Opinion
54074-6-II
11-16-2021
STATE OF WASHINGTON, Respondent, v. PIO AUGUSTINO FAGAAUTAU, Appellant.
UNPUBLISHED OPINION
LEE, C.J.
Pio A. Fagaautau appeals his convictions and sentence for two counts of second degree rape of a child. Fagaautau argues that (1) the State committed prosecutorial misconduct during closing arguments by stating personal opinions and making arguments that ask the jurors to place themselves in the position of the victim, (2) he received ineffective assistance of counsel because his trial counsel did not present testimony or evidence to impeach the victim, (3) the trial court abused its discretion by allowing testimony relating to the victim's prior consistent statements, (4) the trial court abused its discretion in allowing evidence of other bad acts, (5) the trial court erred in giving a Petrich instruction, (6) the trial court erred in denying his motion for a new trial, (7) the cumulative errors deprived him of his right to a fair trial, and (8) the trial court abused its discretion in denying his motion to continue sentencing.
State v. Petrich, 101 Wn.2d 566, 683 P.2d 173 (1984), abrogated on other grounds by State v. Kitchen, 110 Wn.2d 403, 405, 756 P.2d 105 (1988).
We disagree with Fagaautau's arguments and affirm his convictions and sentence.
FACTS
A. Pre-Trial History
The State charged Fagaautau with two counts of second degree rape of a child for an alleged incident in March 2015 involving his cousin, M.A.G. Count I was based on Fagaautau putting his hand on or in M.A.G.'s vagina. Count II was based on Fagaautau with putting his penis in M.A.G.'s vagina. Fagaautau pleaded not guilty.
Because M.A.G. and her friend H.C. were both under 18 at the time of the events and the trial we use their initials to protect their privacy. General Order 2011-1, In re the Use of Initials or Pseudonyms for Child Witnesses in Sex Crime Cases (August 23, 2011).
In June 2019, the trial court held a pretrial hearing to discuss motions in limine. The State moved to admit prior consistent statements to corroborate witness testimony. The State requested that these statements be allowed if defense counsel attacked the credibility of their witnesses or pointed to any inconsistencies between a witness's trial testimony and any prior statements. The trial court granted the motion, with the condition that the State could not offer prior consistent statements unless Fagaautau opened the door
by going down some avenue that would incur, imply or infer some kind of recent fabrication, improper influence or motive, so I will go ahead and grant it to that extent, obviously subject to change, if there is a change and the defense essentially opens the door.1 Verbatim Report of Proceedings (VRP) (June 5, 2019) at 37. Later, the trial court ruled that statements M.A.G. made to her friend, H.C., about the incident would not be admissible unless the defense opened the door by "saying this is some type of recent fabrication or something along those lines." 1 VRP (June 5, 2019) at 53.
The State also moved to admit evidence of Fagaautau's other bad acts. The trial court ruled that the evidence was relevant because it showed lustful disposition towards M.A.G. as well as information regarding whether or not Fagaautau was grooming M.A.G., and any prejudice did not substantially outweigh the probative value of the evidence.
These bad acts include an incident when M.A.G. was nine or ten years old, and Fagaautau entered her bedroom at night, lifted up her shirt, and exposed her chest, as well as an incident that occurred two months after the March 2015 incident where Fagaautau allegedly got in bed with M.A.G., touched her vagina, and attempted to get M.A.G. to touch his penis.
B. Trial
The case was tried to a jury. The State called M.A.G., Sebastina Shantz, H.C., D.G., and Deputy Jennifer Vejar of the Skamania County Sheriff's Office to testify. Fagaautau testified on his own behalf.
D.G. is M.A.G.'s father. He shares a last name with M.A.G. Therefore, we refer to him as D.G. to protect M.A.G.'s privacy.
