City Of Vancouver, V Albert George Mcclure

LED

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2013 DEC 10 AM 9: 55

IN THE COURT OF APPEALS OF THE STATE OF W

DIVISION II

CITY OF VANCOUVER, I No. 4361

Respondent,

MA

ALBERT MCCLURE, UNPUBLISHED OPINION

HUNT, J — Albert McClure appeals his district court jury trial conviction for stalking,

which the superior court affirmed on direct appeal. He argues that some of the trial court' s

remarks during its case summary for the jury venire were prejudicial unconstitutional comments

on the evidence. Holding that any error was harmless, we affirm.

FACTS

I. --

STALKING - - - - - - - - - - - -

Between April and August 2010, Erika Hamilton worked at a Vancouver, Washington

Subway restaurant, which Albert McClure patronized several times per week. On other

occasions, Hamilton observed McClure drive past the Subway, without coming inside. McClure

would usually come by the restaurant during the late evening, when Hamilton was the sole

employee.

From the outset, McClure was flirtatious with Hamilton: He asked whether she had a

boyfriend, told her that she was attractive, commented that his son would think she was pretty,

No. 43682 -5 -II

and asked for her personal cell phone number. She became alarmed when he asked whether she

had ever been " stalked" before. Clerk' s Papers ( CP) at 144. Hamilton felt more alarmed and

frightened as these incidents multiplied, especially when she would find McClure waiting

outside in the parking lot almost an hour after he had finished eating inside the restaurant. She

wrote down McClure' s license plate number and took a photograph of his car. One night she

observed a car of the type that McClure owned follow her from the restaurant; she feared he was

following her home. On another occasion, she was " very shooken up" when she heard someone

walking outside of her house. CP at 150.

Hamilton asked her employer to change her shift permanently so she could avoid

working alone during those periods when McClure usually frequented the restaurant; her

employer refused. So Hamilton began closing the restaurant early; and she asked her grandfather

to come be with her at the restaurant when she was working there alone.

Hamilton feared that her repeated rebuffs of McClure' s overtures would upset him and

that he would become aggressive or hurt her. One day, for example, he became angry when she

refused to go- out on his boat with-him. - And after Hamilton closed the-restaurant on August 9,

she received a call on the restaurant' s business line from an unidentified man, who disguised his

voice and said that he had been thinking about her and would go crazy if he could not have her.

This call caused Hamilton to shake with fear; she was terrified. The next day Hamilton reported

the incident to the police department. Officer Sam Abdhala interviewed Hamilton at the

restaurant and observed that. she was shaking and " genuinely scared." CP at 196.

F)

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II. PROCEDURE

The City of Vancouver charged McClure with one count of stalking. He requested a jury

trial. Before trial began, the Clark County District Court summarized the case to the jury venire

as follows:

T] o explain why we' re all sort of gathered here together is the City of Vancouver

has brought a charge forward against Albert McClure. The charge against Mr.

McClure is that of called stalking where it' s alleged in the period of time of April

10th, 2010 to August 10th, 2010 without lawful authority he did intentionally and

repeatedly harass or follow a person by the name of Erika Hamilton and so you

understand again the nature of the case is that Ms. Hamilton works at a Subway

sandwich shop. I think she was of age 17 at the time if I remember correctly and

allegations are going to be and obviously get more specific as to the times that

maybe as much as dozens of times he went into that particular store, chatted with

her, asked her I guess for dating [ purposes] I think if she wanted to go on a date

with him and at some point in time maybe even asked her if she' d ever been

stalked before. So they' re going to get into a lot more details but that' s sort of

what I' ll call the flavor of the case that she obviously felt uncomfortable and

eventually notified the police and that ended up being charged with the offense of

stalking. Okay? And to that particular charge he' s entered a plea of not guilty.

CP at 28 ( emphasis added). McClure neither objected nor asked the trial court to instruct the

potential jurors to disregard any of this summary. Eventually the court empanelled a jury and

tried the case.-,

Before closing arguments, the trial court instructed the jury that if it appeared he had

commented on the evidence during trial; he had not done so intentionally and that the jurors

should disregard such comments. The trial court also instructed the jurors that ( 1) it was their

duty to decide the facts of the case based only on evidence presented during trial and on their

role as the sole judge of the witnesses' credibility; and ( 2) the City had the burden to prove each

element of the crime of stalking beyond a reasonable doubt, explaining that a reasonable doubt is

one for which a reason exists and may rise from the evidence or lack of evidence. The jury

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No. 43682 -5 -II

convicted McClure of stalking as charged. McClure appealed to the Clark County Superior

Court under RALJ 1. 1( a).

