State Of Washington, V Stanley Sneed Wilson

Filed
Washington State
Court of Appeals
Division Two
December 13, 2016
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 47772-6-II
Respondent,
v.
STANLEY SNEED WILSON, UNPUBLISHED OPINION
Appellant.
JOHANSON, J. — Stanley S. Wilson appeals his jury trial convictions for third degree rape
and third degree child molestation. Wilson argues that (1) the admission of a deoxyribonucleic
acid (DNA) analyst’s testimony violated the confrontation clause. Wilson also argues that the trial
court abused its discretion (2) when it allowed the victim to testify about alleged grooming
evidence and (3) when it allowed a police officer to testify about the victim’s description of the
alleged grooming evidence. Wilson argues that (4) it was ineffective assistance of counsel not to
object to the police officer’s testimony. Further, Wilson argues that (5) the prosecutor committed
misconduct during closing argument, (6) it was ineffective assistance of counsel not to object to
the alleged misconduct, and (7) cumulative error requires reversal of his convictions. Holding that
there was no reversible error, we affirm Wilson’s convictions.
No. 47772-6-II
FACTS
I. BACKGROUND FACTS
In August 2013, 15-year-old K.C.1 spent the night at the house of her father, J.C. She
awoke in the night with Wilson, her father’s housemate, breathing heavily next to her. While K.C.
pretended to sleep, Wilson sexually assaulted her, including digital penetration. Afterward, K.C.
told her father what had happened, and he called the police. Officer Jamie Haske and Detective
Clesson Werner responded to J.C.’s call and interviewed J.C., K.C., and Wilson. K.C. went to the
hospital where a nurse interviewed K.C. and collected DNA swabs from her.
The State charged Wilson with third degree rape and child molestation of K.C.
II. TRIAL
A. TESTIMONY
1. K.C.’S TESTIMONY
K.C. testified that within a couple months of the sexual assault, while she was browsing
the internet on her laptop, Wilson had shown her a movie cover depicting a naked woman. He
asked K.C., “Do you want to watch this? It’s better.” 1 Report of Proceedings (RP) at 129. K.C.
declined. The trial court instructed the jury to consider this testimony only for the purpose of
evaluating Wilson’s disposition toward K.C. and not for any other purpose.
On another occasion a couple months before the assault, K.C. was lying on a couch in her
father’s living room when Wilson sat down on the same couch. When K.C. moved her feet to
1
We use initials instead of names for victims of sex crimes to protect their privacy. Gen. Ord. of
2011-1 of Division II, In Re The Use of Initials or Pseudonyms for Child Witnesses in Sex Crime
Cases (Wash. Ct. App.). Also, because of the nature of this case, some confidentiality is
appropriate. Accordingly, the name of the father will not be used in the body of this opinion.
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No. 47772-6-II
make room for Wilson, Wilson said she could put her feet “on top of [him].” 1 RP at 149. Instead,
K.C. stood up and left the room.
On the night of the sexual assault, K.C. had fallen asleep on a couch in her father’s living
room. She wore sweatpants and a shirt but no underwear. She awoke to Wilson breathing heavily
next to her. She smelled cigarette smoke. K.C. felt pressure on her chest and hands over her pants.
Wilson digitally penetrated K.C. while he repeatedly whispered, “Is this okay?” 1 RP at 99.
Crying, K.C. remained still for the roughly 20 minutes that Wilson assaulted her. Then Wilson
said, “I can’t believe you didn’t wake up” and walked away. 1 RP at 99.
K.C. waited about 10 minutes and then awakened J.C. and told him that Wilson had
“touched [her].” 1 RP at 108. Approximately 20 minutes later, J.C. called the police. K.C. was
still crying when the police arrived and when Officer Haske interviewed her. The police took K.C.
to the hospital that night where a nurse collected DNA samples. K.C. described the process as
“[e]mbarrassing.” 1 RP at 112.