1. M.A.G.'s Testimony
M.A.G. testified that she was born in August 2002, making her 12 years old when the incident occurred. Fagaautau is her cousin and she has known him since she was a baby. Prior to the incident for which he was charged, he lived with MAG's family. Fagaautau was 20 years old at the time of the incident.
On multiple occasions when M.A.G. was 10 years old, Fagaautau would enter her room while she was sleeping and look under her shirt. She would pretend like she was sleeping the whole time. Fagaautau objected to this testimony, but the trial court overruled the objection.
M.A.G. then testified that, on March 28, 2015, her family went camping at her cousin's house in Carson, Washington. After a family bonfire, everyone went to bed. M.A.G. was lying on the couch when Fagaautau laid next to her. She was lying facing Fagaautau. Fagaautau told M.A.G. she needed to practice her kissing for when she had a boyfriend. He kissed her and started touching her "everywhere." 1 VRP (June 10, 2019) at 117. Fagaautau then put his hands on her breasts and put his fingers in her vagina. After telling her to turn around and bend over, Fagaautau put his penis inside her vagina.
Afterwards, Fagaautau and M.A.G. went to the bathroom. M.A.G. was "confused and shocked and scared," and she "didn't know what to do, other than to just listen to whatever he said." 1 VRP (June 10, 2019) at 124. They returned to the couch and went to sleep.
The next morning they woke up on the couch together. M.A.G. pretended it did not happen because she did not want to worry about it and was not sure exactly what happened.
A week after the incident, M.A.G. told H.C. what happened. M.A.G. did not tell anyone else for a very long time because she was scared and did not want her mother to know that she had lost her virginity. M.A.G. did not tell her parents about the incident until one year before the trial.
A couple of months later, an incident involving Fagaautau occurred at M.A.G.'s mother's house. M.A.G. testified that Fagaautau came to her mother's house to hang out. M.A.G. tried to stay in her room in order to avoid him, but Fagaautau kept messaging her to come to the family room. Later, at bedtime, Fagaautau came in to her room and he "made it pretty clear that he wanted me to sleep on the bottom bunk with him." 1 VRP (June 10, 2019) at 131.
M.A.G. testified that Fagaautau "did the same thing." 1 VRP (June 10, 2019) at 131. He told her that she needed practice kissing and began touching her vagina both over and under her underwear. This time, M.A.G. told him it was wrong because "he was [her] cousin." Fagaautau pulled his pants down and tried to get her to touch his penis. Eventually, he left after she kept telling him no.
M.A.G. testified, "I would just try to avoid him." 1 VRP (June 10, 2019) at 134. But she would see him "[o]nly once in a while when [they] hung out with the whole family." 1 VRP (June 10, 2019) at 134. Specifically, she remembered that she saw Fagaautau on another camping trip.
During cross-examination, defense counsel questioned M.A.G. about the date of the incident. M.A.G. stated that she wasn't sure of the exact date because it was so long ago, but that it occurred during her spring break. Defense counsel also questioned M.A.G. about a discrepancy between her statement to a detective and her testimony because her statement to the detective does not talk about Fagaautau touching her breasts.
With regard to the incident that occurred at MAG's mother's house, defense counsel questioned M.A.G. about her little brothers sleeping on the top bunk. Specifically, defense counsel asked M.A.G. whether her little brothers had issues wetting the bed. Further, defense counsel questioned M.A.G. about her Quinceanera. She said that Fagaautau attended her Quinceanera because her "mom wanted him to." 1 VRP (June 10, 2019) at 146. Defense counsel then asked M.A.G. if she had ever gone over to Fagaautau's house after the incident. She responded, "Yes." VRP (June 10, 2019) 147.
2. Shantz's Testimony
Shantz, M.A.G.'s mother and Fagaautau's cousin, confirmed that Fagaautau lived with her family when M.A.G. was 10 years old. She said she saw some interactions between the two that alarmed her, but she never reported anything.
