STATE v. KING (2006)

 ¶ 1 A jury convicted Jeremy King of one count of first degree child molestation and one count of first degree child rape.   During the trial, King moved for a mistrial after a Child Protective Services (CPS) investigator referred to his status as a registered sex offender in  violation of the trial court's order in limine excluding all references to King's prior sexual offenses.   The trial court denied King's motion and later denied his post-trial motion for a new trial.   King appeals.   Although the improper remark was a serious irregularity, the evidence against King-including the victim's consistent, detailed disclosures and the physical evidence of penetration-was strong.   We cannot say that the trial court abused its discretion in failing to grant King a new trial.   Further, because the witnesses who interviewed the child did not explicitly say they believed his testimony, any error in allowing their testimony was not manifest and we will not consider the issue for the first time on appeal.   We affirm.

FACTS

¶ 2 In late April and early May of 2003, nine-year-old D.S., his parents and his two sisters lived in Noel Sterling's Edmonds home along with several other people.   Drug use at the house, including by D.S.'s parents, was rampant.   It is disputed whether 23-year-old Jeremy King resided at or simply frequented the house.   On Friday, April 25, 2003, D.S. was in a minor motorcycle accident while riding with Sterling.   On Thursday, May 1, King was arrested at the house for failing to register as a sex offender.   On May 23, D.S. told his teacher and a school counselor that Sterling had shot a gun in the house, and the school alerted the police and Child Protective Services (CPS).  Police found drugs, drug paraphernalia, and pornography at the house.   CPS removed D.S. and his sisters and later that day placed them with their grandmother, Margaret Seward.

¶ 3 That same evening, D.S. allegedly told Seward that he had been hurt and touched inappropriately.   He did not give details but identified the perpetrator, although Seward was confused about who it was.   Seward called CPS, and on May 30 CPS investigator Kara Rozeboom went to Seward's home and interviewed D.S. alone in a bedroom.   D.S. told her that “Jeremy” (King) was arrested for “molesting” him.    He described how he and King rode bikes to the skate park, and after playing tag, King started to touch him all over.   King took off D.S.'s pants, stuck his finger and penis into D.S.'s anus, and also touched D.S.'s penis.

¶ 4 On July 3, 2003, Detective Michael Richardson interviewed D.S., who told him that King had molested him a couple months earlier off a trail in the woods at the skate park.   King had touched his crotch and buttocks areas.   Both of their clothes were off, and he told King to stop, but King told him that if he told anyone the State would take him away.   D.S. said King's penis was long and hard, he put it in his “butt” about five times, and it hurt a little.   It felt like King was peeing in his butt, and it was wet and sticky.   When King heard someone on the trail, they got dressed, walked back to the skate park, and went back to Sterling's house.   D.S. said this happened a day or two before King was arrested, and they never went back to the skate park again.   During the drive home after the interview, D.S. told his grandmother that King took him to the woods at the skate park and pushed him onto the ground and held him down.   King then put his penis in D.S.'s “rearend,” and there was sticky stuff all over that was hard to clean off.

¶ 5 On July 25, 2003, nurse practitioner Barbara Haner interviewed D.S. at the Providence Everett Sexual Assault Center.   Haner asked D.S. if he knew why he needed a checkup, and he told her it was “because of Jeremy.”   Using a doll, he showed her how King put his penis in his “butt,” and he said white sticky stuff came out of King's penis.   King told him not to tell anyone.   D.S. said it happened just that one time.   D.S. also said there were a lot of drugs in his house and that the drugs were made next door or at his house.   Haner then asked him if he wanted to tell her anything else, and he said, “if they say my dad did stuff, it's not true, they just heard me say stuff, I said my dad by mistake.”   Nurse Gretchen Weiss-Elliot then performed D.S.'s physical examination and discovered anal fissures and engorged blood vessels around his anus, both of which could result from a history of constipation, prolonged bearing down, or anal penetration.

 ¶ 6 Detective Richardson conducted a follow-up interview on September 17, 2003.   Because D.S. did not want to talk, Richardson asked several leading and suggestive questions about things D.S. had said during their first interview.   Eventually D.S. confirmed most of his statements from the first interview, although he said King never told him that the State would take him away if he said anything.   D.S. said it happened just that one time, about a week after the motorcycle accident.

