State Of Washington, V. Damien Charles Mccarter

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,

No. 85919-6-I

Respondent,

DIVISION ONE

v.

UNPUBLISHED OPINION

DAMIEN CHARLES McCARTER,

Appellant.

HAZELRIGG, A.C.J. — Damien McCarter appeals his conviction after a jury

trial for murder in the second degree—felony murder—with a domestic violence

designation, based on assault of a child in the first degree. McCarter contends

that the State’s medical witnesses provided improper opinion testimony, the

prosecutor committed misconduct in closing, and the trial court erred in limiting his

closing argument. He also avers the trial court erred in imposing an exceptional

sentence, in particular, challenging the sufficiency of the evidence as to the two

aggravating factors found by the jury. Because the only error was the court’s

limitation on defense counsel’s closing argument, which was harmless beyond a

reasonable doubt, we affirm.

FACTS

On December 9, 2019, the State charged Damien McCarter with murder in

the second degree—felony murder—based on assault of a child in the first degree,

and further alleged it was a crime of domestic violence. Thereafter, the State filed

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an amended information that included two additional aggravating circumstances:

that AM was a particularly vulnerable victim and McCarter abused a position of

trust. On December 3, 2019, officers responded to Mary Bridge Hospital and

spoke with medical staff regarding a 2-month-old child, AM, who had suffered a

decompressed skull fracture and several bilateral rib fractures while in the care of

his father, McCarter. AM ultimately succumbed to his injuries and passed away

on December 4, 2019.

The parties litigated a number of pretrial issues through motions in limine

and the jury trial began on May 16, 2022. Jennifer McCarter, 1 McCarter’s wife and

AM’s mother testified that her husband was the only person home with AM at the

time of the incident on December 3. In response to an e-mail from McCarter that

said, “I fell with [AM] going down stairs,” Jennifer explained that she immediately

left work and drove home where she found McCarter and AM waiting for her.

McCarter then told Jennifer that AM “had been dropped in his car seat and that he

wasn’t responding.” 2 Jennifer drove them to St. Michael’s Medical Center.

1 Because they share the same last name, we refer to the defendant as McCarter and

Jennifer by her first name for clarity. No disrespect is intended

2 In an interview with Detective Jennifer Rice, McCarter described the incident as follows:

He said that he put [AM] in his car seat and it was on the dining room table. He

said he strapped [AM] in. He buckled him in. Everything was fastened except for

the final adjustment of the harness. He picked up the car seat with his right arm in

the back and his left arm in the front, and he lifted it off of the dining room table in

a parallel fashion. As he turned—as he rotated, his left hand hit the back of a—hit

a dining room chair on the back of his left knuckles, and he said that it was a zinger

to his knuckle, and he just released the car seat. He described it as his—the

momentum of his turning and hitting the dining room chair that his right hand flipped

the car seat over and it landed face[ ]down on a carpeted floor. He said that [AM]

was face[ ]down.

Rice recorded McCarter reenacting this incident in the home and that video was admitted

as State’s Exhibit 37 and played for the jury at trial.

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Jennifer testified that due to the extent of the injuries, AM was airlifted to Mary

Bridge Medical Center and, shortly after she arrived at Mary Bridge, the doctors

there informed her that AM would not survive.

The State presented testimony from numerous medical witnesses. Dr.

Jason Tanguay, an emergency medicine physician, treated AM at St. Michael’s.

He recalled that AM had facial bruising and “needed imaging of the brain.” The

imaging showed “a skull fracture, and there was a significant associated

intracranial hemorrhage.” Dr. Jeffrey Flaskerud, a pediatric emergency medicine

physician at Mary Bridge, also treated AM. Flaskerud testified that AM “had a

depressed right-sided skull fracture” and both “left-sided subdural” and “left-sided

subarachnoid” hemorrhages. Additionally, AM had several bilateral rib fractures.

Flaskerud opined that the injuries were inconsistent with the claimed mechanism

of AM falling in a car seat because the “patient had left ear bruising, an area of

injury under the right eye, swelling on the right side of the head. That’s three

different traumas, not just one.” Flaskerud testified that it was “not possible, based

on [his] training and experience,” that all of AM’s injuries resulted from a single fall.

Further, Flaskerud stated that “rib fractures in pediatric patients” are “highly

suggestive of abuse” and AM’s elevated liver enzymes also suggested “[t]rauma”

or “abuse.” Dr. John Whitt, a pediatric intensive care physician at Mary Bridge,

cared for AM as well and testified that AM’s injuries could not be explained by the

car seat; rather, they were consistent with “nonaccidental trauma.” This conclusion

was shared by Drs. Ronald Grondin, Tito Monge, and Mauricio Escobar, all of

whom worked at Mary Bridge and examined or treated AM.

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Dr. Sarah Ann Farley, a pediatric radiologist, 3 found a linear fracture on the

side of AM’s head and an “overlying hematoma[4] within the scalp.” According to

Farley, this was a “severe traumatic brain injury” with “evidence of direct head

trauma.” Farley also identified multiple rib fractures, some of which showed

evidence of healing. She concluded that, overall, the findings were “very strongly

associated with nonaccidental trauma.” 5 Dr. Aditya Sunijda, a pediatric radiologist,

testified that she was most concerned by AM’s scan that showed “blood products

of varying ages within the brain,” which indicates “they were different times of

injury.” Sunijda stated that such findings are most commonly seen in

“nonaccidental trauma or child abuse.”

Dr. Kenneth Feldman is a pediatrician with Children’s University Medical

Group and was qualified as an expert in child abuse. He opined that AM’s “injuries

were indicative of repetitive child abuse.” Feldman testified at length that a single

fall could not cause AM’s injuries as there was “evidence of bilateral impact trauma

on opposite sides of the skull,” the type of head injuries AM sustained are “virtually

unheard of with normal short falls,” and such “short falls essentially never cause

rib fracture.” Dr. Jeffrey Otjen, a pediatric radiologist, testified as an expert on child

abuse and concluded, based on his review of AM’s scans, that “given the totality

of the imaging findings, nonaccidental trauma was the diagnosis.” He explained

that AM had “too many injuries to be accounted for by a single fall or drop.” Dr.

