State Of Washington, V Jason C. Wilks

Filed
Washington State
Court of Appeals
Division Two

April 23, 2019

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II
STATE OF WASHINGTON, No. 50287-9-II

Respondent,

v.

JASON CRAIG WILKS, UNPUBLISHED OPINION

Appellant.

SUTTON, J. — Jason C. Wilks appeals his convictions for one count of second degree child

molestation, one count of third degree rape of a child, five counts of third degree child molestation,

three counts of unlawful delivery of a controlled substance to a minor with sexual motivation, and

five counts of furnishing liquor to a minor with sexual motivation.1 Wilks argues that (1) the trial

court denied his right to present a defense by preventing him from adducing evidence of the

victims’ motive to lie about the allegations, (2) the trial court violated Wilks’s right to a jury trial

by failing to inquire into a juror who was allegedly sleeping, (3) the State committed prosecutorial

misconduct during its closing argument, (4) the State presented insufficient evidence to support

Wilks’s convictions, and (5) cumulative error violated Wilks’s right to a fair trial. In a Statement

of Additional Grounds (SAG), Wilks also argues that the trial judge was biased against him. We

disagree with all of Wilks’s arguments and affirm his convictions.

1
The charges involved five minor victims. As a result, we refer to the victims by their initials as
opposed to their full names. See RCW 7.69A.030(4).
No. 50287-9-II

FACTS

I. BACKGROUND

Wilks was born on September 26, 1978, and later married Katie Wilks.2 Together, Katie

and Wilks have three children—SW, NW, and JW. The Wilkses live with Wilks’s stepfather,

Daniel Herzfeldt.

In 2016, the State charged Wilks with the following crimes committed against five of SW’s

teenaged friends: two counts of third degree child rape of BS; one count of second degree child

molestation of BS; five counts of third degree child molestation of BS, MR, LM, AB, and RR;

three counts of unlawful delivery of a controlled substance to a minor to BS, MR, and AB; and

five counts of furnishing liquor to a minor to BS, MR, LM, AB, and RR. During trial, the State

argued that Wilks had raped and/or molested the five teenaged girls over the span of two years by

getting them drunk and high at his home. Wilks argued that he had never touched any of the

victims inappropriately and had never provided marijuana or alcohol to any minors. Wilks argued

that the allegations were fabricated as retaliation by the girls after Wilks excluded them from his

home for bad behavior including sharing inappropriate messages and photographs with his

daughter and smoking marijuana.

The jury found Wilks not guilty of one count of third degree child rape but guilty of all

other charges. The jury also found that Wilks committed two of these crimes—unlawful delivery

of a controlled substance to a minor and furnishing liquor to a minor—with sexual motivation.

2
Jason, Katie, and their children share a last name. To avoid confusion, we refer to Katie by her
first name and the children by their initials, we intend no disrespect.

2
No. 50287-9-II

II. EVIDENTIARY RULINGS

During motions in limine, the State and Wilks discussed potential evidence of mental

health issues, prior sexual abuse, and prior sex acts of BS and AB. Specifically, Wilks sought to

introduce evidence that BS had been molested by her cousin when she was six, engaged in

consensual intercourse in the 7th grade, and was raped by a different male in June of 2013. Wilks

argued that the evidence would be material to rebut the allegation that BS developed post-traumatic

stress disorder (PTSD) as a result of Wilks’s actions, to explain BS’s precocious sexual knowledge,

and to determine whether BS’s recollection of incidents with Wilks were actually recollections of

the 2013 rape. Wilks also sought to introduce evidence that AB had significant mental health

issues prior to the alleged incidents with Wilks. The trial court excluded the evidence of mental

health issues, prior sexual abuse, and prior sexual activity.

The State and Wilks also discussed potentially offering testimony about Wilks and Katie

excluding the victims from the Wilkses’ home because the victims were engaged in promiscuous

activity with their daughter. Wilks indicated that his defense theory would be that the victims

fabricated the allegations against Wilks in retaliation for being excluded from the Wilkses’ home.

The trial court ruled that such testimony would need to be ruled on in context as it came up during

trial, but that the parties should not use the word “promiscuous.” Verbatim Report of Proceedings

(VRP) (9-20-16) at 41. The trial court explained:

I’m not going to prohibit—if it becomes relevant in the course of the trial
that Mr. Wilks barred these individuals from their home and the Defense’s theory
is that the bar from return to his residence precipitated a backlash which was a
revenge allegation of these charges, then to some degree I think that it’s appropriate
to explore that.

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No. 50287-9-II

VRP (9-20-16) at 42. Wilks sought to clarify whether he could present his defense theory during

opening arguments. The trial court clarified:

I think that I need to allow you to say that at one point Mr. Wilks disinvited or
barred these individuals from his home and that your theory of the case is that these
charges were then leveled after that as an act of revenge. I think that I have to allow
that.
But I don’t think that I have to allow any of the details about why that all
rolled out and what happened until I get a better idea of what the testimony actually
is.

VRP (9-20-16) at 43.

The parties also discussed potential testimony about the victims sending and receiving lewd

photographs, the discovery of which led Wilks to exclude the victims from his home. The trial

court ruled that Wilks could not go into the discrete issue of nude photographs but that he was not

barred “from arguing that the conduct and comments and communications related to all of these

teenagers became increasing sexualized, and Mr. Wilks, therefore, became concerned and said,

‘No more at my house,’ and this was retaliation.” VRP (9-20-16) at 48.

Later, during a break in Wilks’s direct examination of SW, Wilks sought to admit

photographs allegedly showing some of the victims displaying promiscuous behavior. Wilks

argued that his discovery of the photographs led him to exclude those girls from his home. The

trial court ruled that the photographs were inadmissible, concluding that the probative value of any

discussion of the victim’s promiscuity would be outweighed by the prejudicial effect. The trial

court clarified that Wilks could admit evidence that he and Katie had a conflict with the girls, and

as a result, the girls were not allowed at the house anymore.

