State Of Washington, Respondent V Bruce Lee Fritz, Appellant

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 50424-3-II
Respondent,
v.
BRUCE LEE FRITZ, UNPUBLISHED OPINION
Appellant.
LEE, C.J. — Bruce L. Fritz appeals his convictions for two counts of first degree rape of a
child and one count of first degree child molestation. Fritz argues that he received ineffective
assistance of counsel, the prosecutor committed misconduct, and the trial court abused its
discretion by allowing testimony from the victim’s therapist and a deputy prosecuting attorney
who had previously been assigned to the case. Fritz also argues that cumulative error deprived
him of a fair trial. We affirm Fritz’s convictions.
FACTS
A. PRIOR PROCEDURAL HISTORY
In March 2010, the State charged Fritz with two counts of first degree rape of a child and
two counts of first degree child molestation against L.F.1 The State then amended the information
to charge four counts of first degree rape of a child2 and two counts of first degree child
1 We use initials to protect the minor victim’s privacy. General Order 2011-1 of Division II, In
re The Use of Initials or Pseudonyms for Child Witnesses in Sex Crime Cases, available at
http://www.courts.wa.gov/appellate_trial_courts/.
2 These were counts 1 through 4.
Filed
Washington State
Court of Appeals
Division Two
March 2, 2021

No. 50424-3-II
2
molestation3 against L.F. The State also alleged aggravating circumstances of an ongoing pattern
of sexual abuse and abuse of trust.
A jury found Fritz guilty of all charged counts. The jury also found aggravating
circumstances on all charged counts. Fritz was sentenced to an exceptional sentence of 360 months
confinement. Fritz appealed and this court affirmed his convictions in an unpublished opinion.4
In February 2016, this court granted Fritz’s personal restraint petition and remanded to the
trial court for a new trial.5 The State retried Fritz on the amended information on March 27, 2017.
B. PRE-TRIAL MOTIONS AND RULINGS ON RETRIAL
Prior to Fritz’s retrial, Fritz filed a motion for disclosure of records from the Oregon
Department of Health regarding an investigation into L.F.’s biological father, Dammien.6 Fritz
argued that the Oregon investigation records show that Dammien was investigated for sex abuse
allegations while he was still living with L.F. and could “likely contain information that could
cause [L.F.] to have a bias against [Fritz] or which would explain [L.F.]’s knowledge of sexual
3 These were counts 5 and 6.
4 State v. Bruce Lee Fritz, noted at 169 Wn. App. 1035 (2012).
5 In re Pers. Restraint of Fritz, No. 46091-2-II (Wash Ct. App. February 2, 2016) (unpublished),
http://www.courts.wa.gov/opinions/pdf/D2%2046091-2-
II%20%20Unpublished%20Opinion.pdf.
6 We refer to L.F.’s biological father by his first name only to protect L.F.’s privacy. We mean
no disrespect.

No. 50424-3-II
3
acts and understanding of sexual terms.” Clerk’s Papers (CP) at 296. The trial court granted
Fritz’s motion.7
The Oregon investigation records show that in October 2010, Dammien was accused of
sexually abusing a four-year old girl. These accusations did not include any mention of oral or
anal sex between Dammien and the four-year old girl. As part of this investigation, Oregon
Department of Health Services investigated any threat of harm Dammien may have posed to L.F.
There was no disclosure that Dammien abused L.F. And the Oregon investigation records do not
show that L.F. was told any details about the allegations against Dammien. The Oregon
investigation resulted in an unfounded determination.
The Oregon investigation into L.F.’s sexual abuse allegations against Dammien included a
medical examination. The medical report from that examination noted that L.F. had only begun
visitations with Dammien the same month she reported the allegations against Fritz and that she
had completed two overnight visits with Dammien. L.F. did not disclose any sexual abuse
committed by Dammien. She also did not disclose seeing any abuse.
After receiving the Oregon investigation records, the State moved to exclude evidence
implicating another suspect. The State argued that L.F. did not have contact with Dammien during
the relevant time period. The State also pointed out that L.F. was questioned about Dammien and
did not indicate that anything happened with Dammien. Fritz argued that he should be able to
present evidence that Dammien was another suspect. Fritz also argued that it was “logical” that
7 The Oregon investigation at issue, which was reviewed in camera by the trial court, is in the
record on appeal.