¶ 7 On February 12, 2004, defense investigator Todd Dawson interviewed D.S., who told Dawson he had gone to the skate park several times with King and that the incident had happened during the afternoon and not on a school day.   He could not remember exactly what day it was, but it was not the day of the motorcycle accident.   He did not see King's penis because he was turned around.   King had him get on his hands and knees and then put his penis in his “butt hole.” ¹  It hurt, and King told him to shut up or he would hit him.   After they left the park, he got ice cream with King. He said he never told his grandmother what happened.   Dawson checked with D.S.'s school and learned that D.S. was present in class on Monday, April 28, through Thursday, May 1. The previous week he was absent every day except Thursday, April 24.

¶ 8 Police learned from the defense interview that D.S. said King raped him in two different places off the trail.   On March 25, 2004, the police took D.S. to the skate park and he showed them the two places where the rape occurred.   The State charged King with one count of first degree child molestation and one count of first degree child rape, occurring on or about April 25, 2003 to May 1, 2003.   Before trial, King moved to exclude all references to his being a sex offender or a registered sex offender.   The trial court granted the motion, stating that the prosecutor “should do everything she can to make sure the witnesses [do not] inadvertently mention the defendant's prior record.” ²

¶ 9 At trial, D.S. testified that he and King would ride their bikes to the skate park and play basketball.   One day they took a trail into the woods, and King took his clothes off and then made D.S. take his clothes off.   D.S. was sitting down when King touched his penis, and King then had him get on his hands and knees with King behind him.   D.S. could not see what was happening, but he felt King's penis touch his “butt” and it hurt.   King moved it in and out until he heard people approaching, at which point they moved to a different spot off the trail and King put his penis in D.S.'s butt again.   Sticky white stuff came out of King's penis.   D.S. could not remember King saying anything to him while King was behind him.   That was the only time it happened, and afterwards they went back to Sterling's house.   D.S. did not tell anyone about it when they got back because King was there.   D.S. did not see King again after he was arrested on May 1.

¶ 10 D.S. said the incident happened after the day of the motorcycle accident (April 25), and he first told his mother about it a few days afterwards.   The second person he told was his grandmother after he went to stay with her.   No one other than King had ever done anything like that to him.   On cross-examination, D.S. said he went to the park three times with King. He agreed that he told Dawson that the incident happened in the afternoon and did not happen on a school day.   King did not tell him to shut up, and they did not stop for ice cream on the way home.   He did not see King get arrested on May 1, but someone told him about it.   He said that he never told Rozeboom about what happened.   D.S. said he heard the word “molest” from television and also overheard his mom and grandmother use that word twice in conversation, once at the grandmother's house and once at Sterling's house.

 ¶ 11 D.S.'s mother, Kristina Grant, testified that on May 4, 2003, D.S. told her that someone had touched him inappropriately.³  Grant did not report this to CPS and later lied about it to police, fearing that her failure to disclose would look bad to CPS. She also said that after she heard King had been in a fight in front of D.S. on April 25, 2003-the same day D.S. was later in the motorcycle accident with Sterling-she did not trust King anymore and did not allow D.S. to go to the skate park with him.

¶ 12 Seward, Rozeboom, Detective Richardson, Haner, and Dawson all testified about what D.S. told them.   Weiss-Elliot said that an anal injury may or may not be evident three months after the incident, and that D.S.'s conditions were consistent with being penetrated.   On cross-examination, Weiss-Elliot agreed that things other than anal penetration could have caused D.S.'s condition.   During Rozeboom's testimony, the prosecutor asked why she had gone to see D.S. on May 30, 2003:

Q: And as far as [D.S.] is concerned, what was the reason you were called out to see [D.S.] that day [May 30, 2003]?

A: Because the grandmother, Margaret Seward, had told me on the phone on May 28-

Q: I don't need to know-I'm sorry, I should make my questions more clear.   I don't need to know everything Margaret told you.   I just need to know what was the concern that brought you out there?

A: That [D.S.] had been molested by a known registered sex offender named Jeremy King.

MR. MCCARDLE [defense counsel]:  Objection, nonresponsive.   Move to strike.

THE COURT:  All right.   Well, ladies and gentlemen, she just said a known registered sex offender.   She has no knowledge of that.   That's something that we've discussed pre-trial.   You're to disregard that label and put  no weight on her testimony whatsoever on that issue.   All right.   Let's get back on track please.

Q (By Ms. Kristof [prosecutor] ):  Did you go out to talk to [D.S.] because you were concerned he had been molested?

