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IN THE COURT OF APPEALS OF THE STATE OF W
11
EPU
DIVISION II
STATE OF WASHINGTON, No. 42414 2 II
- -
Respondent,
V.
WAYNE ALAN BURTON, Consolidated with
In the Matter Of THE PERSONAL No. 44090 3 II
- -
RESTRAINT.PETITION OF:
WAYNE ALAN BURTON,
UNPUBLISHED OPINION
Petitioner.
WoRSWICK, C. .A jury convicted Wayne Burton of two counts of first degree incest
J —
and one count of second degree incest with aggravators for domestic violence, an ongoing
pattern of abuse, and abuse-of a position of trust. Burton appeals, arguing 1 trial counsel
_(
rendered ineffective assistance for failing to object to evidence that marijuana pipes were found
in his house, 2) trial court erred by admitting DNA evidence under ER 404( ) show
( the b to
Burton's lustful disposition towards the victim, 3)
( there was insufficient evidence to support the
convictions, 4) trial court erred by imposing an exceptional sentence without written
( the
findings and conclusions, and ( ) exceptional sentence was clearly excessive. Burton raises
5 the
numerous additional arguments in a statement of additional In
grounds (SAG). a personal
No. 42414 2 II;
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Consolidated with No.44090 3 II
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restraint petition,'Burton challenges a sentencing condition that has the effect of barring him
from having contact with his wife. We grant Burton's latter request and remand with instruction
to strike this condition. Otherwise, we affirm.
FACTS
In 2010, Burton's stepdaughter MBOW alleged that Burton had sexually abused her
beginning when she was 15 or 16. MBOW was 18 years old when she made the allegations.
Police executed a search warrant on Burton's home. During the search, the police seized
four bathrobes. DNA ( eoxyribonucleic acid)analysis revealed a mix of Burton and MBOW's
d
DNA on one of the robes. The police also seized marijuana pipes from Burton's bedroom.
The State charged Burton by amended information with two counts of first degree incest
and one count of second degree incest. The State alleged domestic violence, an ongoing pattern
of abuse, and abuse of a position of trust as aggravating sentencing factors on each count.
Pretrial,the State made a motion in limine to admit under ER 404( ) DNA evidence
b the
found on the bathrobe. Defense counsel conceded that the evidence properly showed Burton's
lustful disposition towards MBOW. But defense counsel argued that the DNA evidence showed
sexual intercourse after MBOW turned 18,which was not a crime because she was Burton's
stepdaughter. Defense counsel argued that this evidence was more prejudicial than probative.
After filing his appeal, Burton moved to modify his judgment and sentence. This motion was
transferred to this court for consideration as a personal restraint petition. We exercise our
discretion and consolidate the two cases. RAP 3. (b).3
2
The original information is not part of the record on appeal.
2
No. 42414 2 I1;
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Consolidated with No. 44090 3 II
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The trial court ruled that the evidence was admissible under ER 404( ) the DNA evidence
b and
was admitted at trial.
At trial,a forensic scientist testified that the robe had not been washed after the DNA was
deposited, but could give no opinion as to how old the DNA was. Thus, it was not established at
trial whether the DNA had been deposited before or after MBOW's 18th birthday. The State's
expert further testified that,due to the amount of DNA found on the robe, the DNA had come
from biological fluids and not skin contact. Defense did not request any limiting instruction
regarding the DNA evidence.
MBOW testified to several specific incidents of sexual abuse. She testified about one
incident when she masturbated Burton on the couch, and her mother, Karen Burton,'walked in,
caught them, and kicked Burton out of the house for several days. In another incident, Burton
tied MBOW's hands above her head using tape and had sexual intercourse with her. And in a
third incident, Burton tied her arms and legs to the bed using nylon and had sexual intercourse
with her. All of these incidents occurred before MBOW was 18. MBOW also testified that she
had sexual intercourse with Burton after she turned 18, on the night before she reported the prior
sexual abuse.
Detective Lori Blankenship, who executed.the search warrant, briefly testified that she
collected what she believed to be some marijuana pipes during the search. Detective Elizabeth
Gundrum, who assisted Detective Blankenship, also testified about the marijuana pipes: "[ e
W]
took two marijuana smoking pipes."2 Report of Proceedings (RP)at 157. Burton did not object
to this testimony. The pipes themselves were not admitted.
3
Later, we refer to Karen Burton by her first name for clarity, intending no disrespect.
91
No. 42414 2 II;
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Consolidated with No.44090 3 II
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Burton testified on his own behalf. Burton unequivocally denied having any sexual
contact or sexual intercourse with MBOW. Burton claimed that MBOW had been the only
perpetrator of any sexual misconduct, including "lashing"him,making sexual propositions to
f
him, and sending online messages to others regarding " ondage and other sexual activities."3
b
RP at 292 93,299.
-
The jury found Burton guilty as charged and returned " es"verdicts on each aggravating
y
factor. The trial judge gave Burton an exceptional sentence of 240 months confinement.
ANALYSIS
I. INEFFECTIVE ASSISTANCE OF COUNSEL
Burton first contends that trial counsel rendered ineffective assistance by failing to object
to testimony regarding the marijuana pipes found in Burton's house during execution of the
search warrant. He also argues that counsel was ineffective by failing to request an ER 404( )
b
limiting instruction regarding this evidence. We disagree.
To show ineffective assistance of counsel, a defendant must show ( )
1 that defense
counsel's conduct was deficient and ( ) the deficient performance resulted in prejudice.