2. J.C.’S TESTIMONY
J.C. testified that when K.C. woke him on the night of the rape, she was severely upset; she
was shaking and had difficulty speaking. K.C. told J.C. that Wilson had “touched” her. 2 RP at
174. J.C. remembered that Wilson’s light was on and that Wilson was awake, fully dressed, and
lying perpendicularly on the bed in his room, which J.C. thought was unusual. By the time the
police came, K.C. was beginning to calm down, although she still appeared upset.
3. POLICE AND NURSE TESTIMONY
Officer Haske testified that K.C. appeared “very upset” and reticent when Officer Haske
interviewed K.C. that night. 2 RP at 196. Over Wilson’s objection, Officer Haske repeated what
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No. 47772-6-II
K.C. had told him: that while K.C. pretended to sleep, Wilson sexually assaulted her. Although
Wilson renewed his objection, the trial court allowed Officer Haske to testify that K.C. had said
Wilson had shown her a “porn movie” and asked if K.C. wanted to watch it with him. 2 RP at
199.
Wilson objected on the basis that J.C. had stated that K.C. was “calming down” when the
police arrived. 2 RP at 208. Nevertheless, the trial court found that K.C.’s statements were
admissible as excited utterances because K.C. was still upset from the event when the police
arrived, even if she was calming down.
Detective Werner testified that he interviewed Wilson that night. Wilson denied ever going
into the living room and claimed he was sleeping at the time. Wilson denied touching K.C.
Detective Werner collected DNA swabs from Wilson.
The nurse who examined K.C. at the hospital testified that K.C. had described the rape to
the nurse. Afterward, the nurse collected K.C.’s sweatpants and DNA from the skin of K.C.’s
cheek and from her vagina.
4. DNA ANALYST’S TESTIMONY
DNA analyst Brad Dixon explained that the DNA testing used here, Y-chromosome DNA
testing, ignores female DNA in a sample and matches male DNA to a male lineage. After creating
a DNA profile from biological fluids found in a sample, DNA analysts compare that profile to an
individual’s profile to determine whether the DNA matches that individual’s profile.
Analysts can also conduct a comparison analysis to determine how prevalent a DNA profile
is in the general population. The analyst compares the profile to a database of profiles, which
results in a statistic of how common that profile is. For the Y-chromosome analysis in this case,
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No. 47772-6-II
Dixon used the Y-STR database, which contains about 25,000 United States DNA profiles. That
database uses a program to search within the database for matches—other identical profiles. Using
a standard statistical calculation, the software then extrapolates how often the profiles occur in the
general population from the frequency that the profiles occur in the database.
Dixon explained that he found saliva on the crotch and waistband of K.C.’s sweatpants and
the skin and vaginal samples taken from her. He performed Y-chromosome DNA testing on the
waistband and found at least 4 male DNA profiles, one of which matched Wilson’s profile. Dixon
performed a comparison analysis on the profile matching Wilson’s to see how common that profile
is in the general population. There were no database matches for that profile; from that
information, the program extrapolated that statistically 1 in 7,700 United States men would match
that profile.
Dixon also performed Y-chromosome DNA testing on the vaginal sample. He found one
partial male DNA profile, which was consistent with Wilson’s profile. Dixon performed a
comparison analysis on the partial profile. The program found the profile occurred 942 times in
the database and extrapolated that 1 in 26 United States men would match that profile. Dixon
explained that partial profiles generate more matches and thus appear more common than full
profiles.
Dixon did not find profiles matching Wilson’s in any samples other than the waistband and
vaginal samples. During cross-examination, Dixon testified that he had performed DNA analysis
on the crotch sample and found a profile of an unknown male who was not Wilson. He also
analyzed samples from the sweatpants’ inner rear seam and found profiles of at least three males.
The major profile from the inner rear seam was not Wilson’s.
