State Of Washington v. Anton Curtis Johnson ( 2015 )


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  •           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
    STATE OF WASHINGTON,                               NO. 71330-2-1                        CJ-1
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    en
    Respondent,                  DIVISION ONE
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    ANTON CURTIS JOHNSON,                              UNPUBLISHED OPINION                  V?
    CO     c:j-
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    Appellant.                    FILED: August 31, 2015
    Lau, J. —A jury convicted Anton Johnson of three counts of third degree rape of
    a child. He appeals, arguing that reversal of his convictions is warranted because (1)
    improper election of prior uncharged crimes by the State violated various constitutional
    rights; and (2) ineffective assistance by trial counsel deprived him of a fair trial.
    Johnson also claims remand for resentencing is warranted for violation of the statutory
    maximum based on the court's imposition of a variable term of community custody.
    Because no constitutional violations occurred, trial counsel provided effective
    representation, and the court properly imposed a variable term of community custody
    under State v. Bruch, 
    182 Wash. 2d 854
    , 
    346 P.3d 724
    (2015), we affirm Johnson's
    judgment and sentence.
    No. 71330-2-1/2
    FACTS
    Pes Moines Residence
    K.K.'s grandmother and Anton Johnson dated and eventually moved in with
    K.K.'s mother in Des Moines. K.K. and her five sisters also lived with their mother. K.K.
    was in the sixth grade and was 11 or 12-years-old at that time. Johnson took an
    interest in K.K. They liked each other and talked a lot. He told her she was cute and
    praised her for doing her homework. He held her hand under the covers to avoid
    detection whenever they watched TV together. After he kissed her in her grandmother's
    bedroom, he touched her more often. For example, he kissed her on the neck and
    digitally penetrated her vagina in her grandmother's bedroom.
    Fir Street Residence
    The entire family including Johnson moved to Fir Street in Seattle. By then, K.K.
    was 13-years-old and in the seventh grade. There, Johnson performed oral sex on K.K.
    under the covers while K.K.'s sister, T.K., was on the phone across the room. On a
    different day, he picked her up, positioned her on the kitchen counter with her legs
    open, and "put it in" her until she felt a pop and it hurt a lot. Report of Proceedings (RP)
    (Oct. 29, 2013) at 253.
    Brighton Street Residence
    The family moved to Brighton Street when K.K. was 14 and in the eighth grade.
    There, Johnson "had sex" with K.K. for the first time. RP (Oct. 29, 2013) at 249. K.K.
    was watching TV. Johnson turned off the TV and started kissing her. He used no
    condom and "put it inside of [her]." He stopped when she said it hurt and then
    performed oral-genital contact. RP (Oct. 29, 2013) at 250.
    -2-
    No. 71330-2-1/3
    In late 2011, K.K.'s grandmother had surgery and radiation treatment for cancer.
    She was confined to her bedroom to avoid exposing others to radiation. During this
    time, Johnson slept in the living room or in the den where K.K. sometimes slept. While
    the family slept, he had sex with K.K. Between September 15, 2011, and April 1, 2012,
    Johnson had sexual intercourse with K.K. at least 15 times.1 This happened more often
    in the den at night when the family was asleep. Sometimes they quickly had sex in
    K.K.'s bedroom.
    In March 2012, K.K.'s mother took her to the doctor due to stomach pain and
    nausea. The doctor told her she was pregnant. K.K. was 14-years-old. To keep her
    relationship with Johnson a secret, K.K. let her mother assume that the father was her
    teenage boyfriend. Johnson and K.K. stopped having sex in March 2012 after K.K. had
    an abortion. She told clinic staff her teenage boyfriend was the father to keep
    Johnson's identity a secret.
    About 11 months later, K.K. told T.K., her younger sister, that Johnson was the
    true father. T.K. cried, telephoned Johnson, and threatened to "kill him." RP (Oct. 29,
    2013) at 153, 268-69. K.K.'s grandmother noticed Johnson standing quietly with the
    telephone and asked what was wrong. He said T.K. just "cussed [him] out." RP (Oct.
    29, 2013) at 207. K.K.'s grandmother telephoned K.K.'s mother to ask why T.K. was so
    angry. K.K.'s mother confronted T.K. T.K. told her that Johnson "hurt" K.K. and got
    K.K. pregnant. RP (Oct. 29, 2013) at 155. K.K.'s mother called the police a few days
    later after K.K. confirmed that what T.K. said was true.
    1 The parties agree that K.K. turned 14-years-old on September 15, 2011.
    No. 71330-2-1/4
    Seattle Police Officer Eric Beseler responded and talked to T.K. and K.K.'s
    mother. T.K. told Officer Beseler that K.K. said she had sex with Johnson for the first
    time when she was 11-years-old. After K.K.'s mother reported the offense to the police,
    Johnson telephoned K.K.'s mother. He acknowledged to her "that it did happen" but
    claimed "[K.K.] came on to me." RP (Oct. 29, 2013) at 129. K.K.'s grandmother also
    confronted Johnson about what he did to K.K. At first he denied having sex with K.K.,
    but later admitted, "Do you want to know the truth? It happened." RP (Oct. 29, 2013) at
    210. He also said K.K. performed oral sex on him.
    On May 28, 2013, Johnson was charged with three counts of third degree rape of
    a child. The State alleged that Johnson had "sexual intercourse" with K.K. when she
    was at least 14 and "during a period of time intervening between September 15, 2011
    through April 1, 2012     " Clerk's Papers (CP) at 1-2. During the trial, the State
    presented evidence of two pre-charging period sex acts that occurred at the Fir Street
    residence when K.K. was under 14 and in seventh grade.2
    At trial, K.K. described the first uncharged act involving oral sex under the
    covers:
    [K.K.]: I was in 7th grade and we lived on Fir Street.3 I was in the room
    with [T.K.]. She was like on her phone. Everyone else was in the
    living room, watching TV. I was on like my phone. He [Johnson]
    had told me that he wanted to taste me. It was like an awkward
    moment.
    2 The undisputed evidence shows that K.K. was in eighth grade when she turned
    14 on September 15, 2011, the first day of the charging period.
