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Full Opinion
Filed
Washington State
Court of Appeals
Division Two
September 16, 2025
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 59167-7-II
Respondent,
UNPUBLISHED OPINION
v.
DERRICK KEITH BURGESS,
Appellant.
PRICE, J. — Derrick K. Burgess appeals his three convictions of rape of a child in the third
degree. Burgess argues that the trial court violated his right to present a defense when it excluded
evidence of the victim’s juvenile convictions. Burgess also argues that the State committed
prosecutorial misconduct during closing argument by bolstering the victim’s credibility. We
disagree and affirm.
FACTS
I. BACKGROUND
In October 2020, Burgess and his stepsister, R.B., were both visiting their father/stepfather.
Burgess, who was 30 years old at the time, and R.B., who was 14, would regularly spend time
together during the visit. They would watch movies, talk, go out and get food, go shopping, and
send each other messages over Snapchat.1
1
“Snapchat is a cell phone app similar to text messaging except that photos and texts sent through
Snapchat disappear once they are seen by the recipient and are not preserved.” Nelson v. Duvall,
197 Wn. App. 441, 445 n.1, 387 P.3d 1158 (2017).
No. 59167-7-II
At some point, Burgess began “flirting” with R.B. over their Snapchat messages.
2 Verbatim Rep. of Proc. (VRP) at 519. This “flirting,” eventually led to Burgess committing
sexual acts with R.B. on multiple occasions. But soon R.B. began to feel like what Burgess did
with her was wrong, and she told her friend, N.W., about what had happened. N.W., in turn, told
her foster mother, who later told R.B.’s stepfather. The stepfather then reported the allegations to
the police.
Following further investigation, Burgess was charged with three counts of rape of a child
in the third degree.
II. EXCLUSION OF R.B.’S JUVENILE CONVICTIONS
Earlier in 2020, R.B. had been convicted twice as a juvenile of taking a motor vehicle
without permission in the second degree. She was convicted (in an unsealed adjudication) after
taking her stepfather’s car in April 2020. And she was convicted (in a sealed adjudication), with
N.W. as a codefendant, of taking N.W.’s foster mother’s car in May 2020. Prior to the start of
trial, the State moved in limine under ER 609(d) for the exclusion of the two convictions.
For the April 2020, unsealed conviction, the State contended that the probative value did
not outweigh the prejudice that admitting the conviction would cause to R.B. The State conceded
that the conviction was a crime of dishonesty and would have been admissible if R.B. had been an
adult. However, because the conviction occurred while R.B. was a juvenile, the State argued that
the conviction was barred under ER 609(d). According to the State, this juvenile conviction was
not necessary “for a fair determination of the issue of guilt or innocence in this case,” as required
by the rule. 1 VRP at 54.
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No. 59167-7-II
For the May 2020, sealed conviction, the State argued that the trial court did not even need
to consider ER 609(d). The State contended that a sealed conviction is not “actually consider[ed]
. . . to be a conviction.” 1 VRP at 64.
Burgess responded that both of R.B.’s convictions fell under ER 609(d)’s exception and
should, therefore, be available for impeachment. Burgess argued that not only were these
convictions admissible if she were an adult, but the case “hinge[d] upon the credibility of [R.B.].”
1 VRP at 55. This made her convictions for crimes of dishonesty “necessary” and “highly
probative.” 1 VRP at 55.
Burgess also argued that exclusion of R.B.’s juvenile convictions implicated his right to
confront and cross-examine witnesses. In addition to these convictions being relevant to R.B.’s
credibility in general, Burgess contended that they were especially relevant here because they
occurred within six months of when the alleged sexual assaults occurred. According to Burgess,
the implications of the convictions themselves combined with their timing in relation to R.B.’s
accusations placed so much importance on this evidence that it did not matter that the May 2020
conviction was sealed.
After hearing arguments from both parties, the trial court expressed concerns about
balancing the impact the evidence might have on perceptions of child rape victims with its
relevance to R.B.’s credibility:
[T]he probative value of this information is the veracity of the witness. The concern
of the [c]ourt is that the prejudicial value is that the jurors, regardless of any
corrective instruction, knowing of this conviction, could tend to perceive the
alleged victim in a certain way. As a certain type of a character trait. Outside of
just veracity issues.