The superior court affirmed, ruling, in part, that the trial court' s statements were not

comments on the evidence. McClure sought discretionary review of the superior court' s decision

on multiple grounds.

Our court commissioner granted discretionary review on the sole issue that satisfied RAP

1—

2. 3( d) whether two statements he identified from the trial court' s jury venire case summary

constituted prejudicial unconstitutional comments on the evidence: ( 1) that McClure had asked

2

Hamilton to go on a date; and ( 2) that McClure' s actions had made her " obviously "

uncomfortable. As a result, the scope of this discretionary review is very narrow, and we

circumscribe our analysis accordingly.

ANALYSIS

McClure argues that the district court' s oral description of the case for the jury venire

was a prejudicial unconstitutional comment on the evidence because ( 1) some statements implied

the trialcourt believed the -

that - stalking- charge against him was true; ( 2) the -court' s- comments - - -

tainted the entire trial; and ( 3) the City' s evidence was insufficient to overcome the resultant

presumed prejudice. These arguments fail.

1 In granting discretionary review, our commissioner noted that if the trial court' s case summary

for the jury venire was a comment on the evidence, then the superior court' s decision affirming

McClure' s conviction would conflict with the following cases: ( 1) State v. Levy, 156 Wn.2d

709, 719 -20, 723, 132 P. 3d 1076 ( 2006) ( comments on the evidence are presumed prejudicial);

and ( 2) State v. Jackman, 156 Wn.2d 736, 743, 132 P. 3d 136 ( 2006) ( once defendant

demonstrates that court commented on evidence, burden shifts to State to show lack of prejudice,

unless record reflects defendant could not have been prejudiced).

2CPat28.

No. 43682 -5 - II

1. TRIAL COURT DID NOT COMMENT ON EVIDENCE

The Washington State Constitution prohibits a judge from commenting on the evidence.

WASH. CONST. art. IV, § 16. A judge' s statement is a comment on the evidence if it conveys or

implies the court' s opinion on the merits or an evaluation of a disputed fact or issue. State v.

Lane, 125 Wn.2d 825, 838, 889 P. 2d 929 ( 1995). In our view, taken in context, neither of the

two trial court statements that our court commissioner designated for our review were opinions

about the merits of the case or an evaluation of the evidence. Rather, they merely summarized

3

for the jury pool the allegations to give them a " flavor " of what the case would be about.

For example, the trial court did not state as fact that McClure had asked Hamilton to go

on a date; rather, the trial court predicted:

The] allegations are going to be and obviously get more specific as to the times

that maybe as much as dozens of times he went into that particular store, chatted

with her, asked her I guess for dating [ purposes] I think if she wanted to go on a

date with him and at some point in time maybe even asked her if she' d ever been

stalked before.

CP at 28 ( emphasis added). Similarly, the trial court did not state as fact that McClure' s actions

had made Hamilton " obviously" uncomfortable. Rather, the trial -

court was merely attempting to -

summarize the City' s allegations against McClure:

So they' re going to get into a lot more details but that' s sort of what I' ll call the

flavor of the case that she obviously felt uncomfortable and eventually notified the

police and that ended up being charged with the offense of stalking. Okay? And

to that particular charge he' s entered a plea of not guilty.

CP at 28 ( emphasis added).

3CPat28.

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No. 43682 -5 -II

The context of these statements demonstrates that the trial court was not intending to

express its opinion about McClure' s guilt.4 Rather it was explaining what it expected the case to

be about, educating the jury venire for the purpose of ferreting out potential foreknowledge of

the case or other factors that might cause individual members of the venire to be unable to sit as

fair and impartial jurors. We hold, therefore, that, taken in context, these statements by the trial

court were not impermissible comments on the evidence.