    3 During the charging period, K.K., her sisters, mother, grandmother, and
    Johnson lived in the apartment on Brighton Street.
    -4-
    No. 71330-2-1/5
    So, he like, I took my panties off and he like went under the covers
    and then he did it. Then he told me like watch if anybody was like coming
    or something.
    RP (Oct. 29, 2013) at 252 (emphasis added). She referred to the second uncharged act
    involving sexual intercourse as the "counter" incident:
    [STATE]: There was another time that you mentioned in the interview with
    the defendant that the defendant's lawyer that had to do with
    the counter. Do you remember that incident?
    [K.K.]: A counter, yes.
    [STATE]: Tell the jury about that time?
    [K.K.]: I was in 7th grade.
    Me and Anton [Johnson] had went in the kitchen. He
    put me on the counter and he opened my legs and then he
    like, put it in, in like, I felt like a pop, it hurt a lot.
    Then I just like pushed him back. Then I hop off the
    counter and kind of said like somebody is coming or
    something.
    RP (Oct. 29, 2013) at 253-54 (emphasis added). K.K was the only witness to testify
    about these uncharged acts. She testified that the first time she and Johnson "had sex"
    was when she was 14 and lived in the Brighton house. RP (Oct. 29, 2013) at 250-51.
    Both the "under-the-covers" and the "counter" incidents (collectively, the "Fir Street
    incidents") occurred when K.K. was in 7th grade and living in the Fir Street house—
    before she moved to the Brighton house, where she lived during the charging period.
    RP (Oct. 29, 2013) at 120-25, 252-54, 275.
    During closing argument, the prosecutor reminded the jury that they must agree
    on a singular criminal event for each of the three counts. He mistakenly argued that the
    Fir Street incidents occurred during the charging period:
    -5-
    No. 71330-2-1/6
    You have to agree on a singular event for Count I, a singular event
    for Count II, and a singular event for Count III. I suggest there is two ways
    that you can do that in this case.
    [K.K.] told you that between those charging dates they were on
    Brighton Street, the defendant had sex with her, she believes roughly 15
    times. She described to you with specific detail three separate incidents
    and two of them I just mentioned. The first was that first time in the living
    room. The second was a time on the counter. The third time was a time
    when he had oral sex with her under the blanket as [T.K.] played with her
    phone on the bed across the room.
    Then she described to you all of the incidents that occurred in the
    den. She said that she thought there were 10 or 15 of those. You can
    either agree, for example, that Count I has been proven by your
    unanimous agreement on the first time he ever had sex with her.
    Count II is proven by your unanimous agreement about the time
    that he described on the counter-
    Count III is described by your unanimous agreement that at least
    one time he had sexual intercourse with her in that den, or you agree with
    the occasion that he described which occurred underneath the blanket in
    the room with [T.K.].
    RP (Oct. 30, 2013) at 331-32 (emphasis added).
    The jury convicted Johnson as charged. The trial court denied Johnson's motion
    for new trial, or alternatively, to dismiss counts two and three. The court imposed three
    concurrent terms of the statutory maximum of 60 months, followed by a period of
    community custody "for any period of time the defendant is released from total
    confinement before the expiration of the maximum sentence." CP at 36-37. Johnson
    appeals.
    ANALYSIS4
    Uncharged Sex Acts
    Johnson argues that the State presented evidence of sexual intercourse that
    occurred before the charging period. He contends that his convictions on counts two
    4 Johnson filed no brief in reply to the State's response brief.
    -6-
    No. 71330-2-1/7
    and three should be reversed because the prosecutor's closing argument "elected" acts
    falling outside the charging period that "could not legally constitute third degree rape of
    a child." Br. of Appellant at 7. He also claims the prosecutor "wrongly [claimed] they
    occurred during the charging period when K.K. lived on Brighton Street." Br. of
    Appellant at 10. Accordingly, the State violated his constitutional rights to (1) sufficiency
    of the evidence, (2) a unanimous jury verdict, (3) notice, and (4) a fair trial. We
    disagree.
    Sufficiency of the Evidence
    Johnson specifically argues that because the State "elected" in closing argument
    to rely on acts that happened before the charging period when K.K. was less than
    14-years-old, insufficient evidence exists to support his convictions on counts two and
    three. Johnson claims that K.K. could not remember dates or details about the Brighton
    Street acts even though she testified he had sex with her there at least 15 times.
    Viewing the evidence in the light most favorable to the State, we conclude a rational jury
    could find the essential elements of the crimes of third degree rape of K.K.
    Under RCW 9A.44.079, third degree rape of a child occurs when a person (1)
    has sexual intercourse with a child, (2) who is at least fourteen years old but less than
    sixteen years old, (3) who is not married to the person, and (4) who is at least forty eight
    months younger than the person. Here, the to-convict instruction informed the jury that
    to convict Johnson of third degree rape of a child, each of the following elements must
    be proved beyond a reasonable doubt:
    (1) . . . during a period of time intervening between September 15, 2011 and
    April 1, 2012 the defendant had sexual intercourse with [K.K.];
    -7-
    No. 71330-2-1/8
    (2) . . . [K.K.] was at least fourteen and less than sixteen years old at the time
    and was not married to the defendant;
    (3) . . . the defendant was at least forty-eight months older than [K.K.]; and
    (4). . . the acts occurred in the state of Washington.
    CP at 26.5
    Evidence is sufficient to support multiple counts of child rape if the jury is also
    instructed as to the need for jury unanimity on a specific act for each count. The trial
    court also gave the jury a Petrich instruction to ensure jury unanimity. Read together,
    the to-convict instruction (jury instructions 7, 8, and 9) and the Petrich instruction (jury
    instruction 6) required the jury to unanimously agree as to a particular act that
    constitutes the charge for each count and to find beyond a reasonable doubt that the
    State proved all the elements set forth in the to-convict instructions.