3
No. 59167-7-II
And I’m really sensitive in the issues when we deal with child rape—charges as to
a perception of a bad person. . . .
I think that the [d]efense has brought up some good points. We’re dealing with a
six month span between . . . that incident and this incident.
There’s probative value there, there’s prejudicial value there, and I [need to] figure
out which is greater.
1 VRP at 59-61.
The next day, the trial court orally granted the State’s motion in limine, ruling that both
R.B.’s May 2020 and April 2020 convictions would be excluded. First, with respect to the May
2020 sealed conviction, the trial court simply ruled that the conviction was inadmissible because
it was sealed. Relying on the language of the sealing order, the trial court explained that the
May 2020 conviction
cannot be utilized for any purposes without going back to the juvenile court and
making that request. And, it—it appears it can only be made by the person who is
the subject of the information, which would be [R.B.] herself. So, that will not be
allowed due to the nature of the sealing.
1 VRP at 85.
Second, the trial court ruled that the unsealed April 2020 juvenile conviction was
inadmissible under ER 609(d). The trial court began by first emphasizing that evidence of a
juvenile conviction “generally, is not admissible,” and thus, the trial court would have to find an
exception in order to rule in favor of Burgess. 1 VRP at 86.
While the trial court acknowledged Burgess’ argument in favor of admission, it was
ultimately unpersuaded by Burgess’ defense theory; specifically, that R.B. was generally
dishonest; meaning, she was previously dishonest when she was convicted of crimes of dishonesty
so she was likely being dishonest now about the allegations. The trial court went on to explain
4
No. 59167-7-II
that merely showing general dishonesty was an insufficient basis to get past ER 609(d)’s general
presumption against admissibility:
That’s not how I see rule 609. I see rule 609 is that we have a witness up on the
stand, and the use of prior convictions is utilized for the purposes of impeaching
the witness’ testimony on the stand. I suppose that there is an argument that can be
made that well, it should extend beyond and [that] at a certain she was a dishonest
person.
That’s not rule 609. [Rule] 609 is[: “]as the witness testifies[,] is the witness
credible[?”] [A]nd [“]does this order, does this conviction back when she was a
juvenile relate to whether she, who is now an adult, is a dishonest person[?”] [A]nd
[“]should their testimony be looked to—unfavorably because they have a
conviction based upon dishonesty[?”]
1 VRP at 86-87.
The trial court also appeared to express skepticism about the necessity of this evidence in
proving Burgess’ defense theory, especially in light of the prejudice it would cause R.B, who was
now years older than she was when the allegations occurred.
We’re dealing with the difference between . . . . [a] 14 year old and an 18 year old
and I think that’s a loop. I—I think that there’s a reason why juvenile convictions
are generally not utilized because there’s a whole lot of growth that occurs, maturity
that occurs, a whole lot of things that happen to the brain itself that serves to
minimize some of the things that a juvenile has. Part of the reason that we seal the
juvenile records is to give them a fresh start when they become an adult because
they do things as a juvenile that [they] would not otherwise . . . do as an adult.
So, what we’re dealing with is an adult who is on the stand and say oh, by the way
when you were a juvenile you were dishonest, therefore you’re not credible today
and I’m not gonna allow it. So, the State’s motion . . . is granted.
1 VRP at 87.
III. R.B.’S TESTIMONY
The case proceeded to a jury trial in November 2023. R.B. began her testimony by
describing her interactions with Burgess while they were both staying with her stepfather. R.B.
5
No. 59167-7-II
testified that when she communicated with Burgess there would be “a little bit [of] like flirting
. . . back and forth.” 2 VRP at 519. R.B. said that Burgess “hinted” at R.B. doing sexual favors
for him, and she said that he, at one point, had asked her to send him sexually explicit photos of
herself. 2 VRP at 519.
R.B. testified that in their Snapchat messages she would ask Burgess to buy her alcohol,
marijuana, and nicotine products. Burgess would respond that he would give her these things
“only if [she] gave him something in return,” which she understood to be an insinuation that he
wanted sexual intercourse. 2 VRP at 518. According to R.B., Burgess eventually had sexual
contact with her on four occasions in October 2020. R.B. testified in detail about what Burgess
did to her during each of the four occasions.
When asked by the State whether this contact was “forced,” R.B. responded that she had
not been forced. 2 VRP at 529. However, because she began to feel that what had happened was
wrong, R.B. finally told her friend, N.W., about it.
