Opinion
No. 66668-1-I.
Filed: April 25, 2011.
Appeal from a judgment of the Superior Court for Clark County, No. 08-1-01708-7, Barbara D. Johnson, J., entered November 25, 2009.
Affirmed in part, reversed in part, and remanded by unpublished opinion per Ellington, J., concurred in by Leach, A.C.J., and Lau, J.
Ryan Farris was convicted of first degree rape of a child. He alleges he was denied a fair trial by prosecutorial misconduct during closing argument and that his trial counsel provided ineffective assistance by failing to object to the misconduct. He also challenges the court's authority to impose a sexual assault protection order (SAPO) prohibiting him from contacting the victim until 2099.
We affirm Farris's conviction, but remand for correction of the SAPO.
BACKGROUND
A.L. lived in Colorado with her mother and father, Karen Marchun and Deon Love, and brother Justin. Marchun and Love separated when A.L. was 3, and divorced in 1994 or 1995. Love moved to Vancouver, Washington and married Tanya Gainer. Gainer had two children, Nicole Keith and Farris. During summers and at least once at Christmas, A.L. and Justin traveled from Colorado to visit her father and his family in Vancouver.
In 2002 or 2003 Farris, then 14 or 15 years old, was alone in a bedroom with A.L., then 9 or 10 years old. A.L. asked him what sex was, and Farris said he would show her. He asked her to pull her short skirt and underwear to the side. When she did, he inserted his penis in her vagina. A.L. said it felt scary and it hurt.
Some five years later in 2007 or 2008, A.L. disclosed this incident to her mother and asked to meet with a counselor. The counselor told them he had a mandatory duty to report the disclosure to law enforcement. The counselor offered to contact police but gave A.L. the option of making the report herself.
A.L. reported her allegations to a detective in Colorado. That detective forwarded a report to the Clark County Sheriff's Office where it was assigned to Detective Cindy Bull, who had specialized training in investigating sexual abuse of children. Bull requested a forensic medical examination of A.L. Dr. Mary Vader conducted the examination on June 26, 2008 and observed physical indicia of vaginal trauma consistent with penetration. Dr. Vader testified that when she questioned A.L. about whether she had any prior sexual activity, A.L. answered that she had not.
Farris was charged with first degree rape of a child. A.L. participated in pretrial interviews with both the prosecutor and defense counsel. After a jury trial on September 21 and 22, 2009, Farris was convicted as charged. As a condition of his sentence, the court imposed a permanent no-contact order prohibiting contact with A.L. The trial court also entered a SAPO prohibiting contact until November 29, 2099.
Farris appeals, assigning error to remarks the prosecutor made during closing argument, his trial counsel's failure to object to the remarks, and to the expiration date of the SAPO.
DISCUSSION Prosecutorial Misconduct
"To prevail on a claim of prosecutorial misconduct, the defendant must show both improper conduct and prejudicial effect." Prejudice is established only if the defendant shows there is a substantial likelihood that misconduct affected the jury's verdict. Farris did not object, and has thus waived any error unless the remarks were so flagrant and ill-intentioned as to cause an enduring and resulting prejudice that could not have been neutralized by curative instructions.
State v. Roberts, 142 Wn.2d 471, 533, 14 P.3d 713 (2000).
In re Pers. Restraint of Pirtle, 136 Wn.2d 467, 481-82, 965 P.2d 593 (1998).
State v. Belgarde, 110 Wn.2d 504, 507-08, 755 P.2d 174 (1988) (reversing conviction where prosecutor testified as to facts outside the record by alleging defendant belonged to a group of "madmen" and "butchers that kill indiscriminately"); see also State v. Russell, 125 Wn.2d 24, 87, 882 P.2d 747 (1994) (prosecutor's mention of matters outside evidence including amount of discovery information and defense access to their own experts, cured by prompt curative court instruction, did not warrant new trial); State v. Jones, 71 Wn. App. 798, 807-08, 863 P.2d 85 (1993) (prosecutor's mention of incidents already discussed at trial, if improper, could have been cured by prompt curative instruction).
First, Farris contends the prosecutor improperly argued that "[A.L. is] doing each step, and she's telling the same thing each step." Farris argues that because there was no testimony about the specific details of A.L.'s disclosures, there was no basis for the argument that her reports remained consistent.
Report of Proceedings (RP) (Sept. 22, 2009) at 150.
Counsel are prohibited from intentionally arguing facts not in evidence, but are permitted reasonable latitude in arguing inferences from the evidence, including inferences as to witness credibility. A.L. and Marchun both testified that A.L. told her mother about the rape and then spoke to a counselor who told them that he had a duty to report the incident to police. Both testified A.L. then reported the incident to a detective in Colorado. A.L. further testified she spoke about the rape with the prosecutor and defense counsel. The argument that A.L.'s reports were consistent was a reasonable inference from the evidence. There was no misconduct in the prosecutor's description.
State v. Gregory, 158 Wn.2d 759, 810, 147 P.3d 1201 (2006); State v. Johnson, 40 Wn. App. 371, 381, 699 P.2d 221 (1985).
Detective Bull also testified that A.L. spoke to a Colorado law enforcement officer, and that officer reported A.L.'s disclosure to the Clark County Sheriff's Office.