Shantz and M.A.G. were at their cousin's house on March 28, 2015. She stated that M.A.G. slept on the couch. When she woke up the next morning, she saw that M.A.G. was next to Fagaautau on the couch. She felt this was weird "because there was [sic] two couches and I thought he was gonna sleep on the other couch." 1 VRP (June 10, 2019) at 157.
Shantz confirmed that Fagaautau came to their home after the incident and that this was not unusual. She also stated that she insisted that M.A.G. invite Fagaautau to her Quinceanera because he was family.
Shantz testified that M.A.G. behaved differently after the incident. M.A.G. was "just like not herself, very down, she started cutting herself." 1 VRP (June 10, 2019) at 159. Before the incident, M.A.G. was very happy and that they always had fun.
Shantz remembered talking to M.A.G. about the incident. Shantz said that when M.A.G. told her about the incident, she seemed very sad. M.A.G. started crying and shaking.
On cross-examination, defense counsel asked if her sons had issues wetting the bed. Shantz responded yes.
3. Other Witness Testimony
H.C., M.A.G.'s friend, testified that M.A.G. reported an incident to her within a week of it happening. She stated that M.A.G. was acting upset; M.A.G. was crying and clearly not happy.
D.G., M.A.G.'s father, confirmed that Fagaautau had lived with his family for a while. He also stated it was common for Fagaautau to stop by M.A.G.'s mother's home after he and Shantz divorced.
D.G. testified that before the incident, M.A.G. was an "[o]verall happy, . . . normal, great kid." 1 VRP (June 10, 2019) at 185. After the incident, M.A.G. had behavioral challenges: issue with depression, self-harm, and overall sadness. When M.A.G. told him about the incident, she was "sad and scared and apologetic." 1 VRP (June 10, 2019) at 186.
Deputy Vejar testified that she interviewed M.A.G. about the incident involving Fagaautau. She stated that M.A.G. was nervous and began crying during the interview.
4. Fagaautau's Testimony
Fagaautau testified that he knew M.A.G. all her life and lived with M.A.G.'s parents when she was 10 years old. He denied ever going into her room and looking under her shirt while he was living there.
Fagaautau stated that he spent the night of the alleged incident at his sister's house, not at M.A.G.'s cousin's house with everyone else, and that his sister dropped him off the following morning at his cousin's home. After his sister dropped him off at his cousin's house, he laid on the couch. Then, M.A.G. came in and laid down next to him. Fagaautau denied having sexual intercourse with M.A.G. on the couch. He also denied kissing her, touching her breasts, touching her vagina, or putting his penis in her vagina.
After the alleged incident, Fagaautau said he would go over to M.A.G.'s house and that M.A.G. would be there. M.A.G.'s brothers peed the bed so it was unlikely that he would sleep on the bottom bunk with the brothers on the top bunk. He denied touching M.A.G. in a sexual or inappropriate way. Fagaautau confirmed that he attended M.A.G.'s Quinceanera.
Fagaautau was somewhat close to M.A.G. and was like a big brother to her. M.A.G. told him that she was depressed before the time of the alleged incident.
C. Jury Instructions
When the trial court reviewed the proposed jury instructions with the parties, the trial court stated that a Petrich instruction would be given as jury instruction number 13. Fagaautau objected. The trial court overruled the objection.
The trial court instructed the jury in Instruction Number 13 as follows:
The State alleges that the defendant committed acts of Rape of a Child in the Second Degree on multiple occasions. To convict the defendant on any count of Rape of a Child in the Second Degree, one particular act of Rape of a Child in the Second Degree as to that count, must be proved beyond a reasonable doubt, and you must unanimously agree as to which act has been proved. You need not unanimously agree that the defendant committed all the acts of Rape of a Child in the Second Degree.Clerk's Papers (CP) at 113.
