State Of Washington, V Alfred James Thierry Jr.

Filed
Washington State
Court of Appeals
Division Two
October 20, 2015
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 45379-7-II
Respondent, PART PUBLISHED OPINION
v.
ALFRED JAMES THIERRY, JR.,
Appellant.
BJORGEN, J. — The State charged Alfred James Thierry Jr. with four counts of first
degree child rape and two counts of first degree child molestation, based on conduct against his
son, JT.1 A jury returned guilty verdicts on all counts. Thierry appeals, contending that
prosecutorial misconduct in closing argument deprived him of a fair trial and the sentencing
court erred in imposing various terms of community custody. Thierry also submits a pro se
statement of additional grounds for review, contending among other matters that the trial court
should have allowed him to present the testimony of a certain witness and should not have
admitted evidence that JT suffered psychological trauma. Because the prosecutor invited the
jury to decide the case on an improper basis, and the misconduct likely affected the verdict, we
reverse.
1
Pursuant to General Order 2011-1 of Court of Appeals, Division II, the name of the minor will
be indicated with initials.
No. 45379-7-II
FACTS
In October 2012, Mujaahidah Sayfullah heard eight-year-old JT, her adopted son,2 say
the word “humping,” which she considered “inappropriate.” 5 Verbatim Report of Proceedings
(VRP) at 123-24. She asked where he had learned that word. When he “got quiet” and “didn’t
want to talk” about it, Sayfullah asked him if anyone had ever touched him inappropriately.
5 VRP at 123-24. JT eventually disclosed to Sayfullah and her husband that Thierry, JT’s
biological father, had “placed his penis in [JT’s] bottom” when JT had visited Thierry. 5 VRP at
123-24.
Sayfullah took JT to see pediatric nurse practitioner Tracy Lin and related her concerns
that JT may have suffered sexual abuse. JT disclosed to Lin that Thierry had put “[h]is penis
inside [JT’s] bottom . . . [m]ore than once when [JT] was 4 year[s] old, 6 year[s] old and 8
year[s] old.” 6 VRP at 114. Lin advised Sayfullah to report the abuse allegation to police, which
Sayfullah did.
Keri Arnold-Harms, a child interviewer with the Pierce County Prosecuting Attorney’s
Office, conducted a video recorded interview with JT. During the interview, JT described
several specific instances of sexual abuse. JT stated that these incidents occurred “sometimes
when [he] spent the night at [Thierry’s] apartment,” explaining that it happened “many times” at
the apartment, one time at his grandmother’s house, and one time at the home of Thierry’s
“wife,” Lorrie Robinson.3 Ex. 1.
2
Sayfullah is the sister of JT’s biological mother and has raised him since he was three days old.
Thierry did not have formal visitation rights, but occasionally visited or had JT stay overnight
with him by mutual agreement with Sayfullah.
3
Thierry described Robinson at trial as his “fiancee.” 7 VRP at 61.
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No. 45379-7-II
JT began counseling sessions at the Comprehensive Life Resources Children’s Advocacy
Center with mental health therapist Amber Bradford, to whom he also eventually disclosed that
Thierry had sexually abused him. JT also described psychological symptoms to Bradford, such
as nightmares, self-blame, and intrusive thoughts about or memories of the abuse. During
counseling with JT, Bradford wrote out his story, including descriptions of the abuse, more or
less as he told it, although she admitted that many of the words JT used came from “flash[
]cards” that she provided. 6 VRP at 79-82. Bradford also acknowledged that in counseling
sessions she makes no attempt to determine whether a child has truthfully disclosed the abuse,
gives the children positive reinforcement when they talk about the abuse, and suggests particular
feelings or symptoms that they might be experiencing.
1. Pretrial Procedure
The State charged Thierry with four counts of first degree child rape and two counts of
first degree child molestation. Thierry pled not guilty and proceeded to trial.
The trial court held a hearing under RCW 9A.44.120 and ER 803 on the admissibility of
child hearsay testimony concerning statements JT made to Sayfullah, Lin, Arnold-Harms, nurse
Michelle Breland, and Bradford. The court ruled the testimony admissible, including the
recording of JT’s interview with Arnold-Harms.
2. Trial Testimony
At trial, the State’s witnesses testified to the facts as described above. The trial court
admitted the video recording of JT’s interview with Arnold-Harms into evidence, and it was
shown to the jury.
