Opinion
No. 35007-6-II.
February 20, 2008.
Appeal from a judgment of the Superior Court for Lewis County, No. 05-1-00274-8, Richard L. Brosey, J., entered June 16, 2006.
Affirmed by unpublished opinion per Hunt, J., concurred in by Bridgewater, J.; Quinn-Brintnall, J., concurring separately.
Charles Sifers appeals his conviction for rape of a child in the first degree. He argues that (1) the trial court improperly admitted hearsay evidence as demeanor testimony, (2) he received ineffective assistance of counsel because his trial attorney failed to object to inadmissible evidence, and (3) the prosecutor committed multiple instances of misconduct during her closing argument. We affirm.
FACTS I. Child Rape
Sometime in the fall of 1999, Charles Sifers spent the night with his friends, Mike and Betty Fuller. The Fullers' nine-year-old niece, ST, also spent the night. Although ST had her own room at the Fullers' house, that night Sifers slept in her room and she slept on the couch.
According to ST, Sifers woke her, said she should sleep in her room, followed her inside her room, and shut the door. Sifers then covered ST's mouth, pushed her onto the bed, put his penis inside her vagina, and threatened to hurt ST and her family if she told anybody.
ST did not mention the rape until 2003, when she approached her school counselor Amanda Olson about a sexual assault survivor group and said she "needed to join." At group sessions, ST said somebody had sexually molested her, but she would not disclose details. She refused to identify her abuser, revealing only that he was a neighbor who would kill her and her family if she named him.
In 2004, ST also told her adult cousin, Chrissy Stark, about the rape. Although again ST did not identify her abuser, Stark noticed that ST was angry whenever anyone mentioned Sifers.
In spring 2005, Sifers' nine-year-old daughter S told ST she was going to spend spring break alone with Sifers. ST "felt scared because [she] didn't want [S] to get hurt," Report of Proceedings (RP) Vol. I at 45, decided to "come forward and tell" about the rape, and identified Sifers as her abuser. ST and her mother contacted the police. ST underwent a physical examination at the Sexual Assault Clinic. Using a colposcope, the medical staff videotaped ST's genital area, including her hymenal tissue. The exam revealed a "sharp angulation" or notch in ST's hymen consistent with "penetrating trauma" or sexual abuse.
Sifers was charged him with first degree rape of a child.
II. Trial A. State's Case
At Sifers' jury trial, 14-year-old ST testified about Sifers having raped her five years earlier. ST described Sifers' disposition the night of the alleged rape as "upset . . . like he'd been drinking." RP Vol. I at 24. She recalled Sifers following her into her bedroom, closing the door, and pushing her down on the bed. Sifers then pulled down her pajamas and pushed his penis inside her vagina. Afterwards, he said if she told anybody, he would hurt her, her younger siblings, and her mother.
ST's mother, Rita T, testified that ST came home crying "very hard" one day in March of 2005. ST's words were garbled at first, but then she told her mother that she had been raped. Defense counsel objected that ST's statements were hearsay and irrelevant. After excusing the jury, the trial court sustained Sifers' objection and struck the statement. Upon the jury's return, the court told them to disregard the question, the answer, and the objection. Rita T said she and ST talked for an hour; afterwards she called the sheriff's office.
The State called Katie Braae, ST's counselor at the sexual assault survivor group. Braae observed that ST had appeared frightened and had cried a lot during group sessions. Braae testified that ST refused to identify her abuser, saying, "I can't tell you. He's going to kill me. And he's going to kill my little sister and my mom first, and then he's going to kill me." RP I at 113. Defense counsel did not object to Braae's recounting of ST's statements.
Stark, ST's cousin, testified that when ST stayed with her during the summer of 2004, ST frequently had nightmares and woke up screaming and crying. The prosecutor asked Stark to describe ST's demeanor when she told her the cause of the nightmares, "without going into why . . . which is hearsay." RP Vol. II at 24. Stark responded that ST was "bawling . . . scared . . . [and] could barely talk." RP Vol. II at 24. Stark also testified that ST got upset whenever anybody mentioned Sifers.
The State called Dr. Lori Davis, the medical examiner and registered nurse practitioner at the Sexual Assault Clinic who had performed ST's physical examination. As the jury watched the videotape of ST's physical exam, Dr. Davis explained that the footage revealed "an abnormal exam." RP Vol. II at 96. Specifically, Dr. Davis said that a "sharp angulation" or notch in ST's hymen was consistent with "penetrating trauma" or sexual abuse.
