Opinion
No. 39584-3-II.
January 21, 2011. UNPUBLISHED OPINION
Appeal from a judgment of the Superior Court for Clark County, No. 09-1-00034-4, Robert A. Lewis, J., entered July 15, 2009.
Affirmed by unpublished opinion per Bridgewater, J. Pro Tem., concurred in by Penoyar, C.J., and Quinn-Brintnall, J.
Louis G. Ihrig, III, appeals his jury trial conviction of first degree child rape. He argues that he received ineffective assistance of counsel when his trial counsel failed to object to several portions of the State's closing argument. In a pro se statement of additional grounds for review (SAG), he argues that several additional aspects of the State's closing argument amounted to prosecutorial misconduct. We affirm.
RAP 10.10.
FACTS I. Background
On December 21, 2007, C.L.P. and her younger sister spent the night at Ihrig's house so their parents could go Christmas shopping the next day. Ihrig's wife was one of C.L.P.'s daycare providers, and Ihrig's and C.L.P.'s families had become friends. C.L.P. and her younger sister enjoyed playing with Ihrig's three children, and they had spent the night at the Ihrigs' home on several previous occasions.
On December 30, C.L.P.'s mother told C.L.P. that she and her sister were going to spend the night at Ihrig's house. C.L.P. got upset and told her mother that she did not want to go because Ihrig "was mean." Report of Proceedings (RP) at 100. Thinking that this was a strange response, she asked C.L.P. "why [Ihrig] was mean." RP at 100-01. C.L.P. initially responded, "just because." RP at 101. Her mother then asked her if she thought Ihrig was mean because he had disciplined her, and C.L.P. responded that that was not the reason.
Eventually, her mother asked her "what else had happened," and C.L.P. said that Ihrig had touched her "private area." RP at 101. When her mother asked her what she meant when she said that Ihrig had "touched her," C.L.P. told her mother that Ihrig had placed her in his lap, pulled down her underwear, and put his finger inside of her vagina after she had climbed into bed with Ihrig and his wife during the night. RP at 102.
C.L.P.'s parents reported the incident to Child Protective Services (CPS). C.L.P. subsequently spoke to someone from CPS, had a physical exam, and talked to a sheriff's detective.
C.L.P.'s mother testified that she had taken C.L.P. to the doctor for a "pelvic examination." 1 RP at 116. It appears that this exam took place before C.L.P. talked to the detective, but there is no other testimony or evidence related to this exam in the record. C.L.P. also talked to a social worker at some point before talking to the detective; the social worker did not testify.
II. Pre-trial Procedure
The State charged Ihrig with first degree child rape. The trial court dismissed the matter without prejudice after C.L.P. refused to speak during a witness competency hearing, and the trial court had determined that there was insufficient corroborating evidence to allow her statements to others to be admitted at trial. The State refiled the first degree child rape charge on January 7, 2009.
On March 6, the trial court held a second hearing to assess C.L.P.'s competency. During this hearing C.L.P. initially stated that she could not remember some things, but she eventually talked about the incident. Trial court ruled that C.L.P. was now competent to testify and the case proceeded to a jury trial.
C.L.P. was seven years old at the time of this hearing.
III. Trial A. Testimony
C.L.P. testified that on the night of the incident, she and her sister had been sleeping in Ihrig's daughter's room when the Ihrigs' dog woke her up. Frightened by the dog, C.L.P. crawled into bed with Ihrig and his wife and went back to sleep. At some point after she fell asleep in the Ihrigs' bed, she woke up to find Ihrig touching her "[p]rivate" with his finger. RP at 67. C.L.P. testified that her underwear had been pulled down, that Ihrig had somehow turned her around so her head was towards the foot of the bed and moved her onto his lap, that Ihrig had placed his finger inside her, and that he moved his finger around for "[l]ike a minute or two." RP at 69. After he removed his finger, he went into the living room without saying anything to his wife. Ihrig's wife did not wake up during this contact.
C.L.P. testified that she remained in the bed for a while, but she then went into the living room to get a drink of water. She went back to sleep on the couch, Ihrig slept on the living room floor. When she woke up again later, Ihrig put on a movie for her. At some point, one of Ihrig's sons came out and they watched the movie together. Everyone else woke up later, and the other children watched the movie as well. C.L.P. recalled that the movie was "Narnia." RP at 75. C.L.P. did not recall going to her grandmother's house later that day, but she thought she may have gone to a house she and her parents used to live in.