    In a criminal prosecution, the State must prove each element of the charged
    crime beyond a reasonable doubt. In reWinship, 
    397 U.S. 358
    , 364, 
    90 S. Ct. 1068
    , 
    25 L. Ed. 2d
    . 368 (1970). "The test for determining the sufficiency of the evidence is
    whether, after viewing the evidence in the light most favorable to the State, any rational
    trier of fact could have found guilt beyond a reasonable doubt. When the sufficiency of
    the evidence is challenged in a criminal case, all reasonable inferences from the
    evidence must be drawn in favor of the State and interpreted most strongly against the
    defendant. A claim of insufficiency admits the truth of the State's evidence and all
    inferences that reasonably can be drawn therefrom." State v. Salinas, 
    119 Wash. 2d 192
    ,
    201, 
    829 P.2d 1068
    (1992) (internal citations omitted).
    5 The court gave this same to-convict instruction for each of the three counts of
    third degree rape of a child.
    -8-
    No. 71330-2-1/9
    Where, as here, the perpetrator is a "resident" molester, the State may support
    multiple counts of a child rape charge with the victim's generic testimony. State v.
    Haves, 
    81 Wash. App. 425
    , 438, 
    914 P.2d 788
    (1996). In Haves, we approved the use of
    generic testimony to support multiple counts when the evidence satisfies three
    requirements:
    First, the alleged victim must describe the kind of act or acts with
    sufficient specificity to allow the trier offact to determine what offense, if
    any, has been committed. Second, the alleged victim must describe the
    number of acts committed with sufficient certainty to support each of the
    counts alleged by the prosecution. Third, the alleged victim must be able
    to describe the general time period in which the acts occurred. The trier of
    fact must determine whether the testimony of the alleged victim is credible
    on these basic points.
    
    Haves, 81 Wash. App. at 438
    .6 Considering the victim's testimony in light ofthese
    requirements, we concluded sufficient evidence supported multiple counts of child rape
    against Hayes:
    6Citing State v. Brown, 
    55 Wash. App. 738
    , 
    780 P.2d 880
    (1989), we noted the
    important policy considerations supporting admission of general testimony in cases
    involving a resident molester:
    The Brown court first acknowledged the problems inherent in prosecuting
    cases of sexual molestation against children when the perpetrator is a "resident
    molester." Recognizing that Washington courts have approved of such "general"
    testimony in the context of its admissibility, the court reiterated that "[t]o require
    [the victim] to pinpoint the exact dates of oft-repeated incidents of sexual contact
    would be contrary to reason." The court. . . [concluded] that
    [Rendering such testimony as was given here inadequate even under a
    unanimity instruction would force prosecutors to make an election that the
    Petrich court described as "impractical." With the exception of those who
    happen to select victims with better memories orwho are 1-act offenders,
    the most egregious child molesters effectively would be insulated from
    prosecution.
    
    IBrown, 55 Wash. App. at 749
    .]. . . [The court observed] that the use of such
    evidence was sufficient to support the conviction.
    
    Haves, 81 Wash. App. at 435-36
    .
    -9-
    No. 71330-2-1/10
    K.'s testimony that Hayes "put his private part in mine" establishes the first
    prong of the requirement, specificity of description of the acts. Her descriptions of
    how he did these acts add to the specificity prong. She described Hayes' usual
    course of conduct in detail (it would happen in his bed, while he was on top of
    her, and he used paper towels to clean up) and tied the abuse to events in her
    life occurring at that time (when she was living with Nicky, while they were
    staying with Donaldson, and two weeks before authorities took her away from
    Hayes in June 1992). Her testimony that he had intercourse with her at least
    "four times" and up to "two or three times a week" establishes the second prong.
    Her further testimony that these acts occurred during the period between 1990
    and 1992 is sufficient to establish the third prong. Thus, K.'s testimony described
    the type of act committed, the number of acts committed, and the general time
    period. Her generic testimony was therefore specific enough to sustain
    separately each of the four counts charged.
    
    Haves, 81 Wash. App. at 438
    -39.
    Here, K.K.'s testimony is substantially similar to the victim's testimony in Haves
    that lead us to conclude sufficient evidence supported the convictions. Regarding the
    first prong, K.K.'s testimony was sufficiently specific such that the trier of fact could
    determine the nature of the committed offense. K.K. stated that the first time Johnson
    "had sex" with her was when she was 14 and living in the Brighton house. RP (Oct. 29,
    2013) at 249-51. She provided specific details of this incident: "I had came out of the
    bathroom and I was like laying down. He was sitting on the couch watching TV, I was
    like, getting ready to like to go to bed. He had turned off the TV and rolled me over and
    then we started kissing. Then he like—put it inside of me." RP (Oct. 29, 2013) at 250.
    She further clarified that this occurred in the living room at night, that Johnson did not
    use a condom, and that everyone else was in their rooms at the time. She stated that it
    "really hurt" so Johnson "took it out" and performed oral sex on K.K. instead. RP (Oct.
    29, 2013) at 251. K.K. indicated that other instances were similar to the first, and that
    she and Johnson developed a regular pattern of sexual activity:
    -10-
    No. 71330-2-1/11
    [STATE]: Can you remember another time that [Johnson] had sex with
    you in the Brighton house?
    [K.K.]: I don't really remember specific times. But they mostly happened
    in the den, because that's where we usually were, him and I.
    Everyone was usually asleep or something. Sometimes I would
    sleep in there. He would sleep in there, when my grandmother was
    having, like, radiation or something.
    Then like he sometimes would like wake me up and then we would
    just do it.
    [STATE]: Were there times at night after you got back from training, or
    school, that people just kind of stuck to their own place and did their own
    thing watching TV or studying or whatever?
    [K.K.]: Yes.
    So it was pretty easy not to get caught because people were like,
    pretty preoccupied doing their own thing.
    [STATE]: Did any of these sexual encounters take a long time or were
    they all fairly brief?
    [K.K.]: Sometimes, like—most of the time, when we did it in the den, it
    was like longer, because no one was ever up. Like we would have more
    time. But sometimes we go in my room, like, if no one was in there and
    like get it like a quick one, kind of, in a way of saying, like.
    [STATE]: You mentioned that you slept in the den occasionally. Why did
    you sleep in the den?
    [K.K.]: Because, like, by now that we like knew that we had a thing, and
    that's mostly where—like everything went down. So, he knew that I would
    be in there. I knew that he would be in there. So we, basically, just like
    stuck to that room.
    [STATE]: When he would come into that room and have sex with you,
    what—would it be late at night, after everybody else was long asleep?