R.B. testified that she never reported Burgess to the police, but she eventually found out
about a police investigation from her mother. As part of the investigation, R.B. said that she
participated in a medical evaluation and a forensic interview. Since making the allegations, R.B.
had not seen or heard from Burgess.
IV. PAULA BLANDIN’S TESTIMONY
Paula Blandin, N.W.’s foster mother, testified that Burgess and R.B. were close before the
allegations. Blandin lived in a house on the same property as R.B.’s stepfather and explained that
when R.B. would visit her stepfather, she would often stay over and sleep in N.W.’s room. Burgess
6
No. 59167-7-II
did not visit his father often, but “the kids loved it” whenever he did come—“[h]e did a bonfire
and just all the kids liked when [Burgess] was around.” 2 VRP at 562.
Blandin testified that in October 2020, Burgess and R.B. were both visiting and would
spend a lot of time together and would go out and get food or coffee and come back together.
Blandin never observed Burgess sexually assault R.B., but when she found out about the
allegations from N.W., she told R.B.’s stepfather, who, in turn, reported the allegations to child
protective services and the sheriff’s department.
V. DOCTOR GILBERT’S TESTIMONY
Dr. Gilbert, a pediatrician, testified that R.B. had been referred to her clinic for a physical
evaluation. The results from the examination were “normal” and there was no evidence of trauma
or scarring in her genital area. However, Dr. Gilbert went on to explain that unless they examine
a child within 3 to 5 days of the sexual contact, “95 [percent] of the time [they] will have a normal
examination” without signs of injury or changes to the body. 2 VRP at 587. Because of this, a
“normal” physical examination was not indicative of whether sexual abuse did or did not occur.
She explained:
Well, the possibility is that there was sexual abuse or a sexual encounter and there’s
no signs or symptoms of any abnormalities or any residual. There’s also the
possibility that there was an injury that caused scar tissue that we could see. And
again, that’s less than 5 [percent] of the time. And then, there’s the possibility that
no sexual encounter occurred, no sexual abuse occurred and the exam was normal.
Those are our three possibilities when we do an exam on a child.
2 VRP at 588.
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No. 59167-7-II
VI. CLOSING ARGUMENTS
During closing arguments, Burgess suggested that R.B. was not credible. He pointed to
missing pieces in the evidence and contended that “the details of [R.B.’s] story change, depending
on who she’s talking to and when.” 2 VRP at 710.
In rebuttal, the prosecutor acknowledged that the jury might have some uncertainty about
R.B.’s credibility. But the prosecutor implored the jury, even in the absence of evidence showing
whether R.B. was honest or not, to reject the theory that missing evidence meant that R.B. was
dishonest. Instead, the prosecutor argued that the jury “could also presume she’s honest.” 2 VRP
at 729. The State then went on to explain why the jury could make that presumption based on her
testimony at trial:
And I submit to you what you got from [R.B.]is the truth. It’s the truth because she
went over to that house and she got along with her stepbrother. You heard from
Paula Blandin testify that they got along great. It was hard to keep them separated.
But what did [R.B.] say after the allegations were made and after they reported it
to law enforcement? She’s had no contact with him since then.
. . . What flipped the switch is [R.B.] realized she should not have had sexual
intercourse with her stepbrother 15 years older. [R.B.] realized that her stepbrother
took advantage of her because he knew he was her way to get marijuana, to get
nicotine, to get alcohol. . . .
Derrick Burgess had control of [R.B.], but Derrick Burgess didn’t have control of
[R.B.] when she came into testify. And she told you her story. . . .
2 VRP at 730 (emphasis added). Burgess did not object. The State then recounted the details of
R.B.’s testimony about the four occasions of sexual contact.
The State went on to explain that it did not matter whether the Defense (or the State)
believed R.B.’s testimony and it pointed the jury to look at the evidence presented at trial that
could allow them to infer that R.B. was telling the truth:
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No. 59167-7-II
It doesn’t matter what [the defense] believes and it doesn’t matter what I believe or
not. But, if we were to believe the [d]efense’s theory of this case that a he said she
said just isn’t enough, keep in mind what the doctor testified to. How do we know
if two people have sexual relations[] th[at] occurred, if only those people are gonna
know? If an injury occurred to the vagina, and we know that that happens in less
than 5 [percent] of the cases and you’ll only see that injury within, I believe she
said three to six days.