On cross examination, when the State asked C.L.P. how she felt about going back to Ihrig's house after this happened, she testified that she did not know and that she did not remember her mother telling her that she was going back to the Ihrig's a couple of days later. Also on cross-examination, C.L.P. admitted to having told a detective that Ihrig had been sitting up in the bed, but she appeared to testify that he had actually been laying down when she got into the bed but that he was sitting up later. C.L.P. also had some difficulty explaining exactly how her legs were positioned during the sexual contact. She testified that Ihrig's wife was asleep when she (C.L.P.) came into the room, that his wife did not wake up at any time, and that she (C.L.P.) did not recall her sister coming into the room crying.
On redirect, C.L.P. testified telling her mother about the sexual contact a few days after it occurred. She asserted that her mother had not asked her whether Ihrig had touched her (C.L.P.) but that she had disclosed the contact when explaining why she did not want go to Ihrig's house. In addition, C.L.P. admitted that she had been to court before and that she had not been able to talk about the incident at that time because she had been "shy." RP at 91.
C.L.P.'s mother then testified that just before Christmas in 2007, her daughters spent the night at the Ihrigs' house so she could do some Christmas shopping the next day. The children spent the next night at their maternal grandmother's house.
She also described C.L.P.'s disclosure to her after she told C.L.P. that she was going to go to the Ihrigs' again on December 30. She stated that C.L.P. told her that Ihrig picked her up and put her on his lap, pulled down her underwear, and put his finger inside her vagina. He then put her "back down on the bed" and went into the living room. RP at 103. C.L.P. told her that she had tried to wake Ihrig's wife "because she was still scared, and [Ihrig's wife] had told her to go out in the living room with [Ihrig]." RP at 103.
After C.L.P.'s disclosure, her mother noticed that C.L.P.'s behavior had changed in that she had become "extremely clingy," she wanted to be right next to people, and she had problems sleeping. RP at 104. C.L.P.'s mother noted that the sleeping problems had somewhat subsided by the time of the trial.
C.L.P.'s father testified that a day or two after she had disclosed the incident to her mother, he asked C.L.P. about it as they were going somewhere in his truck. C.L.P. responded by pulling a blanket over her head, something he had never seen her do before when she was talking to someone, and then "kind of explain[ing]" the incident, telling him that Ihrig had "put his finger in [her]" as she pretended to be asleep in the Ihrigs' bed. RP at 125-28.
C.L.P.'s maternal grandmother testified that Ihrig had dropped C.L.P. and her sister off at her house some time before Christmas 2007. Ihrig told her that C.L.P. had "had a bad night and he'd been up with her since two o'clock or somewhere thereabouts in the morning and, uh, but [she] didn't need to worry about giving them a bath because he had already given them a bath." RP at 138. C.L.P.'s grandmother thought it was strange that Ihrig had bathed the children and it upset her. In addition, she testified that C.L.P. was "exceptionally clingy" that day, that C.L.P. would not let her out of sight that day and followed her around talking to her, and that this was unusual behavior for C.L.P. She also testified that C.L.P. had frequently spent the night with her and that C.L.P. did not usually have trouble sleeping.
C.L.P.'s grandmother also testified that C.L.P.'s parents had lived with her for several years but that they were not living with her in December 2007.
Ihrig's wife testified that on the night of the incident, C.L.P. came into her bedroom and she told the child to climb into bed with her. On some previous overnight visits, C.L.P. had come into their room and crawled into bed with them, but she normally took C.L.P. back to her daughter's room and stayed with her until she fell asleep. But this time she was too tired to get up, so she let C.L.P. come to bed with her.
Ihrig's wife testified that she fell asleep soon after C.L.P. entered the bed but that she noticed that C.L.P. moved around. She did not, however, notice any inappropriate contact between Ihrig and C.L.P. or notice Ihrig moving C.L.P. around. At some point that night, Ihrig woke her and told her that he was going to go sleep in the living room, which was unusual for him. She did not recall C.L.P. leaving the bed or trying to talk to her. She testified that C.L.P. seemed to be normal in the morning and that C.L.P. did not appear to be afraid of Ihrig or object when Ihrig took her to her grandmother's house.
