State Of Washington v. Nen Than Phan ( 2016 )


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    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON                                <==>
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    STATE OF WASHINGTON,                                                                  =o        o§
    DIVISION ONE                    1
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    Respondent,
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    No. 72935-7-1                  JC         nr>>C
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    UNPUBLISHED OPINION            O
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    NEN THAN PHAN,
    Appellant.                              FILED: April 4, 2016
    Dwyer, J. — Nen Than Phan was convicted as charged on 15 counts. On
    appeal, he contends (1) that the trial court erred by refusing to sever the 11 sex
    offense counts from the 4 possession of child pornography counts, (2) that the
    trial court erred by denying his motion for a Franks1 hearing, (3) that a search
    warrant was supported by stale evidence and should not have been issued, (4)
    that the trial court violated his right to an impartial jury by denying his for-cause
    challenge to juror 14, (5) that the trial court improperly restricted his cross-
    examination of one of the alleged victims, A.P., and, thus, violated his Sixth
    Amendment right to confront the witness, (6) that the trial court erred by allowing
    an employee of the Whatcom County Prosecutor's Office to testify as an expert
    1Franks v. Delaware. 
    438 U.S. 154
    , 
    98 S. Ct. 2674
    , 
    57 L. Ed. 2d 667
     (1978).
    No. 72935-7-1/2
    witness, and (7) that insufficient evidence supports the jury's verdict of guilty on
    count 9, a child molestation in the first degree charge involving A.D. Finding no
    error, we affirm.
    I
    Phan was born on May 13, 1958. In early 2013, he resided in Bellingham
    with his wife Kim,2 their two daughters, A.P, age 15, K.P, age 8, and Kim's
    parents. Following a trip to Vietnam in February of that year, Kim decided to
    divorce Phan.
    Shortly thereafter, A.P. accompanied Kim to the house of Donald Jones, a
    family friend, to discuss filling out the divorce paperwork. While there, A.P.
    disclosed to Kim, Jones, and Jones's wife that Phan had been sexually abusing
    her "for about five years." Following A.P.'s disclosure, Jones telephoned the
    police.
    The case was eventually assigned to Detective Darla Wagner ofthe
    Bellingham Police Department. Detective Wagner had "[ijnnumerable"
    conversations with A.P., during which A.P. recounted the details ofthe sexual
    abuse by Phan. In addition, A.P. reported that she had seen Phan download
    pornography onto compact disks, that he would mark the compact disks
    containing pornography with an "X-X-X," and that she had often been subjected
    to watching pornography with Phan before having sexual contact with him. A.P.
    also expressed concern that K.P. may have been sexually abused by Phan. K.P.
    later spoke with law enforcement officials and confirmed that she was also a
    2For clarity, we refer to Phan's wife by her first name, Kim.
    -2-
    No. 72935-7-1/3
    victim of sexual abuse by Phan. During those conversations, K.P. revealed that
    her friend, A.D., was also a victim. A.D. later spoke with a law enforcement
    official and confirmed that on one occasion, when she had slept over at K.P.'s
    house, Phan had touched her "[p]rivate parts."
    Detective Wagner utilized information from the interviews to obtain two
    separate search warrants for the Phan residence.3 In executing these warrants,
    the police seized numerous items from the house including bedding, a black bag
    containing sex toys and lubricants, computers, cellular telephones, and compact
    disks.
    By fourth amended information, the State charged Phan with 15 offenses:
    5 counts of rape of a child in the first degree, 4 counts of rape of a child in the
    third degree, 2 counts of child molestation in the first degree, and 4 counts of
    possession of child pornography. In addition, the State charged two aggravating
    factors pursuant to RCW 9.94A.535: (1) that Phan had committed multiple
    current offenses and that his high offender score would result in some offenses
    going unpunished; and (2) that the offense was part of an ongoing pattern of
    sexual abuse of the same victim underthe age of 18 years, manifested by
    multiple incidents over a prolonged period of time. The charged offenses
    involved three alleged victims: A.P., K.P., and A.D.
    Before trial, Phan both moved to severthe 4 counts of possession of child
    pornography from the 11 sex offense counts, desiring that they be tried
    3The record reflects that Detective Wagner established a basis for probable cause in
    support of the search warrant at issue, in part, on information that she had received in two
    separate conversations with A.P., one on March 29, 2013, and another on April 3.
    No. 72935-7-1/4
    separately, and moved to suppress certain evidence that was seized from his
    residence during the execution of a search warrant, requesting that the trial court
    conduct a Franks hearing.
    In July 2014, the parties appeared before the trial court to address
    preliminary matters. After hearing the argument of counsel, the trial court denied
    both of Phan's motions.
    On September 16, the case proceeded to trial. During voir dire, Phan
    moved to excuse juror 14 for cause. The judge denied the request. Phan then
    excused juror 14 by exercising a peremptory challenge.
    Two days later—at the beginning of the second day of trial—
    Phan's counsel orally expressed a desire for the State to clarify the
    evidence that it intended to present to the jury on the possession of child
    pornography charges.
    MR. SUBIN [Defense Counsel]: Well, the only other issue that
    I'd like to address this morning is not a motion that I filed, but I
    would like to address discovery regarding the child pornography
    images. I have had an opportunity to look at some ofthat stuff but I
    still am not, I have not been apprised about what images the State
    intends to use[.] Ithink this issue was raised at the severance. I've
    asked along with the severance motion for the Court to conduct an
    in camera review of some of these witnesses, we'll get into that
    when we argue it. Aside from the severance issue I think we're
    entitled to a better idea what images the State intends to show the
    jury before we do opening statements.
    THE COURT: Has the State identified the images it intends to
    show?