3 Farley explained that she is a diagnostic radiologist with “subspecialty training in imaging

pediatric patients.” She also clarified that a “diagnostic radiologist is a physician who has

specialized training in interpreting medical imaging.”

4 Farley defined a hematoma as “a collection of blood.”

5 Farley is trained in recognizing “nonaccidental trauma,” which she described as “traumatic

injuries that are not typically seen in the context of accidental injury mechanisms.”

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Andrew Rosenberg, a pathologist, reviewed AM’s histological 6 slides and opined

that AM suffered “at least two episodes of severe trauma” and “based on the

distribution and types of trauma to the skeleton, it was secondary to physical child

abuse.” Dr. Emmanuel Lacsina, a forensic pathologist who performed an autopsy

on AM, concluded that the “cause of death [wa]s due to multiple blunt force injuries

to the head.” He ruled the death a homicide. Lacsina testified that “the severity

and multiplicity of the injuries indicate that they are inflicted injuries rather than

injuries sustained from an accident.”

McCarter testified in his own defense and reenacted his version of the

incident with AM’s car seat at trial. At the time of the incident, according to

McCarter, AM was “fully strapped in” to the car seat, which had a five-point

harness. Defense medical experts provided testimony in support of McCarter’s

version of events. Dr. Robert Bux, a forensic pathologist, testified that AM had

“metabolic bone disease” and opined that the car seat fall described by McCarter

could result in the injuries to AM. Dr. David Ayoub, a diagnostic radiologist, also

opined that AM’s skeletal images “showed significant metabolic bone disease,”

specifically, “rickets.” Ayoub testified that many of the injuries could be explained

by a single fall with the car seat. Dr. Marta Cohen, a pediatric pathologist licensed

in the United Kingdom, similarly concluded AM had “metabolic bone disease.” Dr.

Dale Vaslow, a neuroradiologist, testified that AM’s injuries were attributable to “a

6 Rosenberg defined “histological materials” as “microscopic. . . features that are present

in the bone tissue.” He further explained that histological slides are those created for use with a

microscope by slicing “extremely thin sections of tissues” and “staining them with dyes so they can

be easily visible. . . under the microscope” and that “the name of the slide that contains the stained

tissue is a histological slide.”

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No. 85919-6-I/6

traumatic blow to the head.” The defense also called a biomechanical expert, Dr.

Chris Allen Van Ee, who concluded that AM’s head injuries “could have occurred

as a result of the fall.” Van Ee testified on cross-examination that he had done “a

lot of work, looking at chest injury . . . as well as rib fractures and when they occur”

and “even looked at rib fractures in children.” However, Van Ee offered no opinion

on AM’s rib injuries.

The jury found McCarter guilty as charged and returned special verdicts

finding the State had proved that AM and McCarter were members of the same

family or household for purposes of the domestic violence designation, along with

the aggravating factors of a particularly vulnerable victim and use of a position of

trust. The trial court determined that the special verdicts were a sufficient factual

basis to support an exceptional sentence above McCarter’s standard range.

Accordingly, the judge imposed 360 months in prison and entered corresponding

findings of fact and conclusions of law.

McCarter timely appealed.

ANALYSIS

I. Testimony on “Abusive Head Trauma” and “Nonaccidental Trauma”

McCarter first assigns error to the trial court’s ruling allowing the State’s

expert witnesses to opine that AM’s injuries were the result of “abusive head

trauma” and/or “nonaccidental trauma.” He avers the testimony failed to satisfy

the test set out in Frye v. United States, 54 U.S. App. D.C. 46, 47, 293 F. 1013

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No. 85919-6-I/7

(1923), and invaded the province of the jury with regard to fact-finding. Neither

argument holds merit. 7

A. Frye Test

“The standard governing the admissibility of testimony based on scientific

experimental procedures at a criminal trial was enunciated in Frye.” State v.

Martin, 101 Wn.2d 713, 719, 684 P.2d 651 (1984). Under the Frye test, “evidence

deriving from a scientific theory or principle is admissible only if that theory or

principle has achieved general acceptance in the relevant scientific community.”

Id. Admissibility under Frye is subject to de novo review, which “may extend

beyond the record and involve consideration of scientific literature as well as

secondary legal authority.” State v. Copeland, 130 Wn.2d 244, 255-56, 922 P.2d

1304 (1996).

“The Frye test is implicated only where the opinion offered is based upon

novel science.” Anderson v. Akzo Nobel Coatings, Inc., 172 Wn.2d 593, 611, 260

P.3d 857 (2011). “It applies where either the theory and technique or the method

of arriving at the data relied upon is so novel that it is not generally accepted by

the relevant scientific community.” Id. (emphasis added). Courts consider “(1)

whether the underlying theory is generally accepted in the scientific community

and (2) whether there are techniques, experiments, or studies utilizing that theory

7 In his reply brief, McCarter shifts his argument on this issue to ER 403, the basis for the

defense objection presented in motions in limine, and contends the trial court erred in admitting the

testimony of abusive head trauma because it was “substantially more prejudicial than probative.”

Far from raising this argument in his opening brief, McCarter fails to even mention ER 403 until his

reply. “‘A contention presented for the first time in the reply brief will not receive consideration on

appeal.’” State v. Tien Thuy Ho, 8 Wn. App. 2d 132, 140-41, 437 P.3d 726 (2019) (quoting Fosbre

v. State, 70 Wn.2d 578, 583, 424 P.2d 901 (1967)). Thus, we do not reach the ER 403 argument

on this challenge.

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No. 85919-6-I/8

which are capable of producing reliable results and are generally accepted in the

scientific community.” State v. Riker, 123 Wn.2d 351, 359, 869 P.2d 43 (1994).

