State Of Washington, Respondent V. Samuel Kenneth Mcdonough, Appellant

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, 	;
Respondent, 	)
No. 69378-6-1
DIVISION ONE
CO ( 3
v. 	t
UNPUBLISHED OPINION 	CD
"'Vs
SAMUEL KENNETH MCDONOUGH, 	] 5
Appellant. 	FILED: 	March 10, 2014 	ro
T,'10
Grosse, 	J. 	— 	Samuel 	McDonough 	contends 	evidentiary 	error 	and
prosecutorial misconduct occurred 	during his trial for indecent exposure and
attempted burglary. 	Because the errors, if any, were harmless, we affirm his
conviction for indecent exposure.
FACTS
Based on allegations that McDonough exposed himself to employees of a
drive-through coffee stand 	and then attempted 	to enter the stand, the State
charged 	him 	with 	felony 	indecent exposure 	and 	second 	degree 	attempted
burglary, both with sexual motivation.
At trial, the 	State's 	evidence 	established 	that 	on 	February 	2, 	2012,
Rachelle Hunt, Demi Ryerson, and Meisha Peffley were working at BigFoot Java,
a drive-though/walk-up coffee stand in Issaquah. Around 8:00 a.m., McDonough
walked up and ordered coffee. He paid for the coffee, left a tip, and asked to use
a restroom. 	Hunt told him that their restroom was for employees only.
McDonough loitered on the property for the next 20 to 30 minutes. He sat
down on a cinderblock ledge about six feet from the stand. 	He made odd facial

No. 69378-6-1 / 2
expressions and 	blew kisses at Ryerson and 	Hunt, who made sure that the
stand's windows and doors were locked. 	Ryerson then noticed that McDonough
had 	exposed 	his 	penis 	and 	was 	masturbating while 	looking 	at her. 	When
customers walked up, he stopped temporarily, "putting his penis away."
Peffley subsequently observed McDonough masturbating and called 911.
A recording of the call was played for the jury.
The women continued to watch McDonough from the back of the coffee
stand via 	video surveillance cameras. 	When 	he could 	no 	longer see them
through the coffee stand windows, McDonough approached the stand and looked
in the windows. 	He appeared to turn the doorknob on the stand's door, but it was
locked.
Around 	8:35 a.m., 	Issaquah 	Police Officer Brian 	Horn 	arrived 	on 	the
scene. 	He observed McDonough moving quickly up an embankment near the
coffee 	stand. 	He 	apprehended 	McDonough, 	placed 	him under arrest, 	and
searched 	him for 	weapons. 	Over 	relevance 	objections, 	Horn testified 	that
McDonough had a folded pocket knife in his pocket.
Issaquah 	Police Officer Ronald Adams testified that he 	arrived at the
scene after Officer Horn. 	All three women were hiding and "were obviously
vis[ibly] shaken."
Shortly after 9:00 a.m., Officer Horn interviewed McDonough at the police
station. 	An audio recording of the interview was played for the jury. 	During the
interview, McDonough said he was high on methamphetamine and had used it
six hours before. 	He also said he was diabetic and took insulin twice a day.

No. 69378-6-1 / 3
He told Officer Horn that he purchased coffee at the coffee stand, asked to
use the restroom, and tipped the barista. 	When asked if he knew why the police
showed up, he responded, "[Sjome girls were weirded [sic] out by me, uh, just
hanging out around a parking lot." 	McDonough said, "I'm sure [the employees]
could tell I was high on meth . . . because I just-couldn't sit still." 	When told that
witnesses said he exposed his penis and masturbated, McDonough said, "They
might have mistook something for something else." 	In response to additional
questions about exposing 	himself, McDonough stated, "It's a court case" and
explained 	that 	he 	was 	being 	as 	forthcoming 	as 	he 	could 	be 	under 	the
circumstances.
McDonough talked about 	"being followed 	by the feds" and 	people on
Myspace. 	He said "every time I do drugs, there's all kinds of things going on, all
kinds of people. 	I don't know if they're following me ... . 	I'm probably - you
know, the drugs are having an effect but there's just got to be something going
on."
McDonough said he had difficulty communicating with women or having
relations with them. 	He also talked about social boundaries, saying that "[t]he
boundaries and the limits that other people like live by, they don't apply to me."
He then said, "I crossed some boundaries today," "I pushed boundaries." At one
point, McDonough said, "[S]ociety at large is almost all based on emotions
respect for each other. . ., do this and that and the other thing. 	I always seem to
get that wrong .... And, uh, maybe I'm just looking for a shortcut."