Dr. Davis further testified that she had also taken ST's medical history to assist with her diagnosis. ST told Dr. Davis that "Charles Sifers put his penis in her private parts" and that the pain lasted for three to four days afterwards. Defense counsel did not object to Dr. Davis's testimony about ST's statements.
Dr. Debra Hall, the Clinic's medical director, agreed with Dr. Davis's evaluation and thought the results were consistent with ST's disclosures about the rape. Defense counsel did not object.
Olson, the school counselor who had referred ST to Braae's group, testified that ST was "crying" and "visibly upset" when she approached her about joining the sexual assault survivor group. When Olson began to testify about a statement ST had made to her, defense counsel objected that the statement was hearsay. The court sustained the objection and told the jury to disregard the statement. Outside the jury's presence, the trial court limited Olson's testimony, concluding that her conversations with ST did not qualify as statements for purposes of medical diagnosis or treatment under the hearsay exception.
Officer Curt Spahn, who had taken ST's initial statement, testified that ST had cried and trembled during the interview, forcing him to stop three times to allow her to compose herself. Sifers objected that the testimony was irrelevant. The trial court overruled the objection and allowed Spahn to testify about ST's behavior during the interview.
Sifers called expert witness Dr. Joyce Adams, a pediatrician and consultant to a child abuse program at a San Diego hospital. Dr. Adams testified that her review of the results of ST's physical exam revealed no abnormalities.
B. Defense Case
Sifers took the stand and testified that sometimes he and ST spent the night at the Fullers' house at the same time, but he did not rape her.
C. Closing Argument
During closing, referring to Dr. Adams, the prosecutor argued:
Now, let's talk about the defense witness for a minute who said she couldn't tell from the exam what it was. Was she looking at the same video we saw? I'm no doctor but I saw it. Dr. Hall saw it, Dr. Davis saw it. Every one of you saw it.
RP Vol. IV at 151. In response, defense counsel argued:
It was nice for the state to try to testify during closing and tell you that she saw something too on those photos. You heard her say, "Dr. Adams saw it, Lori Davis saw it, I saw it." Well, guess what. What I saw is irrelevant and not for you to consider. It's what you saw.
RP Vol. IV at 157. In rebuttal, the prosecutor argued:
I think you're all going to need to trust yourselves, because you were in the room listening to testimony. Not the testimony that [the defense attorney] is putting forth right now, but the testimony that's in the record. You all heard it. You all heard testimony that's different than he's putting forth right now.
And I want you to remember [ST] when she testified, and I want you to remember this attorney. He's a dang good talker . . . Just as he's as good at talking right now. But he didn't read to you the whole transcript.
Testimony of the victim alone is sufficient if you find her credible. . . . And you heard her on the stand . . . You saw her. You saw the testimony of the other people who saw her when she made her statements.
RP Vol. IV at 186-87, 194. Sifers' trial counsel did not object to these remarks, although he did object at other times during the prosecutor's closing and rebuttal arguments.
D. Verdict and Sentence
The jury found Sifers guilty of rape of a child in the first degree. The court sentenced him to 120 months in prison.
Sifers appeals.
ANALYSIS I. Demeanor Testimony
Sifers argues that the trial court erred in allowing portions of Rita T's and Spahn's testimonies about ST's demeanor when she spoke to them, which Sifers contends implied the substance of inadmissible hearsay statements by ST. We agree with the State that the trial court did not abuse its discretion in allowing the testimony as admissible demeanor evidence.
Sifers also appears to argue that Rita T and Spahn gave impermissible opinion testimony about ST's credibility. But the record does not support this contention, particularly because the trial court confined them to testimony about ST's demeanor.
A. Standard of Review
We review the trial court's evidentiary rulings for abuse of discretion. State v. Ellis, 136 Wn.2d 498, 504, 963 P.2d 843 (1998). A court abuses its discretion when its evidentiary ruling is "manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons." State v. Downing, 151 Wn.2d 265, 272, 87 P.3d 1169 (2004) (quoting State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971)). We will reverse the trial court's ruling only if "no reasonable person would take the view adopted by the trial court." State v. Castellanos, 132 Wn.2d 94, 97, 935 P.2d 1353 (1997) (citing State v. Huelett, 92 Wn.2d 967, 969, 603 P.2d 1258 (1979)). We find no such abuse here.