    MR. SAWYER [Prosecutor]: In the affidavit of probable cause we've
    identified the videos in which the images appear, yes.
    THE COURT: All right. We may discuss this in more detail
    -4-
    No. 72935-7-1/5
    THE COURT: What is the issue in what the State intends to present
    as I understand it is evidence relating to four counts of possession
    of child pornography and the child pornography that will be
    introduced in support of the State's case on those four counts will
    be four different video images or sequences contained on a total of
    three DVD's; is that correct?
    MR. SAWYER: No, one DVD that had 32 different videos on it and
    we have selected 3 of those videos for our charging purposes of
    the 4 counts. One is with the one that had the title "many girls 12 to
    14 having sex experiences et cetera," that is a video that shows, I
    don't know how many, but clip attached] to clip attached] to clip
    attached to clip. It's like a montage of ongoing videos of different
    girls appearing to be roughly 12 to 14 years old.
    THE COURT: So that one title has constant images of many
    different people?
    MR. SAWYER: Correct. And we perhaps could have counted up all
    those different subjects and had, Idon't know if it would have been
    10 or 20 just on one video, but we didn't do that. We picked two of
    those and one from each of the other two videos that I've talked
    about.
    THE COURT: I'm sorry, I'm still confused. You've got four charges.
    MR. SAWYER: Right.
    THE COURT: And how many video clips total that you intend to
    show to the jury?
    MR. SAWYER: If I show the video clips there are three that I would
    draw, if I show the video clips or portions thereof it would be those
    three that I would draw from. We're not asking or intending to play
    any of the other titles on that disk, in fact, I've asked BPD
    [Bellingham Police Department], I believe they have done so at this
    point, to copy those three titles on to a separate disk so we can use
    that for court presentation if necessary and not have to use a disk
    that has all 32 videos on them because I don't want to have to
    -5
    No. 72935-7-1/6
    introduce [into] evidence 32 videos when we've only charged from
    3 of those. Does that make sense?[4]
    THE COURT: I think so. And 3 clips will support 4 charges that
    must mean that one clip is going for support 2 different charges; is
    that correct?
    MR. SAWYER: That's correct.
    THE COURT: And the 3 clips that the, so the State has identified
    the 3 clips it's going to use?
    MR. SAWYER: Yes.
    THE COURT: It just doesn't know yet whether it's going to present
    them in their entirety or present portions of them or present still
    images from them; is that right?
    MR. SAWYER: Or perhaps just presenting descriptions of them by
    other witnesses who have viewed them.
    THE COURT: At this point Ijust want to be sure that discovery has
    been complete and Defense counsel has been able to see not just
    the three clips that the State has currently identified as the
    evidence in support of the four charges, but also any other clips
    that may be pertinent.
    MR. SAWYER: And I've told Mr. Subin he can view whatever he
    wants and, that we have. And --
    THE COURT: So that would be all 32 clips on the one DVD and
    what about other DVD's, are there other DVD's that the State may
    be relying on.
    MR. SUBIN: It sounds like there are.
    MR. SAWYER: Again, as far as showing to the jury I do not intend
    to show any other DVD's or any or videos on this particular DVD,
    just the three that the charges stem from.
    4The record indicates that, when the jury later viewed the videos, it viewed the videos
    from the original disk that was seized from Phan's residence.
    -6-
    No. 72935-7-1/7
    THE COURT: Okay. But it sounds like if the Defendant were to
    says [sic] for example that I didn't know that this DVD had this
    particular clip on it and were to say that about the DVD that has the
    32 videos which the State has identified three, if the Defendant
    were to say that then the State wants to reserve its right to bring
    into evidence, or at least to bring in testimony, regarding other DVD
    clips found at the Defendant's residence that contain that same clip
    that he has testified he didn't know he had; is that right?
    MR. SAWYER: Same or similar, yes, I think that just makes sense.
    THE COURT: Okay. I do too and I think the State certainly should
    be permitted to do that. My goal here is to avoid surprise as much
    as possible. And we're kind of off on another subject now, this isn't
    just regarding the motion to sever. Ijust want to be sure that the
    Defense has the opportunity to see any video that may be at issue
    because it sounds like whether it's in this trial or another trial there
    will be some factual dispute about the content of those videos.
    So Ijust want to be sure that I know what the Defense has
    seen and it sounds like the Defense has seen or had an opportunity
    to see all 32 clips on the DVD the State has identified as its primary
    DVD.
    MR. SAWYER: They have had that opportunity.
    THE COURT: And you agreed you have had that opportunity, Mr.
    Subin?
    MR. SUBIN: I mean, I guess. Maybe the detective can clarify that
    the DVD we were looking at is the one that we're talking about
    here. I don't even know that. I don't think it complies with discovery
    for them to say we've got hundreds of disks, we've got computers
    and thumb drives, all this stuff, go to [the] police department and
    have at it and review it all. It's overwhelming.
    It's, frankly, not possible for me to go in there and watch
    every piece ofevidence that they took from his house and Idon't
    think that complies with the discovery rules. Ithink I have a right to
    know what they are going to show the jury and I think it has been
    now clarified, now in the second day of trial it has been clarified
    now to where if it's limited to a disk that I did view with the
    detective, you know, Ithink I have been provided fair access to that
    disk and I accept Mr. Sawyer saying he can't narrow it down any
    better than that.
    7-
    No. 72935-7-1/8
    So I guess from a discovery standpoint, you know, at this
    point there is not much that can be done about that to further clarify
    what evidence is actually going to be presented at the trial.
