Opinion
No. 24906-9-III.
February 26, 2008.
Appeal from a judgment of the Superior Court for Benton County, No. 02-1-00722-1, Cameron Mitchell, J., entered February 1, 2006.
Affirmed by unpublished opinion per Brown, J., concurred in by Kulik, J., and Thompson, J. Pro Tem.
A jury found Gilbert Galen Genoway guilty of three counts of first degree child molestation arising from diapering incidents reported by three boys eight to eleven years old. The State's evidence included an analysis of Mr. Genoway's computer files showing visits to sex-related diaper websites and testimony from an alleged fourth victim, now an adult, whose similar complaint had resulted in acquittal. Mr. Genoway's defense was that he was conducting diaper research and public service undercover investigations. Mr. Genoway's appeal and pro se contentions raise close to 100 lengthy issues, including bail, speedy trial, computer access, evidence rulings, prosecutorial misconduct, evidence insufficiency, and ineffective assistance, all of which we reject. Accordingly, we affirm.
FACTS
We report the facts most favorably to the State because Mr. Genoway partly raises an evidence sufficiency challenge. In July 2002, a grandmother reported her grandsons, seven-year-old T.A. and nine-year-old Z.A., said they had been fondled by their step-uncle, Mr. Genoway, in Benton County. Interviewing police said the boys claimed Mr. Genoway unnecessarily, and uncomfortably, put them in diapers and rubbed their genitals with lotion and baby powder. Police returned a search warrant for the house where Mr. Genoway resided, reporting they had seized two computers and hard drives with photos showing the boys in diapers and Mr. Genoway in a diaper sucking on a baby bottle and a pacifier. Eventually, police lawfully seized a total of 13 computers with 21 hard drives from Mr. Genoway's residence.
On July 17, 2002, Mr. Genoway was charged with two counts of first degree child molestation. A third count of first degree child molestation was added involving J.H., the boys' cousin, who was 10 or 11 years old when Mr. Genoway forced him to wear a diaper.
After multiple continuances, the jury trial began October 25, 2005. Over Mr. Genoway's objection, the trial court allowed testimony from Army Sergeant Michael Cross, who testified Mr. Genoway had similarly molested him when he was 10 or 11 years old, although a 1993 King County bench trial acquitted Mr. Genoway. Before allowing Sergeant Cross's testimony, the court balanced the probative value against the prejudicial effect of Sergeant Cross's testimony and later gave a limiting instruction.
The three boys testified. The State's evidence included photos taken from Mr. Genoway's hard drives of children — mostly boys around 10 or 11 years old — in diapers, and photos of adults (including Mr. Genoway) in diapers. The hard drives showed that Mr. Genoway frequented internet web sites such as "Dirty Diaper Dinner Club," "North American Man Boy Love Association," and "Diaper During Sex." Report of Proceedings (RP) at 520-21, 524. Mr. Genoway, who was 58 years old at trial, testified to a congenital bladder condition requiring him to wear a diaper. He explained he became a personal care provider in 1989 and began designing a better diaper for the disabled community. He testified he visits pornography web sites and pretends to be a young boy so he can investigate and report on these sites to the Federal Bureau of Investigation (FBI) and other police agencies.
The jury found Mr. Genoway guilty as charged. Mr. Genoway appealed.
ANALYSIS A. Cash Bail
The issue is whether Mr. Genoway's initial "cash only" bail violates article I, section 20 of the Washington Constitution and CrR 3.2(b). For reasons not concerning this appeal, Mr. Genoway was released in December 2002 until his bail was revoked in January 2005 for violations of release conditions.