2 that
State v. Reichenbach, 153 Wn. d 126, 130, 101 P. d 80 (2004). show deficient performance,
2 3 To
Burton must show that defense counsel's performance fell below an objective standard of
reasonableness. Reichenbach, 153 Wn. d at 130. To show prejudice, Burton must show a
2
reasonable possibility that,but for counsel's purportedly deficient conduct, the outcome of the
proceeding would have differed. Reichenbach, 153 Wn. d at 130. Because both prongs must be
2
4 The standard range for the first degree incest charges was 46 61 months, and the standard range
-
for the second degree incest charge was 41 54 months. The trial court issued no written findings
-
of fact or conclusions of law regarding the exceptional sentence.
H
No. 42414 2 II;
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Consolidated with No. 44090 3 II
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met, a failure to show either prong will end the inquiry. State v. Fredrick, 45 Wn. App. 916, 923,
729 P. d 56 (1986).There is no ineffectiveness if a challenge would have failed. State v.
2
Nichols, 161 Wn. d 1, 14 15, 162 P. d 1122 (2007).
2 - 3
The threshold for the deficient performance prong is high, given the deference afforded
to [the] decisions of defense counsel in the course of representation."State v. Grier, 171 Wn. d
2
17, 33, 246 P. d 1260 (2011).To prevail on an ineffective assistance claim, a defendant must
3
overcome a strong presumption that counsel's performance was reasonable. Grier, 171 Wn. d at
2
33. A defendant can rebut the presumption of reasonable performance by showing that there is
no conceivable legitimate tactic explaining counsel's performance. Grier, 171 Wn. d at 33.
2
The decision of when or whether to object is a classic example of trial tactics."
State v.
Madison, 53 Wn. App. 754, 763, 770 P. d 662 (1989).Only in egregious circumstances, on
2 "
testimony central to the State's case, will the failure to object constitute incompetence of counsel
justifying reversal."Madison, 53 Wn. App. at 763. Although irrelevant, the brief testimony
regarding the marijuana pipes here was not central to the State's case. It was a legitimate trial
strategy for counsel to keep silent to avoid highlighting this brief, irrelevant testimony to the
jury. In re Pers. Restraint ofDavis, 152 Wn. d 647, 714, 101 P. d 1 ( 2004).Burton has not
2 3
overcome the presumption against deficient performance. His claim on this point fails.
Regarding defense counsel's failure to request an ER 404( )
b limiting instruction
regarding the evidence of the marijuana pipes, the decision not to request a limiting instruction
may have been a legitimate tactical choice to avoid reemphasizing the evidence. State v.
Yarbrough, 151 Wn. App. 66, 90, 210 P. d 1029 (2009).Burton has not overcome the
3
5
No. 42414 2 II;
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Consolidated with No.44090 3 II
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presumption that counsel's performance was reasonable in failing to request a limiting
instruction. His claim on this point fails as well.
II. ER
Burton next argues that the trial court erred by admitting the DNA evidence found on his
bathrobe under ER 404( ). disagree.
b We
We review a trial court's rulings under ER 404( ) abuse of discretion. State v.
b for
Foxhoven, 161 Wn. d 168, 174, 163 P. d 786 (2007).ER 404( )
2 3 b forbids a trial court to admit
evidence of a person's other crimes, wrongs, or acts to prove a person's character to show that
the person acted in conformity therewith. But ER 404( )
b does not forbid such " ther acts"
o
evidence admitted for other purposes, such as to show a lustful disposition towards the victim in
a sexual assault case. State v. Ray, 116 Wn. d 531, 547, 806 P. d 1220 (1991).To admit ER
2 2
404( )
b evidence, a trial court "`
must 1)
( find by a preponderance of the evidence that the
misconduct 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. "' Foxhoven, 161 Wn. d at 175 (quoting
2
State v. Thang, 145 Wn. d 630, 642, 41 P. d 1159 (2002)).
2 3
The trial court ruled that the DNA evidence on Burton's robe was admissible to show
Burton's lustful disposition towards MBOW. The robe contained a mixed DNA profile that
matched Burton and MBOW. Burton's profile was derived from semen found on the robe. The
level of MBOW's DNA was high and consistent with being from biological fluid. A forensic
scientist testified that the most likely way the two profiles became intermingled was through
3
No. 42414 2 II;
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Consolidated with No. 44090 3 II
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sexual intercourse. The robe had not been washed since the DNA was deposited, but it was
unknown when the DNA was left on the robe.
Burton argues that this evidence was irrelevant to the charged crimes and that the
potential for prejudice was substantial. We disagree. The evidence tended to show that Burton
and MBOW had sexual intercourse. This was highly probative and revealed more than just
Burton's general sexual proclivities. Burton asserts that the evidence of sexual contact occurred
after the charged offenses, and implies such contact would be irrelevant. But even assuming that
the DNA was deposited after MBOW was 18, evidence of sexual contact between Burton and
MBOW would still be highly relevant because it corroborated MBOW's testimony of a
longstanding sexual relationship with Burton. Burton does not explain how this evidence was
unfairly prejudicial. We conclude that the trial court did not abuse its discretion in admitting the
evidence.
III. SUFFICIENCY OF EVIDENCE
Burton next argues that the evidence was insufficient to support his convictions. We
disagree.
In evaluating the sufficiency of the evidence, we review the evidence and all reasonable
inferences that can be drawn from it in the light most favorable to the State. State v. Drum 168
Wh. d 23, 34 35,225 P. d 237 (2010).We ask whether any rational fact finder could have
2 - 3
found the essential elements of the crime beyond a reasonable doubt. Drum, 168 Wn. d at 34-
2
35. Circumstantial and direct evidence are equally reliable, and we defer to the trier of fact on
conflicting testimony, witness credibility, and the persuasiveness of the evidence. State v.
Thomas, 150 Wn. d 821, 874 75, 83 P. d 970 ( 004).
2 - 3 2
7
No. 42414 2 II;
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Consolidated with No. 44090 3 II
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There was sufficient evidence for a reasonable jury to convict Burton of first and second
degree incest. MBOW testified to two separate incidents of sexual intercourse before she turned .