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No. 47772-6-II
5. WILSON’S TESTIMONY
Wilson denied ever asking K.C. to watch a pornographic movie with him or telling her that
she could place her legs on him. He also denied touching K.C. on the night of the rape or going
into the living room before the police arrived. He claimed he was asleep when K.C. awoke J.C.
B. MOTIONS IN LIMINE
1. MOVIE INCIDENT EVIDENCE ADMITTED UNDER ER 404(B)
The trial court excused the jury at one point during K.C.’s testimony while it determined
whether to admit the evidence that Wilson had asked K.C. to watch a pornographic movie with
him. K.C. explained that she had been sitting down, looking at her laptop, when Wilson held a
movie with a naked woman on its front in her face. Wilson asked K.C. if she wanted to watch the
movie, which appeared to be “porn” to K.C. 1 RP at 117.
The State argued that the evidence was relevant because it showed Wilson’s attempt to
groom K.C. and lustful behavior toward her. Wilson argued that K.C.’s testimony alone was not
enough to establish the incident had occurred by a preponderance of the evidence.
The trial court admitted the evidence because it found that K.C.’s testimony established
that the incident had occurred by a preponderance of the evidence and that the evidence revealed
grooming behavior. The probative value of the evidence outweighed its prejudicial effect. And
as discussed earlier, the trial court granted Wilson’s request for a limiting instruction to be given
immediately after the testimony to the effect that “you may consider the evidence’s answers only
for the purpose to evaluate the defendant’s disposition towards [K.C.]. You must not consider
the evidence or answers for any other purpose.” 1 RP at 129.
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No. 47772-6-II
2. FREQUENCY OF Y-STR PROFILE EVIDENCE ADMITTED
The trial court also heard argument about whether to admit the statistical occurrence of the
profiles derived from the waistband and vaginal swabs. Dixon explained that he entered data
corresponding to the profile that he had created and then the database counted the number of
matches in the database and returned a search result. Dixon did not “know anything about the
search algorithms” performed by the United States Y-STR database as it counted similar profiles.
3 RP at 296. But Dixon was familiar with the statistical calculation used to extrapolate the
frequency of the profile in the United States’ population from the number of similar profiles in the
database. He explained that the statistical calculation performed by the database was a common
equation used in statistical analysis.
Wilson argued that there was “no one to cross-examine as to who made that statistic that
was spit out” by the database and that gave the analysis meaning. 3 RP at 302. Wilson also argued
that the statistic was a testimonial statement because it was created for the case against Wilson.
Wilson claimed that without the statistic, Dixon would not be able to testify at the trial. The State
responded that the statistical evidence raised no confrontation clause concerns. The State noted
that it was not asking anything about the database other than “using formulas from an ongoing
existing data set to come up with statistics.” 3 RP at 303.
The trial court allowed Dixon to testify about the statistic as part of the explanation of how
Dixon derived his opinions because the statistic was not a testimonial statement.
C. CLOSING ARGUMENT
1. PROSECUTOR’S CLOSING ARGUMENT
The prosecutor began his closing argument by stating,
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No. 47772-6-II
In [Wilson’s] eyes, [K.C.] wasn’t his best friend’s little girl. She was an
opportunity for sex. His best friend trusted him to live in his house and be around
his daughter. He betrayed that trust for the sake of his own selfish sexual desire.
He is the reason she had to lay there smelling the smoke on his clothes, listening to
his heavy breathing, crying silently in the dark just hoping and waiting for him to
stop violating her body.
He is the reason she had to go to the hospital and take part in an
embarrassing medical examination. He is the reason that a 20-plus year friendship
ended in the blink of an eye. [K.C.] did not deserve what happened to her that
night. And the person that inflicted that on her needs to be held accountable for his
actions.
4 RP at 397-98. The prosecutor then argued that the evidence showed an escalating pattern of
grooming by Wilson. He pointed out that K.C. had consistently told the same account. The
prosecutor acknowledged that profiles not matching Wilson’s had been found on K.C.’s
sweatpants but argued that Wilson’s DNA had been found inside K.C.’s sweatpants and vagina.