No. 50424-3-II
4
Dammien could have molested L.F. Verbatim Report of Proceeding (VRP) (March 27, 2017) at
807.
The trial court ruled,
[B]efore such testimony can be received, there must be such proof or of connection
with it such as a train of facts or circumstances as tend clearly to point out someone
besides the prisoner is the guilty party.
What we have here at least at this point from what I’ve heard, is a lack,
absence of an opportunity if you will, or even any contact between [Dammien] and
[L.F.], the victim in our particular case.
To the extent that that is accurate, I’m going to grant the State’s motion in
limine . . . , but you’ll notice I mentioned to the extent that’s accurate. If there is a
foundation established that somehow provides contact between the father,
[Dammien], and [L.F.], the victim in this case, then that would cause me to
reconsider my ruling that I’ve made at this point.
VRP (March 28, 2017) at 868.
C. JURY TRIAL TESTIMONY
1. L.F.’s testimony
L.F. testified that she used to live in an apartment, and then a house, with her mother and
Fritz. They began living together when L.F. was six years old.
L.F. stated that Fritz would bring L.F. into the bathroom and make her watch him
bathe. Fritz also would have her come into his room, take her clothes off, play adult movies, and
forcefully try to put his penis in her butt, which caused her physical pain. These acts occurred
more than 10 times. And Fritz would come in her bedroom; open his robe; and rub his penis on
her, lick her vagina, or put his penis in her mouth. These acts occurred between one and ten times.
When L.F. was nine years old, she told her mother about the abuse. L.F.’s mother came
home for a lunch break and L.F. told her that Fritz tried to have sex with her. L.F. testified that
she did not disclose the abuse earlier because Fritz threatened to kill her mother and grandmother.

No. 50424-3-II
5
Fritz also told her she would have to live under a bridge with no family to take care of her if she
disclosed the abuse. Throughout her testimony, L.F. stated that she was unable to remember
certain things, such as specific things that were said or specific dates or time periods.
The State also introduced a recording of L.F.’s testimony from the first trial. To prevent
prejudice, the recording was referred to as an “interview” and references to the first trial were
removed from the recording. To authenticate the recording, the State called Deputy Prosecuting
Attorney Anna Klein. Klein testified that she was a deputy prosecuting attorney and had
previously been assigned to the Children’s Justice Center. Klein also testified that she had
recorded an “interview” with L.F. on August 3, 2010. And Klein testified that the recording was
a fair and accurate representation of the “interview.” L.F. was nine at the time of the “interview.”
In the “interview,” L.F. stated that she lived in a house with her mother and Fritz. Before
they lived in the house, they lived in an apartment. L.F. believed she was five-years old when they
lived in the apartment. They moved to the house when she was eight. L.F. also made statements
about truth versus lie and inside versus outside. She explained that she called her private part
vagina and a male private part a weiner.
L.F. also stated in her “interview” that Fritz “child molested” her. VRP (March 29, 2017)
at 1056. L.F. explained “child molested” meant when “a grownup does bad things” like “having
s-e-x.” VRP (March 29, 2017) at 1056. Fritz put his weiner inside of her and it felt horrible. This
happened at the apartment when she was five or six. Fritz also put this tongue on her private parts
and it tickled and hurt. These acts took place in the bathroom, her bedroom, and his bedroom at
the apartment. There was a video that he would show her that depicted the same things he would
do to her. The same things also happened at the house.

No. 50424-3-II
6
L.F. further stated in her “interview” that she saw Fritz’s weiner and described it as “pink
and white.” VRP (March 29, 2017) at 1064. Also L.F. explained that she did not tell anyone
because Fritz told her that she would have no home and be living under a bridge.
On cross-examination, L.F. testified that she believed she remembered events better in
2016 than she had earlier because she was older and had more time to think about it. L.F. admitted
that when she lived with Fritz, she did not think that he was nice. She believed Fritz yelled at her
too much, but she did not remember specific statements she had previously made about Fritz
yelling at her. There were two instances in which Fritz left large bruises on her body. L.F. admitted
that she felt her mother took Fritz’s side and she did not like that.
Fritz used L.F.’s prior statements extensively in cross-examination. Fritz also focused on
two instances that L.F. testified about, but were not included in statements she had made before or
during the first trial. First, L.F. stated that when she was six, Fritz made her smoke cigarettes, but
she had not mentioned that in her prior statements. Second, L.F. testified that, after the first sexual
contact she had with Fritz she followed him to the garage and confronted him. But she had not
told this to anyone in her earlier statements. L.F. also admitted that she had not previously told
anyone that Fritz had threatened to kill her mother or grandmother. VRP 1136.
2. Regina’s8 Testimony
Regina, L.F.’s mother, testified that she dated Fritz for approximately five years. Regina
and Fritz lived together, and Fritz often watched L.F. while Regina was working. Regina believed
that Fritz had a good relationship with L.F.
8 Regina is L.F.’s mother. We refer to L.F.’s mother only by her first name to protect L.F.’s
privacy. We mean no disrespect.

