In Re The Detention Of Patrick Mcgaffee ( 2017 )


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  •           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
    In the Matter of the Detention of             )         No. 73727-9-1
    )
    PATRICK EVERETT MCGAFFEE,                     )
    )
    Appellant,              )
    )        DIVISION ONE
    v.                     )
    )
    THE STATE OF WASHINGTON,                      )        UNPUBLISHED OPINION
    )
    Respondent.            )        FILED: August 14, 2017
    )
    MANN, J. — Patrick McGaffee appeals his continued civil commitment as a
    sexually violent predator following a jury verdict in an unconditional discharge trial.
    McGaffee argues that the trial court erred (1) under Frve,1 by admitting testimony based
    on the Structured Risk Assessment-Forensic Version (SRA-FV)tool,(2) by allowing
    testimony of McGaffee's ranking to reoffend as against other sexual offenders,(3) by
    limiting McGaffee's criticism of one of the risk assessment tests used by the State, and
    (4) by refusing to ask one of the jury's questions. McGaffee also asserts the State
    committed prosecutorial misconduct during closing argument.
    Finding no error or misconduct, we affirm.
    1 Frye v. United States, 
    293 F. 1013
    (D.C. Cir. 1923).
    No. 73727-9-1/2
    FACTS
    As a young adult, Patrick McGaffee repeatedly offended against prepubescent
    boys. In 1992, McGaffee pleaded guilty to residential burglary and attempted second
    degree rape of a 15-year-old boy after he broke into the boy's home with the intent of
    raping him. At the conclusion of McGaffee's sentence, the State petitioned for
    continued civil commitment under the Sexually Violent Predator Act(SVPA), ch. 71.09
    RCW. In 1998, McGaffee was committed and has since resided in total confinement at
    the Special Commitment Center(SCC).
    In 2013, McGaffee petitioned for, and was granted, an unconditional release trial
    pursuant to RCW 71.09.090. McGaffee moved pretrial to exclude testimony from the
    State's expert witness regarding the use of the SRA-FV tool. The trial court conducted
    a multi-day Frye, hearing and heard testimony from the State's expert, Amy Phenix,
    Ph.D, and McGaffee's experts, Howard Barbaree, Ph.D, and Brian Abbott, Ph.D. At the
    conclusion of the Frye hearing, the trial court denied McGaffee's motion and concluded
    that the testimony concerning the use of the SRA-FV as a measure for risk assessment
    was admissible.
    Clinical psychologist, Harry Goldberg, Ph.D, testified for the State. Dr. Goldberg
    diagnosed McGaffee with pedophilic disorder and fetishistic disorder and concluded
    those disorders amounted to a mental abnormality. Dr. Goldberg opined that
    McGaffee's mental abnormality causes him serious difficulty controlling his sexually
    violent behavior.
    Dr. Goldberg then assessed McGaffee's risk of reoffending using a method
    known as structured clinical judgment. He used a series of actuarial tools, including the
    -2-
    No. 73727-9-1/3
    Static-99R, Static 2002R, and Violence Risk Appraised Guide-Revised (VRAG-R)tools
    to consider "static"(or unchanging) risk factors. He also used the SRA-FV and STABLE
    2007 tools to assess "dynamic" risk factors (also knowns as psychological
    vulnerabilities). Dr. Goldberg also considered protective factors and case-specific
    factors. Dr. Goldberg concluded that McGaffee's mental abnormality makes him more
    likely than not to commit predatory acts of sexual violence if not confined in a secure
    facility.
    Clinical psychologist, Brian Abbott, Ph.D., testified for McGaffee. Dr. Abbott
    testified that McGaffee does not have a qualifying mental disorder and that McGaffee's
    risk "falls below the [statutory] threshold of more likely than not." As a result, Dr. Abbott
    did not assess McGaffee's risk of reoffending. Dr. Abbott criticized Dr. Goldberg's
    methodology including his use of the VRAG-R and the SRA-FV actuarial tools.
    The jury returned a verdict finding McGaffee continues to be a sexually violent
    predator. The trial court ordered continued commitment at the SCC. McGaffee
    appeals.
