Volume 71 — Washington Appellate Reports

<bold>[1] Open Government — Public Disclosure — Exemptions — Files</bold> <bold>Maintained for Employees — Performance Evaluations —</bold> <bold>Offensiveness of Disclosure.</bold> A public employee's performance evaluations that do not discuss any specific instances of misconduct are exempt from public disclosure under RCW 42.17.255, which exempts from public disclosure information about a person that would be highly offensive to a reasonable person and that is not of legitimate concern to the public. <bold>[2] Open Government — Public Disclosure — Exemptions — Files</bold> <bold>Maintained for Employees — Balancing Test.</bold> When determining the applicability of the RCW 42.17.310(1)(b) exemption from public disclosure of employee records, a court is not permitted, under RCW 42.17.255, to balance the interest of the<page_number>Page 614</page_number> employee in privacy against the interest of the public in disclosure. <bold>[3] Open Government — Public Disclosure — Exemptions — Files</bold> <bold>Maintained for Employees — "Legitimate" Concern to Public —</bold> <bold>What Constitutes.</bold> For purposes of RCW 42.17.255, which exempts from public disclosure information about a person that would be highly offensive to a reasonable person and that is not of legitimate concern to the public, "legitimate" means reasonable. A reasonableness determination may require a balancing of the public interest in disclosure against the public interest in the efficient administration of government. <bold>[4] Schools — Open Government — Public Disclosure — Exemptions —</bold> <bold>Files Maintained for Employees — Performance Evaluations —</bold> <bold>Public Education Employees.</bold> In the absence of discussions of specific instances of misconduct or public job performance, the performance evaluations of employees of public education entities are exempt from public disclosure. <bold>[5] Open Government — Public Disclosure — Exemptions — Files</bold> <bold>Maintained for Employees — Performance Evaluations — No</bold> <bold>Allegation of Misconduct.</bold> A public employee's performance evaluations which discuss concerns about the employee's handling of specific incidents, without any allegation of misconduct, are exempt from public disclosure.

<bold>[1] Release — Construction — Contract Principles of</bold> <bold>Construction.</bold> A release is a contract wherein one party agrees to abandon or give up a claim, obligation, or cause of action against another party. Releases are construed under the legal principles applicable to contracts. <bold>[2] Torts — Limitation of Liability — Construction — In</bold> <bold>General.</bold> An exculpatory clause, <italic>i.e.,</italic> a clause in which a party releases another party from liability, is strictly construed; the release must be clear if it is to be enforced.<page_number>Page 658</page_number> <bold>[3] Torts — Limitation of Liability — Release of Employer —</bold> <bold>Failure To Name Employee — Liability of Employee.</bold> A valid preinjury release from liability for ordinary negligence executed between an employer and third person also releases an employee of the employer to the same extent, even if the employee is not expressly named as a beneficiary of the exculpation. <bold>[4] Torts — Limitation of Liability — Validity — Public Policy —</bold> <bold>Public Interest — Scuba Instruction.</bold> Scuba diving instruction is not an activity involving the public interest for purposes of the public policy that forbids contracts of release of liability in matters of significant public interest. <bold>[5] Judgment — Summary Judgment — Burden on Nonmoving Party —</bold> <bold>Averment of Specific Facts — Prima Facie Case — Elements of</bold> <bold>Claim.</bold> A defendant is entitled to a summary judgment on a claim if the plaintiff fails to allege or provide any competent evidence of an essential element of the claim. <bold>[6] Negligence — Gross Negligence — Standard of Proof.</bold> Substantial evidence of serious negligence is necessary to prove gross negligence; evidence of ordinary negligence is insufficient. <bold>[7] Negligence — Assumption of Risk — Effect — Exculpation.</bold> Both express assumption of risk, a contract principle which bars a claim resulting from a risk actually assumed, and implied primary assumption of risk, a tort principle which bars a claim resulting from specific known and appreciated risks, result in a release from liability exculpating the alleged tortfeasor from ordinary negligence. <bold>[8] Torts — Limitation of Liability — Validity — Express</bold> <bold>Assumption of Risk — "All Risks" — Negligent Scuba</bold> <bold>Instruction and Supervision.</bold> A student's express assumption of all risks associated with participation in a scuba diving course includes negligent instruction and supervision whether or not the student specifically considered the possibility of instructor negligence at the time the release was signed.