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No. 50287-9-II

Wilks also sought to elicit testimony from SW that some of the alleged victims were not

allowed in Wilks and Katie’s bedroom because the girls had stolen from them. Outside the

presence of the jury, SW stated:

[BS] was not allowed in my parents’ room because she stole from me and
my mom. [MR] was not allowed in my room because of the same thing. She stole
from me and my mom. And [LM]—they didn’t like [LM] in my room because
she’s been known to lie, and she’s also stole from me and my mom.

VRP (10-27-16) at 136. SW also noted that her parents “just didn’t like [RR] in general because

there have been multiple incidents with me and her.” VRP (10-27-16) at 137. Wilks and the State

argued whether SW’s further testimony was admissible. The trial court ruled:

I would observe that 608(b), which we’re referring to, states in relevant part that
specific acts of conduct in the discretion of the Court, if probative of truthfulness
or untruthfulness, may be inquired into on cross-examination of the witness.
This is direct examination, so I just don’t see it. I’m not going to allow it.

VRP (10-27-16) at 140.

III. SLEEPING JUROR

Toward the end of the trial, Wilks informed the trial court that two individuals in the gallery

had observed two jurors sleeping during testimony the prior day. Wilks’s counsel acknowledged

that he did not see any jurors sleeping. The trial court noted:

I keep a pretty close eye on it. And I can’t say to an absolute certainty that one or
the other of the jurors may not have had their eyes closed and slept, but I didn’t see
it. If you see it, you’ve got to call it to my attention. I can’t wake them up from
yesterday.

VRP (11-1-16) at 9. Wilks requested to inquire of the jurors if any had fallen asleep during

testimony, “out of an abundance of caution.” VRP (11-1-16) at 10. The trial court took his request

under consideration but did not make a decision.

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No. 50287-9-II

Later that same day, Wilks informed the court that he had been told the allegedly sleeping

juror was Juror no. 10 and that he had allegedly been sleeping that morning as well. The trial court

responded:

So I have been vigilantly watching the jury. I didn’t see anyone sleeping. We did
get up and stretch. It’s a little subjective, but I thought perhaps their attention was
starting to fade, and so we got up for a stretch break. I would observe that
yesterday—what I have regarding the sleeping incident is I didn’t see it. None of
my staff saw it. Neither counsel or [sic] any of the Defense or Prosecution team
saw it or brought it to the Court’s attention. What I have are essentially
observations from the gallery. And I don’t think that there is cause to inquire of
the jurors, you know, whether they were sleeping or not, given the fact that nobody
that was directly involved with the case either saw it or brought it to the Court’s
attention.
I will continue to have breaks or do whatever I can to ensure the
attentiveness of the jurors, unless something happens and one of them just tips over
and starts snoring. If you see anything, please bring it to my attention in a timely
way. That’s about all I can do.

VRP (11-1-16) at 47-48. Wilks then requested to inquire with respect to the two individuals from

the gallery who allegedly witnessed the sleeping juror; the trial court denied his request.

IV. TRIALTESTIMONY

A. LM’S3 TESTIMONY

LM testified as follows. LM met Wilks through SW, who went to middle school with LM.

LM went to Wilks’s house for the first time sometime between 2011 and 2013 when she was in

the 7th or 8th grade. She frequently spent the night at Wilks’s home, and when LM was 14 years

old and in 9th grade, LM and the Wilks family would drink alcohol and smoke marijuana together.

Wilks would provide the alcohol and marijuana, but LM did not smoke marijuana very often. LM

had a very close relationship with the Wilks family and came to regard them as a second family.

3
LM was born in June 1999.

6
No. 50287-9-II

On October 22, 2014, LM received a text message from Wilks saying “I’m bored. You

need to turn 18 already.” VRP (9-27-16) at 43. The following day, LM went to a high school

football game with SW. After the game, LM went to Wilks’s home where they drank Fireball

whiskey and played a drinking game. That night, LM, Wilks, SW, and Katie consumed a half

gallon bottle of Fireball whiskey. After drinking the whiskey, LM felt dizzy and wanted to lie

down.

At the end of the night the four of them went to Wilks’s bedroom to watch a movie. Wilks’s

bed was against the wall in the corner. LM laid closest to the wall, Wilks was next to her, followed

by Katie and SW. LM fell asleep during the movie and then woke up to Wilks softly biting her

ear, touching her, cuddling her, and rubbing her buttocks. LM fell back asleep because she “didn’t

want to know what was going on,” and when she woke up in the morning her underwear was down

and her pants were pulled up. VRP (9-27-16) at 57. LM’s vagina felt wet as if it had been touched.

The night after the incident, LM was alone with Wilks in a parking lot when he told her he had a

crush on her.

The day after the incident LM told two of her friends what had happened and then told her

mom. That week LM also told her counselor. LM and her mom then reported the incident to

police. Prior to the incident, Wilks had never told LM that she was not allowed to come to his

house.

In November, shortly after LM reported the incident to police, Wilks sent her a text

message saying, “I don’t know what you’re trying to get out of this, but I would appreciate it if

you could stop. I don’t want to have to call CPS on your family about your mom’s meth use, but

7
No. 50287-9-II

we will if that’s what it takes.” VRP (9-27-16) at 92-93. LM took Wilks’s message as him trying

to get her to take back her accusations against him.

B. BS’S4 TESTIMONY

BS testified as follows. BS met Wilks through SW when BS and SW were in middle

school. Wilks and Katie would provide alcohol and marijuana, which they grew in their bedroom,

to BS and SW whenever BS was at their house. Occasionally, Wilks would rub BS’s belly, chest,

and thighs while they watched movies on his bed. Sometimes BS would ignore the touching, other

times she would tell him to stop or push his arm away.