Clark County Sheriff's Detective Evelyn Oman testified about her interview with C.L.P. . Oman testified that when she first tried to get C.L.P. to talk to her about the incident, C.L.P. put her coat on backwards and pulled her hood over her face. Eventually, Oman got C.L.P. to take the hood off of her face and asked C.L.P. to tell her what had happened. C.L.P. responded, that Ihrig had "played with [her] and [she knew] what it was." RP at 178. Oman then asked C.L.P. to tell her what Ihrig had done, and the child pulled up her hood again. C.L.P. eventually responded that the last time she was at Ihrig's house, "'he played with my private, he just sticked (sic) his finger in there and wiggled it around.'" RP at 179.
C.L.P. then told Oman that she had gone to the Ihrigs' bedroom when she got scared, that Ihrig's wife was asleep when she got into the bed, that Ihrig was sitting up, and that she got in between the couple. She then acted like she was asleep, and Ihrig pulled her onto his lap, pulled down her underwear, and put his finger inside her. She stated that "'it hurt and [she] feeled (sic) it and he wiggled it around for a long time.'" RP at 180. Ihrig then went into the living room and she followed. She sat on the couch and watched a movie because she could not sleep. She recalled being up all night and being dropped off at her grandmother's house the next day. She told Oman that she did not tell her parents at once because she did not think they would want to know but that she told them later because she was afraid of Ihrig and did not want to go back to his house. When Oman asked C.L.P. why she was afraid of Ihrig, C.L.P. responded, "'he's mean and he killed kids because he was in the war.'" RP at 182. Oman acknowledged that C.L.P. did not tell her that she had tried to talk to Ihrig's wife when she got into bed or describe Ihrig turning her around in the bed before pulling her on to his lap.
Oman also talked to C.L.P.'s grandmother, C.L.P.'s mother, and Ihrig's wife. The grandmother told Oman that she had thought that Ihrig's giving the girls a bath was a little odd but nothing alarming; that Ihrig had told her that C.L.P. had been awake since 2:00 am, that she seemed upset, and that he did not know what was wrong with her; and that C.L.P. seemed a little clingy but nothing too unusual.
Ihrig was the only defense witness. He testified that he was a former United States Marine who had served in Afghanistan and that he worked in construction and was now an engineering student at Clark College. He recalled watching C.L.P. and her sister just before Christmas in 2007. He did not remember C.L.P. getting into bed with him and his wife, but he remembered that he woke up at about 2:30 am when C.L.P.'s sister was crying at his bedroom door. When he awoke, he found his hand resting on C.L.P.'s pelvic area. He testified that C.L.P.'s head was towards the head of the bed and that his hand was over C.L.P.'s underwear. When he realized where his hand was, he "was shocked" and quickly got out of bed, got her sister and put her in the bed, and woke up his wife to tell her that he was going to sleep in the living room; he did not tell his wife about his hand having been on C.L.P.'s pelvis. RP at 222. Ihrig denied having had any "skin-to-skin" contact with C.L.P., pulling down her underwear, turning her or putting her in his lap, or placing his finger in her vagina. RP at 220.
He further testified that about 30 to 45 minutes after he left the bedroom, C.L.P. came out to the living room and woke him up so she could get a drink of water. After he got C.L.P. her water, she could not sleep, so he put on a movie for her.
On cross-examination, defense counsel asked Ihrig if he was shocked when he realized where his hand was because he thought he was touching his wife and Ihrig responded,
Well, I don't really, uh, know what I was thinking at the time. I know that it was not an appropriate position for me so — and I usually don't have my kids sleeping in my bed, so, uh, I just didn't like the situation at all. So I immediately got out of bed and — and went toward [C.L.P.'s sister].
RP at 222. He also denied having told C.L.P.'s grandmother that he had bathed the girls. Instead, he asserted that he had run their bath water for them that day and they got into the bath.
Defense counsel also asked Ihrig how well he slept after moving to the living room and whether he had asked C.L.P. if he had woken her. Ihrig responded that he did not sleep well and that he had asked C.L.P. if he had woken her and she had responded that he had not. Defense counsel then asked why Ihrig was concerned about whether he had woken C.L.P., and he responded, "Well, we were in the same bed and I got out and I put her sister in, so there was a lot of movement going on, so that was my intention behind that." RP at 225-26. He again admitted that he had had contact with C.L.P.'s pelvic region and that his hand was large enough to have also covered C.L.P.'s vaginal area, but he denied any "penetration and the movement around the bed" or any skin-to-skin contact. RP at 229.
