Court of Appeals Division II
State of Washington

Opinion Information Sheet

			

    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                        DIVISION II

STATE OF WASHINGTON,                                             No.  40600-4-II

                             Respondent,

       v.

PATRICK J. CLEARY,                                         UNPUBLISHED OPINION

                             Appellant.

       Penoyar, C.J.  --  Patrick Cleary appeals his convictions of first degree child rape and 

intimidating a witness, arguing that the trial court (1) abused its discretion by permitting testimony 

under ER 404(b) that he consumed methamphetamine before making an incriminating statement, 

and (2) impermissibly commented on the evidence in violation of article IV, section 16 of the state 

constitution when it permitted a victim's advocate to sit next to the child victim during her 

testimony.  In a statement of additional grounds (SAG),1 Cleary raises two claims involving voir

dire.  Because the trial court should not have permitted testimony about Cleary's 

methamphetamine use, and because this testimony was not harmless, we reverse.

                                            FACTS

I.     Background

       In the summer of 2008, ML2 called the police to report that Cleary, her former boyfriend, 

had sexually abused her daughter JL (born 1998) several years earlier.  Camas Police Detective 

1 RAP 10.10.

2 We use initials to identify the minor victim and her family members under this court's General 
Order 2011-1, which states, "[I]n all opinions . . . in sex crime cases, this Court shall use initials 
or pseudonyms in place of the names of all witnesses known to have been under the age of 18 at 
the time of any event in the case."   

40600-4-II

Carol Buck interviewed JL about the allegations in September 2008.  JL told Buck that, on one 

occasion, while parked at a Fred Meyer store, Cleary forced her to climb into the bed of his truck 

through the window that separated the front passenger compartment from the back of the truck.  

According to JL, because Cleary could not fit through the window, he exited the passenger 

compartment and accessed the bed from the truck's rear.  JL told Buck that Cleary "touch[ed]"

her in the back of the truck.  4 Report of Proceedings (RP) at 461.  JL explained that when she 

agreed that he touched her, she meant that Cleary put his penis in her vagina.  Buck asked JL how 

many times Cleary touched her like that.  JL responded, "[o]ne time" or "[o]nly once."  4 RP at 

461, 464.  Afterwards, Cleary took her to a red building that had "white poles or pillars" and 

looked like a hospital.  4 RP at 463.  The building was a two to three minute drive from Fred 

Meyer.  

       Marsha Stover, a pediatric nurse practitioner, examined JL in November 2008.  JL told 

Stover that Cleary "touched [her] private area" once when they were in Cleary's truck.  2 RP at 

105.  JL had no clothes on and Cleary put her pants "on the chair."  2 RP at 105-06.  When 

Stover asked JL where the chair was, she responded, "You know, the big things that are in the 

back of the truck."  2 RP at 106.  According to the report that Stover wrote after the interview,

Stover and JL had the following exchange during JL's examination:

       Stover:        You mean the canopy?
       JL:            Yes.  He brought me back there.
              . . . . 
       Stover:        So that was where the chair was?  
              . . . . 
       JL:            Yes.
       Stover:        What part of his body touched you?
              . . . . 
       JL:            His private area.  
              . . . .
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       Stover:        So he touched you on the outside?  
              . . . . 
       JL:            Yes.
       Stover:        Did it go inside of you?
              . . . . 
       JL:            No.
       Stover:        Then what happened?
              . . . . 
       JL:            After that, he stopped.  I told him to stop five times, and I 
                      screamed.[3]

2 RP at 106-11, 127-29.  Stover then asked JL whether Cleary had touched her anywhere else.  

JL responded, "no."  2 RP at 111.  When Stover asked JL whether Cleary hurt her, JL responded, 

"Yes, it stung."   2  RP at 111.  Stover asked her how many times this had happened.  JL 

responded that it had occurred once.  

       In March 2009, JL's father provided Buck with two letters written by JL.  The first letter 

read:

       Dear Carol Buck,

              I don't feel like talking.  So . . . I am going to say this once and only once.  
       Pat is a mean man.  He stuck his private in mine.  He never toached [sic] me with 
       his mouth, never all he did was stick his private in mine.  His truck was silver with 
       a big canapie [sic] on it.  He took me to this big building it looked like a hospital.  
       He made me clime [sic] in the back of the canapie [sic] and he got out to get in the 
       back.  So he never did anything else.

       P.S.  I don't want to talk only write.  It's hard to talk about it.