And the prosecutor emphasized that there was only a 1 in 7,700 chance of Wilson’s profile being
present on K.C.’s waistband and only a 1 in 26 chance of it being present in the vaginal sample.
In rebuttal, the prosecutor concluded by saying that “[K.C.’s] been left to deal with what’s
happened to her. Now the time has come for [Wilson] to deal with it as well.” 4 RP at 430. Wilson
did not object to any of the prosecutor’s argument.
2. WILSON’S CLOSING ARGUMENT
In closing, Wilson argued that the “only real source” of evidence against him was K.C.’s
allegations and that K.C. was motivated to fabricate her story so that she could have Wilson’s
room in J.C.’s house. 4 RP at 414. Wilson also argued that his DNA could have been transferred
to K.C.’s sweatpants without him ever touching her and that the other profiles present on the
sweatpants showed how easily DNA material could be transferred to fabric. Wilson pointed out
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No. 47772-6-II
that the 1 in 7,700 and 1 in 26 likelihoods of a Y-STR profile match in this case were much lower
than the “one in a quadrillion” likelihood present in other forms of DNA testing. 4 RP at 421.
III. VERDICT AND SENTENCE
The jury found Wilson guilty of third degree rape and third degree molestation of K.C.
The trial court sentenced Wilson to a standard range sentence.
ANALYSIS
I. CONFRONTATION CLAUSE
Wilson contends that the admission of Dixon’s testimony about the statistical occurrence
in the United States population of the profiles created from DNA found in the waistband and
vaginal samples violated his right to confront the witnesses against him. In particular, Wilson
attacks the results of the database’s search for matching profiles because Dixon testified that he
did not know anything about the search algorithms used. Wilson contends that this alleged error
was harmful. We disagree with Wilson’s contentions.
A. STANDARD OF REVIEW AND APPLICABLE LAW
We review de novo whether the admission of evidence violated the confrontation clause.
State v. Jasper, 174 Wn.2d 96, 108, 271 P.3d 876 (2012).
A criminal defendant has the right to confront “the witnesses against him.” U.S. CONST.
amend. VI; WASH. CONST. art. I, § 22. The confrontation clause applies when a witness is
unavailable at trial. State v. Price, 158 Wn.2d 630, 639, 146 P.3d 1183 (2006).
A two-part rule determines whether the testimony of an expert witness who assisted in the
preparation of forensic evidence testing implicates the confrontation clause. State v. Lui, 179
Wn.2d 457, 470-71, 315 P.3d 493, cert. denied, 134 S. Ct. 2842 (2014). In Lui, the court held that
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No. 47772-6-II
an expert comes within the scope of the confrontation clause only if (1) the person is a “‘witness’
by virtue of making a statement of fact to the tribunal” and (2) the person is a witness “‘against’
the defendant by making a statement that tends to inculpate the accused.” 179 Wn.2d at 462. A
“witness” is one who attests to facts; “against” indicates that those facts are adversarial in nature.
Lui, 179 Wn.2d at 480. This two-part test “allows expert witnesses to rely on technical data
prepared by others when reaching their own conclusions, without requiring each laboratory
technician to take the witness stand.” Lui, 179 Wn.2d at 483.
B. TESTIMONIAL – “PRIMARY PURPOSE” TEST
First, both Wilson and the State contend that whether the statements are “testimonial”
depends on the outcome of the “primary purpose” test. We disagree.
In Lui, the court analyzed United States Supreme Court case law on the confrontation
clause and noted that while the Supreme Court had settled on the “primary purpose test” as the
controlling rule for nonexpert witness testimony, there was no controlling rule for expert witnesses.
179 Wn.2d at 470. “In the absence of an authoritative Supreme Court majority rule,” the court
relied on the plain language of the confrontation clause to reach its working rule for the testimony
of expert witnesses. Lui, 179 Wn.2d at 470.