    [K.K.]: Yes.
    [STATE]: Like what times?
    [STATE]: Like around 11 o'clock or later, if he like were to wake up.
    -11-
    No. 71330-2-1/12
    [STATE]: When all this was going on, how did you feel about Anton
    [Johnson]?
    [K.K.]: I liked him. I wouldn't say that I was like in love or anything.
    RP (Oct. 29, 2013) at 251-55. Like the victim in Haves, K.K.'s testimony shows the
    "usual course of conduct" regarding Johnson's pattern of abusive behavior. See Hayes,
    438-39.
    The second prong was met when K.K. estimated the number of times she and
    Johnson had sexual intercourse during the charging period:
    [STATE]: Just a couple more questions, [K.K.].
    Between September 15, 2011 and April 1st, 2012, or the time
    that you got the abortion, how many times do you think that
    Anton [Johnson] had sexual intercourse with you?
    [K.K.]: At least 15 times. I am pretty sure it was probably more.
    RP (Oct. 29, 2013) at 273. This estimate is sufficient to satisfy the requirement in
    Haves that the victim "describe the number of acts committed with sufficient certainty to
    support each of the counts alleged by the prosecution." 
    Hayes, 81 Wash. App. at 438
    . In
    Haves, the victim testified that sexual intercourse occurred "at least four times and
    some two or three times a week between July 1, 1990 and May 31, 1992." 
    Hayes, 81 Wash. App. at 435
    . The court concluded that this testimony satisfied the second prong.
    Here, K.K.'s testimony is nearly identical to the victim's testimony in Haves, and it
    likewise satisfies the second prong.
    The third prong was satisfied by K.K.'s description of the general time period in
    which the acts occurred. In addition to responding to the State's direct question
    regarding the charging period, K.K. provided many other details indicating the time
    period during which the events occurred. For instance, K.K.'s description of Johnson's
    -12-
    No. 71330-2-1/13
    pattern of sexual misconduct generally references the Brighton house. Other
    witnesses, including K.K.'s mother, corroborated that K.K.'s family lived with Johnson in
    the Brighton house during the charging period. K.K. also testified that she and Johnson
    had sexual intercourse during several nights when K.K.'s grandmother was sick from
    radiation treatment. K.K.'s grandmother testified that she was recovering from radiation
    treatment while living with K.K.'s family in the Brighton House during the charging
    period. In light of these specific details, K.K.'s testimony provided sufficient facts to
    establish the third prong of the Hayes test. See 
    Hayes, 81 Wash. App. at 438
    -39.
    Given the court's proper instructions to the jury and K.K.'s ample testimony under
    Hayes,7 the State presented sufficient evidence of criminal acts within the charging
    period to support Johnson's convictions on counts two and three. This is particularly
    true considering the deferential standard of review applied to challenges based on the
    sufficiency of the evidence. See 
    Salinas, 119 Wash. 2d at 201
    .
    Unanimous Jury Verdict
    Johnson also contends that his convictions on counts two and three violate his
    right to a unanimous jury verdict. Johnson argues that the prosecutor's closing remarks
    "elected" acts that fell outside the charging period, thus the jury may have convicted him
    of uncharged and legally insufficient acts. We disagree. As discussed above, the trial
    court gave proper and clear instructions requiring the jury to agree on specific acts for
    each count within the charging period. We presume the jury followed those instructions.
    State v. Montgomery, 
    163 Wash. 2d 577
    , 596, 
    183 P.3d 267
    (2008) ("There was no written
    7 Johnson fails to address Haves anywhere in his brief.
    -13-
    No. 71330-2-1/14
    jury inquiry or other evidence that the jury was unfairly influenced, and we should
    presume the jury followed the court's instructions absent evidence to the contrary.")
    When the State introduces evidence of several criminal acts and any one of
    which could constitute the crime charged, the jury must unanimously agree on the act or
    incident that constitutes the crime. State v. Petrich, 
    101 Wash. 2d 566
    , 572, 
    683 P.2d 173
    (1984) overruled in part on other grounds by State v. Kitchen, 
    110 Wash. 2d 403
    , 
    756 P.2d 105
    (1988). In these "multiple acts" cases, courts employ the "either/or" rule:
    Either the State [must] elect the particular criminal act upon which it will
    rely for conviction, or. . . the trial court [must] instruct the jury that all of
    them must agree that the same underlying criminal act has been proven
    beyond a reasonable doubt.
    
    Kitchen, 110 Wash. 2d at 411
    ; see also 
    Petrich, 101 Wash. 2d at 572
    . "[T]he State need not
    elect particular acts associated with each count so long as the evidence 'clearly
    delineate[s] specific and distinct incidents of sexual abuse' during the charging periods."
    
    Haves, 81 Wash. App. at 431
    (quoting State v. Newman, 
    63 Wash. App. 841
    , 851, 
    822 P.2d 308
    ). Further, "[t]he trial court must also instruct the jury that they must be unanimous
    as to which act constitutes the count charged and that they are to find 'separate and
    distinct' acts for each count when the counts are identically charged." Haves, 81 Wn.
    App. at 431 (guoting State v. Noltie, 
    116 Wash. 2d 831
    , 842-43, 809 P.2d 190(1991)).
    Johnson argues the State improperly "elected" the Fir Street incidents and, as a
    result, "there can be little doubt that the jury relied on these crimes not charged." Br. of
    Appellant at 12. In his closing remarks, the prosecutor mistakenly suggested that the
    jury could rely on the Fir Street incidents as a basis for convicting Johnson on counts
    -14-
    No. 71330-2-1/15
    two and three. We disagree with Johnson's characterization that the prosecutor elected
    to rely on the Fir Street incidents.
    The record in this case leaves no doubt that the prosecutor made no "election" as
    Johnson alleges. In closing argument, the prosecutor discussed the interplay between
    the Petrich instruction and the to-convict instructions:
    Ladies and gentlemen, there is [sic] a couple of instructions that I
    want to get to you very specifically because it could potentially be
    confusing. One of them is instruction number 6, we call it the Petrich
    instruction . . . .
