author: Maxa, C.J.

text:
    Robert C. TERHUNE and Tara Terhune, husband and wife; and Equity Group NWest LLC, a Delaware Limited Liability Company, Appellant, v. NORTH CASCADE TRUSTEE SERVICES, INC., a Washington corporation; Defendant,
    U.S. Bank Trust, N.A., as Trustee for LSF9 Master Participation Trust, a National Association ; Caliber Home Loans, Inc., a corporation; Doe Defendants 1-10, inclusive, Respondents.
    No. 51479-6-II
    Court of Appeals of Washington, Division 2.
    Filed August 13, 2019
    Michele K McNeill, Skyline Law Group PLLC, 2155 112th Ave. Ne, Bellevue, WA, 98004-2912, for Appellant.
    Kristine Elizabeth Kruger, Perkins Coie LLP, 1201 3rd Ave. Ste. 4900, Seattle, WA, 98101-3099, Thomas Abbott, Attorney at Law, 505 Howard St. Ste. 1000, San Francisco, CA, 94105-3222, for Respondents.
    PUBLISHED OPINION
   Maxa, C.J.

¶1 Robert and Tara Terhune and their closely held company Equity Group NWest (collectively, the Terhunes) appeal the trial court's order granting summary judgment in favor of U.S. Bank Trust (U.S. Bank) and Caliber Home Loans (Caliber).

¶2 In 2008, the Terhunes defaulted on a loan secured by a deed of trust on their home and in early 2009 received notices that their obligations on their promissory note would be accelerated if they did not cure the default. Caliber issued a notice of trustee's sale for the home on U.S. Bank's behalf in 2016, and the Terhunes filed a lawsuit to enjoin the foreclosure and to quiet title to their home. The Terhunes argued that the promissory note had been accelerated in 2009, which started the six-year statute of limitations. Therefore, they claimed that the statute of limitations period had expired before U.S. Bank's foreclosure action. The Terhunes also argued that U.S. Bank was not authorized to foreclose because there was no evidence that U.S. Bank was the holder of the note.

¶3 We hold that (1) the statute of limitations did not bar the foreclosure action because there was no clear and unequivocal acceleration of the promissory note; (2) the evidence established that U.S. Bank was the holder of the Terhunes' promissory note and the Terhunes failed to establish a genuine issue of fact on this question, and therefore U.S. Bank had authority to foreclose on the deed of trust; and (3) the trial court did not err in denying the Terhunes' motion for reconsideration.

¶4 Accordingly, we affirm the trial court's orders granting summary judgment in favor of U.S. Bank and Caliber and denying the Terhunes' motion for reconsideration.

FACTS

Promissory Note

¶5 On January 8, 2008, the Terhunes executed a promissory note for $1,499,999 in favor of Countrywide Bank (Countrywide). The note was secured by a deed of trust on the Terhunes' home in Lake Tapps. The note required the Terhunes to make payments of $8,124.99 on the first day of every month beginning on March 1, 2008. The maturity date of the note was February 1, 2038.

¶6 The note stated that the Terhunes would be in default if they failed to make a monthly payment on the due date. The note also included an acceleration clause, which stated,

If I am in default, the Note Holder may send me a written notice telling me that if I do not pay the overdue amount by a certain date, the Note Holder may require me to pay immediately the full amount of Principal that has not been paid and all the interest that I owe on that amount.

Clerk's Papers (CP) at 96.

¶7 The deed of trust stated that the lender must give written notice before accelerating the note obligations and that the notice must specify that "failure to cure the default on or before the date specified in the notice may result in acceleration." CP at 109 (bolding omitted). The deed of trust further provided that if the default was not cured on or before the date specified in the notice, "Lender at its option may require immediate payment in full of all sums" secured by the deed of trust. CP at 109 (bolding omitted). Default and Notice of Intent to Accelerate

¶8 The Terhunes made monthly payments on the mortgage from March 2008 through October 2008. On December 17, after the Terhunes failed to make the November and December payments, Countrywide sent them a Notice of Intent to Accelerate. The notice stated that the loan was in default and that the Terhunes had until January 16, 2009 to cure the default by paying the two missed payments plus late charges. The notice also stated that if the default was not cured, "the mortgage payments will be accelerated with the full amount remaining." CP at 158.

¶9 The Terhunes made the November payment, but did not make the December payment and failed to make the January 2009 payment. On January 16, 2009, Countrywide sent a second Notice of Intent to Accelerate. The notice stated that the loan was in default and that the Terhunes had until February 15 to cure the default by paying the two missed payments plus late charges. The notice again stated that if the default was not cured, "the mortgage payments will be accelerated with the full amount remaining." CP at 161.

¶10 The Terhunes made the December payment, but they did not make the January 2009 payment and failed to make the February payment. On February 17, 2009, Countrywide sent a third Notice of Intent to Accelerate. The notice stated that the loan was in default and that the Terhunes had until March 19 to cure the default by paying the two missed payments plus late charges. The notice stated, "If the default is not cured on or before March 19, 2009, the mortgage payments will be accelerated with the full amount remaining." CP at 164.

¶11 The Terhunes failed to make any further payments on the loan. However, there is no evidence that Countrywide provided any formal notice to the Terhunes that the loan actually had been accelerated.

2010 Foreclosure Action

¶12 In November 2009, BAC Home Loans Servicing, LP (BAC) sent the Terhunes a notice stating that BAC was servicing their loan and that their account was seriously delinquent. The notice stated that the past due amount was $86,382. In March 2010, BAC sent the Terhunes a notice of default stating that the total amount in arrears was $158,188.86.

¶13 In August 2010, the trustee of the deed of trust sent the Terhunes a notice of foreclosure, which stated that their property would be sold in December if their default was not cured. The notice stated that the amount in arrears was $216,503.61, and that the Terhunes had until November 22 to cure the default by paying all accrued charges that by that time were estimated to be $256,210.39. The trustee also recorded a notice of trustee's sale for December 3, 2010, which showed that the amount in arrears was $216,611.75.

¶14 In November, the Terhunes filed a lawsuit against BAC and others seeking, among other relief, an injunction to prevent the trustee's sale and to quiet title to their home. The Terhunes' lawsuit eventually was dismissed. But there is no evidence that the trustee continued to pursue foreclosure at that time.

Transfers of Note/Deed of Trust

¶15 In March 2015, LSF9 Master Participation Trust notified the Terhunes that it had purchased their loan. The Trust's mailing address was listed as "c/o Caliber Home Loans, Inc." CP at 551. On June 4, Caliber notified the Terhunes that it was the new servicer of the loan. In a June 5 letter, Caliber notified the Terhunes that the creditor on the loan was LSF9 Master Participation Trust and that their total debt was $2,292,209.26. However, the letter stated, "We are not requesting that you pay the entire loan balance." CP at 187.

¶16 In September 2015, Bank of America (as successor by merger to BAC) assigned its beneficial interest in the deed of trust to U.S. Bank, as trustee for LSF9 Master Participation Trust. On October 7, a representative of Caliber signed a declaration referencing the Terhunes' loan and stating that "U.S. BANK TRUST, N.A., AS TRUSTEE FOR LSF9 MASTER PARTICIPATION TRUST is the beneficiary ... and actual holder of the promissory note or other obligation secured by the deed of trust." CP at 559. Above the signature line the declaration stated, "U.S. Bank Trust, N.A., as Trustee for LSF9 Master Participation Trust, by Caliber Home Loans, Inc., as its attorney in fact." CP at 559. The document was signed by a person who listed her title as "authorized signatory." CP at 559.

2016 Foreclosure Action and Lawsuit

¶17 In December 2015, the trustee of the deed of trust sent the Terhunes a notice of default, which stated that U.S. Bank was the creditor on the loan, Caliber was the servicer of the loan, and the Terhunes owed $732,627.78 in overdue payments, late charges, and advances on the loan.