A: Yes.

¶ 13 Shortly thereafter, King moved for a mistrial because Rozeboom's testimony violated the court's order in limine and “the words ‘registered sex offender’ [had] been linked inextricably with Jeremy King in the jury's mind.”   The trial court agreed that “suggesting that Mr. King has a prior sex offense in his history is extremely prejudicial during a trial for a sex offense,” but ultimately denied King's motion without further instructions to the jury.⁴

¶ 14 Andrea Mueller testified that she was with King on Sunday, April 27, 2003, from around noon or 1 p.m. until about 8 or 9 p.m. They drove from Edmonds to North Bend and Snoqualmie Falls, had dinner in North Bend, spent some time at her place in Everett, and then she dropped him off in Edmonds.   Jamie Swenson, King's ex-girlfriend, testified that she saw a movie with D.S. and several others the afternoon of April 26, 2003.   She saw King and D.S. together in the skate park on numerous occasions in the two weeks leading up to April 25, 2003, but did not see them after that.   King did not testify.

¶ 15 The jury convicted King on both counts, and he moved for a new trial based on Rozeboom's remark.   The court held a hearing and analyzed the facts under the three-part State v. Escalona⁵ test.   It ruled that although Rozeboom's statement was a serious irregularity, it did not warrant a new trial.   The court sentenced King to 198 months of incarceration for the molestation count and 300 months of incarceration for the rape count, to be served concurrently.

DISCUSSION

I. Opinion Testimony

 ¶ 16 King argues for the first time on appeal that Detective Richardson, Rozeboom, and Haner vouched for D.S.'s credibility.   Experts may not state an opinion about a victim's credibility because such “testimony invades the province of the jury to weigh the evidence and decide the credibility of witnesses.” ⁶  We have previously held that where a witness does not explicitly state his or her belief in the victim's story, the testimony does not constitute manifest constitutional error.⁷  But King relies on State v. Kirkman,⁸ Division Two's recent split decision allowing the defendant to raise the issue for the first time on appeal even though a detective never affirmatively stated his belief in the child victim's allegations.   We must decide whether to follow our own precedent and Judge Quinn-Brintnall's dissent in Kirkman or the majority opinion in Kirkman.

¶ 17 In State v. Madison,⁹ Madison did not object at trial to CPS caseworker Schuller-Roth's testimony that the alleged victim's masturbation was “ ‘typical of a sex abuse victim’;  that when [the victim] spoke to her ‘it was obvious she was very relieved, very comfortable that she was not needing to maintain the secret’, and that [the victim] waited to make her accusations because ‘she was very clearly aware of the impact her disclosure would have on the many people whom she loved’.” ¹⁰  Madison argued the issue could be raised for the first time on appeal because the testimony equaled a statement of belief in the victim's story.   Although the statements would properly have been subject to an objection or motion to strike, we held that allowing  Schuller-Roth's testimony was not manifest constitutional error because she “neither asserted that Madison was guilty nor explicitly asserted that she believed [the victim's] story.” ¹¹

¶ 18 In State v. Jones,¹² the victim told CPS caseworker Mitchell that Jones had sexually abused her.   Jones did not object at trial to Mitchell's testimony that the victim said to her, “ ‘Believe me, believe me, I am telling you that this happened,’ ” and that she replied, “ ‘I believe you.’ ” ¹³ We held that Mitchell's statement, taken in the context of the surrounding testimony, was intended to reassure the child to encourage her to respond and it was not a statement to the jury that Mitchell believed her.   We noted that even if the remark were the proper subject of an objection, this issue could not be raised for the first time on appeal unless it was manifest constitutional error. Citing Madison, we held that Jones could not raise the issue because “Mitchell did not expressly state to the jury that she believed [the victim]․” ¹⁴

¶ 19 In Kirkman, Detective Kerr testified that he gave the victim a competency test to determine if she could distinguish between truth and lies.   The State asked him if the victim understood the importance of telling the truth and whether she could distinguish between the truth and a lie.¹⁵  He responded that she could, and she promised to tell him the truth.   Division Two held that even though Kerr did not offer his direct opinion on the victim's credibility, by telling the jury that he tested her competency and truthfulness, he essentially told the jury that the victim told the truth when she gave her account of events to him.¹⁶

¶ 20 In her dissent in Kirkman, Judge Quinn-Brintnall argued that the majority incorrectly considered the issue for the first time on appeal because Kerr's testimony

expressed his personal belief that he performed a competency evaluation, determined that [the victim] was capable of distinguishing between the truth and a lie, and obtained a promise from her that she would tell the truth.   But he never gave an opinion on [the victim's] credibility or expressed his belief in the truth of her account.