    ANALYSIS
    Once an individual has been involuntarily committed under the SVPA,they have
    the right, on an annual basis, to petition for conditional release to a less restrictive
    alternative or for unconditional discharge. RCW 71.09.090(2). If the issue is whether
    the individual should be unconditionally discharged, the State bears the burden of
    proving, beyond a reasonable doubt, that the person continues to meet the definition of
    a sexually violent predator. RCW 71.09.090(3)(c); RCW 71.09.060(1); In re Det. of
    Post, 
    170 Wash. 2d 302
    , 309, 
    241 P.3d 1234
    (2010).
    -3-
    No. 73727-9-1/4
    A "sexually violent predator" is defined as any person who has been convicted of
    or charged with a crime of sexual violence and who suffers from a mental abnormality or
    personality disorder that makes the person "likely to engage in predatory acts of sexual
    violence if not confined in a secure facility." RCW 71.09.020(18). "Likely to engage in
    predatory acts of sexual violence if not confined in a secure facility" means the person
    "more probably than not will engage in such acts if released unconditionally from
    detention on the sexually violent predator petition." RCW 71.09.020(7). This is often
    referred to as the "more likely than not" standard. See In re Det. of Moore, 
    167 Wash. 2d 113
    , 119, 
    216 P.3d 1015
    (2009). "The fact to be determined is not whether the
    defendant will reoffend, but whether the probability of the defendant's reoffending
    exceeds 50 percent." In re Detention of Brooks, 
    145 Wash. 2d 275
    , 298, 
    36 P.3d 1034
    (2001), overruled on other grounds by In re Det. of Thorell, 
    149 Wash. 2d 724
    , 753, 
    72 P.3d 708
    (2003).
    Frye Challenge
    McGaffee argues first that the trial court erred by allowing Dr. Goldberg to testify
    based on the SRA-FV tool, because it is a novel risk assessment tool that does not
    meet the test in Frye v United States, 
    293 F. 1013
    , 1014 (D.C. Cir. 1923). We disagree.
    Washington courts follow the Frye test in determining the admissibility of novel
    scientific evidence. State v. Copeland, 
    130 Wash. 2d 244
    , 255-56, 
    922 P.2d 1304
    (1996).
    Testimony is admissible under Frye where "(1) the scientific theory or principle upon
    which the evidence is based has gained general acceptance in the relevant scientific
    community of which it is part; and (2)there are generally accepted methods of applying
    the theory or principle in a manner capable of producing reliable results." Lake Chelan
    -4-
    No. 73727-9-1/5
    Shores Homeowners Ass'n v. St. Paul Fire & Marine Ins. Co., 
    176 Wash. App. 168
    , 175,
    
    313 P.3d 280
    (2013).
    The admissibility of evidence under Frye is a mixed question of law and fact that
    we review de novo. In re Det. of Pettis, 
    188 Wash. App. 198
    , 204, 
    352 P.3d 841
    (2015).
    "We undertake 'a searching review which may extend beyond the record and involve
    consideration of scientific literature as well as secondary legal authority." 
    Pettis, 188 Wash. App. at 204-05
    (quoting 
    Copeland, 130 Wash. 2d at 255-56
    ). "We may consider
    materials that were unavailable until after the Frye hearing." 
    Pettis, 188 Wash. App. at 205
    .
    Since McGaffee's trial concluded, Division Two and Division Three of this court
    have reviewed and found the use of the SRA-FV tool has gained general acceptance in
    the scientific community, and that there are generally accepted methods of applying the
    test in a manner capable of producing reliable results. Both courts concluded that use
    of the SRA-FV test is admissible under Frye. 
    Pettis, 188 Wash. App. at 209-10
    , 211; In re
    Det. of Ritter, 
    192 Wash. App. 493
    , 499, 372 P.3d 122(2016), as amended (Apr. 12,
    2016), review denied, 
    185 Wash. 2d 1039
    (2016). While McGaffee attempts to circumvent
    these decisions by arguing that the SRA-FV was applied differently in this case, his
    argument is unavailing.
    Both Pettis and Ritter involved the use of the SRA-FV tool in conjunction with the
    Static-99R tool, in the same way that it was used in this case. 