No. 50424-3-II
7
Regina and Fritz discussed L.F.’s allegations, and after talking for hours, Fritz admitted
the allegations. However, Regina could not remember what Fritz said. The next morning, Regina
and Fritz went to see Fritz’s family. Regina wanted Fritz to tell his family what he had done. Fritz
told his family that he had touched L.F., but she did not remember what was said.
During the investigation, Regina gave two digital video discs (DVDs) of pornography that
were in the house to Detective Aaron Holladay. To Regina’s knowledge, L.F. had never watched
the DVDs before and did not have access to them. Regina also testified that she did not recall L.F.
ever walking in on Regina and Fritz having sex.
During Regina’s relationship with Fritz, L.F. did not have a relationship with Dammien.
During cross examination, Regina testified that Dammien had always tried to obtain visits with
L.F., and L.F. had “some limited visits” with Dammien before L.F. made the allegations against
Fritz. VRP (March 30, 2017) at 1353. During redirect examination, Regina clarified that
Dammien was never around while Fritz was around.
3. Dr. Preston’s Testimony
Dr. Susan Preston testified that she was a psychologist at the Willamette Valley Family
Center in 2010. L.F. was one of her patients, and one of her treatment goals for L.F. was for L.F.
to “be able to talk about the sexual abuse.” VRP (March 30, 2017) at 1413.
L.F. told Dr. Preston that Fritz “had child molested her and that he was a mean person and
that he had yelled at her, and yelled in her face.” VRP (March 30, 2017) at 1415. And L.F. told
Dr. Preston that Fritz had threatened her and told her she would lose her house, go to foster care,
and be disliked by her family if she ever told about the abuse. Fritz did not object to any of Dr.
Preston’s testimony.

No. 50424-3-II
8
4. Klein’s Additional Testimony
After the defense rested, the State moved to reopen the case to present testimony from
Klein regarding statements Regina made during interviews for the first trial. Fritz stated that he
did not “believe having the prosecutor testify would be appropriate.” VRP (March 31, 2017) at
1537. The trial court ruled that the subject matter of Klein’s testimony was admissible and allowed
the State to reopen its case. The trial court did not address the propriety of a deputy prosecuting
attorney testifying under the advocate-witness rule because it was not raised.
However, immediately before Klein took the stand, Fritz objected because Klein was a
member of the same office as the prosecutor and it was “improper to have members of the same
office testifying as a witness and acting as an attorney.” VRP (March 31, 2017) at 1562. The State
argued that it was not aware of authority that would prevent Klein from testifying. Fritz conceded
he did not have any specific authority at hand. The trial court overruled Fritz’s objection based on
the lack of authority and the fact that Klein had already testified.
Klein testified that she was present for an interview conducted with Regina. During the
interview, Regina stated that she had questioned Fritz throughout the night and into the next
morning. Regina also stated that eventually Fritz said he did it, and then later Fritz told Regina
that he had put his penis on L.F.’s privates.
D. CLOSING ARGUMENTS
The prosecutor opened her closing argument by arguing that Fritz was given a place in
L.F.’s family and then used that place to abuse her. The prosecutor then explained how she
intended to meet her burden of proof. The prosecutor then went through the elements of each
charge on the to-convict instructions and explained the evidence supporting each element.

No. 50424-3-II
9
During argument, the prosecutor noted that L.F. was not reciting a rehearsed story; instead,
her statement changed in each interview because she was being asked different questions and,
therefore, she gave slightly different answers. And L.F.’s testimony went beyond describing what
happened, but described how it felt, which she would not be able to do unless she experienced it.
The prosecutor argued that the details L.F. testified to could not have been known to a child
who did not have actual sexual contact. Specifically, L.F. did not get the details just from watching
pornography.
Defense counsel objected only once during the State’s closing argument, when he believed
the State misquoted Fritz’s testimony. The trial court reminded the jury that the attorneys’
statements were not evidence and that they had to decide the case on the testimony provided.
The beginning of defense counsel’s closing argument focused on the State’s burden to
prove each charge beyond a reasonable doubt. Defense counsel also emphasized that the main
issue of the case was credibility of the State’s evidence. And defense counsel emphasized the
presumption of innocence.
Defense counsel argued that there were inconsistencies in L.F.’s statements. First, defense
counsel discussed the inconsistencies in L.F.’s statements regarding why she disclosed the abuse.
Second, he argued that whether the abuse occurred in the house or the apartment was material,
despite the fact that it was not an element the State was required to prove. And third, he pointed
out inconsistencies in L.F.’s statements about the first time Fritz had sexual contact with her.
When arguing how the inconsistencies reflected on L.F.’s credibility, defense counsel stated,
And it doesn’t matter that somebody’s going to say well, she’s trying to
block this out. That’s too bad. Read the first instruction on about the second page