․ The testimony does not usurp the jury's authority any more than, for example, the trial court's determination of a child victim's competency or the process of having the child take an oath and promise to tell the truth, which occur in the jury's presence․ [17]

¶ 21 Here, Detective Richardson's and Rozeboom's testimony is similar to Kerr's testimony in Kirkman.¹⁸  Richardson testified about his child-interview training, and how he begins every interview by establishing ground rules to ensure the child knows the difference between a truth and a lie and that they know they are only supposed to tell him the truth.   The State asked Richardson if he was satisfied that D.S. understood the ground rules for the interview, and Richardson said yes.   After establishing the ground rules, Richardson began the interview by asking D.S. basic questions to show “his competency, that he understands the questions asked and that he's being truthful by his responses he's giving․” ¹⁹

 ¶ 22 Rozeboom described similar child-interview training and said she would make sure a child agreed to tell her the truth during an interview.   The State asked her if she was satisfied that D.S. knew the difference between a truth and a lie, and if D.S. agreed to tell her the truth.   She answered yes in both regards.

¶ 23 We continue to adhere to Madison and Jones and agree with Judge Quinn-Brintnall's dissent in Kirkman.   Richardson and Rozeboom told the jury they believed D.S. could distinguish a truth from a lie and that he had conveyed to them that he would tell the truth.   This did not infringe on the jury's role as the ultimate judge of D.S.'s credibility.   Even if D.S. told Richardson and Rozeboom that he would tell the truth, it was left to the jury to decide if he actually did so.   Applying Judge Quinn-Brintnall's reasoning, D.S.'s agreeing to tell Richardson and Rozeboom the truth was no different from his swearing an oath in open court to tell the truth.   Richardson and Rozeboom did not explicitly state to the jury that they believed D.S.'s account.   There is no error, and even if there were, it is not manifest and may not be raised for the first time on appeal.

¶ 24 The remainder of this opinion has no precedential value.   Therefore, it will not be published but has been filed for public record.   See RCW 2.06.040; CAR 14.

II. Trial Irregularity

¶ 25 King argues that the trial court erred by denying his motions for a mistrial and a new trial based on Rozeboom's improper statement.   The State argues that it was within the trial court's discretion to deny the motions.   To determine whether a trial irregularity warrants a new trial, a court considers three factors:  “(1) the seriousness of the irregularity, (2) whether the statement in question was cumulative of other evidence properly admitted, and (3) whether the irregularity could be cured by an instruction to disregard the remark, an instruction which the jury is presumed to follow.” 20  Ultimately, the court must decide whether the remark, when viewed against the backdrop of all the evidence, so prejudiced the jury that there is a substantial likelihood the defendant did not receive a fair trial.21  The trial court has wide discretion to cure trial irregularities,22 and an appellate court reviews the trial court's decision whether or not to grant a mistrial for an abuse of discretion.23  The trial court is best suited to judge how much prejudice a statement causes,24 and it should grant a mistrial “only when the defendant has been so prejudiced that nothing short of a new trial can insure that the defendant will be tried fairly.” 25

¶ 26 In State v. Escalona, the State charged Escalona with assault while armed with a knife.   The trial court granted Escalona's motion in limine to exclude any reference to his prior conviction for the exact same crime.   At trial, the alleged victim, Vela, testified that he was nervous because Escalona “ ‘already has a record and had stabbed someone.’ ” 26 Escalona objected and the court ordered the statement stricken, but it denied Escalona's motion for a mistrial.   The court instructed the jury to disregard Vela's remark.