18: when Burton tied her hands with tape, and when he tied her to the bed with nylon. MBOW
also testified about a specific incident of sexual contact, on the couch, which the State relied on
to support the second degree incest charge. MBOW testified that, during that incident, she
masturbated Burton. MBOW's testimony was corroborated by DNA evidence, which showed
sexual intercourse between MBOW and Burton, although it could not pinpoint when. Taking the
evidence in the light most favorable to the State, the evidence was sufficient to convict Burton as
charged.
Burton points out that the case against him turned on MBOW's credibility, and that there
was conflicting evidence regarding Burton's guilt. But we defer to the jury on conflicting
testimony and witness credibility. Thomas, 150 Wn. d at 874 75. The fact that this case turns
2 -
on disputed testimony and witness credibility does not show that the evidence was insufficient; it
shows that Burton's guilt was a factual question for the jury rather than a legal question for us.
Burton's argument on this point fails.
5"
A person is guilty of incest in the first degree if he or she engages in sexual intercourse with a
person whom he or she knows to be related to him or her ...." RCW 9A. 4.
a).
020(
1)(
6 Sexual
intercourse"includes "any penetration, however slight," well as oral sex. RCW 9A. 4.
as 010(
1
4 );
RCW 9A. 4. person is guilty of incest" degree if he or she engages in
c).
020( 1)(
6 A in the second
sexual contact with a person whom he or she knows to be related to him or her."
RCW
a). means "any touching of the sexual or other intimate parts of a
020(
9A. 4. 2)( contact"
6 Sexual "
person done for the purpose of gratifying sexual desire."RCW 9A. 4.
010(
2 RCW
4 );
c).
020(
9A. 4.Sexual intercourse and sexual contact between stepparents and stepchildren is
3)(
6
punishable as incest if the stepchild is under 18 years old. RCW 9A. 4.
020.
6
No. 42414 2 II;
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Consolidated with No. 44090 3 II
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IV. SENTENCING
Burton next challenges his exceptional sentence. He first argues that the trial court's
error by failing to enter written findings of fact and conclusions of law regarding his exceptional
sentence requires remand for resentencing. And he further argues that his sentence was clearly
6
excessive. We disagree on both points.
A. Failure To Enter Findings and Conclusions Was Harmless
Burton argues that the trial court erred by failing to enter findings of fact and conclusions
of law supporting his exceptional sentence, which requires remand for resentencing. We hold
that, while the trial court erred by failing to enter written findings and conclusions,the error was
harmless and remand is not required.
Under RCW 9.
535, trial court may impose an exceptional sentence above the
94A. a
standard sentencing range based on aggravating circumstances found in accordance with RCW
537.A trial court " hall set forth the reasons for its decision in written findings of fact
9.
94A. s
and conclusions of law."
RCW 9.
535.But when a trial court's oral ruling is sufficiently
94A.
comprehensive and clear that written facts would be a mere formality,the.failure to enter written
findings and conclusions is harmless. State v. Bluehorse, 159 Wn.App. 410, 423, 248 P. d 537.
3
2011).Such is the case here.
6
Burton also argues in passing, without citation to authority, that his sentence violated his
constitutional right to be free from cruel and unusual punishment. But we do not entertain
naked castings into the constitutional sea. "' State v. Johnson, 119 Wn. d 167, 171, 829 P. d
2 2
1082 (1992)quoting In re Request ofRosier, 105 Wn. d 606, 16, 717 P. d 1353 (1986)).
( 2 6 2 We
do not address this issue.
9
No. 42414 2 I1;
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Consolidated with No.44090 3 1I
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The jury found three aggravating factors on each count,which Burton does not challenge
on appeal. And the record shows that the trial court relied on the jury's findings of a pattern of
abuse to impose the exceptional sentence. The trial court stated at sentencing,
We heard the testimony of your step -daughter, and we can see her lack of
confidence, her demeanor in court. I believe that you have greatly affected your
daughteryour step-
— daughter forever. She was a young teenager, and this
activity went on for a long time. And, in fact, it was evidenced by the special
verdict form as the jurors determined that the crimes were part of an ongoing
pattern of sexual abuse of the same victim under the age of 18 years manifested
by multiple incidents over a prolonged period of time. That is what the jury
found.
RP (July 22,2011)at 13 14 ( mphasis added).Based on this part of the court's oral ruling, it is
- e
sufficiently clear that the trial court imposed the exceptional sentence because the jury found an
ongoing pattern of sexual abuse. A trial court need not make additional findings beyond a jury's
finding of aggravating circumstances to impose an exceptional sentence. State v. Williams, 159
Wn. App. 298, 317 18,244 P. , review denied, 171 Wn. d 1025 (2011).The trial court's
- 3d1018 2
oral ruling at sentencing is sufficiently comprehensive and clear that remand for written findings
and conclusions would be a mere formality. The failure to enter written findings and conclusions
was harmless and Burton's claim on this point fails.
B. Sentence Was Not Clearly Excessive
Burton finally argues that his exceptional sentence of 240 months was clearly excessive.
We disagree.
Under RCW 9.
b),
585( 4A.we may reverse an exceptional sentence if it is clearly
4)(
9
excessive. We review whether an exceptional sentence is clearly excessive for abuse of
discretion. State v. Knutz, 161 Wn. App. 395, 410, 253 P. d 437 (2011).When an exceptional
3
10
No. 42414 2 II;
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Consolidated with No. 44090 3 I1
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sentence is based on proper reasons, we will hold it clearly excessive only " f its length, in light
i
of the record, shocks the conscience. "'
` Knutz, 161 Wn. App. at 410 11 (
- internal quotation
marks omitted)quoting State v. Kolesnik, 146 Wn. App. 790, 805, 192 P. d 937 (2008)).