Keep in mind the medical evaluation was done on—I want to make sure this is right
since, once again, what I say is not evidence. December 16th, 2020. The
allegations were from a period of October 5th—or October 1st through October
12th. So, we [have] got [a] two month span. Or what’s the only other way that you
would know somebody had sexual intercourse is if it results in a baby?
2 VRP at 730-31 (emphasis added).
The State finished its closing argument by returning to R.B.’s credibility:
All right. Surely you can convict based on a he said she said. Surely you can
convict based upon nobody else witnessing an event. And how do you convict?
You base it on the testimony of that witness making the allegations. And I submit
to you that witness, [R.B.], is credible. And she is credible for every single step
that I’ve outlined. Every single step.
2 VRP at 731 (emphasis added). Here, too, Burgess did not object.
The jury convicted Burgess of all three counts of third degree rape of a child.
Burgess appeals.
ANALYSIS
Burgess makes two arguments on appeal. First, Burgess argues that his constitutional right
to present a defense was violated when the trial court excluded reference to R.B.’s juvenile
convictions. Second, he argues that the State committed prosecutorial misconduct by bolstering
R.B.’s credibility during closing argument.
9
No. 59167-7-II
I. RIGHT TO PRESENT A DEFENSE
Burgess supports his right to present a defense argument by contending that essential to his
defense theory was that R.B. had made up these allegations. Because showing R.B. was dishonest
was so important to this defense theory, Burgess argues that when the trial court used ER 609(d)
to prevent him from impeaching R.B. with her past convictions, his constitutional right to present
a defense was violated. We disagree.2
Under the state and federal constitutions, all criminal defendants possess “ ‘the right to a
fair opportunity to defend against the State’s accusations.’ ” State v. Jones, 168 Wn.2d 713, 720,
230 P.3d 576 (2010) (quoting Chambers v. Mississippi, 410 U.S. 284, 294, 93 S. Ct. 1038,
35 L. Ed. 2d 297 (1973)); Const. art. I, § 22; U.S. CONST. amend. VI. Within this right to present
a defense are a defendant’s rights to have an opportunity to be heard in his defense and to confront
and cross-examine witnesses. Jones, 168 Wn.2d at 720. Although the constitutional right to
present a defense is “basic to our system of jurisprudence,” it is not absolute. Id. Judges have the
discretion to “ ‘exclude evidence that is repetitive . . . , only marginally relevant or poses an undue
risk of harassment, prejudice, [or] confusion of the issues.’ ” State v. Jennings, 199 Wn.2d 53, 63,
502 P.3d 1255 (2022) (alterations in original) (internal quotation marks omitted) (quoting Holmes
v. South Carolina, 547 U.S. 319, 326-27, 126 S. Ct. 1727, 164 L. Ed. 2d 503 (2006)).
2
Before the trial court, Burgess objected based on the right to confrontation but did not specifically
mention the right to present a defense. On appeal, neither party raises RAP 2.5(a) or whether the
basis of Burgess’ objection adequately preserved his right to present a defense argument. Because
neither party raises these issues, we use our discretion to address Burgess’ argument on the merits.
10
No. 59167-7-II
To analyze whether a defendant’s right to present a defense has been violated, we use a
two-step process. Id. at 58-59. The first step involves reviewing the trial court’s rulings under the
evidence rules. Id. If we find a prejudicial evidentiary error at the first step, we stop and “ ‘avoid
the constitutional issue altogether.’ ” Id. at 59 (quoting State v. Jennings, 14 Wn. App. 2d 779,
800-01, 474 P.3d 599 (2020) (Melnick, J., concurring)).3 But if there was no evidentiary error, or
if the error was harmless, we move to the second step, which involves reviewing de novo whether
the exclusion of evidence violated the defendant’s constitutional right to present a defense.
Id. at 59.
A. THE FIRST STEP – WAS THERE AN EVIDENTIARY ERROR?
For the first step, we review the trial court’s decision to admit or exclude evidence under
the evidence rules for an abuse of discretion. Id. at 58-59. An abuse of discretion occurs when an
evidentiary decision is manifestly unreasonable or based on untenable grounds or reasons. State
v. Gentry, 183 Wn.2d 749, 761, 356 P.3d 714 (2015). Application of an incorrect legal standard
is an abuse of discretion. Id. at 764.