¶ 27 We reversed after setting forth and applying the three-step test for determining whether a trial irregularity may have influenced the jury. 27  We held that Vela's remark was extremely serious, particularly considering the lack of credible evidence against Escalona.28  Vela's testimony contained many inconsistencies and was essentially the State's entire case.   The only other witness to the crime was Escalona, whose testimony was not substantially impeached.   Vela's statement was not cumulative of other evidence as it was the only reference to the prior crime.   The court further held that

There is no question that the evidence of Escalona's prior conviction for having stabbed someone was inherently prejudicial.   The information imparted by the statement was also of a nature likely to impress itself upon the minds of the jurors since Escalona's prior conduct, although not legally relevant, appears to be logically relevant.   As such, despite the court's admonition, it would be extremely difficult, if not impossible, in this close case for the jury to ignore this seemingly relevant fact.   Furthermore, the jury undoubtedly would use it for its most improper purpose, that is, to conclude that Escalona acted on this occasion in conformity with the assaultive character he demonstrated in the past.[29]

A. Seriousness of the Irregularity

¶ 28 Rozeboom's statement was a serious irregularity.30  It violated the order in limine excluding evidence of King's prior sexual offenses. 31  Referring to King as a “known registered sex offender” indicates to the jury that King committed prior sexual offenses and would likely have led the jury to infer that King had the propensity to commit the charged crimes. 32  The prejudice potential of prior acts is at its highest in sex cases,33 and here this is exacerbated because Rozeboom was a CPS investigator, someone whom the jury might reasonably presume would know whether King was a registered sex offender.

¶ 29 The State argues that the seriousness is mitigated because the statement was not about a specific prior crime, and Rozeboom was simply relaying Seward's concerns rather than stating something as fact.   But hearing that someone is a registered sex offender indicates that they have committed at least one prior sexual offense;  that the statement did not identify a specific crime does not make a significant difference in the seriousness of the error.   Nor was it clear that Rozeboom was simply passing along information that she heard from Seward.   The prosecutor interrupted Rozeboom's original answer about why she was called out to see D.S., an answer that was going to consist of what Seward told her.   Instead, the prosecutor told her “I don't need to know everything [Seward] told you.   I just need to know what was the concern that brought you out there?”   Rozeboom answered in response to the immediately preceding “concern” question:  “That [D.S.] had been molested by a known registered sex offender named Jeremy King.” We conclude that King has established the first prong of the Escalona test.

¶ 30 Next we must consider the strength of the State's case. The State's case against King was much stronger than the case against Escalona. 34  Unlike many children, D.S. gave consistent, detailed accounts of the abuse to five different people on six separate occasions, and his trial testimony was generally consistent with his previous accounts.   His sexual knowledge was precocious considering his detailed description of the semen. 35  The physical exam revealed anal abnormalities consistent with penetration, even if it did not conclusively rule out other possible causes.   Further, no one contradicted D.S.'s account of the abuse, including King who, unlike Escalona, did not testify on his own behalf.

¶ 31 Evidence favorable to King included that D.S.'s mother knew about the abuse well before it was reported, that D.S. had learned the term “molest” from other adults, including his father, who told D.S. that King was a “molester,” and that the State could not pin down which day the incident happened.   Although King had an alibi for only a small portion of the charging period, D.S. stated that the abuse occurred after the motorcycle accident but not on a school day, making the alibi stronger.

¶ 32 Ultimately, as often happens in child sexual abuse cases, this case turned on whether the jury found D.S.'s account credible.   Even without Rozeboom's improper statement, there was substantial evidence from which a jury could reasonably conclude that D.S. had been sexually abused.   The strong evidence helps to mitigate the seriousness of the irregularity.

B. Cumulative of Other Evidence

¶ 33 King argues that Rozeboom's statement was not cumulative of other properly admitted evidence because the evidence that D.S.'s father told him King was a child molester did not mean King had committed previous sex offenses.   Rather, it indicated that D.S. may have been improperly influenced.   The State argues that defense counsel elicited evidence showing that King was previously arrested for something sex-related.

¶ 34 King's primary defense theory was that others, including D.S.'s parents, had influenced D.S. to falsely accuse King. In order to pursue this defense, counsel elicited testimony from several witnesses about D.S.'s father saying King was a child molester.   Defense counsel asked D.S. if he told Detective Richardson that he knew King was a “child molester,” and that he knew this because his dad told him so.   D.S. answered that he was not sure if he told the detective he knew King was a molester, but he did not remember telling the detective that his dad told him King was a molester.   Rozeboom later testified that D.S. told her that King was arrested for “molesting him.”   Detective Richardson then testified that during his first interview with D.S., D.S. stated that “Jeremy [King] is a child molester.”   D.S. said he knew this because King had molested him.   During cross-examination, defense counsel elicited that during Richardson's second interview, D.S. told him that King was arrested because “he's a child molester,” and that he knew King was a child molester “because my dad told me.”