    RP (Oct. 30, 2013) at 331. The State followed these remarks by reading the entire
    Petrich instruction to the jury. After that, the prosecutor discussed the three to-convict
    instructions for each count. He told the jury that each count, as set forth in the to-
    convict instructions, involved sexual intercourse with K.K. that occurred "during the
    period of time intervening between September 15, 2011, and April 1, 2012, on a
    different occasion" in each count. RP (Oct. 30, 2013) at 331. The evidence is
    undisputed that during this period K.K.'s family and Johnson lived at the Brighton Street
    residence. And there is no dispute that the evidence shows "the counter" and "under
    the covers" incidents occurred at the Fir Street residence, not at the Brighton Street
    residence. The record plainly shows the prosecutor's closing remarks did not constitute
    an "election" of specific acts for purposes of the rule in Petrich.8
    8Jury instruction 6 provided:
    There are allegations that the defendant committed acts of rape of a child
    in the third degree against [K.K.] on multiple occasions. To convict the defendant
    on Count I, at least one specific act of rape of a child must be proved beyond a
    reasonable doubt and you must unanimously agree as to which act has been
    proved beyond a reasonable doubt. To convict the defendant on Count II, a
    different specific act of rape of a child must be proved beyond a reasonable
    -15-
    No. 71330-2-1/16
    Defense counsel's closing remarks indicate he did not view the prosecutor's
    remarks as an election. He properly told the jury that they could consider only the acts
    that occurred during the charging period at the Brighton Street residence in accordance
    with the charging documents and the to-convict instructions:
    The State has limited its charging documents and its to convict instructions to
    some very important dates .. . The dates are all the same for all three [counts]
    September 15, 2011, to April 1st, 2012.
    RP (Oct. 30, 2013) at 344. He also told the jury that although K.K. testified about
    incidents that occurred at the Des Moines and Fir Street residences, the State did not
    charge "anything that happened at those . . . you are not to consider them for purposes
    of finding whether or not Anton committed those [charged] acts. The Brighton Street is
    where they lived at from September of 2011 to April of 2012." RP (Oct. 30, 2013) at
    344. The State's rebuttal argument did not repeat its mistaken comments.
    As noted above, the court's to-convict instructions and the Petrich instruction told
    the jury that in order to convict Johnson, they must unanimously agree beyond a
    reasonable doubt on one, but different, specific act of rape of a child for each count.
    Further, in order to convict Johnson, they must also unanimously agree that the State
    has met its burden to prove each of the essential elements beyond a reasonable doubt.
    Other instructions told the jury that "the law is contained in my instructions to you. You
    must disregard any remark, statement, or argument [by counsel] that is not supported
    doubt and you must unanimously agree as to which act was proved beyond a
    reasonable doubt. To convict the defendant on Count III, another different
    specific act of rape of a child must be proved beyond a reasonable doubt and
    you must unanimously agree as to which act was proved beyond a reasonable
    doubt.
    CP at 25.
    -16-
    No. 71330-2-1/17
    by the evidence or the law in my instructions." CP at 19. The trial court also instructed
    the jury that "it is also your duty to accept the law from my instructions . . . You must
    apply the law from my instructions to the facts . . . and in this way decide the case." CP
    at 18.
    Under the facts presented here and the court's jury instructions, there is no
    possibility that the jury impermissibly relied on prior uncharged acts when it rendered its
    guilty verdicts. Johnson's Petrich violation claim fails. For the reasons discussed
    above, we are not persuaded that Johnson's right to a fair trial was violated.
    Notice
    Johnson also argues that the State violated his constitutional right to notice by
    presenting evidence of acts not charged in the information and electing those acts
    during closing argument to the jury. Because the jury instructions aligned with the
    charging document, we conclude Johnson had sufficient notice of the crimes charged.
    "In Washington, a defendant may be convicted only when a unanimous jury
    concludes that the criminal act charged in the information has been committed." State v.
    Kitchen, 110Wn.2d403, 409, 
    756 P.2d 105
    (1988) (abrogated by In re Stockwell, 
    179 Wash. 2d 588
    , 
    316 P.3d 1007
    (2014)). "An accused person has a constitutional right to be
    informed of the charge he is to meet at trial and cannot be tried for a crime not
    charged." State v. Jain, 
    151 Wash. App. 117
    , 121,210P.3d 1061 (2009). In Jain, the
    State violated the defendant's right to notice by failing to provide adequate jury
    instructions:
    [N]o instruction asked the jury to unanimously decide which property's
    disposition made up the crime of money laundering. And the State does
    not argue that it made an election . . . [T]he jury in this case could have
    -17-
    No. 71330-2-1/18
    returned a guilty verdict by finding that Jain committed acts not charged in
    the information, specifically acts relating to properties other than the
    [properties identified in the information].
    
    Jain, 151 Wash. App. at 124
    .
    Unlike in Jain, the trial court properly instructed the jury here. As discussed
    above, the jury instructions required the jury to unanimously agree on specific acts for
    each count charged within the charged period. The information charged Johnson with
    three counts of rape of a child in the third degree, and each count alleged the criminal
    act occurred "during a period of time intervening between September 15, 2011 through
    April 1, 2012 . . . ." CP at 1-2. The jury instructions properly mirrored the counts
    charged in the information. The instructions indicated that, to return a guilty verdict on
    each count, the jury needed to find that Johnson had sexual intercourse with K.K.
    "during the period of time between September 15, 2011 and April 1, 2012." CP at 26-
    28. The jury is presumed to follow the court's instructions on the law. Under the facts
    presented and jury instructions given here, Johnson was convicted solely of acts for
    which he was charged. No violation of his right to notice occurred.
    Ineffective Assistance of Counsel
    Johnson argues that he was deprived of his constitutional right to effective
    assistance of counsel when his attorney failed to object to inadmissible hearsay,
    improper opinion on credibility and guilt, and unproved prior acts. He challenges the
    following evidence:
    [K.K.'s mother]: So then, when I got off the phone [with K.K.'s
    grandmother] I asked, I brought her in my room and I asked her what was
    going on.
    [STATE]: Asked who?
    -18-
    No. 71330-2-1/19
    [K.K.'s mother]: [T.K., K.K.'s sister,] asked her what was going on and she
    told me that [K.K.] told her that she wasn't really pregnant by [K.K.'s
    teenage boyfriend]. It was Anton's baby.