Farris's trial counsel's questions to A.L. about her pretrial interview confronted A.L. with inconsistencies between her trial testimony and her answers during the interview. These included questions about specific details of A.L.'s earlier account of the rape during the defense interview.
Second, Farris contends the prosecutor misstated the evidence by arguing "the first information [A.L.] provided was to a counselor providing her with help to get through her issues." Farris argues the evidence did not establish that A.L. disclosed the rape to the counselor, and does establish that the counselor was not the first person she disclosed the rape to. Farris also argues there was no testimony about the nature and scope of the counseling.
RP (Sept. 22, 2009) at 151.
Farris fails to demonstrate that this argument was improper. That A.L. told the counselor about the rape is a reasonable inference from her testimony, her mother's testimony, and the counselor's response that he was required to make a report to law enforcement. That the counseling session was a setting "that's made to help her" work through "issues in her life" are logical inferences from the evidence that A.L. met with the counselor at her own request after tearfully disclosing the abuse to her mother. Although the description of the counselor as the first person to whom A.L. disclosed the rape is technically incorrect (the first was her mother), that is insignificant here because the focus of the argument was disclosure to strangers. And counsel made no remarks about the nature and scope of the counseling except the generic description of its intent to help her.
Id. at 149. It is also evident from the record that the prosecutor was describing a specific series of events, and the counselor was the "first" person in this series.
Third, Farris asserts the prosecutor argued facts not in evidence by explaining that when A.L. told Dr. Vader she had had no "previous sexual activity," she meant "she never had sex before other than this incident." Again, the argument was a reasonable interpretation of the evidence; Farris was free to argue a different interpretation.
Id. at 149-50, 155, 176.
Fourth, Farris argues the prosecutor personally vouched for A.L.'s credibility. In closing argument, the prosecutor mentioned A.L.'s reports to various people to suggest she was credible and would not undergo the interviews and examinations if her report were not true. In this context, the prosecutor stated that A.L. also "[told] the prosecutor what happened, another stranger."
Id. at 150.
It is misconduct for a prosecutor to offer a personal opinion of a witness's credibility. However, prejudicial error does not occur until such time as it is clear and unmistakable that counsel is not arguing an inference from the evidence but is expressing a personal opinion. In context, the point of the argument was the consistency of A.L.'s statements; it contains no indication of the prosecutor's subjective belief as to her credibility. There was no vouching.
State v. Dhaliwal, 150 Wn.2d 559, 577-78, 79 P.3d 432 (2003); see also United States v. Garza, 608 F.2d 659, 663 (5th Cir. 1979).
State v. Warren, 165 Wn.2d 17, 30, 195 P.3d 940 (2008); State v. Brett, 126 Wn.2d 136, 175, 892 P.2d 29 (1995).
Farris also argues this violated his right to confront adverse witnesses. We disagree. A.L. herself testified she spoke about the rape with the prosecutor. She was cross-examined on the subject. The prosecutor merely reiterated her testimony. The prosecutor did not thereby violate Farris's right to confront the witnesses against him.
RP (Sept. 22, 2009) at 150. "The right to confront and cross-examine adverse witnesses is guaranteed by both the federal and state constitutions." State v. Darden, 145 Wn.2d 612, 620, 41 P.3d 1189 (2002).
The prosecutor did not engage in misconduct. Moreover, Farris did not object. Even if the remarks were improper, they were not so flagrant and ill-intentioned as to cause "`an enduring and resulting prejudice that could not have been neutralized by a curative instruction to the jury.'" Farris waived any claim of error.
State v. McKenzie, 157 Wn.2d 44, 52, 134 P.3d 221 (2006) (quoting State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997)).
Ineffective Assistance of Counsel
Farris next contends he received ineffective assistance of counsel because his attorney failed to object to the "[t]he prosecutor's effort to bolster A.L.'s credibility was . . . based on matters outside the record and on gross misstatements of the record" in the argument just discussed. However, Farris has not established misconduct. His ineffective assistance of counsel argument based upon the failure to object to misconduct therefore also fails.
Br. of Appellant at 29.
Protection Order
A trial court's sentencing authority is limited to that expressly found in the statutes. A court abuses its discretion if, when imposing a crime-related prohibition, it applies the wrong legal standard. In general, a no-contact order can be ordered as a crime-related prohibition under RCW 9.94A.505(8) for a period up to the statutory maximum for the defendant's crime. Here, Farris was prohibited from contact with A.L for the statutory maximum term of life. He does not challenge this condition.
In re Leach, 161 Wn.2d 180, 184, 163 P.3d 782 (2007).
State v. Lord, 161 Wn.2d 276, 284, 165 P.3d 1251 (2007).
State v. Armendariz, 160 Wn.2d 106, 119, 156 P.3d 201 (2007).
Rather, he challenges the sexual abuse protection order entered until 2099 as outside the court's authority. He is correct. RCW 7.90.150(6)(c) plainly limits SAPOs entered in conjunction with a criminal prosecution to a "period of two years following the expiration of any sentence of imprisonment and subsequent period of community supervision, conditional release, probation, or parole." Farris was sentenced to 93 months of confinement, followed by 36 months of community custody. The court therefore erred by entering a SAPO effective until November 29, 2099.
We affirm Farris's conviction and sentence, but reverse the 90 year SAPO and remand for correction of that order consistent with this opinion.