When BS was in 7th grade during the 2011-2012 school year, Wilks had not yet begun

giving her marijuana or alcohol. One night she was lying on her side in Wilks’s bed, and Wilks

started rubbing her breasts and thighs toward her vagina. At the time, BS did not report the

incident. She explained, “I mean I was uncomfortable, but I wasn’t really sure that it happened,

to be honest. . . . I was falling asleep, and I guess I was just more hoping that it didn’t. VRP (9-

28-16) at 119. Wilks did similar things on other occasions, but BS could not recall the specific

dates.

On multiple other occasions, Wilks would touch BS’s butt, vagina, thighs, and inside of

her bra. The touching would be both over and under clothing and always occurred in his bed and

involved alcohol or marijuana. When she was in the 8th grade, Wilks touched BS’s vagina under

her clothing and put the tip of his finger inside her vagina before she pushed his hand away. Katie

and SW were both asleep in the bed with BS and Wilks at the time of the incident. Wilks tried to

4
BS was born in March 1999.

8
No. 50287-9-II

put his finger in her vagina on other occasions and they usually smoked marijuana before those

incidents. Wilks tried to rub against her with his penis.

BS explained that her recall of the incidents was somewhat blurred. She explained:

Well, honestly, because I’m in counseling. And I’ve been working really hard to
put all of this behind me. And a lot of dates and times and everything with how
long it’s been is—they’re all coming together.
It’s hard to recall which is when, what happened when, what exactly
happened that specific time. I know this happened to me. But, to be honest, my
answers are going to be I don’t know because I do not want to guess and be wrong.

VRP (9-28-16) at 130. There were frequently times during middle school and high school when

she would pass out from drinking or smoking too much at Wilks’s home. There were a couple of

times when BS would wake up with her pants off or down her legs after having passed out.

In November of 9th grade, police officers came to BS’s high school and asked her questions

about Wilks. The police officers told her a little bit about LM’s allegations against Wilks, but LM

had never told her any details. BS and LM were not really friends.

BS’s friendship with SW was off and on and “rocky.” VRP (10-4-16) at 22. There were

times that she and SW did not speak to each other.

During cross-examination, Wilks asked BS if Wilks had cut her off due to BS’s behavior

at his house and her behavior on Facebook. BS responded:

I don’t know whether or not he had cut it off. I know that every time me and [SW]
weren’t friends, there was something going on between us. I didn’t hear anything
about him. I had heard something from a friend that went to Washington when I
went there saying that he said that I wasn’t allowed over there, but that’s all.

VRP (10-4-16) at 24.

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No. 50287-9-II

C. MR’S5 TESTIMONY

MR testified as follows. MR came to know Wilks through SW, who went to the same

school as MR. SW was MR’s best friend, and the two of them would hang out at SW’s house,

smoke marijuana, and watch movies. MR considered the Wilkses like her family. They would

smoke marijuana, provided by Wilks, almost every day that she was at the Wilkses’ house. Before

MR’s 16th birthday, the Wilkses gave her a charm bracelet that cost about $190. MR only drank

alcohol at Wilks’s house once.

The night that MR drank alcohol at Wilks’s house was the Friday before her 16th birthday

in 2014. Wilks left to buy the alcohol at a liquor store, came back to the house, and everyone

played a drinking game. At some point MR, SW, Wilks, and Katie went to sleep in Wilks’s bed.

MR fell asleep between SW and Wilks. At some point in the night, MR awoke to Wilks with his

hand down her pants, touching her vagina.

The morning after the incident, MR disclosed what had happened to her friend. A few days

later, MR messaged Katie and asked her to meet her at a transit center. At the transit center, MR

disclosed the incident to Katie and SW. About a week later, MR was at Wilks’s home when Wilks

asked to talk to her on the back porch. MR recalled, “He was telling me that he had mistaken my

body for his wife’s body and that I needed to start acting like nothing happened or I can’t come

over anymore.” VRP (10-5-16) at 33.

In November of 2014, MR disclosed the incident to a school counselor who then reported

it to police.

5
MR was born in October 1998.

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No. 50287-9-II

On cross-examination, Wilks asked MR, “Isn’t it true that before everything happened

[SW]’s dad cut you off from their residence and [SW] due to your behavior?” VRP (10-5-16) at

58. MR responded that it was not true.

D. AB’S6 TESTIMONY

AB testified as follows. AB met Wilks at SW’s birthday party when AB was a freshman

in high school and either 14 or 15 years old. AB met SW through a mutual friend, RR. When AB

hung out with SW, they would hang out at Wilks’s house, smoking marijuana or drinking alcohol

that was provided by Wilks. As AB became better friends with SW, AB became Instagram and

Facebook friends with Wilks and Katie. At one point AB posted a picture of herself, and Wilks

commented saying she was beautiful.

On the night of Katie’s birthday in the summer of 2014, AB went out to dinner with the

Wilkses, returned to their house after dinner, and started drinking and smoking marijuana. Katie

and Wilks provided the alcohol and marijuana. AB, SW, Katie, and Wilks played a drinking game

called “King’s Cup.” VRP (10-6-16) at 77. Later in the night, AB woke up in Wilks’s bed lying

between SW and Wilks. Wilks was “running his hands along” her, caressing her, trying to kiss

her, and had his hands in her pants touching her vagina. VRP (10-6-16) at 79.

Several months later, AB disclosed the incident to her mother by writing her a letter. AB

and her mother then called and reported the incident to the police.

6
AB was born in November 1998.

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No. 50287-9-II

E. RR’S7 TESTIMONY

RR testified as follows. RR came to know Wilks through her friendship with SW when

she was a freshman in high school during the 2013-2014 school year. When RR was friends with

SW she would spend most weekends at SW’s house, up until June 17, 2014. While at Wilks’s

house, they would smoke marijuana, drink alcohol, and hang out. Wilks and Katie would provide

the marijuana and alcohol.

One night in February 2014, Wilks gave RR a lot of rum and she became very drunk to the

point of blacking out. A few months later RR started having flashbacks and dreams of something

that had happened to her that night. In the flashbacks and dreams, Wilks was in the bed with RR

with his hand in her pants touching her vagina. RR only had memory of one incident.