B. Admissibility
Generally, an out-of-court statement offered for the truth of the matter asserted is inadmissible hearsay. ER 801(c), ER 802. But witnesses may testify about their observations of demeanor, or non-verbal, non-assertive conduct, which is not inadmissible hearsay. In re the Dependency of Penelope B., 104 Wn.2d 643, 652, 709 P.2d 1185 (1985).
In a first degree statutory rape case, Division One of our court held that a witness may "describe the manner and demeanor of a child at the time he is making . . . statements, and that description may include inferences." State v. Madison, 53 Wn. App. 754, 760, 770 P.2d 662, review denied, 113 Wn.2d 1002 (1989). Similarly, in In re the Dependency of Penelope B., 104 Wn.2d 643, 709 P.2d 1185, our Supreme Court held that testimony about a sexually abused child's nonassertive conduct was not hearsay. Penelope B., 104 Wn.2d at 655-56. The Court held that testimony about a child's involuntary reactions, such as "trembling . . . crying . . . moods fluctuating between openness and evasiveness, her uncomfortableness . . . [and] fearfulness and anxiety in different contexts," was not hearsay and, therefore, it was admissible. Id. 654-55.
The case Sifers cites, State v. Johnson, 61 Wn. App. 539, 811 P.2d 687 (1991), does not apply to the facts here. Both Rita T and Spahn were subject to cross-examination at trial, and their own observations provided the bases for their testimonies, not the observations or testimonies of a non-testifying witness.
Thus, Sifers' case is more like Penelope B in that ST's crying and trembling was nonassertive behavior that Rita T and Spahn witnessed, while ST was recounting the rape. Moreover, the record shows the trial court specifically precluded Rita T and Spahn from recounting what ST had told them about the rape and limited their testimonies to their observations of ST's demeanor.
We hold, therefore, that the trial court did not abuse its discretion by admitting Rita T's and Spahn's testimonies about ST's demeanor when she spoke with them.
II. Ineffective Assistance of Counsel
Sifers next argues that the following conversations did not qualify as admissible statements "for the purposes of medical diagnosis or treatment" and, therefore, he received ineffective assistance of counsel because his trial attorney failed to object to them as inadmissible hearsay: (1) Katie Braae's testimony about statements ST made during her sexual-assault-victim therapy sessions, and (2) Dr. Lori Davis's testimony about statements ST made during her physical examination. ER 803(a)(4). Sifers also alleges his trial attorney's performance was deficient because he failed to object to repetition of evidence about ST's behavior as more prejudicial than probative. These arguments fail.
Sifers also argues that Amanda Olson's testimony included inadmissible hearsay on the same grounds. But the record shows that the trial court sustained Sifers' hearsay objection and limited Olson to testifying about ST's behavior and demeanor.
A. Standard of Review
To prove ineffective assistance of counsel, an appellant must show that (1) counsel's performance was deficient; and (2) the deficient performance prejudiced him. State v. Thomas, 109 Wn.2d 222, 225, 743 P.2d 816 (1987). An attorney's representation is deficient when his performance falls below an objective standard of reasonableness. State v. Stenson, 132 Wn.2d 668, 705, 940 P.2d 1239 (1997), cert. denied, 523 U.S. 1008 (1998). A reviewing court strongly presumes effective assistance of counsel and will reverse on this ground only if the defendant shows there was no legitimate strategic or tactical rationale for his trial attorney's decisions. Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 80 L. Ed. 2d. 674 (1984); State v. McFarland, 127 Wn.2d 322, 336, 899 P.2d 1251 (1995). Sifers does not sustain his burden of proof.
B. Statements for Purposes of Medical Diagnosis or Treatment
Statements made for purposes of medical diagnosis or treatment are exceptions to the hearsay rule under ER 803(a)(4) because courts presume a patient has strong motives to be truthful. State v. Butler, 53 Wn. App. 214, 220, 776 P.2d 505 (quoting United States. v. Renville, 779 F.2d 430, 436 (8th Cir. 1985)), review denied, 112 Wn.2d 1014 (1989). This exception is not limited to statements made for treatment of physical injuries; it extends to psychological treatment as well. State v. Woods, 143 Wn.2d 561, 602, 23 P.3d 1046 (citing State v. Florczak, 76 Wn. App 55, 65, 882 P.2d 199 (1994), review denied, 126 Wn.2d 1010 (1995)), cert. denied, 534 U.S. 964 (2001)). For example, statements made in the course of "therapy for sexual abuse, as an exercise in healing, differs materially from other medical treatment for the purposes of ER 803(a)(4)." In re the Dependency of M.P., 76 Wn. App. 87, 93, 882 P.2d 1180 (1994), review denied, 126 Wn.2d 1012 (1995). Such statements, therefore, are also admissible.