¶ 35 The trial court found that Rozeboom's improper statement was cumulative of other evidence, and that King was

elevating [Rozeboom's statement] to something much more than it really was.   It wasn't CPS certifying to the jury that this man is a known registered sex offender.   Instead, it was a social worker passing along quadruple hearsay and explaining why she was called out to the grandmother's home.

Now, is that really any more weighty and damaging than the statement that you voluntarily put before the jury when the jury heard that [D.S.]'s dad told [D.S.] that the defendant was a child molester?

¶ 36 We assume the jury did not give as much weight to D.S.'s testimony and his statements to others about King's offender status as it did the remark a CPS investigator made.   Jurors are more likely to credit an adult professional than a child's version of a remark his father made.   But D.S.'s remark was properly admitted evidence from which a reasonable juror could conclude that King had committed a prior sex offense.   The jury knew King had been arrested, and D.S.'s remark allowed them to consider that his arrest was for a sex offense.   As the trial court said, “the defense knowing that a prejudicial bell had already been rung, voluntarily rang that bell again when it cross-examined Detective Richardson, thereby re-emphasizing the prejudice.”   This is an accurate conclusion.   D.S.'s remark, which the defense elicited from D.S., Richardson and Rozeboom, allowed the jury to reach the same conclusion as Rozeboom's remark did:  King had previously been arrested for a sex offense.

C. Instruction to Disregard

¶ 37 Next we must determine whether the irregularity could be cured by an instruction.   We presume that a jury follows the court's instructions to disregard testimony.36  We also said in Escalona that “no instruction can ‘remove the prejudicial impression created [by evidence that] is inherently prejudicial and of such a nature as to likely impress itself upon the minds of the jurors.’ ” 37

¶ 38 As the trial court noted, Rozeboom's statement was inherently prejudicial and likely to impress itself upon the minds of the jurors.   As in Escalona, although the information imparted by the statement was not “ ‘legally relevant,’ ” it can be seen as “ ‘logically relevant’ ” because King was charged with a sex offense.38  The court could not tell the jury that King was not a registered sex offender.   It could only tell them to ignore Rozeboom's statement.   But for the cumulative nature of the testimony, we would have to conclude that the instruction likely did not cure the prejudice.   However, one remark in the context of a long trial, which the jurors were instructed to ignore, is not enough to tip the balance in favor of a new trial. 39

D. Overall Evaluation

¶ 39 Our ultimate consideration is whether Rozeboom's improper statement, viewed in light of all the evidence, was so prejudicial that King was denied his right to a fair trial.40  The State argues that King received a fair trial despite the serious irregularity because any prejudice was harmless given the strength of the evidence.   The trial court found that the evidence against King was strong enough to convict him “even without the seriously irregular remark that Kara Rozeboom put in the record.”   We agree.

¶ 40 The results of the physical exam and D.S.'s ability to accurately describe the semen lead to the reasonable conclusion that he was sexually abused.   The jury needed only to believe D.S.'s consistent claims that King was the perpetrator.   Unlike Escalona, the State's case was strong and King did not testify or present a persuasive alternative explanation for what happened or who else may have been the perpetrator.   Given our highly deferential standard of review, we cannot say that Rozeboom's improper statement, when viewed in light of the other testimony that King was a molester and the strong evidence against him, was so prejudicial as to deny him the right to a fair trial.   The trial court did not abuse its discretion when it denied King's motions for a mistrial and new trial.

III. Comment on the Evidence

¶ 41 King argues that the trial court commented on the evidence by remarking, during its instruction to disregard Rozeboom's statement, that “[s]he has no knowledge of that.   That's something that we've discussed pre-trial.”  41  The State argues that King cannot raise this issue for the first time on appeal because the court's comment was not a manifest constitutional error.

¶ 42 An appellate court will not review an error raised for the first time on appeal unless it is a manifest error affecting a constitutional right. 42  The alleged error affects a constitutional right, as the Washington Constitution, article IV, section 16, prohibits the court from commenting on the evidence.   An error is manifest if the defendant can show “that the asserted error had practical and identifiable consequences in the trial of the case.” 43  “In normal usage, ‘manifest’ means unmistakable, evident or indisputable, as distinct from obscure, hidden or concealed.” 44

¶ 43 “A statement by the court constitutes a comment on the evidence if the court's attitude towards the merits of the case or the court's evaluation relative to the disputed issue is inferable from the statement.” 45  While the comment indicates something related to the issue had been discussed outside the jury's presence, there is nothing in the court's comment that could have conveyed to the jury that the court believed one way or the other in the truth of Rozeboom's statement.   As such, it cannot be a manifest error, and we decline to review it.