D. Closing Arguments and Verdicts
The trial proceeded to closing arguments. During closing arguments, the State focused on M.A.G.'s testimony. The State argued that it wanted the jury to consider the fact that "the victim's experience is the best evidence you heard today." 1 VRP (June 11, 2019) at 241. The State continued, "I want you to think about why would she fabricate this, what does she gain by potentially making this up?" 1 VRP (June 11, 2019) at 241. The State then argued:
I would argue that her experience, the details she provided, the emotions she showed to friends and family and on the stand, those all lend to her credibility. That emotion that she provides, she's either the best child actress we've all ever seen or this happened to her.1 VRP (June 11, 2019) at 241. The State asked the jury to "keep all those things in mind when you consider her testimony, when you consider these minor inconsistencies that [Fagaautau's counsel] pointed to." 1 VRP (June 11, 2019) at 242. In discussing the minor inconsistencies, the State argued:
When you're being raped by your 20 year old cousin, you may not remember exactly every place his hands touched. You will remember the most emotional parts, the most traumatic parts.1 VRP (June 11, 2019) at 243. Defense counsel did not object to this argument.
During rebuttal, the State said, "I'd ask you to divorce yourself from the emotion of that decision. Your job is to write on that piece of paper, guilty or not guilty." 1 VRP (June 11, 2019) at 264. The State then argued:
I want you to consider her story one more time. She's a child who grows up with her cousin. At ten years old, the defendant sneaks into her room, she's frozen, she's afraid and doesn't know what to do, so just like a child who just saw a horror movie, she pretends to be asleep. You can picture kids who put the covers over their face, hoping the monster won't get them.1 VRP (June 11, 2019) at 264-65. Defense counsel did not object to this argument.
The jury was then sent to deliberate. During deliberations, the jury asked, "Which count refers as [sic] the hand and which count refers as [sic] penis?" 1 VRP (June 11, 2019) at 271. The trial court responded, "You will need to rely on your memories and/or notes as to the evidence and arguments of counsel." 1 VRP (June 11, 2019) at 273.
The jury found Fagaautau guilty on both counts of second degree rape of a child. The trial court set sentencing for July 11, 2019.
E. Sentencing
Before the July 11 sentencing date, Fagaautau retained new counsel and an expert to prepare an evaluation report for sentencing and requested a 6-week continuance at the July 11 sentencing hearing. The trial court granted the additional time, but stated, "We do have a victim in this matter that needs to have some closure with regards to this case." 1 VRP (July 11, 2019) at 287-88. The trial court set a new sentencing date for August 15, 2019.
At the August 15 sentencing hearing, Fagaautau moved for a new trial. Fagaautau argued that he received ineffective assistance of counsel, that the trial court erred in allowing a Petrich instruction, and that the trial court erred in allowing three witnesses to testify regarding prior statements made by M.A.G.
Fagaautau made other claims in his motion for a new trial, but only argues the above three issues in his appeal.
Fagaautau presented declarations from Kera Monroe, Luciana Lange, and Sebastiana Fagaautau. Each declared that they were available to testify, but Fagaautau's defense counsel did not call them as witnesses.
Monroe, a friend of Fagaautau, declared that she would have testified that photographs existed of Fagaautau and M.A.G. embracing during family gatherings. Monroe also declared that M.A.G. sought out Fagaautau's company on a number of occasions. Specifically, M.A.G. invited herself on a trip to the lake that Fagaautau and Monroe had planned on taking with M.A.G.'s brothers and cousin. Monroe also declared that M.A.G. accepted an invitation to spend the night at Fagaautau's house with her brothers.
Monroe also declared that Fagaautau disclosed that M.A.G. told him she was seeing a 19-year-old boy. Fagaautau said he told M.A.G. that he was going to tell her mom and dad. This happened shortly before M.A.G. went to the police about the March 2015 incident.
Lange, Fagaautau's sister, declared she would have testified that she never saw any inappropriate behavior between Fagaautau and M.A.G. Regarding the night of the incident, Lange declared she would have testified that she did not "believe [Fagaautau] ever spent the night at [her] home." CP at 258. After the incident, Lange declared that M.A.G. never acted afraid or avoided Fagaautau. She also declared that M.A.G.'s parents' testimony that M.A.G. was happy and untroubled before the incident was false.