No. 50424-3-II
10
partway down, the factors you’ve got to consider in credibility are people’s ability
to recall events.
She can talk about it now. [The prosecutor] quoted a whole bunch of things.
But the bottom line is she can’t say where it happened first or she gives changing
stories about it and some of this other stuff. How she reacted. She said I fought
every time. And then a different time she said well, one time we had oral sex, and
she told somebody else this, and it tickled and I laughed. Her whole story changes
constantly. And it’s not based on time. It’s because she has to come up with some
of this stuff as she goes. That’s what’s happening.
VRP (March 31, 2017) at 1688. Defense counsel also argued there were material differences in
the statements L.F. gave about the threats Fritz made to her.
Defense counsel then argued that he did not have to prove why L.F. made up the
accusations. However, defense counsel argued that L.F. admitted that Fritz was mean, yelled at
her, and was rough with her. He also noted that L.F. was upset that her mother often took Fritz’s
side. He also argued that L.F. did not want Regina to marry Fritz or to have Fritz in her life.
Defense counsel concluded by arguing that the jurors now had the responsibility of
applying the law to the facts. Defense counsel reminded the jurors that “there’s many, many, many
reasons to doubt.” VRP (March 31, 2017) at 1695. And the jurors only needed one reason to
doubt to find Fritz not guilty.
In rebuttal argument, the prosecutor argued that L.F.’s statements could not have come
from watching the pornography DVDs because she described how certain things felt rather than
simply describing something she saw or was told about. The prosecutor also argued that
Washington law did not require corroboration of sexual assault. And she argued,
When you look at what [L.F.] described—and again, in order to accept the premise
that she’s making this up, I mean, that is essentially what we would have to believe
to believe—to disbelieve her story because she has been given so much detail that
she could not gave (sic) accounted for it, have to believe that she’s making this up
(sic).

No. 50424-3-II
11
VRP at 1704. Defense counsel did not object to the prosecutor’s arguments. \
The prosecutor also argued that L.F.’s testimony was more credible because there were
inconsistencies in her statements. The prosecutor stated,
Adults can not remember things exactly as they happened seven years ago, how can
we expect a child to.
If we expect [L.F.] to remember every single time that the Defendant
violated her, every single detail of it, what standard would we be holding her to.
VRP (March 31, 2017) at 1707. The prosecutor went on to address the inconsistencies in L.F.’s
statements that defense counsel argued in his closing argument.
The prosecutor then went on to argue credibility and whether L.F. had any motive to make
up the allegations. The prosecutor argued that, even if the jury believed L.F. had a motive to make
up the allegations when she was a child, she had no motive to continue making up the allegations.
The prosecutor argued that the jurors needed to look at the case as a whole and make
reasonable inferences.
After that, since then, [L.F.] has had to talk about this to so many people. She had
to get a medical exam, she had to move out of the house that she was living in, she
(inaudible) to strangers and talk to them about sexual things, this 15 year old girl.
And you saw her on the stand. Did she look like she wanted to be here? Did she
look like she enjoyed this? What did this family get out of this, especially seven
years later? What possible benefit could they have to come here and tell you that
these things happened like they did? Regina lost her fiancé, her home.
[L.F.] had to have interview after interview. She had to have a medical
exam that you heard was uncomfortable, that’s what Marsha Stover told you. Then
she had to come here seven years later, a 15 year old girl, and talk to all of you
about these things. And she had to sit up there for an hour and a half and answer
questions.
Now through that time, [defense counsel] got to her but she was up there
for an hour and a half being asked about every statement she had ever made about
abuse she endured for over – for about two years. And even then at the end, after
she had been asked about every statement, everything that could be thought of, she
still was very adamant. [Defense counsel] said did this happen and she said it did.

No. 50424-3-II
12
Beyond a reasonable doubt means that you have an abiding belief in the
truth of the charges. There is no reasonable explanation for her to have made this
up. Everything that she said in those tapes, is something that she had to experience
to describe.
VRP (March 31, 2017) at 1714-16. The prosecutor also argued that the jury saw multiple adults
and professionals who needed to refer to their reports because they could not remember everything
that happened seven years ago. Therefore, the jury should not expect a 15-year old to remember
every detail either.
Defense counsel did not object to any of the prosecutor’s arguments regarding L.F.
E. VERDICT AND SENTENCING
The jury found Fritz guilty of first degree rape of a child (count 1), first degree rape of a
child (count 2), and first degree child molestation (count 5). The jury found aggravating
circumstances on all three of these counts. The jury found Fritz not guilty of counts 3, 4, and 6.
The trial court imposed a standard range sentence of 216 months confinement.
Fritz appeals.
ANALYSIS
A. INEFFECTIVE ASSISTANCE OF COUNSEL
Fritz argues that defense “counsel was prejudicially ineffective in handling the issue of
[L.F.]’s precocious sexual knowledge.” Br. of Appellant at 19. Specifically, Fritz contends that
defense counsel should have reopened the issue of whether evidence regarding the Oregon
investigation into Dammien should be admitted.9
9 Fritz also argues that failure to present evidence regarding Dammien “resulted in violation of
Fritz’s state and federal due process rights to present a defense.” Br. of Appellant at 24. However,
Fritz does not argue that the trial court’s initial ruling excluding the evidence was erroneous; he