B. Closing Argument
The State started its closing argument by referring to how Ihrig had violated C.L.P.'s trust:
Little girls, little kids should be able to trust that if something scary wakes them up in the middle of the night, they have a safe place to go. Little girls should be able to believe that when something scares them, there's something that can comfort them. [C.L.P.] did. When something scared her and led her to leave her room and seek out a safer place to be, where'd she go?
She went to a place that she trusted. She went to two people that she trusted. She walked down that hallway, she walked into their room and she climbed into that bed, believing that what happened in that bed — that lying next to those two people that she trusted, it would make her feel safe. It would make the dogs or whatever scared her out of that room — the fear, go away, and that she would be able to sleep through the night.
And so you heard she climbed into that bed and lay there between two adults, two adults she trusted and she believed would protect her, and she drifted off into sleep. And that should have been the end of the story. She should have woken up that morning and gone about her day and been any other six-year-old and now any other seven-year-old. That's not what happened.
Everyone agrees to that. Instead, that six-year-old girl woke up to an adult man's hands on her vagina. She woke up to her T-shirt pulled up, her underwear pulled down around her ankles and an adult man's finger inside of her, wiggling it around was the word that she used. As adults, you can only imagine what that (sic) was going on, but her six-year-old brain, unexposed to adult sexuality, that was what he was doing.
RP at 252-53. After the State argued that vaginal penetration was not an experience that any six-year-old should experience and noted that C.L.P. had described the experience as "painful," the State commented, "We're here because instead of being safe, instead of being protected, instead of falling back to sleep, that little girl's life was changed." RP at 254.
The State then described the jury instructions, the elements of the charge, and the evidence related to each element of the charge, and argued, "I think this entire case comes down to two questions in that — two words in that entire instruction, and that is sexual intercourse; right? Did that penetration happen or not?" RP at 256.
Throughout its argument, the State commented that C.L.P.'s testimony was consistent with her previous statements to others and that her memory was very good given the time that had passed since the incident. At one point, the State commented on how C.L.P. recalled the name of the movie she watched, stating,
That's — I think that that's an incredible fact for anyone to remember, let alone a child. And why did she remember these details? Well, I think that's pretty obvious. She remembers these details because something traumatic happened to her. And when something traumatic happens, you remember the details around it. You remember these things because that's a night that she's not ever going to forget. She'll probably never forget that she watched that movie
RP at 260. The State continued:
We have a consistent story. She tells — we've heard that she told her mother immediately after, what happened. We heard that she told her father what happened. We heard that she gave probably the most detailed statement besides from what she gave us, to Detective [Oman]. It was very detailed and she — but it was consistent with what she had told other people, and then you heard her get up in court and tell you what had happened.
All of those — everything was consistent.
RP at 260-61.
Throughout its argument, the State also argued that since the incident, C.L.P. had become clingy and had had trouble sleeping through the night. The State also asserted that C.L.P.'s clingy behavior and her sleep problems indicated that she had experienced a traumatic event. It stated,
Now, behavior and demeanor is something that is interesting in kids because kids can't fake that. They can't — if they're going to make up a story and tell you a story, they may think to make it up, but they can't think to think, I should act a certain way afterwards, I should be really clingy to my grandma and not let her out of my sight because people will believe me. That's not the mentality that kids are capable of.
RP at 261.
The State also described C.L.P.'s sudden reluctance to go to the Ihrigs' home, despite having done so without a problem many times before, stating,
Again, even if a kid made up a story, how could you make up the behavior?
They can't do that, they're not sophisticated enough to do that. Nine days later she's making up this behavior. No, she's scared. She hasn't told anyone, but she knows she doesn't want to be around him anymore. She doesn't like that behavior, she didn't like what happened, she doesn't want to go back because she knows they're people that she can't trust.
RP at 263. Additionally, in describing how this normally "animated" and "talkative" child covered her face when talking to her father and to the detective, the State queried why a child would make up a story like this when it would mean that she would no longer be able to see her friends and she would have to talk about it in front of strangers. RP at 263. The State concluded, "There's no reason for her to make up this story." RP at 265.
