Volume 59 — Washington Appellate Reports

<bold>[1] Evidence — Opinion Evidence — Expert Testimony — Test.</bold> Expert testimony is admissible under ER 702 if the witness qualifies as an expert, the expert's opinion is based on an explanatory theory generally accepted in the scientific community, and the testimony is helpful to the trier of fact. <bold>[2] Sexual Offenses — Evidence — Delay in Disclosure — Expert</bold> <bold>Testimony.</bold> Expert testimony that it is not uncommon for victims of sexual abuse to wait a period of time before disclosing the abuse is admissible when it is offered, not to prove that the<page_number>Page 419</page_number> abuse occurred, but to show that delay is not inconsistent with the presence of abuse in order to rebut an attack on the victim's credibility. <bold>[3] Witnesses — Impeachment — Corroboration — Expert Testimony.</bold> Expert testimony is admissible to corroborate the testimony of a witness whose credibility is at issue. <bold>[4] Evidence — Opinion Evidence — Expert Testimony — Review —</bold> <bold>Abuse of Discretion.</bold> The admission of expert testimony is reviewed under the manifest abuse of discretion standard. <bold>[5] Criminal Law — Trial — Misconduct of Prosecutor — Burden of</bold> <bold>Proof — Test.</bold> To obtain a new trial based on a prosecutor's questions or statements, a criminal defendant has the burden of showing that the questions or statements were improper, that there was a substantial likelihood that they affected the jury, and that no instruction could have cured the prejudice. <bold>[6] Criminal Law — Witnesses — Cross Examination — Scope —</bold> <bold>Defendant.</bold> A criminal defendant who takes the stand is subject to the same degree of cross examination as any other witness. <bold>[7] Witnesses — Cross Examination — Scope — Issues Raised by</bold> <bold>Witness.</bold> Cross examination is properly used to explain, qualify, and rebut issues that the witness introduced to the jury. <bold>[8] Trial — Instructions — Adherence by Jury — Presumption — In</bold> <bold>General.</bold> A jury is presumed to follow the court's instructions. <bold>[9] Criminal Law — Trial — Misconduct of Prosecutor — Argument —</bold> <bold>Response to Defense Argument — Inferences From Evidence.</bold> In closing argument, the prosecutor is permitted to respond to the defendant's argument and to draw reasonable inferences from the evidence presented during the trial, including that the evidence does not support the defense theory. <bold>[10] Criminal Law — Trial — Misconduct of Prosecutor — Argument</bold> <bold>— Credibility of Defense Witnesses.</bold> A prosecutor may comment on a witness's credibility and veracity based on the evidence so long as no personal opinion is stated.

<bold>[1] Trial — Continuance — Discretion of Court.</bold> Whether to grant a continuance is a decision within the trial court's sound discretion. <bold>[2] Criminal Law — Right to Counsel — Counsel of Choice — Waiver</bold> <bold>— Late Request.</bold> A criminal defendant's right to be represented by the attorney of the defendant's choice is waived if it is not asserted within a reasonable time before trial. In the absence of substantial reasons for not making such a request before the first day of trial, it generally should be denied, especially if to grant the request would delay the trial. <bold>[3] Criminal Law — Evidence — Aliases — Relevance.</bold> The fact that a criminal suspect gave a false name when first contacted by the police tends to show consciousness of guilt. <bold>[4] Criminal Law — Evidence — Relevance — Balanced Against</bold> <bold>Prejudice — Discretion of Court.</bold> Whether relevant evidence should be excluded under ER 403 because the danger of unfair prejudice substantially outweighs its probative value is a matter addressed to the sound discretion of the trial court. <bold>[5] Criminal Law — Evidence — Relevance — Balanced Against</bold> <bold>Prejudice — Nature of Error.</bold> A violation of ER 403 in the admission of evidence having a danger of unfair prejudice that substantially outweighs its probative value does not constitute error of constitutional magnitude. <bold>[6] Criminal Law — Evidence — Other Offenses or Acts — Review —</bold> <bold>Nature of Error.</bold> Any error in admitting evidence of a<page_number>Page 502</page_number> criminal defendant's other crimes, wrongs, or acts under ER 404(b) is not of constitutional magnitude.

<bold>[1] Cemeteries — Prearrangement Contracts — What Constitutes —</bold> <bold>Refusal To Sell Without Prepayment.</bold> "Prearrangement contracts" for the sale of cemetery goods or services, as defined by RCW <cross_reference>68.46.010</cross_reference>(1), covers all contracts for cemetery goods or services for which full or partial payment is made before performance by the cemetery is due. The term is not limited to only those situations in which a cemetery authority refuses to sell goods or services without full prepayment. <bold>[2] Cemeteries — Prearrangement Contracts — Statutory Provisions</bold> <bold>— Vagueness.</bold> RCW <cross_reference>68.46.010</cross_reference>(1), which defines a cemetery "prearrangement contract," and former RCW 68.46.210, which criminalizes a violation of the statutes regulating cemetery prearrangement contracts, are not unconstitutionally vague, <italic>i.e.,</italic> they adequately apprise persons of common intelligence of the nature of the activity regulated and that such activity will be subject to criminal penalties under RCW 68.46. <bold>[3] Criminal Law — Statutes — Vagueness — Reference to Other</bold> <bold>Provisions — Effect.</bold> A criminal statute is not unconstitutionally vague because it must be read in conjunction with other statutory provisions, provided that a person of ordinary intelligence can understand what is required and what is prohibited. <bold>[4] Criminal Law — Evidence — Multiple Illegal Acts — Election —</bold> <bold>Unanimity — Instructions — Necessity — Factors.</bold> The necessity of a unanimity instruction depends upon the proof required by the criminal statute charged, the evidence admitted as seen from the perspective of the proponent of the instruction, and<page_number>Page 652</page_number> whether the evidence indicates more than one violation of the statute. <bold>[5] Criminal Law — Evidence — Multiple Illegal Acts — Election —</bold> <bold>Absence — Prejudice.</bold> The failure to give a required unanimity instruction affects the defendant's constitutional right to a jury trial. The prejudice resulting from the absence of such an instruction is harmless only if no rational trier of fact could have a reasonable doubt about each violation establishing the crime beyond a reasonable doubt. <bold>[6] Criminal Law — Trial — Instructions — Formula Instruction —</bold> <bold>Omission of Element — Effect.</bold> Due process requires that the trier of fact be instructed on all the essential elements of the crime charged and of the State's burden to prove each element beyond a reasonable doubt. <bold>[7] Cemeteries — Prearrangement Contracts — Elements of Crime —</bold> <bold>In General.</bold> The elements of a criminal violation of RCW 68.46, which regulates the sale of cemetery goods and services by means of prearrangement contracts, are: (1) that the defendant is a cemetery authority, (2) that a prearrangement sale contract was entered into on the specified date, (3) that the defendant had no license to make such a sale, and (4) that the defendant was not exempt from the licensing requirement. <bold>[8] Cemeteries — Prearrangement Contracts — Elements of Crime —</bold> <bold>Disclosed Agent.</bold> While a defendant who acts as a disclosed agent does not become a party to a cemetery prearrangement contract negotiated by the defendant on behalf of a principal, and thus does not "enter into" the contract within the meaning of RCW <cross_reference>68.46.130</cross_reference>, the defendant may be legally accountable for the conduct of the principal either as an accomplice under RCW <cross_reference>9A.08.020</cross_reference>, or because the conduct was performed in the name of or on behalf of the principal within the criminal liability terms of RCW <cross_reference>9A.08.030</cross_reference>(3).