Generally, to determine whether a statement was made for purposes of medical diagnosis or treatment, courts look to whether (1) the declarant's motive was to promote treatment, and (2) the medical professional reasonably relied on the statement for treatment purposes. In re Personal Restraint of Grasso, 151 Wn.2d 1, 20, 84 P.3d 859 (2004) (citing Butler, 53 Wn. App. at 220). But where, as here, the patient is a child victim, our Supreme Court has held it is "not per se a requirement that the child victim understand that his or her statement was needed for treatment if the statement has other indicia of reliability." Grasso, 151 Wn.2d at 20-21 (quoting State v. Ashcraft, 71 Wn. App. 444, 457, 859 P.2d 60 (1993)). See also State v. Kilgore, 107 Wn. App. 160, 26 P.3d 308 (2001), affirmed 147 Wn.2d 288, 53 P.3d 974 (2002).
Sifers' argument fails because ST's statements to Braae and Dr. Davis were made for purposes of medical diagnosis or treatment and, therefore, qualify under the hearsay exception in ER 803(a)(4). Braae was acting in her professional capacity as a sex abuse therapist when ST, still a child, told her about the molestation. Similarly, Dr. Davis was acting in her professional capacity when ST told her about the rape while Dr. Davis was taking her medical history in order to make a medical diagnosis. The record shows that ST made statements about the rape with the intent to assist her treatment, both physical and psychological; therefore, other indicia of reliability are not required under Grasso. Additionally, Braae and Dr. Davis both relied on ST's disclosures to treat her.
We hold, therefore, that ST's statements to Brae and Dr. Davis fall within the ambit of the hearsay exception for purposes of medical diagnosis or treatment. Accordingly, they were admissible and Sifers' trial counsel was not deficient in failing to object to their admission.
C. Cumulative Effect
Sifers further argues his trial attorney's performance was deficient because he did not object to the prejudicial effect of repetitive testimony about ST's behavior. This argument also fails.
"[A]dmission of evidence which is merely cumulative [alone] is not prejudicial error." State v. Todd, 78 Wn.2d 362, 372, 474 P.2d 542 (1970) (citing State v. Swanson, 73 Wn.2d 698, 698-99, 440 P.2d 492 (1968)). We review for abuse of discretion. State v. Bedker, 74 Wn. App. 87, 93, 871 P.2d 673, review denied, 125 Wn.2d 1004 (1994).
In State v. Dunn, 125 Wn. App. 582, 105 P.3d 1022 (2005), the defendant argued that four witnesses testifying about a child's reports of sexual abuse amounted to prejudicial cumulative evidence. Id. at 588.
Division Three of our court affirmed, holding that (1) although "there was considerable overlap in [the testimony] . . ., the repetitiveness stemmed largely from the logical sequence and timing of events"; and (2) the witnesses' testimonies did not "impinge on the jury's responsibility to determine credibility." Id. at 588-89.
Similarly here, the repetitive testimonies from multiple witnesses about ST's behavior was a consequence of the sequence of events. Because the witnesses testified about various events throughout a five-year period, the probative value of these testimonies about ST's behavior and demeanor during that time span was high and outweighed any potential prejudicial effect. Furthermore, the record shows that defense counsel appeared to have been aware of the potential problems with various witnesses' testimonies and properly objected when the evidence was arguably prejudicial or irrelevant.
We hold that the cumulative evidence was not prejudicial to Sifers and, therefore, his counsel's failure to object was not deficient performance.
Sifers also briefly argues that his trial counsel was ineffective because he failed to request a cautionary instruction about "the number of times ST's hearsay statements were repeated for the jury." Br. of Appellant at 20. Having already held that these testimonies did not involve inadmissible hearsay and did not create cumulative prejudice, we further hold that trial counsel's performance was not deficient for failure to request a curative instruction.
Because Sifers fails to sustain the first deficiency part of the ineffective assistance of counsel test, we need not address the second prejudice part of the test.