In motions in limine, McCarter challenged Feldman’s proposed testimony

about “abusive head trauma” on the ground that it was “scientifically and medically

unreliable.” He also moved to exclude any reference to “abusive head trauma”

under ER 403 and on the basis that the phrase invaded the province of the jury.

However, McCarter did not present a challenge based on Frye at trial; the case is

not cited in his motions in limine before the trial court and the only reference to the

Frye standard contained in the record before us is from the State’s motion to

suppress Van Ee’s testimony concerning his “novel experiment.”8 In response to

the State’s contention in briefing that McCarter waived the issue by not raising it

until this appeal, he simply insists that “Frye is still important to the argument.”

“Failure to object to the admissibility of evidence at trial precludes appellate

review of that issue unless the alleged error involves manifest error affecting a

constitutional right.” State v. Florczak, 76 Wn. App. 55, 72, 882 P.2d 199 (1994).

To satisfy RAP 2.5(a)(3) and raise such an error for the first time on appeal, “an

8 While McCarter sought to exclude Feldman’s testimony of “abusive head trauma” and

compared it to “shaken baby syndrome,” which, he contended, “lacked a solid scientific foundation,”

McCarter neither explicitly raised Frye nor challenged the methodology of the State’s expert

opinions in relation to abusive head trauma and nonaccidental trauma. “‘The core concern [of Frye]

is only whether the evidence being offered is based on established scientific methodology.’” In re

Pers. Restraint of Morris, 189 Wn. App. 484, 492-93, 355 P.3d 355 (2015) (internal quotation marks

omitted) (quoting In re Det. of Thorell, 149 Wn.2d 724, 754, 72 P.3d 708 (2003)). Thus, it is clear

that McCarter’s challenge in the trial court was not based on Frye.

Rather, McCarter’s objection to the State’s expert testimony at trial was ostensibly an ER

702 challenge, despite the fact that the evidence rule was not explicitly cited as the basis for his

motion to exclude this testimony. For expert testimony to be admissible, “ER 702 requires that (1)

the witness is qualified as an expert and (2) the testimony would be helpful to the trier of fact.”

State v. Thomas, 123 Wn. App. 771, 778, 98 P.3d 1258 (2004). “Expert testimony is helpful if it

concerns matters beyond the common knowledge of the average layperson and does not mislead

the jury.” Id. However, as McCarter does not argue ER 702 on appeal, we need not consider

whether the State’s expert testimony was admissible under that rule.

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No. 85919-6-I/9

appellant must demonstrate (1) the error is manifest, and (2) the error is truly of

constitutional dimension.” State v. O’Hara, 167 Wn.2d 91, 98, 217 P.3d 756

(2009). “Failure to lay an adequate foundation under Frye does not create

manifest constitutional error.” State v. Newbern, 95 Wn. App. 277, 288, 975 P.2d

1041 (1999). Thus, “[w]hen a party fails to raise a Frye argument below, a

reviewing court need not consider it on appeal.” In re Det. of Taylor, 132 Wn. App.

827, 836, 134 P.3d 254 (2006); see also State v. Hettich, 70 Wn. App. 586, 592,

854 P.2d 1112 (1993) (“[T]he Frye argument was not raised below, and therefore

need not be considered on appeal.”). Because McCarter did not raise the Frye

issue in the trial court, the challenge is waived. 9

B. Invading the Province of the Jury

McCarter avers that an opinion that a child suffered “abusive head trauma”

or “nonaccidental trauma” is not a diagnosis, but, rather, “a legal conclusion that

the accused is guilty of a crime.” We disagree.

“No witness, lay or expert, may testify to [their] opinion as to the guilt of a

defendant, whether by direct statement or inference.” State v. Black, 109 Wn.2d

336, 348, 745 P.2d 12 (1987). “Impermissible opinion testimony regarding the

defendant’s guilt may be reversible error because such evidence violates the

defendant’s constitutional right to a jury trial, which includes the independent

determination of the facts by the jury.” State v. Kirkman, 159 Wn.2d 918, 927, 155

P.3d 125 (2007). But “if the testimony does not directly comment on the

9 Even on the merits, the Frye challenge would likely fail as this court has held that evidence

of “abusive head trauma” as a diagnosis satisfies the Frye standard. See Morris, 189 Wn. App. at

493-94.

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No. 85919-6-I/10

defendant’s guilt or veracity, helps the jury, and is based on inferences from the

evidence, it is not improper opinion testimony.” State v. Johnson, 152 Wn. App.

924, 930-31, 219 P.3d 958 (2009).

McCarter argues that the opinions of the various medical experts that AM’s

injuries were the result of “abusive,” “nonaccidental,” or “inflicted” trauma were

improper as they implied the actus reus, or wrongful act, of assault, which was an

ultimate issue of fact for the jury to determine. To convict McCarter of murder in

the second degree—felony murder—the State was required to prove he caused

AM’s death in the course of committing assault of a child in the first degree against

AM. RCW 9A.32.050(1)(b). Although the expert testimony did imply the actus

reus of assault of a child, an expert may express an “opinion on a proper subject

even though [they] thereby express[] an opinion on the ultimate fact to be found by

the trier of fact.” Kirkman, 159 Wn.2d at 929. “The mere fact that the opinion of

an expert covers an issue which the jury has to pass upon, does not call for

automatic exclusion.” Id.

McCarter relies on Florczak, wherein one of the defendants, Terrell,

appealed convictions for one count of child molestation in the first degree and one

count of sexual exploitation of a minor against her three-year-old daughter, KT. 76

Wn. App. at 57-58. Wilson, a social worker who had treated KT, provided an expert

opinion at trial that KT suffered from post-traumatic stress syndrome, which was

“secondary, in this case, in KT’s case, to sexual abuse.” Id. at 74. On review, this

court explained that the expert had “rendered an opinion of ultimate fact—whether

KT had been sexually abused—which was for the jury alone to decide.” Id.

