State of Washington v. Patrick J. Crossguns, Sr. ( 2020 )

FILED
DECEMBER 8, 2020
In the Office of the Clerk of Court
WA State Court of Appeals Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, )
) No. 37079-8-III
Respondent, )
)
v. )
) UNPUBLISHED OPINION
PATRICK J. CROSSGUNS SR, )
)
Appellant. )
FEARING, J. — Patrick Crossguns appeals his convictions of rape and child
molestation of his daughter. He challenges the introduction of evidence of other
purported sexual misconduct beyond the charged incidents and prosecutor’s remarks to
the jury that they must decide whether Crossguns or his daughter told the truth. We rule
that the prosecuting attorney committed prejudicial and reversible error when presenting
the jury a false choice.
FACTS
We gather the facts from trial testimony. We relate the facts in a light favorable to
the State. Most of our narrative comes from the testimony of the alleged victim, Rhonda.
We use pseudonyms for all minors.
In March 2006, Child Protective Services removed Rhonda, born September 11,
2002, from her biological mother’s care and placed her with her father, Patrick
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Crossguns, in Montana. Crossguns was married to Marsha Matte, who also contributed
three children to the household. Crossguns and Matte then bore two children together.
In 2015, Marsha Matte, Patrick Crossguns, and their four youngest children,
including Rhonda then age 12, moved from Montana to Spokane. Three days later,
Crossguns took Rhonda and his son, Peter, and returned to Montana so that Crossguns
could complete his final two weeks at work.
According to Rhonda, during the return trip to Montana, Patrick Crossguns
touched her inappropriately for the first time. Peter, with a set of head phones covering
his ears, sat in the car’s back seat and played video games. Crossguns stroked Rhonda’s
thigh. Her father told her, as he stroked, that his mother had similarly rubbed him.
Crossguns told Rhonda she was beautiful. He touched her shorts over her vagina. The
fondling continued for thirty minutes to an hour.
While in Montana, Patrick Crossguns slept in between his two children on a large
floor mattress. On the first night, according to Rhonda, her father placed his hand under
her shorts and underwear and touched her vagina. A disgusted Rhonda left the mattress
for the living room couch. Crossguns followed Rhonda to the living room, displayed
pornography on his computer, and told Rhonda to look at the screen. He stroked her leg
and digitally penetrated her vagina. She repeatedly told him to stop. Rhonda felt both
torn and scared. She loved her father but his conduct rendered her angry, disgusted, and
ashamed. At the end of the assault, Crossguns told Rhonda he was sorry for his behavior
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and he would not repeat the conduct. He added, however, that he was glad to have given
Rhonda her first orgasm.
According to Rhonda, on the return to Spokane, Patrick Crossguns continued to
touch her inappropriately most nights and during car rides when the two were alone. At
night, Crossguns frequently entered Rhonda’s basement level bedroom that she shared
with her sister Cathy. Cathy slept through the episodes. Crossguns told Rhonda once
that he would not touch Cathy because Cathy would report his behavior to her mother.
In early 2016, Marsha Matte’s son and Patrick Crossguns’ stepson, Bob, resided
for three months with the extended Matte and Crossguns family in Spokane. Bob slept in
the basement and could hear footsteps when someone went up or down the stairs. Bob
often heard Crossguns’ footsteps during the night, and, on one occasion, Bob saw
Crossguns coming from Rhonda’s and Cathy’s bedroom sometime between 11:00 p.m.
and 2:00 a.m.
One late night, Bob accused Patrick Crossguns of deviously entering the basement
and molesting Rhonda. A physical fight erupted. Bob punched Crossguns’ jaw and
broke the jawbone.
Other family members observed that Patrick Crossguns treated Rhonda differently
from his other children. Rhonda’s brother, Tim, testified that the father hugged Rhonda
differently from his other siblings. Crossguns placed his hands on Rhonda’s lower back
when hugging. Tim wondered why Crossguns treated Rhonda differently, but he never
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voiced concerns. Other family members observed that Crossguns took Rhonda for
lengthy car rides.
In April or May 2016, Rhonda and two of her siblings, Peter and Cathy, sat in the
living room watching television. Patrick Crossguns called Rhonda to come to the
basement, where he prepared a resume. After first ignoring her father, Rhonda, at the
urging of her siblings who were annoyed at Crossguns’ continued yelling, walked
downstairs. She sat on the bed and assisted her father with spelling words. According to
Rhonda, Crossguns placed his hand on her thigh, while he typed. After a period of
stroking, Crossguns attempted to place his hands inside Rhonda’s pants, and she
struggled to flee. Crossguns grabbed Rhonda’s legs and forced his hands down her pants.