    That same day, the court considered Phan's motion for
    reconsideration of its ruling denying severance of the 11 sex offense
    counts from the 4 possession of child pornography counts. The trial court
    adhered to its prior ruling.5
    At trial, the jury heard from 20 witnesses. The State called sexual assault
    case specialist Joan Gaasland-Smith, employed by the Whatcom County
    Prosecuting Attorney's Office, as an expert witness. Gaasland-Smith testified
    that she holds "two bachelor's degrees and a master[']s degree in social work"
    and that, at the time of trial, she was a licensed independent clinical social
    worker. In addition, she stated that she had previously been a therapist in private
    practice where she counseled child and adult sexual assault victims, and that she
    had previously taught courses in child abuse and neglect at a local university.
    Gaasland-Smith explained that in her current role at the prosecutor's office she
    had reviewed "more than 3,000" sexual assault cases. Based on her education
    and experience, the court concluded that she was qualified to testify as an
    expert.
    Once qualified, Gaasland-Smith offered testimony regarding general
    sexual abuse tendencies in children, relying on statistics and literature from an
    expert in the field. Phan's counsel interposed several objections to Gaasland-
    5 Phan renewed his motion to sever once again during trial and the trial court again
    adhered to its ruling.
    -8-
    No. 72935-7-1/9
    Smith's testimony. He argued that Gaasland-Smith was not an expert, that her
    testimony amounted to generalities, and that it was irrelevant and highly
    prejudicial. In response, the trial court asked the prosecutor "to focus [his]
    questions on children's reactions." The trial court then instructed the jury both
    that "any remark [that] the witness has made about perpetrators you should know
    that that [sic] is in, that's background information, it's not about Mr. Phan, who is
    not a perpetrator, has not been established to be a perpetrator in this case or any
    case, that is the presumption of innocence still applies" and that it must
    "understand [Gaasland-Smith's] testimony, please, as being general background
    information on the issues of disclosure rather than any facts about this particular
    case."
    The State also called Detective Wagner, who testified about the child
    pornography that was seized from Phan's home. She testified that one disk on
    which child pornography was found was seized from a downstairs guest bedroom
    and that she had "viewed each, [ ] viewed every, all 32 files on that disk." When
    asked to describe the titles of the files that appeared on the disk, Detective
    Wagner opined, "I would describe them as very sexually explicit in the nature of
    listing various sexual acts and/or various ages of individuals anywhere from
    minors to specific ages of 13, 14, 15 to adult."
    Detective Wagner then listed the titles and described the content of each
    of the three videos on the disk upon which the charged offenses were based.
    The first video was entitled "R@ygold style R3T3 many girls from 12 YO to 14
    YO having sex experiences." Detective Wagner explained that this video
    -9-
    No. 72935-7-1/10
    depicted "[generally two young females undressing sitting on a daybed and then
    progressing to what appears to be a male hand playing with their genitals." The
    second video was entitled, "15 YO gets raped, hymen visibly penetrated kiddy
    little girl young kiddyporn realkiddy child sex b.mpg." Detective Wagner
    explained that upon viewing this video she "immediately noted a child that
    appears in stature to be approximately under the age of four being vaginally
    penetrated by a male penis."6 The third video was entitled, "PJK 12 YO boy
    fucks 12 YO girl kiddie pedo Lolita R@ygold underage.mpg." Detective Wagner
    explained that in this video she "observed two, a male and a female by stature
    and demeanor and development appear to be under the age of 18 involved in
    sexual intercourse." These videos were later viewed by the jury.
    The jury also heard testimony from each ofthe alleged victims. On cross-
    examination of A.P., the trial court permitted Phan to inquire into whether A.P.
    had testified that she had never had sex with her boyfriend but restricted any
    inquiry into further details of this alleged sexual relationship.7 A.D. testified that
    she was born on January 19, 2004, detailed Phan's act of molestation, and
    stated that the last time that she spent the night at Phan's house was "at the age
    [of] eight or nine."
    6At trial, Detective Wagner agreed that the approximate 4 year old appearance of the
    child in the video was inconsistent with the title of the video, which indicated that the child was 15
    years old.
    7The trial judge granted a motion in limine to limit testimony about A.P.'s sexual history
    pursuant to the rape shield statute, RCW 9A.44.020. However, the trial judge permitted inquiry at
    trial as to whether A.P. had a boyfriend and any asserted conflict within her family overthat fact.
    -10-
    No. 72935-7-1/11
    The jury found Phan guilty of all counts. The jury also found that both
    aggravating factors had been proved. The court sentenced Phan to an
    indeterminate term of imprisonment, ranging from a minimum of 480 months of
    confinement to a maximum of life. He now appeals.
    II
    Phan first contends that the trial court erred by denying his motion to
    sever. We disagree.
    Under CrR 4.3's "liberal" joinder rule, the trial court has considerable
    discretion to join two or more offenses of "the same or similar character, even if
    [they are] not part of a single scheme or plan." CrR 4.3(a)(1); State v.
    Eastabrook, 
    58 Wn. App. 805
    , 811, 
    795 P.2d 151
     (1990). Nevertheless, offenses
    properly joined under CrR 4.3(a) may be severed "if 'the [trial] court determines
    that severance will promote a fair determination of the defendant's guilt or
    innocence of each offense.'" State v. Bvthrow, 
    114 Wn.2d 713
    , 717, 
    790 P.2d 154
     (1990) (quoting CrR 4.4(b)). Adefendant seeking severance has the burden
    of demonstrating that "a trial involving both counts would be so manifestly
    prejudicial as to outweigh the concern for judicial economy." Bythrow, 
    114 Wn.2d at 718
    . Prejudice may result from joinder where the defendant is
    embarrassed or confounded by the presentation ofseparate defenses, or if a
    single trial invites the jury to cumulate the evidence to find guilt or infer criminal
    disposition. State v. Russell. 
    125 Wn.2d 24
    , 62-63, 
    882 P.2d 747
     (1994).