ER 609(d) creates a general presumption against admitting evidence of juvenile
convictions for impeachment of a witness. However, the rule also states that the trial court may
allow admission of evidence of a witness’ juvenile convictions for impeachment purposes in a
criminal case if three requirements are met: (1) the witness is not the defendant, (2) the “conviction
of the offense would be admissible to attack the credibility of an adult,” and (3) “the court is
3
“We should refrain from deciding a case on constitutional grounds unless it is absolutely
necessary.” Jennings, 14 Wn. App. 2d at 800 n.6.
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No. 59167-7-II
satisfied that admission in evidence is necessary for a fair determination of the issue of guilt or
innocence.” ER 609(d).
To qualify for this exception, we have long held that the party seeking to admit the evidence
for impeachment purposes carries a significant burden. See State v. Gerard, 36 Wn. App. 7, 12,
671 P.2d 286 (1983), review denied, 100 Wn.2d 1035 (1984). It is not enough for the party seeking
admission to assert that evidence of a juvenile conviction would generally impeach the witness’
credibility; they must demonstrate that the evidence was actually “necessary to determine guilt.”
Id. (affirming the exclusion of the juvenile conviction when the appellant failed to “give any
reasons for admissibility beyond general impeachment of the witness’ credibility”).
For this first step, Burgess argues that the trial court abused its discretion by applying the
incorrect legal standard when deciding to exclude both of R.B.’s April 2020 and May 2020 juvenile
convictions. Burgess concedes that juvenile convictions are “ ‘generally not admissible’ ” under
ER 609(d). Br. of Appellant at 10 (quoting ER 609(d)). But he argues that the trial court failed to
properly apply the rest of the rule; that is, the requirement to determine if admission of the
convictions “is necessary for a fair determination of the issue of guilt or innocence.” Br. of
Appellant at 10.
Burgess makes two different arguments for the two convictions. Specifically for the April
2020 unsealed conviction, Burgess argues that the trial court erroneously excluded the conviction
“based on broad policy reasons” and general observations about how children mature, while “never
consider[ing] the importance of the evidence to this trial or . . . Burgess’[] defense.” Br. of
Appellant at 16. By focusing on the simple fact that children grow up, Burgess contends that the
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No. 59167-7-II
trial court’s basis would essentially make a per se rule that all juvenile convictions are inadmissible
and ER 609(d)’s exception would be rendered “meaningless.” Br. of Appellant at 15.
We disagree that the trial court failed to apply the proper standard for this unsealed
conviction. While it is true that the trial court referenced some of the “broad policy reasons”
behind ER 609(d), the trial court appeared to focus on the specific facts of this case for its
conclusion that the unsealed conviction was not “necessary for the fair determination of the issue
of guilt or innocence.” ER 609(d).
Characterizing Burgess’ argument as being a general dishonesty argument (e.g., just
because R.B. was dishonest in taking motor vehicles, she lied about the allegations), the trial court
observed that this type of argument is generally insufficient to overcome the presumption against
admitting juvenile convictions. The trial court next looked at the specific timeframe of the case
and explained that the fact that R.B. may have been dishonest when she was 14 years old had
minimal relevance to whether she was credible when giving testimony 4 years later, as an adult.
This reasoning does not create a “per se rule” that all juvenile convictions are inadmissible; it is
narrowly tailored to this case—the timing of R.B.’s convictions and her age at trial. Thus, the trial
court did not abuse its discretion by excluding the April 2020 conviction under ER 609(d).
For the sealed May 2020 conviction, Burgess makes a different argument. He argues that
the trial court erred when it excluded the conviction simply because it was sealed. He contends
that because sealing juvenile convictions merely hides the convictions from public access (it does
not erase them or preclude access to them by the trial court or the State), “the legislature did not
intend to categorically preclude the [trial] court from using that information.” Br. of Appellant at
13. He further contends that ER 609(d) does not distinguish between sealed and unsealed
13
No. 59167-7-II
convictions—demonstrating that the rule was not intended to categorically preclude the admission
of sealed juvenile convictions. Thus, Burgess argues the trial court abused its discretion by failing
to apply the proper standard.