In City of Yakima v. Mollett, 115 Wn. App. 604, 609-10, 63 P.3d 177 (2003), this court held that former CrRLJ 3.2(a) (2000) — the district court rule nearly identical to CrR 3.2(b) — does not authorize "cash only" bail to the exclusion of a bond. Therefore, the court did not reach the constitutional question. The Mollett court noted the case was moot because Mr. Mollett had gained his release. Id. at 606. The case was reviewed because it involved matters of continuing and substantial public interest. Id. In particular, Mollett found a lack of applicable case law in Washington and a corresponding need to provide judicial guidance. Id. at 607. The same is not true here.
The question is moot for Mr. Genoway because he is no longer subject to that release condition. Mr. Genoway was released for over two years before his trial, until he violated his release conditions. The "cash only" bail issue was resolved in Mollett for CrRLJ 3.2(a). Further issue resolution is unnecessary for trial court guidance. Because we cannot give effective relief, the issue is moot. Mollett, 115 Wn. App. at 606.
B. Speedy Trial
The issue is whether, under the facts, Mr. Genoway was provided a speedy trial. We review de novo applications of the CrR 3.3 speedy trial rules. State v. Nelson, 131 Wn. App. 108, 113, 125 P.3d 1008, review denied, 157 Wn.2d 1025 (2006). While Mr. Genoway asks us to apply former CrR 3.3 (2000), new criminal procedural rules are applied retroactively to all cases pending on direct review or that are otherwise not yet final. In re Pers. Restraint of St. Pierre, 118 Wn.2d 321, 326, 823 P.2d 492 (1992). CrR 3.3 was amended in 2003, before Mr. Genoway's trial. Thus, the 2003 amendment to CrR 3.3 is applicable. Id.
In-custody defendants must be brought to trial within 60 days after arraignment. CrR 3.3(b)(1)(i), (c)(1). If a defendant is released before the 60-day period has expired, the limit is extended to 90 days. CrR 3.3(b)(3). If a defendant is returned to custody on the same charge, the 90-day limit continues to apply. CrR 3.3(b)(4). If the defendant remains in custody when trial is reset, resulting in a new commencement date, the 60-day limit applies. CrR 3.3(b)(4). Continuances are excluded; the time allowable for trial is extended 30 days beyond the continuance period. CrR 3.3(b)(5), (e)(3), (f). Filing a written waiver of speedy trial rights resets the commencement date and the elapsed time is reset to zero. CrR 3.3(c)(2)(i). The new commencement date is the date specified in the waiver, but cannot be earlier than the waiver date. CrR 3.3(c)(2)(i). If no date is specified in the waiver, the commencement date is the date of the trial set by the court. CrR 3.3(c)(2)(i).
Mr. Genoway incorrectly argues his first appearance on July 12, 2002 for his 72hour felony investigatory hold in district court commenced his case. But his case commenced on his arraignment date, July 19, 2002. CrR 3.3(c)(1). At that time, the 60-day speedy trial period applied, and the court set a trial date of September 9, 2002.
Mr. Genoway's first agreed continuance came 44 days later, on August 30, 2002. The waiver reset the elapsed time to zero and reset the commencement date to August 30. CrR 3.3(c)(2)(i); Nelson, 131 Wn. App. at 113. Later, Mr. Genoway agreed to continuances and signed waivers through August 17, 2005 when he signed a waiver of his time for trial to September 26, 2005. Although defense counsel on September 21, 2005 stipulated to a continuance to October 24, 2005, the continuance was not properly signed by Mr. Genoway, as required by CrR 3.3(f)(1). Even so, trial began on October 25, 2005, well within the 60-day period for a detained defendant, and within the 30-day extension beyond the last continued trial date of September 26. CrR 3.3(b)(1), (5).
C. Computer Access
The issue is whether the trial court erred in denying Mr. Genoway personal access to his computer hard drives. Mr. Genoway contends the mirror images and expert assistance provided his counsel were insufficient for due process purposes.