    In determining whether the potential for prejudice requires severance, a
    trial court must consider four factors that may "offset or neutralize the prejudicial
    -11 -
    No. 72935-7-1/12
    effect of joinder": (1) the strength of the State's evidence on each count, (2) the
    clarity of defenses as to each count, (3) the court's instructions to the jury to
    consider each count separately, and (4) the potential cross-admissibility of
    evidence on the other charges even if they were tried separately. Russell, 
    125 Wn.2d at 63
    ; State v. Sanders, 
    66 Wn. App. 878
    , 885, 
    833 P.2d 452
     (1992).
    "[A]ny residual prejudice must be weighed against the need for judicial economy."
    Russell, 
    125 Wn.2d at 63
    . We review a trial court's denial of a CrR 4.4(b) motion
    to sever counts for a manifest abuse of discretion. Bvthrow. 
    114 Wn.2d at 717
    ;
    State v. Bryant, 
    89 Wn. App. 857
    , 864, 
    950 P.2d 1004
     (1998).
    In denying Phan's motion to sever the 11 sex offense counts from the 4
    possession of child pornography counts, the trial court concluded that the counts
    could not be easily separated "given the role that the pornography played in this
    case in the grooming process." The court elaborated by stating that, "the victim
    in this case [A.P.] alleges that watching pornography together was something
    that she was required to do and that it often led to sexual encounters or [that]
    sexual encounters followed the watching of the pornography." Ultimately-
    relying on the doctrine of res gestae8—the trial court ruled:
    Ithink it would be very difficult to present the fact[ual] background
    into either the pornography charges or the abuse charges to a jury
    in a way that did not refer to the other charges in a potentially
    prejudicial manner and that's simply because of the facts in the
    8Testimony may be admissible as res gestae evidence "'if it is so connected in time,
    place, circumstances, or means employed that proof of such other misconduct is necessary for a
    complete description of the crime charged, or constitutes proof of the history of the crime
    charged '" State v. Schaffer. 
    63 Wn. App. 761
    , 769, 
    822 P.2d 292
     (1991) (quoting 5 Karl B.
    Tegland, Washington Practice: Evidence § 115, at 398 (3d ed.1989)), affd, 
    120 Wn.2d 616
    ,
    845 P2d 281 (1993) Res gestae evidence is admissible "in order that a complete picture be
    depicted for the jury." State v. Tharp. 
    96 Wn.2d 591
    , 594, 
    637 P.2d 961
     (1981).
    12
    No. 72935-7-1/13
    case and how that, how the events occurred. So I'm not prepared
    to sever the cases at this point and so this case will go forward with
    all counts included.
    On reconsideration, the trial court reiterated its reliance on the doctrine of
    res gestae:
    I'm going to deny the motion for severance. It's a difficult
    decision, I think it's close, but given the fact that the viewing of
    some pornography, including perhaps child pornography, I don't
    know, with [the] victim [A.P.] was a part of [the] grooming process.
    I continue to believe that the pornography charges are part of the
    res gestae or part of the big picture that covers all of the offenses in
    the case so I'm going to deny the motion to reconsider on that
    basis.
    Phan relies on State v. Sutherbv, 
    165 Wn.2d 870
    , 
    204 P.3d 916
    (2009), in contending that the trial court erred and for the proposition that
    evidence of child pornography is so inherently inflammatory that—in
    virtually all cases—all possession of child pornography counts must
    always be severed from any and all other charges. But Sutherbv does not
    compel the resolution that Phan urges.
    Indeed, the situation in Sutherbv was much different. First, in
    Sutherbv, there was no evidentiary or testimonial connection between the
    child rape and molestation charges, on the one hand, and the child
    pornography charges, on the other. Nevertheless, in that case, "the State
    consistently argued that the presence of child pornography on Sutherby's
    computers proved he sexually abused his granddaughter, stating it 'shows
    his motive; why he touched L.K.'" Sutherbv, 165 Wn.2d at 885. Thus, the
    -13
    No. 72935-7-1/14
    State argued, "[w]e know he is predisposed to touching children in a
    sexual manner." Sutherbv, 165 Wn.2d at 886.
    Second, Sutherby's jurywas given "no limiting instruction directing
    the jury that the evidence of one crime could not be used to decide guilt
    for a separate crime." Sutherbv, 165 Wn.2d at 886.
    Third, the prosecution contended that the child pornography
    evidence was "admissible to show the absence of mistake or accident."
    Sutherbv, 165 Wn.2d at 886. The Supreme Court disagreed, reasoning
    that, "[a]s offered here, the evidence would merely show Sutherby's
    predisposition toward molesting children." Sutherbv, 165 Wn.2d at 886.
    Thus, the court concluded, "it is highly likely that evidence ofSutherby's
    possession of the child pornography would have been excluded in a
    separate trial for child rape and molestation." Sutherbv, 165 Wn.2d at
    886.
    As will be discussed below, none of these deficiencies are present
    herein. First, a connection between the sex abuse counts and
    pornography (both child and adult) was setforth in the testimony. Indeed,
    testimony was abundant that Phan repeatedly required A.P. to view both
    types of pornography (including photos of herself) in the course of carrying
    out his sexual attacks on her. Second, Phan's jury was properly instructed
    on the need to separate the evidence on the various counts and to decide
    each count separately. Finally, as to the sexual abuse counts, the State
    did not treat the child pornography evidence as establishing a propensity
    -14-
    No. 72935-7-1/15
    or as material to mistake or accident. Instead, the evidence was deemed
    admissible as part of the res gestae of Phan's various crimes against A.P.
    This case is not at all like Sutherbv.
    Indeed, the record shows that the trial court correctly applied the
    four-part test for severance. On the first factor, the strength of the State's
    evidence, the State's case was strong on all counts. "When one case is
    remarkably stronger than the other, severance is proper." State v.