    [STATE]: Did you ever, after [T.K.] told you that [K.K.] said it was Anton
    that she was pregnant by, did you ask [K.K.] whether or not that was true?
    [K.K.'s mother]: I did. After I talked to [T.K.] I brought [K.K.] into the room
    and I asked her and said, yes, it was true.
    RP(Oct. 29, 2013) at 126.
    [T.K.]: Like, I could hear them [Johnson and K.K.], but they were like
    arguments like, "you got me pregnant." She used to have the argument
    just like—
    [STATE]: When did you learn that [K.K.'s boyfriend] was actually not the
    father of [K.K.Vs baby?
    [T.K.]: When she told me.
    [STATE]: What did you tell [your mother]?
    [T.K.]: I said, "Anton hurt [K.K.]."
    [STATE]: Did you get any more specific than that?
    [T.K.]: I said, "the baby that she had, it was his."
    RP (Oct. 29, 2013) at 152-53, 155.
    [STATE]: You asked [K.K.] at that point whether those things were true?
    [K.K.'s grandmother]: Yes.
    [STATE]: And she said, yes, they were?
    [K.K.'s grandmother]: Yes.
    RP(Oct. 29, 2013) at 233.
    Johnson also claims counsel failed to object to K.K.'s statement that she told
    both her sister and her mother that Johnson was the father of the baby.
    -19-
    No. 71330-2-1/20
    Johnson asserts counsel failed to object to the following hearsay and opinion
    evidence:
    [K.K.'s grandmother]: The text [from K.K.'s mother] said, "ask your nigger
    how long he been sleeping with your granddaughter."
    [STATE]: Did you ever ask [K.K.] about it, whether it was true or not?
    [K.K.'s grandmother]: I asked her, I said, "well, you know, I wanted her to
    know that no matter—I support you." Because I love my grandchildren.
    They are my life. So I wanted her to know that I am not calling her to
    scold her or to, you know, talk bad to her. I just wanted to know the truth.
    I said, "did it happen?"
    She said, "yes."
    I said, "well, how long has this been going on?"
    She said, "for a while." So we just talked. I wanted her to know
    that I love her. I am not mad at her.   I believe her.
    RP(Oct. 29, 2013) at 208-09.
    Johnson also contends defense counsel improperly opened the door to extensive
    hearsay and ER 404(b) evidence during Officer Eric Beseler's testimony. On direct
    examination, the officer mentioned he interviewed K.K.'s mother and T.K. During cross-
    examination, defense counsel questioned the officer regarding what T.K. said in this
    interview. On re-direct, the prosecutor asked the officer to recount everything T.K. had
    told him:
    [T.K.] explained when she and her sister were at the basketball
    court, the talk turned to older men being interested in them.
    [K.K.] confided slowly that Anton [Johnson] had showed an interest
    in her sexually. By the time that they returned home, [K.K.] was braiding
    [T.K.'s] hair and [K.K.] had said to have divulged that she had begun
    having sex with Anton [Johnson] when she was 11 years old. The first
    time was said to have occurred in the back room while other family
    members slept after Anton [Johnson] told her that he found her attractive
    saying that she was quote beautiful unquote and quote had a nice booty.
    [T.K.] stated that [K.K.] further stated that they continued to have sex on
    multiple other occasions.
    -20-
    No. 71330-2-1/21
    RP(Oct. 29, 2013) at 181-82.
    Standard of Review
    This court reviews claims for ineffective assistance of counsel de novo. State v.
    Sutherbv, 
    165 Wash. 2d 870
    , 883, 
    204 P.3d 916
    (2009). "To prevail on a claim of
    ineffective assistance of counsel, counsel's representation must have been deficient,
    and the deficient representation must have prejudiced the defendant." State v. Aho,
    
    137 Wash. 2d 736
    , 745, 
    975 P.2d 512
    (1999); Strickland v. Washington, 
    466 U.S. 668
    ,
    687, 
    104 S. Ct. 2052
    , 
    80 L. Ed. 2d 674
    (1984). "To establish ineffective representation,
    the defendant must show that counsel's performance fell below an objective standard of
    reasonableness. To establish prejudice, a defendant must show that but for counsel's
    performance, the result would have been different." State v. McNeal, 
    145 Wash. 2d 352
    ,
    362, 
    37 P.3d 280
    (2002) (citation omitted). Failure to establish either prong of the test is
    fatal to an ineffective assistance of counsel claim. 
    Strickland, 466 U.S. at 700
    .
    Deficient Performance
    Johnson failed to show that his counsel's performance was deficient. He has not
    shown that any objection would likely have been sustained, nor has he overcome the
    strong presumption that the decision not to object was a reasonable tactical decision.
    We are reluctant to find ineffective assistance of counsel except in the most
    extreme cases. "[S]crutiny of counsel's performance is highly deferential and courts will
    indulge in a strong presumption of reasonableness." State v. Thomas, 
    109 Wash. 2d 222
    ,
    226, 
    743 P.2d 816
    (1987). This is particularly true where, as here, the alleged deficient
    performance consists of an attorney's failure to object. "The decision of when or
    -21-
    No. 71330-2-1/22
    whether to object is a classic example of trial tactics. Only in egregious circumstances,
    on testimony central to the State's case, will the failure to object constitute
    incompetence of counsel justifying reversal." State v. Madison, 
    53 Wash. App. 754
    , 763,
    
    770 P.2d 662
    (1989). Further, "[w]here a claim of ineffective assistance of counsel rests
    on trial counsel's failure to object, a defendant must show that an objection would likely
    have been sustained." State v. Fortun-Cebada, 
    158 Wash. App. 158
    , 172, 
    241 P.3d 800
    (2010).