( 3 A
sentence shocks the conscience if it is one no reasonable person would
that "` adopt. "' Knutz,
161 Wn. App. at 411 (quoting State v. Halsey, 140 Wn. App. 313, 324 25,165 P. d 409 (2007)).
- 3
Burton makes no legally cognizable argument that his sentence was clearly excessive.
Instead,he claims that because he disputed his guilt and there was conflicting testimony at trial, .
the sentence is clearly excessive. This argument disregards the applicable standard of review
and is without merit.
PERSONAL RESTRAINT PETITION
In his timely personal. estraint petition, Burton challenges a no-
r contact order in his
judgment and sentencing, stating that it improperly prevents contact between him and his wife
through a provision forbidding him from having contact with the victim's family:
Have no direct or indirect contact with the victim( s) his or her family,
or
including by telephone, computer, letter, in person, or via third party.
Judgment and Sentence at 6 (emphasis added).
Because his victim was his stepdaughter and not his wife,the State concedes that
prohibiting contact with his wife is not crime related and interferes with his constitutional right
to marry. RCW 9. );
505( 4A.see Zablocki v. Redhail, 434 U. .374, 388, 98 S. Ct. 673, 54 L.
8
9 S
Ed. 2d 618 (1978).And,because the victim is now over 21 years old,the State concedes •hat
t
the words " r his or her family"should be stricken from his sentencing condition.
o
11
No. 42414 2 II;
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Consolidated with No. 44090 3 II
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We accept the State's concession and remand with instruction to strike the words " r his
o
or her family"from the judgment and sentence.
STATEMENT OF ADDITIONAL GROUNDS
In his SAG, Burton advances a number of arguments that fall into five categories: (1)
ineffective assistance of counsel, 2)
( public trial violations, 3)
( prosecutorial misconduct, 4)
(
incomplete transcription of the proceedings, 5)
( cumulative error, and ( )
6 ineffective assistance
of appellate counsel. We find no basis warranting relief.
A. Burton Has Not Shown Ineffective Assistance of Counsel
Burton argues that trial counsel rendered ineffective assistance on the numerous grounds
set forth below. We disagree on all points.
1. Failure To Object to Amended Information
Burton argues that trial counsel was ineffective for failing to object to the amended
information charging him with two counts of first degree incest and alleging aggravating
circumstances. We do not see any merit to this claim. Under CrR 2. ( trial court may
d),
1 the
permit the amendment of an information at any time before the verdict " f substantial rights of
i
the defendant are not prejudiced."The record does not contain the original information, nor does
the record suggest how Burton's rights could have been prejudiced by the amended information.
7
Burton attempts to supplement the record by attaching to his SAG a written statement by
Karen, as well as several documents that do not appear to have been admitted at trial. We do not
consider evidence outside the record on direct appeal. State v. McFarland, 127 Wn. d 322, 335,
2
899 P. d 1251 (1995).The appropriate means to raise facts outside the existing trial record is a
2
personal restraint petition. McFarland, 127 Wn. d at 335.
2
8 Burton also calls ineffective assistance of counsel " onstructive denial of counsel."SAG at 11.
c
12
No. 42414 2 II;
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Consolidated with No. 44090 3 II
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Because it pertains to matters outside the record, we do not address this issue. State v.
McFarland, 127 Wn. d 322, 335, 899 P. d 1251 (1995).
2 2
2. Failure To Request Continuances
Burton argues that trial counsel was ineffective for failing to request a continuance ( )
1 to
prepare a defense to the amended information, and (2) response to a "surprise"State witness.
in
SAG at 3 4,13.
-
Burton has not met his burden to show that he was prejudiced by the amended
information. Nor has he shown deficient performance as nothing in the record suggests that
counsel needed additional time to investigate with regard to the amended information. Burton
has not shown ineffective assistance of counsel on this point.
As to the " urprise"witnesses, before the State called Beverly Spaulding, defense counsel
s
requested a recess to interview Spaulding before she testified, which the trial court granted. The
record does not reflect when Spaulding was disclosed to Burton's counsel. Spaulding testified
that Karen had told her about the incident where Karen caught MBOW and Burton on the couch.
Defense counsel did not object to Spaulding testifying but, instead, called an additional witness,
who gave testimony that impeached Spaulding as to the incident's timing. The record shows that
Burton's counsel called a witness not on his original witness list in response to the state calling
Spaulding. The record does not reflect that counsel needed additional time to prepare a response
to Spaulding's testimony, or that Spaulding's testimony represented any kind of unfair surprise.
Burton has not overcome the strong presumption that counsel's performance was reasonable on
this point.
13
No. 42414 2 II;
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Consolidated with No. 44090 3 II
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3. Failure To Object to Suppression ofPrior Statements
Burton argues that trial counsel was ineffective for failing to " bject to suppression of
o
prior statements of witnesses."SAG at 4. Although Burton is not required to cite authority or
the record in his SAG,he must inform us of the nature and occurrence of any error. RAP
c).
10. 0( He has not done so with regard to this argument and we do not consider it.
1
4. Failure To Object to Court Closure During Voir Dire
Burton argues that trial counsel was ineffective for failing to object to closing the
courtroom to question individual jurors in voir dire. Voir dire was not transcribed in the
verbatim reports of proceeding before us. As such, any closure that occurred during voir dire is
outside the record on appeal. Because we do not review matters outside the record on direct
appeal, we do not consider Burton's claim that counsel was ineffective for failing to object to a
closure during voir dire. McFarland, 127 Wn. d at 335.
2
5. Failure To Impeach State's Witnesses
Burton argues that trial counsel was ineffective for failing to impeach the State's
witnesses " ith their prior inconsistent statements on key elements of their testimony."SAG at
w
4, 12. Our review of the record does not reveal inconsistent statements that trial counsel failed to
use to impeach the State's witnesses. Counsel impeached the State's witnesses on a number of
points. Burton fails to apprise the court of the nature and occurrence of any error on this point
and we do not consider it.