In discussing Ihrig's testimony that he awoke with his hand on C.L.P.'s "vagina," RP at 265, the State emphasized that Ihrig himself had described this contact as "inappropriate," stating: "He described his behavior several times as inappropriate. Inappropriate doesn't mean accidental. Inappropriate means guilty. Inappropriate implies intent, wrong. If it was just an accident, don't you think there's some things that he would have done and said differently?" RP at 266. The State also pointed out that despite having been aware that C.L.P. was upset, Ihrig never said anything about the accidental touching. The State also suggested that Ihrig had admitted everything that C.L.P. testified to except the penetration and where her underwear was at the time of the touching incident, stating: "So the only issue we have in this case is, the only disagreement we have in this entire case is — all right, he's agreed where his hand is, his hand's in the wrong place, it's where it shouldn't be — the question is, where is the underwear and where is his finger? That's it." RP at 268-69. In addition, the State argued that Ihrig's inability to sleep after the touching incident and his failure to tell anyone about "this mistake," suggested that Ihrig could not sleep because he was thinking about what he did, whether he had woken the child, and whether she was really asleep when it happened. RP at 270.
After the State pointed out that Ihrig's opening statement indicated that he was going to say that it "just didn't happen," but his story changed during his testimony, the State returned to its original theme that Ihrig had violated C.L.P.'s trust, commenting:
The opening statements were not transcribed.
This is a sad case. One time, one-time event, and because of that, a simple case. Two days; right? Not a lot of witnesses, not a lot to talk about, not a lot for me to talk about, but a life-changing event. A nightmare, a kid waking up in the middle of the night looking for something, somewhere to go to trust, somewhere to be safe — shattered forever, forever different.
Now, not being able to sleep, now not wanting to let the people that she really trusts, that she still believes will keep her safe, out of her sight. One time a man, a man that a little girl trusted, took away and shattered that trust. He should have laid there or should have got up, but he should never, ever have touched her. And because he did, I ask that you find him guilty of Rape of a Child in the First Degree.
RP at 270-71.
In response, defense counsel argued,
Now, one of the first things that I talked about in jury selection — and I stressed it over and over and over again — is that this is not an emotional decision that you have to make, okay? But right out of the box, the State's opening words to you in closing arguments are, little girls should be safe.
Rather than talk about the facts, talk about the testimony, talk about the evidence, they wanted to talk about the emotional aspects of it. She should have been safe that night. Well, of course, she should have been safe that night. Of course, little girls should be safe. But it's an attempt to get you to look at this emotionally. And the Judge instructed you and will instruct you again, if necessary, that neither passion nor prejudice should guide your judgment.
You've got to look at this clinically, you've got to look at the testimony and you can't hear a voice in the back of your head driving a train down the track saying, little girls should be safe. That's wrong, that's preying upon your emotions. Please don't do that.
RP at 272. Counsel also pointed out that there was a risk that C.L.P. had made her disclosure to her mother after her mother prompted her, that others who had talked to the child had not testified, and that there was no medical evidence of any molestation. Counsel also noted that Ihrig's wife did not see or hear anything unusual and that C.L.P.'s grandmother's earlier statements to Oman were less "emotional" than the testimony she gave at trial. RP at 278-79. Defense counsel also focused on C.L.P.'s statement to Oman that that Ihrig was mean and that he was in the war and kills children, asking where this concern originated.
At the end of his closing argument, defense counsel stated:
You've got a tough decision to make, I told you that from the beginning. Everybody's coming at you, protect the children, little girls shouldn't be in unsafe situations, she has a right to sleep in a — absolutely, positively, but that's what makes that train go down the track, that emotional argument. Please, please look at this rationally, look at the evidence rationally.
No little girl should be raped, absolutely not, but that didn't happen here. There's reasons for everything that you heard. The questioning of the child was improper, the emotions of the adults got in the way, and the system took over and here we are today. Please, stop the madness on this. I submit to you that the State has not proved its case beyond a reasonable doubt, doubt for which a reason exists.
There's a very sane, simple, logical answer for what happened there that night and it's not a rape, it's not a rape. Was there a touching, an inadvertent touching? I don't know, but there sure as heck was no one to two minutes of digital penetration while she's on his lap with her legs spread apart and her panties off, and the wife an arm's length away. It doesn't make sense, didn't happen, didn't happen. She's a beautiful little girl, she's a happy little girl, she's not showing any signs of any problems. Schools going well, lots of friends.