Ex. 6 (ellipsis in original).  JL's second letter was substantially similar to the first.  In the second 

letter, however, JL wrote that the "big building" that Cleary took her to was "by Safeway." Ex. 8.

       In a second interview on May 20, 2009, JL told Buck that the abuse occurred before she 

3 Stover read from her report during direct examination.  This exchange appears to be a verbatim 
excerpt from her report.  
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and Cleary entered the store.  Cleary then took her to a big red building where he forced her to 

climb through the window into the bed of the truck.  He entered the truck's bed area through the 

back.  

II.    Procedure

       On June 26, 2009, the State charged Cleary with one count of first degree child rape.4  

The State also charged him with one count of intimidating a witness5 because he had allegedly 

threatened to hurt ML if JL told anyone about the abuse.  The information alleged that Cleary 

committed these crimes between May 1, 2004 and October 1, 2004.  

       A.     Motion to Exclude Testimony about Cleary's Methamphetamine Use

       Before trial, the State informed the trial court that one of its witnesses, Peggy Green, 

would testify that Cleary told her in the summer of 2004 that he had "act[ed] out sexually" with 

JL while she sat on his lap in his truck, which was parked at a store.  2 RP at 33.  The State 

revealed that Green would testify that Cleary made this statement to her after she, ML, and Cleary 

had consumed methamphetamine and "engaged in a . . . threesome."  2 RP at 33.  

       Cleary did not object to the admission of his "act[ing] out sexually" statement or to 

4 RCW 9A.44.073.

5 The State relied on the following subsection to support the charge of intimidating a witness:  

       A person is guilty of intimidating a witness if a person, by use of a threat against a 
       current or prospective witness, attempts to . . . [i]nduce that person not to report 
       the information relevant to a criminal investigation or the abuse or neglect of a 
       minor child, not to have the crime or the abuse or neglect of a minor child 
       prosecuted, or not to give truthful or complete information relevant to a criminal 
       investigation or the abuse or neglect of a minor child.

RCW 9A.72.110(1)(d).
                                               4 

40600-4-II

Green's testimony about the "threesome."   2  RP at 33-34.  He objected, however, to any 

testimony that he used illegal drugs, including but not limited to the occasion when he made the 

statement  about JL to Green.  He argued that such testimony was not admissible under ER 

404(b).  The State responded that it did not plan to introduce any testimony that Cleary used 

illegal drugs.  

       In an oral ruling, the trial court concluded that Green's testimony about Cleary's use of 

methamphetamine on that single occasion was admissible under ER 404(b) to provide context for 

Cleary's incriminating statement and to establish the "state of mind" of Cleary and Green: 

       THE COURT:  If [Green], in fact, can establish personal knowledge of [Cleary's] 
       actual consumption, then, counsel, I think as to this one statement I think in 
       fairness to both sides, even if the Defense doesn't see this, it's important to put in 
       context the surrounding circumstances of how a statement that's being used 
       against a defendant occurred.

2 RP 40-41.  Cleary objected that the evidence was more prejudicial than probative.  The court 

responded,  "I think it helps the trier of fact understand the circumstances under which the 

statement was made." 2 RP at 42.

       B.     Trial Testimony about Cleary's Methamphetamine Use

       At trial, Green testified consistent with the above facts, specifically that Green, Cleary, and 

ML engaged in a sexual relationship, that Cleary had admitted to her that "he had had [ML's] 

daughter [JL] in the front of his pickup at Fred Meyer's on his lap when people walked by and 

watched, or not watched, but that they didn't know what he was doing," and that Green, Cleary, 

and ML had all smoked methamphetamine before he made the admission to Green.  2 RP at 60-

61.  Cleary objected.  Green did not refer to Cleary's drug use at any other point during her 

testimony.  Cleary impeached Green's recollection of his statement based on her consumption of 

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40600-4-II

methamphetamine.  

       ML testified that she lived with Cleary for six to eight months in 2004.  She testified that 

she used methamphetamine while she lived with him.  Additionally, she testified that, after she 

broke up with Cleary, she "continued to be his drug dealer."  3A RP at 153.  Cleary objected, and 

the trial court ordered the jury to disregard this testimony.  At another point during ML's direct 

examination, the State asked her how long she had used methamphetamine.  ML responded, "Less 

than a year."  3A RP at 158.  The following exchange then occurred:

       [THE STATE]:          Okay.  And this would be that time period back when you 
                             were staying at [Cleary's] place?