Rhonda continued to struggle. Crossguns told his daughter that, if she did not struggle,
he would not touch her for a month. Rhonda continued to struggle anyway, and
Crossguns promised not to fondle her for two months if she ceased resisting. When
Rhonda continued to attempt to leave her father’s grasp, he claimed he would not touch
her for three months if she did not struggle. Crossguns added that, if Rhonda did not
agree to his terms, he would continue to molest her. Rhonda relented based on the three
months promise. She believed that a period without assaults would ameliorate her
depression and reduce her thoughts of suicide. Crossguns then digitally entered
Rhonda’s vagina. After minutes of digital penetration, Crossguns removed his fingers
and congratulated Rhonda for now being a woman.
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During the ensuing three months, Patrick Crossguns attempted to fondle Rhonda
despite his pledge. Each time, Rhonda reminded her father of his promise, and he ceased
his attempt. But Crossguns began to count, for Rhonda, the remaining days left on his
promise.
On August 2, 2016, Marsha Matte, Patrick Crossguns, Peter, and Rhonda watched
television in the family residence’s living room. Matte exited the house in order to
escape the inside heat. Peter joined Matte on the porch, after which Matte heard the
volume on the television increase. Matte told Peter to return inside and tell his father to
decrease the volume. When Peter returned to the living room, he spied his father’s hands
inside his sister’s pants. According to Rhonda, Crossguns’ hand on this occasion went
within an inch and a half from her vagina. An upset Peter returned to the porch, where he
initially avoided eye contact with his mother. Later, however while the two remained on
the porch, Peter reported to his mother that he saw Patrick Crossguns’ hands between
Rhonda’s legs.
Marsha Matte did not confront Patrick Crossguns that evening. RP 383. The next
morning, August 3, 2016, Matte asked Rhonda whether her father put his hand inside her
pants. Rhonda denied the fondling. Later that day, Matte confronted Crossguns, who
denied touching Rhonda. Crossguns asked a nearby Rhonda: “I’m not touching you, am
I?” Report of Proceedings (RP) at 387. Rhonda again denied the fondling.
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On August 7, 2016, Patrick Crossguns returned to Montana after telling Marsha
Matte he planned to sell his horses. He indicated he would return in two weeks.
Crossguns never returned to Spokane, and he did not answer calls from his family. After
his departure, Marsha Matte again questioned Rhonda whether her father touched her
private parts. This time Rhonda described Crossguns’s sexual abuse.
PROCEDURE
The State of Washington charged Patrick Crossguns with rape of a child in the
second degree and child molestation in the second degree. The State alleged Crossguns
raped Rhonda, in the downstairs bedroom “on or about between April 1, 2016 and May
31, 2016,” when Crossguns digitally penetrated Rhonda’s vagina. Clerk’s Papers (CP) at
80. The State alleged that Crossguns molested Rhonda when he inappropriately touched
her, while on the living room couch “on or about between August 1, 2016 and August 6,
2016.” CP at 80. The State also alleged, for each count, two aggravating circumstances
of an ongoing pattern of sexual abuse of the same victim and violation of a position of
trust, confidence, or fiduciary responsibility.
Before trial, the State moved for an order permitting introduction of evidence of
sexual misconduct of Patrick Crossguns, which conduct did not form the basis for the two
charges against him. The State asked to submit evidence of sexual abuse of Rhonda
beginning with the trip to Montana in 2015 through the last sexual contact in August of
2016. The State argued that, pursuant to RCW 9.94A.537(4), evidence of prior sexual
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misconduct was relevant to support the sentencing aggravating factors. The State also
contended that, even without the aggravating factors, the evidence was admissible to
show Crossguns’ lustful disposition toward Rhonda and to demonstrate his motive, plan,
intent, opportunity, and grooming of Rhonda under ER 404(b). According to the State,
the other misconduct constituted the res gestae of the case. Finally, the State maintained
that the evidence of the continuing abuse explained why Rhonda did not earlier disclose
the abuse to another.
As a result of the State’s motion to introduce evidence of other sexual misconduct,
Patrick Crossguns moved to bifurcate the trial on the two criminal charges from the trial
on the aggravating factors. He argued that evidence admitted to support the aggravating
factors must comply with requirements outlined in RCW 9.94A.537(4). The statute
authorizes the trial court to conduct a separate proceeding if evidence supporting the
aggravating factor is not part of the res gestae of the underlying crimes. Crossguns
characterized the State’s attempt to introduce evidence of other acts as a ruse to introduce
inadmissible propensity evidence. Crossguns added that any probative value of the
evidence outweighed its prejudice to him. He moved to bar introduction of the evidence
because the evidence did not serve any of the purposes listed in ER 404(b) as reasons for
introduction of evidence of other acts of misconduct.
The State resisted Patrick Crossguns’ motion to bifurcate the hearing on the
criminal charges from the hearing on the aggravating factors. The State contended, in
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part, that the probative value of the evidence of other misconduct substantially
outweighed any risk of prejudice. The State also argued that, under RCW
9.94A.535(3)(g), facts supporting an ongoing pattern of abuse of the same victim must be
presented to the jury during the trial of the crimes charged.