Sebastiana, also Fagaautau's sister, declared that she would have testified that M.A.G.'s testimony that she spent two nights at Lange's home and that the incident occurred on the second night was false because M.A.G. never spent more than one night at Lange's house and Fagaautau never spent the night at Lange's home. Sebastiana also declared that she would have testified regarding M.A.G.'s behavior after the incident. Sebastiana declared that M.A.G. always "engaged happily with [Fagaautua] and spent time taking photos with him" after the incident. CP at 261. Sebastiana further declared that photographs existed that showed M.A.G. had contact with Fagaautau after the incident.
We refer to Sebastiana by her first name to avoid confusion because she shares the same last name with defendant Fagaautau. We mean no disrespect.
The trial court denied the motion. In denying Fagaautau's claim of ineffective assistance of counsel, the trial court stated that "the court is hamstrung with regards to being able to determine [the first prong] since [defense counsel] was not providing a reason for the decisions not to call any witnesses." 1 VRP (August 15, 2019) at 322. Further, the trial court stated that "there may have been grounds for the reasons not to call those witnesses." 1 VRP (August 15, 2019) at 322. Ultimately, the trial court found that Fagaautau did not receive ineffective assistance of counsel because Fagaautau was not prejudiced by any potentially deficient performance.
At that same hearing, Fagaautau also asked for a continuance of the sentencing date because he was not able to obtain the expert report in time. According to Fagaautau, the expert was only allowed a restricted visit at the jail, and therefore, was only able to do a limited evaluation through the glass. Fagaautau stated he would need a couple more weeks to get the evaluation. The trial court granted the request for a continuance but stated, "That'd be the last time this matter will be allowed to continue." 1 VRP (August 15, 2019) at 331. The trial court continued the sentencing date for a third time to September 12.
At the September 12 sentencing hearing, Fagaautau appeared with new counsel. Fagaautau's new counsel said that he was not prepared to move forward with sentencing. When the trial court said they would go forward with the hearing despite the request, counsel withdrew his representation. As a result, the trial court set sentencing over a fourth time to September 26. The trial court remarked that, "these attempts to go ahead and continue these cases at the last moment, is just a gamesmanship here, with regards to this matter." 1 VRP (September 12, 2019) at 340.
On September 26, Fagaautau appeared with counsel and stated that he was ready to proceed with sentencing. Fagaautau did not present an expert report, but he argued that his age should be a mitigating factor. The trial court found that the two counts of second degree rape of a child were the same criminal conduct for the purposes calculating Fagaautau's offender score. As a result, the trial court sentenced Fagaautau to 102 months of confinement and imposed 36 months of community custody.
Fagaautau appeals his convictions and sentence.
ANALYSIS
A. Prosecutorial Misconduct
Fagaautau argues that the prosecutor engaged in misconduct during closing arguments by offering a personal opinion regarding the witnesses' credibility of the witnesses and by improperly inviting the jurors to place themselves in the position of the victim.
To prevail on a claim of prosecutorial misconduct, the defendant must show that the prosecutor's conduct was improper and prejudicial. State v. Emery, 174 Wn.2d 741, 756, 278 P.3d 653 (2012). When the defendant fails to object to a prosecutor's improper conduct, the error is waived unless "the prosecutor's misconduct was so flagrant and ill intentioned that an instruction could not have cured the resulting prejudice." Id. at 760-61. The defendant must show that "(1) 'no curative instruction would have obviated any prejudicial effect on the jury' and (2) the misconduct resulted in prejudice that 'had a substantial likelihood of affecting the jury verdict.'" Id. at 761 (quoting State v. Thorgerson, 172 Wn.2d 438, 455, 258 P.3d 43 (2011)). "Reviewing courts should focus less on whether the prosecutor's misconduct was flagrant or ill intentioned and more on whether the resulting prejudice could have been cured." Id. at 762.