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No. 45379-7-II
JT testified, generally describing the abuse consistently with his prior statements, except
as to the timing and dates of specific incidents. His testimony concerning the timing of various
events was internally inconsistent and differed in some respects from his previous statements.
On cross examination, defense counsel elicited testimony from JT that, shortly before he
told Sayfullah about the abuse, he had asked Thierry if he could go to live with Thierry and
Robinson, but Thierry refused. Robinson testified on Thierry’s behalf, stating that JT was very
happy to visit Thierry, was reluctant to leave, and often talked about wanting to move in with
Thierry.
Thierry testified on his own behalf and denied the sexual abuse accusations. He
described one incident, however, in which he woke up and JT was touching Thierry’s penis.
Thierry testified that he responded by saying, “What the hell? . . . Man, do not do that. If you
ever want to see me again, that will not happen.” 7 VRP at 98. He testified that, later that
morning, he and JT and another male relative, one year younger than JT, were kneeling on the
bed looking out the window at a squirrel and that Thierry’s penis “might have grazed the back
of” JT. 7 VRP at 96. Thierry could not think of any reason why JT would accuse him, but stated
that he had a conversation with JT about living together, but had decided against it.
3. Closing Argument, Verdict, and Sentence4
After a few preliminary remarks, the deputy prosecutor’s closing argument turned to an
explanation of direct versus circumstantial evidence. This explanation included the following:
None of you were present when these acts occurred. No one testified for you that
they watched any of these acts happen. That would be direct evidence of the acts
themselves, but that is not required and, if it were, the State could never prosecute
any of these types of cases.
4
Because we resolve the prosecutorial misconduct claim based only on that portion of the
prosecutor’s closing argument to which Thierry objected before the trial court, our discussion
here focuses on the language and context of that particular argument.
4
No. 45379-7-II
8 VRP at 89-90 (emphasis added). She made a similar argument shortly thereafter, in a
discussion of the sufficiency of the State’s evidence:
Did [Thierry] rape and molest his son [JT]? Yes, he did. The evidence tells you
that he did. What’s the evidence? [JT] is the evidence, and he is all that is required
for you to find [Thierry] guilty of these crimes. If the law required more, if the law
required anything, something, anything beyond the testimony of a child, the child’s
words, [JT’s] words, those instructions would tell you that, and there is no
instruction that says you need something else. And, again, if that was required, the
State could rarely, if ever, prosecute these types of crimes because people don’t
rape children in front of other people and often because children wait to tell.
8 VRP at 93 (emphasis added). She again returned to this motif near the end of her initial
closing remarks, in discussing the burden of proof:
Now I want to talk just briefly about the standard of beyond a reasonable
doubt. You don’t need to know all of the pieces. You don’t need to have all of the
information or have all of the answers. If that were necessary, first of all, the
standard would be beyond all doubt possible, but if that were necessary, once again,
the State would not be able to prosecute any of these crimes or really any crime,
actually, because how can you all as jurors who are selected from the community
know nothing about any of the people involved, and certainly yourselves were not
present for any act or crime that was committed, how can you know with 100
percent certainty?
8 VRP at 106-07 (emphasis added).
Thierry did not object to any of these arguments during the deputy prosecutor’s initial
remarks. In her closing argument, defense counsel suggested that JT may have initially accused
Thierry because Sayfullah and her husband “confronted” JT about using words “in a household
in which those words are not used,” and JT “need[ed] to explain those words away.” 9 VRP at 6.
She then sought to exploit inconsistencies in JT’s statements about when specific instances of
abuse occurred and differences between his statements and those of Sayfullah and other
witnesses to undermine his credibility.
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No. 45379-7-II
Defense counsel also offered other possible explanations for why JT might have falsely
accused Thierry. First, she argued that JT may have continued making allegations in his
counseling sessions because he received positive feedback from Bradford, who suggested
particular words to use with her flashcards. She also suggested that JT’s anger and
disappointment at not getting to live with Thierry may have motivated the accusations.
Defense counsel then continued her efforts to rehabilitate Thierry’s credibility, making
the following argument:
You know, something terrible did happen in this case, and that’s the story
and these accusations. It’s a good thing to tell kids who may have been abused,
“You didn’t do anything wrong. You’re not going to get in trouble.” It’s a good
thing to positively reinforce kids, but it’s a very terrible thing when you help them
to create the worse [sic] story any of us can imagine, that Al can imagine, with his
own son, and how do you fight it? How do you prove that something did not
happen? Well, you can’t, but if you’re willing to get up there on the witness stand,
even though you have the right to remain silent, and face the lawyers trying to pin
you down, your thought processes are going to come out. “I racked my brain. This
is something that happened way back when.” He didn’t have to tell you that, but
he did because the man is totally without guile and he just wanted the truth out.