    Even if defense counsel had objected, proper grounds to admit the evidence
    existed, justifying its admission at trial. Not all out of court statements constitute
    hearsay. Hearsay is an out of court statement offered to prove the truth of the matter
    asserted, and is generally inadmissible except as provided in the rules of evidence. "In
    some cases, the courts have held that a statement is not hearsay if it is offered as
    'background' (typically explaining why a person did or said something) or to supply a
    context for some other statement that is admissible. Usually these cases involve
    statements implicating the defendant in a criminal case, but offered for the limited
    purpose of explaining actions taken by police and others. In at least one case, the court
    admitted an out-of-court statement by a third person to supply context for a statement
    by the defendant." Evidence Lawand Practice, 5B Washington Practice § 801.13,
    347-48; State v. Moses, 
    129 Wash. App. 718
    , 732, 
    119 P.3d 906
    (2005) (Prosecution for
    murder. Victim told social worker about defendant's tendency toward violence in the
    home. The court held the victim's statements to social worker were not hearsay
    because they were not offered to prove the truth of the matter asserted. The
    statements were offered for nonhearsay purpose, to "show why [the social worker]
    -22-
    No. 71330-2-1/23
    contacted CPS." Also, the court found no confrontation clause violation.). Here, the
    alleged hearsay statements fall under this well-settled rule and constitute nonhearsay
    statements offered to show why K.K.'s grandmother confronted Johnson and his
    subsequent admission of guilt to her and why Johnson called K.K.'s mother and his
    admission of guilt to her. Given Johnson's well developed "theme" at trial, discussed
    below, a reasonable jury would clearly understand that the alleged hearsay statements
    were offered solely to provide context for the defendant's statements to K.K.'s mother
    and grandmother. See State v. Demery, 
    144 Wash. 2d 753
    , 762, 
    30 P.3d 1278
    (2001) (no
    error in failing to give limiting instruction because the jury "clearly understood" that the
    third party's statements were offered solely to provide context for the defendant's
    statements.).9 Johnson's deficient performance claim based on defense counsel's
    failure to object is not persuasive.
    Even assuming counsel's failure to object constitutes deficient performance, the
    record demonstrates a reasonable tactical decision not to object. Throughout the trial
    from opening through closing remarks, counsel's defense strategy consisted of a well
    developed theme—K.K., T.K., and K.K.'s mother and grandmother intensely disliked
    Johnson and collaborated to oust him from the residence. Defense counsel stated in
    opening remarks: "Ladies and gentlemen of the jury, this is the case about the two
    sisters who got their way, when they got rid of Anton Johnson from their household."
    RP (Oct. 29, 2013) at 111. He reemphasized this theme in his closing argument:
    9 The State argues that some of the alleged hearsay statements are admissible
    as nonhearsay statements of identification under ER 801(d)(1). This assertion is
    questionable because the rule suggests a temporal requirement—a prompt
    identification after perceiving the person.
    -23-
    No. 71330-2-1/24
    In my opening statements, we talked about a theme that I thought
    would inform all of the evidence that you heard in this case. That is how
    this family the King family and the dislike of Anton Johnson and his role in
    that family started very early on, the strain of dislike runs through the
    testimony of [K.K.'s mother], [T.K.], [K.K.], and in the end, [K.K.'s
    grandmother].
    [K.K.'s mother], in her testimony, said that she did not want him
    there from the beginning.
    RP (Oct. 30, 2013) at 336. Defense counsel argued that all of the witnesses used
    similar language, suggesting they had conspired:
    It is interesting that even the words that they chose on the witness stand
    and you saw them all testify together, there was no other witness in the room
    watching the testimony of the other family member, but they all just used that
    word, too. It is like a phraseology that seems to have developed over the last
    period of time since this happened and their testimony.
    Obviously, they have been talking about the blindly assumed thing as the
    story,[1°l the family story to tell.
    RP (Oct. 30, 2013) at 342-343. Defense counsel used the hearsay statements to
    advance the defense theory:
    [T.K.] hated Anton from earlier on. She said that he played sisters
    against each other. He would tell one she was pretty. Tell the other one
    something different. She said that he had said in this family many times
    and in public that she hated Anton from the beginning. She said even on
    one occasion she said that she wanted to kill him.
    Most tellingly, when [K.K.] told her what had happened to her, when
    [K.K.] told her, we would submit, that the untruth that Anton did this, she
    said, "I am going to send you to where your momma is." That is when she
    called Anton on the phone . . . [K.K.'s grandmother] decided to cast her lot
    with her own immediate family ....
    RP (Oct. 30, 2013) at 336-37. Defense counsel also challenged the family members'
    credibility by repeatedly referring to their testimony as "hearsay upon hearsay" and
    10 The "blindly assumed thing" to which defense counsel refers is the fact that
    K.K.'s sister, mother, and grandmother all initially assumed that the father of K.K.'s baby
    was her teenage boyfriend and none of them questioned whether it was someone else.
    -24-
    No. 71330-2-1/25
    "double hearsay on hearsay." RP (Oct. 30, 2013) at 339-40; see State v. Soonalole, 
    99 Wash. App. 207
    , 216, 
    992 P.2d 541
    (2000) (Counsel's performance was not deficient
    when counsel used alleged hearsay statements to undermine the victim's credibility).
    Defense counsel's decision not to object to alleged hearsay statements was a
    reasonable trial strategy given the facts in this case.
    Prejudice
    Even assuming deficient performance by defense counsel, Johnson cannot show
    a reasonable probability that, but for counsel's errors, the verdict would have been
    different.
    When a claim of ineffective assistance of counsel is based on the failure to
    object, "[o]nly in egregious circumstances on testimony central to the State's case" will
    the failure to object constitute incompetence of counsel justifying reversal. 
    Madison, 53 Wash. App. at 763
    . None of the statements Johnson points to were central to the State's
    case. The alleged hearsay consists only of the assertions that Johnson was having sex
    with and impregnated K.K. Other than K.K., none of the family members testified to any
    description of the sex acts. K.K. gave thorough, detailed testimony about the numerous
    sex acts, and two witnesses testified that Johnson confessed to committing those acts.
    The family members' alleged hearsay statements were merely cumulative of K.K.'s
    testimony. In State v. Owens, 
    128 Wash. 2d 908
    , 
    913 P.2d 366
    (1996), a child molestation
    case, the admission of erroneous hearsay statements made by the victim to family
    members was harmless because "B.K. testified about the rapes at trial. . . The hearsay
    at issue consists only of the assertion that Owens molested B.K. Neither B.K.'s mother
    -25-
    No. 71330-2-1/26
    nor his grandmother testified to any description of the molestation . . . The State also
    presented extensive medical evidence . . . ." 