Thus, the determination of whether or not the DNA expert testimony here was
“testimonial” for the purpose of the confrontation clause is controlled by Lui and whether the
“testimony” here was made by an unavailable “witness against” Wilson.
C. “WITNESS AGAINST” WILSON
Wilson challenges the admission of Dixon’s testimony in which Dixon described the
occurrence statistics generated by the Y-STR database. Wilson argues that the search results were
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No. 47772-6-II
created by a witness other than Dixon and thus that their admission violated the confrontation
clause. Wilson argues that Dixon’s lack of familiarity with the search algorithms used by the
database violated the confrontation clause because the data that resulted was “against” Wilson.
Again, we disagree.
In Lui, the court held that to be a “witness” for the purpose of the confrontation clause, the
expert must impart factual information to the court. 179 Wn.2d at 480. “This definition does not
sweep in analysts whose only role is to operate a machine or add a reagent to a mixture.” Lui, 179
Wn.2d at 480. “[M]erely laying hands on evidence . . . does not a ‘witness’ make.” Lui, 179
Wn.2d at 481.
Even if a witness imparts facts to the court, the witness is not a witness “against” the
defendant unless those facts are adversarial in nature. Lui, 179 Wn.2d at 480. In Lui, the court
noted that “[t]he word ‘against’ implies some . . . capacity to inculpate the defendant.” 179 Wn.2d
at 481. The court held that the expert was a witness when she created the DNA profile but that the
expert only became a witness against the defendant once she compared the profile to the
defendant’s. Lui, 179 Wn.2d at 488-89. The necessary inculpatory element was present only at
the comparison stage because the data that the expert used did not itself inculpate anyone and did
not have any meaning to a nonexpert. Lui, 179 Wn.2d at 488.
Here, the particular information to which Wilson objects are the search results that the
profiles occurred in the database either 0 or 942 times. As in Lui, this data standing alone would
have had no meaning or significance to the trier of fact. The knowledge that a profile derived from
the waistband or vaginal swabs occurred many times or not at all in a database of profiles sheds
no particular light on Wilson’s guilt or innocence without more context.
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No. 47772-6-II
Wilson cannot successfully object to the process in which the database search results were
turned into the occurrence statistics because Dixon was available for cross-examination about the
calculation the database used. But even the occurrence statistics cannot be characterized as being
“against” Wilson. The Y-STR database generated a result that the profiles that Dixon input had
either a 1/7,700 or 1/26 chance of being present in a United States male selected at random from
the population. Standing alone, this information was not inculpatory. The necessary inculpatory
element entered the equation only when Dixon testified that he had found the profiles he entered
matched Wilson’s and that the database’s result told Dixon there was a 1/7,700 or 1/26 chance of
that match being coincidental.
For these reasons, we reject Wilson’s argument that the search results were “against”
Wilson. Because Wilson cannot show that Dixon’s testimony included statements of a “witness
against” Wilson not subject to cross-examination, we hold that there was no confrontation clause
violation.
II. ER 404(b) PRIOR ACT EVIDENCE
Wilson argues that the trial court abused its discretion when it allowed K.C. to testify that
Wilson had shown K.C. a movie with a naked woman on the cover and asked K.C. if she wanted
to watch the movie. Because the trial court did not abuse its discretion, Wilson’s argument fails.
A. STANDARD OF REVIEW AND APPLICABLE LAW
We review a trial court’s decision to admit evidence under ER 404(b) for abuse of
discretion. State v. DeVincentis, 150 Wn.2d 11, 17, 74 P.3d 119 (2003). A trial court abuses its
discretion if it exercises that discretion “‘on untenable grounds or for untenable reasons.’” State
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No. 47772-6-II
v. Foxhoven, 161 Wn.2d 168, 174, 163 P.3d 786 (2007) (quoting State v. Vy Thang, 145 Wn.2d
630, 642, 41 P.3d 1159 (2002)).