¶18 On October 11, 2016, the trustee recorded a notice of trustee's sale for February 17, 2017. The notice stated that the total amount in arrears was $669,729.11 and that the Terhunes had until February 6, 2017 to cure the default by paying that amount.

¶19 On February 7, the Terhunes filed a lawsuit against U.S. Bank as trustee for LSF9 Master Participation Trust and Caliber to enjoin the trustee's sale and to quiet title in their property. The Terhunes claimed that the notice of trustee's sale was invalid because the statute of limitations to enforce the promissory note and deed of trust had expired, and that the trustee did not have the authority to initiate a trustee's sale because U.S. Bank was not the holder of the note.

¶20 U.S. Bank and Caliber filed a joint summary judgment motion. They argued that the statute of limitations had not expired because the loan was never accelerated. In support of their summary judgment motion, U.S. Bank and Caliber submitted the declaration of Nathaniel Mansi, a Caliber employee. Mansi stated that Countrywide did not accelerate the Terhunes' loan, and that "[a]t no time has the Loan been accelerated." CP at 92. He also stated that Countrywide had endorsed the promissory note in blank and that U.S. Bank was the owner of and was in possession of the note. Mansi stated that he made his declaration based on personal knowledge and his review of Caliber's business records regarding the Terhune loan.

¶21 The trial court granted the summary judgment motion. The Terhunes filed a motion for reconsideration arguing that there was no evidence to support the trial court's ruling. The trial court denied reconsideration.

¶22 The Terhunes appeal the trial court's orders granting U.S. Bank's and Caliber's summary judgment motion and denying the Terhunes' motion for reconsideration.

ANALYSIS

A. LEGAL PRINCIPLES

1. Standard of Review

¶23 We review a trial court's decision on a summary judgment motion de novo. Merceri v. Bank of N.Y. Mellon , 4 Wash. App. 2d 755, 759, 434 P.3d 84, review denied 192 Wash.2d 1008, 430 P.3d 244 (2018). Summary judgment is appropriate if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Id. ; CR 56(c). We view all facts and reasonable inferences drawn from those facts in the light most favorable to the nonmoving party. Merceri , 4 Wash. App. 2d at 759, 434 P.3d 84.

¶24 The moving party bears the initial burden of proving that there is no genuine issue of material fact. Zonnebloem v. Blue Bay Holdings, LLC , 200 Wash. App. 178, 183, 401 P.3d 468 (2017). Once a moving defendant shows that there is an absence of evidence to support the plaintiff's case, the burden shifts to the plaintiff to present specific facts that rebut the defendant's contentions and show a genuine issue of material fact. Id.

2. Nonjudicial Foreclosure

¶25 The Deed of Trust Act (DTA), chapter 61.24 RCW, "provides an alternative to judicial foreclosure by allowing for the private sale of foreclosed property." River Stone Holdings NW, LLC v. Lopez , 199 Wash. App. 87, 92, 395 P.3d 1071 (2017). The underlying deed of trust creates three distinct roles: a lender, a borrower, and a trustee who holds the deed as security for the lender. Id. at 93, 395 P.3d 1071. If the borrower defaults on the obligations owed to the lender, the trustee may foreclose on the property in a trustee's sale. Id. ; RCW 61.24.030(3).

¶26 The DTA provides detailed procedures under RCW 61.24.030, .031, and .040 for foreclosing a deed of trust and conducting a trustee's sale. If a trustee fails to strictly comply with the DTA, the trustee lacks statutory authority to conduct a trustee's sale and any such sale is invalid. River Stone Holdings , 199 Wash. App. at 93, 395 P.3d 1071.

B. STATUTE OF LIMITATIONS FOR PROMISSORY NOTE

¶27 The Terhunes argue that the trial court erred by ruling that the statute of limitations did not bar U.S. Bank and Caliber from enforcing the promissory note. They argue that there were questions of material fact regarding whether their loan was accelerated in 2009, which would have resulted in the accrual of U.S. Bank's claim at that time. We disagree.

1. Legal Principles

¶28 A promissory note and deed of trust, as written contracts, are subject to a six-year statute of limitations for such contracts. RCW 4.16.040(1) ; Cedar W. Owners Ass'n v. Nationstar Mortg., LLC , 7 Wash. App. 2d 473, 482, 434 P.3d 554, review denied 193 Wash.2d 1016, 441 P.3d 1200 (2019). The six-year period begins "after the cause of action has accrued." RCW 4.16.005. For an installment promissory note, the cause of action "accrues for each monthly installment from the time it becomes due." Cedar W. Owners Ass'n . 7 Wash. App. 2d at 484, 434 P.3d 554. The final six-year period for taking action on an installment note does not begin to run until the note fully matures. Merceri , 4 Wash. App. 2d at 760, 434 P.3d 84.

¶29 However, if a lender accelerates an installment note, "the entire remaining balance becomes due and the statute of limitations is triggered for all installments that had not previously become due." 4518 S. 256th, LLC v. Karen L. Gibbon, PS , 195 Wash. App. 423, 434-35, 382 P.3d 1 (2016).

¶30 For acceleration to occur, the lender must take some affirmative action that informs the borrower that the entire debt is immediately due. Merceri , 4 Wash. App. 2d at 760, 434 P.3d 84. " '[A]cceleration must be made in a clear and unequivocal manner which effectively apprises the maker that the holder has exercised his right to accelerate the payment date.' " Id. at 761, 434 P.3d 84 (quoting Glassmaker v. Ricard , 23 Wash. App. 35, 38, 593 P.2d 179 (1979) ). A default on the loan alone will not accelerate a note, even if an installment note provides for automatic acceleration upon default. Merceri , 4 Wash. App. 2d at 760, 434 P.3d 84. And even the initiation of nonjudicial foreclosure proceedings does not automatically accelerate a note. 4518 S. 256th , 195 Wash. App. at 436-445, 382 P.3d 1.

¶31 If the statute of limitations has expired on a promissory note secured by a deed of trust on real property, the owner is entitled to quiet title on the property. Cedar W. Owners Ass'n , 7 Wash. App. 2d at 482, 434 P.3d 554. Under RCW 7.28.300, "[t]he record owner of real estate may maintain an action to quiet title against the lien of a mortgage or deed of trust on the real estate where an action to foreclose such mortgage or deed of trust would be barred by the statute of limitations."

¶32 Here, the Terhunes defaulted on their promissory note in February 2009, but the foreclosure proceedings at issue here were not initiated until October 2016. Therefore, if Countrywide accelerated the loan in 2009, the statute of limitations period may have run on enforcement of the note before the 2016 foreclosure action. Accordingly, we must determine whether the Terhunes presented any evidence to establish an issue of fact regarding whether Countrywide accelerated the note.

2. Analysis

¶33 The Terhunes argue that Countrywide accelerated their obligations on the promissory note on February 17, 2009 when it sent the Terhunes the Notice of Intent to Accelerate. The notice stated that if the Terhunes did not cure the default before March 19, 2009, the mortgage payments "will be accelerated ." CP at 164. The Terhunes claim that Countrywide was conditionally electing to exercise its right to accelerate the payments, and that the Terhunes' failure to cure the default automatically triggered the acceleration of the loan. They assert that this language is sufficient to at least create a question of fact regarding whether acceleration occurred.

¶34 However, the evidence does not support the conclusion that Countrywide took an affirmative action in 2009 that clearly and unequivocally informed the Terhunes that the note had been accelerated. First, as the title of the document indicated, the Notice of Intent to Accelerate was a statement only of an intent to accelerate at some time in the future if the Terhunes did not cure. The notice stated that the note "will" be accelerated, CP at 164, not that the note was accelerated. The argument that the failure to cure automatically triggered acceleration is inconsistent with the rule that the lender must take some affirmative action to accelerate a note. Merceri , 4 Wash. App. 2d at 760, 434 P.3d 84.

¶35 Second, there is no evidence that Countrywide ever gave the Terhunes formal notice that the note had been accelerated. The argument that such notice is not required is inconsistent with the rule that acceleration must be invoked clearly and unequivocally. Id.