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No. 85919-6-I/11

“Because only Terrell and Florczak were implicated as possible abusers, this

segment of Wilson’s testimony amounted to an opinion that they were guilty, either

individually or jointly, of sexually abusing KT.” Id. The court held that the opinion

invaded the province of the jury, but also concluded that the error was harmless.

Id. at 74-75.

Unlike Wilson’s opinion testimony in Florczak, which only implicated the

defendants as the abusers, the State’s experts here did not exclusively implicate

McCarter as the one responsible for all of AM’s injuries. While the expert opinions

did assert that the injuries strongly suggested that AM was intentionally harmed,

touching upon an ultimate issue of fact for the jury, the experts concluded that

some of AM’s injuries occurred at different points in time, not just on the day of the

incident when McCarter was watching the child. Additionally, in Florczak, the State

charged the defendants based upon one photograph that showed Terrell and KT

in the nude and KT’s allegation that the defendants had sexually abused her on

numerous occasions. 76 Wn. App. at 58-59. Here, however, the physical

evidence of AM’s injuries was overwhelming and the expert testimony

characterizing those injuries as resulting from “abusive head trauma” and

“nonaccidental trauma” did not take away the jury’s role in finding whether the

injuries occurred by outside force at all, as opposed to a bone disease, or who was

responsible for them. Another critical point of distinction from Florczak is the fact

that this court has recognized “abusive head trauma” as a valid diagnosis. In re

Pers. Restraint of Morris, 189 Wn. App. 484, 493-94, 355 P.3d 355 (2015). Finally,

while McCarter challenges the opinions offered by a number of experts as they

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No. 85919-6-I/12

pertained to “abusive head trauma” or “nonaccidental trauma,” it is noteworthy that

he does not challenge the opinion of the forensic pathologist who performed AM’s

autopsy. Lacsina expressly concluded that the “cause of death [wa]s due to

multiple blunt force injuries to the head” and ruled the child’s death a homicide.

No expert witness directly commented on McCarter’s guilt or otherwise

testified that McCarter intentionally harmed AM, and no expert witness offered an

opinion as to the specific mechanism that caused AM’s injuries. Rather, each

concluded, based on their respective training, experience, and review of AM’s

medical records, reports, and imaging, that the injuries were due to “nonaccidental

trauma” and “abusive head trauma,” which was helpful to the jury in determining

the cause of AM’s injuries and whether those injuries could have been sustained

by one short fall as suggested by McCarter’s theory of the case. Thus, the

testimony regarding nonaccidental trauma and abusive head trauma was not

improper and the trial court did not err in admitting it.

II. Prosecutorial Misconduct in Closing Argument

McCarter next claims the prosecutor committed misconduct in closing

argument by shifting the burden of proof. According to McCarter, the prosecutor

did so by suggesting defense expert Van Ee needed to explain AM’s rib fractures.

“[T]o prevail on a claim of prosecutorial misconduct, the defendant bears

the burden of showing that the comments were improper and that they were

prejudicial.” State v. Ish, 170 Wn.2d 189, 195, 241 P.3d 389 (2010). “Allegedly

improper arguments should be reviewed in the context of the total argument, the

issues in the case, the evidence addressed in the argument, and the instructions

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given.” State v. Russell, 125 Wn.2d 24, 85-86, 882 P.2d 747 (1994). “Prejudice

is established only if there is a substantial likelihood the instances of misconduct

affected the jury’s verdict.” State v. Pirtle, 127 Wn.2d 628, 672, 904 P.2d 245

(1995). “Reversal is not required if the error could have been obviated by a

curative instruction which the defense did not request.” Russell, 125 Wn.2d at 85.

Prosecutors have “wide latitude to argue reasonable inferences from the

evidence,” but it is improper “to argue that the burden of proof rests with the

defendant.” State v. Thorgerson, 172 Wn.2d 438, 453, 258 P.3d 43 (2011).

“Generally, a prosecutor cannot comment on the lack of defense evidence

because the defendant has no duty to present evidence.” State v. Cheatam, 150

Wn.2d 626, 652, 81 P.3d 830 (2003). However, “the mere mention that defense

evidence is lacking does not constitute prosecutorial misconduct or shift the burden

of proof to the defense.” State v. Jackson, 150 Wn. App. 877, 885-86, 209 P.3d

553 (2009).

McCarter points to the following portion of the State’s closing argument:

[State]: Here’s where there’s a large hole in the defense theory of the

case with their biomechanical expert. Dr. Van Ee was not asked to

opine on whether the rib fractures could have resulted from this

alleged fall, despite the fact he testified that he had done lots of work

in chest injuries, rib fractures, seat belts, and car seats, so he

certainly could have offered an opinion there. The only experts that

do say the rib fractures were consistent are Dr. Ayoub, and he’s not

a biomechanical expert.

And why wasn’t Dr. Van Ee asked to provide an explanation

for the rib fractures? Because those injuries would not have occurred

in the fall described—

[Defense]: Objection, Your Honor.

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The trial court overruled the objection and explained the “argument that was

made is that there’s certain things that Dr. Van Ee did not testify to, that he did not

give an explanation about, that he has qualifications to give perhaps some opinions

and did not.” When the jury returned, the prosecutor continued: “So why didn’t Dr.

Van Ee provide an explanation for the rib fractures? Because they were not caused

by that fall. And Dr. Tencer testified to that.”

This was not improper burden shifting. In limited circumstances, “[a]

prosecutor can comment on the accused’s failure to present evidence on a

particular issue if persons other than the accused or [their] spouse could have

testified for [them] on that issue.” State v. Bebb, 44 Wn. App. 803, 815, 723 P.2d

512 (1986), aff’d, 108 Wn.2d 515, 740 P.2d 829 (1987). So long as the defendant

testifies, “prosecutors are permitted to comment on a defendant’s failure to

produce corroborative evidence to support their testimony and [] such comments

do not improperly shift the burden of proof.” State v. Sundberg, 185 Wn.2d 147,

155-56, 370 P.3d 1 (2016).

