State Of Washington, Respondent V Duane Allen Moore, Appellant (Majority)
Annotate this Case
Download PDF
FILED COURT OF APPEAL _S DIVISION II Mil MAY 13 AM 9: 15 IN THE COURT OF APPEALS OF THE STATE OF WASI Y DIVISION II No. 44221 -3 -II STATE OF WASHINGTON, Respondent, v. UNPUBLISHED OPINION DUANE ALLEN MOORE, Appellant. MELNICK, J. assault, domestic Duane Moore appeals his conviction and sentence for second degree violence, after choking his wife during an argument. He argues that ( 1) the prosecutor committed misconduct during voir dire and closing argument when he argued facts not in evidence, made improper statements about witness credibility, and shifted the burden of proof; (2) the trial court erred when it allowed a witness to testify with a service dog; and ( 3) the prosecutor SAG), improperly testified at the sentencing hearing. In a statement of additional grounds Mr. Moore alleges misconduct from an interaction between a trainee bailiff and a witness. Finding no error, we affirm. FACTS On July 22, 2012, when the Bremerton police responded to a domestic violence call, they found Sabrina Moore " crying hysterically." 1 Report of Proceedings ( RP) at 151. She stated that during an argument with her husband, Mr. Moore, he threw a plastic tea bottle at her back. He then followed her onto the porch, backed her up against the railing, and choked her. Mr. Moore put one arm in front of Ms. Moore' s throat and one arm behind it. A neighbor witnessed the incident mark on and intervened. her throat. Mr. Moore fled the scene in a friend' s car. Ms. Moore had a red 44221- 3- 11 The State charged Mr. Moore with second degree assault with a domestic violence special allegation. At trial, Ms. Moore testified that Mr. Moore had choked her. Two neighbors testified that they witnessed the Moores arguing when Mr. Moore grabbed Ms. Moore, hit her, and placed an arm on her throat. Mr. Moore admitted to arguing with Ms. Moore but denied touching her. Prior to Ms. Moore' s testimony and outside the presence of the jury, the State moved the court for permission to have a service dog accompany Ms. Moore on the witness stand. The prosecutor advised the court that Ms. Moore was nervous and scared about testifying and that defense counsel had no objections. During mean absolute dire, voir certainty a prospective and that the juror jury opined that " beyond would not get all a reasonable the facts. 1 RP at doubt" did not 99. The prosecutor responded by saying the jurors were in a difficult position because . "we know more about the case than you do." 1RP at 100. Mr. Moore did not object. Also, during voir dire, the prosecutor asked the jurors how they would prove that the is world shape. The reasonable 106. The jurors gave examples of information they would use to prove the world' s round. prosecutor doubt based then asked, " Is it fair for me to say that you' re satisfied beyond a on a common sense appreciation of the facts; is that correct ?" 1 RP at The prosecutor relied on this semi -analogy again in closing argument and asked the jurors to look at all of the testimony to see if it made sense. He suggested that the jury evaluate the evidence and the credibility of the witnesses to determine if a physical confrontation occurred, stating, "[ degree Y] ou can be satisfied beyond a reasonable doubt [ that Mr. Moore is guilty of second assault] based on a common sense appreciation of did not object. 2 the facts." 2 RP at 224. Mr. Moore 44221 -3 -II The jury found Mr. Moore guilty as charged. At the sentencing hearing, Ms. Moore did not appear because, as the prosecutor stated, she was " extremely traumatized" by the event and long history domestic RP ( Nov. 16, 2012) at she feared Mr. Moore because 3. The prosecutor then informed the court that Ms. Moore' s teeth were chattering before she testified the at trial prosecutor and that of a " he had stating this of never seen a victim so scared opinion. The court overruled violence." to testify. Mr. Moore objected to Mr. Moore' s objection. Ms. Moore submitted a written statement which the court read silently but did not make a part of the record. Mr. Moore requested an exceptional sentence below the standard range. When sentencing Mr. Moore, the court stated its reasoning for imposing a mid -range 62month sentence was based on " the severity of the crime, your criminal history and because I, in fact, heard the victim and I don' t find that it was de minimis so I don' t find there' s a basis for an exceptional sentence downward." RP ( Nov. 16, 2012) at 35. Mr. Moore appeals. ANALYSIS I. PROSECUTOR ERROR Mr. Moore argues that the prosecutor committed misconduct by arguing facts not in evidence, implying that the jury' s job is to convict if it finds the State' s witnesses more credible than the defendant, and misstating its burden of proof. We hold that the prosecutor did not commit misconduct. In order to prevail on a claim of prosecutorial misconduct, a defendant is required to show that in the context of the record and all of the circumstances of the trial, the prosecutor's conduct was both improper 704, 286 P. 3d 673 ( 2012). and prejudicial." In re Pers. Restraint of Glasmann, 175 Wn.2d 696, We review a prosecutor' s remarks during closing argument in the context of the total argument, the issues in the case, the evidence addressed in the argument, and 3 44221 -3 -II the instructions. jury State v. Dhaliwal, 150 Wn.2d 559, 578, 79 P. 3d 432 ( 2003). It is proper argument that the evidence fails to support the defense' s theory. State v. Russell, 125 Wn.2d 24, 87, 882 P. 2d 747 ( 1994). Arguing Facts Not in Evidence A. First, Mr. Moore contends that the prosecutor' s statement during voir dire that the jurors were in a difficult facts because it argued dire not evidence; were because " place not in we evidence. therefore, he know more about the case than you do" was improper 1 RP at 100. But the prosecutor' s comments during voir did not argue facts not in evidence. And the trial court instructed the jury that the lawyers' statements were not evidence. Credibility B. Mr. Moore next argues that the prosecutor committed misconduct when he implied that the jury must convict if it finds the State' s witnesses more credible than the defendant. The prosecutor merely argued that the evidence supported the State' s theory, not the defendant' s theory, and argument. support that the jury should weigh credibility. Both arguments are proper topics for closing See Russell, 125 Wn.2d at 87 ( it is not misconduct to argue that the evidence fails to the defendant' s theory); State v. Thomas, 150 Wn.2d 821, 874 -75, 83 P. 3d 970 ( 2004) witness credibility is a jury question). C. Burden of Proof Lastly, Mr. Moore argues that the prosecutor misstated the burden of proof by using an analogy to describe reasonable doubt and by encouraging the jury to use common sense. We disagree. A prosecutor' s use of an analogy to explain the beyond a reasonable doubt standard is reviewed on a case -by -case basis. State v. Fuller, 169 Wn. App. 797, 825, 282 P. 3d 126 ( 2012), 4 44221 -3 - II When the State uses an analogy that equates its burden denied, 176 Wn.2d 1006 ( 2013). review of proof to making an everyday choice or quantifies the level of certainty necessary to satisfy the beyond a reasonable State Wn. App. 677, it standard, Anderson, 153 Wn. also v. doubt Fuller, 169 Wn. App. at 827; see commits misconduct. App. 417, 431, 220 P. 3d 1273 ( 2009); State v. Johnson, 158 684, 243 P. 3d 936 ( 2010). Where, as here, the State does not minimize its burden of proof or shift the burden of proof to the defendant, there is no misconduct. Fuller, 169 Wn. App. at 826 ( citing State v. Curtiss, 161 Wn. App. 673, 700 -01, 250 P. 3d 496 ( 2011)). Additionally, the State properly argued the law of the case by telling the jury it could use common sense in assessing the evidence and the witnesses. The trial court instructed the jurors that they must consider all admissible evidence and that they have a duty to assess the credibility of the witnesses and weigh the evidence. Within the context of closing argument, the prosecutor' s statement about " a common sense appreciation of the facts" was not misconduct. 