    Pettis, 188 Wash. App. at 210
    ; 
    Ritter, 192 Wash. App. at 498
    . Pettis and Ritter also involved several of the same
    psychological experts who testified in this case—Dr. Phenix and Dr. Abbott. See 
    Ritter, 192 Wash. App. at 496
    (Phenix and Abbot); Pettis, 188 Wn. App. at 202(Phenix). We find
    -5-
    No. 73727-9-1/6
    no reason to diverge from these recent decisions, and concur that the SRA-FV tool is
    generally accepted by the scientific community, that there are generally accepted
    methods of applying the tool capable of producing reliable results, and that the tool is
    admissible under Frye.2
    Percentile Ranking
    The State was required to prove McGaffee's mental abnormality makes him more
    likely than not to commit predatory acts of sexual violence if not confined in a secure
    facility. RCW 71.09.020(18). The SVPA does not, however, require the State to prove
    that any individual actuarial tool estimates the risk of reoffending exceeds 50 percent.
    In re Meirhofer, 182 Wn. 2d 632,645, 
    343 P.3d 731
    (2015). Indeed, the SVPA "does
    not limit experts to the results of actuarial tests." 
    Meirhofer, 182 Wash. 2d at 645
    . When
    completing a risk assessment in SVP cases, experts generally use tools that test both
    static and dynamic risk factors and consider their own clinical judgment. In re Det. of
    2 McGaffee's brief points to the lack of peer reviewed literature supporting use of the SRA-FV
    tool. But as the court discussed in Pettis, this has changed:
    In December 2013, after Pettis's trial, Dr. Thornton published a peer-reviewed article
    describing the SRA-FV. David Thornton & Raymond Knight, Construction and Validation
    of SRA-FV Need Assessment, SEXUAL ABUSE: A JOURNAL OF RESEARCH AND TREATMENT
    XX(X) 1-16 (2013). The SRA-FV has been described favorably in some books:"For non-
    disabled clients, the[SRA-FV](Thornton, 2002). .. enjoy[s] relative degrees of favor,
    depending on the jurisdiction in which each is used." Robin J. Wilson & David S. Prescott,
    Understanding and RESPONDING TO PERSONS WITH SPECIAL NEEDS WHO HAVE SEXUALLY
    OFFENDED, IN RESPONDING TO SEXUAL OFFENDING: PERCEPTIONS, RISK MANAGEMENT AND
    PUBLIC PROTECTION 128, 134 (Kieran McCartan, ed., 2014); see also Alix M. McLearen et
    al., Perpetrators of Sexual Violence: Demographics, Assessments, Interventions, in
    Violent Offenders: Understanding and Assessment 216, 231 (Christina Pietz, et al., eds.,
    2014)(describing the SRA-FV as a "research-guided multistep framework for assessing
    the risk presented by a sex offender and provides a systematic way of going beyond
    static risk classification").
    
    Pettis, 188 Wash. App. at 208-09
    .
    -6-
    No. 73727-9-1/7
    Sease, 
    190 Wash. App. 29
    , 44, 357 P.3d 1088(2015)(citing 
    Meirhofer, 182 Wash. 2d at 646
    ).
    During his testimony concerning McGaffee's risk of reoffending, Dr. Goldberg
    described the results he obtained using several commonly used actuarial tools.
    According to the Static-99R test, the most commonly used sex offender risk tool, Dr.
    Goldberg explained that the results showed McGaffee had a 30.7 percent chance of
    committing an offense over a period of 5 years and a 42.8 percent chance over a period
    of 10 years. Dr. Goldberg also explained, that McGaffee scored a seven which placed
    him in the high category for sexual reoffense. Goldberg then explained that this score
    placed McGaffee in the 94th percentile of other sexual offenders. Goldberg explained
    that McGaffee did not have a 94 percent chance of reoffending, "[i]t just means
    compared to other sex offenders, he's in the 94th percentile meaning that's where he
    falls." Dr. Goldberg again explained his testimony in response to a question from the
    jury. The jury asked:"Mr. McGaffee falls into the 94th percentile of sex offender, but it
    doesn't mean 94 percent chance of reoffending. What does it mean?" Dr. Goldberg
    reiterated that it meant McGaffee is "94 percent of a higher risk than other sex offenders
    . . . It doesn't mean he's 94 percent going to reoffend."
    McGaffee argues that this testimony was irrelevant and confused the jury by
    conflating the 94th percentile ranking with the absolute risk of reoffense needed under
    the statute. McGaffee also argues that the evidence of such a high percentile ranking
    was prejudicial and was likely to arouse an emotional response in the jury, rather than
    contribute to a rational decision. We disagree.