II. HARMLESS ERROR

Even if the trial court' s pretrial summary of the case arguably contained improper

comments on the evidence, we hold that they did not create reversible error. For purposes of this

part of our analysis, we presume without deciding that the trial court' s statements about

Hamilton' s obvious discomfort and McClure' s asking her on a date were prejudicial comments

on the evidence. Lane, 125 Wn.2d at 838. The burden then shifts to the State to disprove this

presumption unless the record affirmatively shows the defendant could not have been prejudiced

by these comments. Lane, 125 Wn.2d at 838 -39. We hold that the City has met this burden.

A Overwhelming Untainted Evidence----- -

For the record to demonstrate harmless error, overwhelming untainted evidence must

have "` necessarily [ led] to a finding of guilt. "' Lane, 125 Wn.2d at 839 ( quoting State v. Guloy, .

104 Wn.2d 412, 426, 705 P. 2d 1182 ( 1985), cent. denied, 475 U. S. 1020 ( 1986)). McClure

argues that ( 1) the record cannot show overwhelming untainted evidence to support his

4

We note, from the perspective of hindsight on appellate review, that the alleged error here

might have been avoided if the trial court had chosen different language to summarize the case

for the venire. Additionally, we note that some trial courts ask the parties to prepare an agreed

summary of the case that the court presents to the venire before the parties begin their

questioning.

RA

No. 43682 -5 -II

conviction because the trial court' s opening summary tainted each piece of evidence that

followed at trial; and ( 2) the City' s lack of proof about McClure' s knowledge of Hamilton' s fear

means that the jurors used the trial court' s comment to convict him. This argument fails.

McClure already had full review of his district court trial by the superior court, sitting in

its appellate capacity. His argument to us, however, ignores the narrow scope of our

discretionary review, which is limited to whether the trial court' s introductory comments about

only some evidence expected to be presented at trial were prejudicial. Clearly, we. must review

the sufficiency of that evidence on which the trial court arguably commented to determine

whether the untainted evidence could overcome the presumed prejudice. But none of the trial

court' s introductory comments in any way alluded to McClure' s knowledge that his actions made

Hamilton feel " uncomfortable, " 5 which is the only element of stalking that McClure actually

challenges that falls within the narrow scope of our commissioner' s grant of discretionary

6

review.

5 CP at 28.

6

To convict a person of stalking, a jury must find that ( 1) the defendant intentionally and

repeatedly harassed or repeatedly followed another person; ( 2) the person harassed or followed

was fearful that the stalker intended to injure the person and a reasonable person would

experience such fear under the circumstances; and ( 3) the stalker either intended to frighten, to

intimidate, or to harass the person or knew or reasonably should have known that the person was

afraid, intimidated, or harassed. RCW 9A.46. 110( 1).

McClure contends that the jury must have used the trial court' s comments to convict him

to compensate for the alleged lack of trial evidence of the third element of stalking —that he

knew, or reasonably should have known, that Hamilton was afraid of him. Br. of Appellant at 8-

9. But the remarks that our commissioner identified as potentially being comments on the

evidence related only to the second element of stalkingthat Hamilton was fearful that McClure

intended to injure her. In contrast, neither of these two remarks ( that McClure had asked

Hamilton to go on a date or that Hamilton obviously felt uncomfortable) reference the third

element, McClure' s knowledge. Because McClure' s argument would thus take us outside the

narrow scope of our discretionary review here, we do not further consider it.

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No. 43682 -5 -II

Independent of the trial court' s introductory remarks, the record contains overwhelming

uncontroverted evidence ' of the second element of stalking? at issue herethat as McClure' s

comments to Hamilton and McClure' s behavior increased in intensity, she became increasingly

frightened of him. She testified about ( 1) her ongoing fear of McClure based on his repeated

overtures and other actions, especially when she was working alone late at night; ( 2) the

measures .she took to avoid contact with him, including seeking permission to work a different

shift, closing the restaurant early, and asking her grandfather to stay with her while she closed

up; ( 3) his anger when she refused his invitation to go out on his boat with him; ( 4) being afraid

that after she had rebuffed his many requests he would assault her or " take [ her] somewhere" if

she continued to turn him down, CP at 147; ( 5) her belief that he was not " in the same reality"

and " sinking," CP at 147; ( 6) her fear that McClure was following her home from work; and ( 7)

her terror after the late- evening phone call at work that prompted her call to the police. We hold

that this untainted evidence of Hamilton' s fear of McClure was more than sufficient to overcome

any presumed prejudice from the trial court' s comments during its pre -voire dire summary of

what -

evidence it-expected the jury would hear - t trial. - - --

a

B. Presumption that Jury Followed Court' s Instructions

McClure' s argument also ignores ( 1) the context in which the trial court made its

comments ( as we previously discussed in part I of this analysis section); and ( 2) the well -

settled

presumption that the jury follows the court' s instructions, including here, its instruction to

disregard any statements it made that might be construed as comments on the evidence. Thus,

