State Of Washington v. Warren Carlos Mabry

Filed
Washington State
Court of Appeals
Division Two
May 10, 2016
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 47036-5-II
Respondent,
v.
WARREN CARLOS MABRY, UNPUBLISHED OPINION
Appellant.
JOHANSON, P.J. — A jury found Warren Mabry guilty of six counts of first degree child
rape. Mabry appeals, arguing that he was deprived of a fair trial because the State committed
prosecutorial misconduct in closing argument. Mabry also alleges, and the State concedes, that
the trial court erred by failing to consider his ability to pay before imposing legal financial
obligations (LFOs). In a statement of additional grounds (SAG), Mabry challenges the adequacy
of his trial representation. We hold that Mabry’s prosecutorial misconduct arguments fail because
he cannot show that the alleged misconduct was flagrant and ill-intentioned misconduct that was
incurable by an instruction. Likewise, Mabry’s SAG arguments lack merit. We affirm in part,
reverse in part, and remand to the trial court to strike the discretionary LFOs.
No. 47036-5-II
FACTS
In June 2013, young A.G.1 split her residential time between her two biological parents.
She spent weekends with her father and her stepmother, Valeria Jacobson, and stayed during the
week with her mother and her mother’s then husband, Mabry. When her mother was at work or
running errands, Mabry supervised A.G.
One day in June, A.G. spontaneously told Jacobson that Mabry had been “touch[ing]” her.
2 Report of Proceedings (RP) at 260. When Jacobson asked what she meant, A.G. pointed to her
chest and vaginal area. Shortly thereafter, A.G. described to Jacobson sexual abuse involving
Mabry. Jacobson and A.G.’s father took A.G. to the hospital where doctors conducted a physical
examination and collected deoxyribonucleic acid (DNA) swabs. Later, A.G. consulted with a child
abuse pediatrician and A.G. disclosed several instances of sexual abuse that she described
consistently with the same incidents that she had previously related to Jacobson. Detectives from
the Vancouver Police Department’s child abuse unit also interviewed A.G. where she again
consistently recalled acts of sexual abuse by Mabry.
The State charged Mabry with six counts of first degree rape of a child contrary to RCW
9A.44.073.2 At trial, A.G. and Jacobson testified regarding A.G.’s disclosures of sexual abuse.
1
See Division Two General Order 2011-1 (“in all opinions, orders and rulings in sex crime cases,
this Court shall use initials or pseudonyms in place of the names of all witnesses known to have
been under the age of 18 at the time of any event in the case”).
2
A person is guilty of first degree rape of a child when the person has sexual intercourse with
another who is less than 12 years old and not married to the perpetrator and the perpetrator is at
least 24 months older than the victim. RCW 9A.44.073.
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No. 47036-5-II
The jury also heard audio recordings of A.G.’s interviews with the child abuse pediatrician and
the investigating detective.
The State also called Brad Dixon, the DNA section supervisor for the Washington State
Patrol Crime Lab as a witness. Dixon recalled conducting DNA tests on A.G.’s genital swabs and
various articles of her clothing. Dixon was able to obtain a DNA sample from a section of material
that he cut from the rear portion of A.G.’s underwear. Analysis of the sample revealed a combined
profile consisting of DNA from A.G. and Mabry. Dixon explained that the presence of a certain
enzyme in the sample established that the sample was comprised at least in part of biological fluid.
Mabry did not testify or call any witnesses. During his closing argument, Mabry’s defense
largely centered around his theory that Jacobson and A.G.’s father, endeavoring to obtain full
custody, coached A.G. to fabricate the allegations of sexual abuse. The defense referred to A.G.
as a “pawn” and Mabry as a “scapegoat” in a scheme orchestrated by Jacobson and A.G.’s father
who sought to accomplish two goals. 7 RP at 857. First, as mentioned, they wished to remove
A.G. from the custody of her mother and what they felt was a neglectful parenting situation. And
second, the defense suggested that A.G.’s father wished to avoid paying child support as he was
already in arrears. Later, Mabry suggested that the issue was a “custody issue” and a “bias issue”
and implored the jury to take prejudice of that nature into consideration.