¶36 Third, in multiple subsequent statements and notices, BAC and Caliber made it clear that that they were seeking to recover past due installment payments, not the full balance of the loan. BAC's first notice to the Terhunes in November 2009, eight months after the Terhunes claim acceleration occurred, stated that the past due amount was $86,382. BAC did not state that the full amount of the loan was due. The 2010 and 2015 notices of default both stated that the amount in arrears was the amount of the unpaid installments, not the full amount of the loan. All the notices in the 2010 and 2016 foreclosure were based on the past due installment payments rather than the full amount of the loan, and stated that payment of the past due amounts could stop the foreclosure.

¶37 The Terhunes argue that certain notices from loan servicers stated the entire balance of the loan. They reference a July 6, 2011 letter from BAC stating that the Terhunes owed $1,830,002 on the loan without mentioning an option to bring the account current by making missed payments. But stating the outstanding balance on the loan does not mean that the full balance is immediately due.

¶38 Fourth, U.S. Bank and Caliber submitted the declaration of Mansi, who stated based on his review of the records for the Terhunes' loan that Countrywide did not accelerate the loan and that the loan had never been accelerated.

¶39 Two cases from other divisions of our court have rejected arguments similar to the Terhunes' argument here. In Merceri , Division One addressed a bank's notice of intent to accelerate containing language identical to Countrywide's "will be accelerated" notice. 4 Wash. App. 2d at 760-62, 434 P.3d 84. The court held that this notice did not accelerate the loan. Id. at 760, 763, 434 P.3d 84. The court acknowledged that the bank warned that the entire debt would be accelerated if the borrower failed to cure her default. Id. at 761, 434 P.3d 84. But the court relied on evidence similar to the evidence presented here in finding no acceleration:

Thereafter, the Bank did not take an affirmative action in a clear and unequivocal manner indicating that the payments on the loan had been accelerated. The Bank never declared that the entire debt was due.
...
In addition, mortgage statements sent to Merceri after the February 2010 notice show the amount due as merely the sum of unpaid past due installments, not the full principal.

Id. The court also noted that the lender repeatedly informed the borrower that the amount due was the missed monthly payments rather than the entire loan amount and never sent a notice of default stating that the full balance was due. Id. at 763, 434 P.3d 84.

¶40 In U.S. Bank National Association v. Ukpoma , Division Three held that acceleration did not occur even though the lender gave notice that it had elected to accelerate. 8 Wash. App. 2d 254, 259, 438 P.3d 141 (2019). In that case, a notice stated that the bank had elected to accelerate the loan, but the notice then contradicted itself by stating that the borrower could reinstate the loan by paying the delinquent payments. Id. at 256-57, 438 P.3d 141. The court stated that this contradiction made the notice unclear rather than a clear and unequivocal acceleration. Id. at 259, 438 P.3d 141. In addition, the court emphasized that all subsequent notices showed that the note had not been accelerated. Id.

¶41 In contrast, in Washington Federal, National Association v. Azure Chelan LLC , Division Three held that acceleration had occurred under the facts of that case. 195 Wn. App. 644, 662-64, 382 P.3d 20 (2016). There, a notice of default explicitly stated that the total amount due was the accelerated balance due under the promissory note. Id. at 663, 382 P.3d 20. The notice also stated that as a consequence of the default, the entire principal amount of the promissory note plus interest was "immediately due and payable." Id. at 663-64, 382 P.3d 20. The court held that this statement in the notice of default was sufficient to prove that the lender had accelerated the loan. Id. at 664, 382 P.3d 20.

¶42 Our case is similar to Merceri , not to Washington Federal . Here, the notice of intent to accelerate used the same conditional language as in Merceri . And, unlike Washington Federal , Countrywide and its successors never indicated in a subsequent statement or notice that it was seeking the entire balance of the mortgage. In addition, the deed of trust explicitly required the lender to give advance notice before accelerating the mortgage payments. A notice of intent to accelerate is such an advance notice, not an affirmative election. And a conditional statement that failure to cure the default will accelerate the loan in the future does not unequivocally alert the borrower that the note holder has already elected to accelerate the loan.

¶43 We conclude that the Terhunes failed to establish a question of material fact whether Countrywide or its successors took an affirmative action that clearly and equivocally accelerated their promissory note and therefore that the statute of limitations had expired on U.S. Bank's foreclosure action. Accordingly, we hold that the trial court did not err in granting U.S. Bank's and Caliber's summary judgment motion with regard to the Terhunes' quiet title action.

C. HOLDER OF THE PROMISSORY NOTE

¶44 The Terhunes argue that the trial court erred by ruling that U.S. Bank had authority to enforce the deed of trust. They argue that summary judgment is inappropriate because there was a question of material fact whether U.S. Bank is the holder of the promissory note. We disagree.

1. Legal Principles

¶45 Chapter 62A RCW provides for the enforcement of negotiable instruments like promissory notes. Under RCW 62A.3-301, the holder of an instrument is entitled to enforce an instrument. See Brown v. Dep't. of Commerce , 184 Wash.2d 509, 524-25, 359 P.3d 771 (2015). A "holder" includes a person in possession of a negotiable instrument that is payable to bearer. RCW 62A.1-201(b)(21)(A). And an instrument is payable to bearer when a holder makes a blank endorsement - an endorsement that does not specify the person to whom the instrument is payable. RCW 62A.3-205(b).

¶46 Here, Countrywide endorsed the Terhunes' promissory note in blank. Therefore, the person in possession of the note was the holder under RCW 62A.1-201(b)(21)(A).

¶47 To initiate a trustee's sale under RCW 61.24.030(7)(a), the trustee must have proof that the beneficiary of a promissory note is the actual holder of the note with the authority to appoint a trustee to commence a nonjudicial foreclosure. Blair v. Nw. Tr. Servs., Inc ., 193 Wash. App. 18, 31, 372 P.3d 127 (2016). However, "[a] declaration by the beneficiary made under the penalty of perjury stating that the beneficiary is the holder of any promissory note or other obligation secured by the deed of trust shall be sufficient proof." RCW 61.24.030(7)(a) ; see Blair , 193 Wash. App. at 34, 372 P.3d 127.

2. Analysis

¶48 Here, the record contains two pieces of evidence showing that U.S. Bank is the holder of the Terhunes' note. The beneficiary declaration signed by Caliber as attorney in fact for U.S. Bank states that U.S. Bank was the actual holder of the Terhunes' note. And Mansi's declaration states that based on his review of the business records regarding the Terhunes' note, U.S. Bank had possession of the note.

¶49 This evidence satisfied U.S. Bank's initial burden of proving that there was no genuine issue of material fact. The burden then shifted to the Terhunes to present specific facts that demonstrated a genuine issue of material fact. Zonnebloem , 200 Wash. App. at 183, 401 P.3d 468. However, the Terhunes presented no evidence or even an inference from the evidence that U.S. Bank was not the holder of their note. Instead, they only challenge the adequacy of U.S. Bank's evidence.

¶50 First, the Terhunes argue that the beneficiary declaration was insufficient because it was not signed by U.S. Bank. Instead, it was signed by Caliber as the attorney in fact for U.S. Bank. The Terhunes emphasize that RCW 61.24.030(7) requires the beneficiary of the note to sign the declaration, and not the beneficiary's agent.

¶51 However, the Supreme Court in Bain v. Metropolitan Mortgage Group, Inc. stated, "[N]othing in this opinion should be construed to suggest an agent cannot represent the holder of a note. Washington law, and the deed of trust act itself, approves of the use of agents." 175 Wash.2d 83, 106, 285 P.3d 34 (2012). An agent includes an attorney in fact. See RCW 11.125.020(1) ; In re Estates of Palmer , 145 Wash. App. 249, 263, 187 P.3d 758 (2008). As a result, we conclude that a beneficiary's attorney in fact can sign a beneficiary declaration on behalf of the beneficiary.