CrR 4.7 requires a prosecutor to disclose to the defendant no later than the omnibus hearing "any books, papers, documents, photographs, or tangible objects, which the prosecuting attorney intends to use in the hearing or trial or which were obtained from or belonged to the defendant." CrR 4.7(a)(1)(v). Thus, hard drive mirror images must be disclosed. State v. Boyd, 160 Wn.2d 424, 432-33, 436, 158 P.3d 54 (2007). Contrary to Mr. Genoway's contention, a defendant who is represented by counsel is not entitled to personal access to this evidence. Defense counsel's access to evidence copies and expert assistance allow a reasonable defense investigation and effective assistance of counsel. Id. at 434-35. He was not denied due process.
Especially in sexual victimization cases, the trial court is entitled to impose conditions that will safeguard the interests of the victims. Id. at 438. Due to the ease with which the evidence can be disseminated, "the defendant should be allowed access to the evidence only under defense counsel's supervision." Id. Ultimately, "[t]he evidence must be secured and inaccessible to anyone besides defense counsel." Id. Mr. Genoway's reliance on a pro se law library access case, State v. Silva, 107 Wn. App. 605, 27 P.3d 663 (2001), is inapposite. Because Mr. Genoway was represented by counsel, he did not have the same need as a pro se defendant for personal access. Nothing in the record supports Mr. Genoway's reply brief argument that work product contained in the hard drives may not have been surrendered to defense counsel.
D. Bad Act Evidence
The issue is whether the trial court erred in admitting the testimony of an alleged victim from a prior trial that resulted in acquittal. Mr. Genoway contends Sergeant Cross's testimony was collaterally estopped under double jeopardy principles and violated ER 404(b), governing prior bad acts. We review evidence rulings for an abuse of discretion. State v. Vreen, 143 Wn.2d 923, 932, 26 P.3d 236 (2001); State v. Stein, 140 Wn. App. 43, 65, 165 P.3d 16 (2007).
In both the federal and the state constitutions, collateral estoppel is a component of the protections against double jeopardy. Stein, 140 Wn. App. at 61. Collateral estoppel means that an issue of ultimate fact determined by a valid judgment cannot be litigated again by the same parties in a subsequent lawsuit. Id. at 61 (citing Ashe v. Swenson, 397 U.S. 436, 443, 90 S. Ct. 1189, 25 L. Ed. 2d 469 (1970)). If the trier of fact "in acquitting the defendant necessarily found that the State failed to prove a fact essential to convict the defendant, the State cannot relitigate the same fact in a later proceeding against the defendant." Id. at 61-62.
Washington courts interpret the state double jeopardy clause in the manner used by the United States Supreme Court to interpret the federal provision. Stein, 140 Wn.2d at 61. In Dowling v. United States, 493 U.S. 342, 348-50, 110 S. Ct. 668, 107 L. Ed. 2d 708 (1990), the United States Supreme Court held that collateral estoppel does not necessarily bar admission of criminal conduct for which the defendant was acquitted. Such acquittal evidence may be admissible under ER 404(b) if the trier of fact could reasonably find by a preponderance of the evidence that the criminal conduct actually occurred. Dowling, 493 U.S. at 348-49; Stein, 140 Wn. App. at 62.
ER 404(b) generally prohibits the admission of prior bad acts to prove that a defendant has a criminal propensity. State v. DeVincentis, 150 Wn.2d 11, 17, 74 P.3d 119 (2003). Evidence of prior misconduct may be admissible for other purposes, however, such as proof of a common scheme or plan. ER 404(b); DeVincentis, 150 Wn.2d at 17. If the State seeks admission of prior criminal conduct, the trial court must (1) find by a preponderance of the evidence that the conduct probably occurred; (2) identify the purpose for the evidence; (3) find that the evidence is relevant to that purpose; and (4) find that the evidence is more probative than prejudicial. Id.; State v. Kilgore, 147 Wn.2d 288, 292, 53 P.3d 974 (2002); Stein, 140 Wn. App. at 65.