No. 50424-3-II
13
To prevail on an ineffective assistance of counsel claim, the defendant must show both that
the defense counsel’s representation was deficient and the deficient performance resulted in
prejudice to the defendant. State v. Grier, 171 Wn.2d 17, 32-33, 246 P.3d 1260 (2011), cert.
denied, 574 U.S. 860 (2014). Counsel’s performance is deficient if it falls below an objective
standard of reasonableness. Id. at 33. There is a strong presumption that counsel’s performance
was reasonable. State v. Kyllo, 166 Wn.2d 856, 862, 215 P.3d 177 (2009). A defendant may
overcome this presumption by showing that “‘there is no conceivable legitimate tactic explaining
counsel’s performance.’” Grier, 171 Wn.2d at 33 (quoting State v. Reichenbach, 153 Wn.2d 126,
130, 101 P.3d 80 (2004)). There must be evidence regarding counsel’s strategic or tactical
decisions in the record for this court to determine whether counsel’s performance was deficient.
State v. Linville, 191 Wn.2d 513, 525-26, 423 P.3d 842 (2018). To establish prejudice, the
defendant must “prove that there is a reasonable probability that, but for counsel’s deficient
performance, the outcome of the proceedings would have been different.” Kyllo, 166 Wn.2d at
862.
Here, Fritz has failed to establish that defense counsel’s performance was deficient for
failing to ask the trial court to reconsider its ruling excluding evidence of the Oregon investigation
against Dammien. The trial court stated that it would reconsider its ruling if there was evidence
that Dammien had access to L.F. during the period she was abused. Here, the trial court had
already reviewed the Oregon investigation records prior to its ruling; therefore, Fritz would have
only argues that counsel should have asked the trial court to reconsider its ruling. Therefore,
because there is no argument supporting the right to present a defense argument, we do not address
the right to present a defense. RAP 10.3(a)(6); Cowiche Canyon Conservancy v. Bosley, 118
Wn.2d 801, 809, 828 P.2d 549 (1992).

No. 50424-3-II
14
to have established that Dammien had more access to L.F. than simply two overnight visits the
month that L.F. made her disclosures. At trial, Regina testified twice that Dammien did not have
access to L.F. during the relevant time period. Fritz argues that Regina admitted that Dammien
had visits with L.F. But Regina never explained what she meant by “limited visits” and later
clarified that Dammien did not have access to L.F. while she was living with Fritz. Therefore, the
assertion that there were grounds for defense counsel to ask the trial court to reconsider its ruling
is not supported by the record.
The record also does not show that the evidence of the Oregon investigation into Dammien
would have been relevant for the purpose Fritz now argues it should have been admitted. Fritz
argues that defense counsel should have asked the trial court to reconsider its ruling because the
evidence regarding Dammien provides an alternative explanation for L.F.’s precocious sexual
knowledge. Evidence is relevant if it makes a fact of consequence more or less probable than it
would be without the evidence. ER 401. Irrelevant evidence is not admissible. ER 402.
Here, there is nothing in the records of the Oregon investigation that are relevant to
demonstrating an alternative explanation for L.F.’s precocious sexual knowledge. The
investigation was triggered by a report that Dammien possibly abused a different child, not L.F.
These accusations did not include any mention of oral or anal sex between Dammien and the other
child, which would explain L.F.’s precocious sexual knowledge of those acts. And nothing in the
Oregon investigation records show that L.F. was told any details about the abuse accusations which
could account for L.F.’s precocious sexual knowledge. Therefore, it is unlikely that the Oregon
investigation into Dammien would be relevant to explaining L.F.’s precocious sexual knowledge
and, therefore, would be likely be inadmissible. Accordingly, defense counsel’s performance was