<bold>[1] Criminal Law — Trial — Misconduct of Prosecutor — Argument —</bold> <bold>Waiver — Failure To Object — In General.</bold> A criminal defendant's failure to object at trial to prosecutorial misconduct generally constitutes a waiver of any objection unless the misconduct is so flagrant and ill intentioned that no curative instruction could have neutralized its prejudicial effect. <bold>[2] Criminal Law — Trial — Misconduct of Prosecutor — Argument —</bold> <bold>Inferences From Evidence.</bold> A prosecutor has wide latitude in closing argument to draw and express reasonable inferences<page_number>Page 799</page_number> from the evidence so long as the inferences are supported by the record and do not prejudice the defendant. <bold>[3] Criminal Law — Trial — Misconduct of Prosecutor — Argument —</bold> <bold>Attacking Defense Theory — In General.</bold> Unless a curative instruction could not obviate their prejudicial effect, arguments by the State which might otherwise be improper do not constitute grounds for reversal if they are made in response to defense arguments. <bold>[4] Appeal — Review — Issues Not Raised in Trial Court —</bold> <bold>Constitutional Rights — Four-Step Procedure.</bold> An alleged constitutional error may be reviewed for the first time on appeal. In doing so, the reviewing court first determines if the error raises a constitutional issue and if the error is manifest. If so, the merits of the issue are addressed. If the reviewing court determines that a manifest constitutional error has occurred, it applies a harmless error analysis to determine if the error affected the outcome of the trial. <bold>[5] Criminal Law — Trial — Misconduct of Prosecutor — Argument —</bold> <bold>Exercise of Constitutional Right.</bold> Prosecutorial misconduct of constitutional magnitude occurs when the prosecutor acts in a manner that unnecessarily chills the defendant's exercise of a constitutional right or when the prosecutor draws unfavorable inferences from the defendant's exercise of a constitutional right. <bold>[6] Criminal Law — Right To Confront Witnesses — Eye Contact —</bold> <bold>Comment by Prosecutor.</bold> By cross-examining a criminal defendant and commenting on the defendant's desire to maintain eye contact with a prosecution witness, the State has impermissibly interfered with the defendant's Sixth Amendment right of confrontation. <bold>[7] Criminal Law — Review — Harmless Error — Constitutional</bold> <bold>Error — In General.</bold> Constitutional error committed in a criminal trial is harmless beyond a reasonable doubt if the untainted evidence alone is so overwhelming it necessarily leads to a finding of guilt. <bold>[8] Criminal Law — Evidence — Opinion Evidence — Expert</bold> <bold>Testimony — Credibility of Witness.</bold> Expert testimony that does not constitute an opinion on an ultimate issue of fact based upon the expert's perception of a witness's veracity or an opinion as to the criminal defendant's guilt may properly be admitted at trial.<page_number>Page 800</page_number> <bold>[9] Appeal — Review — Issues Not Raised in Trial Court —</bold> <bold>Objection to Evidence — Basis From Context.</bold> A trial court's ruling on the admissibility of evidence is preserved for review if the specific basis for the aggrieved party's argument on appeal can be inferred from the context of the objection made in the trial court. <bold>[10] Criminal Law — Evidence — Opinion Evidence — Expert</bold> <bold>Testimony — Guilt of Defendant — Nature of Error.</bold> Permitting an expert witness to express an opinion as to the guilt of a criminal defendant is error of constitutional magnitude. <bold>[11] Evidence — Opinion Evidence — Expert Testimony — Scientific</bold> <bold>Acceptance — Necessity — Nontechnical Field.</bold> The stringent standard that an expert's scientific or technical testimony be based on a scientific principle or explanatory theory that is generally accepted in the scientific community does not apply to testimony based on training, experience, professional observations, and acquired knowledge regarding a subject which is not sophisticated or technical and does not involve a novel theory. <bold>[12] Sexual Offenses — Evidence — Opinion Evidence — Expert</bold> <bold>Testimony — Symptoms of Child Sexual Abuse Victims — Personal</bold> <bold>Observations.