The State addressed these contentions in rebuttal closing argument where the prosecutor
said,
There’s a principle used in logical problem solving known as “Occam’s
Razor”, which states, “That among competing hypotheses, the one that make said
[sic] the fewest assumptions is the one that you should select.” So in other words,
the simplest answer is going to be the right one. That’s exactly what we have going
on here.
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No. 47036-5-II
7 RP at 871.
Also during rebuttal closing, the State’s final remarks to the jury included the following
statements:
We don’t have the technology to go back in time and stop bad things from
happening. We don’t have the technology to take the bad memories out of
someone’s head. [A.G.] had to deal with that ongoing sexual abuse. She had to
live with it. We are still seeing what she’s been left to deal with. And now the time
has come for [Mabry] to live with it.
7 RP at 880.
The jury found Mabry guilty on all counts. As part of Mabry’s sentence, the trial court
imposed LFOs and acknowledged that Mabry would have a “limited” ability to pay based on the
sentence the court imposed. Mabry did not object. Mabry appeals.
ANALYSIS
I. PROSECUTORIAL MISCONDUCT
Mabry contends that the State committed prosecutorial misconduct in two ways during its
rebuttal closing argument—first, by minimizing the burden of proof through the use of the
“Occam’s Razor” comment, and second, by making a flagrant appeal to the jury’s passion and
prejudice. Mabry asserts that the cumulative effect of this alleged misconduct requires reversal.
We disagree.
A. LEGAL PRINCIPLES
A defendant claiming prosecutorial misconduct must show both improper conduct and
resulting prejudice. State v. Fisher, 165 Wash. 2d 727, 747, 202 P.3d 937 (2009). Prejudice exists
when there is a substantial likelihood that the misconduct affected the verdict. State v. McKenzie,
157 Wash. 2d 44, 52, 134 P.3d 221 (2006). Because Mabry did not object at trial to the prosecutor’s
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No. 47036-5-II
allegedly improper conduct, we must ascertain whether the prosecutor’s misconduct was “so
flagrant and ill-intentioned” that it caused an “enduring and resulting prejudice” incurable by a
jury instruction. State v. Stenson, 132 Wash. 2d 668, 719, 940 P.2d 1239 (1997).
Under this heightened standard of review, Mabry must show that “(1) ‘no curative
instruction would have obviated any prejudicial effect on the jury’ and (2) the misconduct resulted
in prejudice that ‘had a substantial likelihood of affecting the jury verdict.’” State v. Emery, 174
Wash. 2d 741, 761, 278 P.3d 653 (2012) (quoting State v. Thorgerson, 172 Wash. 2d 438, 455, 258 P.3d
43 (2011)). In analyzing a prosecutorial misconduct claim, we “focus less on whether the
prosecutor’s misconduct was flagrant or ill intentioned and more on whether the resulting prejudice
could have been cured.” Emery, 174 Wash. 2d at 762. “‘The criterion always is, has such a feeling
of prejudice been engendered or located in the minds of the jury as to prevent a [defendant] from
having a fair trial?’” Emery, 174 Wash. 2d at 762 (alteration in original) (quoting Slattery v. City of
Seattle, 169 Wash. 144, 148, 13 P.2d 464 (1932)).
B. THE STATE DID NOT MINIMIZE THE BURDEN OF PROOF
Mabry contends that the prosecutor’s use of the “Occam’s Razor” comment suggested to
the jury that the State should be believed because the “simplest answer” is ordinarily the right one.
Mabry argues that the State therefore deprived him of a fair trial by minimizing the burden of
proof. This is so in Mabry’s view because a request for the jury to render a verdict based on the
“simplest answer” caused it to disregard the reasonable doubt standard. We disagree that the
State’s Occam’s Razor remark improperly caused the jury to disregard the State’s burden of proof.