No. 50424-3-II
15
not deficient for failing to ask the trial court to reconsider its ruling.10 Fritz’s ineffective assistance
of counsel claim fails.
B. PROSECUTORIAL MISCONDUCT
Fritz argues the prosecutor committed misconduct based on numerous statements made
during closing argument. Specifically, Fritz contends that the prosecutor improperly inflamed the
passions and prejudices of the jury, drew negative inferences from Fritz’s exercise of constitutional
rights, and improperly maligned defense counsel. Fritz also contends that counsel was ineffective
for failing to object to the prosecutor’s arguments.
To prevail on a claim of prosecutorial misconduct, a defendant must show that the
prosecutor’s conduct was both improper and prejudicial. State v. Emery, 174 Wn.2d 741, 756, 278
P.3d 653 (2012). The prosecutor’s conduct is viewed 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. Monday, 171 Wn.2d 667, 675, 257 P.3d 551 (2011) (internal quotation marks omitted)
(quoting State v. McKenzie, 157 Wn.2d 44, 52, 134 P.3d 221 (2006)).
First, we determine whether the prosecutor’s conduct was improper. Emery, 174 Wn.2d at
759. If the prosecutor’s conduct was improper, then the question turns to whether the prosecutor’s
improper conduct resulted in prejudice. Id. at 760. To establish prejudice, the defendant must
show a substantial likelihood that the prosecutor’s misconduct affected the verdict. Id.
10 To the extent Fritz argues that the State improperly argued that there was no other basis for
L.F.’s precocious sexual knowledge and counsel was ineffective for failing to object, those
arguments are addressed in the section on prosecutorial misconduct. Because we conclude there
was no prosecutorial misconduct, defense counsel’s conduct was not deficient; thus, defense
counsel was not ineffective. See Grier, 171 Wn.2d at 33.

No. 50424-3-II
16
Because Fritz did not object to any of the prosecutor’s arguments that he now alleges are
improper, he “is deemed to have waived any error, unless the prosecutor’s misconduct was so
flagrant and ill-intentioned that an instruction could not have cured the resulting prejudice.” Id. at
760-61. Under this heightened standard of review, the defendant must show that “(1) ‘no curative
instruction would have obviated any prejudicial effect on the jury’ and (2) the misconduct resulted
in prejudice that ‘had a substantial likelihood of affecting the jury verdict.’” Id. at 761 (quoting
State v. Thorgerson, 172 Wn.2d 438, 455, 258 P.3d 43 (2011)). The focus is on whether the
resulting prejudice could have been cured. Id. at 762.
1. Prosecutor’s Closing Argument
First, Fritz argues that the prosecutor improperly invoked sympathy; bolstered L.F.’s
testimony; drew negative inferences from Fritz’s exercise of rights by making comments regarding
L.F.’s experience preparing for trial, specifically, during cross-examination; and disparaged
defense counsel. To support this argument, Fritz relies exclusively on the following statements
the prosecutor made during rebuttal closing argument:
After that, since then, [L.F.] has had to talk about this to so many people. She had
to get a medical exam, she had to move out of the house that she was living in, she
(inaudible) to strangers and talk to them about sexual things, this 15 year old girl.
And you saw her on the stand. Did she look like she wanted to be here? Did she
look like she enjoyed this? What did this family get out of this, especially seven
years later? What possible benefit could they have to come here and tell you that
these things happened like they did? Regina lost her fiancé, her home.
[L.F.] had to have interview after interview. She had to have a medical
exam that you heard was uncomfortable, that’s what Marsha Stover told you. Then
she had to come here seven years later, a 15 year old girl, and talk to all of you
about these things. And she had to sit up there for an hour and a half and answer
questions.
Now through that time, [defense counsel] got to her but she was up there
for an hour and a half being asked about every statement she had ever made about
abuse she endured for over – for about two years. And even then at the end, after

No. 50424-3-II
17
she had been asked about every statement, everything that could be thought of, she
still was very adamant. [Defense counsel] said did this happen and she said it did.
Beyond a reasonable doubt means that you have an abiding belief in the
truth of the charges. There is no reasonable explanation for her to have made this
up. Everything that she said in those tapes, is something that she had to experience
to describe.
VRP (March 31, 2017) at 1714-16.
“Although it is improper for a prosecutor to vouch for a witness’s credibility, a prosecutor
has wide latitude in closing argument to draw reasonable inferences from the evidence and may
freely comment on witness credibility based on the evidence.” State v. Lewis, 156 Wn. App. 230,
240, 233 P.3d 891 (2010) (footnote omitted). It is also improper for a prosecutor to disparage
defense counsel and defense counsel’s role in a criminal trial. State v. Lindsay, 180 Wn.2d 423,
431-32, 326 P.3d 125 (2014). And comments that are manifestly intended to comment on the
defendant’s exercise of his constitutional rights are generally improper. State v. Wilkins, 200 Wn.
App. 794, 816, 403 P.3d 890 (2017). However, prosecutorial remarks, even if they are improper,
are not grounds for reversal if they were invited or provoked by defense counsel, are responsive to
defense counsel’s arguments, and could have been cured by an appropriate instruction. State v.
Carver, 122 Wn. App. 300, 306, 93 P.3d 947 (2004).
Here, the prosecutor did not express a personal opinion or vouch for L.F. in order to
improperly bolster L.F.’s testimony. The prosecutor asked the jury to consider the evidence, the
amount of interviews L.F. participated in, and L.F.’s demeanor during trial to determine her
credibility. Furthermore, the prosecutor made the remarks in response to defense counsel’s
arguments regarding L.F.’s testimony. And the prosecutor did not improperly disparage defense
counsel because the remarks were not meant to undermine defense counsel’s role in trial, but rather