</bold> When an expert's personal observations and experience are used as the basis for generalized statements regarding the behavior of sexually abused children as a class, the generalized statements become descriptive of a profile or syndrome and must meet the standards for scientific testimony. <bold>[13] Sexual Offenses — Evidence — Opinion Evidence — Expert</bold> <bold>Testimony — Symptoms of Child Sexual Abuse Victims — Victim</bold> <bold>Profiles.</bold> The general behavioral characteristics of sexually abused children are not sufficiently established to have gained general acceptance in the scientific community and may not be used as a general profile to prove the existence of abuse in specific circumstances; however, such characteristics may be used to rebut an inference that certain behaviors of a child victim, such as sexual acting out, are inconsistent with sexual abuse. <bold>[14] Criminal Law — Evidence — Multiple Illegal Acts — Unanimous</bold> <bold>Verdict — Nature of Right.</bold> The right to a unanimous verdict when evidence of more than one illegal act is admitted is an issue of constitutional magnitude which may be raised for the first time on review. <bold>[15] Criminal Law — Evidence — Multiple Illegal Acts — Election</bold> <bold>— Unanimity — Instructions — Absence — Presumption.</bold> The failure to give a unanimity instruction when evidence of more than one illegal act is admitted is presumed to be prejudicial<page_number>Page 801</page_number> to the defendant unless no rational trier of fact could have any reasonable doubt as to whether the evidence of each act establishes the commission of a crime. <bold>[16] Criminal Law — Evidence — Multiple Illegal Acts — Election</bold> <bold>— Unanimity — Instructions — Harmless Error.</bold> When the evidence and testimony in a criminal trial do not reveal a basis for a rational trier of fact to find that more than one criminal act occurred, the lack of a unanimity instruction is not prejudicial to the defendant. <bold>[17] Evidence — Hearsay — Past State of Mind — Mental or</bold> <bold>Emotional State of Addressee.</bold> An out-of-court statement offered to prove the mental or emotional state of the person to whom it was directed is not hearsay. <bold>[18] Evidence — Review — Alternative Grounds — In General.</bold> The exclusion of proffered evidence on erroneous grounds does not require reversal if a proper basis for excluding the evidence is apparent from the record. <bold>[19] Criminal Law — Former Jeopardy — Multiple Convictions —</bold> <bold>Same Offense — What Constitutes — Different Elements.</bold> For purposes of the constitutional prohibition against double jeopardy, two offenses are not the same if each offense as charged includes an element not included in the other. <bold>[20] Sexual Offenses — Rape — Child Rape — Included Offenses —</bold> <bold>Child Molestation.</bold> Child molestation (RCW <cross_reference>9A.44.083</cross_reference>) is not the same as first degree child rape (RCW <cross_reference>9A.44.073</cross_reference>) for double jeopardy purposes nor is one the lesser of the other. Child molestation requires proof that the act was for the purpose of sexual gratification, which is not an element of first degree child rape, while first degree child rape requires proof of penetration or contact, which is not an element of child molestation. <bold>[21] Criminal Law — Evidence — Multiple Illegal Acts — Election</bold> <bold>— Unanimity — Instructions — Necessity — Distinct Acts.</bold> No unanimity instruction regarding multiple illegal acts is necessary when, although the acts occurred during the same incident, each act is legally and factually distinct.

<bold>[1] Criminal Law — Trial — Taking Case From Jury — Sufficiency</bold> <bold>of Evidence — In General.</bold> The evidence is sufficient to convict a criminal defendant if any rational trier of fact, viewing the evidence most favorably toward the State and giving the State the benefit of all reasonable inferences arising from the evidence, could have found the defendant guilty beyond a reasonable doubt.<page_number>Page 838</page_number> <bold>[2] Assault, Criminal — Third Degree Assault — Assaulting Police</bold> <bold>Officer — Self-Defense — Lawful Force — What Constitutes.</bold> For purposes of the crime of third degree assault of a police officer during the performance of official duties (RCW <cross_reference>9A.36.031</cross_reference>(1)(g)), the defendant is entitled to resist a police officer with force only if the defendant is actually about to be seriously injured. A defendant's reasonable belief of imminent injury does not justify the use of force.