7 See n.7, above.

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No. 43682 -5 -II

even if the above evidence were not sufficient to overcome the presumed prejudice, other

contextual factors also preclude reversal here.

For example, an inadvertent, isolated comment followed by a curative instruction may

not prejudice a party. Dybdahl v. Genesco, Inc., 42 Wn. App. 486, 490 -91, 713 P. 2d 113 ( 1986)

judge' s remark not prejudicial where jury instructed to disregard explicit or implied comments

on merits of evidence). Prejudice against a criminal defendant may also be cured by a jury

instruction that the charges are mere accusations against him or her and that the jurors should

rely only on evidence produced at trial to determine guilt. State v. Sivins, 138 Wn. App. 52, 61,

155 P. 3d 982 ( 2007). Once such a curative instruction is given, we presume the jury followed it.

Dybdahl, 42 Wn. App. at 491. Such is the case here.

The record shows that ( 1) the trial court presented its summary of the case to the entire

venire, before the final jurors were selected and sworn; and ( 2) the focus of this summary was a

broad preliminary overview of the allegations against McClure to acquaint the potential jurors

with the nature, place, and witnesses of the case in preparation for questioning about whether any

J urors had fore- knowledge or reasons- why the could not -serve -impartially. -As we previously - - --

explained, the trial court consistently prefaced its summary statements with qualifying equivocal

phrases like " maybe" and " I think" "[ the] allegations [ will show]." CP at 28. Moreover, the trial

court' s single mention of Hamilton' s fear was not focused on any specific piece of evidence or a

specific jury instruction; rather, it was in the context of explaining the " details" that the City' s

case was likely going to involve, offered merely to show " the flavor of the case" alleged. CP at

28.

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McClure cites no cases addressing prejudicial court comments made pretrial while

summarizing the case for a pool of potential jurors, as was the situation here. On the contrary,

every case of which we are aware analyzes the potential prejudice of court comments about finite

pieces of evidence or a jury instruction made during trial. See, e. g., Dybdahl, 42 Wn. App. at

490 ( court 's comment about "` startling figures "' in witness' s testimony immediately after the

testimony did not convey court' s opinion on credibility); State v. Levy, 156 Wn.2d 709, 726, 132

P. 3d 1076 ( 2006) ( court' s " mere mention of a fact" in a jury instruction did not imply court' s

belief that fact was true).

Furthermore, the trial court here expressly explained to the jury venire that the stalking

charge against McClure was only an allegation and that he had pled not guilty. At the close of

trial, the trial court again instructed the empanelled jury that ( 1) the burden was on the City to

prove the charges beyond a reasonable doubt based on the evidence elicited at trial; (2) they were

to ignore anything the court may have said that could be construed as a comment on the

evidence; and ( 3) the jury was the sole decider of the facts of the case and the witnesses'

credibility. We presume- that the jury followed the court' s instructions- and, therefore; conclude

that in convicting McClure, the jury did not use the trial court' s pretrial remarks about

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No. 43682 -5 -II

8

Hamilton' s fear and his having asked her for dates. See Dybdahl, 42 Wn. App. at 490.

We affirm.

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.

Hunt, J.

I concur:

J..

8 Under the circumstances of this case, we further decline McClure' s implied invitation to be the

first court to find prejudice and reversible error based on the trial court' s educational pretrial

summary of the case for the entire venire.

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No. 43682 -5 -II

WOxswICK, J. ( dissenting) — I disagree with the majority' s decision holding that the

trial judge' s comments were not improper comments on the evidence and that the improper

comments on the evidence are harmless. In my opinion, this case should be reversed and

remanded. Accordingly, I respectfully dissent.