The trial court admitted, pursuant to ER 404(b), the evidence of other misconduct.
In so ruling, the court found that the conduct likely occurred. The evidence served the
purpose of showing lustful disposition toward Rhonda, motive, intent, plan, an
opportunity to groom the victim, and absence of mistake or accident. The evidence held
relevance to such purposes. Finally, the high probative value of the evidence outweighed
any unfair prejudice. Because the State could admit the evidence for purposes of proving
the underlying crime, bifurcating the hearing on the aggravating factors lacked
importance. Therefore, the trial court denied Patrick Crossguns’ motion for bifurcation.
As a result of the trial court’s evidentiary ruling, Rhonda testified to the first
sexual touching that occurred during the car ride to Montana as well as other touching
while in Montana. Rhonda testified to the many instances of fondling at night when
Patrick Crossguns crept into her Spokane bedroom at night. Family members testified to
instances when they saw Crossguns touch Rhonda in a different manner to that of his
other children.
During the trial, the defense called Patrick Crossguns’ niece and Rhonda’s cousin,
Susan, who testified that Rhonda told Susan that she lied about the allegations against her
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father. Susan memorialized Rhonda’s purported confession in a letter, at the urging of
her grandmother, Patsy Crossguns, Crossguns’ mother. During trial, Rhonda denied
making any such concession to her cousin. Rhonda averred that, when her cousin
inquired as to why she had accused her father, Rhonda never responded.
During the State’s closing argument, the prosecutor told the jury that they must
determine who was telling the truth between the two cousins, Susan or Rhonda:
[Susan] told you about an alleged conversation that she had with
[Rhonda] in which [Rhonda] said she was lying, none of this happened.
You heard from [Rhonda] earlier, that that conversation never happened.
Somebody’s lying. It’s your job to determine who’s lying. Is [Rhonda]
lying or is [Susan] lying?
And that’s your job entirely, but here’s some things that I think you
should bear in mind when you discuss that.
RP at 815. The State’s attorney also told the jury that it must determine whether Patrick
Crossguns or Rhonda told the truth:
But, again, you have the testimony of [Rhonda], on one hand, and
[Patrick Crossguns’] testimony on the other hand. Somebody’s not telling
the truth, and, again, you’re going to have to make that decision. Who is
lying and who is telling the truth.
RP at 817.
During summation, the State addressed the various different purposes for which
the jury could consider the evidence of other sexual misconduct. In turn, as part of the
jury instructions, the trial court instructed the jury as follows:
Certain evidence has been admitted in this case only for limited
purposes. This evidence consists of evidence the defendant allegedly
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engaged in sexual abuse of [Rhonda] not charged in the information and
may be considered by you only for the purpose(s) of determining the
defendant’s intent, plan, motive, opportunity, absence of mistake or
accident, lustful disposition toward [Rhonda], [Rhonda’s] state of mind of
her delayed disclosure of the alleged abuse, and/or whether the charged
conduct was part of an ongoing pattern of sexual abuse and/or involved an
abuse of trust or confidence. You may not consider it for any other
purpose. Any discussion of the evidence during your deliberations must be
consistent with this limitation.
CP at 93.
The jury convicted Patrick Crossguns on both rape of a child in the second degree
and child molestation in the second degree. The jury also found that the State established
each aggravating circumstance for both counts.
LAW AND ANALYSIS
On appeal, Patrick Crossguns assigns error to the trial court’s admission of
evidence of misconduct that did not form the basis of the two charges. In so arguing, he
asks that this court abandon Washington’s “lustful disposition” doctrine as incompatible
with ER 404(b). Crossguns also asserts that the prosecutor engaged in misconduct,
during closing statements, when informing the jury that it must decide who is telling the
truth and in misstating the missing witness rule. Finally, Crossguns contends that
cumulative error requires reversal. We agree with Crossguns that the State’s attorney
engaged in error that demands reversal of the conviction. For this reason, we do not
address any cumulative error. Because the trial court may face the same evidentiary
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issues on remand, we address the court’s admission of evidence of other misconduct and
conclude that the trial court committed no error.
Admission of Prior Acts
Issue 1: Whether Patrick Crossguns waived any error resulting from admission of
evidence of other sexual misconduct?
Answer 1: No.
Before addressing the merits of Patrick Crossguns’ assignment of evidentiary
error, we must respond to the State’s argument that Crossguns partially waived this
assignment of error. The State contends that Crossguns did not preserve, before the trial
court, any challenge to introduction of evidence of other misconduct except on prejudice
grounds. The State argues that Crossguns failed to contest the legitimacy of the purposes
asserted by the State to admit the evidence under ER 404(b), but rather challenged the
evidence solely on the basis of ER 403. At most, the State argues, Crossguns preserved
his argument against admission of res gestae evidence. The State also maintains that
Crossguns did not argue to the trial court in favor of abandoning the the lustful
disposition doctrine.