    -7-
    No. 73727-9-1/8
    We review the trial court's evidentiary rulings for abuse of discretion. "A court
    abuses its discretion when its evidentiary ruling is manifestly unreasonable, or exercised
    on untenable grounds, or for untenable reasons." State v. Williams, 
    137 Wash. App. 736
    ,
    743, 154 P.3d 322(2007). Evidence is relevant and admissible if it has any tendency to
    make the existence of a fact more or less probable. ER 401. Relevant evidence may
    be excluded "if its probative value is substantially outweighed by the danger of unfair
    prejudice, confusion of the issues, or misleading the jury, or by considerations of undue
    delay, waste of time, or needless presentation of cumulative evidence." ER 403.
    Evidence is unfairly prejudicial if it is more "likely to arouse an emotional response than
    a rational decision among the jurors." Carson v. Fine, 
    123 Wash. 2d 206
    , 223, 
    867 P.2d 610
    (1994). The burden of showing prejudice is on the party seeking to exclude the
    evidence. 
    Carson, 123 Wash. 2d at 225
    . The trial court sits in the best position to
    determine the prejudicial effect of evidence. State v. Powell, 
    166 Wash. 2d 73
    , 81, 
    206 P.3d 321
    (2009).
    McGaffee's percentile ranking is certainly relevant. Dr. Goldberg testified that
    understanding McGaffee's percentile ranking against other offenders is a starting
    point—it informed him that McGaffee has a higher risk of reoffending than most
    offenders. Further, instead of just knowing McGaffee had a high risk of offending,
    knowing where he ranked against other offenders provided more specific information.
    Dr. Goldberg also explained that the percentile ranking is frequently relied upon by
    others in his field and that it is "a standard practice." Based on Dr. Goldberg's testimony
    and argument, the trial court found the evidence relevant and admissible. We agree.
    -8-
    No. 73727-9-1/9
    While evidence that McGaffee's risk of reoffending was in the 94th percentile
    against other offenders might be prejudicial, it is not so highly prejudicial so as to be
    excluded. Evidence is not inadmissible under ER 403 just because it may be
    prejudicial, as nearly all evidence will prejudice one side or the other in a lawsuit.
    
    Carson, 123 Wash. 2d at 224
    . As Dr. Goldberg was the State's main expert, most of his
    testimony and evidence was bound to be inherently prejudicial. Dr. Goldberg was free
    to provide his expert opinion on McGaffee's overall risk of offense and was not limited to
    discussing the actuarial instrument used to get the absolute recidivism rates. Dr.
    Goldberg repeatedly explained that the percentile was not the same as the absolute risk
    of reoffense and testified to two smaller percentages that he specified were indicative of
    McGaffee's risk of reoffense. Moreover, the record supports the conclusion that the jury
    was rationally considering this evidence for its appropriate purpose, demonstrated by
    the clarifying question posed in order to ensure the evidence was properly measured.
    The trial court did not abuse its discretion in allowing the testimony concerning
    percentile rankings.
    Dr. Abbott's Opinion of the VRAG-R Instrument
    The State's expert, Dr. Goldberg, used three different actuarial tools to consider
    McGaffee's "static" risk factors for reoffending. McGaffee's expert, Dr. Abbott, held the
    opinion that Dr. Goldberg's use of VRAG-R was inappropriate. McGaffee claims that
    the trial court limited Dr. Abbot's criticism of the VRAG-R and consequently violated
    McGaffee's right to present a defense. McGaffee's argument is without merit.
    While a trial court's decision to admit or exclude evidence is reviewed for abuse
    of discretion, a court "necessarily abuses its discretion by denying a criminal
    -9-
    No. 73727-9-1/10
    defendant's constitutional right." State v. Strizheus, 
    163 Wash. App. 820
    , 829, 262 P.3d
    100(2011)(internal quotations omitted). A criminal defendant has a right under the
    Sixth Amendment of the United States Constitution and article!, section 22(amendment
    10) of the Washington Constitution to present a defense. 
    Strizheus, 163 Wash. App. at 829-30
    . However, the right to present a defense is not absolute and does not turn every
    trial court decision excluding evidence into an error of constitutional magnitude. "The
    right to present a defense does not extend to irrelevant or inadmissible evidence."
    
    Strizheus, 163 Wash. App. at 830
    .