We agree with Burgess that the trial court erred for the sealed conviction. Our Supreme
Court has clarified that sealed convictions are only hidden from public view, not that the
convictions themselves cease to exist. Barr v. Snohomish County Sheriff, 193 Wn.2d 330, 337,
440 P.3d 131 (2019). For example, sealed convictions still function to preclude someone from
obtaining a firearm. McIntosh v. State, 30 Wn. App. 2d 224, 233-34, 544 P.3d 559, review denied,
3 Wn.3d 1010, cert. denied, 145 S. Ct. 773, 220 L. Ed. 2d 274 (2024). Sealed convictions also
remain accessible to the courts, prosecutors, and state and out-of-state law enforcement agencies.
Id. at 233. Moreover, Burgess is correct, ER 609(d) does not distinguish between sealed and
unsealed juvenile convictions. See ER 609(d). Thus, while it could be appropriate to consider,
among other things, whether a juvenile conviction is sealed when applying ER 609(d), it is error
to make such a consideration dispositive of admissibility to the exclusion of all else.
Yet, the error was harmless. Burgess does not assert any additional arguments that R.B.’s
May 2020 conviction should be admitted under ER 609(d) that he did not assert for the April 2020
conviction. Thus, even if the trial court had properly analyzed the admissibility of the May 2020
conviction under ER 609(d), Burgess still would not have overcome the general presumption
against admissibility of evidence of juvenile convictions.
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No. 59167-7-II
B. THE SECOND STEP—WAS THERE A CONSTITUTIONAL VIOLATION?
Having concluded either that there was no evidentiary error, or that such error was
harmless, we move to the second step—our de novo review of whether the trial court’s ruling
violated Burgess’ constitutional right to present a defense. Jennings, 199 Wn.2d at 58.
For this second step, we employ the “Hudlow balancing test,”4 weighing the defendant’s
right to produce relevant evidence against the State’s interest in limiting the prejudicial effects of
that evidence. Jennings, 199 Wn.2d at 63. In employing this test, we look at whether the evidence
was of such “ ‘extremely high probative value’ ” that it was the defendant’s entire defense, or
whether the defendant was still able to advance their defense theory at trial without it. State v.
Arndt, 194 Wn.2d 784, 813-14, 453 P.3d 696 (2019) (quoting Jones, 168 Wn.2d at 721). Such
evidence cannot generally be excluded without violating the right to present a defense. Jennings,
199 Wn.2d at 65. This distinguishes evidence that “merely bolsters credibility” from evidence that
is “necessary to present a defense” and, because the evidentiary rules already govern what parties,
including a defendant, can present at trial, “[t]he balance more often tips against a constitutional
violation . . . .” Jennings, 199 Wn.2d at 66-67 (emphasis added); State v. Caril, 23 Wn. App. 2d
416, 431, 515 P.3d 1036 (2022), review denied, 200 Wn.2d 1025, cert. denied, 144 S. Ct. 125,
217 L. Ed. 2d 39 (2023).
Here, Burgess argues that because “[t]his case turned entirely on R.B.’s testimony,” the
trial court, in refusing to allow him to “us[e] R.B.’s multiple crimes of dishonesty to evaluate her
4
First set forth in State v. Hudlow, 99 Wn.2d 1, 16, 659 P.2d 514 (1983), the Hudlow balancing
test has been frequently used for determining when a criminal defendant’s constitutional right to
present a defense has been violated. See Jennings, 199 Wn.2d at 63-65.
15
No. 59167-7-II
credibility,” deprived him of his constitutional right to present a defense. Br. of Appellant at 19.
He supports his argument by noting that the timeframe of R.B.’s convictions is in close proximity
to the time of her allegations and that the convictions involved individuals (R.B.’s stepfather and
Blandin) who were also witnesses at trial. Because the convictions were close in time to the alleged
sexual assaults and because of the specific individuals involved, Burgess contends that the
convictions are especially relevant to show R.B.’s propensity for dishonesty.