    MacDonald, 
    122 Wn. App. 804
    , 815, 
    95 P.3d 1248
     (2004). Phan claims
    that because he essentially had no defense to the child pornography
    charges, severance was required. But that is not so. Here, the personal
    testimony of the three alleged victims, 16, 10, and 9 years of age at the
    time of trial, was presented. Also presented was testimony that during the
    search of Phan's house, his little black bag, as described by A.P.,
    containing sex toys and lubricant was located. A.P.'s mother testified that
    she was not sexually active with Phan (eliminating her as Phan's possible
    partner in need of the lubricant or for whom the sex toys were intended).
    Medical testimony, supporting A.P.'s testimony concerning sexual abuse,
    was presented. Donald Jones, the family friend, also testified to Phan's
    unusual behavior with his daughters - including instances of atypical
    hugging, kissing, and biting. In sum, the evidence on all counts was
    strong.
    As to the second factor, clarity of defenses, Phan argues that he offered
    differing defenses to the two groups of charges, specifying that while he denied
    -15-
    No. 72935-7-1/16
    engaging in sexual contact with any of the alleged victims of the sex abuse
    charges his defense to the possession of child pornography charges was either
    that A.P. had planted the pornography in Phan's house or no defense at all.
    Severance may be proper when a defendant is "'embarrassed or confounded in
    presenting separate defenses.'" Russell, 
    125 Wn.2d at 62-63
    ; Bvthrow, 
    114 Wn.2d at 718
     (internal quotation marks omitted) (quoting State v. Smith, 
    74 Wn.2d 744
    , 755, 
    446 P.2d 571
     (1968)). Here, Phan was not "embarrassed or
    confounded" in presenting a defense. In fact, his defense—general denial—was
    the same as to all charges. His defenses were not inconsistent. They were just
    weak.
    Regarding the third factor, the trial court's instructions to the jury, the jury
    was properly instructed that "[a] separate crime is charged in each count. You
    must decide each count separately. Your verdict on one count should not control
    your verdict on any other count." Appellate courts have repeatedly found this
    instruction sufficient to mitigate prejudice resulting from joinder. See, e^,
    Bvthrow, 
    114 Wn.2d at 723
    ; State v. Cotten. 
    75 Wn. App. 669
    , 688, 
    879 P.2d 971
    (1994).9
    Regarding the last factor, the cross-admissibility of evidence, the trial court
    ruled that use of pornography—both child and adult—was part of the res gestae
    of Phan's sexual attacks on A.P. Indeed, A.P. testified that she was often
    9Phan contends that, where child pornography is involved, this instruction is always
    ineffective and we should eliminate this aspect ofthe analysis. As this analysis is mandated by
    our Supreme Court, we decline to do so.
    -16-
    No. 72935-7-1/17
    subjected to watching pornography prior to being subjected to sexual contact by
    Phan. The trial court did not err in making its res gestae ruling.
    Phan also makes a related claim. At trial, only three videos of child
    pornography were played for the jury (as discussed at the pretrial hearing). In
    particular, images showing A.P.'s bare genital area—of which there was
    considerable testimony—were not shown (so as not to further victimize A.P.).
    Thus, Phan contends, the precise images shown to the jurywere not established
    by testimony to be among the precise images show by Phan to A.P. during the
    course of his sexual assaults upon her. Thus, the argument goes, they fail the
    cross-admissibility test and were unfairly prejudicial.
    This argument misses the main point: on the sex offense counts, any
    prejudice to Phan arose from the jury's knowledge of his possession of
    pornographic images featuring children. A.P. testified to this. Whether the exact
    images shown to the jury were or were not the precise images that A.P. had seen
    as part of being repeatedly abused over the years did not alter the "sting" of the
    child pornography charges. To prevail on his argument, Phan must be able to
    point to specific prejudice. Bvthrow, 
    114 Wn.2d at 720
    . Here, the prejudice to
    Phan is the same whether the images were of A.P.'s vagina or sexual activity
    with a different but similarly aged person.10 If the prejudice was not unfair
    prejudice where the images were of A.P. orwhere A.P.'s testimony would have
    tied them directly to her abuse, then similar images (introduced instead) did not
    10 In fact, A.P. testified thatshe was subjected to images ofsexual behavior involving
    adults, children, and animals at various times through the years.
    -17-
    No. 72935-7-1/18
    constitute specific, unfair prejudice simply because the image itself was not tied
    to the commission of another charged offense. The "sting" of the child
    pornography images remained the same. The fairness or unfairness of
    displaying them to the jury was unaffected by the decision to parse out images
    depicting the victims of the offenses at issue herein or by not requiring A.P. to
    specifically identify images to which she was subjected as a prelude to her
    sexual abuse.
    The trial court did not err by denying Phan's motion to sever.
    Ill
    Phan next contends that the trial court erred by denying his motion for a
    Franks hearing. This is so, he asserts, because the affiant, Detective Wagner,
    recklessly or deliberately misled the issuing magistrate at the time that she
    obtained the second search warrant by failing to inform the issuing magistrate
    that it had been two years since A.P. had seen some of the pornography. The
    record indicates otherwise.
    The issuance of a search warrant is a "highly discretionary" act. State v.
    Chenoweth, 
    160 Wn.2d 454
    , 477, 
    158 P.3d 595
     (2007). It is grounded in a
    commonsense reading of the affidavit accompanying the request and any
    reasonable inferences that can be drawn therefrom. Chenoweth, 
    160 Wn.2d at 477
    .