¶52 The Terhunes note that the record does not contain an appointment of Caliber as U.S. Bank's attorney in fact. But the record contains evidence that Caliber was U.S. Banks's agent. And the Terhunes produced no evidence that Caliber was not U.S. Bank's agent and therefore was not authorized to sign the beneficiary affidavit.

¶53 Second, the Terhunes argue that the declaration was insufficient because the language is ambiguous as to whether U.S. Bank is the holder of the promissory note. They focus on the statement that U.S. Bank was the "actual holder of the promissory note or other obligation secured by the deed of trust ." CP at 559 (emphasis added). They claim that this case is controlled by Lyons v. U.S. Bank National Association , 181 Wash.2d 775, 336 P.3d 1142 (2014).

¶54 In Lyons , the Supreme Court held that the trustee could not rely on a declaration by the note holder because the language of the declaration was ambiguous. Id. at 791, 336 P.3d 1142. The declaration stated that a bank was " 'the actual holder of the promissory note or other obligation evidencing the above-referenced loan or has requisite authority under RCW 62A.3-301 to enforce said obligation .' " Id. at 780, 336 P.3d 1142 (emphasis added) (quoting record). The court stated that the declaration was ambiguous regarding whether the bank was the holder of the note or had some other authority to enforce the note. Id. at 790-91, 336 P.3d 1142. Therefore, the court held that the declaration was not sufficient to establish the bank's holder status. Id. at 791, 336 P.3d 1142 ; see also Trujillo v. Nw. Tr. Servs., Inc. , 183 Wash.2d 820, 826, 355 P.3d 1100 (2015) (holding that the same language was ambiguous and insufficient).

¶55 But the beneficiary declaration here did not include the language that the court in Lyons found ambiguous: " 'or has requisite authority under RCW 62A.3-301 to enforce said obligation .' " 181 Wash.2d at 780, 336 P.3d 1142 (emphasis added) (quoting record). Instead, the declaration stated that U.S. Bank is the holder of the note or other obligation. The Terhunes argue that the declaration was ambiguous just as in Lyons because the declaration stated that U.S. Bank was the holder of the note "or other obligation." CP at 559 (emphasis added). But the declaration here tracked the statutory language. RCW 61.24.030(7)(a) provides that a beneficiary declaration stating that "the beneficiary is the holder of any promissory note or other obligation secured by the deed of trust" is sufficient proof that the beneficiary is the holder of the note. (Emphasis added.) Therefore, we conclude that the declaration language was not ambiguous and satisfied the statutory requirement.

¶56 Third, the Terhunes argue that the Mansi declaration is insufficient to prove that U.S. Bank had possession of the note because he was an employee of Caliber, not U.S. Bank, and lacked personal knowledge as to whether U.S. Bank actually had possession of the note. However, Caliber was the servicer of the Terhunes' loan and Mansi reviewed Caliber's business records regarding the loan. Therefore, he did have personal knowledge based on that review regarding the promissory note. And there is no requirement that only the holder can present evidence regarding possession of the note. The Terhunes' arguments may go to the weight of Mansi's testimony, but they presented no evidence to refute it.

¶57 We hold that the Terhunes failed to establish a question of material fact as to whether U.S. Bank was the holder of the Terhunes' promissory note and therefore had authority to foreclose on the note. Accordingly, we hold that the trial court did not err in granting U.S. Bank's and Caliber's summary judgment motion with regard to the Terhunes' claims.

D. MOTION FOR RECONSIDERATION

¶58 The Terhunes argue that the trial court erred in denying their reconsideration motion. We disagree.

¶59 CR 59(a) provides nine grounds under which a party can move for reconsideration of a trial court's decision. E.g. , Christian v. Tohmeh , 191 Wash. App. 709, 728, 366 P.3d 16 (2015). Under CR 59(a)(7), a party may argue that there is no evidence or reasonable inference from the evidence to support the trial court's ruling. We review a trial court's decision on a reconsideration motion for an abuse of discretion. Fed. Home Loan Bank of Seattle v. RBS Sec., Inc. , 3 Wash. App. 2d 642, 648, 418 P.3d 168 (2018). A trial court abuses its discretion if its decision is manifestly unreasonable, based on untenable grounds, or unsupported by the record. Id.

¶60 The Terhunes argued on reconsideration that at a minimum U.S. Bank could not recover installment payments not made before October 2010 based on the statute of limitations. On appeal, the Terhunes argue that the trial court erred in rejecting this argument.

¶61 The Terhunes may be correct that the statute of limitations had run on their earlier missed installment payments because the claim on those payments accrued when they were missed. But U.S. Bank was not seeking to "recover" any payments; it was seeking a nonjudicial foreclosure of the Terhunes' property. A trustee's sale is allowed if "a" default has occurred on the secured obligation, RCW 61.24.030(3), and therefore U.S. Bank was entitled to foreclose based on the later missed payments. And the Terhunes generally cannot be held personally liable in a nonjudicial foreclosure action. RCW 61.24.100(1).

Therefore, whether some of the earlier payments were subject to the statute of limitations is immaterial.

¶62 The Terhunes also argued on reconsideration that there was no evidence to support the trial court's summary judgment ruling that U.S. Bank was the holder of the note. However, as discussed above, the evidence showed that U.S. Bank was the holder.

¶63 Accordingly, we hold that the trial court did not err in denying the Terhunes' motion for reconsideration.

E. ATTORNEY FEES ON APPEAL

¶64 U.S. Bank and Caliber request attorney fees on appeal. We may grant an award of reasonable attorney fees under RAP 18.1(a) if allowed under the applicable law. The prevailing party in a breach of contract action can recover reasonable attorney fees if the contract specifically provides for such an award. 4518 S. 256th , 195 Wash. App. at 446, 382 P.3d 1. U.S. Bank and Caliber apparently rely on the attorney fee provision in the promissory note.

¶65 The only provision in the promissory note regarding attorney fees is paragraph 7(E) which states, "If the Note Holder has required [the borrower] to pay immediately in full as described above, the Note Holder will have the right to be paid back by [the borrower] for all of its costs and expenses in enforcing this Note. ... Those expenses include, for example, reasonable attorneys' fees." CP at 96. This provision allows for the recovery of attorney fees only if the note obligations have been accelerated. Because we hold above that the note was not accelerated, U.S. Bank is not entitled to recover attorney fees under the note.

¶66 The Terhunes also request attorney fees and costs on appeal under the note. Because we affirm the trial court's orders, the Terhunes are not entitled to recover attorney fees and costs because they are not the substantially prevailing party.

CONCLUSION

¶67 We affirm the trial court's orders granting U.S. Bank's and Caliber's summary judgment motion and denying the Terhunes' motion for reconsideration.

We concur:

LEE, J.

CRUSER, J.

      The lawsuit also named North Cascade Trustee Services, Inc., the trustee of the deed of trust, as a defendant. North Cascade later was dismissed from the lawsuit.

      The Terhunes also asserted a claim for violation of the Consumer Protection Act, chapter 19.86 RCW. The Terhunes have not appealed the trial court's dismissal of that claim.

      Some courts have adopted a rule that the initiation of nonjudicial foreclosure proceedings tolls the statute of limitations, at least as long as the lender acts diligently in perfecting its remedies. See Cedar W. Owners Ass'n , 7 Wash. App. 2d at 488-89.

      U.S. Bank and Caliber argue that even if the promissory had been accelerated, the statute of limitations was tolled when the first foreclosure action was started. Because we hold that the note was not accelerated, we do not address this issue.

      The Terhunes argue that whether the statute of limitations has expired on earlier missed payments may be relevant if their house sells for more than the outstanding balance of their loan. We do not address whether the statute of limitations would apply to earlier missed payments if U.S. Bank attempts directly or indirectly to recover the amount of those payments in the foreclosure proceeding. Instead, that issue can be addressed in the foreclosure proceeding.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Washington, Respondent, v. James Wrenne Andrew GORMAN-LYKKEN, Appellant.
    No. 51254-8-II
    Court of Appeals of Washington, Division 2.
    Filed August 13, 2019
    PUBLISHED OPINION
   Maxa, C.J.