    During his testimony, Dr. Abbott was asked whether he believed the VRAG-R
    instrument should be used in forensic applications. The State objected, and after
    argument outside the presence of the jury, the trial court ruled that Dr. Abbott could
    testify as to why he did not personally use the VRAG-R but could not opine whether the
    tool should be used.
    Despite the court's ruling, Dr. Abbott testified that the VRAG-R was unreliable in
    part because it had not been cross-validated on other populations, and the
    developmental sample was not representative of the group of offenders to whom
    McGaffee belongs. Dr. Abbott also testified that any cross-validation of the VRAG-R
    would likely show reduced predictive validity. The only objection the trial court
    sustained during this line of questioning, was an objection to Dr. Abbott predicting how
    future cross-validations would turn out, stating "you can't predict the future." Dr. Abbott,
    however, was then able to continue discussing the possibility of "shrinkage" and
    diminished accuracy in cross-validation.
    -10-
    No. 73727-9-1/11
    The trial court's statement that the objection was sustained because "you cannot
    predict the future," indicates it was excluded because it was speculative. "'It is well
    established that conclusory or speculative expert opinions lacking an adequate
    foundation will not be admitted." Miller v. Likins, 
    109 Wash. App. 140
    , 148, 
    34 P.3d 835
    (2001)(quoting Safeco Ins. Co. v. McGrath,63 Wn. App. 170, 177, 817, P.2d 861
    (1991)). "In addition, when ruling on somewhat speculative testimony, the court should
    keep in mind the danger that the jury may be overly impressed with a witness
    possessing the aura of an expert." 
    Miller, 109 Wash. App. at 148
    (quoting Davidson v.
    Municipality of Metro. Seattle, 
    43 Wash. App. 569
    , 571-72, 
    719 P.2d 569
    (1986)). Dr.
    Abbott's claims that future cross-validations would most likely show diminished
    accuracy was clearly speculative, as it assumes an outcome that cannot be verified.
    McGaffee was not prevented from presenting a defense and the trial court did not
    abuse its discretion in limiting Dr. Abbot's speculative testimony.
    Jury Question for Dr. Abbott
    Dr. Abbott testified that McGaffee did not suffer from a mental abnormality.
    Because Dr. Abbott did not believe McGaffee had a mental abnormality, he did not
    address whether McGaffee had difficulty in controlling sexually violent behavior. Dr.
    Abbott also did not "specifically" address whether McGaffee was more likely than not to
    engage in predatory acts of sexual violence; he only conducted a risk assessment to
    contrast Dr. Goldberg's assessment. Dr. Abbott did not testify to which instruments or
    methods he relied upon in reaching his criticism of Dr. Goldberg's opinion. At the
    conclusion of Dr. Abbott's testimony, the jury submitted the following question:"You
    testified you completed a risk assessment to compare with Dr. Goldberg's. What
    -11-
    No. 73727-9-1/12
    instruments did you use and what were the scores?" On its own motion, the trial court
    refused to ask the question. McGaffee now argues the trial court erred. We disagree.
    In civil cases, including SVP trials, jurors are permitted to submit questions for
    the court to ask witnesses during the witness's testimony. CR 43(k); In re Det. Of
    Greenwood, 
    130 Wash. App. 277
    , 286-87, 122 P.3d 747(2005). The court may rephrase
    or reword the question. On its own motion, the court may also refuse to allow a
    particular question from a juror to a witness. CR 43(k). We review the trial court's
    decision for abuse of discretion. See e.g., Jarrad v. Seifert, 
    22 Wash. App. 476
    , 478, 
    591 P.2d 809
    (1979).3
    Prior to deciding whether to ask the jury's question, the trial court heard
    argument outside of the presence of the jury. The State argued the question was
    outside the scope of the testimony because Dr. Abbott had not testified to conducting a
    risk assessment or what instruments he had used. McGaffee's counsel agreed that the
    question was outside the scope of direct and redirect examination but did not take a
    position "as to whether that's a proper reason to exclude." McGaffee did not argue that
    he wanted the question asked, or state that the question was necessary.
    The trial court agreed that the question was outside the scope because "It
    appears that this question was never asked by the respondent." The trial court further
    opined that the question would require spending substantial time going into a topic
    McGaffee had chosen not to raise, which might interfere with respondent's strategic
    reasoning for not going into the topic. In the end the trial court ruled, "I am using my
    3"The trial court has broad discretion in propounding questions to witnesses in order that it may
    gain all the information possible to aid in correctly determining the disputed questions presented by the
    respective parties." 