The acquittal only showed that the State did not prove its case beyond a reasonable doubt. For ER 404(b) purposes, the burden of proof is significantly lower: merely a finding by a preponderance of the evidence that the crime probably occurred. Kilgore, 147 Wn.2d at 292. The trial court considered Sergeant Cross's testimony in a pretrial hearing. The trial court found by a preponderance of the evidence that the acts allegedly committed by Mr. Genoway against Sergeant Cross actually occurred. The trial court's factual finding, based on a determination of credibility, will not be disturbed by this court. State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004).
The trial court found Sergeant Cross's testimony was relevant to show Mr. Genoway's common scheme or plan for molesting children, especially boys, and to rebut his defensive innocent explanations. The record shows the court balanced the probative value of this evidence against its prejudicial effect. The trial court concluded that due to the limited amount of physical proof of the crimes, the fact that the State's case relies on the testimony of children, and the lack of corroborating evidence, the probative value of Sergeant Cross's testimony outweighed its potential prejudice.
A trial court has broad discretion in balancing probative value against prejudice. Stein, 140 Wn. App. at 67. The trial court carefully considered Sergeant Cross's testimony and weighed its relevance against its potential prejudice. The court also gave the jury an instruction limiting the evidence to the showing of a common scheme or plan. The trial court did not abuse its discretion when it admitted Sergeant Cross's testimony, under ER 404(b), of a crime for which Mr. Genoway was acquitted.
E. Evidence Sufficiency
Mr. Genoway contends the evidence is insufficient to show that he molested J.H. during the period from January 1, 2000 to July 1, 2002, as alleged in count 3. He argues J.H. testified he did not meet Mr. Genoway until J.H. was around 11 years old and J.H. did not turn 11 until September 2002.
We review evidence insufficiency claims in the light most favorable to the State and will find the evidence sufficient if any rational trier of fact could find the elements of the offense beyond a reasonable doubt. Thomas, 150 Wn.2d at 874. We defer to the trier of fact on issues of credibility, conflicting testimony, and the persuasiveness of the evidence. Id. at 874-75.
J.H. testified he first participated in activities with his cousins and Mr. Genoway when J.H. was "[p]robably about 11, somewhere in there." RP at 466. Mr. Genoway fails to mention that during his own testimony he admitted that J.H. claimed he was inappropriately touched during the 2000 and 2001 "time frame," RP at 790, and that J.H. was "10" when the alleged incidents occurred. RP at 765. Therefore, sufficient evidence supports the verdict on count 3.
F. Prosecutorial Misconduct
The issue is whether prosecutorial misconduct deprived Mr. Genoway of a fair trial. Mr. Genoway argues the prosecutor improperly vouched for a witness in the opening statement, accused Mr. Genoway of fraud during voir dire, and made prejudicial statements during closing argument. Mr. Genoway must show that the prosecutor's conduct was both improper and prejudicial. State v. Weber, 159 Wn.2d 252, 270, 149 P.3d 646 (2006), cert. denied, 127 S. Ct. 2986 (2007). Misconduct was prejudicial if there is a strong likelihood it affected the jury's verdict. Id. Reversal for prosecutorial misconduct is not required unless it is reasonably probable that the outcome of the trial would have been different. Id. If the defendant did not object to the alleged misconduct, the issue is waived unless the misconduct was so flagrant and ill-intentioned that it created a prejudice that could not have been neutralized by a jury instruction. Id.
1. Opening Statement. The State described Mr. Genoway's defenses as excuses and compared them to the motives of the State's witnesses:
You'll hear that Sergeant Cross has no motive to come in here and lie to you. Even after the judge in King County found the defendant not guilty, the Crosses didn't sue the defendant. They didn't file a civil suit. They got nothing for it and they're not going to get anything for it. There is no motive for money beyond — you'll hear that there is no —
RP at 392. In a side bar after objection, defense counsel argued the State was calling Mr. Genoway a liar. The trial court sustained the objection and asked the prosecutor not to "go into the motive of the defendant or the witnesses at this point." RP at 395.