We are unpersuaded that Burgess’ right to present a defense was violated. It is true that
the convictions involved R.B.’s stepfather and Blandin (and N.W. was a codefendant for the
May 2020 conviction), but that does not make the information “necessary,” especially considering
none of these third parties witnessed, or provided testimony about, the actual sexual assaults. It is
also true that Burgess’ defense was largely based on R.B.’s credibility, but, as noted above, the
convictions had limited probative value to R.B.’s testimony at trial because of her age. Although
Burgess emphasizes the close proximity of the convictions to the allegations, what is more
important is R.B.’s age when she gave her testimony at trial. As pointed out by the trial court,
R.B. was an adult (18 years of age) when she testified at trial consistently with her allegations from
when she was 14—over three years after the convictions occurred.
This three-year gap is critical given that juveniles change. As repeatedly stated by our
Supreme Court, “ ‘young people differ from adults’ ” when it comes to their culpability and
potential for rehabilitation. In re Pers. Restraint of Monschke, 197 Wn.2d 305, 323, 482 P.3d 276
(2021) (quoting Terry A. Maroney, The False Promise of Adolescent Brain Science in Juvenile
Justice, 85 NOTRE DAME L. REV. 94 (2009). The crimes young people commit or negative
behaviors they engage in are less probative of whether they will engage in such behaviors in the
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No. 59167-7-II
future, much less probative of whether they are simply a “bad,” “criminal,” or “dishonest” person.
See Miller v. Alabama, 567 U.S. 460, 471-72, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012). Given
this capacity to change, any relevance of specific instances of R.B.’s dishonesty at the age of
14 to her testimony at the age of 18 is mitigated by this passage of time. (We underscore, however,
that under different facts, with, for example, different ages and different crimes, a different
conclusion might result.)
Moreover, Burgess still had the opportunity to cross-examine R.B. on the stand to impeach
her for the consistency of her testimony or expose any bias she may have had; thus, Burgess still
had opportunities to challenge R.B.’s credibility.5 Given these opportunities, even if the
convictions would arguably have “bolstered” his defense theory, they were not “necessary” to his
theory. See Jennings,199 Wn.2d at 66-67. Under the circumstances of this case, the convictions
fall short of being of an “ ‘extremely high probative value’ ” that would outweigh the State’s
interest avoiding undue bias towards child victims of sexual assault. Arndt, 194 Wn.2d at 813-14
(quoting Jones, 168 Wn.2d at 721); see also Jennings, 199 Wn.2d at 66-67 (holding that under the
Hudlow test defendant’s right to present was not violated because toxicology report was not of
such high probative value that its exclusion would not outweigh the State’s interest in “avoiding
5
At times, Burgess appears to reference the right to confrontation in addition to the right to present
a defense in his briefing. We view these references to the right to confrontation to be supportive
of his right to present a defense claim, rather than a separate argument. See Caril, 23 Wn. App.
2d at 431 (“ ‘[T]he fundamental constitutional right of a criminal defendant to present a complete
defense . . . encompasses the right to confront and cross-examine adverse witnesses.’ ” (quoting
State v. Orn, 197 Wn.2d 343, 352, 482 P.3d 913 (2021)). To the extent that Burgess intended
these references to constitute a separate argument, it was insufficiently briefed for us to address it.
RAP 10.3.
17
No. 59167-7-II
[its] prejudicial and speculative effect”). Thus, we hold that the exclusion of R.B.’s juvenile
convictions did not violate Burgess’ right to present a defense.
II. PROSECUTORIAL MISCONDUCT
For the first time on appeal, Burgess argues that the State committed prosecutorial
misconduct during closing argument by improperly bolstering R.B. and that this misconduct could
not have been cured by an instruction. We disagree.
To prevail on a claim of prosecutorial misconduct, a defendant must first demonstrate that
the prosecutor’s statements were improper and, second, that they were prejudicial. State v.
Magers, 164 Wn.2d 174, 191, 189 P.3d 126 (2008). Prejudice occurs when “ ‘within reasonable
probabilities, the outcome of the trial would have been materially affected had the error not
occurred.’ ” State v. Weber, 159 Wn.2d 252, 270, 149 P.3d 646 (2006) (internal quotation marks
omitted) (quoting State v. Bourgeois, 133 Wn.2d 389, 403, 945 P.2d 1120 (1997)). When a
defendant fails to object at trial to a prosecutor’s statements, a waiver is presumed unless the
defendant can show that the statements were so flagrant and ill-intentioned that no instruction
could have cured them. State v. Warren, 165 Wn.2d 17, 29-30, 195 P.3d 940 (2008).