Here, McCarter maintained that AM’s injuries resulted from a single fall of a

few feet onto a carpeted surface while strapped in a car seat that appeared to have

a five-point harness; he testified to his version of events and provided two

reenactments. However, McCarter’s only biometrics expert, Van Ee, who had

experience in pediatric rib fractures, was not asked to provide an opinion as to

whether such a fall could result in AM’s multiple bilateral rib fractures. Thus, even

though the prosecutor commented on McCarter’s failure to present evidence in

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support of his testimony, the comment did not improperly shift the burden of proof.

See Id.

III. Trial Court Limitation of Defense Closing Argument

McCarter avers the trial court violated his “right to present a defense” by not

allowing defense counsel to describe the reasonable doubt standard during closing

argument.

The “right to present a defense” is the “right to offer the testimony of

witnesses, and to compel their attendance, if necessary.” Washington v. Texas,

388 U.S. 14, 19, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967); see also State v.

Lizarraga, 191 Wn. App. 530, 552, 364 P.3d 810 (2015) (“The fundamental due

process right to present a defense is the right to offer testimony and compel the

attendance of a witness.”). This due process right is guaranteed by the Sixth

Amendment to the United States Constitution and article I, section 22 of our state

constitution. Washington, 388 U.S. at 19; State v. Hudlow, 99 Wn.2d 1, 14-15,

659 P.2d 514 (1983).

Separately, the Sixth Amendment ensures the right to assistance of

counsel, 10 which “includes the right of counsel to argue the case to the jury,” and

this right may be infringed upon “where a trial court unduly limits the scope of

defense counsel’s closing argument.” State v. Frost, 160 Wn.2d 765, 773, 161

P.3d 361 (2007). The complete denial of a defendant’s right to have counsel

10 The Sixth Amendment guarantees criminal defendants “the rights to a ‘speedy and public

trial,’ to an ‘impartial jury,’ to notice of the ‘nature and cause of the accusation,’ to be ‘confronted’

with opposing witnesses, to ‘compulsory process’ for defense witnesses, and to the ‘Assistance of

Counsel.’” Herring v. New York, 422 U.S. 853, 856-57, 95 S. Ct. 2550, 45 L. Ed. 2d 593 (1975).

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No. 85919-6-I/16

provide any closing argument is a denial of “the assistance of counsel that the

Constitution guarantees.” Herring v. New York, 422 U.S. 853, 865, 95 S. Ct. 2550

45 L. Ed. 2d 593 (1975). While closing argument does implicate the defendant’s

due process and Sixth Amendment rights, State v. Osman, 192 Wn. App. 355,

368-69, 366 P.3d 956 (2016), closing argument is not, as McCarter asserts, “[a]

critical part of the right to present a defense.”

Rather, McCarter’s challenge is based on the alleged violation of his right

to “‘have his counsel make a proper argument on the evidence and the applicable

law in his favor.’” Herring, 422 U.S. at 860 (quoting Yopps v. State, 228 Md. 204,

207, 178 A.2d 879 (1962)). Accordingly, we review this claim as an improper

limitation on closing argument, not as a violation of the “right to present a defense.”

The State concedes that the trial court’s limitation was erroneous but contends that

it was harmless. We agree with the State.

“Rulings by a trial court restricting the scope of argument are reviewed with

a view toward determining if the trial court abused its discretion.” State v. Perez-

Cervantes, 141 Wn.2d 468, 475, 6 P.3d 1160 (2000). “A court abuses its discretion

when an ‘order is manifestly unreasonable or based on untenable grounds.’” State

v. Rafay, 167 Wn.2d 644, 655, 222 P.3d 86 (2009) (quoting Wash. State

Physicians Ins. Exch. & Ass’n v. Fisons Corp., 122 Wn.2d 299, 339, 858 P.2d 1054

(1993)). An abuse of discretion also occurs if the trial court “‘base[s] its ruling on

an erroneous view of the law.’” Id. (quoting Fisons Corp., 122 Wn.2d at 339).

“[T]he trial court should restrict the argument of counsel to the facts in evidence

and the law as set forth in the instructions to the jury.” Osman, 192 Wn. App. at

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368. However, “[w]here a trial court goes too far in limiting the scope of closing

argument, a defendant’s constitutional rights may be implicated.” Frost, 160

Wn.2d at 772.

In Osman, this court addressed the trial court’s limitation on defense closing

argument concerning the meaning of “‘beyond a reasonable doubt.’” 192 Wn. App.

at 373-74. During closing argument, Osman’s attorney explained to the jury that

“an abiding belief of the truth of the charge” meant that “you can’t change your

mind and look back and say I wonder if I made a mistake,” whether it was “[a]

month from now” or “[a] year from now.” Id. at 374. The State objected and the

trial court sustained the objection on the basis that the description of “abiding

belief” was inaccurate. Id. On review, this court determined the trial court erred

because defense counsel’s argument “properly addressed the significance of

having ‘an abiding belief in the truth of the charge’” and it was “not an improper

characterization of the reasonable doubt standard.” Id. at 377.

Here, defense counsel described the burden of proof as follows:

So again, you know, the standard being beyond a reasonable doubt,

it’s there because we’re talking about the individual now. We’re not

talking about the general. You’re not here to solve the mystery.

You’re here to hold the State to that burden.

That’s, you know, fortunate for you and for anybody that’s

charged with a crime. It’s fortunate because [] McCarter can count

on you to hold the State to that burden. Holding the State to that

burden lets you and any other jury that serves be able to make a

decision and leave and be confident in that decision ten and twenty

years from now.

The State then objected and the trial court sustained the objection.