    Jarrad, 22 Wash. App. at 478
    .
    -12-
    No. 73727-9-1/13
    authority under CR 43(k) and I am refusing on my own motion, with not really any
    objections from either of you, to ask this particular question." McGaffee then objected
    for the record.
    McGaffee argues that the trial court's decision to withhold this question barred
    him from being able to present a defense. We disagree. The jury submitted this
    question after Dr. Abbott had testified for two days. McGaffee chose not to ask Dr.
    Abbott about, or have Dr. Abbott discuss, the assessment he had used. Thus, the
    question was undoubtedly outside the scope of the testimony. McGaffee did not argue
    that the question was necessary to their case or even meaningfully argue that the
    question should be allowed. The trial court then agreed, without any argument to the
    contrary. The trial court did not abuse its discretion on refusing to ask the question.
    Prosecutorial Misconduct
    McGaffee next argues that the State committed prosecutorial misconduct during
    closing arguments. We disagree.
    In determining whether prosecutorial misconduct has occurred, we first look at
    whether the defendant objected to the alleged misconduct. State v. Magers, 
    164 Wash. 2d 174
    , 191, 
    189 P.3d 126
    (2008). "If the defendant objected, we evaluate (1) whether the
    prosecutor's comments were improper and (2) whether a substantial likelihood exists
    that the improper comments affected the jury's verdict." 
    Magers, 164 Wash. 2d at 174
    .
    The defendant bears the burden of showing both prongs of prosecutorial misconduct.
    
    Magers, 164 Wash. 2d at 191
    (citing State v. Hughes, 
    118 Wash. App. 713
    , 727,77 P.3d 681
    (2003)). If the appellant failed to object to the improper remark at the trial court, they
    waived the error "unless the remark is so flagrant and ill intentioned that it causes an
    -13-
    No. 73727-9-1/14
    enduring and resulting prejudice that could not have been neutralized by an admonition
    to the jury." State v. Russell, 
    125 Wash. 2d 24
    , 86, 882 P.2d 747(1994)).
    In closing argument, a prosecutor has wide latitude to draw reasonable
    inferences from the evidence and to express such inferences to the jury. 
    Magers, 164 Wash. 2d at 192
    . A prosecutor's remarks should be viewed in "context of the total
    argument, the issues in the case, the evidence addressed in the argument, and the
    instructions given to the jury." 
    Maqers, 164 Wash. 2d at 192
    (quoting State v. Brown, 
    132 Wash. 2d 529
    , 563, 
    940 P.2d 546
    (1997)).
    McGaffee assigns error to four comments made during the State's closing
    argument. We address each in turn.
    A.     Comments without objections
    Three of the four statements McGaffee complains of must be analyzed under the
    "enduring and resulting prejudice" standard. "Failure to request a curative instruction or
    move for a mistrial 'strongly suggests to a court that the argument or event in question
    did not appear critically prejudicial to an appellant in the context of the trial." In re Det.
    of Law, 
    146 Wash. App. 28
    , 51, 204 P.3d 230(2008)(quoting State v. Swan, 114 Wn.2d
    613,661, 
    790 P.2d 610
    (1990)).
    First, McGaffee claims that the State committed misconduct by suggesting that
    the jurors could rely on their subjective beliefs, when the State said,
    'More likely than not' is defined as 50 percent, greater than 50 percent, in
    your instruction. That means that based on the evidence, you believe
    there's at least 50 percent plus something that he will reoffend; that does
    not mean that the actuarial percentage has to be above 50 percent.
    -14-
    No. 73727-9-1/15
    This statement is not error because it is a correct statement of the standard and the law.
    The statement clearly limited the juror's decision to being "based on the evidence," and
    was not arguing that the jury could use their "subjective belief' as McGaffee suggests.
    Second, McGaffee argues the State misstated the burden of proof by saying,
    Actuarials cannot predict the future. We don't have a crystal ball. We
    don't know whether or not he will reoffend or won't reoffend. That's not
    what you're being asked. You're being asked to see whether or not it's
    likely.
    This statement is also an accurate statement of the standard and the evidence. The
    State was simply admitting the limitations of the actuarial tools relied on by the experts.