When a prosecutor’s alleged misconduct occurs in closing argument, we examine the
conduct in “ ‘the context of the total argument, the issues in the case, the evidence addressed in
the argument, and the instructions given to the jury.’ ” State v. McKenzie, 157 Wn.2d 44, 52,
134 P.3d 221 (2006) (quoting State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997)).
Prosecutors cannot generally assert their personal beliefs about a witness’s credibility or
bolster a witness’s character. Warren, 165 Wn.2d at 30. However, during closing argument,
prosecutors are given wide latitude to make reasonable inferences, even about witness credibility,
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No. 59167-7-II
so long as those inferences are supported by the evidence. State v. Thorgerson, 172 Wn.2d 438,
448, 258 P.3d 43 (2011). This is especially true if, throughout the trial, the defense brought up the
issue of “truth or lying” or elicited testimony questioning the credibility of the victim. Id. In such
cases, “the question of such consistency bec[omes] fair game for comment in closing, where the
prosecutor has great latitude to argue from the evidence.” Id. Only “ ‘clear and unmistakable’ ”
personal opinions are deemed prejudicial. State v. Brett, 126 Wn.2d 136, 175, 892 P.2d 29 (1995)
(quoting State v. Sargent, 40 Wn. App. 340, 344, 698 P.2d 598 (1985)).
Here, Burgess argues that the State improperly bolstered R.B.’s credibility when during
closing arguments the prosecutor told the jury, “I submit to you what you got from [R.B.] is the
truth,” and then repeated this sentiment, saying, “I submit to you [R.B.] is credible.” 2 VRP
at 730-31. Burgess argues that, “[r]ather than arguing any specific evidence supported [R.B.’s]
credibility, the prosecutor simply stated he personally believed R.B. was credible.” Br. of
Appellant at 21-22. He contends that the prosecutor’s statements “essentially resolved a central
fact” and thus no instruction could have cured the misconduct because R.B.’s testimony was the
only direct evidence implicating Burgess’ guilt. Br. of Appellant at 22.
We disagree that the State’s remarks were improper. First, the statements themselves stop
short of being a statement of personal belief. The phrasing “I submit” at the outset of the statement
is not the same as when a prosecutor says, for example, “I personally believe that [witness] is
telling the truth.” See United States v. Vazquez-Larrauri, 778 F.3d 276, 284-85 (1st Cir. 2015)
(observing that “I submit” is not necessarily an indication of a personal belief but is, rather, an
ambiguous term that “can mean ‘to present or propose to another for review, consideration or
decision.’ ” (quoting Merriam-Webster’s Collegiate Dictionary 1244 (11th ed. 2012)). At a
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No. 59167-7-II
minimum, the phrasing of “I submit” created ambiguity, making the statements well short of “clear
and unmistakable” personal opinions. Brett, 126 Wn.2d at 175.
Second, because Burgess focused his defense on R.B.’s credibility, claiming, for example,
in closing arguments that her statements changed “depending on who she’s talking to and when,”
2 VRP at 710, it was “fair game” for the State to make reasonable inferences from the evidence
addressing R.B.’s credibility, so long as the inferences were supported by evidence. See
Thorgerson, 172 Wn.2d at 448. And here, the State supported its statements about R.B.’s
credibility with the evidence, including trial testimony. Immediately after the prosecutor’s
statement about R.B. telling the truth, the prosecutor discussed specific testimony, including
Blandin’s observations of R.B.’s close relationship with Burgess, R.B.’s testimony that she no
longer spoke with Burgess after the allegations, and Dr. Gilbert’s testimony that the absence of
visible injuries to her genitals was not indicative of her allegations being false. With these
supportive references to the testimony (coupled with the prosecutor’s reminder to the jury that “it
does not matter” what the lawyers believe), the prosecutor’s statements were within the “wide
latitude” afforded to prosecutors to make inferences about witness credibility. See Thorgerson,
172 Wn.2d at 448.
Thus, the State’s remarks were not improper bolstering of a witness and Burgess’
prosecutorial misconduct claim fails.
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No. 59167-7-II
CONCLUSION
We affirm Burgess’ convictions.
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.
PRICE, J.
We concur:
CRUSER, C.J.
GLASGOW, J.
21
Case Information
- Court
- Wash. Ct. App.
- Decision Date
- September 16, 2025
- Status
- Precedential