An appellate court may refuse to review any claim of error not raised in the trial
court. RAP 2.5(a). When the appellant failed to assert the specific objection at trial, he
loses the opportunity for review on that basis. State v. Guloy, 104 Wn.2d 412, 422, 705
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P.2d 1182 (1985). A party may assign evidentiary error on appeal only on a specific
ground declared at trial. State v. Kirkman, 159 Wn.2d 918, 926, 155 P.3d 125 (2007).
We disagree with the State’s reading of the trial court record. Although Patrick
Crossguns sought to exclude evidence of other acts of alleged misconduct on the ground
of prejudice, he also moved to exclude the evidence because the State would
inappropriately use the evidence to show a propensity to commit the crimes. More
importantly, he argued that the testimony would serve none of the purposes listed in
ER 404(b) as an exception to propensity evidence. Thus, Crossguns did not waive his
right to challenge the applicability of ER 404(b).
We agree with the State that Patrick Crossguns did not argue for an abandonment
of the lustful disposition doctrine before the trial court. Nevertheless, because of
prosecutorial misconduct, we remand this case for a new trial, and the question of the
application of the lustful disposition doctrine will probably arise during the new trial.
Therefore, we also address Crossguns’ request to abandon the doctrine.
Issue 2: Whether this intermediate appeals court should abandon the lustful
disposition doctrine?
Answer 2: No.
The Washington Supreme Court has consistently recognized that evidence of
collateral sexual misconduct may be admitted under ER 404(b) when it shows the
defendant’s lustful disposition directed toward the offended female. State v. Ray, 116
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Wn.2d 531, 547, 806 P.2d 1220 (1991); State v. Camarillo, 115 Wn.2d 60, 70, 794 P.2d
850 (1990); State v. Ferguson, 100 Wn.2d 131, 133-34, 667 P.2d 68 (1983). The
evidence must be limited to conduct directed to the charged crime’s victim so that the
evidence does not simply reveal the accused’s general sexual proclivities. State v.
Medcalf, 58 Wn. App. 817, 822-23, 795 P.2d 158 (1990). The Supreme Court has
reasoned that a lustful inclination of the accused toward the offended female makes it
more probable that the defendant committed the offense charged. State v. Ferguson, 100
Wn.2d 131, 134 (1983). The evidence establishes a sexual desire for the particular
female. State v. Ferguson, 100 Wn.2d at 134. The testimony is admissible even if not
corroborated by other evidence. State v. Ray, 116 Wn.2d 531, 547 (1991).
One might question the logic behind the lustful disposition doctrine. After all,
many men have a lustful disposition to a large population of females or males such that a
lustful disposition to the crime victim is nothing more than an expression of general
sexual proclivities. Nevertheless, we are bound by Washington Supreme Court
precedent. State v. Gore, 101 Wn.2d 481, 487, 681 P.2d 227 (1984). Any abolition of
the doctrine must come from the state high court.
Issue 3: Whether the trial court erred when admitting evidence of uncharged
conduct of Patrick Crossguns?
Answer 3: No.
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Patrick Crossguns solicits our abrogation of the lustful disposition doctrine as a
means to the end of challenge to the trial court’s admission of evidence of alleged
uncharged sexual abuse under ER 404(b). The full text of the rule reads:
Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs,
or acts is not admissible to prove the character of a person in order to show
action in conformity therewith. It may, however, be admissible for other
purposes, such as proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident.
(Boldface omitted.)
A trial court must always begin with the presumption that evidence of other bad
acts is inadmissible. Along these lines, the State may not admit evidence of other
misconduct in order to argue that, when committing the charged crime, the accused acted
in conformity to his character and conduct on other occasions. ER 404(b) prohibits
admission of evidence to prove a defendant has a criminal propensity. State v.
DeVincentis, 150 Wn.2d 11, 17, 74 P.3d 119 (2003).
Notwithstanding the presumption of exclusion, ER 404(b) allows admission of
evidence of other bad acts if the evidence serves a nonpropensity purpose. The list of
other purposes in the second sentence of ER 404(b) is merely illustrative. The burden of
demonstrating a proper purpose is on the proponent of the evidence. State Gresham, 173
Wn.2d 405, 420, 269 P.3d 207 (2012).
The trial court must read ER 404(b) in conjunction with ER 403. State v.
Gunderson, 181 Wn.2d 916, 923, 337 P.3d 1090 (2014); State v. Fisher, 165 Wn.2d 727,
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745, 202 P.3d 937 (2009). Under ER 403, evidence must be excluded even if relevant, if
“its probative value is substantially outweighed by the danger of unfair prejudice.”
ER 403; State v. Smith, 106 Wn.2d 772, 776, 725 P.2d 951 (1986).
The Supreme Court has adopted a four step process to admitting evidence of prior
acts of misconduct. The trial court must:
(1) find by a preponderance of the evidence the misconduct actually
occurred, (2) identify the purpose of admitting the evidence, (3) determine
the relevance of the evidence to prove an element of the crime, and (4)
weigh the probative value against the prejudicial effect of the evidence.