I. JUDICIAL COMMENT ON THE EVIDENCE

The majority holds that the trial judge' s initial instructions to the jury venire are not

improper comments on the evidence because they merely summarized for the jury pool the

allegations to give them a " flavor" of what the case was about. Majority at 5. I cannot agree

that the trial judge' s remarks are not a comment on the evidence.

To constitute an improper comment on the evidence, the court need not have expressly

conveyed to the jury its personal feelings on an element of the offense; it is sufficient if these

State Levy, 156 Wn.2d 709, 721, 132 P. 3d 1076 ( 2006). " A

feelings are merely implied. v.

court' s statement constitutes a comment on the evidence ` if the court' s attitude toward the merits

of the case or the court' s evaluation relative to the disputed issue is inferable from the

statement. "' App.- 52,

State -v. -Sivins, -138 Wn. - - 583 155 -P.3d 982 ( 2007) ( emphasis added)

quoting State v. Lane, 125 Wn.2d 825, 838, 889 P. 2d 929 ( 1995)). A trial judge is prohibited

from making even implied comments on the evidence in order " to prevent the jury from being

unduly influenced by the court' s opinion regarding the credibility, weight, or sufficiency of the

evidence." Sivins, 138 Wn. App. at 58 ( citing State v. Eisner, 95 Wn.2d 458, 462, 626 P.2d 10

1981)).

The majority holds that this trial judge did not comment on the evidence because he

qualified his comments as " allegations," or prefaced them by saying, " I think." I cannot agree

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No. 43682 -5 -II

that by characterizing his comments as allegations, the trial judge avoided making an improper

comment on the evidence. Here, the trial judge' s lengthy recitation of the facts went beyond

giving the jury a " flavor" of the case and implied to the jury that certain facts were true and that

Erika Hamilton' s testimony was credible. See Lane, 125 Wn.2d at 837 -38 ( instruction stating

the reason for witness' s sentence being reduced impermissibly -implied that witness' s testimony

as a whole was credible). And the judge' s statements that he " thinks" his comments may be

correct makes these comments more, not less, problematic, in that it directly conveys the judge' s

personal feelings about the case.

The trial judge did not merely read the allegations from the information: Instead, the trial

judge provided the jury with an impromptu summary of the City of Vancouver' s ( City) case

against.Albert McClure which included references to disputed facts. For example, the trial judge

referenced McClure asking Erika Hamilton on a date and McClure asking her if she had ever

been stalked. Hamilton testified that McClure made these comments to her, but McClure

expressly denied ever making such comments. Therefore, the trial judge implied that disputed

facts had been proved and that Hamilton was a credible witness. -

And in an even more egregious comment, the trial judge stated that "[ Hamilton]

obviously felt uncomfortable." Clerk' s Papers ( CP). at 28 ( emphasis added). An essential

element of stalking is that the defendant knew or reasonably should know that the person was

afraid, intimidated, or harassed, and that the feeling of fear experienced by the person allegedly

being stalked " must be one that a reasonable person in the same situation would experience

under all the circumstances." RCW 9A.46. 110( 1)( b), ( c)( ii). By commenting that Hamilton

obviously" felt afraid, the trial judge stated as fact a critical, disputed element that was

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No. 43682 -5 -II

necessary to prove the State' s case. In my opinion, this comment is also an impermissible

judicial comment on the evidence.

Here, the trial judge referenced several disputed facts, implied that Hamilton was a

credible witness, announced his personal feelings about the case, and stated that an element of

the State' s case was " obviously" true. I am not persuaded that the trial judge has avoided

making improper comments on the evidence by characterizing its comments as " allegations"

establishing the " flavor" of the case. Majority at 5. Accordingly, I would hold that the trial

judge' s comments were improper comments on the evidence which violated article IV, section

16 of the Washington State Constitution.

II. HARMLESS ERROR

The majority opinion also holds that even if the trial judge' s comments were improper

comments on the evidence, they were harmless. For purposes of its harmless error analysis, the

majority must presume that the judge' s comments were an improper comment on the evidence

and, additionally, must presume that the improper comments were prejudicial. Levy, 156 Wn.2d

at 723.- The maj ority does not adequately overcome this - quired

re presumption. - Accordingly.-I- -

disagree.