IV. Cumulative Error

¶ 44 King argues that even if none of the errors taken alone warrant a new trial, the cumulative error doctrine requires one.   Under the cumulative error doctrine, a defendant may be entitled to a new trial when errors combine to produce a fundamentally unfair trial.46  Because the errors he raised on appeal were either harmless or not errors at all, the cumulative error doctrine does not apply.

¶ 45 We affirm.

FOOTNOTES

1.   D.S. did not tell Dawson about the particulars of the assault in words, but instead wrote them down.

2.   The parties agreed that King's May 1, 2003 arrest for failure to register would be referred to only as an arrest on a warrant.

3.   Before trial, the court held a child hearsay hearing and ruled that all witnesses were allowed to testify as to what D.S. told them, except Grant, who was allowed to testify under the “hue and cry” doctrine only to the generic fact that D.S. had disclosed abuse to her.

4.   While defense counsel thought a firmer instruction would be better than no further instruction at all, he did not argue with the State's position that such an admonition would be an unfair comment on the evidence.

5.   49 Wash.App. 251, 742 P.2d 190 (1987).

6.   State v. Jones, 71 Wash.App. 798, 812, 863 P.2d 85 (1993) (citing State v. Alexander, 64 Wash.App. 147, 154, 822 P.2d 1250 (1992);  State v. Madison, 53 Wash.App. 754, 760, 770 P.2d 662, review denied, 113 Wash.2d 1002, 777 P.2d 1050 (1989)), review denied, 124 Wash.2d 1018, 881 P.2d 254 (1994).

7.   Id. at 812-13, 863 P.2d 85 (citing Madison, 53 Wash.App. at 762-63, 770 P.2d 662).

8.   126 Wash.App. 97, 107 P.3d 133, review granted, 155 Wash.2d 1014, 124 P.3d 304 (2005).

9.   53 Wash.App. 754, 770 P.2d 662, review denied, 113 Wash.2d 1002, 777 P.2d 1050 (1989).

10.   Id. at 760, 770 P.2d 662.

11.   Id. at 763, 770 P.2d 662.

12.   71 Wash.App. 798, 863 P.2d 85 (1993), review denied, 124 Wash.2d 1018, 881 P.2d 254 (1994).

13.   Id. at 804, 863 P.2d 85.   Jones did object to the prosecution's question that elicited Mitchell's statement that “ ‘I felt that this child had been sexually molested by [Jones] at that point.’ ”   Id. We held that although this was an explicit statement of belief in Jones' guilt, the error was harmless because other evidence of Jones' guilt was overwhelming.  Id. at 813, 863 P.2d 85.

14.   Id. at 813, 863 P.2d 85.

15.   Kirkman, 126 Wash.App. at 104-05, 107 P.3d 133.

16.   Id. at 105, 107 P.3d 133.

17.   Id. at 112, 107 P.3d 133 (Quinn-Brintnall, J., dissenting).

18.   Haner testified that she used different treatment interview protocols for children and adults, but her interview of D.S. did not address whether D.S. knew the difference between a truth and a lie, or whether he would tell her the truth.   Her testimony cannot remotely be considered an opinion on D.S.'s credibility.

19.   Basic questions included what D.S.'s name was, date of birth, where he lived and where he went to school.

20.   State v. Escalona, 49 Wash.App. 251, 254, 742 P.2d 190 (1987) (citing State v. Weber, 99 Wash.2d 158, 165-66, 659 P.2d 1102 (1983)).

21.   Id. (citing Weber, 99 Wash.2d at 164-65, 659 P.2d 1102).

22.   State v. Post, 118 Wash.2d 596, 620, 826 P.2d 172, 837 P.2d 599 (1992) (citing State v. Gilcrist, 91 Wash.2d 603, 612, 590 P.2d 809 (1979)).

23.   Id. (citing Weber, 99 Wash.2d at 166, 659 P.2d 1102);  Escalona, 49 Wash.App. at 254-55, 742 P.2d 190 (citing Weber, 99 Wash.2d at 166, 659 P.2d 1102).