State v. Fisher, 165 Wn.2d at 745. The trial court must analyze the four elements on the
record. State v. Gunderson, 181 Wn.2d at 923. On review, we consider bases mentioned
by the trial court as well as other proper bases on which we could sustain the trial court’s
admission of evidence. State v. Powell, 126 Wn.2d 244, 259, 893 P.2d 615 (1995).
If the trial court interprets ER 404(b) correctly, we review the trial court’s ruling
to admit or exclude evidence of misconduct for an abuse of discretion. State v. Fisher,
165 Wn.2d at 745; State v. Gresham, 173 Wn.2d 405, 419 (2012). A trial court abuses its
discretion if the evidentiary ruling is based on untenable grounds or untenable reasons.
State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).
Patrick Crossguns’ trial court astutely addressed all four required elements before
admitting the evidence of other criminal behavior. The court determined by a
preponderance of the evidence that uncharged acts of abuse occurred. The trial court
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determined that the evidence of past sexual conduct was relevant to nonpropensity
purposes, including lustful disposition, motive, opportunity, and intent. Finally, the
court, after weighing the evidence and reviewing case law cited by the parties, assessed
the probative value as high and as stronger than any risk of unfair prejudice to Crossguns.
The State correctly contends that evidence of other sexual assaults of Rhonda was
relevant and admissible to show the aggravating factors of a position of trust and an
ongoing pattern of sexual abuse toward the same victim. RCW 9.94A.535(d)(iv), (g).
For this reason alone, the trial court did not abuse its discretion in admitting the evidence.
But we recall that Patrick Crossguns sought to bifurcate the aggravating factors hearing
from the trial on the underlying crime, and the trial court based its evidentiary ruling in
part on its denial of the bifurcation request.
The State also correctly contends that evidence of the other sexual assaults was
admissible under the lustful disposition doctrine. For this additional reason, we conclude
that the trial court did not abuse its discretion when admitting the testimony of Rhonda
and others about Crossguns treatment of his daughter. Furthermore, we also need not
analyze whether the evidence was permissible, under ER 404(b), for other stated State
purposes: to show motive, intent, plan, an opportunity to groom the victim, absence of
mistake or accident, delay in reporting, or res gestae. We observe that the lustful
disposition doctrine may simply repeat one or more exceptions under ER 404(b) such as
intent, motive, common plan, and absence of mistake.
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Prosecutorial Misconduct
Issue 4: Whether the State’s attorney committed misconduct during closing
statement?
Answer 4: Yes.
Patrick Crossguns contends that the prosecuting attorney committed misconduct
when he (1) mischaracterized the State’s burden of proof and undermined Crossguns’
presumption of innocence, and (2) misstated the missing witness doctrine on an issue
important to Crossguns’ defense theory. The State responds that no misconduct occurred
and, even if it did, the defense cannot show that the conduct was flagrant and ill-
intentioned. We only address Crossguns’ complaint about a mischaracterization of the
burden of proof.
To resolve a claim of prosecutorial misconduct, we first inquire whether the
prosecutor made improper comments, then, if such comments were made, we inquire as
to whether they were prejudicial to the defendant. State v. Lindsay, 180 Wn.2d 423, 431,
326 P.3d 125 (2014). Patrick Crossguns bears the burden of proving that the prosecuting
attorney’s remarks were improper and prejudicial. State v. Thorgerson, 172 Wn.2d 438,
442, 258 P.3d 43 (2011).
Patrick Crossguns contends that the prosecuting attorney, during summation,
presented the jury with a false choice and told them that they must determine that Rhonda
lied in order to acquit him. The State responds that Crossguns misreads the record. The
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State emphasizes that the argument focused on witness credibility, which is permitted.
We agree with Crossguns.
When evidence contradicts a defendant’s testimony, the prosecutor may argue that
the defendant lied and that controverting witnesses told the truth. State v. McKenzie, 157
Wn.2d 44, 59, 134 P.3d 221 (2006). Nevertheless, the State may not argue that a jury
must find that the State’s witnesses lied or are mistaken in order to acquit a defendant.
State v. Fleming, 83 Wn. App. 209, 213, 921 P.2d 1076 (1996). Such an argument poses
a false choice since a jury could conclude it does not know who told the truth and thereby
acquit the accused because the State failed to meet its burden of proof beyond a
reasonable doubt. A jury could acquit the defendant of the crime even though it never
finds that the accusing witness lied or misspoke.
A prosecutor may not present a false choice to the jury. State v. Miles, 139 Wn.
App. 879, 890, 162 P.3d 1169 (2007). To the extent the prosecutor’s argument instructs
the jurors that they could find the accused not guilty only if they believed his evidence,
the prosecuting attorney commits misconduct. State v. Miles, 139 Wn. App. at 890.