Find Mr. Ihrig not guilty. Thank you.
RP at 281-82.
In rebuttal argument, the State emphasized the consistencies between C.L.P.'s statements and Ihrig's testimony, noting that the difference was just in the "detail, where his fingers were." RP at 284. It also commented that Ihrig's wife was clearly tired on the night of the incident and may just have slept through it.
C. Jury Question and Verdict
During its deliberations, the jury sent a note to the trial court, stating: "Is 'intent'/sleep/awareness of an act relevant to 1st degree rape. If he (the defendant) was asleep, does that matter?" Clerk's Papers (CP) at 12; RP at 289. After discussing the question with counsel, the trial court responded, "Intent is not an element of the crime of rape of a child in the First degree. The law does require a conscious act." CP at 12. About 40 minutes later, the jury notified the trial court that it had reached a verdict. The jury had found Ihrig guilty of first degree child rape.
Ihrig appeals.
ANALYSIS I. Standards of Review
Through counsel, Ihrig argues that he received ineffective assistance of counsel when defense counsel failed to object to several portions of the State's closing argument that Ihrig asserts amounted to instances of prosecutorial misconduct. Additionally, in his pro se SAG, Ihrig argues that other portions of the State's closing argument amounted to prosecutorial misconduct.
To prevail on a prosecutorial misconduct claim, Ihrig must show that the prosecutor's conduct was both improper and prejudicial. State v. Fisher, 165 Wn.2d 727, 747, 202 P.3d 937 (2009). The prosecution has wide latitude in closing argument to draw reasonable inferences from the evidence and to invite the jury to do the same. State v. Boehning, 127 Wn. App. 511, 519, 111 P.3d 899 (2005) (citing State v. Hoffman, 116 Wn.2d 51, 94-95, 804 P.2d 577 (1991), cert. denied, 516 U.S. 1160 (1996)). A prosecutor may not, however, make statements that are unsupported by the evidence or invite the jury to decide a case based on emotional appeals to their passions and prejudices. In re Det. of Gaff, 90 Wn. App. 834, 841, 954 P.2d 943 (1998); State v. Jones, 71 Wn. App. 798, 808, 863 P.2d 85 (1993), review denied, 124 Wn.2d 1018 (1994); State v. Claflin, 38 Wn. App. 847, 850, 690 P.2d 1186 (1984), review denied, 103 Wn.2d 1014 (1985). We review a prosecutor's alleged improper comments in the context of the total argument, the issues in the case, the evidence addressed in the argument, and the jury instructions. State v. Dhaliwhal, 150 Wn.2d 559, 578, 79 P.3d 432 (2003). "Defense counsel's failure to object to the misconduct at trial constitutes waiver on appeal unless the misconduct is 'so flagrant and ill-intentioned that it evinces an enduring and resulting prejudice' incurable by a jury instruction." Fisher, 165 Wn.2d at 747 (internal quotation marks omitted) (quoting State v. Gregory, 158 Wn.2d 759, 841, 147 P.3d 1201 (2006)).
In order to overcome defense counsel's failure to object to any of the State's closing argument, Ihrig presents some of his prosecutorial misconduct claims as ineffective assistance of counsel claims. To prevail on a claim of ineffective assistance of counsel, Ihrig must show that (1) his trial counsel's performance was deficient and (2) this deficient performance prejudiced him. State v. Thomas, 109 Wn.2d 222, 225, 743 P.2d 816 (1987). Deficient performance occurs when counsel's performance falls below an objective standard of reasonableness. State v. Stenson, 132 Wn.2d 668, 705, 940 P.2d 1239 (1997), cert. denied, 523 U.S. 1008 (1998). Prejudice occurs when there is a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have differed. Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
Because we give great judicial deference to counsel's performance, our analysis begins with a strong presumption that counsel was effective. Strickland, 466 U.S. at 689-90; State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). Furthermore, "'the law must afford the attorney a wide latitude and flexibility in his choice of trial psychology and tactics.'" In re Pers. Restraint of Pirtle, 136 Wn.2d 467, 488, 965 P.2d 593 (1998) (quoting State v. Piche, 71 Wn.2d 583, 590, 430 P.2d 522 (1967), cert. denied, 390 U.S. 912 (1968)). "If defense counsel's trial conduct can be characterized as legitimate trial strategy or tactics, then it cannot serve as a basis for a claim that the defendant did not receive effective assistance of counsel." State v. Mak, 105 Wn.2d 692, 731, 718 P.2d 407, cert. denied, 479 U.S. 995 (1986), overruled in part on other grounds by State v. Hill, 123 Wn.2d 641, 645-46, 870 P.2d 313 (1994).