This is a " he said she said" case, not, as the majority states, a case with " overwhelming

uncontroverted evidence." Majority at 8. The majority' s opinion essentially . ignores the

presumption of prejudice that applies when determining whether judicial comments on the

evidence are harmless. The majority appears to apply a sufficiency of the evidence standard and

assumes the truth of the City' s evidence. In my opinion, the trial judge' s comments, which

implied Hamilton was a credible witness, tainted Hamilton' s testimony. Because judicial

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No. 43682 -5 -II

comments on the evidence are presumed to be prejudicial, " overwhelming untainted evidence"

must support the defendant' s conviction. Lane, 125 Wn.2d at 839 -40 ( emphasis added). Many

of the facts proving the .elements of stalking were contested; the jury was required to resolve

conflicts between Hamilton' s and McClure' s testimony. Given the presumption of prejudice, I

cannot consider Hamilton' s testimony to be untainted evidence. Because the City relied on

Hamilton' s tainted testimony to prove several of the essential elements of stalking, there is not

overwhelming, untainted evidence supporting the jury' s verdict.

To prove McClure committed the crime of stalking, the City was required to prove that

1) McClure intentionally and repeatedly harassed or repeatedly followed Hamilton, ( 2)

Hamilton was placed in fear that McClure intended to injure her, ( 3) Hamilton' s fear must have

been " one that a reasonable person in the same situation would experience under all the

circumstances," and ( 4) McClure either ( a) intended to frighten, intimidate, or harass Hamilton;

or ( b) knew or reasonably should have known that Hamilton was afraid, intimidated, or harassed

even if McClure did not intend to frighten, intimidate, or harass Hamilton. RCW 9A.46. 1 I0( 1).

T agree that there was overwhelming, untainted evidence establishing that Hamilton was -

actually afraid. The City presented evidence from Hamilton' s grandfather and the police officer

who responded to her complaint. Both witnesses testified that she appeared afraid. However,

the City relied exclusively on tainted evidence to prove other elements of stalking including ( 1)

that McClure repeatedly followed or harassed her, ( 2) Hamilton' s fear was reasonable, and ( 3)

McClure knew or should have known that Hamilton was afraid, intimidated, or harassed.

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No. 43682 -5 -II

A. Repeatedly Followed or Harassed

The trial judge' s comments affected the City' s evidence proving that McClure repeatedly

harassed or followed Hamilton. Hamilton testified that McClure came into the Subway

restaurant almost every time that she was working and would stay in or around the store for long

periods of time while she was working. She also testified that a car similar to McClure' s

followed her home one night and an unidentified person called her at the Subway making

comments like " I' m going to go crazy if I can' t have you." CP at 150. In contrast, McClure

testified that he never spent more than approximately 15 minutes in the Subway. McClure also

testified that he was not following Hamilton and had never been to her house. There was no

evidence that McClure was the individual who either was walking outside Hamilton' s house, or

who was the " unidentified man" who had called her on the restaurant' s business line.

If the trial judge' s comments did not taint Hamilton' s testimony by implying she was a

credible witness, Hamilton' s testimony would be overwhelming evidence proving that McClure

repeatedly harassed or followed her. And even though the trial judge implied that Hamilton' s

testimony was - credible, _ I- would consider Hamilton' s testimony overwhelming - if - were

it

uncontroverted. However, McClure' s testimony contradicted Hamilton' s testimony on every

point required to prove he repeatedly followed or. harassed Hamilton and, as a result, there was

not overwhelming, untainted evidence supporting the essential element of stalking that McClure

repeatedly followed or harassed Hamilton.

B. Reasonable Fear

The City was also required to prove that Hamilton' s fear was fear " that a reasonable

person in the same situation would experience under all the circumstances." RCW

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No. 43682 -5 - II

9A. 46. 110( 1)( b). When the trial judge commented that Hamilton " obviously felt uncomfortable"

CP at 28), he implied that ( 1) the facts Hamilton would testify to were true and ( 2) those facts

would " obviously" make any person feel afraid. No other witness testified that he or she would

feel afraid under the same circumstances. McClure testified that he visited the Subway for no

more than 15 minutes at a time and his conversations with Hamilton were limited to impersonal,

casual conversation while he ordered food.