24.   State v. Thompson, 90 Wash.App. 41, 45, 950 P.2d 977 (citing State v. Lewis, 130 Wash.2d 700, 707, 927 P.2d 235 (1996);  Weber, 99 Wash.2d at 166, 659 P.2d 1102), review denied, sub nom.   State v. Walker, 136 Wash.2d 1002, 966 P.2d 902 (1998).

25.   Lewis, 130 Wash.2d at 707, 927 P.2d 235 (citing State v. Johnson, 124 Wash.2d 57, 76, 873 P.2d 514 (1994)).

26.   Escalona, 49 Wash.App. at 253, 742 P.2d 190.

27.   Id. at 254-55, 742 P.2d 190.

28.   Id. at 255, 742 P.2d 190.

29.   Id. at 255-56, 742 P.2d 190 (internal quotation marks and citations omitted).

30.   The trial court explicitly acknowledged this after each of King's motions.

31.   Testimony violating an order in limine qualifies as a serious irregularity.  Thompson, 90 Wash.App. at 46, 950 P.2d 977 (citing State v. Essex, 57 Wash.App. 411, 416, 788 P.2d 589 (1990), overruled on other grounds by State v. Parker, 132 Wash.2d 182, 937 P.2d 575 (1997)).

32.   See State v. Hardy, 133 Wash.2d 701, 706, 946 P.2d 1175 (1997) (prior conviction evidence is very prejudicial as it may lead the jury to believe the defendant has a propensity to commit crime);  Escalona, 49 Wash.App. at 256, 742 P.2d 190 (jury would use testimony that assault defendant had a criminal record and had stabbed someone to improperly conclude that defendant had acted on this occasion in conformity with past assaultive behavior).

33.   State v. Saltarelli, 98 Wash.2d 358, 363, 655 P.2d 697 (1982).

34.   See Escalona, 49 Wash.App. at 255, 742 P.2d 190 (“Furthermore, the reference to Escalona's record becomes particularly serious considering the paucity of credible evidence against Escalona.”).

35.   Indirect evidence of sexual abuse may include a child victim's precocious sexual knowledge.  State v. C.J., 148 Wash.2d 672, 687, 63 P.3d 765 (2003) (citing State v. Jones, 112 Wash.2d 488, 493-94, 772 P.2d 496 (1989);  State v. Swan, 114 Wash.2d 613, 632-33, 790 P.2d 610 (1990), cert. denied, 498 U.S. 1046, 111 S.Ct. 752, 112 L.Ed.2d 772 (1991);  State v. Hunt, 48 Wash.App. 840, 848-50, 741 P.2d 566, review denied, 109 Wash.2d 1014 (1987)).

36.   Escalona, 49 Wash.App. at 255, 742 P.2d 190 (quoting Weber, 99 Wash.2d at 166, 659 P.2d 1102).

37.   Id. (alteration in original) (quoting State v. Miles, 73 Wash.2d 67, 71, 436 P.2d 198 (1968)).

38.   See id. at 256, 436 P.2d 198 (quoting State v. Holmes, 43 Wash.App. 397, 399, 717 P.2d 766, review denied, 106 Wash.2d 1003 (1986)).

39.   The State argues that this court should, as the trial court did, rely on the jurors' responses to post-trial questionnaires as conclusive evidence that they followed the court's instructions to disregard Rozeboom's statement.   Even though he asked the trial court to use the questionnaires, King argues that whether jurors follow the trial court's instructions is something that inheres in the verdict and cannot be considered.   We need not address the propriety of relying on the questionnaires because they are not necessary to our holding.

40.   Escalona, 49 Wash.App. at 254-55, 742 P.2d 190 (citing Weber, 99 Wash.2d at 164-65, 659 P.2d 1102).

41.   (Emphasis added.)

42.   RAP 2.5(a)(3).

43.   State v. Lynn, 67 Wash.App. 339, 345, 835 P.2d 251 (1992).

44.   Id. (citing State v. Taylor, 83 Wash.2d 594, 596, 521 P.2d 699 (1974)).

45.   State v. Lane, 125 Wash.2d 825, 838, 889 P.2d 929 (1995) (citing State v. Hansen, 46 Wash.App. 292, 300, 730 P.2d 706, 737 P.2d 670 (1986)).

46.   In re Pers. Restraint of Lord, 123 Wash.2d 296, 332, 868 P.2d 835, cert. denied, 513 U.S. 849, 115 S.Ct. 146, 130 L.Ed.2d 86 (1994).

AGID, J.