1. Prosecutor's Personal Opinion Regarding Credibility
Fagaautau argues that the prosecutor's conduct was improper because they offered their personal opinion regarding the credibility of M.A.G. and Fagaautau. We disagree.
It is improper for a prosecutor "to express a personal opinion as to the credibility of a witness or the guilt of a defendant." State v. Lindsay, 180 Wn.2d 423, 437, 326 P.3d 125 (2014). It must be clear and unmistakable that the prosecutor is expressing a personal opinion. State v. McKenzie, 157 Wn.2d 44, 54, 134 P.3d 221 (2006); see also Lindsay, 180 Wn.2d at 438 (holding the statement "the most ridiculous thing I've ever heard" and, in particular, the phrase "I've ever heard" was an obvious expression of personal opinion as to credibility). A prosecutor may argue the defendant is lying when the defendant's testimony contradicts other evidence. State v. McKenzie, 157 Wn.2d 44, 59, 134 P.3d 221 (2006). In addition, a prosecutor may present reasons why a jury should believe one witness over another. State v. Copeland, 130 Wn.2d 244, 290, 922 P.2d 1304 (1996). Further, a prosecutor enjoys wide latitude when making a closing argument. State v. Fisher, 165 Wn.2d 727, 747, 202 P.3d 937 (2009).
Fagaautau compares his case to Lindsay, arguing that the outcome should be similar because the language used in closing in Lindsay is similar to the language used in this case. In Lindsay, the prosecutor referred to the defendant's testimony as funny, disgusting, comical, and "the most ridiculous thing I've ever heard." 180 Wn.2d at 438. The prosecutor also referred to the defendant's theory of the case as a "crock." Id. The court found that the statement "the most ridiculous thing I've ever heard" and, in particular, the phrase "I've ever heard" was an obvious expression of personal opinion as to credibility and that there was no other way for the jury to interpret the language. Id.
Here, contrary to Fagaautau's argument, the prosecutor's language is distinguishable from that used in Lindsay. The prosecutor in this case did not call the defendant names, comment on the defendant's testimony, or offer a clear and unmistakable expression of personal opinion. While the prosecutor in Lindsay improperly used the phrase "I've ever heard," the prosecutor here used general statements such as "the victim's experience is the best evidence you heard today," and "she's either the best child actress we've all ever seen or this happened to her." 1 VRP (June 11, 2019) at 241. And the prosecutor properly argued that under the circumstances and given the content of the testimony, M.A.G.'s testimony was credible and had only minor inconsistencies.
Further, as Fagaautau admits, the prosecutor's case relied on M.A.G.'s credibility. Therefore, it was reasonable for the prosecutor to argue the credibility of the victim versus the defendant. Also, the prosecutor merely presented reasons why the jury should believe one witness over another, which it was entitled to do. Copeland, 130 Wn.2d at 290. The prosecutor enjoys wide latitude in arguing from the evidence during closing arguments. That is what the State did here.
We hold that the prosecutor did not present personal opinions during closing arguments. Therefore, Fagaautau's prosecutorial misconduct claims on this basis fails.
2. Inviting The Jurors To Place Themselves In The Position Of The Victim
Fagaautau argues that the prosecutor improperly invited the jurors to place themselves in the position of the victim during closing statements. We disagree.
Generally, arguments inviting the jurors to put themselves in the position of the victim are improper. Adkins v. Aluminum Co. of Am., 110 Wn.2d 128, 139, 750 P.2d 1257 (1988). However, a prosecutor is allowed to use the rhetorical "you" in a situation where they are not asking the jury to put themselves in the victim's shoes. State v. Thach, 126 Wn.App. 297, 317, 106 P.3d 782 (2005), overruled on other grounds by State v. Case, 13 Wn.App. 2d 657, 678, 466 P.3d 799 (2020).