       A:                    We started using in - -

                             [DEFENSE]:     Objection, Your Honor.  On the same 
                             grounds as the previous objection.

       THE STATE:            The question is just about your use.

       [A]:                  Yeah.  So I used from June -- July, it was June or July until 
                             the following year in May.

3A RP at 158 (emphasis added).  ML did not refer to Cleary's drug use at any other point during 

her testimony.  

       C.     Testimony of Witnesses to Whom JL Reported the Abuse

       At trial, Buck testified consistent with the above facts.  She also testified that, during the 

May 20 interview, she drove JL to the Fred Meyer store that was the closest in proximity to 

where Cleary lived at the time of the abuse.  JL showed her where Cleary had parked the truck in 

the Fred Meyer parking lot.  When Buck asked JL where Cleary had driven to after leaving the 

Fred Meyer parking lot, JL stated that he had taken her across the street to some brick buildings 

                                               6 

40600-4-II

that were about two to three minutes away.  Buck, who recalled that JL had described the 

building as a hospital, drove JL to a medical complex across the street from Fred Meyer.  JL 

recognized another building in the complex and directed Buck to an area behind the buildings 

where Cleary had parked.  

       At trial, Stover also testified consistent with the above facts.  She also testified that JL's 

comment that "it stung" when Cleary touched her suggested that penetration had occurred.  2 RP 

at 111.  She testified that her question, "'So he touched you on the outside?'" was poorly phrased 

because "a child wouldn't necessarily know what was the inside or outside of their body."  2 RP 

at 109.   

       JL's paternal grandmother, TL,  testified that JL told her that Cleary abused her on 

multiple occasions in the parking lot at Fred Meyer, in the parking lot at Safeway, and at home.  

TL did not know whether the abuse occurred on one day or multiple days.  TL testified that JL 

told her that Cleary fondled and licked her when ML went to the store.  

       D.     Victim's Testimony

       JL testified at trial.   Near the beginning of her direct examination, she testified that Cleary 

had touched her in an inappropriate manner.  When the State asked her to describe the incident, 

she testified that when she was five or six years old, Cleary drove her to Fred Meyer in his truck 

to buy diapers for her younger brother.  She testified that she had had trouble remembering the 

store's name and thought that it might have been Safeway in the past.  

       At one point during her testimony, JL stated while crying that she needed a break.  The 

court agreed.  Upon returning from the break, the court again recessed to discuss in chambers the 

State's request to have JL testify without Cleary present.  When it returned, the trial court stated 

                                               7 

40600-4-II

that it would place an additional chair in the witness box so that "the advocate can be with [JL] to 

make her a little bit  more comfortable."   4  RP at 384.  Cleary objected, arguing that the

advocate's presence would cause the jury to give "more sympathy or more weight to [JL's] 

testimony."  4 RP at 384.  The trial court overruled the objection and invited the parties to draft a 

limiting instruction related to the advocate's presence.  

       JL returned and testified about the incident.  She testified that Cleary pulled down her skirt 

while she was in the front of the truck and "put his private in mine."  4 RP at 388.  This occurred 

before they entered a Fred Meyer store to buy diapers.  JL began to cry and told Cleary to stop.  

When he stopped, they went into the store to buy diapers.  After the purchase, Cleary parked his 

truck next to a red building.  Cleary and JL stayed in the passenger compartment and did not go 

into the back of the truck, which was covered by a canopy.  Cleary pulled down her skirt and "put 

his private in mine again."  4 RP at 392.  Cleary told JL that he would "hurt" ML if JL ever talked 

about what happened.  4 RP at 394.

       On cross-examination, JL admitted that her trial testimony about the rape differed from 

her earlier accounts.  Specifically, she testified that although she had previously told Buck and the 

defense attorney that Cleary had intercourse with her in the back of the truck at the Fred Meyer, 

the intercourse actually occurred in the front seat.  Additionally, she stated that contrary to her 

previous statements, she did not climb through the truck's window onto the bed of the truck and 

that Cleary did not walk around the outside of the truck to get in the back.  JL explained these 

discrepancies: "I'm remembering it all clearly because everything is coming -- it's just coming back 

now.  Nothing's the same."  4 RP at 415.  JL further admitted that she had previously told the 

defense attorney that Cleary did not touch her before they went into the store to buy diapers and 

                                               8 

40600-4-II

that this contradicted her trial testimony.  She testified that although she had previously told the 

defense attorney that Cleary had taken her to the back of the truck when he parked by the red 

building, this was incorrect.  She also testified that she told the defense attorney during an earlier 

interview that Cleary's inappropriate touching had occurred in one place and at one time.  