RR’s flashbacks were originally somewhat vague, and then more little pieces started to

come back after she heard MR’s and AB’s allegations. When RR started having the flashbacks,

she talked to AB about it and eventually told her grandma and her counselor. RR could not say

for sure if anything improper happened with Wilks, but RR believed it did happen.

F. KATIE WILKS’S TESTIMONY

At trial, Katie testified that SW and BS had a falling out and were not friends from early in

8th grade until the beginning of their freshman year of high school.

Katie recalled that one day she and Wilks discovered LM and SW in the side yard smoking

marijuana. Katie explained that she and Wilks both became upset after finding the girls smoking.

Katie also testified that she never saw any kids drinking alcohol or smoking marijuana at the

7
RR was born in December 1998.

12
No. 50287-9-II

Wilkses’ house except for the time she caught LM and SW smoking and one time she caught

another one of SW’s friends with a bottle of alcohol.

G. SW’S TESTIMONY

SW testified that she and BS had a falling out between 8th grade summer and the start of

9th grade. SW explained that between 8th and 9th grade her parents cut off her contact with BS.

Later, before November of 10th grade, BS started coming over again. SW also testified that around

September of 10th grade, she was no longer allowed to have contact with MR. SW recalled that

the morning of homecoming, her parents caught her and LM in their side yard while LM was

smoking marijuana. SW described her parents as being upset with LM and SW. SW explained

that after homecoming she no longer hung out with LM because SW felt like LM was a bad

influence on her. SW stated that BS, LM, and MR were upset about not being friends anymore.

SW also testified that BS, MR, and RR were not allowed in Wilks and Katie’s bedroom

when they were at the Wilkses’ house.

H. WILKS’S TESTIMONY

Wilks testified in his defense. Wilks recalled SW and LM’s friendship, but struggled to

articulate a coherent timeline of events. He testified that during SW’s 8th grade year, SW and LM

had a fight and stopped communicating for a while. Wilks and Katie were not involved in that

conflict but did institute a rule that LM could not have contact with SW. Wilks stated that in the

fall of 2013, LM and SW started being friends again.

Later in his testimony, Wilks testified that at the end of SW’s 8th grade year, Wilks

discovered inappropriate photos on SW’s phone from SW’s time at LM’s house, and as a result,

he no longer allowed SW to stay over at LM’s house. Wilks then stated that in October 2014, he

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found more objectionable material involving LM and that’s when he stopped allowing SW to go

to LM’s house. Wilks then testified that the objectionable material did not trigger any restriction

of SW spending time with LM. Wilks recalled that LM was not allowed at their house after

homecoming after he and Katie discovered her smoking marijuana in their side yard.

Wilks described his daughter’s friendship with BS as “rough and rocky.” VRP (10-31-16)

at 102. Wilks testified that in September of 2013 or 2014, he discovered severely inappropriate

photos and text messages involving BS on SW’s phone. Wilks explained that as a result, BS “was

immediately removed from our house. She was immediately removed from our family period.”

VRP (11-1-16) at 35.

Wilks recalled that on more than one occasion in 2013 and 2014, he discovered

objectionable material on SW’s phone from MR, including text messages, Snapchat photos,

Facebook messages, and personal photos that made him and Katie concerned. In November 2014,

Wilks and Katie decided SW should have no more contact with MR after Wilks discovered

objectionable material on SW’s phone.

Wilks also testified that after their camping trip to the ocean in 2014, he discovered

inappropriate photos and text messages on SW’s phone involving AB. As a result, Wilks and

Katie no longer allowed SW to have contact with AB.

ANALYSIS

I. EVIDENCE OF MOTIVE TO LIE

Wilks argues that the trial court denied his right to present a defense by preventing Wilks

from adducing evidence of the victims’ motive to lie. Wilks also raises this issue in his SAG.

However, the record reflects that Wilks was not prevented from developing his defense theory.

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No. 50287-9-II

Further, the trial court did not abuse its discretion in ruling that some of Wilks’s evidence was

inadmissible. Accordingly, Wilks’s argument fails.

Criminal defendants have a constitutional right to present a defense. U.S. CONST. amends.

V, VI, XIV; WASH. CONST. art. I, § 3, 22; Chambers v. Mississippi, 410 U.S. 284, 294, 93 S. Ct.

1038, 35 L. Ed. 2d 297 (1973). However, this right is not absolute; it does not extend to irrelevant

or inadmissible evidence. State v. Blair, 3 Wn. App. 2d 343, 349, 415 P.3d 1232 (2018). “The

accused does not have an unfettered right to offer testimony that is incompetent, privileged, or

otherwise inadmissible under standard rules of evidence.” Taylor v. Illinois, 484 U.S. 400, 410,

108 S. Ct. 646, 98 L. Ed. 2d 798 (1988). “The defendant’s right to present a defense is subject to

‘established rules of procedure and evidence designed to assure both fairness and reliability in the

ascertainment of guilt and innocence.’” Blair, 3 Wn. App.2d at 350 (quoting Chambers, 410 U.S.

at 302).

Where a defendant premises an alleged constitutional violation on a trial court’s

evidentiary ruling, we review for abuse of discretion. See State v. Lee, 188 Wn.2d 473, 486, 396

P.3d 316 (2017). “A trial court abuses its discretion when its decision is manifestly unreasonable

or exercised on untenable grounds or for untenable reasons.” State v. Lord, 161 Wn.2d 276, 283-

84, 165 P.3d 1251 (2007).

Wilks does not make any citations to the record in either his brief or his SAG to support

his contention that the trial court’s “numerous evidentiary rulings” denied his right to present a

defense. See RAP 10.3(a)(6). As a general argument, Wilks contends “[a]bsent the context for

the Wilks’ [sic] exclusion of the girls from their residence the jury could not consider whether the

alleged victims were credible in their testimony about what happened at the Wilks residence.” Br.