This ruling was erroneous. Similar to the attorney in Osman who properly

used a duration of time to further explain an abiding belief, McCarter’s counsel did

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No. 85919-6-I/18

the same to describe the confidence that the jury should have in its decision.

Although McCarter’s proffered timeframe was longer than was determined

reasonable in Osman, nothing in that holding restricted the duration to that which

was provided in the facts of that case. Accordingly, as duration is a proper

consideration with regard to an abiding belief and it does not mischaracterize the

State’s burden, the trial court erred in sustaining the State’s objection to this

argument by the defense.

An erroneous “limitation of the scope of closing affects the ‘trial process

itself’ and is subject to a constitutional harmless error analysis.” Osman, 192 Wn.

App. at 377 (quoting Frost, 160 Wn.2d at 781-82) (internal quotations omitted). “In

order to hold the error harmless, we must ‘conclude beyond a reasonable doubt

that the jury verdict would have been the same absent the error.’” State v. Brown,

147 Wn.2d 330, 341, 58 P.3d 889 (2002) (quoting Neder v. United States, 527

U.S. 1, 19, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999)).

To convict McCarter of murder in the second degree—felony murder—the

State had to prove he intentionally assaulted AM, an infant, and recklessly inflicted

great bodily harm, which caused AM’s death. RCW 9A.32.050(1)(b);

9A.36.120(1)(b)(i). Although the specific mechanism that caused the injuries to

AM is unknown, McCarter confirmed that he was alone with AM when the injuries

took place and Jennifer testified that AM was healthy prior to the incident. This

strong circumstantial evidence provides a sufficient basis from which the jury could

conclude McCarter was the one responsible for AM’s severe injuries.

Circumstantial evidence is just as reliable as direct evidence. State v. Delmarter,

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No. 85919-6-I/19

94 Wn.2d 634, 638, 618 P.2d 99 (1980). While only McCarter knows exactly what

took place on December 3 and he testified that an accidental fall caused the

injuries to AM, numerous doctors who treated the infant testified that the nature

and extent of those injuries contradicted McCarter’s version of events. Specifically,

the State’s expert medical testimony was that AM’s injuries could not have been

the result of a single fall as his skull was fractured on one side and injured on the

other, and that the infant suffered numerous rib fractures on both sides of his body

that could not be explained by the car seat or the fall that McCarter described.

Additionally, the jury was provided a pattern jury instruction on the State’s

burden to prove each element of the crime beyond a reasonable doubt, which was

defined therein as follows:

A reasonable doubt is one for which a reason exists and may arise

from the evidence or lack of evidence. It is such a doubt as would

exist in the mind of a reasonable person after fully, fairly, and

carefully considering all of the evidence or lack of evidence. If, from

such consideration, you have an abiding belief in the truth of the

charge, you are satisfied beyond a reasonable doubt.

This court “presume[s] the jury follows the instructions of the court.” Osman, 192

Wn. App. at 379. Based on the testimony of numerous doctors who treated AM

and medical experts who reviewed the medical evidence, as well as strong

circumstantial evidence, we conclude beyond a reasonable doubt that the jury

verdict would have been the same without the error. 11

11 McCarter also seeks reversal based on the “cumulative prejudice of multiple errors.” The

cumulative error doctrine “does not apply where the errors are few and have little or no effect on

the trial’s outcome.” State v. Venegas, 155 Wn. App. 507, 520, 228 P.3d 813 (2010). Because

only one error occurred, which was harmless beyond a reasonable doubt, the cumulative error

doctrine is inapplicable here.

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No. 85919-6-I/20

IV. Exceptional Sentence above the Standard Range

McCarter’s offender score after trial was calculated as 0, based on his lack

of prior criminal history, and his standard sentencing range was determined to be

123-220 months in prison. When the State seeks a sentence above the standard

range, it must provide notice of the “aggravating circumstances upon which the

requested sentence will be based.” RCW 9.94A.537(1). The facts supporting

aggravating circumstances must be proved beyond a reasonable doubt and the

“jury’s verdict on the aggravating factor[s] must be unanimous, and by special

interrogatory.” RCW 9.94A.537(3).

The State sought an exceptional sentence above the standard range, based

on the facts of the case and the jury’s special verdicts as to the aggravating factors

presented at trial. It asked the court to impose 440 months in prison, “twice the

top of the standard range.” Defense counsel objected and argued in its sentencing

brief that the aggravators were

already part of the underlying verdict of guilty to [s]econd [d]egree

[m]urder where the predicate felony violation was [a]ssault of a [c]hild

in the [f]irst [d]egree. It would be inconsistent for a jury to return a

guilty verdict against a parent of a child for [a]ssault in the [f]irst

[d]egree, and not find both that the child was a particularly vulnerable

victim and that the [p]arent was in a position of trust.

The defense asked the court for a sentence within the standard range. After

hearing argument from the parties at sentencing, the court found that the jury had

considered each aggravating factor under the relevant statute and “unanimously

found that the circumstances [were] proved beyond a reasonable doubt.” It

concluded that there were “substantial and compelling reasons to impose an

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No. 85919-6-I/21

exceptional sentence,” but declined to impose the 440 months requested by the

State and instead sentenced McCarter to 360 months in prison.

McCarter assigns error to the exceptional sentence based on sufficiency of

the evidence and, separately, to the trial court’s conclusion that it was supported

by substantial and compelling reasons. “[A]n exceptional sentence is subject to

review only as set forth in RCW 9.94A.585(4).” State v. Stubbs, 170 Wn.2d 117,

123, 240 P.3d 143 (2010). That provision provides the following:

To reverse a sentence which is outside the standard sentence range,

the reviewing court must find: (a) Either that the reasons supplied by

the sentencing court are not supported by the record which was

before the judge or that those reasons do not justify a sentence

outside the standard sentence range for that offense; or (b) that the

sentence imposed was clearly excessive or clearly too lenient.

RCW 9.94A.585(4).