                                               9 

40600-4-II

       E.     Instructions, Argument, and Verdict

       The trial court gave the jury a limiting instruction stating, "You should not give any 

special weight to the testimony of [JL] because she had an advocate with her while testifying."  

Clerk's Papers (CP) at 108.  The trial court also instructed the jury:

              Our state constitution prohibits a trial judge from making a comment on 
       the evidence.  It would be improper for me to express, by words or conduct, my 
       personal opinion about the value of testimony or other evidence.  I have not 
       intentionally done this.  If it appeared to you that I have indicated my personal 
       opinion in any way, either during trial or in giving these instructions, you must 
       disregard this entirely.  

CP at 101.

       In closing arguments, both parties emphasized that the case turned on JL's credibility.  

The State mentioned Cleary's methamphetamine use at the end of its rebuttal statement:

              There was a year of self-indulgence that [ML] went through that started 
       when she met this man (indicating defendant) right here.  He was the person she 
       was with during this year of indulgence, where what she did was take meth, she 
       would do whatever she felt like doing, she would pay no attention to her child, she 
       would take meth, and she would have sex with whoever she wanted to have sex
       with and pay no attention to her daughter, just do whatever she felt like.
              This gentleman is front and center in that summer.  You can judge people 
       by the company they keep.  He's also having sex with Peggy Green at the same 
       time he's having sex with [ML] and smoking meth.
              They were all extremely self-indulgent.  They were all into risk-taking, 
       smoking meth is risk-taking.  Having sex with a young child in a parking lot at a 
       store is risk-taking.

4 RP at 562-63 (emphasis added).  Cleary did not object. 

       The jury found Cleary guilty as charged.  He appeals.  

                                               10 

40600-4-II

                                          ANALYSIS

I.     Admission of Evidence Relating to Drug Use

       Cleary claims that the trial court erred in allowing testimony about his use of illegal drugs. 

He argues that this evidence was irrelevant to the charge under ER 403 and improper character 

evidence under ER 404(b).6, 7 We agree.

       A.     Standard of Review

       We review the trial court's decision to admit or exclude evidence under ER 403 for abuse 

of discretion.  State v. Darden, 145 Wn.2d 612, 619, 41 P.3d 1189 (2002).  We review the trial 

court's interpretation of ER 404(b) de novo as a matter of law.  State v. Fisher, 165 Wn.2d 727, 

745, 202 P.3d 937 (2009).  If the trial court interprets ER 404(b) correctly, we review the trial 

court's ruling to admit evidence under ER 404(b) for an abuse of discretion.  Fisher, 165 Wn.2d 

at 745.  A trial court abuses its discretion when it fails to abide by a rule's requirements or when it 

does not have tenable grounds and reasons for its decision.  Fisher, 165 Wn.2d at 745; Darden, 

145 Wn.2d at 619.

6 Cleary characterizes the erroneous admission of this testimony as a denial of his right to a fair 
trial under the state and federal constitutions.  But the allegedly erroneous admission of ER 
404(b) evidence is not an issue of constitutional magnitude.  State v. Powell, 166 Wn.2d 73, 81-
82, 206 P.3d 321 (2009).  

7 To any extent Cleary argues on appeal that he was also prejudiced due to the admission of 
Green's testimony that she, ML, and Cleary engaged in a threesome, Cleary did not object to this 
testimony and therefore failed to preserve any error.  Powell, 166 Wn.2d at 82.     
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40600-4-II

       B.     Testimony about Cleary's Methamphetamine Use

       Relevant evidence may be excluded if its "probative value is substantially outweighed by 

the danger of unfair prejudice." ER 403.8 In balancing the probative value against the prejudice, 

courts consider the importance of the fact of consequence that the evidence is offered to prove, 

the strength and length of the chain of inferences necessary to establish the fact, whether the fact 

is disputed, the availability of alternative means of proof, and the potential effectiveness of a 

limiting instruction.  State v. Kendrick, 47 Wn. App. 620, 628, 736 P.2d 1079 (1987).  

       Evidence of a defendant's "other crimes, wrongs, or acts" is generally inadmissible to 

demonstrate the defendant's propensity to commit the charged crime.  ER 404(b);9 State v. 