6. Failure To Object to Prosecutor's Improper Statements
Burton argues that trial counsel was ineffective for failing to object to the prosecutor's
improper remarks during closing argument and closing argument rebuttal. But as we explain
14
No. 42414 2 II;
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Consolidated with No. 44090 3 II
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below, the prosecutor did not commit any such misconduct. Burton can show neither deficient
performance nor prejudice based on counsel's failure to object to these statements.
7. Misstating Facts in Closing Argument
Burton argues that his trial counsel misstated facts during closing argument. The record
does not support this claim. .
To support this argument, Burton cites a page of closing argument where counsel
discussed the incident when Karen caught MBOW and Burton on the couch, saying that the
incident " oncerned [Karen] greatly," that Karen kicked Burton out of the house. 3 RP at
c and
365. Burton says Karen's testimony shows this is inaccurate, but Burton's own testimony was
that Karen reacted by saying, Oh,hell no,"
" suggesting that she was in fact concerned by the
incident. 3 RP at 292. Defense counsel made no misstatement on this point. And to the extent
counsel's argument could be characterized as a misstatement of the evidence, Burton cannot
show prejudice based on such a slight inaccuracy.
8. Failure To Object to ER 404( )
b Evidence
Burton argues that counsel was ineffective for failing to object to the jail phone
recordings and the photograph of sex toys and condoms admitted under ER 404( ).
b We
disagree.
At trial,the parties stipulated to admitting redacted jail phone recordings of Burton
discussing the charges against him with Karen. The admitted recordings showed Burton and
Karen discussing the charges, including reasons Burton could not have committed the alleged
crimes and speculation that MBOW might have attempted to use Burton's DNA to create a false
15
No. 42414 2 II;
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Consolidated with No. 44090 3 II
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positive on her sexual assault exam. In one of the recordings, Karen stated that she planned to
change the locks on her house so MBOW would not have free access.
The phone calls between Burton and Karen showed Burton attempting to formulate
defenses with Karen, such as that MBOW may have obtained some of Burton's genetic material
to create a false positive on her sexual assault examination, or that Burton could not have
committed the alleged acts because of sexual difficulties he had. This arguably showed
consciousness of guilt, an admissible purpose under ER 404( ).
b 5 KARL B.TEGLAND,
WASHINGTON PRACTICE: EVIDENCE LAW AND PRACTICE §§ 402. , 29 5th ed. 2007).
4 404. (
Burton's claim on this point fails.
The State also admitted a photograph the police had taken during execution of the search
warrant. The police had photographed the contents of a nightstand in Burton's bedroom, which
included sex toys and condoms.
The sex toys and condoms evidence were probative of the crimes charged and
corroborated testimony. MBOW testified that Burton used one of Karen's sex toys on her. The
photograph supported MBOW's testimony because it proved that Karen possessed sex toys.
MBOW also testified that Burton " ad a tendency not to use a condom"with her,permitting the
h
inference that Burton used a condom at least some of the time. 2 RP at 110. Evidence that there
were condoms in Burton's bedroom supports such an inference. Burton cannot show that any
objection would have been successful, thus he cannot show defective performance. Burton's
claim on this point fails as well.
16
No. 42414 241;
-
Consolidated with No. 44090 3 II
- -
9. Failure To Object to Impeachment on Collateral Matters
Burton argues that counsel was ineffective for failing to object when the State impeached
Karen on collateral matters regarding her past statements. We disagree.
Extrinsic evidence on a collateral matter is not admissible to impeach a witness. State v.
Lubers, 81 Wn. App. 614, 623, 915 P. d 1157 (1996).Evidence is not collateral if it is
2
independently admissible for another purpose. State v. Fankhouser, 133 Wn. App. 689, 693, 138
P. d 140 (2006).Even where collateral evidence is improperly admitted, the error is only
3
prejudicial if it affects or presumptively affects the final results of a trial. State v. Allen, 50 Wn.
App.412, 423,749 P. d 702 ( 988).
2 1
Karen testified that she never said she would change the locks on the house. Karen also
testified that she never said she cut off MBOW's lunch money,that she never said put
MBOW's belongings outside " n the mold," that she never said she would use the child
i and
support money she received for MBOW to pay for jail phone calls to Burton. 3 RP at 238 39.
-
The state then recalled Detective Blankenship, who testified that, based on jail phone recordings
that had not been admitted, Karen had made contradictory statements regarding lunch money,
MBOW's belongings, and child support.
The admission of the rebuttal testimony, even if collateral, did not affect the verdict, and
Burton cannot show prejudice from his counsel's failure to object. Karen's credibility was
otherwise undermined through other testimony. For example, in contrast to Karen' testimony, a
co-
worker of Karen's testified that Karen told her she had caught Burton and MBOW on the
couch and indicated that it was sexual. Moreover, Karen's credibility was not the central issue of
17
No. 42414 241;
-
Consolidated with No.44090 3 II
- -
the case. The case turned largely on MBOW's credibility and Burton's credibility. Burton's
claim on this point fails.
10. Failure To Object to DNA Evidence on Bathrobe
Burton argues that trial counsel was ineffective for failing to object to the photocopy of
his robe or the related DNA evidence against him and for failing to move for a mistrial based on
that evidence. We disagree.