We require that the trial court apply a four-part test to determine whether the evidence of
the prior act is admissible under this rule. “‘[T]he trial court must (1) find by a preponderance of
the evidence that the [prior act] occurred, (2) identify the purpose for which the evidence is sought
to be introduced, (3) determine whether the evidence is relevant to prove an element of the crime
charged, and (4) weigh the probative value against the prejudicial effect.’” State v. Gresham, 173
Wn.2d 405, 421, 269 P.3d 207 (2012) (quoting Vy Thang, 145 Wn.2d at 642).
B. SUFFICIENCY OF THE PRIOR ACT EVIDENCE
Wilson claims that K.C.’s testimony did not prove that the incident occurred by a
preponderance of the evidence because Wilson denied showing the movie to K.C. and because her
testimony was too vague to provide evidence of the content of the movie. We disagree.
A court’s preponderance finding will by upheld if substantial evidence supports that
finding. State v. Baker, 89 Wn. App. 726, 732, 950 P.2d 486 (1997). Where a victim’s testimony
is the only evidence of an incident, it is up to the trial court to determine whether the victim is
credible. Baker, 89 Wn. App. at 732.
Here, K.C. testified that Wilson had asked her if she wanted to watch a movie and held a
movie cover “in [her] face” that depicted a naked woman. 1 RP at 117. K.C.’s testimony, if
believed, constituted substantial evidence to support a finding that the movie incident had occurred
by a preponderance of the evidence.
Because Wilson cannot show that the trial court abused its discretion when it found the
movie incident occurred by a preponderance of the evidence, we reject Wilson’s argument.
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No. 47772-6-II
C. RELEVANCY OF THE EVIDENCE
Wilson argues that the trial court abused its discretion when it held that the movie incident
showed “‘grooming’” and was therefore relevant. Br. of Appellant at 18.
We review the trial court’s determination of whether the evidence is relevant for abuse of
discretion. Foxhoven, 161 Wn.2d at 176. The trial court may properly admit grooming evidence
as evidence of a plan under ER 404(b). See State v. Hecht, 179 Wn. App. 497, 508, 319 P.3d 836(2014). “Grooming” is a “process by which child molesters gradually introduce their victims to
more and more explicit sexual conduct.” State v. Quigg, 72 Wn. App. 828, 833, 866 P.2d 655(1994).
K.C.’s description of the movie incident reveals that Wilson wanted K.C. to watch a movie
that K.C. believed was pornographic. The incident K.C. described could reasonably be
characterized as an example of gradually introducing K.C. to explicit sexual conduct and
normalizing such conduct. Thus, the trial court had tenable grounds to find that the evidence
showed grooming.
Accordingly, we reject Wilson’s argument regarding the admission of K.C’s testimony
about the movie incident.
III. EXCITED UTTERANCE
Wilson argues that the trial court abused its discretion when it allowed Officer Haske to
testify as an excited utterance that K.C. had told him about the movie incident. Wilson argues that
if there was any error, it was harmful because Officer Haske’s testimony about the movie incident
bolstered K.C.’s testimony. Even assuming there was error, any error was harmless.
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No. 47772-6-II
Nonconstitutional error in admitting hearsay evidence requires reversal only if there is a
reasonable probability that the error materially affected the outcome of the trial. State v. Neal, 144
Wn.2d 600, 611, 30 P.3d 1255 (2001) (quoting State v. Smith, 106 Wn.2d 772, 780, 725 P.2d 951(1986)). Improper admission of evidence is harmless if the evidence is of minor significance when
compared to the evidence as a whole. Neal, 144 Wn.2d at 611.
The effect of Officer Haske’s testimony was minimal in light of K.C.’s own testimony
consistently describing the movie incident. And the evidence against Wilson was overwhelming
given K.C.’s immediate disclosure, her extreme distress, her consistent accounts to other
witnesses, and the presence of Wilson’s DNA in her vagina and on her sweatpants. Accordingly,
even if Officer Haske had not testified about K.C.’s description of the movie incident, there is no
reasonable probability that the outcome of the trial would have been materially affected.