Mabry is correct that arguments by the prosecution that shift or misstate the State’s burden
to prove the defendant’s guilt beyond a reasonable doubt constitute misconduct. State v. Lindsay,
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No. 47036-5-II
180 Wash. 2d 423, 434, 326 P.3d 125 (2014). But we review a prosecutor’s comments during closing
argument in the context of the total argument, the issues in the case, the evidence addressed in the
argument, and the jury instructions. Thorgerson, 172 Wash. 2d at 462 (Chambers, J., dissenting).
And a prosecutor has wide latitude in closing argument to draw reasonable inferences from the
evidence and to express such inferences to the jury. State v. Hoffman, 116 Wash. 2d 51, 94-95, 804
P.2d 577 (1991).
Here, in context, the reference to the concept of “Occam’s Razor” did not suggest to the
jury that it should disregard the proper standard of proof in favor of the “simplest explanation.”
Instead, the prosecutor’s reference was responsive to defense counsel’s assertion that A.G. had
been coached to fabricate false accusations of sexual abuse. He used the statement to segue into a
discussion about the reasonableness of Mabry’s defense in light of the State’s evidence at trial.
The prosecutor acknowledged that although it is perhaps possible in some instances for a child to
be coached, he argued that such a theory was unreasonable considering the facts and evidence of
Mabry’s case.
The prosecutor then alluded to various pieces of evidence and drew inferences from that
evidence to undermine Mabry’s defense. For instance, the State argued that it would be
nonsensical to have A.G. visit doctors, counselors, and other medical professionals if no abuse had
actually occurred. The prosecutor also reminded the jury about how emotional Jacobson had
become while testifying and how uncomfortable it was for A.G. to disclose the details of her abuse
during her interviews, implying that such responses are difficult to feign. Additionally, the State
returned to the issue of Mabry’s DNA having been found in A.G.’s underwear, asserting that
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No. 47036-5-II
Mabry’s theory that his DNA could have been left by doing laundry or by dressing A.G. was at
best dubious.
Finally, the prosecutor returned to the concept of reasonable doubt and argued that the
evidence presented created an abiding belief in Mabry’s guilt. The trial court also gave the jury
the proper reasonable doubt instruction. Accordingly, considering the issues, the evidence, and
the jury instructions, the “Occam’s Razor” comment was not improper and did not minimize the
State’s burden of proof. The State did not implore the jury to find Mabry guilty merely because it
was the “simplest answer.” The theme of the State’s rebuttal closing argument was that it was far
more reasonable to believe A.G. and the evidence that supported her allegations, including the
DNA evidence, rather than for the jury to believe that A.G. had been coached by her father and
Jacobson to make the sexual abuse allegations in order to further their custody battle and to avoid
child support. For the foregoing reasons, we hold that Mabry cannot establish that the State
committed prosecutorial misconduct on the basis of the “Occam’s Razor” remark because taken
in context, this remark was not improper.
C. APPEAL TO PASSION
Mabry contends that the State also committed prosecutorial misconduct when the
prosecutor expressed regret that it was not possible to “‘go back in time and stop bad things from
happening [to A.G.].’” Br. of Appellant at 16. He asserts that the cumulative effect of this
“flagrant appeal to passion” combined with the statements examined above, warrant reversal of
his convictions. Br. of Appellant at 16. Again, we disagree.
Appeals to jury passion are inappropriate. State v. Brett, 126 Wash. 2d 136, 179, 892 P.2d 29
(1995). Although not barred from referring to the heinous nature of a crime, a prosecutor
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No. 47036-5-II
nevertheless retains the duty to ensure a verdict “‘free of prejudice and based on reason.’” State
v. Pierce, 169 Wash. App. 533, 553, 280 P.3d 1158 (2012) (quoting State v. Claflin, 38 Wash. App.
847, 849-50, 690 P.2d 1186 (1984)). Furthermore, “‘[a] prosecutor is not muted because the acts
committed arouse natural indignation.’” State v. Borboa, 157 Wash. 2d 108, 123, 135 P.3d 469
(2006) (quoting State v. Fleetwood, 75 Wash. 2d 80, 84, 448 P.2d 502 (1968)).