II. Ineffective Assistance of Counsel Claims
Through counsel, Ihrig argues that defense counsel was ineffective in failing to object to (1) the prosecutor's improper appeal to the jury's emotions in arguing that Ihrig had "violated the rights of little girls to feel safe and to be able to trust adults," Br. of Appellant at 5; (2) the prosecutor's interjecting her personal opinion about the evidence and arguing facts not in the record. We disagree.
Ihrig first argues that the prosecutor's repeated references to Ihrig's having violated a young child's right to feel safe and to trust was an improper appeal to the jury's emotions. Although large portions of the State's argument arguably appealed to a jury's emotions, we agree with the State that the record shows defense counsel had a legitimate, tactical reason for failing to object to this argument.
Defense counsel used the State's apparent emotional appeals to Ihrig's benefit in closing argument by suggesting to the jury that the State was attempting to appeal to the jury's emotions because the evidence did not support a conviction and an emotional appeal was the State's only hope of obtaining a guilty verdict. 2 RP at 272, 281-82. Additionally, although the trial court would probably have given cautionary or curative instructions had Ihrig's counsel requested such instructions, defense counsel directed the jury to the existing jury instructions cautioning the jury against relying on "sympathy [or] prejudice" and then attempted to use this flaw in the State's argument to Ihrig's advantage. CP at 4. Because Ihrig's counsel had a legitimate, tactical reason for failing to object to this argument, Ihrig cannot establish ineffective assistance of counsel on this ground.
In jury instruction 1, the trial court instructed the jury: "You are officers of the Court and must act impartially and with an earnest desire to determine and declare the proper verdict. Throughout your deliberations you will permit neither sympathy nor prejudice to influence your verdict." CP at 4.
Ihrig further argues that his counsel should have objected when the prosecutor commented on how she thought it was "incredible" that C.L.P. had remembered the name of the movie she watched on the night of the incident. Br. of Appellant at 5 (citing RP at 260). He asserts that in stating that she believed this was an "incredible fact for anyone to remember, let alone a child," Br. of Appellant at 5 (citing RP at 260), the prosecutor was improperly stating her personal belief as to C.L.P.'s credibility and that this statement was not supported by any evidence in the record. Although Ihrig is correct that there was no evidence in the record regarding a child's capacity to recall detailed facts in specific circumstances, characterizing this statement as a statement of personal opinion is a stretch. Taken in context, this comment was not an explicit statement of personal opinion about the child's veracity or accuracy and was a reasonable inference from the record. Accordingly, it was not deficient performance for defense counsel to fail to object to this portion of the State's closing argument.
Ihrig next argues that the prosecutor stated her personal opinion and argued facts outside the record when she asserted that "children are incapable of fabricating." Br. of Appellant at 6. He asserts that this statement was "empirically ludicrous" and that the statement was also improper because there was no expert testimony or other evidence regarding the capacity of children to fabricate. Br. of Appellant at 6. Ihrig is apparently referring to the prosecutor's comments regarding how unlikely it was that C.L.P. fabricated the later changes in her behavior to support her claim that Ihrig had inappropriately touched her. Ihrig is correct that there was no evidence presented regarding a young child's capacity to fabricate behaviors that would potentially corroborate a sexual molestation claim. But the prosecutor's argument appears to be more of an overstatement of a reasonable inference from the record and an appeal to the jury's common sense and life experience than a reference to a non-existent evidentiary fact. Furthermore, if defense counsel had objected to this overstatement, there was a risk that it would draw additional attention to this issue that would not have been helpful to Ihrig's case. Accordingly, this failure to object did not amount to ineffective assistance of counsel.
III. Prosecutorial Misconduct Claims
Pro se, Ihrig presents several prosecutorial misconduct arguments. These arguments also fail.