At trial,the State admitted a photocopy of a picture of the robe on which the State's
expert had found Burton and MBOW's DNA. Burton claimed the photocopy did not appear to
show one of his robes because it looked gray, while his robes were all dark blue. But this does
not establish that the photograph or the robe were inadmissible. Under ER 901( ), "
a The
requirement of authentication or identification as a condition precedent to admissibility is
satisfied by evidence sufficient to support a finding that the matter in question is what its
proponent claims."Under ER 901( )(
1),b evidence may be identified by a witness with
knowledge that the item is " hat it is claimed to be." State laid the foundation for admitting
w The
the photocopy. The State's expert, who had knowledge of the robe that she analyzed, testified
that the photocopy was an accurate depiction of the robe where she found the DNA. There were
no grounds for trial counsel to object to the photocopy.'Counsel was not ineffective for failing to
object or move for a mistrial and Burton's claim on this point fails.
11. Failure To Respond to Prosecutor's Objection
Burton argues that trial counsel was ineffective for failing to give a "meaningful
response"when the prosecutor objected to Burton testifying about " hat [ BOW's]
w M father had
been doing to her."
SAG at 14; 3 RP 320. We disagree.
18
No. 42414 2 II;
- -
Consolidated with No. 44090 3 II
- -
During Burton's testimony, he stated that he believed MBOW's accusations against him
were due to transference "
from what her father had been doing to her." RP at 320. The State
3
objected and defense counsel offered no response. The trial court sustained the objection.
Although there was no evidence or offer of proof on the issue, it appears that Burton was
trying to testify about some alleged sexual misconduct by MBOW's father.against her. The trial
court had earlier granted the State's motion in limine to exclude any reference to MBOW's
sexual history, except for certain limited information that was relevant to her sexual history ( r
o
lack thereof)with Burton. Trial counsel was not ineffective for abiding by this motion in limine
and not offering any response to the State's objection.
12. Failure To Object to Prosecutor's Leading Questions
Burton argues that trial counsel was ineffective for failing to object to the prosecutor
asking leading questions on direct examination. We disagree.
Leading questions are ones that suggest the answer; a question that can be freely
answered in the affirmative or negative is generally not a leading question. State v. Scott, 20
Wn. d 696, 698 99; 149 P. d 152 (1944).Under ER 611( ), " questions should not be
2 - 2 c Leading
used on the direct examination of a witness except as may be necessary to develop the witness'
testimony."The trial court has broad discretion to permit leading questions and will not be
"
reversed absent abuse of that discretion."Stevens v. Gordon, 118 Wn. App.43, 55 56,74 P. d
- 3
653 (2003).Moreover, the asking of leading questions is not usually a reversible error. Stevens,
118 Wn.App. at 56.
Our review of the record revealed only two leading questions on direct examination. The
prosecutor asked one witness a leading question suggesting that the witness spoke to a police
19
No. 42414 2 II;
- -
Consolidated with No. 44090 3 II
- -
officer about MBOW's report of sexual abuse. The prosecutor also asked Karen a leading
question on direct examination suggesting that a detective questioned her about the time she
kicked Burton out of the house.
It was within the trial court's discretion to permit such questions on these relatively minor
details of the witnesses' testimony. Stevens, 118 Wn. App. at 56. Burton cannot show prejudice
based on counsel's failure to object to these innocuous leading questions. His claim on this point
fails.
B. Burton Has Not Shown Public Trial Violations
Burton argues that the trial court violated his right to a public trial by ( )
1 excluding Karen
from the courtroom, 2)
( giving sealed questionnaires to the jury,3)
( questioning jurors
individually in a closed courtroom, and (4)failing to consider alternatives to closure. Burton
does not show any public trial violations.
1. Exclusion of Witnesses
Burton argues that the trial court violated his right to a public trial by excluding Karen
from the courtroom. This argument is without merit.
The State made a motion in limine to exclude witnesses from the courtroom, which the
trial court granted, without objection by Burton's counsel. A trial court has discretion to exclude
witnesses from the courtroom so they cannot hear the testimony of other witnesses. ER 615;
Egede-
Nissen v. Crystal Mountain, Inc., Wn. d 127, 138, 606 P. d 1214 (1980).Excluding .
93 2 2
Karen, a witness, did not violate Burton's right to a public trial. Morever, Burton himself moved
to exclude both State and defense witnesses until they testified. Any error on this matter would
have fallen under the invited error doctrine and is barred. State v. Schaler, 169 Wn. d 274, 302,
2
f
No. 42414 2 II;
- -
Consolidated with No. 44090 3 II
- -
236 P. d 858, 872 (2010) Under the doctrine of invited error, a party cannot set up an error and
3 ("
then complain about it on appeal. "). This argument fails.
2. Closure During Voir Dire
Burton argues that the trial court violated his right to a public trial by giving the jury
sealed questionnaires, by closing the courtroom to question individual jurors, and by failing to
consider alternatives to closure. These arguments rely on matters outside the record and we do
not consider them. McFarland, 127 Wn. d at 335.
2
C. Burton Has Not Shown Prosecutorial Misconduct
Burton argues that the prosecutor committed misconduct by ( asking leading questions,
1)
2)
arguing facts not in evidence, 3)
( vouching for MBOW's credibility, and ( )
4 giving her
opinion of witness credibility. We disagree.
To establish prosecutorial misconduct, the defendant first bears the burden to establish
that a prosecutor's conduct was improper. State v. Emery, 174 Wn. d 741, 759 61,278 P. d 653
2 - 3
2012).
The defendant must then show that the improper comments resulted in prejudice that
had a substantial likelihood of affecting the verdict. Emery, 174 Wn. d at 759 61.
2 -
In addition, when the defendant failed to object to the comments at trial,the defendant
must show that the comments were " o flagrant and ill intentioned that an instruction could not
s
have cured the resulting prejudice."Emery, 174 Wn. d at 760 61. The focus of this inquiry is
2 -
more on whether the resulting prejudice could have been cured, rather than the flagrant or ill-
intentioned nature of the remarks. Emery, 174 Wn. d at 761 62.
2 -
21
No. 42414 2 II;
- -
Consolidated with No.44090 3 II
- -
1. Leading Questions
Burton argues that the prosecutor committed misconduct by asking leading questions on
direct examination. We disagree.