Mabry contends that the prosecutor’s mention of the inability to “‘go back in time and stop
bad things from happening [to A.G.],’” and his reference to the fact that “‘bad memories’” cannot
be erased along with his statement that A.G. has to continue to “‘deal’” with having been
victimized are these sorts of inappropriate comments. Br. of Appellant at 16. But a brief
examination of relevant case law reveals that the comments at issue here, although improper, do
not rise to the level of improper comments that our courts have found sufficiently egregious to
warrant reversal.
In State v. Belgarde, 110 Wash. 2d 504, 508, 755 P.2d 174 (1988), our Supreme Court
reversed and ordered a retrial where the prosecutor referred to an American Indian group with
which the defendant was affiliated as a “‘deadly group of madmen’” and “‘butchers that kill
indiscriminately’” and told jurors that the group was “‘something to be frightened of.’” Similarly
in State v. Rafay, 168 Wash. App. 734, 827-29, 285 P.3d 83 (2012), Division One of this court
concluded that a prosecutor’s conduct had been “highly improper” where he repeatedly likened
the crime in that case to a highly publicized act of violence by a terrorist group. And in Pierce,
we held that a prosecutor in a murder trial committed improper and highly prejudicial misconduct
when the prosecutor discussed the final moments of two murder victims’ lives, adding emotionally
charged embellishments that were essentially fabricated. 169 Wash. App. at 555. We reasoned that
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No. 47036-5-II
the prosecutor’s comments were nothing more than an improper appeal to the jury’s sympathy.
Pierce, 169 Wash. App. at 555; see also Claflin, 38 Wash. App. at 849-50 (finding an improper appeal
to the jury’s passion when a prosecutor in rape trial read poem to jury).
Here, even assuming the prosecutor’s comments were improper, it was not misconduct
such that “(1) ‘no curative instruction would have obviated any prejudicial effect on the jury’ and
(2) the misconduct resulted in prejudice that ‘had a substantial likelihood of affecting the jury
verdict.’” Emery, 174 Wash. 2d at 761 (quoting Thorgerson, 172 Wash. 2d at 455). The prosecutor did
not make a series of inflammatory comments nor did he suggest that the jury should decide the
case based on its sympathy for A.G. The prosecutor did not fabricate details or embellish facts.
In the context of the entire argument, the challenged statement was one fleeting remark at the very
end of a lengthy closing argument.
Furthermore, the prejudice resulting from the improper comments did not have a
substantial likelihood of affecting the jury verdict because the evidence against Mabry was fairly
strong. A.G. testified—frequently with graphic detail—consistently with her previous disclosures.
The jury heard two recorded interviews during which A.G. consistently recalled the same acts of
abuse. Mabry’s DNA was found in A.G.’s underwear. Consequently, Mabry cannot demonstrate
that the challenged remark caused such prejudice that it had a substantial likelihood of affecting
the verdict or that an instruction could not have cured any resulting prejudice. Accordingly, we
hold that Mabry’s prosecutorial misconduct argument fails.
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No. 47036-5-II
II. LEGAL FINANCIAL OBLIGATIONS
Mabry argues that the trial court erred by imposing a number of discretionary LFOs without
making the necessary inquiry into his current and future ability to pay. The State disagrees with
Mabry’s characterization of some of the LFOs as discretionary but otherwise asks this court to
strike the majority of the LFOs that the trial court imposed and suggests that no hearing is
necessary on remand because it withdraws its request for discretionary LFOs. We accept the
State’s concession and we remand to strike the discretionary LFOs.
Generally, trial courts have the authority to impose costs and fees on a convicted defendant.
RCW 9.94A.760(1); RCW 10.01.160(1). Trial courts have wide latitude in matters related to
sentencing under these statutes. State v. Barnes, 117 Wash. 2d 701, 710, 818 P.2d 1088 (1991).
Under RCW 10.01.160(3), “[t]he court shall not order a defendant to pay costs unless the defendant
is or will be able to pay them. In determining the amount and method of payment of costs, the
court shall take account of the financial resources of the defendant and the nature of the burden
that payment of costs will impose.”