9 VRP at 14. The State objected that defense counsel was vouching for a witness, and the judge
instructed the jury that they would be “the sole determiners of who is telling the truth and who
isn’t, not Counsel and not” the judge. 9 VRP at 14.
Defense counsel then briefly returned to the topic of inconsistencies in JT’s statements
and his possible motives to lie. Finally, she concluded her argument by suggesting that JT may
be “punishing [Thierry] in some way and doesn’t really understand the import of what he’s
saying,” arguing that JT’s “story has way too many inconsistencies and things that cannot be
explained,” and urging the jury to return not guilty verdicts. 9 VRP at 16.
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No. 45379-7-II
The prosecutor began her rebuttal by addressing defense counsel’s statement, made in the
context of discussing Bradford’s testimony, that adults should tell children who may have
suffered abuse that they did not do anything wrong and are not in trouble:
[Defense counsel] says, “It’s a good thing to tell kids, ‘Tell someone if you’ve been
abused. You’re not going to get in trouble.’” She said, “It’s a good thing to make
sure that they know that they can tell when this has happened to them.” That
statement contradicts everything that she just stood up here and argued to you
about. How is it a good thing when basically the crux of her argument is, “They
aren’t going to be believed. Children can’t be believed. There’s never any other
physical evidence. We can’t believe what they say because they make up stories,”
so how is it a good thing to tell them that they should tell somebody because we’re
going to bring them in here to court to have a Defense attorney say, You can’t
believe them.”
9 VRP at 16-17 (emphasis added). The prosecutor continued in this vein, returning to her public
policy theme:
[Defense counsel] wants you to basically disregard everything that [JT] has said
between what he told [Sayfullah], between what he told Ms. Arnold-Harms,
between when he told his primary care provider Ms. Lin and what he told Amber
Bradford. “Just disregard all of that because he’s a child, because he was 8 when
he said these things and because he was 9 when he was on the stand. Nothing he
said is credible so just disregard it all.” If that argument has any merit, then the
State may as well just give up prosecuting these cases, and the law might as well
say that “The word of a child is not enough.”
9 VRP at 17 (emphasis added). At that point Thierry objected that the prosecutor was “fueling
the passion and prejudice of the jury,”5 to which the prosecutor responded that hers was “[n]o
worse than Defense Counsel’s argument.” 9 VRP at 17. The court overruled the objection and
permitted the prosecutor to continue.
5
After closing argument, defense counsel clarified outside the presence of the jury that she
specifically objected to the prosecutor’s argument that, if the jury accepted the defense theory,
“we might as well stop prosecuting cases,” which she thought “went over the line as far as
fueling the passion and prejudice of the jury.” 9 VRP at 31. The court disagreed.
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No. 45379-7-II
The jury returned guilty verdicts on all counts. The sentencing court imposed community
custody for life in the event Thierry is ever released, with numerous conditions. Thierry appeals.
ANALYSIS
In the published portion of this opinion, we hold that the prosecutor committed
prejudicial misconduct which had a substantial likelihood of affecting the verdict, and we reverse
Thierry’s convictions on that ground. In the unpublished portion, we decline to resolve his other
challenges, although we briefly discuss certain of them.
I. PROSECUTORIAL MISCONDUCT
Thierry contends that several of the remarks the deputy prosecutor made in closing
argument merit reversal. He alternatively contends that the cumulative effect of the improper
statements denied him a fair trial. We agree with Thierry that the deputy prosecutor’s argument
on JT’s credibility was improper and that it had a substantial likelihood of affecting the verdict.
1. Standard of Review
Prosecutors act as quasi-judicial officers who “represent[] the people and presumptively
act[] with impartiality in the interest of justice,” and therefore “must subdue courtroom zeal for
the sake of fairness to the defendant.” State v. Thorgerson, 172 Wn.2d 438, 443, 258 P.3d 43(2011). Prosecutors “owe[] a duty to defendants to see that their rights to a constitutionally fair
trial are not violated.” State v. Monday, 171 Wn.2d 667, 676, 257 P.3d 551 (2011). Thus,
although prosecutors enjoy “wide latitude to argue reasonable inferences from the evidence,”
they “must ‘seek convictions based only on probative evidence and sound reason.’” In re Pers.