    Although the statement that the jurors are "being asked to see whether or not it's likely"
    could have drawn an objection requiring that the State clarify that it must be "more likely
    than not," this error was not "enduring" as the correct legal standard was repeatedly
    provided.
    Finally, McGaffee argues the State committed misconduct by arguing the
    absence of evidence of a current pedophilic disorder did not mean it was not there.
    Using a vacuum analogy, the State said,
    So say a vacuum.. . a vacuum is like the absence of air. It's that sucking
    that happens. You can't see it, you can't observe the vacuum. That
    doesn't mean it's not there. Right?
    How do we know that it's there? You look at the evidence around
    the vacuum. You look at what's going on around it, that things are being
    pulled into it. Right? So you can see what's happening to the feather
    when you hold it up next to the vacuum, and that's how you know there's a
    vacuum.
    Similarly, you can look at Mr. McGaffee, and in the absence of
    direct, Mr. McGaffee on the stand saying I continue to be a pedophile, I
    continue to suffer from pedophilic disorder, you can look at the evidence
    around it to determine whether the condition still exists.
    -15-
    No. 73727-9-1/16
    Considering the State's analogy in the "context of the total argument," as is required,
    this statement was not a claim that the jury need not rely on the evidence. The
    statement was a description of the state of the evidence and an argument that the jury
    may use circumstantial evidence in the absence of direct evidence. This argument was
    not misconduct, and, though awkward, was not so "flagrant and ill intentioned" that it
    caused "an enduring and resulting prejudice that could not have been neutralized by an
    admonition to the jury." 
    Russell, 125 Wash. 2d at 86
    .
    B.    Comment with obiection
    McGaffee did object and request a mistrial during closing argument after the
    State used a "soup" analogy to describe the evidence that was presented at trial.
    Because McGaffee did object, the first question is whether the State's comments were
    improper. 
    Maoers, 164 Wash. 2d at 174
    .
    During closing argument, the State offered a PowerPoint slide presentation that
    showed Dr. Goldberg's name, a bowl of soup, and the word "risk assessment" with
    arrows pointing toward it showing the different measures Dr. Goldberg used to reach his
    "risk assessment." The next slide showed Dr. Abbott's name,then the word "risk
    assessment" with no arrows demonstrating he had not provided any testimony to
    explain his assessment. While the slide was before the jury, the State argued,
    So if we were to go back and look at the risk assessment, if you
    only have the actuarial tools, you don't have a risk assessment, you don't
    have soup. If you don't have dynamic risk factors, or you just have case-
    specific factors, and protective factors, you don't have a risk assessment.
    The soup has to be completed, and Dr. Goldberg completed the risk
    assessment. Dr. Abbott, this is his risk assessment.
    McGaffee objected and the trial court overruled the objection. The State continued,
    -16-
    No. 73727-9-1/17
    Dr. Abbott took the stand and he told you that Mr. McGaffee is not likely to
    reoffend, not -- sorry, is not more likely than not to reoffend, but he did not
    support his conclusion. [Dr. Abbott] criticized the use of the VRAG, he
    talked a little bit about the use of the percentile rankings, but he did not
    support his conclusion. Dr. Goldberg is the only one that did.
    McGaffee moved for a mistrial. The trial court denied the motion.
    McGaffee argues first that the "soup analogy" improperly trivialized a critical legal
    standard to everyday decision making. Washington courts have found prosecutorial
    misconduct when a prosecutor "compares the reasonable doubt standard to everyday
    decision making" because "it improperly minimizes and trivializes the gravity of the
    standard and the jury's role." State v. Lindsay, 
    180 Wash. 2d 423
    , 436, 
    326 P.3d 125
    (2014). This rule does not apply here. The State was using the "soup" analogy to
    describe the evidence, not to explain reasonable doubt, and is thus not relevant under
    this line of cases.
    McGaffee next argues that the argument was misconduct because it improperly
    transferred the burden onto McGaffee to prove that he was not likely to reoffend,
    instead of on the State to prove that he was likely to offend. McGaffee argues,"[t]he
    respondent has no burden to demonstrate that he is safe to be at large. The
    respondent has the right to expert assistance, but no obligation to present any
    evidence, and certainly no obligation to develop risk assessment testimony." McGaffee
    maintains that this error was "particularly egregious" because the State was arguing that
    "McGaffee should be faulted for not presenting evidence the prosecutor knew to have
    been earlier excluded by judicial order," citing to State v. Kassahun, 
    78 Wash. App. 938
    ,
    952, 900 P.2d 1109(1995).