Hamilton' s untainted testimony could have been sufficient evidence to allow a reasonable'

to find that be afraid under those circumstances. However,

jury a reasonable person would

McClure testified to circumstances under which no reasonable person would be afraid. Without

Hamilton' s testimony, the City could not prove that a reasonable person would feel afraid under

the circumstances. Accordingly, there is not untainted evidence that establishes an essential

element of stalking.

C. Knew or Should Have Known

In addition, the trial judge' s comments tainted the evidence proving that McClure

reasonably should Hamilton was

have known -that - afraid, intimidated, - or harassed. - - RCW

9A.46. 1I0( 1)( c)( ii). In addition to her other testimony, Hamilton testified that McClure asked

her if she had ever been stalked before, told her she was pretty, and asked for her personal cell

phone number. Hamilton also testified that McClure had asked her out on a date and invited her

to go on his boat. Like other aspects of Hamilton' s testimony, this testimony was directly

contradicted by McClure' s testimony. McClure testified that he never asked Hamilton on a date.

Although he admitted that he made a passing comment about taking Hamilton on his boat, he did

not wait for a response, and never got angry at her for not accompanying him on his boat.

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No. 43682 -5 -II

McClure also testified that he engaged in limited casual conversation with Hamilton while she

was serving him. Moreover, Hamilton did not tell McClure to stop coming to .the restaurant.

Hamilton did not tell McClure that he was making her uneasy. McClure denied knowing that

Hamilton was alarmed or frightened.

If the facts to which Hamilton testified were true, a reasonable jury could find that

McClure knew or should have known that he was frightening, intimidating, or harassing

9

Hamilton. But some of the trial judge' s comments directly implied that the facts Hamilton

testified to were true. For example, the trial judge commented that McClure asked Hamilton out

on a date, a fact which was disputed by McClure' s testimony. The City' s argument that McClure

should have known Hamilton felt afraid, intimidated, or harassed must have rested on the

assumption that a person should know that consistently engaging in inappropriate, overly

personal conversation with a stranger would be frightening, intimidating, or harassing. The trial

judge' s comments. implied the existence of disputed facts which established that McClure did

engage in overly personal conversations with Hamilton while she was at work. Therefore, the

City also relied - ntainted evidence to prove that McClure should have known that Hamilton was -

o

afraid, intimidated, or harassed.

9 It does not appear that the City argued below that McClure intended to frighten, intimidate, or

harass Hamilton or that he knew she was afraid, intimidated, or harassed. There is

uncontroverted evidence in the record that Hamilton never told McClure he was upsetting her or

that she wanted him to leave her' alone. Lack of notice is not a defense to stalking if the alleged

stalker was intending to intimidate or harass, but there is no evidence in the record that McClure

intended to frighten, intimidate, or harass Hamilton. RCW 9A.46. 110( 2)( a). And because the

uncontroverted evidence in the record establishes that McClure did not know Hamilton was

afraid, intimidated, or harassed, I limit my analysis to whether the trial judge' s comments tainted

the evidence proving that McClure should have known that Hamilton was afraid, intimidated, or

harassed.

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The majority' s analysis of the effect of the trial judge' s comments is too narrowly applied

to the .evidence required to prove the essential elements of stalking. In my opinion, the trial

judge' s improper comments on the evidence tainted evidence necessary to prove several essential

elements of stalking. Accordingly, the trial judge' s improper comments on the evidence cannot

be considered harmless.

D. Remedial Instruction

Finally, the majority relies on the presumption that the jury followed the trial judge' s

instruction to disregard any implied comments on the evidence. I agree that prejudice resulting

from an isolated or inadvertent judicial comment on the evidence may be cured by an instruction

Sivins, 138 Wn. App. 61 ( citing Eisner, 95 Wn.2d at 463). However, the trial

to the jury. at

judge' s comments in this case were neither isolated nor trivial. Therefore, I do not believe they

could be cured by an instruction to the jury.

For the above reasons, I disagree with the majority' s opinion holding that the trial judge' s

comments in this case were not improper judicial comments on the evidence or that the trial

Judge' s comments were-harmless I would reverse McClure' s convictions and remand for further -

-

proceedings. Accordingly, I respectfully dissent.

Worswfck. C. J.

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