Restraint of Glasmann, 175 Wn.2d 696, 704, 286 P.3d 673 (2012) (quoting State v. Casteneda-
Perez, 61 Wn. App. 354, 363, 810 P.2d 74 (1991)), petition for cert. filed, No. 15-36 (July 9,
2015).
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No. 45379-7-II
As a general matter, to prevail on a prosecutorial misconduct claim a defendant must
show that the prosecutor’s conduct was both improper and prejudicial “in the context of the
record and all of the circumstances of the trial.” Glasmann, 175 Wn.2d at 704. “Allegedly
improper arguments should be reviewed in the context of the total argument, the issues in the
case, the evidence addressed in the argument, and the instructions given.” State v. Russell, 125
Wn.2d 24, 85-86, 882 P.2d 747 (1994).
To establish prejudice sufficient to require reversal, a defendant who timely objected to
the challenged conduct in the trial court must “show a substantial likelihood that the misconduct
affected the jury verdict.” Glasmann, 175 Wn.2d at 704. Even plainly improper remarks from a
prosecutor do not merit reversal “if they were invited or provoked by defense counsel and are in
reply to his or her acts and statements, unless the remarks are not a pertinent reply or are so
prejudicial that a curative instruction would be ineffective.” Russell, 125 Wn.2d at 86.
2. Appeal to Passion or Prejudice
A. The Argument Was Improper
It is improper for prosecutors to “‘use arguments calculated to inflame the passions or
prejudices of the jury.’” Glasmann, 175 Wn.2d at 704 (quoting AMERICAN BAR ASS’N,
STANDARDS FOR CRIMINAL JUSTICE, std. 3-5.8(c) (2d ed. 1980)). Argument that “exhorts the
jury to send a message to society about the general problem of child sexual abuse” qualifies as
such an improper emotional appeal. State v. Bautista-Caldera, 56 Wn. App. 186, 195, 783 P.2d
116 (1989) (emphasis omitted). We have similarly held that a prosecutor improperly appealed to
passion and prejudice by arguing “that the jury should convict in order to protect the community
[from drug dealing].” State v. Ramos, 164 Wn. App. 327, 338, 263 P.3d 1268 (2011) (discussing
United States v. Solivan, 937 F.2d 1146 (6th Cir. 1991)).
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No. 45379-7-II
Thierry contends that the prosecutor’s statement that, if defense counsel’s argument
concerning JT’s credibility “has any merit, . . . the State may as well just give up prosecuting
[child sex abuse] cases, and the law might as well say that ‘[t]he word of a child is not enough’”
also qualified as an improper appeal to passion and prejudice. 9 VRP at 16-17. Thierry relies
heavily on State v. Powell, 62 Wn. App. 914, 816 P.2d 86 (1991), a child molestation case in
which we held the following argument improper:
[W]hat happens when we refuse to believe the children when we tell them, yes, if
something happens you’re supposed to tell? And then when they do, in fact, tell
something has happened to them, what do we do? We don’t believe them. We
refuse to believe them. What does that tell the kids? . . . It tells them it’s fine.
Yeah. You can go ahead and tell, but don’t expect us to do anything because if it’s
an adult, we’re sure as heck going to believe the adult more than we believe the
child. I mean, we know adults don’t lie; but, yeah, we know kids lie in things of
that sort. . . . Isn’t that what we’re telling them with regard to this? Are we . . .
declaring open season on children to say: Hey, it’s all right. You can go ahead and
touch kids and everything.
Powell, 62 Wn. App. at 918 n.4. We held the resulting prejudice incurable and reversed, even
though Powell had not requested a remedial instruction in the trial court. Powell, 62 Wn. App. at
919.
The argument here is similar to the prosecutor’s improper arguments in Powell
and Bautista-Caldera. The prosecutor’s message was that if the jury did not believe JT’s
testimony, and thus by implication acquitted Thierry, “then the State may as well just
give up prosecuting these cases, and the law might as well say that [t]he word of a child
is not enough.” 9 VRP at 16-17 (internal quotation marks omitted). The message, in
other words, was that the jury needed to convict Thierry in order to allow reliance on the
testimony of victims of child sex abuse and to protect future victims of such abuse. This
hyperbole invited the jury to decide the case on an emotional basis, relying on a
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No. 45379-7-II
threatened impact on other cases, or society in general, rather than on the merits of the
State’s case.