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    No. 73727-9-1/18
    "Arguments by the prosecution that shift the burden of proof onto the defense
    constitute misconduct." State v. Thorgerson, 
    172 Wash. 2d 438
    , 466-67, 
    258 P.3d 43
    (2011). "A prosecutor generally cannot comment on the lack of defense evidence
    because the defense has no duty to present evidence." 
    Thorgerson, 172 Wash. 2d at 466
    -
    67; State v. Cheatam, 
    150 Wash. 2d 626
    , 652, 
    81 P.3d 830
    (2003). But, in closing
    argument, a prosecutor has wide latitude to draw reasonable inferences from the
    evidence and to express such inferences to the jury. Magers, 
    164 Wash. 2d 174
    at 192.
    "An argument about the amount or quality of evidence presented by the defense does
    not necessarily suggest that the burden of proof rests with the defense." 
    Thorgerson, 172 Wash. 2d at 466
    -67 (quoting State v. Gregory, 
    158 Wash. 2d 759
    , 760, 
    147 P.3d 1201
    (2006)).
    Here, the State's argument was not a comment on the amount and quality of the
    evidence presented by the defense, and did not improperly shift the burden of proof
    onto the defense. The mere mention that defense evidence is lacking does not
    constitute prosecutorial misconduct or shift the burden of proof to the defense. State v.
    Jackson, 
    150 Wash. App. 877
    , 885-86, 209 P.3d 553(2009). The State clearly explained
    to the jury that the State had the burden of proof. The State also explained that the jury
    was the sole judge of credibility and outlined numerous reasons why it should find the
    State's witnesses more credible than McGaffee's witness. The prosecutor did not argue
    that the jury should find McGaffee guilty because he did not present a risk assessment.
    The State's argument was that McGaffee's witness, who attacked the risk assessments
    used by the State, admitted to doing one himself, then did not present such an
    -18-
    No. 73727-9-1/19
    assessment, was less credible than the State's witnesses. See 
    Jackson, 150 Wash. App. at 886
    . This was also not misconduct.
    Finally, McGaffee argues that the State committed misconduct by benefitting
    from McGaffee's failure to present a risk assessment after they specifically objected to
    the trial court admitting the jury question that would have asked Dr. Abbott to discuss
    the risk assessments he relied on. McGaffee bases this argument on the ruling in
    Kassahun, in which the State kept the defendant from discovering evidence, and then
    used the defendant's inability to present that evidence against him in closing argument.
    
    Kassahun, 78 Wash. App. at 952
    .
    The facts in this case are readily distinguishable from Kassahun. Here, unlike in
    Kassahun, the State did not prevent McGaffee from asking Dr. Abbott to list the
    methods he relied on in reaching his conclusion during the two days in which Dr. Abbott
    testified. Moreover, McGaffee did nothing to induce the court to allow the jury
    instruction to be presented to Dr. Abbott. While the State's actions were underhanded,
    given that they said the question of what instrument Dr. Abbott used was "not needed"
    and then argued in closing that he was less credible due to not providing such
    instruments,4 the State did not keep McGaffee from presenting the evidence of Dr.
    Abbott's risk assessment.
    The State did not commit prosecutorial misconduct.
    4 "I'm sure we can do it, it will be fairly time consuming, and ultimately I don't know that it would
    be that illuminating to the jury given that Dr. Abbott's testimony was that Mr. McGaffee is under 50
    percent in his assessment. So we're not going to get any new information out of it, other than the fact
    that he used an instrument, and what that instrument's score was. So the answer is not needed. The
    evidence that Dr. Abbott has is in."
    -19-
    No. 73727-9-1/20
    Cumulative Error
    The cumulative error doctrine applies only when several trial errors occurred
    which, standing alone, may not be sufficient to justify a reversal, but when combined
    together, may deny a defendant a fair trial. State v. Hodaes, 
    118 Wash. App. 668
    , 673-74,
    77 P.3d 375(2003). Because McGaffee has identified no errors, the cumulative error
    doctrine does not apply.
    We affirm.
    WE CONCUR:
    1
    -20-