¶1 James Gorman-Lykken appeals his conviction of second degree rape. He argues that the trial court erred in overruling his objection to having a corrections officer stationed next to the witness stand while he testified.

¶2 We agree that the trial court abused its discretion in allowing the corrections officer to be stationed next to the testifying defendant without analyzing whether case-specific reasons supported the need for that security measure. Accordingly, we reverse Gorman-Lykken's conviction and remand for further proceedings.

FACTS

¶3 The State charged Gorman-Lykken with one count of second degree rape - domestic violence. As charged, the State was required to prove that Gorman-Lykken engaged in sexual intercourse with his girlfriend when she was incapable of consent. RCW 9A.44.050.

¶4 At trial, Gorman-Lykken elected to testify. Before Gorman-Lykken testified, defense counsel objected to the proximity of the corrections officer assigned to Gorman-Lykken while he was on the witness stand. Defense counsel suggested that this procedure was the "usual protocol." 4 Report of Proceedings (RP) at 341. The trial court responded, "Let me just touch base with the corrections officer." 4 RP at 341. The officer stated that "If he's up here, we're up here." 4 RP at 342.

¶5 The trial court then observed that sometimes one to three corrections officers were assigned to a defendant in court and that "[s]ometimes those individuals are large, larger than average." 4 RP at 342. By contrast, the court noted that the corrections officer assigned to Gorman-Lykken was "not one of [our] largest corrections officers, and there's only one of her." 4 RP at 342. The court also stated that "the policy [of] the corrections staff is that ... they are to be in close proximity to somebody who is testifying that's been accused of a crime." 4 RP at 342.

¶6 The trial court's only other discussion of the objection was as follows:

I don't think it's any surprise to the jurors that with the corrections officer what she's doing here, they've seen her throughout the trial. So with his repositioning ... to the witness stand - - I'm sensitive to the concern of - - the concern is I think that, well, we have to have this officer nearby because this person is dangerous, this person is going to run.
I mean, the jury could think many different things, and I think that's the concern that [defense counsel] in part is expressing by bringing the motion to change the position of the corrections officer.

4 RP at 342-43. The court concluded, "I think on the whole I'm comfortable having the officer stay where she's at." 4 RP at 343.

¶7 The jury found Gorman-Lykken guilty of second degree rape. Gorman-Lykken appeals his conviction.

ANALYSIS

¶8 Gorman-Lykken argues that the trial court erred in allowing the corrections officer to be stationed next to the witness stand during his testimony as a security measure. We agree.

A. STANDARD OF REVIEW

¶9 The trial court has broad discretion to make trial management decisions, including "provisions for the order and security of the courtroom." State v. Dye , 178 Wash.2d 541, 547-48, 309 P.3d 1192 (2013). Therefore, we review for an abuse of discretion a trial court's ruling regarding security measures. Id. at 548, 309 P.3d 1192 ; see also State v. Jaime , 168 Wash.2d 857, 865, 233 P.3d 554 (2010). And the abuse of discretion standard applies even if the challenged courtroom procedure allegedly is prejudicial. Dye , 178 Wash.2d at 548, 309 P.3d 1192.

¶10 However, the trial court is required to actually exercise discretion in determining whether a security measure is necessary. State v. Damon , 144 Wash.2d 686, 692, 25 P.3d 418 (2001). Therefore, an abuse of discretion exists if the trial court relies solely on the concerns of a corrections officer in approving a security measure. Id.

Courts have specifically found reversible error where the trial court based its decision solely on the judgment of correctional officers who believed that using restraints during trial was necessary to maintain security, while no other justifiable basis existed on the record.

State v. Finch , 137 Wash.2d 792, 853, 975 P.2d 967 (1999).

B. LEGAL PRINCIPLES - COURTROOM SECURITY MEASURES

¶11 The presumption of innocence is a basic component of a fair trial under our criminal justice system.

Jaime , 168 Wash.2d at 861, 233 P.3d 554. To preserve the presumption of innocence, the defendant is " 'entitled to the physical indicia of innocence which includes the right of the defendant to be brought before the court with the appearance, dignity, and self-respect of a free and innocent [person].' " Id. at 861-62, 233 P.3d 554 (quoting Finch , 137 Wash.2d at 844, 975 P.2d 967 ). Courtroom security measures that single out defendants as particularly dangerous or guilty threaten their right to a fair trial because those measures erode the presumption of innocence. Jaime , 168 Wash.2d at 862, 233 P.3d 554.

¶12 Courts have recognized that certain courtroom security measures are inherently prejudicial. Finch , 137 Wash.2d at 845-46, 975 P.2d 967 (shackling, handcuffing, or other physical restraints; gagging the defendant); Jaime , 168 Wash.2d at 864, 233 P.3d 554 (holding a trial in a jail). Courts must closely scrutinize such measures to ensure that they further essential state interests. Id. at 865, 233 P.3d 554.

¶13 Before allowing an inherently prejudicial security measure, the trial court must make a factual determination that the measure is " 'necessary to prevent injury to those in the courtroom, to prevent disorderly conduct at trial, or to prevent an escape.' " Finch , 137 Wash.2d at 846, 975 P.2d 967 (quoting State v. Hartzog , 96 Wash.2d 383, 398, 635 P.2d 694 (1981) ). This determination must be based on specific facts in the record that relate to the particular defendant. Jaime , 168 Wash.2d at 866, 233 P.3d 554. And inherently prejudicial security measures should be allowed only in "extraordinary circumstances." Finch , 137 Wash.2d at 842, 975 P.2d 967. As a result, the court must consider less restrictive alternatives. Id. at 850, 975 P.2d 967.

¶14 However, these rules apply only to security measures that are inherently prejudicial. No Washington case has imposed a requirement that the trial court make specific findings of necessity of the type mandated in Jaime , Finch , and Hartzog when a security measure is not inherently prejudicial.

¶15 The routine use of security personnel in a courtroom during trial generally is not an inherently prejudicial practice. Holbrook v. Flynn , 475 U.S. 560, 568-69, 106 S. Ct. 1340, 89 L. Ed. 2d 525 (1986). In Holbrook , the United States Supreme Court "counsel[ed] against a presumption that any use of identifiable security guards in the courtroom is inherently prejudicial." Id. at 569, 106 S. Ct. 1340. The Court noted that "the presence of guards at a defendant's trial need not be interpreted as a sign that he is particularly dangerous or culpable." Id. "Our society has become inured to the presence of armed guards in most public places; they are doubtless taken for granted so long as their numbers or weaponry do not suggest particular official concern or alarm." Id. ; see also Jaime , 168 Wash.2d at 863, 233 P.3d 554 (quoting Holbrook , 475 U.S. at 569, 106 S.Ct. 1340 ). As a result, the Court held that the presence of four officers sitting in the front row of the spectator section during trial was not inherently prejudicial. Holbrook , 475 U.S. at 570-72, 106 S.Ct. 1340.

¶16 The Court acknowledged that under certain conditions, the presence of security officers in the courtroom might convey the impression that the defendant is dangerous or untrustworthy. Id. at 569, 106 S. Ct. 1340. But the Court concluded, "In view of the variety of ways in which such guards can be deployed, we believe that a case-by-case approach is more appropriate." Id. ; see also State v. Butler , 198 Wash. App. 484, 494, 394 P.3d 424, review denied , 189 Wash.2d 1004, 400 P.3d 1261 (2017) (quoting Holbrook , 475 U.S. at 569, 106 S.Ct. 1340 ).

C. STATIONING A SECURITY OFFICER NEXT TO A TESTIFYING DEFENDANT

¶17 The question here is whether the trial court erred in allowing the corrections officer to be stationed next to the witness stand during Gorman-Lykken's testimony. We hold that the trial court abused its discretion by failing to analyze whether any case-specific reasons other than the officer's preference supported the need for the security measure.