    Owens, 128 Wash. 2d at 914
    .
    Under the circumstances presented here, Johnson cannot show prejudice. The
    alleged hearsay could not have affected the verdict. See 
    Owens. 128 Wash. 2d at 914
    ("Under these circumstances, admission of B.K.'s [hearsay] statements to his mother
    and grandmother could not have affected the verdict."). Because Johnson establishes
    neither deficient performance nor prejudice, his ineffective assistance claim fails.
    Opinion on Credibility and Guilt
    Johnson argues a comment by K.K.'s grandmother that she believed K.K.'s story
    constitutes an impermissible opinion on credibility and guilt.
    In the context of the entire conversation between K.K. and her grandmother, it is
    evident that a reasonable jury would consider the comment as nothing more than words
    of reassurance and comfort rather than an impermissible opinion on credibility and guilt.
    This isolated, benign comment could not have affected the verdict in this case.
    Unproved Prior Acts
    Johnson also argues that his attorney improperly opened the door to K.K.'s
    testimony, discussed above, that sex with Johnson began when she was 11-years-old.
    He claims his attorney's cross-examination of Officer Beseler about his interview with
    T.K. opened the door to the prosecutor's redirect examination of Officer Beseler who
    testified that T.K. told him that K.K. said "she had began having sex with [Johnson]
    when she was 11 years old." RP (Oct. 29, 2013) at 182.
    But Johnson does not establish that counsel's cross-examination of Officer
    Beseler about T.K.'s statements to him constitutes ineffective assistance of counsel.
    -26-
    No. 71330-2-1/27
    The scope of cross-examination is generally a matter of judgment and strategy. State v.
    Johnston, 
    143 Wash. App. 1
    , 20, 
    177 P.3d 1127
    (2007). We do not rest an ineffective
    assistance of counsel claim upon cross-examination strategy in the absence of specific
    reasons how such strategy is sufficient to undermine confidence in Johnson's
    conviction. See State v. Thomas, 
    109 Wash. 2d 222
    , 225-26, 
    743 P.2d 816
    (1987) (citing
    
    Strickland, 466 U.S. at 694
    ).
    The record shows that defense counsel asked the officer about "one statement"
    in his report—K.K. and T.K's "sharing secrets about older men" and "talking about older
    men being interested in them at the basketball court." RP (Oct. 29, 2013) at 181. It is
    questionable whether this single inquiry "opened the door" to K.K.'s comment about sex
    with Johnson beginning at age 11.
    Indeed, what the record actually shows is the prosecutor's assumption that
    counsel's limited questioning allowed him to ask the officer to read T.K.'s complete
    statement to the jury from his report.11 Johnson did not object at trial when the
    prosecutor asked Officer Beseler to read from his report and he assigned no error to the
    decision not to object.
    Further, defense counsel's narrowly drawn cross-examination of Officer Beseler
    was strategically aimed at undermining T.K. and K.K.'s credibility by showing that T.K.
    and K.K. shared "secrets" and tried to "top each others' stories" with "something more
    outrageous than you," an overarching theme he developed throughout the trial. RP
    (Oct. 30, 2013) at 346.
    11 The prosecutor stated "I guess we can go through what T.K. said, then." RP
    (Oct. 29, 2013) at 181.
    -27-
    No. 71330-2-1/28
    Johnson establishes neither deficient performance nor prejudice.12
    Sentence for Community Custody
    Johnson argues the court erred when it imposed community custody in addition
    to the statutory maximum term of confinement. Initially, the State conceded the
    sentence was improper and agreed with Johnson that the case should be remanded to
    the trial court only for the purpose of amending the sentence. But while Johnson's
    appeal was pending, our Supreme Court decided State v. Bruch, in which it held that
    trial courts may impose variable terms of community custody such that a defendant's
    total confinement does not exceed the statutory maximum. Bruch controls here, and we
    need not remand for resentencing.
    In Bruch, the defendant claimed that his sentence was indeterminate because
    "the trial court added a term of community custody for the entire period of early release."
    
    Bruch, 182 Wash. 2d at 862
    (internal quotations omitted). The court rejected this
    argument: "A sentence is not indeterminate just because an offender may earn early
    release credits . . . Thus, trial courts still necessarily impose variable community custody
    periods in the sense that terms of confinement may later be shortened . . . ." 
    Bruch, 182 Wash. 2d at 862
    -863.
    As in Bruch, the trial court here ordered a variable term of community custody not
    to exceed the statutory maximum: "[Community custody] is ordered for any period of
    time the defendant is released from total confinement before the expiration of the
    12 Johnson cites a civil case, Saks v. Hi-Tech Erectors. 
    168 Wash. 2d 664
    , 
    230 P.3d 583
    (2010). That case involved unfair prejudicial evidence—a party's immigration
    status.
    -28-
    No. 71330-2-1/29
    maximum sentence." CP at 37.13 Johnson argues that a trial court may not "impose a
    variable term depending on the length of earned early release." Br. of Appellant at 25.
    But, as in Bruch, Johnson's variable term of community custody does not exceed the
    statutory maximum. It merely requires that, if Johnson is released early, he is
    transferred to community custody for the remaining amount of time available in the
    statutory maximum sentence. Bruch's sentence operated in the same way, and the
    court rejected his argument that the variable community custody term was improper.
    Bruch, 182 Wn.2d. at 862-863. We conclude the trial court's sentence here was proper.
    CONCLUSION
    For the reasons discussed above, Johnson failed to establish that the State
    violated his constitutional rights to sufficient evidence, jury unanimity, notice, and a fair
    trial. Johnson also failed to establish ineffective assistance by trial counsel and any
    error in sentencing. We affirm his convictions for three counts of third degree rape of a
    child.
    WE CONCUR:
    u          it
    13 In Bruch, the statutory maximum sentence was 120 months, and the trial court
    imposed a sentence of 116 months of confinement and ordered community custody for
    a period of "at least 4 months, plus all accrued earned early release time at the time of
    release." 
    Bruch, 182 Wash. 2d at 859
    .
    -29-