As we discussed above, the prosecutor asked two leading questions during direct
examinations. Burton suffered no prejudice as a result of the prosecutor's use of leading
questions on these minor, undisputed points, and his argument fails.
2. Arguing Facts Not in Evidence
Burton argues that the prosecutor impermissibly relied on facts outside the evidence
during closing argument by ( )
1 misrepresenting Burton's testimony, 2)
( misrepresenting Karen's
testimony, 3)
( misrepresenting Johnson's testimony, 4) "
( testifying"about the contents of
garbled"recordings, and (5)
misrepresenting the contents of behavior modification contracts"
"
between MBOW,Karen, and Burton. SAG at 4,9 10. We disagree.
-
The State has wide latitude to argue inferences from the evidence. State v. Gregory, 158
Wn. d 759, 841, 147 P. d 1201 (2006). But
2 3 a prosecutor commits reversible misconduct by
urging the jury to decide a case based on matters outside the evidence. See State v. Claflin, 38
Wn.App. 847, 850 51,690 P. d 1186 (1984).
- 2
a. Argument Regarding Burton's Testimony
Burton claims that the prosecutor relied on matters outside the evidence by claiming that
Burton admitted to having sex with MBOW on the night before she reported the abuse. We
disagree.
The prosecutor argued, And the defendant admits,the night before she reported this, he
"
did spend two hours in the house alone with her, and that night they had sex." RP at 340.
3
22
No. 42414 2 II;
- -
Consolidated with No.44090 3 II
- -
Burton admitted during his testimony that he spent two hours alone with MBOW, but he claimed
he was asleep. He did not admit to having sex with MBOW. But it appears from the record that
the prosecutor was pointing out that Burton admitted to spending two hours alone with MBOW
that night, and that the prosecutor was arguing that the two had sex, not claiming that Burton
admitted to it. This was a permissible inference from the evidence; the potentially confusing
phrasing of the prosecutor's argument was not improper.
Even assuming the jury took the prosecutor's argument as claiming that Burton admitted
to having sexual intercourse with MBOW, any prejudice from such an argument would have
been slight. The jury heard Burton's testimony, during which he unequivocally denied any
sexual activity with MBOW.
b. Argument Regarding Karen's Testimony
Burton further claims that the prosecutor relied on facts outside the evidence by claiming
that Karen testified that MBOW may have worn the bathrobe with her and Burton's DNA on it
only " n one occasion."SAG at 9. We disagree.
o
The prosecutor, in discussing how much DNA was found on the bathrobe, argued,
We're not talking about [MBOW] may have worn the bathrobe on one occasion,
which only came from Karen Burton. Wayne Burton testified that he had never
seen her wear that bathrobe. We are talking about a stain that's right on the same
place as the defendant's semen, and we're talking about a stain, we're talking
about a bodily fluid.
3 RP at 346. Karen testified that she saw MBOW wearing Burton's robes " requently,'.' she
f but
also testified that MBOW wore the robes when Karen was not home. 3 RP at 274 75. Karen
-
mentioned only one specific incident of her actually seeing MBOW wearing one of Burton's
robes. When arguing that Karen testified about only " ne occasion," prosecutor was arguing
o the
23
No. 42414 2 II;
- -
Consolidated with No. 44090 3 II
- -
that only Karen had testified that MBOW had worn Burton's robe. This was not a
misrepresentation of the record, and is not improper.
Even assuming that the jury took the prosecutor to be claiming that Karen had testified
that MBOW wore Burton's robe only once, any prejudice would have been slight. The
prosecutor's larger point, supported by the evidence, was that MBOW's DNA got on the robe
through bodily fluids, not skin contact from wearing the robe, irrespective of how many times
MBOW might have worn it. Burton has not shown misconduct on this point.
c. Argument Regarding Johnson's Testimony
Burton additionally claims that the prosecutor relied on facts outside the record by
mischaracterizing Johnson's testimony. We disagree.
Karen testified that, during the period when the abuse allegedly began, Burton lived in
Lynnwood, while Karen and MBOW lived in Kingston. Karen testified that Burton visited her
and MBOW in Kingston infrequently. Burton bolstered this testimony with the testimony of Jan
Johnson, who lived with Burton in Lynnwood. Johnson testified that Burton did not travel back
and forth to Kingston on the weekends.
The prosecutor argued, Johnson's]
"[ testimony wasn't very helpful to us, either. She
couldn't really tell us where the defendant was on the weekends.... said that she thought
She
that he didn't go home because he financially couldn't afford it,but she didn't say she saw him
there on the weekends."3 RP at 352.
The prosecutor did not misstate the record. While Johnson claimed that Burton did not
go back and forth to Kingston, the prosecutor argued the reasonable inference that Johnson was
mistaken. Johnson did not testify that she had personal knowledge of where Burton actually
24
No. 42414 2 II;
- -
Consolidated with No. 44090 3 II
- -
went on the weekends, and thus she may have been incorrect whether he went back and forth to
Kingston. Burton has shown no misconduct on this point.
d. Testifying"as to Contents ofJail Phone Recordings
"
Burton next argues that the prosecutor committed misconduct by "estifying"about the
t
jail phone recordings contents after first calling them " arbled."SAG at 9 10. We disagree.
g -
Regarding the jail recordings, the prosecutor argued, I know they are garbled and they
"
are hard to get the first time,, you will be able to take that back with you." RP at 374. The
but 3
prosecutor then argued that the recordings would show that Burton knew that MBOW had had a
sexual assault examination, and was attempting to formulate an innocent explanation why his
semen might be found inside MBOW. This argument was within the prosecutor's wide latitude
to argue inferences from the evidence. Burton apparently argues that, by calling the calls
garbled," prosecutor was somehow barred from arguing reasonable inferences to the jury
the
about what the calls showed. Burton is incorrect and has failed to show misconduct on this
point.
e. Misstating Contents ofBehavior Modification Contracts
Burton further argues that the prosecutor misstated the contents of behavior
"
modification contracts"between MBOW, Karen, and Burton. SAG at 10. We disagree.
