence is not improper opinion testimony.”  City of Seattle v. Heatley, 70 Wash.App. 573, 578, 854 P.2d 658 (1993).

Here, the testimony was not a statement about Williamson's guilt and cannot be construed as improper opinion testimony.   Furthermore, counsel failed to object on these grounds at trial and thus, under ER 103, failed to preserve this issue for appeal.

Williamson next maintains that the trial court erred by allowing two child witnesses (AB and DR) to testify because they did not meet the nine Ryan test factors.  State v. Ryan, 103 Wash.2d 165, 691 P.2d 197 (1984) (identified nine factors that must be considered in admitting child hearsay).  State v. C.J., 148 Wash.2d 672, 683-84, 63 P.3d 765 (2003).   Williamson does not cite to incidents of inadmissible hearsay by DR. And the trial court did address the Ryan factors before admitting AB's out-of-court statements.

C. Prosecutorial Misconduct

Williamson argues that the trial court should have granted his motion for mistrial based on prosecutorial misconduct.   He contends the prosecutor presented inadmissible facts.   We review the trial court's ruling on a mistrial motion for an abuse of discretion.  Richards, 59 Wash.App. at 271, 796 P.2d 737;  Kerr, 14 Wash.App. at 591, 544 P.2d 38.

The prosecutor asked a witness where “the rest” of the pornographic videos found in the house had come from since she testified she knew of only four videos.   RP (4/01/02) at 602.   Defense counsel objected.

Both the prosecutor and the trial court were apparently confused about whether the witness was living in the house when a box of videos was found.   The trial court excused the jury and attempted to clarify the matter.   It instructed the State to clear up the misunderstanding, which the State did after the jury returned.   The record does not support Williamson's claim that the prosecutor intentionally brought up inadmissible facts.

Williamson argues that the prosecutor violated RPC 3.3(a)(4), which prohibits an attorney from offering testimony he knows to be false.   Williamson does not explain how or when the prosecutor violated this rule.   Because we are not obligated to search the record in support of an appellant's claim, we do not address this issue.

D. Judicial Misconduct

Williamson contends that the trial court “abused its discretion by providing the [S]tate with its argument, words, and legal content.” Pro Se Stmt. at 4. He cites to the trial court's ruling limiting the State's evidence about Williamson's use of sex toys with his victims.   The trial court did not give the State its argument.   Rather, it instructed the State regarding what evidence would be allowed.   The trial court has discretion to determine what evidence is admissible.  Stubsjoen, 48 Wash.App. at 147, 738 P.2d 306 (citing State v. Laureano, 101 Wash.2d 745, 764, 682 P.2d 889 (1984)).

E. Sentencing-Same Criminal Conduct-Exceptional Sentence

Williamson argues that counts 1 and 3, and counts 2 and 4, were the same criminal conduct.   Count 1 was for first degree child rape (MK).  Count 3 was for first degree child molestation (MK).  Count 2 was for third degree child rape of a child (DR).  And count 4 was for third degree child molestation (DR).

As noted earlier, same criminal conduct is when two or more crimes involve the same criminal intent, are committed at the same time and place, and involve the same victim.  RCW 9.94A.589(1)(a).   Because Williamson repeatedly molested and raped both DR and MK over a period of years, the crimes were not the same criminal conduct.

Williamson argues that the trial court erred by imposing an exceptional sentence.   The trial court imposed an exceptional sentence after finding “that the defendant engaged in an ongoing pattern of sexual abuse; that there were multiple instances of sexual abuse of children; that there were multiple victims; and that the defendant violated a position of trust when committing these crimes.” CP at 10, 20. At the time of sentencing, the trial court was authorized to make findings in support of an exceptional sentence. RCW 9.94A.120(2), recodified as RCW 9.94A.535 (2001). But since then and since our original opinion affirming the trial court's exceptional sentence, the United States Supreme Court has held that a defendant is entitled to have a jury hear and find beyond a reasonable doubt any fact, other than criminal history, that increases the defendant's sentence beyond that allowed by the jury's verdict. Blakely v. Washington, 542 U.S. 296, 301, 124 S.Ct. 2531, 159 L.Ed. 2d 403 (2004). And our court has held that Blakely violations can never be harmless error. State v. Hughes, 154 Wn.2d 118, 148, 110 P.3d 192 (2005). Accordingtly, we vacate Williamson's exceptional sentence and remand to the trial court for sentencing consistent with Blakely and Hughes.

F. Sufficiency of the Evidence

Williamson argues that the evidence was insufficient to support count 12, which charges tampering with DR.

Evidence is sufficient to support a conviction if, viewed in the light most favorable to the prosecution, it permits any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt.  Salinas, 119 Wash.2d at 201, 829 P.2d 1068.  “A claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom.”  Salinas, 119 Wash.2d at 201, 829 P.2d 1068 (citations omitted).   Furthermore, credibility determinations are for the trier of fact and are not subject to review.  State v. Camarillo, 115 Wash.2d 60, 71, 794 P.2d 850 (1990).   We defer to the jury on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence.  State v. Walton, 64 Wash.App. 410, 415-16, 824 P.2d 533 (1992).

Williamson appears to refer to the prosecutor's comment that he had concerns about the sufficiency of the evidence and defense counsel's response that she intended to wait until the end of the case to discuss “those.”   RP (4/01/02) at 444.   The State presented evidence that Williamson asked DR to recant his testimony and then took DR to his attorney's office to recant.   Viewed most favorably to the State, this evidence was sufficient to convict for count 12.

Williamson also argues that the court erred by allowing the jury to convict on charges related to DR due to his recantation.   He asserts that no rational trier of fact could have found that the elements of the crimes were met.   Williamson cites to appendix A of his pro se statement of additional grounds, which is a motion and order of dismissal in State v. Cooper.   Cooper was a related case that the State dismissed after DR disavowed and then recanted his recantation;  because of this, the State believed successful prosecution was unlikely.   But the State's decision in the Cooper case does not compel a dismissal here.   The jury was aware of DR's changes in his story and chose to believe his testimony incriminating Williamson.   We will not interfere with this credibility decision.

G. Case Complexity

Williamson argues, “[t]he massive amount of multiplicious charges and complex quantity of evidence made it impossible for the jury to effectively separate evidence as it related to the defendant when determining innocence or guilt.”   Pro Se Stmt. at 9.

Although a trial court may be better equipped to deal with a case involving multiple charges, a party is still entitled to a jury trial.  Watkins v. Siler Logging Co., 9 Wash.2d 703, 712, 116 P.2d 315 (1941) (citations omitted).   The State charged Williamson with 13 counts, including child rape, child molesting, witness tampering, and bribing a witness.   The trial did not involve complex or technical facts or testimony that the jury could not understand.   Furthermore, Williamson did not waive his right to be tried by a jury;  he cannot now complain about the jury's decision.  Walton, 64 Wash.App. at 415-16, 824 P.2d 533.

H. Cumulative Error

Finally, Williamson argues cumulative error.   A defendant may be entitled to a new trial when errors cumulatively produced at trial were fundamentally unfair.  In re Personal Restraint of Lord, 123 Wash.2d 296, 332, 868 P.2d 835, clarified by, 123 Wash.2d 737, 870 P.2d 964 (1994) (citing Walker v. Engle, 703 F.2d 959, 963 (6th Cir.1983)).   The defendant bears the burden of proving an accumulation of error of sufficient magnitude that retrial is necessary.  Lord, 123 Wash.2d at 332, 868 P.2d 835.   Williamson has not.

We vacate Williamson's exceptional sentence and remand for resentencing. We affirm Williamson's convictions.

ARMSTRONG, J.