The State contends that the specific remarks to which Thierry objected “came in rebuttal
and were directly in response to defense counsel’s argument to remind the jury that the law does
not require more than the word of a child as defense counsel was suggesting in her argument.”
Br. of Resp’t at 15-16. The State further points out that the prosecutor did not explicitly ask the
jury to render a guilty verdict in order to send anyone a message or correct some societal ill, and
that she also accurately informed the jury that it should decide the case based on the court’s
instructions and the evidence presented.
The prosecutor, however, made similar statements in her initial closing remarks
concerning the burden of proof and the difference between direct and circumstantial evidence,
suggesting that this argument was not merely a response to Thierry’s challenge to JT’s
credibility. More importantly, even if the prosecutor’s argument was deemed purely a response
to the defendant’s argument, defense counsel never suggested that the jury should not believe JT
because of his age. Nothing in defense counsel’s closing argument, therefore, warranted the
prosecutor’s message that the State may as well give up prosecuting child sex abuse cases if JT
were not believed and Thierry acquitted. Further, that the prosecutor did not explicitly call on
the jury to send a message or to protect children does not make the argument any less improper.
The implication is clear enough: were the jury to agree with defense counsel, they would put
other children in danger. Other remarks that immediately preceded Thierry’s objection,
furthermore, made the “send a message” implication perfectly clear. 9 VRP at 16-17 (“How is it
a good thing [to encourage children to report abuse] when basically the crux of [defense
counsel’s] argument is, ‘They aren’t going to be believed. . . . We can’t believe what they say
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No. 45379-7-II
because they make up stories,’ so how is it a good thing to tell them that they should tell
somebody because we’re going to bring them in here to court to have a Defense attorney say,
‘You can’t believe them.’”).
The prosecutor’s argument was improper in the context presented. The question remains
whether it posed a substantial likelihood of affecting the verdict.
B. The Misconduct Was Prejudicial
Thierry contends that the misconduct posed a risk of affecting the verdict sufficient to
merit reversal. This is so, he argues, because the State’s case relied almost entirely on JT’s
statements, which had not remained consistent and contradicted some of Sayfullah’s testimony,
and the prosecutor’s argument invited the jury to credit JT’s accusations for improper reasons.
We agree.
As discussed, the Powell court held a similar argument so prejudicial as to be incurable
by remedial instruction. 62 Wn. App. at 919. On the prejudice question, Thorgerson is also
instructive. The Thorgerson court held improper a prosecutor’s argument that “[t]he entire
defense is sleight of hand” and “bogus” on the ground that it impugned the integrity of defense
counsel. 172 Wn.2d at 450-51. The prosecutor made this argument in response to evidence the
defense had presented that the defendant cared for his daughter, the alleged victim, which the
prosecutor regarded as immaterial. Thorgerson, 172 Wn.2d at 450-51.
Although the court “conclude[d] that it was ill-intentioned misconduct,” it declined to
reverse, in part because the improper argument did not likely affect the outcome and because a
curative instruction could have alleviated any prejudice.6 Thorgerson, 172 Wn.2d at 452. In
reaching this result, the court relied on the fact that “the victim’s testimony was consistent
6
Thorgerson did not object before the trial court. Thorgerson, 172 Wn.2d at 442.
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No. 45379-7-II
throughout the trial and was consistent with what the witnesses testified she had told them before
the trial, with one exception.” Thorgerson, 172 Wn.2d at 452. The court also discussed the fact
that the evidence that the prosecutor’s improper argument encouraged the jury to disregard had at
best marginal relevance in the case. Thorgerson, 172 Wn.2d at 452.
Here, Thierry did timely object, to no avail, so the efficacy of a curative instruction is not
at issue. In contrast to Thorgerson, the prosecutor’s improper argument went to the key issue in
the case: whether the jury should believe JT’s accusations. In further contrast, the
inconsistencies among JT’s statements, and between those statements and Sayfullah’s testimony,
open a realistic possibility that the jury may have disbelieved JT’s accusations absent the
improper argument.
In addition, by framing her remarks as a response to defense counsel’s argument, the
prosecutor misrepresented that argument in a way that exacerbated the prejudice flowing from
the misconduct. The prosecutor described the “crux” of defense counsel’s argument as follows:
“Children can’t be believed. . . . We can’t believe what they say because they make up stories.”