Before MBOW made the 2010 allegations that led to the charges at issue, she had
accused Burton of sexual abuse, but had recanted. Later, MBOW signed a series of documents
known as "behavior modification contracts."2 RP at 115 16. One of the contracts stated that a
-
sexual relationship MBOW was having with a younger boy was illegal. Another stated that
MBOW had made false allegations of abuse against Burton. Karen testified that the documents
25
No. 42414 2 II;
- -
Consolidated with No. 44090 3 II
- -
had nothing to do with MBOW making allegations against Burton, but were only about MBOW
acting appropriately."3 RP at 28 1.
Burton claims that the prosecutor misrepresented the behavior modification contracts by
claiming that neither Burton nor Karen had signed them. The prosecutor made no such
argument. Rather, the prosecutor questioned Karen's credibility by contrasting the contracts'
contents with how Karen described their purpose.
T] don't appear to be the same contracts that Karen Burton herself signed ...
hese
and when she described what the purpose of those behavior modification
contracts were, they weren't anything like what we have here in Exhibit No. 20.
What we have here in Exhibit No. 20 is the defendant attempting to hold
something over.[
s] MBOW' head ....
3 RP at 349. The prosecutor never claimed that Burton or Karen failed to sign the contracts.
The prosecutor argued only that Karen was dishonest when describing the contracts' purpose
because their contents contrasted with the purpose that Karen attributed to them. Burton has
failed to show misconduct on this point.
3. Vouching
Burton argues that the prosecutor committed misconduct by vouching for MBOW during
closing arguments. We disagree.
A prosecutor commits improper vouching by expressing a personal opinion as to a
witness's veracity. State v. Thorgerson, 172 Wn. d 438, 443, 258 P. d 43 (2011).But a
2 3
prosecutor's wide latitude to argue inferences from the evidence includes arguing inferences
regarding witness credibility. State v. Warren, 165 Wn. d 17, 30, 195 P. d 940 (2008). .
2 3
Improper vouching will not be found prejudicial on appeal unless it is clear and unmistakable
that the prosecutor is expressing a personal opinion. Warren, 165 Wn. d at 30.
2
26
No. 42414 2 II;
- -
Consolidated with No. 44090 3 II
- -
Burton cites a number of instances in the record where the prosecutor argued that MBOW
was a credible witness. But each instance shows the prosecutor arguing reasonable inferences
from the evidence regarding MBOW's credibility. The prosecutor did not give her personal
opinion that MBOW was credible. Burton appears to base his argument on the idea that any
mention of witness credibility by the prosecutor is improper vouching, but that is incorrect.
Burton has not shown misconduct on this point.
4. Giving Personal Opinion
Burton additionally argues that the prosecutor improperly gave her personal opinion
during closing argument. We disagree.
Prosecutors may not give their personal opinions regarding the defendant's guilt or a
witness's credibility. Warren, 165 Wn. d at 30. But, again, courts will not find prejudicial error
2
absent a clear and unmistakable expression of personal opinion. Warren, 165 Wn. d at 30.
2
Burton argues that the prosecutor improperly gave her personal opinion in closing
argument by arguing ( ) behavior modification contracts were self -
1 the serving to Burton, 2)
(
Debbie Burton's testimony was not helpful, and (3) s testimony was not credible. But
Burton'
each of these arguments fell within the prosecutor's wide latitude to argue inferences from the
evidence. The prosecutor did not improperly give her personal opinion during closing argument
on any of these points. Burton has not shown misconduct on this point.
27
No. 42414 241;
-
Consolidated with No. 44090 3 II
- -
D. Burton Has Not Shown Any Incomplete Transcription of the Proceedings
Burton next argues that his rights were violated by an incomplete transcription of the
proceedings. Burton's claim relies on matters outside the record and we do not consider it.
McFarland, 127 Wn. d at 335.
2
E. Burton Has Not Shown Cumulative Error
Burton argues that cumulative error denied him the right to a fair trial. The cumulative
error doctrine applies when several errors occurred at the trial court that would not merit reversal
standing alone, but in aggregate effectively denied the defendant a fair trial. State v. Hodges,
118 Wn. App. 668, 673 74,77 P. d 375 (2003).
- 3 Burton has shown only that the trial court
committed harmless error by sentencing him without findings of fact or conclusions of law and
that a condition in his sentence was erroneous. Burton has shown no other error. He has not
shown any accumulation of error, thus his argument fails.
F. Burton Has Not Shown Ineffective Assistance ofAppellate Counsel
Finally, Burton argues that his appellate counsel rendered ineffective assistance by ( )
1
failing to communicate with him and Karen, 2)
( failing to send him missing portions of trial
transcripts, and (3)failing to send him unspecified "
other requested materials."SAG at 19 20.
-
All of these arguments are based on facts outside the record and we do not consider them.
McFarland, 127 Wn. d at 335; see also In re Pers. Restraint ofDalluge, 152 Wn. d 772, 787,
2 2
100 P. d 279 (2004) A criminal defendant's first opportunity to raise an ineffective assistance
3 ("
of appellate counsel claim is often on collateral review. ")
11'3
No. 42414 2 II;
- -
Consolidated with No. 44090 3 II
- -
CONCLUSION
We remand and order the trial court to strike the words " r his or her family"from the
o
judgment and sentence. Otherwise, we affirm.
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
040,
2.6.it is so ordered.
0
Worswick J.
We concur:
N1-
All 1
V
Bjor , J.j
11Z