    We begin with the presumption that the affidavit supporting a
    search warrant is valid. Franks v. Delaware, 
    438 U.S. 154
    , 171, 
    98 S. Ct. 2674
    , 
    57 L. Ed. 2d 667
     (1978)]. Under Franks, in limited
    circumstances, a criminal defendant is entitled to challenge the
    truthfulness of factual statements made in an affidavit supporting a
    -18-
    No. 72935-7-1/19
    search warrant during a special evidentiary hearing. ]d. at 155-56.
    As a threshold matter, the defendant must first make a "substantial
    preliminary showing that a false statement knowingly and
    intentionally, or with reckless disregard for the truth, was included
    by the affiant in the warrant affidavit, and ifthe allegedly false
    statement is necessary to the finding of probable cause." 
    Id.
    . . . Assertions of mere negligence or innocent mistake are
    insufficient. ]d. [at 171.] Rather, the defendant must allege
    deliberate falsehood or reckless disregard for the truth, 
    id.
    Importantly, the Franks test for material representations has
    been extended to material omissions of fact, [State v.1 Cord, 103
    Wn.2d [361,] at 367[, 
    693 P.2d 81
     (1985)]. In examining whether an
    omission rises to the level of a misrepresentation, the proper inquiry
    is not whether the information tended to negate probable cause or
    was potentially relevant, but whether the challenged information
    was necessary to the finding of probable cause. State v. Garrison,
    
    118 Wn.2d 870
    , 874, 
    827 P.2d 1388
     (1992).
    State v. Atchlev. 
    142 Wn. App. 147
    , 157-58, 
    173 P.3d 323
     (2007) (emphasis
    added).
    Prior to hearing argument on Phan's motion, the trial judge set forth her
    opinion after having read the initial briefing:
    My first take based on the briefs and the arguments of both
    counsel are, my first take is that as a factual matter I am not sure
    that the information presented to the magistrate in connection with
    the warrant application was, in fact, inaccurate    Iagree, in fact, I
    circled some of the key language that the victim said that she had
    seen extensive types of pornography and she said that it had been
    almost two years since she had seen some of that pornography.
    And Iagree that's different from the situation we would be dealing
    with if she had said it has been two years since I've seen any
    pornography.
    . . . And while I agree that it's unclear, her statement that she
    had not seen some of that pornography in two years is unclear, but
    because she didn't say that she had not seen any of that
    pornography for two years Iwould read her statement as saying it's
    been two years since she has seen some ofthe pornography but
    not all of the pornography or she would have said all of the
    -19-
    No. 72935-7-1/20
    pornography. So I'm inclined to find that as a factual matter there
    was not a material misrepresentation of facts to the magistrate at
    least as I see the facts now.
    After hearing the argument of counsel, the trial judge reiterated
    that, "I'm not persuaded that the information given to the magistrate was,
    in fact, inaccurate," and ruled that, "the Court does not see the necessity
    for a Franks hearing so the motion is simply denied."11
    The trial judge's ruling was sound. The record herein indicates that
    Detective Wagner's affidavit relied, in part, on information obtained from two
    separate conversations with A.P. On appeal, other than stating that Detective
    Wagner deliberately or recklessly misled the magistrate—and cherry-picking from
    the information that Detective Wagner had obtained in her conversations with
    A.P.—Phan does not point to any evidence corroborating his assertion. In fact,
    based on the trial judge's explanation of her ruling, it is evident that she
    concluded that itwas not Detective Wagner's presentation of the information that
    was misleading but, rather, A.P.'s statement to Detective Wagner (that she had
    not seen some of the pornography in two years) that was "unclear." Ultimately,
    the trial judge believed that "because [A.P.] didn't say that she had not seen any
    of that pornography for two years Iwould read her statement as saying it's been
    two years since she has seen some of the pornography but not all of the
    pornography or she would have said all of the pornography." The trial judge
    11 The record indicates that the trial judge who ruled on Phan's request for a Franks
    hearing was also the judge who had originally signed the search warrant at issue.
    -20-
    No. 72935-7-1/21
    properly concluded that Detective Wagner did not deliberately or recklessly
    mislead the magistrate in obtaining the search warrant.
    IV
    Phan next contends that the trial court erred by issuing the second search
    warrant for his residence. This is so, he asserts, because the search warrant
    was grounded on information that was stale and, thus, insufficient to establish
    probable cause. The record indicates otherwise.
    "Probable cause exists where there are facts and circumstances sufficient
    to establish a reasonable inference that the defendant is involved in criminal
    activity and that evidence of the criminal activity can be found at the place to be
    searched." Atchlev, 142 Wn. App. at 161.
    Here, Phan avers that the second search warrant was grounded on stale
    information. First, the record is devoid of any indication that A.P. told Detective
    Wagner that the pornography had been discarded or destroyed. Second, even
    though A.P. stated that she had not seen some of the pornography in two years,
    A.P. also informed Detective Wagner that compact disks containing pornography
    would likely be found within the home,12 that she had seen a picture of her bare
    vagina on Phan's phone—at most—"within the last three weeks to a month"
    12 The record indicates that the issuing magistrate was apprised ofthis fact at the time
    that she issued the search warrant:
    I knew that I had, I knew I had information that the victim had said to the
    detective that there were CD's present in the home and that they had, that the
    pornographic ones had X's on them        So Ithink all in all there was current
    information in the possession of the detective that there were likely pornographic
    CD's in the home, itwas current information that the detective had.
    21
    No. 72935-7-1/22
    preceding the search warrant, and that "within the last week and a half
    preceding the search warrant A.P. had seen still images of "juveniles, females,
    very young looking females, naked on his phone and his ipod and his computer."
    Given the recent nature of this information, the trial judge herein appropriately
    concluded that there were facts and circumstances sufficient to establish that
    evidence of criminal activity would be found in Phan's residence. The search
    warrant affidavit was sufficient to establish probable cause.