In State v. Fleming the prosecutor stated during closing argument:
Ladies and gentlemen of the jury, for you to find the defendants,
Derek Lee and Dwight Fleming, not guilty of the crime of rape in the
second degree . . . you would have to find either that [victim] has lied about
what occurred in that bedroom or that she was confused; essentially that she
fantasized what occurred back in that bedroom.
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State v. Fleming, 83 Wn. App. at 213. This court determined that the prosecutor’s
argument misstated the law and misrepresented both the role of the jury and the burden of
proof. The jury would not have need to find that a victim was mistaken or lying in order
to acquit. Instead, the jury needed to acquit unless it had an abiding conviction in the
truth of her testimony.
In State v. Johnson, 158 Wn. App. 677, 243 P.3d 936 (2010), the trial court
instructed the jury that the State must prove all elements of the crime beyond a
reasonable doubt. The prosecutor told the jury that, to acquit the defendant, the jury
needed to find a reason for its doubt in the defendant’s guilt and that the jury needed to
disbelieve the defendant’s testimony. The court held that the argument constituted
misconduct since the argument subverted the defendant’s presumption of innocence.
In State v. Miles, 139 Wn. App. 879 the prosecutor told the jury that the versions
of events presented to them were “‘mutually exclusive.’” State v. Miles, 139 Wn. App.
at 889. The prosecutor further intoned:
What do I mean by that? To simplify it as much as possible, if one
is true, the other cannot be, as I’m sure you all know. If the State’s
witnesses are correct, the defense witnesses could not be and vice versa.
State v. Miles, 139 Wn. App. at 889 (internal quotations omitted). The prosecutor told
the jurors that they heard two conflicting versions of events and they must determine
which version of events was more credible. The prosecutor then reviewed the testimony
of the witnesses and argued as to the credibility of each. The court held that the
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prosecutor committed misconduct. The jury could conclude that it did not necessarily
believe Nathaniel Miles or his witness, but not be satisfied beyond a reasonable doubt
that Miles was the person who sold the drugs.
Patrick Crossguns’ prosecuting attorney told the jury:
[Rhonda’s cousin Susan] told you about an alleged conversation that
she had with [Rhonda] in which [Rhonda] said she was lying, none of this
happened. You heard from [Rhonda] earlier, that that conversation never
happened. Somebody’s lying. It’s your job to determine who’s lying. Is
[Rhonda] lying or is [her cousin] lying?
RP at 815 (emphasis added). The prosecutor repeated this theme when telling the jury
that it must determine whether Crossguns or Rhonda lied:
But again, you have the testimony of [Rhonda], on one hand, and his
testimony on the other hand. Somebody’s not telling the truth, and, again,
you’re going to have to make that decision. Who is lying and who is telling
the truth. I submit to you that you can’t believe what the defendant is
saying, and here is why . . . .
RP at 817 (emphasis added).
We disagree with the State that the prosecuting attorney, during his summation,
simply addressed the credibility of the witnesses and Patrick Crossguns. The State’s
attorney twice told the jury that it must decide who lied. Although the State did not
expressly utter the words “you must find Rhonda to have lied to acquit,” counsel’s
comments strongly implied that it could not acquit Crossguns without determining that
Rhonda prevaricated. The prosecuting attorney told the jury that its job was to determine
who told the truth. Since the jury’s sole duty was instead to determine if the State proved
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its case beyond a reasonable doubt, the prosecutor’s argument implied that they could
acquit Crossguns only after determining who told the truth. The State thereby indirectly
imposed a burden on Crossguns to prove Rhonda to be a liar. The State diminished
Crossguns’ presumption of innocence and lessened its burden to prove guilt beyond a
reasonable doubt.
Issue 5: Whether the prosecutorial misconduct merits vacation of the guilty
verdicts despite trial counsel’s failure to object to the State’s attorney’s remarks?
Answer 5: Yes.
Since we hold that Patrick Crossguns’ prosecuting attorney committed
prosecutorial misconduct, we must next measure the extent of the misconduct for the
purpose of determining whether to reverse the convictions. Crossguns’ trial counsel
failed to object to the misleading comments of the prosecutor concerning the need to
determine who told the truth. Different rules prevail concerning the nature of the
misconduct the appellant must show to gain a new trial depending on whether defense
counsel objected at trial.