Accordingly, if there was error, it was harmless.2
IV. PROSECUTORIAL MISCONDUCT
Wilson argues that the prosecutor made an improper appeal to passion during closing
argument. Wilson claims that this argument, to which he did not object, resulted in prejudice and
was so flagrant and ill intentioned that no instruction could cure that prejudice. Concluding that
the prosecutor’s argument was proper, we reject this claim.
We review claims of prosecutorial misconduct to determine whether the defendant has
proven the conduct was improper and prejudicial. In re Pers. Restraint of Glasmann, 175 Wn.2d
2
Wilson also argues that if his counsel waived the challenge to Officer Haske’s testimony, then
his counsel was ineffective for failing to object. But we address Wilson’s challenge to Haske’s
testimony on the merits, and accordingly we reject his claim of ineffective assistance of counsel
on this ground.
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No. 47772-6-II
696, 704, 286 P.3d 673 (2012). Where a defendant did not object at trial, he has waived any error
unless he can establish that the prosecutor’s misconduct was so flagrant and ill intentioned that an
instruction could not have cured the resulting prejudice. State v. Emery, 174 Wn.2d 741, 761, 278
P.3d 653 (2012).
Here, Wilson claims that the prosecutor’s argument exhorted the jury to convict not on the
strength of the evidence, but to ensure Wilson “deals with the consequences in the manner of”
K.C. Br. of Appellant at 29. The prosecutor began his closing argument by reminding the jury of
K.C.’s suffering during the assault and saying that “[K.C.] did not deserve what happened to her
that night. And the person that inflicted that on her needs to be held accountable for his actions.”
4 RP at 398. The prosecutor ended his argument by saying that “[K.C.’s] been left to deal with
what’s happened to her. Now the time has come for [Wilson] to deal with it as well.” 4 RP at 430.
But a prosecutor is not muted because the acts committed arouse natural indignation. State
v. Borboa, 157 Wn.2d 108, 123, 135 P.3d 469 (2006) (quoting State v. Fleetwood, 75 Wn.2d 80,
84, 448 P.2d 502 (1968)). And our Supreme Court has held an argument that the defendant had
taken away his victims’ lives and “‘all he offers in return is the loss of his liberty’” did not rise to
the level of impropriety that characterizes improper appeals to passion or prejudice. In re Pers.
Restraint of Cross, 180 Wn.2d 664, 724-25, 327 P.3d 660 (2014). Thus, we conclude that the
prosecutor’s argument was proper. For this reason, we hold that Wilson’s prosecutorial
misconduct claim fails.3
3
Wilson also argues that if his counsel waived the prosecutorial misconduct argument, then his
counsel was ineffective for failing to object. But we address Wilson’s prosecutorial misconduct
claim on the merits, and accordingly we reject his claim of ineffective assistance of counsel on this
ground.
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No. 47772-6-II
V. CUMULATIVE ERROR
Wilson argues that even if none of the issues he raises warrants reversal of his convictions
when considered in isolation, the cumulative effect of the errors requires reversal. We reject
Wilson’s cumulative error claim.
Even if each individual error standing alone was harmless, cumulative error may warrant
reversal. State v. Weber, 159 Wn.2d 252, 279, 149 P.3d 646 (2006). Cumulative error applies to
instances where there are “several trial errors” that alone do not merit reversal but when combined
deny the defendant a fair trial. State v. Greiff, 141 Wn.2d 910, 929, 10 P.3d 390 (2000). Because
there was, at most, a single error (see section III, supra), we reject Wilson’s cumulative error
argument.
We affirm Wilson’s convictions.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,
it is so ordered.
JOHANSON, J.
We concur:
MAXA, A.C.J.
MELNICK, J.
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