    V
    Phan next contends that his right to an impartial jury, guaranteed by the
    Sixth Amendment to the United States Constitution, was denied him. This is so,
    he claims, because the trial court denied his challenge for-cause to juror 14.
    However, Phan later exercised a peremptory challenge against the juror, who
    was removed from the jury. In such a circumstance, Phan does not set forth a
    basis for appellate relief. United States v. Martinez-Salazar. 
    528 U.S. 304
    , 311,
    
    120 S. Ct. 774
    , 
    145 L. Ed. 2d 792
     (2000); State v. Fire, 
    145 Wn.2d 152
    , 163, 
    34 P.3d 1218
    (2001).
    VI
    Phan next contends that the trial court denied him his Sixth Amendment
    right to confront the witnesses against him by restricting his cross-examination of
    A.P. We disagree.
    It is well established that a trial court that limits cross-
    examination through evidentiary rulings as the examination unfolds
    does not violate a defendant's Sixth Amendment rights unless its
    restrictions on examination "effectively . . . emasculate the right of
    cross-examination itself." Smith v. Illinois, 
    390 U.S. 129
    , 131, 88 S.
    -22-
    No. 72935-7-1/23
    Ct. 748, 
    19 L. Ed. 2d 956
     (1968). Generally speaking, the
    confrontation clause guarantees an opportunity for effective cross-
    examination, not cross-examination that is effective in whatever
    way, and to whatever extent, the defense might wish. Delaware v.
    Fensterer, 
    474 U.S. 15
    , 20, 
    106 S. Ct. 292
    , 88 L Ed. 2d 15 (1985).
    State v. Turnipseed. 
    162 Wn. App. 60
    , 69, 
    255 P.3d 843
     (2011) (first alteration in
    original).
    Herein, Phan was not prevented from attacking A.P.'s testimony and
    credibility on cross-examination. He was simply prohibited from inquiring into a
    collateral specific instance of prior conduct by A.P.—the details of an alleged
    sexual relationship that she had with her boyfriend. The trial court's ruling in this
    regard, which was entirely consistent with ER 608,13 did not "emasculate the right
    of cross-examination." Thus, Phan's claim fails.
    VII
    Phan next contends that the trial court erred by allowing an employee of
    the Whatcom County Prosecutor's Office to testify as an expert witness on child
    sex abuse. This is so, he asserts, because the employee, Joan Gaasland-Smith,
    was not qualified as an expert to discuss the subjects of how sex abusers and
    sexual abuse victims usually behave. Further, he asserts that her testimony was
    irrelevant and prejudicial. We disagree with both contentions.
    13 ER 608(b) provides:
    Specific Instances of Conduct. Specific instances ofthe conduct ofa witness,
    for the purpose ofattacking or supporting the witness' credibility, other than
    conviction of crime as provided in rule 609, may not be proved by extrinsic
    evidence. They may, however, in the discretion ofthe court, if probative of
    truthfulness or untruthfulness, be inquired into on cross examination of the
    witness (1) concerning the witness' character for truthfulness or untruthfulness,
    or (2) concerning the character for truthfulness or untruthfulness ofanother
    witness as to which character the witness being cross-examined has testified.
    -23-
    No. 72935-7-1/24
    A
    Phan first asserts that Gaasland-Smith was not qualified to testify as an
    expert. The record indicates otherwise.
    The admission of expert testimony is governed by ER 702, which
    provides: "[i]f scientific, technical, or other specialized knowledge will assist the
    trier of fact to understand the evidence or to determine a fact in issue, a witness
    qualified as an expert by knowledge, skill, experience, training, or education, may
    testify thereto in the form of an opinion or otherwise."
    Before testifying as an expert, the witness is subjectto the requirements of
    ER 702. State v. Lord. 
    161 Wn.2d 276
    , 294 n.15, 
    165 P.3d 1251
     (2007). Thus,
    expert testimony is admissible under ER 702 where (1) the witness qualifies as
    an expert and (2) the expert's testimony would be helpful to the trier of fact.
    State v. Riker, 
    123 Wn.2d 351
    , 364, 
    869 P.2d 43
     (1994).
    "Practical experience is sufficient to qualify a witness as an expert." State
    v. Ortiz. 119Wn.2d 294, 310, 
    831 P.2d 1060
     (1992). However, "the expert
    testimony of an otherwise qualified witness is not admissible if the issue at hand
    lies outside the witness' area of expertise." State v. Farr-Lenzini. 
    93 Wn. App. 453
    , 461, 
    970 P.2d 313
     (1999). The trial court's admission or rejection ofexpert
    testimony is reviewed for an abuse of discretion. Ortiz, 
    119 Wn.2d at 310
    .
    The record reveals that Gaasland-Smith testified as an expert pursuant to
    ER 702. The trial judge herein based her finding that Gaasland-Smith was an
    expert on Gaasland-Smith's education and experience, including that she held a
    master's degree in social work, was a licensed independent clinical social
    -24-
    No. 72935-7-1/25
    worker, had counseled child and adult victims of sexual abuse, had taught
    courses on the subject of sexual abuse and neglect at a local university, and had
    evaluated more than 3,000 sexual assault cases in her role at the prosecutor's
    office. The fact that Gaasland-Smith was an employee of the prosecutor's office
    did not, by itself, render her unqualified to testify. State v. Flett. 
    40 Wn. App. 277
    ,
    285, 
    699 P.2d 774
     (1985) ("once basic requisite qualifications are established,
    any deficiencies in an expert's qualifications go to weight, ratherthan
    admissibility of testimony"); accord State v. Weaville, 
    162 Wn. App. 801
    , 824-25,
    
    256 P.3d 426
     (2011).14 The trial court did not abuse its discretion by allowing
    Gaasland-Smith to present expert testimony.