2 RP at After making that statement, the prosecutor further argued that the State' s witnesses 224. corroborated each others' testimony and that their testimony " ma[ de] sense" while defendant' s testimony was not supported evidence presented and by the urging the evidence. jury 2 RP at 224. The prosecutor was referencing the to find Mr. Moore guilty based on that evidence. This was not improper. Because we hold that Mr. Moore has failed to establish any misconduct, we affirm the trial court. SERVICE DOG II. For the first time on appeal, Mr. Moore argues that the trial court erred by allowing the service court dog to be improperly present in court with commented on the Ms. Moore. evidence. He first argues that, by doing so, the trial He then posits his confrontation and due process 5 44221- 3- 11 rights were violated by the dog' s presence. Because Mr. Moore failed to raise these issues at trial, he has failed to preserve this issue. We will not review an argument raised for the first time on appeal unless the challenging party demonstrates obvious on the a manifest constitutional error. record that the error 99 -100, 217 P. 3d 756 ( 2009). error had practical and RAP 2. 5( a)( requires appellate review. 3). An error is manifest if it is so State v. O' Hara, 167 Wn.2d 91, The defendant must show actual prejudice, meaning the alleged identifiable consequences at trial. State v. Gordon, 172 Wn.2d 671, 676, 260 P. 3d 884 ( 2011). Here, Mr. Moore fails to evidence in the record prove that the that any dog' s presence alleged made errors were manifest. Ms. Moore There is no appear traumatized or victimized, and thereby violated Mr. Moore' s due process rights, or acted as a comment on the evidence. See State v. Dye, 178 Wn.2d 541, 555, 309 P. 3d 1192 ( 2013) ( holding that the court' s decision to allow a service dog was reasonable and that there was no evidence on the record that the dog made the victim witness appear " pitiful to the jury and ` presupposed the victimhood of the It is the responsibility of the party alleging error to make a record of that complainant "). error. 556. Additionally, Division One of this Court rejected a similar argument, holding that confrontation clause case law was inapposite Dye, 178 Wn.2d confrontation clause at because the dog' s presence does not prevent face -to -face confrontation with the witness. State v. Dye, 170 Wn. App. 340, 346, 283 P. 3d 1130 ( 2012), aff'd by Dye, 178 Wn.2d 541. We therefore reject Mr. Moore' s argument and affirm the trial court. III. SENTENCING Finally, Mr. Moore argues that the prosecutor violated the real facts doctrine and Mr. Moore' s due process rights by testifying on Ms. Moore' 6 s behalf at sentencing. Because Mr. 44221- 3- II Moore received 9. 94A. 530( 1); a sentence the within RCW 9. 94A.585( 1); range, standard he cannot appeal his sentence. RCW State v. Williams, 149 Wn.2d 143, 146, 65 P. 3d 1214 ( 2003). Therefore, the argument on the " real facts doctrine" is moot. SAG IV. In his SAG, Mr. Moore argues bailiff misconduct, judicial misconduct, and ex parte communications arising from an incident where the trainee bailiff realized she recognized Ms. Moore. Because there was no prejudice, we disagree. The bailiff bailiff greeted" 184. the no trainee and at trial training a new standing in the were Ms. Moore was and then realized bailiff. hallway that she Before the second day of testimony, the when Ms. Moore knew Ms. Moore walked past. briefly four The trainee years ago. 2 RP at The bailiff and trainee reported this to the trial court, which then informed the parties on record and allowed jurors witnessed the parties to ask the interaction. questions or raise objections. The bailiff clarified that Mr. Moore requested that the trainee not participate in the rest of the trial, and the trial court dismissed the trainee. This interaction did not prejudice Mr. Moore. No jurors witnessed the trainee bailiff greeting Ms. Moore, and the trainee was dismissed from the rest of the trial at Mr. Moore' s request. There is no evidence in the record that the jury knew about or was in any way influenced by the interaction. Nor is there any evidence of ex parte communication. The trial court discussed the interaction in chambers with the bailiffs, but there is no indication that any parties were present. Rather, it appears that both parties were told about the interaction simultaneously on the record. We affirm. 7 44221- 3- 11 A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record in accordance with RCW 2. 06. 040, it is so ordered. We concur:
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