A prosecutor may not state his or her personal belief about a defendant's guilt or the credibility of witnesses. State v. Dhaliwal, 150 Wn.2d 559, 577-78, 79 P.3d 432 (2003). The State did not call Mr. Genoway a liar or comment on his credibility. The trial court sustained the objection and limited the prosecutor's comments. The prosecutor merely told the jury it would hear testimony supporting those statements. Mr. Genoway shows neither misconduct nor prejudice during the opening statement.
2. Voir Dire of Mr. Genoway. During Mr. Genoway's direct testimony, the State inquired on voir dire without objection why Mr. Genoway did not use his first name when applying to work with disabled children. This question implied Mr. Genoway was hiding his earlier prosecution and investigation for child abuse. Mr. Genoway now contends the prosecutor argued an unfavorable inference from his exercise of a constitutional right.
We disagree that misconduct occurred, after considering the inquiry, the case issues, the evidence, and the court's instructions. State v. Russell, 125 Wn.2d 24, 85-86, 882 P.2d 747 (1994), cert. denied, 514 U.S. 1129 (1995). Moreover, Mr. Genoway waived the issue because the prosecutor's alleged misconduct was not flagrant, ill-intentioned, and could have been neutralized with a jury instruction. Weber, 159 Wn.2d at 270. Mr. Genoway placed his credibility at issue by testifying. Accordingly, the prosecutor's examination into the basis for Mr. Genoway's apparent name change after an investigation for child molestation was proper impeachment.
3. Closing Argument. Although he did not object at trial, Mr. Genoway argues the State improperly argued in closing that (1) Mr. Genoway "got lucky" when he was acquitted of molesting Sergeant Cross (RP at 846); (2) Sergeant Cross was wearing diapers when he was molested; (3) Mr. Genoway testified as though he thought he was smarter than everyone else; (4) Mr. Genoway had a duty to provide exculpatory evidence from the hard drives, and (5) if it were up to him the jurors would never have to serve on jury duty again. Again, the statements are neither improper nor prejudicial. Prosecutors are allowed wide latitude in closing arguments to argue inferences arising from the facts in evidence. Dhaliwal, 150 Wn.2d at 577. "They may not, however, make prejudicial statements that are not sustained by the record." Id. Here, the prosecutor properly argued inferences from facts in evidence. Mr. Genoway's demeanor was used to explain Mr. Genoway's control over the victims. After stating that Mr. Genoway exerted "incredible power" over the victims, the prosecutor continued,
He has exerted that kind of destructive power. And there was no better way for you to see that kind of power, that kind of power that the defendant exerts than when he took the witness stand. When he took the witness stand and you had the opportunity yourselves to see who the defendant really is.
You got to meet the defendant. You got to see the defendant and you got to see the way in which the defendant acts. You got to see the way in which the defendant thinks he is smarter than me and each and every one of you. And you got to see the way in which the defendant tries to justify the perverse acts that the law in this state says are absolutely illegal.
RP at 841-42. These statements are arguable inferences from the evidence.
A prosecutor may not imply that a defendant has a duty to present exculpatory evidence. State v. Barrow, 60 Wn. App. 869, 872, 809 P.2d 209 (1991). But the State may attack a defendant's exculpatory theory. State v. Blair, 117 Wn.2d 479, 491, 816 P.2d 718 (1991); Barrow, 60 Wn. App. at 872-73. During cross-examination, the State asked Mr. Genoway about his alleged pedophile investigations. Mr. Genoway replied that he had reported his activities to the authorities and those reports were in the seized hard drives and had been shown to defense counsel. The prosecutor then asked, "So when I'm done, [defense counsel] will be able to come up here and show the jury what you sent to some investigative agency about how you were helping stop pedophiles on the Internet[?]" RP at 769. Mr. Genoway replied, "He should be able to." Id.