    B
    Phan next asserts that Gaasland-Smith's testimony was both irrelevant
    and more prejudicial than probative. Again, the record indicates otherwise.
    Evidence is relevant if it has "any tendency to make the existence of any
    fact that is of consequence to the determination ofthe action more probable or
    less probable than it would be without the evidence." ER 401. Relevant
    evidence is generally admissible. ER 402. "The threshold to admit relevant
    evidence is very low. Even minimally relevant evidence is admissible." State v.
    Darden, 
    145 Wn.2d 612
    , 621, 
    41 P.3d 1189
     (2002). Here, Gaasland-Smith's
    testimony was intended to help the jury understand the general behavioral
    14 The record indicates that Gaasland-Smith was questioned specifically about her
    relationship to the prosecutor's office and her role within that office. Thus, thejury was
    sufficiently apprised of the factors bearing on Gaasland-Smith's credibility and sufficiently
    equipped with the information necessary to weigh her testimony accordingly.
    -25-
    No. 72935-7-1/26
    tendencies and disclosure patterns that are exhibited by child victims of sexual
    abuse. In this regard, her testimony was relevant to determining whether the
    disclosures made by the three child victims in Phan's case were more or less
    probable. See ER 401.
    Moreover, the trial court correctly analyzed whether Gaasland-Smith's
    testimony was substantially more prejudicial than probative. ER 403 states,
    "[although relevant, evidence may be excluded if its probative value is
    substantially outweighed by the danger of unfair prejudice, confusion of the
    issues, or misleading the jury, or by considerations of undue delay, waste of time,
    or needless presentation of cumulative evidence." Atrial court's balancing of the
    evidence's probative value against its prejudicial effect or potential to mislead is
    entitled to great deference. State v. Luvene, 
    127 Wn.2d 690
    , 706-07, 
    903 P.2d 960
     (1995). While, in this case, as the trial court recognized, there may have
    been some potential for prejudice, the court believed that such potential was
    outweighed by the evidence's probative value. Moreover, the trial court mitigated
    any potential prejudice by admonishing the jury both that Phan "has not been
    established to be a perpetrator in this case or any case, that is the presumption
    of innocence still applies" and that it must consider Gaasland-Smith's testimony
    for "background information on the issues of disclosure rather than any facts
    about this particular case." The trial court did not abuse its discretion by
    admitting Gaasland-Smith's challenged testimony.
    26
    No. 72935-7-1/27
    VII
    Phan next contends that insufficient evidence supports the jury's verdict
    on count 9, child molestation in the first degree involving A.D. This is so, he
    asserts, because no evidence was presented as to when that alleged incident
    took place. We disagree.
    The due process clauses ofthe federal and state constitutions require that
    the State prove every element of a crime beyond a reasonable doubt. Apprendi
    v. New Jersey. 
    530 U.S. 466
    , 476-77, 
    120 S. Ct. 2348
    , 
    147 L. Ed. 2d 435
     (2000);
    U.S. Const, amend. XIV; Wash. Const, art. I, § 3. "[T]he critical inquiry on
    review of the sufficiency of the evidence to support a criminal conviction must
    be ... to determine whether the record evidence could reasonably support a
    finding of guilt beyond a reasonable doubt." Jackson v. Virginia. 
    443 U.S. 307
    ,
    318, 
    99 S. Ct. 2781
    , 
    61 L. Ed. 2d 560
     (1979). "[T]he relevant question is
    whether, after viewing the evidence in the light most favorable to the prosecution,
    any rational trier of fact could have found the essential elements of the crime
    beyond a reasonable doubt." Jackson. 
    443 U.S. at 319
    .
    "A claim of insufficiency admits the truth ofthe State's evidence and all
    inferences that reasonably can be drawn therefrom." State v. Salinas. 
    119 Wn.2d 192
    , 201, 
    829 P.2d 1068
     (1992). "In determining the sufficiency of the
    evidence, circumstantial evidence is not to be considered any less reliable than
    direct evidence." State v. Delmarter, 
    94 Wn.2d 634
    , 638, 
    618 P.2d 99
     (1980).
    "Deference must be given to the trier of fact who resolves conflicting testimony
    and evaluates the credibility ofwitnesses and persuasiveness of material
    -27-
    No. 72935-7-1/28
    evidence." State v. Carver. 
    113 Wn.2d 591
    , 604, 
    781 P.2d 1308
    , 
    789 P.2d 306
    (1989).
    In Jury Instruction 31, the jurors were instructed:
    To convict the defendant of the crime of child molestation in the first
    degree, as charged in Count IX, each of the following elements of
    the crime must be proved beyond a reasonable doubt:
    (1) That between the 1st day of June 2008 and the 30th day of March 2013,
    the defendant had sexual contact with [A.D.];
    (2) That [A.D.] was less than twelve years old at the time ofthe sexual
    contact and was not married to the defendant;
    (3) That [A.D.] was at leastthirty-six months younger than the defendant;
    and
    (4) That this act occurred in the State of Washington.
    If you find from the evidence that each of these elements 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 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.
    Here, A.D. testified that her date of birth is January 19, 2004 and that the
    last time that she spent the night at Phan's house was "at the age [of] eight or
    nine." Given this information, it was reasonable for the jury to inferthat Phan
    committed an act of molestation against A.D. in the latter part of the date range in
    element one—given that she was 9 years old in 2013—and that her date of birth
    established both that she was younger than 12 years old and that she was at
    least 36 months younger than Phan at the time that the offense was committed.
    28-
    No. 72935-7-1/29
    Viewed in the light most favorable to the State, this evidence is sufficient to
    support the jury's verdict of guilty on count 9.
    Affirmed.
    A )t^My|j
    We concur:                                              ^
    29