No. 69378-6-1/4
Officer 	Horn 	described 	McDonough 	as 	"articulate," 	"intelligent 	with
understanding what [Horn] was asking," and "actually even stopped himself and
said, well, I have to think about how I want to say this."
The defense called 	Dr. Steven Juergens, 	a 	psychiatrist specializing in
addiction. 	He testified that McDonough was suffering from methamphetamine-
induced intoxication, hyperglycemia, and underlying paranoid schizophrenia at
the time of the offense. 	According to Dr. Juergens, these conditions collectively
caused a methamphetamine intoxication delirium that diminished McDonough's
capacity to 	form 	the 	mental 	state for 	the 	offense—i.e., 	knowledge that 	his
conduct would cause a reasonable person affront or alarm.
On cross-examintion, Dr. Juergens said McDonough told him that he had
suffered from "meth-induced psychosis" on the day of the offense. 	McDonough
also said 	he took "a huge shot of amphetamines" within several hours of the
offense. 	When asked if his opinion would change if McDonough had actually
used 	methamphetamine 	six 	hours 	before 	the 	offense 	instead 	of 	two, 	Dr.
Juergens said that "even if he had done it four hours earlier, he still could have
been in - 	in a delirious or a high state." 	Dr. Juergens conceded that substance
abuse patients will sometimes lie to him.
Dr. Juergens testified that 	in his state of delirium, McDonough "wasn't
making good decisions about what he was doing. 	He wasn't aware of all of the
input and how it would affect people and what was happening." 	His paranoia
also demonstrated a disordered thought process and contributed to his reduced
awareness 	of the 	consequences 	of his actions. 	On cross-examination, 	Dr.

No. 69378-6-1 / 5
Juergens 	conceded 	that 	McDonough's 	behavior when 	he 	purchased 	coffee,
conversed with the barista, and left a tip was more consistent with awareness of
social acceptability than the absence of such awareness. 	Similarly, Dr. Juergens
stated that McDonough's flight upon the arrival of police indicated that "on some
level he had some sense that it's inappropriate to masturbate there
Dr. Juergens was aware of McDonough's three prior incidents of indecent
exposure. 	He conceded that he did not make an independent determination as
to McDonough's mental state during those incidents. 	He said that McDonough
told him he was high on cocaine or methamphetamine during those incidents.
He admitted, however, that there was no evidence corroborating McDonough's
claim as to two of the incidents. 	In the third incident, McDonough approached a
woman, offered her cocaine, and while openly masturbating said, "I want to jump
your bones, and I think you're so sexy."
The 	jury 	convicted 	McDonough 	of 	indecent 	exposure 	with 	sexual
motivation, but acquitted him of attempted burglary and the lesser included crime
of attempted criminal trespass.
ANALYSIS
McDonough 	contends 	the trial 	court 	abused 	its 	discretion1 	when 	it
admitted evidence that the arresting officer found 	a 	knife in his pocket. 	He
argues that the knife was irrelevant and, alternatively, that any probative value of
the evidence was substantially outweighed by the danger of unfair prejudice. 	We
1We review rulings on the admission of evidence for abuse of discretion. 	State
v. Powell. 126 Wn.2d 244, 258, 893 P.2d 615 (1995).