Powell, 166 Wn.2d 73, 81, 206 P.3d 321 (2009).  This prohibition encompasses not only prior 

bad acts and unpopular behavior but also any evidence offered to "show the character of a person 

to prove the person acted in conformity" with that character at the time of a crime.  State v. 

Foxhoven, 161 Wn.2d 168, 175, 163 P.3d 786 (2007) (quoting State v. Everybodytalksabout, 145 

Wn.2d 456, 466, 39 P.3d 294 (2002)).  But if the State offers evidence of a defendant's "other 

crimes, wrongs, or acts" for a legitimate purpose, the evidence is admissible under ER 404(b).  

See Fisher, 165 Wn.2d at 744.

8 ER 403 states, "Although 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."

9 ER 404(b) states, "Evidence of other crimes, wrongs, or acts is not admissible to prove the 
character of a person in order to show action in conformity therewith. It may, however, be 
admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, 
knowledge, identity, or absence of mistake or accident."
                                               12 

40600-4-II

       Before a trial court admits evidence under ER 404(b), it must (1) find by a preponderance 

of the evidence that the other "crime[], wrong[], or act[]" actually occurred, (2) identify the 

purpose for admitting the evidence, (3) determine the relevance of the evidence to prove an 

element of the crime charged, and (4) weigh the probative value of the evidence against its 

prejudicial effect.  ER 404(b); Fisher, 165 Wn.2d at 745.  The trial court must conduct this 

analysis on the record.  Foxhoven, 161 Wn.2d at 175.

       Here, the trial court erred as a matter of law by failing to perform each step required by 

ER 404(b).  First, the trial court did not find by a preponderance of the evidence that he used 

methamphetamine on the occasion in question.  Second, the trial court did not weigh the 

evidence's probative value against its prejudicial effect on the record.  

       Additionally, the trial court admitted the evidence of drug use to permit the jury to 

evaluate the reliability of the statement to which Green testified and Green's credibility.  But, the 

trial court did not instruct the jury as to the limited purpose of the evidence.  Without such an 

instruction, admitting the evidence risked permitting the jury to draw an unfair inference that 

because Cleary engaged in other bad acts he was more likely to have committed the crime 

charged.  In a case such as the one at hand where the evidence of the crime charged was highly 

contested, permitting such an inference would be highly prejudicial.  Therefore, the evidence is 

more prejudicial than probative and the trial court abused its discretion in admitting the evidence 

of Cleary's methamphetamine use.

       C.     Harmless Error

       The erroneous admission of evidence requires reversal "only if the error, within reasonable 

probability, materially affected the outcome."  State v. Stenson, 132 Wn.2d 668, 709, 940 P.2d 

                                               13 

40600-4-II

1239 (1997).  To make this determination, we measure the admissible evidence of Cleary's guilt 

against the prejudice caused by the inadmissible evidence.  See State v. Bourgeois, 133 Wn.2d 

389, 403, 945 P.2d 1120 (1997).  Improper admission of evidence is not prejudicial and 

constitutes harmless error if the evidence is of minor significance in reference to the overall, 

overwhelming evidence as a whole.  Bourgeois, 133 Wn.2d at 403.

       The erroneous admission of this evidence was not harmless.  This case turned almost 

entirely on JL's credibility. Although most of the trial witnesses testified that JL had described 

the rape to them in a similar manner -- i.e. Cleary had intercourse with her in his truck in the 

parking lot of a grocery store -- defense counsel's cross-examination of JL revealed several 

inconsistencies between her trial testimony and her previous accounts of the incident.  Some of 

these inconsistencies involved significant details such as how many acts of intercourse occurred, 

whether the acts occurred in the front or back of the truck, and the sequence of events, including 

whether the acts occurred before or after entering the store.  In addition to JL's testimony and the 

testimony of witnesses whom she spoke to about the abuse, the State presented Green's 

testimony that Cleary "had . . . [JL] in the front of his pickup at Fred Meyer's on his lap."  2 RP at 

60.

       Additionally, the State's use of the evidence in closing argument invited the jury to draw a 

conclusion of conformity prohibited by ER 404(b).  In its rebuttal argument, the State invited the 

jury to draw an impermissible propensity inference from Cleary's methamphetamine use.  The 

State suggested to the jury that because Cleary had smoked methamphetamine in the summer of 

2004, he raped JL around the same time:  

              This gentleman is front and center in that summer. . . . He's also having sex 
       with Peggy Green at the same time he's having sex with [ML] and smoking meth.
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40600-4-II

              They were all extremely self-indulgent.  They were all into risk-taking, 
       smoking meth is risk-taking.  Having sex with a young child in a parking lot at a 
       store is risk-taking.