To prevail on appeal on a claim of prosecutorial misconduct when the defense
objected below, the accused must show that the prosecuting attorney’s comments were
prejudicial. State v. Warren, 165 Wn.2d 17, 26, 195 P.3d 940 (2008); State v. Yates, 161
Wn.2d 714, 774, 168 P.3d 359 (2007) abrogated on other grounds by State v. Gregory,
192 Wn.2d 1, 427 P.3d 621 (2018). If defense counsel failed to object to the misconduct
21
No. 37079-8-III
State v. Crossguns
at trial, the defendant on appeal must show more than some prejudice. We consider the
claim of prosecutorial misconduct waived on appeal unless the misconduct is so flagrant
and ill-intentioned that it evinces an enduring prejudice the trial court could not have
cured by an instruction. State v. Loughbom, 196 Wn.2d 64, 74, 470 P.3d 499 (2020);
State v. Emery, 174 Wn.2d 741, 762, 278 P.3d 653 (2012). In numerous appeals, a court
may encounter difficulty in discerning whether the misconduct is flagrant and ill
intentioned or whether the prosecutorial misconduct could have been corrected by a
curative instruction. This difficulty results in part from various subsidiary tests employed
by the Washington Supreme Court when applying the ill-intentioned standard of review.
Despite the ill-intentioned standard, our Supreme Court has directed us not to
delve into the mind of the prosecutor. The Supreme Court has written thrice that we
should not focus on the prosecutor’s subjective intent in committing misconduct, but
instead on whether the defendant received a fair trial in light of the prejudice caused by
the violation of existing prosecutorial standards and whether that prejudice could have
been cured with a timely objection. State v. Loughbom, 196 Wn.2d 64, 75 (2020); State
v. Walker, 182 Wn.2d 463, 478, 341 P.3d 976 (2015); State v. Emery, 174 Wn.2d 741,
762 (2012).
In other circumstances, this court has deemed a prosecutor’s erroneous argument
to be ill intentioned, flagrant, and unamenable to correction by a curative instruction
when a Washington court previously recognized those same arguments as improper in a
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No. 37079-8-III
State v. Crossguns
published opinion. State v. Johnson, 158 Wn. App. 677, 685 (2010); State v. Fleming, 83
Wn. App. 209, 213-14 (1996). We already discussed State v. Fleming. The prosecuting
attorney told the jury that, to acquit the defendants of rape, the jury must find that the
victim lied or was confused. This court held the misconduct to be flagrant because the
prosecutor uttered the argument two years after an opinion proscribing the argument.
The court reversed the convictions. In State v. Johnson, 158 Wn. App. 677 (2010) and
State v. Miles, 139 Wn. App. 879 (2007), this court reversed convictions when the
prosecuting attorney told the jury it must decide who told the truth or the jury must
disbelieve the defendant in order to acquit him.
Our dissenting sister, when concluding that a curative instruction would have
sufficed, relies on State v. Emery, 174 Wn.2d 741 (2012), wherein the prosecuting
attorney told the jury that it must arrive at a reason for doubting the accused’s guilt and
that it must speak the truth. The state high court refused to reverse because of the lack of
an objection to the misstatement. We agree that Patrick Crossguns’ appeal, like State v.
Emery, implicates the State’s attempt to switch the burden of proof in a criminal case.
Nevertheless, Crossguns’ argument concerns the prosecutor presenting a false choice, not
a fill in the blank argument. The prosecuting attorney told the jury that it must resolve
who told the truth between the victim and the accused, not to speak the truth. As
previously observed, two Washington courts have noted the difficulty of curing the
23
No. 37079-8-III
State v. Crossguns
State’s tactic of insisting that the jury resolve whether the victim or the accused told the
truth.
The State argues that any error could have been cured by an instruction to Patrick
Crossguns’ jury that they are the sole judges of credibility and that the State bears the
burden of proving the charged offense beyond a reasonable doubt. Of course, those two
instructions are standard instructions that would have already have been given in
Crossguns’ trial and would have been given in State v. Johnson, State v. Fleming, and
State v. Miles. In State v. Johnson, 158 Wn. App. 677 (2010), the court measured the
seriousness of the prosecutor’s misstatement by determining if a jury instruction could
cure any prejudice. This court held that the arguments, despite an accurate jury
instruction on the presumption of innocence, constituted flagrant and ill-intentioned
misconduct and incurable by a trial court’s instruction.
Contrary to the State’s argument, two Washington Supreme Court judges have
suggested the reviewing court should not engage in the struggle of determining whether
an instruction could have cured the misconduct. State v. Arredondo, 188 Wn.2d 244,
280, 394 P.3d 348 (2017) (Gonzalez, J. dissenting); State v. Craig, 82 Wn.2d 777, 789,
514 P.2d 151 (1973) (Stafford, J. dissenting). The curative instruction rule is based on
the presumption that the jury follows the court’s instruction. State v. Emery, 147 Wn.2d
741, 764 n.14, 278 P.3d 653 (2012). As written by United States Supreme Court Justice
Robert Jackson: “The naive assumption that prejudicial effects can be overcome by
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No. 37079-8-III
State v. Crossguns
instructions to the jury . . . all practicing lawyers know to be unmitigated fiction.”
Krulewitch v. United States, 336 U.S. 440, 453, 69 S. Ct. 716, 93 L. Ed. 790 (1949)
(Jackson, J. concurring).