1. Not Inherently Prejudicial

¶18 Initially, we must determine whether stationing the corrections officer next to the witness stand during Gorman-Lykken's testimony was inherently prejudicial. See Jaime , 168 Wash.2d at 862, 233 P.3d 554. The test is whether the security measure presented an unacceptable risk of impermissible factors coming into play. Id. This test requires consideration of the " 'range of inferences that a juror might reasonably draw' " from the measure. Id. (quoting Holbrook , 475 U.S. at 569, 106 S.Ct. 1340 ). Our consideration is based on " 'reason, principle, and common human experience.' " Butler , 198 Wash. App. at 493, 394 P.3d 424 (quoting Estelle v. Williams , 425 U.S. 501, 504, 96 S. Ct. 1691, 48 L. Ed. 2d 126 (1976) ).

¶19 No published Washington case has considered whether stationing a corrections officer next to the witness stand is inherently prejudicial. In Butler , the court held that the presence of a second jail officer during the victim's testimony was not inherently prejudicial, and instead was innocuous. 198 Wash. App. at 494, 394 P.3d 424. But that case is not helpful because it involved a different factual scenario. Therefore, we turn to cases from other jurisdictions.

¶20 The California Supreme Court held that an officer's "presence at the witness stand during a defendant's testimony is not inherently prejudicial," reasoning under Holbrook that "jurors have become accustomed to seeing security officers in public places such as the courtroom ... and there is a wide range of inferences they may draw from an officer's presence near a testifying defendant." People v. Stevens , 47 Cal. 4th 625, 638, 101 Cal.Rptr.3d 14, 218 P.3d 272 (2009) (citing Holbrook, 475 U.S. at 569, 106 S.Ct. 1340 ). In Stevens , the court rejected the contention that this practice impermissibly singled out the defendant: "Although [an officer's] presence next to a testifying defendant may be viewed as a defendant-focused practice when officers do not accompany other witnesses to the stand, the Supreme Court has made it clear that not 'every practice tending to single out the accused from everyone else in the courtroom must be struck down.' " Id. (quoting Holbrook, 475 U.S. at 567, 106 S.Ct. 1340 ). The court concluded, "That a security practice seems to focus attention on the defendant is not enough, without more, to render the practice inherently prejudicial." Id. at 638, 101 Cal.Rptr.3d 14, 218 P.3d 272.

¶21 Courts in other jurisdictions also have held that the practice of an officer accompanying a defendant to the witness stand was not inherently prejudicial. See People v. Peeples , 205 Ill. 2d 480, 500, 530, 275 Ill.Dec. 870, 793 N.E.2d 641 (2002) (holding the fact that a sheriff's deputy escorted the defendant to and from the witness stand and remained standing behind him during his testimony was not inherently prejudicial); see also Wainwright v. Lockhart , 80 F.3d 1226, 1232 (8th Cir. 1996) (it was not inherently or actually prejudicial for a defendant in a capital case to be escorted and guarded by two officers at the witness stand during the penalty phase of trial); United States v. Williams , 897 F.2d 1430, 1434 (8th Cir. 1990) (defendant was not prejudiced by presence of a uniformed United States Marshal standing next to him at the witness stand).

¶22 Here, the officer had been present throughout trial. There was only one officer, and she did not do anything to draw attention to herself. Gorman-Lykken and the officer moved to and from the witness box outside the presence of the jury. Therefore, we conclude that the officer's presence next to the witness stand while Gorman-Lykken testified was not inherently prejudicial.

2. Requirements for Not Inherently Prejudicial Security Measures

¶23 Finding that the security measure employed here was not inherently prejudicial does not end our inquiry. Washington courts have emphasized that the trial court must actually exercise discretion based on the facts of the case in considering whether to allow a courtroom security measure. Damon , 144 Wash.2d at 692, 25 P.3d 418 ; Finch , 137 Wash.2d at 846, 975 P.2d 967 ; Hartzog , 96 Wash.2d at 400, 635 P.2d 694. And as noted above, simply deferring to the judgment of a corrections officer does not constitute the exercise of discretion. See Damon , 144 Wash.2d at 692, 25 P.3d 418 ; Finch , 137 Wash.2d at 853, 975 P.2d 967.

¶24 No Washington case has discussed in detail the requirements of a trial court's analysis when considering a courtroom security measure that is not inherently prejudicial. For routine security measures such as the presence of officers in the courtroom, no specific inquiry on the record is required for the trial court's exercise of discretion. See Holbrook , 475 U.S. at 566-67, 572, 106 S.Ct. 1340 (rejecting the Court of Appeals' requirement that the trial court expressly consider whether the particular circumstances of the case supported the presence of multiple officers in the courtroom); Butler , 198 Wash. App. at 494, 394 P.3d 424 (not requiring a case-specific analysis for the "innocuous" presence of a second officer during the victim's testimony).

¶25 However, we recognize that the potential for prejudice is greater when a security officer is stationed next to a testifying defendant than when an officer or officers merely are present elsewhere in the courtroom. The court in Holbrook even noted that jurors may not infer anything negative about the presence of security officers "[i]f they are placed at some distance from the accused." Holbrook , 475 U.S. at 569, 106 S.Ct. 1340. Because this security measure is not inherently prejudicial, the court need not make the detailed findings required for inherently prejudicial measures. But given this greater potential for prejudice, the trial court must undertake at least some analysis in this scenario.

¶26 We again refer to California cases for guidance. In Stevens , the court concluded that stationing an officer next to a testifying defendant was not inherently prejudicial but still required that the trial court consider case-specific reasons for allowing the security measure. 47 Cal. 4th at 638, 642, 101 Cal.Rptr.3d 14, 218 P.3d 272.

The court may not defer decisionmaking authority to law enforcement officers, but must exercise its own discretion to determine whether a given security measure is appropriate on a case-by-case basis. ...
The trial court should state its reasons for stationing a guard at or near the witness stand and explain on the record why the need for this security measure outweighs potential prejudice to the testifying defendant.

Id. at 642, 101 Cal.Rptr.3d 14, 218 P.3d 272.

¶27 In People v. Hernandez , the California Supreme Court subsequently held based on Stevens that the trial court abused its discretion where the trial judge "stationed the deputy at the witness stand as a routine practice, and not based on case-specific considerations." 51 Cal. 4th 733, 744, 121 Cal.Rptr.3d 103, 247 P.3d 167 (2011). The court stated,

[T]he record demonstrates that the trial court's decision to station a deputy at the witness stand during defendant's testimony was not based on a thoughtful, case-specific consideration of the need for heightened security, or of the potential prejudice that might result. ... Despite a pointed request from defense counsel, the court refused to make an individualized finding that defendant's behavior warranted this heightened security measure.

Id. at 743, 121 Cal.Rptr.3d 103, 247 P.3d 167. Further, the trial court's remarks showed that the court "was following a general policy of stationing a courtroom officer at the witness stand during any criminal defendant's testimony, regardless of specific facts about the defendant or the nature of the alleged crime." Id.

¶28 We adopt the California approach. Before allowing a security officer to be stationed next to the witness stand when the defendant testifies, the trial court must (1) state case-specific reasons for the need for such a security measure, (2) determine that the need for the security measure outweighs the potential prejudice to the testifying defendant. Stevens , 47 Cal. 4th at 642, 101 Cal.Rptr.3d 14, 218 P.3d 272. And as required under Washington law, the trial court cannot rely solely on the security officer's preference. See Damon , 144 Wash.2d at 692, 25 P.3d 418.

¶29 This approach is consistent with our Supreme Court's discussion in Dye regarding a different courtroom management issue - a witness's use of a support animal while testifying. See 178 Wash.2d at 553, 309 P.3d 1192. The court stated, "[W]e will not overrule the trial court's exercise of discretion unless the record fails to reveal the party's reasons for needing a support animal or if the record indicates that the trial court failed to consider those reasons." Id.