A. Sufficiency of the Evidence as to Aggravating Circumstances

This court reviews the jury’s findings on aggravating circumstances under

the sufficiency of the evidence standard. Stubbs, 170 Wn.2d at 123. Accordingly,

we consider “the evidence in the light most favorable to the State to determine

whether any rational trier of fact could have found the presence of the aggravating

circumstances beyond a reasonable doubt.” State v. Chanthabouly, 164 Wn. App.

104, 143, 262 P.3d 144 (2011). “[A]ll reasonable inferences from the evidence

must be drawn in favor of the State and interpreted most strongly against the

defendant.” State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). And

“circumstantial evidence is not to be considered any less reliable than direct

evidence.” Delmarter, 94 Wn.2d at 638.

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No. 85919-6-I/22

Here, the State alleged two aggravating circumstances in the amended

information: that AM was a particularly vulnerable victim under RCW

9.94A.535(3)(b), and that McCarter used his position of trust to facilitate the

commission of the crime pursuant to RCW 9.94A.535(3)(n). The trial court

instructed the jury on each of the aggravating circumstances, that the reasonable

doubt standard applied when deciding these aspects of the case, and that the

verdict on each of the aggravating factors must be unanimous. The jury found that

the State had satisfied its burden to prove each one beyond a reasonable doubt.

McCarter contends the “evidence does not support either aggravating factor.” We

disagree.

1. Particularly Vulnerable Victim

RCW 9.94A.535(3) provides that a sentencing court may depart from the

applicable standard sentencing range where certain aggravating factors have

been considered by a jury. One such circumstance is where the jury finds that the

“defendant knew or should have known that the victim of the current offense was

particularly vulnerable or incapable of resistance.” RCW 9.94A.535(3)(b). For this

aggravating circumstance to “justify an exceptional sentence, the State must show

(1) that the defendant knew or should have known (2) of the victim’s particular

vulnerability and (3) that vulnerability must have been a substantial factor in the

commission of the crime.” State v. Suleiman, 158 Wn.2d 280, 291-92, 143 P.3d

795 (2006). Only the third prong is at issue here as McCarter concedes in briefing

that “[a]s an immobile, preverbal newborn, A.M. likely had a particular vulnerability.

And as A.M.’s father and caretaker, [] McCarter likely knew this.”

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No. 85919-6-I/23

In State v. Berube, our Supreme Court explained, “Extreme youth is a valid

aggravating factor when considering the vulnerability of a victim.” 150 Wn.2d 498,

513, 79 P.3d 1144 (2003). Berube was convicted of homicide by abuse and given

an exceptional sentence based, in part, on the aggravating factor of the victim’s

vulnerability. Id. at 512. The victim was Berube’s son, Kyle, who was only 23

months old at the time he was killed. Id. at 513. Kyle had numerous injuries and

bruising across his body, and the cause of death was “blunt force impact to the

head.” Id. at 502. In addressing the aggravating factor of victim vulnerability, the

court explained that Kyle was “less than two years old,” he was “completely

dependent on Berube and [the codefendant] for his well[-]being,” he was “unable

to communicate to any other adult about the abuse,” and he lacked the “ability to

defend himself or to call for help.” Id. at 513.

The reasoning set out in Berube applies equally here. Not only was AM,

like Kyle, the child of the defendant, but AM was 21 months younger than Kyle. As

in Berube, the evidence here shows that AM was entirely dependent on McCarter

for his care and survival on the day he was injured, and because AM could not

speak, he could not communicate to any other adult, including his mother. It goes

without saying that a two-month-old infant is unable to defend themselves,

particularly against the physical force an adult is capable of generating. When the

evidence is viewed in the light most favorable to the State, a rational trier of fact

could have found AM to be a particularly vulnerable victim based on his extreme

youth, which was a substantial factor as it enabled McCarter to inflict injuries as

severe as those identified in AM by the various medical experts. Most critically,

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No. 85919-6-I/24

the court instructed the jury on the third prong McCarter now challenges, that the

“victim’s vulnerability must also be a substantial factor in the commission of the

crime” and that it was the State’s burden to prove this fact beyond a reasonable

doubt. Where, as here, there is no evidence of the contrary, the jury is presumed

to have followed the instructions of the court. Kirkman, 159 Wn.2d at 928. Thus,

we reject McCarter’s challenge to the factual sufficiency of this aggravating factor.

2. Use of Position of Trust

RCW 9.94A.535(3)(n) defines another aggravating circumstance that can

justify the imposition of an exceptional sentence as one where “[t]he defendant

used [their] position of trust, confidence, or fiduciary responsibility to facilitate the

commission of the current offense.” To determine whether the defendant “abused

a sufficient position of trust to merit an exceptional sentence,” courts consider the

duration and the degree of the relationship. State v. Grewe, 117 Wn.2d 211, 218,

813 P.2d 1238 (1991). “‘A relationship extending over a longer period of time, or

one within the same household, would indicate a more significant trust relationship,

such that the offender’s abuse of that relationship would be a more substantial

reason for imposing an exceptional sentence.’” Id. at 219 (quoting State v. Fisher,

108 Wn.2d 419, 427, 739 P.2d 683 (1987)). The age of the victim is also

considered; children are “among the most vulnerable members of society” and

“[o]ne aspect of children’s extreme vulnerability is their tendency to trust.” Id. at

221.

In Berube, this aggravating factor was another basis for the exceptional

sentence imposed. 150 Wn.2d at 513-14. The court noted the “fact that Berube

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No. 85919-6-I/25

was Kyle’s parent and [the codefendant] was a parent-figure gave them

unmonitored access to Kyle.” Id. at 513. Under the circumstances, the court held

that “Berube and [the codefendant’s] actions amounted to an abuse of their

position of trust toward Kyle.” Id. Here, just like the circumstances in Berube,

McCarter was AM’s father and he had unmonitored access to AM. Moreover,

McCarter and AM lived in the same house together and their relationship spanned

the entirety of AM’s brief life. Again, AM was only two months old at the time of

the incident; he was extremely vulnerable to McCarter who was able to inflict these

injuries because of AM’s age. When viewed in the light most favorable to the State,

the evidence is sufficient for a reasonable juror to conclude that McCarter abused

his position of trust to facilitate this crime. Just as with the particularly vulnerable

victim aggravating factor, the record establishes that the jury was properly

instructed on the statutory elements, the burden of proof and requirement for

unanimity. Because we presume that the jury followed the court’s instructions as

to its duty with regard to this special verdict, McCarter has failed to demonstrate

error on this issue.