The Washington Supreme Court has also employed another test for a new trial that
may or may not be consistent with the curative instruction standard. In analyzing
prejudice resulting from prosecutorial misconduct, we do not look at the comments in
isolation, but in the context of the total argument, the issues in the case, the evidence, and
the instructions given to the jury. State v. Warren, 165 Wn.2d 17, 28 (2008); State v.
Yates, 161 Wn.2d 714, 774 (2007). Recently, the Supreme Court indicated that it would
consider a broad context, such as the frequency of improper comments, the intended
purpose, the subject, and the type of case to determine whether incurable prejudice
occurred. State v. Loughbom, 196 Wn.2d 64, 75 (2020). When applying this standard,
the court usually measures the strength of the State’s evidence of guilt. State v. Barry,
183 Wn.2d 297, 303, 352 P.3d 161 (2015). Nevertheless, in State v. Loughbom, the court
declined to analyze the evidence to assess whether the State presented overwhelming
proof of guilt.
On the one hand, family members testified to special attention given by Patrick
Crossguns to Rhonda and to sneaky behavior of Crossguns. One family member stated
he saw Crossguns’ hand in Rhonda’s pants. On the other hand, no physical evidence
confirmed the guilt of Crossguns. Rhonda testified that the sister, who slept in the same
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No. 37079-8-III
State v. Crossguns
room as her, never woke when Crossguns came to their room at night. That sister never
testified. One cousin testified that Rhonda confessed to fabricating the allegations.
We note that the trial court committed no error, but yet we remand for a new trial.
We do so because any prosecuting attorney should know not to instruct the jury that it
must find the victim to be lying. Vindication of an accused’s rights should not always
depend on the skills of his lawyer and whether his lawyer timely objected to errors by the
prosecuting attorney. According to one Supreme Court decision, the failure to object
should and will not prevent a reviewing court from protecting a defendant’s constitutional
right to a fair trial. State v. Walker, 182 Wn.2d 463, 477.
CONCLUSION
We reverse Patrick Crossguns’ convictions for rape of a child and child
molestation. We remand for a new trial on both charges.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
_________________________________
Fearing, J.
WE CONCUR:
______________________________
Siddoway, J.
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No. 37079-8-III
PENNELL, C.J. (dissenting) — I disagree Patrick Crossguns’s conviction should be
reversed based on prosecutorial misconduct. Important to my analysis is the fact that Mr.
Crossguns did not object to the alleged misconduct at the time it occurred. Given the lack
of objection, I believe Mr. Crossguns’s assignment of error has been waived.
Preserving error through a timely objection is important to the fair administration
of justice. A trial court faced with an objection can address an error in a way that
minimizes prejudice and reduces the need for an expensive and emotionally-taxing
retrial. In addition, by setting strong expectations for error preservation, appellate courts
reduce incentives for trial counsel to abuse the appellate process by strategically
“‘remain[ing] silent’” and failing to object to known errors in order to build a case for
appeal. State v. Swan, 114 Wn.2d 613, 661, 790 P.2d 610 (1990) (quoting Jones v.
Hogan, 56 Wn.2d 23, 27, 351 P.2d 153 (1960)).
If a defendant fails to object to prosecutorial misconduct during summation, the
rule on appeal is exacting. We will consider the error waived unless the misconduct was
so “flagrant and ill-intentioned” that it could not be remedied by a curative instruction. Id.No. 37079-8-III
State v. Crossguns (Dissent)
Our Supreme Court has held that an improper false choice argument such as the
one1 alleged here is not the type of misconduct warranting reversal under the flagrant and
ill-intentioned standard. State v. Emery, 174 Wn.2d 741, 763-64, 278 P.3d 653 (2012).
Unlike an appeal to emotions or racial bias, an argument that improperly urges the jury to
decide the truth is not inherently inflammatory. Id. at 763. Rather, it is a matter that can
be “cured by a proper instruction.” Id. at 764. An objection will give the trial court the
opportunity to “explain[] the jury’s role and reiterate[] that the State bears the burden of
proof and the defendant bears no burden.” Id.Consistent with Emery, I would find that any misconduct in summation could have
been cured by a timely objection. I would therefore find the allegations of prosecutorial
misconduct waived and affirm the convictions.
____________________________
Pennell, C.J.
1
In closing argument, the prosecutor made only one statement that could be
characterized as a false choice argument. This statement pertained to the differences in
testimony between the victim and Mr. Crossguns regarding Mr. Crossguns’s alleged
offense conduct. The prosecutor’s statement was a false choice argument because it
improperly suggested to the jury that its verdict depended on whether Mr. Crossguns or
the victim was telling the truth. The other statement at issue involved a dispute between
the victim and her cousin. This was not a false choice argument because it went to the
collateral issue of whether the victim had made a prior inconsistent statement. The victim
could have been lying about the prior statement and yet telling the truth about Mr.
Crossguns’s criminal conduct. Accordingly, by stating that the jury needed to decide who
was telling the truth, the prosecutor did not suggest that this determination would have
controlled the verdict.
2