¶30 This approach also is consistent with Holbrook , where the Court stated that a case-by-case approach was appropriate for issues regarding the deployment of guards. 475 U.S. at 569, 106 S.Ct. 1340.

3. Failure to Exercise Discretion

¶31 Here, the trial court did not identify any case-specific reason for allowing the corrections officer to be stationed next to the witness stand when Gorman-Lykken testified. The court identified the potential prejudice, stating that the officer's presence would suggest that Gorman-Lykken was dangerous and was going to run. And the court noted that there was only one officer and that she was not very large. But the court never stated case-specific reasons why this case or this defendant created the need for this security measure. The court simply stated, "I'm comfortable having the officer stay where she's at." 4 RP at 343.

¶32 The only reason that appears in the record for having the corrections officer stationed by the witness stand was the officer's own preference and defense counsel's reference to the "usual protocol." 4 RP at 341-42. Therefore, the record supports the conclusion that the trial court simply deferred its decisionmaking authority and discretion to the corrections officer.

¶33 Accordingly, we hold that the trial court abused its discretion in allowing the corrections officer to be stationed next to the witness stand when Gorman-Lykken testified.

4. Harmless Error

¶34 A claim that a security measure is unconstitutional is subject to a harmless error analysis. State v. Clark , 143 Wash.2d 731, 775, 24 P.3d 1006 (2001). The test is whether the error was harmless beyond a reasonable doubt or whether the evidence of guilt is so overwhelming that a jury could reach no rational conclusion other than guilt. Id. at 775-76, 24 P.3d 1006. The question is whether the security measure "had a substantial or injurious effect or influence" on the verdict. State v. Hutchinson , 135 Wash.2d 863, 888, 959 P.2d 1061 (1998).

¶35 Here, the State does not argue that any error was harmless. And there is no indication that the State could show harmlessness beyond a reasonable doubt. Even though stationing an officer next to the witness stand may not be inherently prejudicial, allowing that measure created a risk that the jury might infer that Gorman-Lykken was dangerous or guilty. The State cannot show beyond a reasonable doubt that stationing the officer next to the witness stand did not influence the jury.

¶36 Further, the evidence of Gorman-Lykken's guilt was not so overwhelming that a guilty verdict was the only rational result. At trial, Gorman-Lykken's girlfriend testified that she had taken medication that essentially put her to sleep and that she had told Gorman-Lykken not to have sex with her while she was asleep. But Gorman-Lykken testified that he asked his girlfriend if she was up for sex, that she verbally agreed, and that she was coherent during the sexual activity. Therefore, the jury was presented with conflicting evidence, not evidence that overwhelmingly established Gorman-Lykken's guilt.

¶37 We hold that the trial court's error in allowing an officer to be stationed next to the witness stand when Gorman-Lykken testified was not harmless.

CONCLUSION

¶38 We reverse Gorman-Lykken's conviction and remand for further proceedings.

I concur:

SUTTON, J.

Melnick, J. (concurrence)

¶39 The State alleged James Gorman-Lykken sexually assaulted his girlfriend of five years, NK, while she slept. A jury found Gorman-Lykken guilty of rape in the second degree-domestic violence.

¶40 I concur with the majority that the court committed error by allowing a corrections officer to station herself next to the defendant while he testified. The court did not make an individualized determination of necessity. Whether or not this error alone requires reversal, I agree with Gorman-Lykken that cumulative error requires the reversal of his conviction. Additional errors included an inaccurate "to convict" jury instruction, as well as several improper statements by the prosecutor in closing arguments. I would reverse Gorman-Lykken's conviction without deciding whether the placement of the corrections officer alone requires reversal.

I. CUMULATIVE ERROR

¶41 Under the cumulative error doctrine, the defendant must show that the combined effect of multiple errors requires a new trial. State v. Clark , 187 Wash.2d 641, 649, 389 P.3d 462 (2017). Cumulative error may warrant reversal, even if each error standing alone would otherwise be considered harmless. State v. Greiff , 141 Wash.2d 910, 929, 10 P.3d 390 (2000) ; State v. Weber , 159 Wash.2d 252, 279, 149 P.3d 646 (2006). A "defendant may be entitled to a new trial when cumulative errors produce a trial that is fundamentally unfair." State v. Emery , 174 Wash.2d 741, 766, 278 P.3d 653 (2012).

¶42 Although the majority concludes that the court's error in allowing a corrections officer to be stationed next to the defendant alone requires reversal, I believe that error is but one of numerous errors whose cumulative effect produced a fundamentally unfair trial. In addition to the error the majority relies on for reversal, other errors raised by Gorman-Lykken include a flawed "to convict" instruction and several instances of improper statements by the prosecutor in closing arguments.

II. JURY INSTRUCTIONS

¶43 Gorman-Lykken argues that the "to convict" instruction violated his due process rights under the Fourteenth Amendment of the United States Constitution and article I, section 22 of the Washington Constitution. He argues that the instruction relieved the State of its burden to prove all the elements of second degree rape beyond a reasonable doubt, and instead allowed the jury to convict him if the prosecutor proved either of the elements. I agree.

¶44 "[A] 'to convict' instruction must contain all of the elements of the crime because it serves as a 'yardstick' by which the jury measures the evidence to determine guilt or innocence." State v. Smith , 131 Wash.2d 258, 263, 930 P.2d 917 (1997). A jury instruction is erroneous if it relieves the State of its burden to prove every element of a crime. State v. DeRyke , 149 Wash.2d 906, 911-12, 73 P.3d 1000 (2003). Reversal is required when an "omission or misstatement in a jury instruction relieves the State of its burden" of proving every essential element of the crime. State v. Brown , 147 Wash.2d 330, 339, 58 P.3d 889 (2002). "A reviewing court may not rely on other instructions to supply an element missing from the 'to convict' instruction." DeRyke , 149 Wash.2d at 910, 73 P.3d 1000 ; State v. Nelson , 191 Wash.2d 61, 74, 419 P.3d 410 (2018).

¶45 At trial, the court instructed the jury on the elements of the crime. Neither party objected to or took exception to the court's "to convict" instruction which stated,

To convict the defendant of the crime of Rape in the Second Degree, each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about July 5, 2017, the defendant engaged in sexual intercourse with [NK];
(2) That the sexual intercourse occurred when [NK] was incapable of consent by reason of being physically helpless or mentally incapacitated; and ;
(3) That the acts occurred in the State of Washington.
If you find from the evidence that either (1), (2), and (3), has been proved beyond a reasonable doubt, then it will be your duty to return a verdict of guilty.
On the other hand, if, after weighing all of the evidence, you have a reasonable doubt as to any one of these elements, then it will be your duty to return a verdict of not guilty.

Clerk's Papers (CP) at 29 (emphasis added).

¶46 This instruction contained a clear error. It stated that if the jury found "that either [elements] (1), (2), and (3), has been proved beyond a reasonable doubt," the jury should return a guilty verdict. CP at 29 (emphasis added). It should have stated that in order to return a guilty verdict, the jury had to find all three elements beyond a reasonable doubt.

¶47 This instruction relieved the State of its burden to prove every element of the crime beyond a reasonable doubt. Although it listed all of the elements of the crime, it did not require the jury to find all of the elements to return a guilty verdict. This error, together with the other errors discussed by the majority and below, demonstrate that Gorman-Lykken did not receive a fair trial.

III. IMPROPER PROSECUTORIAL ARGUMENT

¶48 Gorman-Lykken argues that prosecutorial misconduct deprived him of a fair trial because the prosecutor's closing argument and rebuttal improperly impugned defense counsel, misstated the defense theory, and misstated the law.