During closing arguments, the prosecutor discussed the credibility of M.A.G.'s statements. In acknowledging the minor inconsistencies in her testimony, the prosecutor argued:
When you're being raped by your 20-year-old cousin, you may not remember exactly every place his hands touched. You will remember the most emotional parts, the most traumatic parts.1 VRP (June 11, 2019) at 243.
Here, the prosecutor did not ask the jury to put themselves in M.A.G.'s position. Instead, the prosecutor used the rhetorical version of the word "you" to explain why there may be inconsistencies in M.A.G.'s story, not to invoke sympathy from the jury. See Thach, 126 Wn.App. at 317 (holding rhetorical use of the word "you" "did not ask the jury to put itself in the position of the victim"). Therefore, the prosecutor did not ask the jury to put themselves in the position of the victim and its argument was not improper.
The prosecutor then argued during rebuttal:
I want you to consider her story one more time. She's a child who grows up with her cousin. At ten years old, the defendant sneaks into her room, she's frozen, she's afraid and doesn't know what to do, so just like a child who just saw a horror movie, she pretends to be asleep. You can picture kids who put the covers over their face, hoping the monsters won't get them.1 VRP (June 11, 2019) at 264-65. Again, the prosecutor did not ask the jury to put themselves in M.A.G.'s position by saying "You can picture kids." 1 VRP (June 11, 2019) at 265. This language specifically asks the jury to picture kids, not themselves. Therefore, the prosecutor's arguments on rebuttal were not improper, and Fagaautau's prosecutorial misconduct claim on this basis fails.
B. Ineffective Assistance of Counsel
Fagaautau argues that he was denied his constitutional right to effective counsel because defense counsel refused to impeach M.A.G. with available evidence despite his urging. We disagree.
The right to effective assistance of counsel is guaranteed by the Sixth Amendment of the U.S. Constitution and Article I, Section 22 of the Washington Constitution. State v. Grier, 171 Wn.2d 17, 32, 246 P.3d 1260 (2011), cert. denied, 574 U.S. 860 (2014). We review claims of ineffective assistance of counsel de novo. State v. Vasquez, No. 98928-1, slip op. at 8 (Wash. Sept. 9, 2021), http://www.courts.wa.gov/opinions/pdf/989281.pdf. To establish ineffective assistance of counsel, a defendant must show that their attorney's performance was both deficient and prejudicial. Grier, 171 Wn.2d at 32-33. An ineffective assistance of counsel claim fails if the defendant fails to establish either deficient performance or prejudice. Id. at 33.
1. Deficient Performance
Fagaautau argues that defense counsel's performance was deficient because he failed to present evidence through cross-examination and other witnesses to impeach the testimony of M.A.G. We hold that Fagaautau has not shown deficient performance.
The State argues that an evidentiary hearing is necessary to properly evaluate whether Fagaautau's trial counsel was ineffective. We disagree because the record is sufficient to address the issue.
Performance is deficient if counsel's representation falls below an objective standard of reasonableness based on consideration of all the circumstances. Grier, 171 Wn.2d at 33. There is a strong presumption that counsel's representation was effective. State v. Kyllo, 166 Wn.2d 856, 862, 215 P.3d 177 (2009). To overcome this presumption, the defendant must show that there was no legitimate strategic or tactical rationale for the counsel's conduct. Grier, 171 Wn.2d at 33.
On appeal, Fagaautau argues that defense counsel's performance was deficient because he did not call Monroe, Lange, and Sebastiana to impeach M.A.G. and to show that M.A.G. had a motive to falsify her claim. Fagaautau contends that "[t]here was no conceivable reasonable tactical reason for failing to impeach [M.A.G.] on this point given the importance of her credibility." Br. of Appellant at 36.