No. 50424-3-II
18
to explain the inconsistencies that defense counsel identified in L.F.’s testimony. Finally, the
prosecutor’s remarks were not manifestly intended to comment on Fritz’s right to trial because
they were not tied directly to the fact that Fritz went to trial, and the number of interviews L.F. had
and the number of statements she made were all in the record. Therefore, the prosecutor’s
arguments made during rebuttal closing argument were not improper.
Next, Fritz argues that the prosecutor misstated the burden of proof by arguing that the jury
had to find a reasonable explanation for why L.F. would have made up her claims. Specifically,
Fritz contends that it was improper for the prosecutor to argue that the jury had to find a reasonable
explanation for L.F. fabricating the allegations.
Here, the prosecutor’s comment was also made in rebuttal closing argument. The
prosecutor stated, “There is no reasonable explanation for her to have made this up.” VRP (March
31, 2017) at 1716. When making this comment, the prosecutor was not referencing the burden of
proof. Instead, the prosecutor was discussing L.F.’s credibility. Thus, the prosecutor was arguing
that L.F.’s testimony was credible because her testimony was more reasonable than the alternative
proposed by the defense, which the prosecutor argued was not reasonable. The jury was instructed
that evaluating credibility of witnesses may involve considering personal interest, bias, or the
reasonableness of the statements. On this record, the prosecutor’s comment was not improper,
and the prosecutor did not misstate the burden of proof.
Fritz also argues that the State improperly relied on L.F.’s precocious sexual knowledge
after purposefully excluding evidence that would provide an alternative explanation for such
knowledge. As explained above, there is nothing in the Oregon investigation records that
establishes Dammien was the source of L.F.’s precocious sexual knowledge because the

No. 50424-3-II
19
allegations against Dammien were not similar to the acts L.F. described. The Oregon investigation
records show that L.F. denied that Dammien touched her inappropriately or molested her. There
is also no indication that anyone involved in the Oregon investigation gave L.F. details about the
Oregon accusations to account for L.F.’s precocious sexual knowledge, and the Oregon
accusations against Dammien did not include reference to oral or anal penetration. Because the
State did not improperly move to exclude evidence that would have provided an alternative
explanation for L.F.’s precocious sexual knowledge, Fritz has not met his burden to prove
prosecutorial misconduct.
2. Defense Counsel’s Conduct
Fritz argues that defense counsel’s failure to object to the prosecutor’s arguments was
ineffective assistance of counsel. Fritz further argues that defense counsel was ineffective for
misstating the burden of proof during his own closing argument.
As discussed above, Fritz has not shown that the prosecutor’s arguments were improper.
Because the prosecutor’s arguments were not improper, there was no basis for defense counsel to
object during closing argument. Therefore, Fritz has not shown that defense counsel’s
performance was deficient for failing to object to the prosecutor’s argument, and his ineffective
assistance of counsel based on the failure to object to the prosecutor’s closing argument fails.
Fritz also argues that defense counsel was ineffective for misstating the burden of proof
during his own closing argument. Specifically, Fritz contends that defense counsel misstated the
burden of proof by arguing that there were reasons to doubt and reasons to acquit Fritz.
It is improper for a prosecutor to tell the jury that they need a reason to doubt in order to
acquit the defendant. See State v. Venegas, 155 Wn. App. 507, 523-24, 228 P.3d 813, review

No. 50424-3-II
20
denied, 170 Wn.2d 1003 (2010) (prosecutor committed misconduct by arguing, “‘In order to find
the defendant not guilty, you have to say to yourselves: I doubt the defendant is guilty, and my
reason is—blank.’” (quoting 27A RP at 3286)). But defense counsel is in a different position than
the prosecutor. When defense counsel used the phrase reason to doubt, he was referring to a reason
to doubt the State’s case, a reason why the State failed to meet its burden, not a reason necessary
to acquit the defendant. Therefore, defense counsel’s arguments were not deficient performance.
Accordingly, Fritz’s ineffective assistance of counsel claim based on defense counsel’s closing
argument fails.
C. HEARSAY STATEMENTS TO DR. PRESTON
Fritz argues that the trial court abused its discretion by admitting the statements that L.F.
made to Dr. Preston. Specifically, Fritz contends that the State failed to lay an adequate foundation
to admit the statements under the hearsay exception allowing statements made for the purpose of
diagnosis or treatment.
Generally, a party may not raise an issue for the first time on appeal. RAP 2.5(a).
However, RAP 2.5(a)(3) allows a party to raise an issue for the first time on appeal where the issue
involves a “manifest error affecting a constitutional right.” “Application of RAP 2.5(a)(3) depends
on the answers to two questions: ‘(1) Has the party claiming error shown the error is truly of
constitutional magnitude, and if so, (2) has the party demonstrated that the error is manifest?”
State v. Grott, 195 Wn.2d 256, 267, 458 P.3d 750 (2020) (quoting State v. Kalebaugh, 183 Wn.2d
578, 583, 355 P.3d 253 (2015)).
“Manifest error requires ‘a plausible showing by the [appellant] that the asserted error had
practical and identifiable consequences in the trial of the case.’” Id. at 269 (alteration in original)