III. Prosecutorial Misconduct
Sifers next argues that the prosecutor committed misconduct during closing argument by expressing her personal opinion about the credibility of a witness, disparaging defense counsel's role, and misstating the law. We agree with the State that the alleged misconduct was not "flagrant or ill-intentioned," Sifers did not object, and, therefore, reversal is not required. We further note that the prosecutor did not misstate the law.
A. Standard of Review
Prosecutorial misconduct requires the defendant to show that the prosecutor's conduct was both improper and prejudicial in the context of the entire record and circumstances at trial. State v. Hughes, 118 Wn. App. 713, 727, 77 P.3d 681 (2003) (citing State v. Stenson, 132 Wn.2d 668, 718, 940 P.2d 1239 (1997), cert. denied, 523 U.S. 1008 (1998)), review denied, 151 Wn.2d 1039 (2004). Prosecutorial misconduct is grounds for reversal only if there is a substantial likelihood that the misconduct affected the verdict. State v. Russell, 125 Wn.2d 24, 86, 882 P.2d 747 (1994), cert. denied, 514 U.S. 1129 (1995). If the defendant did not properly object at trial, then the error is not reversible unless the misconduct was "so flagrant and ill-intentioned that no curative instruction could have obviated the prejudice." State v. Ziegler, 114 Wn.2d 533, 540, 789 P.2d 79 (1990). Such was not the case here.
B. Closing Argument 1. Personal opinions about credibility
Sifers contends that the prosecutor improperly expressed her personal opinion about the credibility of his expert witness, Dr. Adams, when she said, "[Regarding the video of ST's physical exam,] [w]as she looking at the same video we saw? I'm no doctor, but I saw it." Br. of Appellant at 24. We disagree with Sifers that this argument is grounds for reversal.
A prosecutor may not express a personal opinion regarding the credibility of witnesses, or the guilt or innocence of the defendant. State v. Reed, 102 Wn.2d 140, 145, 684 P.2d 699 (1984). But such an action is not misconduct unless "it is clear and unmistakable that counsel is not arguing an inference from the evidence, but is expressing a personal opinion." State v. Price, 126 Wn. App. 617, 653, 109 P.3d 27 (quoting State v. Papadopoulos, 34 Wn. App. 397, 400, 662 P.2d 59, review denied, 100 Wn.2d 1003 (1983)), review denied, 155 Wn.2d 1018 (2005).
Assuming, without deciding, that the prosecutor here expressed an improper personal opinion about the evidence, which implicated the expert witness's credibility, we hold that in the context of the entire trial, there is no substantial likelihood that this comment affected the verdict. Defense counsel directly responded in his closing argument by telling the jury "[w]hat I saw is irrelevant and not for you to consider . . . [i]t's what you saw," counteracting any effect the prosecutor's comment may have had on the jury. RP IV at 156-57.
In addition, the trial court gave the jury the standard instruction that what the lawyers say is not evidence, and that they should disregard any misstatements of the law. We presume that the jury followed the court's instructions. State v. Daniels, 160 Wn.2d 256, 264, 156 P.3d 905 (2007) (citing State v. Stein, 144 Wn.2d 236, 247, 27 P.3d 184 (2001)). Thus, even if the prosecutor had committed misconduct by expressing her opinion about the credibility of a witness, Sifers demonstrates no actual prejudice to his case.
2. Disparaging defense counsel
Sifers further contends that the prosecutor committed misconduct when she told the jury that defense counsel was "a dang good talker," implying that he had tried to confuse both ST and the jury. The State characterizes the prosecutor's comment as "inartful" but maintains it did not rise to the level of reversible error. We agree with the State.
A prosecutor may not disparage or misstate the role of defense counsel. State v. Gonzales, 111 Wn. App. 276, 283-84, 45 P.3d 205 (2002). Here, however, the prosecutor's comments do not constitute reversible error. Although inappropriate or "inartful," it is unlikely that the comment that the defense attorney was "a dang good talker" affected the jury's verdict. Therefore, we do not find this remark to be grounds for reversal.
In Gonzales, Division One of our court reversed a conviction where, over the defense's objection, the prosecutor told the jury during closing argument that he had "a very different job than the defense attorney. I do not have a client . . . I have an oath and an obligation to see that justice is served." 111 Wn. App. at 283. The appellate court held that drawing this "cloak of righteousness" Id. at 282, around the State's position "clearly [had] the potential to affect a verdict." Id. at 284.