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of Appellant at 50. Wilks’s brief vaguely references (1) LM smoking marijuana at the Wilkses’

property, (2) LM stealing from the Wilkses, (3) LM having “objectionable material” on her cell

phone, (4) SW noting BS stealing from the Wilkses, (5) AB bringing alcohol to Wilks’s house,

and (6) MR having “objectionable and ‘extremely inappropriate’” texts. Br. of Appellant at 49.

In his SAG, Wilks argues that he was

not allowed to provide any evidence that talked or portrayed the alleged victims in
any negative way. The defense was not allowed to show that the alleged victims
were bad influences and all had police records and a history of sex abuse and drug
abuse. We were not allowed to prove that all of the alleged victims were all in
some sort of counseling well before they made their allegations against me and that
they all had trouble with school and the law.

SAG at 4.

Assuming these references identify the evidence Wilks contends was improperly excluded,

we hold that Wilks’s argument fails because the evidence was either admitted or properly

excluded.

The majority of the evidence Wilks references was admitted at trial. Wilks was permitted

to question LM about her smoking marijuana at Wilks’s property. Wilks also elicited testimony

from Katie and SW about catching LM and SW smoking marijuana at the house. Additionally,

Wilks testified that LM was not allowed at their house after he and Katie discovered her smoking

marijuana in their side yard. RP (11-1-16) 36, 101-02. Wilks also testified about the objectionable

material involving LM that he had found on SW’s phone. Wilks also testified that he and Katie

decided not to allow SW to have further contact with MR after discovering inappropriate content

involving MR on SW’s phone. We could not find any reference in the nearly 4000 page trial

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transcript to any attempt by Wilks to bring in evidence that AB had brought alcohol to the Wilkses’

house.

The trial court did rule that testimony from SW that BS and LM had stolen from the

Wilkses’ residence was inadmissible.8 However, we hold that the trial court did not abuse its

discretion by excluding this evidence pursuant to ER 404(a)(3) and ER 608. ER 404(a)(3) provides

that evidence of a witness’s character or other wrongs or acts are “not admissible for the purpose

of proving action in conformity therewith on a particular occasion” except as provided in ER 607,

608, and 609. ER 608 permits that specific acts of conduct may be inquired into on cross-

examination of a witness, if probative of truthfulness or untruthfulness. Here, Wilks sought to

elicit testimony from SW on direct examination that BS, MR, and LM were not permitted in

Wilks’s bedroom because they had stolen from SW and Katie before. The trial court ruled that the

character evidence was inadmissible under ER 608 because Wilks sought to admit it on direct

examination. This proper application of the evidentiary rules was not an abuse of discretion.

Additionally, Wilks was able to argue his defense theory to the jury during his closing

argument. Wilks argued that the girls “were part or felt part of the family until Mr. Wilks

discovered improper texts, until Mr. Wilks discovered improper posts, until Mr. Wilks discovered

improper photographs, all of which were troubling, objectionable material contained on his

teenager daughter’s phone.” VRP (11-3-16) at 123. Wilks argued that “these girls retaliated when

8
During motions in limine, the trial court also ruled to prohibit inquiry on direct examination of
BS into BS allegedly stealing clothing from the Wilkses’ residence. Wilks makes no reference to
this ruling anywhere in his brief. We do not address the propriety of that ruling in limine as it is
inadequately briefed. RAP 10.3; State v. C.B., 195 Wn. App. 528, 535, 380 P.3d 626 (2016)
(holding that we will not review issues which are inadequately briefed).

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No. 50287-9-II

he began consequences, when he began cutting his daughter off from these kids, when he began

disallowing these kids, when he began implementing rules.” VRP (11-3-16) at 123.

In sum, the trial court did not abuse its discretion by excluding some of Wilks’s evidence.

Moreover, the few pieces of evidence that the trial court excluded did not deprive Wilks of his

ability to present his defense.

II. SLEEPING JUROR

Wilks argues that the trial court denied his right to a fair jury trial by failing to inquire into

an allegedly sleeping juror.9 We disagree.

We review a trial court’s decision to excuse or retain a juror for abuse of discretion. State

v. Ashcraft, 71 Wn. App. 444, 461, 859 P.2d 60 (1993). Under RCW 2.36.110, the judge has a

duty “to excuse from further jury service any juror, who in the opinion of the judge, has manifested

unfitness as a juror by reason of . . . inattention . . . or by reason of conduct or practices

incompatible with proper and efficient jury service.” CrR 6.5 states that “[i]f at any time before

submission of the case to the jury a juror is found unable to perform the duties the court shall order

the juror discharged.” “RCW 2.36.110 and CrR 6.5 place a continuous obligation on the trial court

to excuse any juror who is unfit and unable to perform the duties of a juror.” State v. Jorden, 103

Wn. App. 221, 227, 11 P.3d 866 (2000).

The test is whether the juror engaged in misconduct. Jorden, 103 Wn. App. at 229. “[T]he

trial judge has discretion to hear and resolve the misconduct issue in a way that avoids tainting the

juror and, thus, avoids creating prejudice against either party.” Jorden, 103 Wn. App. 229.

9
Wilks reiterates this argument in his SAG. Because we fully address it here, we do not address
it a second time in the SAG section.

18
No. 50287-9-II

CrR 6.5 does not require a hearing to verify if a juror is unable to serve. Jorden, 103 Wn. App. at

227. In determining whether the juror has engaged in misconduct, the trial judge has “fact-finding

discretion.” Jorden, 103 Wn. App. 229. “As with other factual determinations made by the trial

court, we defer to the judge’s decision.” Jorden, 103 Wn. App. 229.

Here, nothing in the record establishes that the juror in question was unfit to serve. The

judge noted that neither he, nor anyone from the defense or prosecution, had observed any of the

jurors to be sleeping; the unsubstantiated alleged observations came from two members of the

gallery. Under those circumstances, the trial judge did not abuse its discretion by ruling that further

inquiry was not necessary.