No. 50424-3-II
21
(internal quotation marks omitted) (quoting State v. O’Hara, 167 Wn.2d 91, 99, 217 P.3d 756
(2009)). “‘[T]o determine whether an error is practical and identifiable, the appellate court must
place itself in the shoes of the trial court to ascertain whether, given what the trial court knew at
that time, the court could have corrected the error.’” Id. (quoting O’Hara, 167 Wn.2d at 100).
Here, the trial court’s initial ruling on the statements to Dr. Preston was conditioned on the
State laying an adequate foundation for their admissibility. During Dr. Preston’s testimony, Fritz
did not object to the admission of the statements based on inadequate foundation. Because Fritz
did not object to the foundation for admissibility and he did not argue that RAP 2.5(a)(3) justifies
raising this issue for the first time on appeal, Fritz may not raise this issue for the first time on
appeal. RAP 2.5(a).
D. KLEIN’S TESTIMONY
Fritz argues that the trial court abused its discretion by allowing the State to reopen its case
to present additional testimony about statements Regina previously made in an interview from
deputy prosecutor Klein. Fritz contends that Klein’s testimony violated the advocate-witness
rule.11
The advocate-witness rule, contained in the Rule of Professional Conduct (RPC) 3.7,
prohibits a lawyer from acting as an advocate in a trial in which another lawyer from the same firm
11 Although Fritz states that the trial court abused its discretion by allowing the State to reopen its
case to present Klein’s testimony, he does not present any argument or authority on whether it was
improper for the trial court to allow the State to reopen its case. We do not address issues that are
not supported by argument or citation to authority. RAP 10.3(a)(6); State v. Mason, 170 Wn. App.
375, 384, 285 P.3d 154 (2012), review denied, 176 Wn.2d 1014 (2013). Therefore, we only
address whether Klein’s testimony was proper, not whether the trial court abused its discretion by
allowing the State to reopen its case.

No. 50424-3-II
22
is likely to testify. State v. Bland, 90 Wn. App. 677, 679, 953 P.2d 126, review denied, 136 Wn.2d
1028 (1998). Before allowing a deputy prosecuting attorney to testify in a trial, “[t]rial courts
should consider whether the testifying deputy can be an objective witness, whether the dual
positions artificially bolster the witness’s credibility or make it difficult for the jury to weigh the
testimony, and whether the dual role raises an appearance of unfairness.” Id. at 680.
Here, there is no evidence that Klein was unable to testify objectively as to the statements
Regina had previously made in an interview. And Klein’s dual position did not artificially bolster
her testimony. The trial court was very careful to prevent the jury from knowing that there was a
previous trial. The jury did not know that Klein had prosecuted Fritz in the first trial, they only
knew that she was a deputy prosecuting attorney assigned to the Children’s Justice Center and
participated in some interviews regarding the investigation into L.F.’s allegations. Given that
information, Klein’s testimony did not carry any more weight than Detective Holladay’s testimony
regarding the interviews he performed. Furthermore, because Klein did not testify as prosecutor,
but more as an investigator, there is not a high risk that her dual role would cause an appearance
of unfairness. See id. at 681. The remedy for any concern Fritz had regarding Klein’s bias could
be remedied through cross-examination. Id.
Here, because the trial court limited the jury’s knowledge of the first trial and Klein’s role
in that first trial, there was little chance that Klein’s role artificially bolstered her testimony or
created an appearance of unfairness. Therefore, the trial court was not required to exclude Klein’s
testimony regarding the statements Regina had previously made. Accordingly, there was no error.

No. 50424-3-II
23
E. CUMULATIVE ERROR
Finally, Fritz argues that, even if the individual errors in his trial do not require reversal,
the cumulative errors deprived him of his right to a fair trial.
“Under the cumulative error doctrine, a defendant may be entitled to a new trial when
cumulative errors produce a trial that is fundamentally unfair.” Emery, 174 Wn.2d at 766. Here,
Fritz’s has not met his burden to show that any error occurred in his trial. Therefore, the cumulative
error doctrine does not apply here.
For the reasons articulated above, we affirm.
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.
Lee, C.J.
We concur:
Worswick, J.
Glasgow, J.