¶49 To prevail on a claim of prosecutorial misconduct, a defendant must show that the prosecutor's conduct was both improper and prejudicial. In re Pers. Restraint of Glasmann , 175 Wash.2d 696, 704, 286 P.3d 673 (2012). In assessing whether a prosecutor's closing argument was improper, this court recognizes that the prosecutor has "wide latitude to argue reasonable inferences from the evidence, including evidence respecting the credibility of witnesses." State v. Thorgerson , 172 Wash.2d 438, 448, 258 P.3d 43 (2011). Where the "cumulative effect of repetitive prejudicial prosecutorial misconduct" is "so flagrant that no instruction or series of instructions can erase their combined prejudicial effect," we must reverse. State v. Walker , 164 Wash. App. 724, 737, 265 P.3d 191 (2011).

¶50 It is improper for a prosecutor to impugn opposing counsel's role or integrity. State v. Lindsay , 180 Wash.2d 423, 431-32, 326 P.3d 125 (2014). Prosecutorial statements that malign defense counsel are impermissible because they can damage a defendant's opportunity to present his or her case. Lindsay , 180 Wash.2d at 432, 326 P.3d 125. But comments that "can fairly be said to focus on the evidence" do not constitute misconduct. Thorgerson , 172 Wash.2d at 451, 258 P.3d 43.

¶51 In addition, improper remarks made in rebuttal are not reversible error " 'if they were invited or provoked by defense counsel and are in reply to his or her acts and statements.' " State v. Thierry , 190 Wash. App. 680, 690, 360 P.3d 940 (2015) (quoting State v. Russell , 125 Wash.2d 24, 86, 882 P.2d 747 (1994) ).

A. Impugning Defense Counsel

¶52 Gorman-Lykken contends the prosecutor improperly argued the defense attorney lied in closing arguments.

¶53 Defense counsel stated during closing argument that

Obviously, he's [NK's] brother, and so there is that relationship between them that siblings all have. They're going to stick up for one another. [Her brother] never came forward to law enforcement, whether police officers or anyone on the prosecution team until the day before trial. That's significant. If he had something to say in this regard, wouldn't it make sense that he would have reached out to law enforcement including the prosecution team sooner than the day before trial?

Report of Proceedings (RP) (Sept. 15, 2017) at 427-28.

¶54 The prosecutor then stated during rebuttal:

[D]efense counsel makes this inaccurate statement that the day before trial [NK's brother] was contacted or came forward. It's not true. [He] was contacted and came forward much earlier than the day before yesterday. That's an inaccuracy. That's plain false. That came out in testimony. It's plain false. It's as false as the accusations or testimony that the defendant gave.[ ]

RP (Sept. 15, 2017) at 440.

¶55 A prosecutor is entitled to fairly respond to defense's counsel's arguments and criticisms of the State's case. Thorgerson , 172 Wash.2d at 450, 258 P.3d 43. But the prosecutor was incorrect that defense counsel's statement about when the brother came forward was false. NK's brother testified on cross-examination that the first time he had spoken to law enforcement or the prosecution was "[j]ust recently." RP (Sept. 14, 2017) at 238. On re-cross-examination, he affirmatively stated that the first time he had "mentioned anything about this [case] to anyone connected with law enforcement was two days ago." RP (Sept. 15, 2017) at 386. The prosecutor improperly argued that Gorman-Lykken's lawyer made a false statement.

B. Misstating Defense Theory in Rebuttal

¶56 Gorman-Lykken also argues that, during rebuttal, the prosecutor mischaracterized his defense theory.

¶57 Defense counsel explained in closing that if Gorman-Lykken established by a preponderance of the evidence that he reasonably believed NK was not mentally incapacitated or physically helpless, then the jury could find him not guilty. Defense counsel then made several arguments casting doubt on NK's credibility. Defense counsel also argued that because NK's blood test results were not admitted at trial, the jury should have questions about what sort of substances a pharmacologist might have found in her blood, and what effect a stimulant like Adderall would have in tandem with depressants.

¶58 Defense counsel also reminded the jury that Gorman-Lykken testified "about abuse of Oxycodone and abuse of Adderall by both he and [NK] and the history that they had of doing that. Shattering pills and snorting them to get a quick hit ... [the prosecutor] could have called [NK] to the witness stand to rebut that. He didn't do it." RP (Sept. 15, 2017) at 434. And defense counsel argued,

If you're looking at a trend, a habit of drug abuse involving those two drugs, Oxycodone and Adderall, in other words, an opioid and a central nervous system stimulant, all bets are off ... about what that really is going to mean in someone's brain, and that has everything to do with how somebody might be if they have taken a whole cocktail of drugs like Oxycodone, Gabapentin, and alcohol, but at the same time they're under the influence of an amphetamine-type stimulant.

RP (Sept. 15, 2017) at 435.

¶59 The prosecutor responded in rebuttal, "According to the defendant-and his theory is basically this-that drug addicts can't be raped, and that's not true and that's not fair." RP (Sept. 15, 2017) at 443.

¶60 It is improper for a prosecutor to "misrepresent[ ] defense counsel's argument in rebuttal, effectively creating a straw man easily destroyed in the minds of the jury." Thierry , 190 Wash. App. at 694, 360 P.3d 940. But a prosecutor is entitled to fairly respond to defense's counsel's arguments and criticisms of the State's case. Thorgerson , 172 Wash.2d at 450, 258 P.3d 43.

¶61 Here, the prosecutor mischaracterized defense counsel's argument. Defense counsel's comments cannot fairly be interpreted as arguing that NK could not be raped because she was a drug addict. His statements about drug use were in the context of his argument that there were reasonable doubts regarding NK's mental incapacity and physical helplessness. He emphasized that there was "uncertainty about exactly what [NK's] mental state was." RP (Sept. 15, 2017) at 434. Defense counsel's argument was that nobody knew whether the combination of drugs that NK had taken would affect her ability to give consent to sex.

¶62 The court erred by failing to consider the prejudicial effect of the uniformed guard standing next to the Gorman-Lykken while he testified. The court erred by instructing the jury with an incorrect "to convict" jury instruction. The prosecutor made numerous improper comments in closing arguments. Because the cumulative errors in this trial produced a fundamentally unfair trial, I would reverse the conviction on that basis.

      Gorman-Lykken also argues that (1) the trial court erred in denying his motion for a continuance, (2) an admitted error in the to-convict instruction requires reversal, (3) the prosecutor engaged in misconduct, (4) cumulative error deprived him of a fair trial, and (5) the criminal filing fee imposed on him at sentencing should be stricken. Because we reverse on other grounds, we do not address these arguments.

      Gorman-Lykken also argues that the prosecutor improperly expressed a personal opinion that Gorman-Lykken lied during his testimony and improperly commented that the victim was "on trial." Br. of Appellant at 40. I do not suggest a resolution on these issues because the other improper arguments made by the prosecutor, along with the other errors in this case, amount to cumulative error necessitating reversal. Cf. State v. Copeland , 130 Wash.2d 244, 922 P.2d 1304 (1996) with State v. Reed , 102 Wash.2d 140, 684 P.2d 699 (1984).

      Because I suggest reversal based on cumulative error, I need only decide that the prosecutor's argument was improper. Because Gorman-Lykken did not object to the prosecutor's comments, the normal test would be to determine if the argument was "so flagrant and ill intentioned that an instruction could not have cured the resulting prejudice." Emery , 174 Wash.2d at 760-61, 278 P.3d 653. The defendant would then have to show that no curative instruction would have eliminated the prejudicial effect, and the misconduct resulted in prejudice that had a substantial likelihood of affecting the verdict. Emery , 174 Wash.2d at 761, 278 P.3d 653. However, "the cumulative effect of repetitive prejudicial prosecutorial misconduct may be so flagrant that no instruction or series of instructions can erase their combined prejudicial effect." State v. Walker , 164 Wash. App. 724, 737, 265 P.3d 191 (2011). Accordingly, rather than consider whether each improper comment was flagrant or ill-intentioned, I consider the cumulative effect of all the prosecutor's improper statements together, along with the other errors.

      This statement is different from the one where the prosecutor argued that Gorman-Lykken lied.