B. Substantial and Compelling Reasons To Impose Exceptional Sentence

McCarter’s final challenge is to the trial court’s “finding” of substantial and

compelling reasons justifying the exceptional sentence. While this aspect of the

trial court’s ruling is set out as a conclusion of law, McCarter argues that this was

an improper finding of fact by the judge that violated his constitutional right to a

jury trial. We disagree.

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No. 85919-6-I/26

“The Sixth Amendment to the United States Constitution guarantees

criminal defendants a right to trial by jury.” State v. Sage, 1 Wn. App. 2d 685, 707,

407 P.3d 359 (2017). In Apprendi v. New Jersey, the Supreme Court held, “Other

than the fact of a prior conviction, any fact that increases the penalty for a crime

beyond the prescribed statutory maximum must be submitted to a jury, and proved

beyond a reasonable doubt.” 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d

435 (2000). Thereafter, the Court clarified that “the relevant ‘statutory maximum’

is not the maximum sentence a judge may impose after finding additional facts,

but the maximum [they] may impose without any additional findings.” Blakely v.

Washington, 542 U.S. 296, 303-04, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). In

light of Apprendi and Blakely, our legislature amended the Sentencing Reform Act

of 1981 (SRA), ch. 9.94A RCW, to require a jury to find “any facts supporting

aggravating circumstances beyond a reasonable doubt and by special

interrogatory.” Stubbs, 170 Wn.2d at 123 (citing RCW 9.94A.537(3)); LAWS OF

2005, ch. 68, § 1.

Under RCW 9.94A.537(6), if the jury finds an aggravating circumstance, the

trial court may impose a sentence beyond the standard range “if it finds,

considering the purposes of this chapter, that the facts found are substantial and

compelling reasons justifying an exceptional sentence.” (Emphasis added.)

McCarter argues that this judicial determination violates the Sixth Amendment

because it allows for an increase in the sentence based on a “finding by the court.”

This court has already considered and rejected the arguments McCarter

now presents. See Sage, 1 Wn. App. 2d at 707-09. Sage explained that

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No. 85919-6-I/27

“Washington cases recognize that once the jury by special verdict makes the

factual determination whether aggravating circumstances have been proved

beyond a reasonable doubt, ‘the trial judge is left only with the legal conclusion of

whether the facts alleged and found were sufficiently substantial and compelling

to warrant an exceptional sentence.’” Id. at 708 (quoting Suleiman, 158 Wn.2d at

290-91). On this point, Sage included a lengthy footnote listing authority from our

Supreme Court in support of its holding:

“In the context of discussions about standard of review, this court has

held that whether a court’s stated reasons are sufficiently substantial

and compelling to support an exceptional sentence is a question of

law. State v. Cardenas, 129 Wn.2d 1, 6 n.1, 914 P.2d 57 (1997);

State v. Chadderton, 119 Wn.2d 390, 399, 832 P.2d 481 (1992):

State v. Grewe, 117 Wn.2d 211, 215-16, 813 P.2d 1238 (1991); State

v. Nordby, 106 Wn.2d 514, 518, 723 P.2d 1117 (1986). In contrast,

whether an aggravating factor is present in a particular case, in other

words, whether a stated reason is supported by the record, is a

factual determination. Nordby, 106 Wn.2d at 517-18; see also

Cardenas, 129 Wn.2d at 5 (applying a clearly erroneous standard to

this question); State v. Fisher, 108 Wn.2d 419, 423, 739 P.2d 683

(1987); State v. Woody, 48 Wn. App. 772, 776, 742 P.2d 133 (1987).

Thus, whether a particular aggravating factor is supported by the

record is a question of fact, while the question of whether the found

factors are sufficiently substantial and compelling is a matter of law.”

158 Wn. App. 2d at 708 n.80 (quoting Suleiman, 158 Wn.2d at 291 n.3).

Sage also distinguished Hurst v. Florida, 577 U.S. 92, 136 S. Ct. 616, 193

L. Ed. 2d 504 (2016), on which McCarter heavily relies for his contention that the

judge’s determination constituted a prohibited finding of fact.

In Hurst, the Supreme Court held Florida’s death penalty procedure

violated the defendant’s Sixth Amendment right to a jury trial

because the jury’s findings of aggravating factors were advisory,

resulting in prohibited fact finding by the judge. But the Florida statute

at issue expressly state[d] that the jury findings were “advisory.”

Former FLA. STAT. § 921.141 (2010). By contrast, under Washington

procedure here, the jury exclusively resolves the factual question

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No. 85919-6-I/28

whether the aggravating circumstances have been proven beyond a

reasonable doubt.

Sage, 1 Wn. App. 2d at 710 n.86.

While McCarter acknowledges the contrary holding in Sage, he claims it

was made “without reasoning or analysis.” Sage is well reasoned and squarely on

point; the opinion walks through the various procedural steps between verdict and

sentencing and explains which involve legal determinations or factual

determinations, including the proper party to reach them. 1 Wn. App. 2d at 709-

710. Thus, we follow Sage as controlling authority and conclude that the trial judge

did not engage in prohibited fact finding when it concluded under RCW

9.94A.537(6) that the jury found the aggravating factors had been proved beyond

a reasonable doubt and that those aggravators provided the proper legal basis for

an exceptional sentence outside McCarter’s standard range.

Affirmed.

WE CONCUR:

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