III. PROSECUTORIAL MISCONDUCT

Wilks argues that the State committed prosecutorial misconduct in its closing argument by

misstating the evidence, vouching for the credibility of the State’s witnesses, offering its personal

opinion of Wilks’s guilt, and claiming that justice required a guilty verdict.10 Wilks also argues

that the cumulative effect of the alleged misconduct warrants reversal. We disagree.

To prevail on his prosecutorial misconduct claim, Wilks must demonstrate that in the

context of the entire record and trial circumstances, the prosecutor’s conduct was both improper

and prejudicial. State v. Thorgerson, 172 Wn.2d 438, 442, 258 P.3d 43 (2011). To demonstrate

prejudice, Wilks must show a substantial likelihood that the improper conduct affected the verdict.

Thorgerson, 172 Wn.2d at 442–43. Because Wilks did not object to the alleged misconduct at

trial, he must also show that any misconduct was so flagrant and ill-intentioned that any resulting

10
Wilks reiterates this argument in his SAG. Because we fully address it here, we do not address
it a second time in the SAG section.

19
No. 50287-9-II

prejudice could not have been cured by a jury instruction. Thorgerson, 172 Wn.2d at 443. We

review a prosecutor’s comments at closing in the context of the entire argument, the issues in the

case, the evidence addressed in the argument, and the instructions to the jury. State v. McKenzie,

157 Wn.2d 44, 53-54, 134 P.3d 221 (2006). “The State has wide latitude in drawing and expressing

reasonable inferences from the evidence, including inferences about credibility.” State v.

Rodriguez-Perez, 1 Wn. App.2d 448, 458, 406 P.3d 658 (2017).

A. MISSTATING THE EVIDENCE

Wilks argues that the State committed prosecutorial misconduct by misstating the

evidence. Specifically, Wilks takes issue with the State’s statement: “While they were

unconscious he would move their bodies, touch their bodies, put his hands in their pants, penetrate

their vagina. He would rape them.” Br. of Appellant at 10 (quoting VRP (11-3-16) at 43). Wilks

suggests that the State’s argument was tantamount to arguing that Wilks raped all five of the

victims. However, reading the State’s statement in context, it is clear that the State was suggesting

no such thing. Wilks’s argument omits the State’s very next statement, “He would molest them.”

VRP (11-3-16) at 43. The State’s argument sought to focus the jury’s attention on the various

allegations brought out in testimony during trial and was not improper.

Wilks also argues that the State misstated the evidence by asserting that the alleged victims

were unconscious. However, the evidence adduced at trial supported the prosecutor’s statement.

Several of the victims testified that they were asleep, passed out, or “blacked out,” when Wilks

molested them

Wilks appears to take issue with the State’s argument that Wilks purchased an expensive

bracelet for LM. However, the State never argued that Wilks purchased an expensive bracelet for

20
No. 50287-9-II

LM. Rather, it referenced the bracelet Wilks purchased for MR, a fact that was adduced during

trial when MR testified that the Wilkses gave her a charm bracelet that cost about $190. SW also

testified that the bracelet cost over $100. Assuming that Wilks meant to challenge the prosecutor’s

reference to MR’s bracelet, we hold that the State’s comment was supported by the record and not

improper.

Wilks also argues that the State misstated the evidence by arguing that Daniel Herzfeldt

testified that there were piles of girls on Wilks’s bed. Wilks argues that Herzfeldt “said no such

thing.” Br. of Appellant at 59. However, Herzfeldt did testify regarding SW’s friends, Wilks, and

Katie being on Wilks’s bed.

[State]: . . . you mentioned that sometimes you would look in and they would all be
kind of piled up on the bed?
[Herzfeldt]: Correct, sir.
....
[State]: So the only place for these piles of people to be are either on the floor or
on the bed; is that right?
[Herzfeldt]: Correct, sir.

VRP (10-20-16) at 107-08. While Herzfeldt did not say “piles of girls” explicitly, Herzfeldt did

testify that SW and her friends would be piled on Wilks’s bed occasionally, and therefore the

State’s reference was not improper.

Wilks also argues that the State misstated the evidence by saying NW testified that he saw

Wilks and SW’s friends drinking in his room on homecoming. Wilks is correct that NW did not

testify that he saw them drinking. However, the jury was properly instructed that statements made

by counsel during trial did not constitute evidence. We presume that the jury followed its

21
No. 50287-9-II

instructions. State v. Foster, 135 Wn.2d 441, 472, 957 P.2d 712 (1998). Consequently, Wilks

cannot show that the State’s improper statement prejudiced him.

Wilks also argues that the State argued facts not in evidence when it argued that Wilks

would take steps to silence the victims when they came forward by threatening to call state officials

on their parents. Viewing the State’s argument in context, the State was specifically referring to

Wilks message to LM after she reported Wilks. The State’s statement was supported by the record

because LM testified that shortly after she reported the incident to police, Wilks sent her a text

message saying, “I don’t know what you’re trying to get out of this, but I would appreciate it if

you could stop. I don’t want to have to call CPS on your family about your mom’s meth use, but

we will if that’s what it takes.” VRP (9-27-16) at 92-93. Thus, we hold that the State’s comment

was not improper.

Wilks also argues that “the deputy prosecutor forgot his obligation to seek a fair trial for

the defendant when he put in his Power Point presentation that the crimes were committed, that

the defendant did it, and that Justice Guilty [sic].” Br. of Appellant at 61. However, the contested

power point slides did not contain any statements of evidence, let alone misstatements of

evidence.11 Accordingly, Wilks’s argument fails.