9 VRP at 16. She went on to assert that defense counsel “wants you to basically disregard
everything that [JT] has said . . . because he’s a child, because he was 8 when he said these
things and because he was 9 when he was on the stand.” 9 VRP at 17.
As noted, defense counsel never suggested that the jury should not believe JT because of
his age. Thierry’s attorney based her impeachment entirely on specific inconsistencies in JT’s
statements, possible motives to lie suggested by evidence in the record, and JT’s testimony that
he liked to write stories. Thierry’s attorney certainly never argued, as the prosecutor claimed,
that the jury should not credit JT’s testimony simply “because he’s a child.” 9 VRP at 17.
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No. 45379-7-II
The tactic of misrepresenting defense counsel’s argument in rebuttal, effectively creating
a straw man easily destroyed in the minds of the jury, does not comport with the prosecutor’s
duty to “seek convictions based only on probative evidence and sound reason.” Casteneda-
Perez, 61 Wn. App. at 363. “Because the jury will normally place great confidence in the
faithful execution of the obligations of a prosecuting attorney, [a prosecutor’s] improper
insinuations or suggestions are apt to carry more weight against a defendant.” Solivan, 937 F.2d
at 1150.
The outcome of the case depended entirely on whether the jury chose to believe JT’s
accusations or Thierry’s denial. The prosecutor’s remarks created a substantial risk that the jury
decided to credit JT’s testimony for improper reasons. The prosecutor’s remarks exacerbated
that risk by misrepresenting defense counsel’s argument so as to unfairly undermine Thierry’s
defense.
We hold that the improper argument to which Thierry timely objected requires reversal of
his convictions. Resolving the prosecutorial misconduct claim on this ground, we decline to
consider Thierry’s other challenges to the prosecutor’s closing argument.
CONCLUSION
The prosecutor’s argument about JT’s credibility was improper and had a substantial
likelihood of affecting the verdict. Therefore, we reverse Thierry’s convictions and remand for
further proceedings.
A majority of the panel has determined that the remainder of this opinion lacks
precedential value and will not be printed in the Washington Appellate Reports. The remainder
of this opinion will be filed for public record in accord with RCW 2.06.040, and it is so ordered.
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No. 45379-7-II
II. THIERRY’S REMAINING CLAIMS
We decline to address Thierry’s claims regarding certain conditions of community
custody. Because the State largely concedes the impropriety of the challenged provisions, the
issues appear unlikely to arise should Thierry be resentenced on remand.
We also decline to address the claims raised in Thierry’s statement of additional grounds
for review, which largely rely on matters outside the record or are too vague and conclusory to
merit consideration. We note only that Thierry failed to preserve his challenge to Bradford’s
testimony regarding JT’s trauma symptoms, as well as his claim that the trial court should have
allowed him to present the testimony of Linesa, Lorrie’s daughter.
According to State v. Hamilton, “[e]ven if a defendant objects to the introduction of
evidence at trial, he or she ‘may assign evidentiary error on appeal only on a specific ground
made at trial.’” 179 Wn. App. 870, 878, 320 P.3d 142 (2014) (quoting State v. Kirkman, 159
Wn.2d 918, 926, 155 P.3d 125 (2007)). Thierry objected to Bradford’s testimony generally on
the ground that she did not qualify as an expert, not based on any specific ground involving the
substance of the trauma testimony. We thus decline to reach the claim under RAP 2.5.
With respect to the testimony of Linesa, nothing in the record suggests that Thierry
sought to offer it. “The purpose underlying issue preservation rules is to encourage the efficient
use of judicial resources by ensuring that the trial court has the opportunity to correct any errors,
thereby avoiding unnecessary appeals.” Hamilton, 179 Wn. App. at 878. Thierry cannot now be
heard to complain about the absence of a witness whose testimony he never sought to offer in the
trial court. If Thierry alleges that he did seek to obtain Linesa’s testimony,7 the claim relies on
7
The statement of additional grounds for review is ambiguous on this point. Statement of
Additional Grounds at 3 (“I feel Lorrie Robinson’s Daughter Linesa Robinson should have been
able to testify in the case.”).
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No. 45379-7-II
matters outside the record. We decline to address it further. State v. McFarland, 127 Wn.2d
322, 335, 899 P.2d 1251 (1995); RAP 2.5.
BJORGEN, J.
We concur:
JOHANSON, C.J.
SUTTON, J.
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