In closing argument, the prosecutor reminded the jurors of Mr. Genoway's assertion: "[t]he defendant tells you his attorney will get you the proof that he was sending this stuff to the FBI, to the Washington State Patrol, to somebody to help put a stop to people just like him. Where is it? Where is it ladies and gentlemen? It's not here because it doesn't exist." RP at 852. Mr. Genoway's statements were subject to impeachment by his own inconsistent testimony, as with any witness. Portuondo, 529 U.S. 61, 73, 120 S. Ct. 1119, 146 L. Ed. 2d 47 (2000). Thus, the State's argument was proper.
Finally, the prosecutor's remark that, if it were up to him, he would never make the jurors sit on a jury again, has no apparent relevance to the issues at trial. In context, the statement refers to the length of the closing argument.
In sum, Mr. Genoway fails to show any improper or prejudicial State conduct.
G. Assistance of Counsel
The issue is whether Mr. Genoway received effective assistance of counsel. He contends his trial counsel (1) was conflicted because of his bar complaint, (2) elicited incriminating information when cross-examining a witness, (3) failed to object when the audio portion of a video was not shown to the jury, (4) helped violate his speedy trial rights, and (5) failed to raise the prosecutorial misconduct issue.
A defendant claiming ineffective assistance of counsel must show both deficient performance and prejudice that was so profound that it deprived the defendant of a reliable verdict. In re Pers. Restraint of Woods, 154 Wn.2d 400, 420-21, 114 P.3d 607 (2005). We strongly presume defense counsel's conduct was reasonably effective. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). Tactical and strategic decisions will not support a claim of ineffective assistance of counsel. Id. at 336.
1. Bar Complaint. Mr. Genoway incorrectly claims he filed a bar complaint against his counsel, leading to deficient representation. However, the complaint he filed was against the prosecutor. At sentencing, Mr. Genoway flatly stated that he did not file a bar complaint against his attorney. Even so, the mere filing of a bar complaint is insufficient to show an actual conflict of interest unless the defendant can show that counsel actively represented conflicting interests. State v. Martinez, 53 Wn. App. 709, 715-16, 770 P.2d 646 (1989). No such showing was made here.
2. Eliciting Incriminating Evidence. The record does not show Mr. Genoway elicited incriminating statements from Z.A. On direct examination, Z.A. testified Mr. Genoway rubbed powder on him on areas covered by his swimsuit. Defense counsel asked Z.A., "And Gil touched you when he changed you; is that right?" RP at 439. Thus, defense counsel did not elicit this information for the first time.
3. Video Objection. The videos were copied from Mr. Genoway's hard drive and showed images of the victims. The State's expert explained he could not get the audio to work, but that the audio could be played separately. Since the audio was available, any objection made by defense counsel would have been fruitless. In addition, Mr. Genoway does not explain how this would have changed the trial outcome.
Because we have concluded no speedy trial or misconduct violations occurred, no ineffective assistance could result. In sum, Mr. Genoway's counsel was effective.
H. Cumulative Error
The doctrine does not apply if, like here, only a few errors have little or no effect on the outcome of the trial. State v. Greiff, 141 Wn.2d 910, 929, 10 P.3d 390 (2000).
I. Pro Se Additional Grounds for Review
Mr. Genoway, pro se, unsuccessfully attempts to deconstruct the State's case, claiming his innocence. We do not address the majority of his concerns that echo his appellate counsel's assignment of errors and limit our analysis to the following:
1. Speedy Trial; Trial Preparation Conflict. Citing Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963), State v. Price, 94 Wn.2d 810, 814, 620 P.2d 994 (1980), and CrR 4.7, Mr. Genoway appears to argue he was forced to choose between a speedy trial and adequate trial preparation when the State failed to print out all the material from all the seized drives and send it to him personally in jail. He also claims that what little was given the defense was poorly organized and violated CrR 4.7.