No. 69378-6-1 / 6
need not decide whether the evidence was properly admitted because any error
was harmless.
Error 	in 	admitting 	evidence 	is 	harmless 	"'unless, 	within 	reasonable
probabilities, had the error not occurred, the outcome of the trial would 	have
been materially affected.'"2 	McDonough's knife was only mentioned once at trial
and was not mentioned at all in closing argument. 	Significantly, the jury found
McDonough not guilty of attempted burglary—the only offense that the knife was
potentially relevant to. 	The acquittal on that charge demonstrates that, contrary
to McDonough's assertions, the knife evidence did not trigger a desire "to remove
McDonough from the community via incarceration, 	regardless of whether the
State had met its burden of proving the charge beyond 	a reasonable doubt."
Thus, even if the court abused its discretion, there is no reasonable probability
that the error affected the verdict.
McDonough 	also 	contends 	that 	prosecutorial 	misconduct 	in closing
argument denied him a fair trial. 	McDonough bears the burden of showing both
improper conduct and prejudicial effect.3 To establish prejudice, he must show a
substantial likelihood that the misconduct affected the jury's verdict.4 	We view
the challenged remarks in the context of the entire argument, the issues in the
case, the evidence addressed in the argument, and the instructions given to the
2 State v. Brown. 113 Wn.2d 	520, 554, 782 P.2d 1013, 787 P.2d 906 (1989)
(quoting State v. Smith. 106 Wn.2d 772, 780, 725 P.2d 951 (1986)).
3 State v. Brown. 132 Wn.2d 529, 561, 940 P.2d 546 (1997), cert, denied. 523
U.S. 1007(1998).
4 Brown, 132 Wn.2d at 561.

No. 69378-6-1 / 7
jury.5 	A prosecutor has wide latitude in closing argument to draw and express
reasonable inferences from the evidence.6
McDonough contends the prosecutor committed misconduct when, over
defense objections, he made the following remarks:7
"I have never been more scared in my life." When we think
of the moments in our lives when we have the greatest amount of
fear, the greatest amount of apprehension, for Meisha that day was
going to be February 2nd, 2012. 	And we have to only imagine
what it must have been like having to put forward a happy face, try
to serve more customers, while at the same time having that level
offear and anxiety that forces you to call 911 to get help.'81
. . . And we must also imagine what it must have been like
for Demi as she's putting forward this happy face, trying to serve
customers, but knowing how violated she feels, how disgusted she
is of the Defendant's actions. And 	how, just the very nature of
where these young women are, Big[F]oot Java - I mean, they're
trapped inside - it's essentially a fishbowl, visible to the outside
world. The only . . . physical boundary that separates them from the
outside world is a plane of glass. 	And yet, at the same time, there
are additional boundaries that we have in place as a community,
social boundaries that shield 	us ... . [that] shield 	us from the
Defendant's-or-or, protect us from people's actions. 	And in this
case, these are boundaries that should 	have protected 	Meisha,
Demi, and Rachelle from the Defendant.9
But the reality is, on February 2nd, these boundaries that
should have protected those girls - the Defendant didn't care. 	He
didn't care about these boundaries. 	[Portions of the defendant's
recorded statement to police are played.]
McDonough claims these remarks were improper in two respects.
5 Brown. 132 Wn.2d at 561.
6 State v. Stenson. 132 Wn.2d 668, 727, 940 P.2d 1239 (1997).
7 Br. of Appellant at 17 (appellant's emphasis).
8 Defense counsel objected on grounds that the prosecutor's argument was "a
simple appeal to fear." The trial court responded, "You've made your record."
9 Defense counsel again objected, arguing that the prosecutor was appealing to
community safety. 	The objection was overruled.
7