B. VOUCHING

Wilks also argues that the State improperly vouched for the credibility of its witnesses by

arguing that “[t]he only conclusion that [sic] supported by the evidence is that LM, BS, MR, AB,

11
Wilks makes this argument in a list of examples of the State’s alleged misstatement of the
evidence. To the extent Wilks attempts to make a fair trial argument, he offers no further authority
or argument to support his contention. Consequently, his argument is insufficient to merit review.
RAP 10.3; C.B., 195 Wn. App. at 535.

22
No. 50287-9-II

and RR are telling the truth.” Br. of Appellant at 59. “The State has wide latitude in drawing and

expressing reasonable inferences from the evidence, including inferences about credibility.”

Rodriguez-Perez, 1 Wn. App.2d at 458. The State does not commit misconduct unless it clearly

expresses a personal opinion as to the credibility of a witness. State v. Warren, 165 Wn.2d 17, 30,

195 P.3d 940 (2008). We hold that the State’s comment did not express any personal opinion or

constitute improper vouching for the credibility of the witnesses. Rather, the State’s argument

sought to argue inferences from the evidence that the victims were credible.

C. MATTERS OUTSIDE THE RECORD

Wilks also argues that the State committed prosecutorial misconduct by urging the jury to

convict based on matters outside of the evidence when it referenced MR crying during her

testimony and LM’s demeanor while testifying. As previously mentioned, the State maintains

reasonable latitude to argue inferences from the evidence, including inferences of witness

credibility. Rodriguez-Perez, 1 Wn. App.2d at 458. The State explicitly tied MR’s and LM’s

demeanor on the witness stand to their credibility. We hold that the State’s comments were not

improper.

D. CUMULATIVE PROSECUTORIAL MISCONDUCT

Wilks also argues that the cumulative effect of the State’s misconduct constitutes reversible

error warranting a new trial. However, Wilks fails to show that any of the State’s comments during

closing argument were improper with the exception of the State’s statement that NW testified that

he saw Wilks drinking with SW’s friends on homecoming. And that improper comment was not

so flagrant that no instruction or series of instructions can erase its prejudicial effect. Thorgerson,

172 Wn.2d at 443. Consequently, Wilks’s cumulative error argument fails.

23
No. 50287-9-II

IV. INSUFFICIENT EVIDENCE

Wilks argues that the State presented insufficient evidence to support most of his

convictions.12

We review challenges to the sufficiency of the evidence de novo. State v. Rich, 184 Wn.2d

897, 903, 365 P.3d 746 (2016). The State has the burden of proving all of the elements of a crime

beyond a reasonable doubt. Rich, 184 Wn.2d at 903. When reviewing a claim of insufficient

evidence, we ask whether any rational trier of fact could find that all of the crime’s essential

elements were proven beyond a reasonable doubt. Rich, 184 Wn.2d at 903.

We view all the evidence in the light most favorable to the State. Rich, 184 Wn.2d at 903.

And the defendant admits the truth of the State’s evidence and all reasonable inferences that arise

therefrom. State v. Cardenas-Flores, 189 Wn.2d 243, 265-66, 401 P.3d 19 (2017). Both

circumstantial and direct evidence are considered equally reliable. Cardenas-Flores, 189 Wn.2d

at 266. “We defer to the jury ‘on issues of conflicting testimony, credibility of witnesses, and the

persuasiveness of the evidence.’” State v. Andy, 182 Wn.2d 294, 303, 340 P.3d 840 (2014)

(quoting State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992)).

A. SECOND DEGREE CHILD MOLESTATION

A person commits second degree child molestation when that person has sexual contact

with another who is at least 12 years old but less than 14 years old and not married to the

12
In his briefing on insufficient evidence, Wilks lists all of his convictions except count 16:
furnishing liquor to a minor to RR. Also, he lists counts 12 and 13: third degree child molestation
of AB, and unlawful delivery of a controlled substance to a minor to AB, respectively, but does
not provide any argument whatsoever. Accordingly, he does not adequately challenge the
sufficiency of these convictions, and we do not consider the issue further. RAP 10.3; C.B., 195
Wn. App. at 535.

24
No. 50287-9-II

perpetrator, and the perpetrator is at least 36 months older than the victim. RCW 9A.44.086. At

trial, BS testified that when she was in 7th grade during the 2011-2012 school year, Wilks rubbed

her thighs, breasts, and vagina while she lay in his bed. BS’s birthday is March 1999, and Wilks’s

birthday is September 1978.

Wilks’s argument centers on BS’s credibility. See Br. of Appellant 63-64 (“No one saw

her push defendant away;” “She did not know when any of these acts occurred;” “BS make [sic]

no disclosure until after she had been excluded from the Wilkes [sic] residence”). However, we

defer to the jury on issues of conflicting testimony, credibility of witnesses, and the persuasiveness

of the evidence. Andy, 182 Wn.2d at 303. As such, we hold that Wilks’s argument fails.

B. THIRD DEGREE CHILD RAPE

A person is guilty of third degree child rape when the person has sexual intercourse with

another who is at least 14 years old but less than 16 years old and not married to the perpetrator,

and the perpetrator is at least 48 months older than the victim. RCW 9A.44.079. BS testified that

when she was in the 8th grade during the 2012-2013 school year, Wilks touched her vagina under

her clothing and put the tip of his finger inside her vagina before she pushed his hand away.

Wilks argues that BS’s testimony was insufficient to support the conviction because she

was unsure when the incident occurred. Although BS could not recall specific dates, she testified

that she was certain that Wilks put the tip of his finger inside her vagina when she was in 8th grade.

This is sufficient to place the incident within the charging period of August 1, 2012 to September

30, 2014. To the extent that Wilks’s argument goes to the credibility of BS’s testimony, we do not

review credibility determinations on appeal. Consequently, we hold that sufficient evidence

supports Wilks’s conviction for third degree child rape.

25
No. 50287-9-II

C. THIRD DEGREE CHILD MOLESTATION

Wilks challenges the sufficiency of his convictions for third degree child molestation as to

BS, MR, LM, and RR.