Unlike his appellate counsel, Ihrig does not characterize these arguments as ineffective assistance of counsel claims.
Ihrig first argues that the prosecutor's assertion during closing argument that C.L.P.'s testimony and her statements to others were consistent was not based on the evidence and constituted "vouching" for C.L.P.'s credibility. SAG at 8. He contends that C.L.P.'s refusal to testify at the first pretrial competency hearing, her sometimes inconsistent responses during the second pretrial competency hearing, and the fact her pretrial testimony was sometimes inconsistent with her trial testimony shows that the prosecutor's argument was improper. He also asserts that some of the prosecutor's characterizations of C.L.P.'s testimony were not supported by the record.
In particular, Ihrig focuses on C.L.P.'s testimony on how she was positioned in the bed during the inappropriate contact.
Although the jury was aware that C.L.P. had previously been to court and had not testified at that prior hearing, C.L.P. told the jury that she had been too shy to talk and there were no inconsistencies for the jury to consider. Additionally, the jury did not hear any of the later pretrial testimony and any inconsistencies between that testimony and C.L.P.'s trial testimony were not relevant to the prosecutor's closing argument. Furthermore, although at times C.L.P.'s trial testimony was confusing, the prosecutor's characterizations of her statements were reasonable inferences from the evidence, and C.L.P.'s testimony about the actual sexual contact was sufficiently consistent with the statements she had made to other witnesses to justify the prosecutor's statements about C.L.P.'s testimony's "internal" and "external" consistency. Moreover, defense counsel did not object to any of the statements Ihrig now challenges and, even if we were to assume that the errors Ihrig now claims existed, they were clearly errors that would have been easily cured by proper jury instructions.
Ihrig also appears to argue that the prosecutor's statement about how children cannot fake emotional behaviors to support a fabricated story was not based on the evidence presented at trial. As we discuss above, the prosecutor's argument appears to be more of an overstatement of a reasonable inference from the record and an appeal to the jury's common sense and life experience than a reference to a non-existent evidentiary fact. Furthermore, if Ihrig had objected to this argument, it was something that could have been cured by proper jury instruction.
Ihrig next asserts that the record does not support any claim that C.L.P. was emotionally impacted by the incident. He asserts that C.L.P. appeared "detach[ed]" during her testimony when counsel questioned her about how she felt and reacted after the incident and that the record does not show that C.L.P. had any emotional reaction on the day of the incident. SAG at 21. But the testimony regarding C.L.P.'s behavior at her grandmother's the day of the incident, her later interactions with her parents and investigators, and testimony indicating that she was still having some problems sleeping support the prosecutor's argument and the prosecutor's argument was a reasonable characterization of this testimony.
Ihrig also asserts that the prosecutor had no basis to argue that C.L.P. was unable to sleep after the incident because she had been traumatized by the rape. Again, this was a reasonable inference from the evidence as a whole.
Finally, Ihrig asserts that the prosecutor "manufacture[d] a confession from the defendant" when she mischaracterized his admission that he had inadvertently touched the child. SAG at 25. Although we agree that the portion of the prosecutor's argument in which she characterized Ihrig's references to finding his hand in an inappropriate place was tantamount to him admitting he was "guilty" was arguably inappropriate, this error could have been addressed by a curative instruction.
Ihrig further contends that this part of the prosecutor's argument was particularly harmful in light of the jury's question about whether "'intent/sleep/awareness, of an act" was relevant to the first degree rape charge and the trial court's response to that question. CP at 12. The trial court responded, "Intent is not an element of the crime of rape of a child in the first degree. The law does require a conscious act." CP at 12. Ihrig does not assert that the trial court's response to the jury was an incorrect statement of the law, but he appears to argue that this instruction created a situation in which the prosecutor's alleged misconduct was so prejudicial it could not be cured by a jury instruction. See Fisher, 165 Wn.2d at 747. Again, we disagree. Although the prosecutor's statements may have been inartful, the jury had before it the proper instructions, the trial court had advised the jury that the prosecutor's statements were not the law and that the jury was to follow the law as provided in the instructions, and the trial court's response to the jury question undoubtedly clarified that mere inadvertent touching was not sufficient to prove child rape.
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 pursuant to RCW 2.06.040, it is so ordered.
QUINN-BRINTNALL, J., and PENOYAR, CJ., concur.