No. 69378-6-1 / 8
First, he contends the references to "social boundaries" were an improper
appeal "to the jurors' notions of personal and community safety." 	We disagree.
A prosecutor commits misconduct if he 	or she "'appeals to jurors' fear and
repudiation of criminal groups'"10 or argues "that the jury should convict in order
to protect the community, deter future law breaking, or other reasons unrelated to
the charged crime."11 	But the prosecutor's remarks in this case were directly
related to 	the elements of the charged 	offense. 	To 	convict McDonough of
indecent exposure, the jury had to determine that McDonough exposed himself
"knowing that such conduct [was] likely to cause reasonable affront or alarm." 	In
essence, the jury had to consider whether "the common sense of society would
regard the specific act performed as indecent and improper."12 	The prosecutor's
remarks regarding "social boundaries" were a proper attempt to illuminate this
point.
Second, McDonough contends the emphasized portions of the remarks
amounted to an improper "golden rule" argument because they urged the jury to
sympathize with the victims by putting themselves in their shoes. 	Washington
courts have held that "golden rule" arguments are generally improper because
they invite the jury to decide the case "based on sympathy, prejudice or bias,
rather than on the evidence and the law."13 	Our Supreme Court, however, has
10 State v. Ramos. 164 Wn. App. 327, 338 n.3, 263 P.3d 1268 (2011) (quoting
State v. Perez-Meiia. 134 Wn. App. 907, 916, 143 P.3d 838 (2006)).
11 Ramos. 164 Wn. App. at 338 (emphasis added).
12 State v. Eisenshank. 10 Wn. App. 921, 924, 521 P.2d 239, rev, denied. 84
Wn.2d 1003 (1974).
13 Adkins v. Aluminum Co. of Am.. 110Wn.2d 128, 142, 750 P.2d 1257 (1988).
8

No. 69378-6-1 / 9
questioned whether the "golden 	rule" 	prohibition 	applies in 	criminal 	cases.14
Nevertheless, even assuming the prohibition applies here, we conclude there
was no prejudicial misconduct.
A "golden rule" argument is improper to the extent it encourages the jury
to depart from neutrality and to decide the case "on the basis of personal interest
and bias rather than on the evidence."15 As noted above, the indecent exposure
charge required the State to prove that McDonough exposed himself "knowing
that such conduct [was] likely to cause reasonable affront or alarm."16 	Thus,
what the victims observed, 	how they reacted, and how a 	reasonable person
would likely react in the victims' circumstances, were all relevant considerations
in determining whether McDonough's conduct would likely cause reasonable
affront or alarm. 	As 	McDonough 	himself observes, "the victims' fears were
relevant 	to 	the 	charges 	and 	the 	prosecutor 	could 	properly 	highlight their
testimony." Viewed in this context, the challenged remarks were not an appeal to
decide the case on sympathy, but to assess the fear or alarm that a reasonable
person would experience in the victims' circumstances. 	This was within the
range of proper argument.
To the extent that asking the jury to "imagine," rather than consider, the
victims' fear was misconduct, there is no substantial likelihood that the remarks
affected the verdict. 	The remarks were brief and the court instructed the jury that
their decision was to be based on the evidence and not on "sympathy, prejudice,
14 State v. Borboa. 157 Wn.2d 108, 124 n.5, 135 P.3d 469 (2006).
15 Adkins. 110 Wn.2d at 139.

No. 69378-6-1/10
or personal preference." 	The jury is presumed to follow the court's instructions,
and their acquittal on the burglary charge is proof that they did.17 	In addition, the
State presented a 	strong case and 	McDonough's mental state defense was
severely undermined 	by 	his 	prior acts of 	indecent exposure, 	his 	post-arrest
interview, 	and 	the 	fact 	that 	he 	stopped 	exposing 	himself when 	customers
approached the coffee stand.
Affirmed.
V^SWyw 	-^
WE CONCUR:
S^/r-frv^Ch 	^^^ 	y^
16 (Emphasis added.)
17 State v. Russell. 125 Wn.2d 24, 84, 882 P.2d 747 (1994), cert, denied. 514
U.S. 1129(1995).
10