A person is guilty of child molestation in the third degree when the person has sexual

contact with another who is at least 14 years old but less than 16 years old and not married to the

perpetrator and the perpetrator is at least 48 months older than the victim. RCW 9A.44.089.

BS testified that when she was in 8th and 9th grade Wilks touched her nipples, touched her

vagina and butt, and pushed his penis against her. MR testified that, after spending the evening

drinking with Wilks, Katie, and SW, MR woke to Wilks’s hand down her pants, touching her

vagina. LM testified that after falling asleep in Wilks’s bed, she woke to Wilks softly biting her

ear, touch her, cuddling her, and rubbing her buttocks. LM testified that when she woke up the

next morning her underwear was down, her pants were pulled up, and her vagina felt wet as if it

had been touched. RR testified that in the months after getting “black out drunk” on rum with

Wilks, she began having flashbacks and nightmares of waking up to Wilks with his hand in her

pants touching her vagina. VRP (10-10-16) 127. Although RR testified that her memory of the

incident was somewhat muddled, she believed it did happen.

Taking all the evidence in the light most favorable to the State, we hold that sufficient

evidence supported Wilks’s convictions for third degree child molestation.

26
No. 50287-9-II

D. UNLAWFUL DELIVERY OF A CONTROLLED SUBSTANCE TO A MINOR

Wilks argues that insufficient evidence supported his convictions for unlawful delivery of

a controlled substance to a minor based on his alleged delivery of marijuana to BS and MR. Wilks

specifically argues that the evidence did not establish that he provided BS and MR with marijuana

during the charging periods of June 1, 2012 to September 30, 2014, and September 1, 2014 to

September 20, 2014, respectively.

To prove Wilks was guilty of unlawful delivery of a controlled substance to a minor, the

State had to prove that Wilks knowingly delivered marijuana to BS and MR who were both under

the age of 18 at the time, and that Wilks was at least three years older than BS and MR. RCW

69.50.401, .406(2).

BS testified that Wilks provided her marijuana when she was in 8th grade, which was the

2012-2013 school year and fell within the charging period. MR testified that Wilks provided her

marijuana every time she went to his house during her 9th grade year, which included the charging

period.

Accordingly, sufficient evidence supported Wilks’s convictions for unlawful delivery of a

controlled substance.

E. FURNISHING LIQUOR TO A MINOR

Wilks argues that insufficient evidence supported his convictions for furnishing liquor to a

minor based on his providing alcohol to BS, MR, LM, and AB.

To prove that Wilks was guilty of furnishing liquor to a minor, the State had to prove that

Wilks sold, gave, or otherwise supplied liquor to BS, MR, LM, and AB, or permitted BS, MR,

LM, and AB to consume liquor on his premises. RCW 66.44.270(1).

27
No. 50287-9-II

BS, MR, LM, and AB each testified that Wilks provided them alcohol to drink at his

house.13

Accordingly, we hold that sufficient evidence supported Wilks’s convictions for furnishing

liquor to a minor.

V. CUMULATIVE ERROR

The cumulative error doctrine applies when a trial is affected by several errors that standing

alone may not be sufficient to justify reversal but when combined may deny a defendant a fair

trial. State v. Greiff, 141 Wn.2d 910, 929, 10 P.3d 390 (2000). The cumulative error doctrine does

not apply when there are no errors or where the errors are few and have little or no effect on the

trial’s outcome. State v. Weber, 159 Wn.2d 252, 279, 149 P.3d 646 (2006).

We hold that the combined effect of the few minor errors that occurred at trial did not deny

Wilks a fair trial. Consequently, the cumulative error doctrine does not apply.

SAG

In his SAG, Wilks also argues that the trial judge was biased against him. We disagree.

“‘Under the appearance of fairness doctrine, a judicial proceeding is valid only if a

reasonably prudent, disinterested observer would conclude that the parties received a fair,

impartial, and neutral hearing.’” State v. Bilal, 77 Wn. App. 720, 722, 893 P.2d 674 (1995)

(quoting State v. Ladenberg, 67 Wn. App. 749, 754–55, 840 P.3d 228 (1992)). “‘Due process, the

appearance of fairness, and Canon 3(D)(1) of the Code of Judicial Conduct require disqualification

13
Wilks specifically argues that the State failed to establish that Wilks provided BS with alcohol
during the charging period. But BS testified that Wilks provided her alcohol when she was in 8th
grade, which was within the charging period of June 1, 2012 and September 30, 2014.

28
No. 50287-9-II

of a judge who is biased against a party or whose impartiality may reasonably be questioned.’”

State v. Perala, 132 Wn. App. 98, 110–11, 130 P.3d 852 (2006) (quoting Wolfkill Feed & Fertilizer

Corp. v. Martin, 103 Wn. App. 836, 841, 14 P.3d 877 (2000)). There must be evidence of a judge’s

actual or potential bias. Bilal, 77 Wn. App. at 722.

Here, nothing in the record would lead a reasonably prudent, disinterested observer to

conclude that Wilks did not receive a fair, impartial, and neutral hearing.14 Wilks points to nothing

in the record suggesting that the trial judge was actually or potentially biased against him. The

trial judge made numerous rulings over the course of the six week trial, both in favor of and against

both parties. Absent evidence of a judge’s actual or potential bias, disqualification of a judge is

not proper. We hold that Wilks’s claim fails.

14
Over a month into trial, Wilks made a motion to recuse the trial judge from the trial and/or to
dismiss the trial. A copy of the motion is not included in the record on appeal. The trial court
denied Wilks’s motion, explaining:

I have not denied anybody the right to cross-examine witnesses, to call
whatever witnesses that they believe have relevant evidence. I have made the
rulings that I have made on the record. The record will be there for appellate
review. The motion is denied.

RP (10-26-16) 10.

29
No. 50287-9-II

Accordingly, we affirm Wilks’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.

SUTTON, J.
We concur:

WORSWICK, P.J.

MELNICK, J.

30