4 RP at 562-63 (emphasis added).  The evidence was ultimately not used at trial for the purpose 

for which it was admitted, which was to permit the jury to evaluate Cleary's state of mind when 

he made the statement to Green about molesting JL.  Rather, the State specifically used the 

evidence of drug use to show that Cleary was in a risk-taking frame of mind and therefore more 

likely to engage in the behavior alleged by the State.  This kind of propensity evidence argument 

is exactly what ER 404(b) seeks to prohibit.  Using the evidence of Cleary's drug use to suggest 

that he was more likely to have committed the crime charged rendered the evidence highly 

prejudicial.  The trial court's admission of Cleary's methamphetamine use on an occasion 

unrelated to the crime was highly prejudicial, and the State exploited that error in closing 

argument.  Given the admitted inconsistencies by JL at trial, it is reasonably probable that the jury 

would not have convicted Cleary had it not heard this prejudicial evidence.  Accordingly, the error 

was not harmless.  Nonetheless, we address the additional issues that Cleary raises that may recur 

at his retrial.

II.    Presence of Victim Advocate as "Comment on the Evidence"

       Cleary next argues that the trial court's decision to allow a victim advocate to sit next to 

JL during her testimony constituted an improper comment on the evidence under article IV, 

section 16 of the state constitution.  He suggests that the advocate's presence amounted to an 

implied statement by the trial court that JL was truthful.  This argument fails.

       Article IV, section 16 of our state constitution provides, "Judges shall not charge juries 

with respect to matters of fact, nor comment thereon, but shall declare the law."     (Emphasis 

                                               15 

40600-4-II

added).  This constitutional provision "forbids only those words or actions which have the effect 

of conveying to the jury a personal opinion of the trial judge regarding the credibility, weight or 

sufficiency of some evidence introduced at trial."  State v. Jacobsen, 78 Wn.2d 491, 495, 477 

P.2d 1 (1970).  "The touchstone of error in a trial court's comment on the evidence is whether the 

feeling of the trial court as to the truth value of the testimony of a witness has been communicated 

to the jury."  State v. Lane, 125 Wn.2d 825, 838, 889 P.2d 929 (1995). 

       The trial court did not convey its personal opinion about JL's veracity by permitting a 

victim advocate to sit next to JL.  Rather, it exercised its discretion to control the mode of JL's 

testimony in order to make the testimony effective and to avoid the needless consumption of time.  

See ER 611(a).  Indeed, the trial court's only comment in front of the jury with respect to the 

advocate's presence was its instruction that the jury "should not give any special weight to the 

testimony of [JL] because she had an advocate with her while testifying."           CP at 108. 

Additionally, the trial court specifically instructed the jury that it could not comment on the 

evidence, that it had not intentionally done so, and that the jury should disregard any comment by 

the trial court that, in the jury's estimation, appeared to be a comment on the evidence.  Such an 

instruction cures any comment on the evidence.  See State v. Elmore, 139 Wn.2d 250, 276, 985 

P.2d 289 (1999) (stating that this instruction cured any article IV, section 16 violation where the 

defendant appeared in shackles on the first day of voir dire); accord State v. Ciskie, 110 Wn.2d 

263, 283, 751 P.2d 1165 (1988) (stating that this instruction indicated that the trial court did not 

convey any personal attitude toward the merits of the case).  Accordingly, the trial court did not 

violate article IV, section 16 of the state constitution.

III.   Statement of Additional Grounds

                                               16 

40600-4-II

       In his SAG, Cleary states that, during voir dire, a venire member shouted derogatory 

statements at him and threatened to kill him.  He claims that several other venire members joined 

in the derogatory statements.  He argues that the trial court should have dismissed the venire and 

that his counsel provided ineffective assistance by failing to move to dismiss the venire.  

       We are unable to ascertain what occurred at voir dire because Cleary did not arrange for 

the transcription of voir dire.  Because Cleary's SAG arguments rely entirely on matters outside 

of the record on review, he must raise them in a personal restraint petition.  See State v. 

McFarland, 127 Wn.2d 322, 338, 899 P.2d 1251 (1995).  

       We reverse.

       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.

                                                           Penoyar, C.J.

We concur:

       Armstrong, J.

       Johanson, J.

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