3. Misstating law
Sifers next asserts that the prosecutor impermissibly misstated the law when she argued that ST's "(t)estimony alone is sufficient if you find her credible." Br. of Appellant at 26-27. Again, this statement is not grounds for reversal.
Sifers cites cases such as Casteneda-Perez, where the prosecutor told the jury it must disbelieve a witness to acquit. Br. of App. at 26-27. Sifers is correct that it is misconduct for a prosecutor to misstate the law by implying that in order to acquit, a jury must believe the State's witnesses are "either lying or mistaken," because such statement improperly shifts the burden of proof. State v. Fleming, 83 Wn. App. 209, 213, 921 P.2d 1076 (1996) (citing State v. Casteneda-Perez, 61 Wn. App. 354, 362-63, 810 P.2d 74, review denied, 118 Wn.2d 1007 (1991)), review denied, 131 Wn.2d 1018 (1997). But here, in contrast, the prosecutor said the jury could convict if it believed ST. RP IV at 194. Such statement was neither a misstatement of the law nor an improper shift of the burden of proof. RCW 9A.44.020(1) ("to convict a person of any . . . [sex offense] . . . it shall not be necessary that the testimony of the alleged victim be corroborated").
In State v. Casteneda-Perez, 61 Wn. App. 354, 810 P.2d 74, review denied, 118 Wn.2d 1007 (1991), Division One of our court held that a prosecutor committed misconduct where he gave the jury the impression that in order to acquit, it had to find the State's police officer witnesses were lying. Id. at 362-63. Nonetheless, although the court found the misstatement of the law amounted to misconduct, it ultimately held the error was harmless and affirmed the conviction. Id. at 364-65.
Generally, the credibility of a witness is an issue for the jury to weigh. State v. Myers, 133 Wn.2d 26, 38, 941 P.2d 1102 (1997).
Moreover, in light of the entire proceeding, any error was harmless, not prejudicial.
Because Sifers failed to object below and to preserve these assignments of error, there is no reversible error because his allegations of prosecutorial misconduct do not amount to flagrant or ill-intentioned behavior. There also is no substantial likelihood that any of the above instances of alleged misconduct affected the jury's verdict. Therefore, we find no prosecutorial misconduct warranting reversal of Sifers' conviction.
In the alternative, Sifers argues that he received ineffective assistance of counsel because his trial attorney failed to object to the prosecutorial misconduct and request curative instructions. Br. of App. at 28-29. Our Supreme Court held that a defense attorney's failure to object to a prosecutor's closing argument was not deficient performance because lawyers "do not commonly object during closing statement `absent egregious misstatements.'" In re Pers. Restraint of Davis, 152 Wn.2d 647, 717, 101 P.3d 1 (2004) (quoting U.S. v. Necoechea, 986 F.2d 1273, 1281 (9th Cir. 1993)). The record shows that Sifers' trial attorney objected to other statements during the prosecutor's closing argument and that he responded to potentially improper prosecutorial comments during his closing argument on Sifers' behalf. Thus, it appears that Sifers' trial counsel was exercising legitimate strategy during closing arguments by selectively objecting to the prosecutor's remarks. Sifers, therefore, does not show that he received ineffective assistance of counsel.
Sifers asserts that the accumulation of all errors at trial warrants reversal. Since there is no indication that Sifers' trial was fundamentally unfair or that there were significant individual errors, the cumulative error doctrine does not entitle him to a new trial.
Affirmed.
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 pursuant to RCW 2.06.040, it is so ordered.
BRIDGEWATER, PJ., concur.
I concur with the majority analysis in this case with one exception. The prosecutor committed misconduct when she made the statement to the jury in closing argument that "[t]estimony of the victim alone is sufficient if you find her credible." 4 Report of Proceedings at 187. Although the statement is a correct statement of the law, the trial court did not instruct the jury on the law regarding this issue. Accordingly, it was improper for the prosecutor to do so. State v. Davenport, 100 Wn.2d 757, 675 P.2d 1213 (1984) (holding that statements the State makes to the jury must be confined to the law as set forth in the instructions given by the court). But unlike in Davenport, the prosecutor here correctly stated the law and the error was harmless. Accordingly, I concur with the holding that Charles Sifers's conviction should be affirmed.
Under RCW 9A.44.020(1), in order "to convict a person of . . . any . . . [sex offense] . . . it shall not be necessary that the testimony of the alleged victim be corroborated."