"[I]f the State inexcusably fails to act with due diligence, and material facts are thereby not disclosed to defendant until shortly before a crucial stage in the litigation process, it is possible . . . a defendant's right to a speedy trial . . . may be impermissibly prejudiced." State v. Price, 94 Wn.2d 810, 814, 620 P.2d 994 (1980). Unexcused State conduct cannot force a defendant to choose between the right to a speedy trial and the right to adequately prepare a defense. Id. Mr. Genoway must, by a preponderance of evidence, show the State's actions compelled him to choose between prejudicing either of those rights. Id. Mr. Genoway fails to carry his burden of production. As explained, mirror image hard drives satisfied the State's discovery obligations. Nothing shows the State acted without due diligence. The rules do not require the State to earmark relevant portions of the computer materials and Mr. Genoway is not personally entitled to evidence given to defense counsel that is subject to conditions designed to safeguard the interests of the victims. Boyd, 160 Wn.2d at 438.
2. Ineffective Assistance. Mr. Genoway claims his stepmother's testimony would have revealed her bias if his counsel had inquired. Mr. Genoway must show both deficient performance and prejudice. Woods, 154 Wn.2d at 420-21. His speculation about what his stepmother might have said is insufficient to show more than his counsel's tactical decision in choosing witnesses. McFarland, 127 Wn.2d at 336. And, the stepmother's testimony did not come into the trial as hearsay. A police detective on direct examination stated merely that he was assigned to investigate the children's disclosures to her. Defense counsel's hearsay objection was overruled.
Regarding Mr. Genoway's argument that his counsel failed to adequately object to the State's forensic expert's testimony, the decision not to object was tactical. Moreover, his concern that the State's expert was unqualified is unfounded considering the foundation showing qualifications as a specialized investigator in a computer-related crime.
Mr. Genoway apparently believes his defense counsel failed to argue the proper defense, particularly his theme that the "videogram" files were collected due to his public-spirited covert infiltration of pornographic groups. Defense counsel's decision not to discuss Mr. Genoway's dubious assertions constitutes trial strategy, not ineffective assistance of counsel. State v. Varga, 151 Wn.2d 179, 199, 86 P.3d 139 (2004). The record does not support similar assertions.
3. Computer Seizures. Mr. Genoway believes his computer equipment was illegally seized, but the 2002 and 2005 seizures were supported by facially lawful search warrants. And he improperly raises this issue for the first time on appeal without asserting manifest error affecting a constitutional right. RAP 2.5(a)(3); State v. McFarland, 127 Wn.2d 322, 332-33, 899 P.2d 1251 (1995). The record does not reveal a basis for excluding the seized evidence, so he cannot show necessary prejudice. Thus, the claimed error is not reviewable under RAP 2.5(a)(3). Id. at 334.
4. Inadequate Computer Specialist. Mr. Genoway argues his court-provided expert, Brian Kamp, was inadequate and prosecution oriented. Mr. Genoway's self-serving, conclusory statements are insufficient to show Mr. Kamp provided ineffective assistant to his defense counsel.
5. Prosecutorial Misconduct. Mr. Genoway asserts the prosecutor improperly and continually referred to photos from his computer hard drives as "porn." His reference is to a bail-hearing transcript. The statements were not repeated at trial and not reversible error. Weber, 159 Wn.2d at 270.
6. Bail Complaints. As noted above, the trial court imposed a "cash only" bail of $100,000 when Mr. Genoway was arraigned. Mr. Genoway's mother posted a $10,000 bond and he was accidentally released. When the mistake was discovered and Mr. Genoway was returned to jail, the bail bondsmen refused to refund the $10,000. Apparently, Mr. Genoway's mother filed a civil action for return of the bond. The issue is not properly before this court. Mr. Genoway's concern that his bail was improperly revoked is moot under the principles discussed above.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
Kulik, J., Thompson, J. Pro Tem., concur.