RCW 10.01.160(3) requires the record to reflect that the sentencing court made an
individualized inquiry into the defendant’s current and future ability to pay before it imposes
LFOs. State v. Blazina, 182 Wash. 2d 827, 838-39, 344 P.3d 680 (2015). To carry out this task,
courts must consider certain factors, such as incarceration, other existing debts, and whether the
defendant meets the GR 34 standard for indigency. Blazina, 182 Wash. 2d 838.
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No. 47036-5-II
Subject to certain exceptions, we have the discretion to decline to review issues not raised
before the trial court. RAP 2.5(a). But as Blazina makes clear, each appellate court is permitted
to make its own decision to review LFO issues on appeal. 182 Wash. 2d 835. Here, Mabry did not
object to the discretionary LFOs imposed at sentencing, but we exercise our discretion to reach the
issue.
The State requests that imposed discretionary LFOs be stricken from Mabry’s judgment
and sentence.3 The State asserts that remand for a hearing is unnecessary because it withdraws its
request for repayment of discretionary LFOs. We agree.
However, the State is correct that the $100 crime lab fee is controlled by a statute separately
from those that govern a trial court’s discretion to impose LFOs generally. The specific provision
provides,
When a person has been adjudged guilty of violating any criminal statute of this
state and a crime laboratory analysis was performed by a state crime laboratory, in
addition to any other disposition, penalty, or fine imposed, the court shall levy a
crime laboratory analysis fee of one hundred dollars for each offense for which the
person was convicted. Upon a verified petition by the person assessed the fee, the
court may suspend payment of all or part of the fee if it finds that the person does
not have the ability to pay the fee.
Former RCW 43.43.690(1) (1992) (emphasis added).
Thus, the crime lab fee imposed here was mandatory because the State Patrol crime lab
performed DNA analysis in connection with Mabry’s case. And former RCW 43.43.690(1)
controls in lieu of the other LFO statutes in this instance because an applicable specific statute
3
The State disputes Mabry’s calculation of the amount of obligations imposed. Specifically, the
State argues that because the jury demand fee ($250) and criminal filing fee ($200) were not
actually calculated as “court costs,” the State does not “believe that the clerk reads the J&S as
having imposed those costs.” Br. of Resp’t at 10.
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No. 47036-5-II
supersedes a relevant general statute. State v. Moon, 124 Wash. App. 190, 193, 100 P.3d 357 (2004).
Furthermore, although the statute provides that the person assessed the fee may petition to have
payment suspended, there is nothing in the record to suggest that Mabry has filed such a petition.
For all of the foregoing reasons, we uphold the imposition of the DNA fee but remand for the trial
court to strike the discretionary LFOs from the judgment and sentence.
III. STATEMENT OF ADDITIONAL GROUNDS
In his SAG, Mabry appears to assert that he received ineffective assistance of counsel
during his trial. Specifically, he contends,
I believe my attorney at the time did not do all that he could to represent me, all the
people he said he wo[uld] be at the tri[al] didn’t seem to be interviewed
[thor]oughly enough. I feel at the time, that I wasn’t represented fair[ly].
SAG at 1.
Although it is clear from his statement that Mabry believes that there were shortcomings
regarding the quality of his representation, he fails to inform us as to the nature or occurrence of
the alleged errors with any meaningful specificity. RAP 10.10(c). Mabry does not identify the
witness or witnesses that he alleges were not interviewed thoroughly enough nor does he discuss
what information a more thorough interview would have revealed. We are not required to search
the record in support of Mabry’s claims. RAP 10.10(c).
And to the extent that his alleged errors rely on matters outside the record, the appropriate
means to raise such issues is through a personal restraint petition. State v. McFarland, 127 Wash. 2d
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322, 338, 899 P.2d 1251 (1995). Accordingly, we decline to reach the merits of his SAG, affirm
Mabry’s convictions, reverse the discretionary LFOs, and remand for the trial court to strike the
discretionary LFOs.
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, P.J.
We concur:
MELNICK, J.
SUTTON, J.
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