Whether trial counsel decides to call a witness generally "is a matter of legitimate trial tactics and will not support a claim of ineffective assistance of counsel." State v. Maurice, 79 Wn.App. 544, 552, 903 P.2d 514 (1995). The trial court recognized this when it stated that "there may have been grounds for the reasons not to call the witnesses." 1 VRP (August 15, 2019) at 322. In its pretrial ruling, the trial court specifically stated that the State may not admit prior consistent statements to corroborate the witness's testimony unless Fagaautau opened the door "by going down some avenue that would incur, imply or infer some kind of recent fabrication, improper influence or motive." 1 VRP (June 5, 2019) at 37. Therefore, defense counsel may have decided, after considering all the potential evidence, that presenting testimony that would have established a motive for M.A.G. to fabricate the incident was not in Fagaautau's best interest, which is a conceivable reasonable tactical reason for not impeaching M.A.G. Therefore, Fagaautau has failed to overcome the strong presumption that counsel's representation was effective.
2. Prejudice
Moreover, Fagaautau has failed to show any prejudice resulting from any deficient performance by counsel. Deficient performance is prejudicial if there is a reasonable probability that the result of the trial would have been different but for the counsel's errors. Kyllo, 166 Wn.2d at 862. This standard requires that the defendant "affirmatively prove prejudice, not simply show that 'the errors had some conceivable effect on the outcome.'" State v. Crawford, 159 Wn.2d 86, 99, 147 P.3d 1288 (2006) (quoting Strickland v. Washington, 466 U.S. 668, 693, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)).
Second degree rape of a child requires a showing that the person had sexual intercourse with another who is at least 12 years old but less than 14 years old and not married to the perpetrator and the perpetrator is at least 36 months older than the victim. Former RCW 9A.44.076 (1) (1990).
"A witness cannot be impeached on an issue collateral to the issues being tried." State v. Fankhouser, 133 Wn.App. 689, 693, 138 P.3d 140 (2006). "[A] witness may be impeached on only those facts directly admissible as relevant to the trial issue." Id. Relevant evidence is any evidence that makes a fact that is of consequence to the determination of the action more or less probable. ER 401.
The evidence that Fagaautau claims defense counsel should have presented involved collateral issues. Fagaautau argues that M.A.G.'s statement that she avoided Fagaautau after the alleged rape was false and could be proved by testimony from Fagaautau's mother, Lange, and Monroe, as well photographs of M.A.G. and Fagaautau together. However, a conviction of second degree rape of a child does not require a showing that the victim avoided, or attempted to avoid, the perpetrator after the incident.
Fagaautau further argues that defense counsel could have countered M.A.G.'s parents' statements that she became unhappy for the first time after the March 2015 incident. Again, second degree rape of a child does not require a showing that the victim was "unhappy" after the incident. Therefore, Fagaautau fails to show that the impeachment evidence would have been allowed if defense counsel had proffered it. We hold that Fagaautau has failed to show any prejudice resulting from the alleged deficient performance because he has not shown that there is a reasonable probability that the result of the trial would have been different but for the counsel's errors.
C. Prior Consistent Statements
Fagaautau argues that the trial court abused its discretion in allowing H.C., D.G., and Shantz to testify about M.A.G.'s prior consistent statements. We disagree.
We review a trial court's decision to admit evidence for an abuse of discretion. State v. McWilliams, 177 Wn.App. 139, 147, 311 P.3d 584 (2013), review denied, 179 Wn.2d 1020 (2014). A trial court abuses its discretion if "no reasonable person would have decided the matter as the trial court did." Id.
Prior consistent statements are not admissible to merely reinforce or bolster testimony. State v. Purdom, 106 Wn.2d 745, 750, 725 P.2d 622 (1986). "Repetition generally is not a valid test of veracity." Id. But an exception exists for sex offense cases. State v. Chenoweth, 188 Wn.App. 521, 532, 354 P.3d 13, review denied, 184 Wn.2d 1023 (2015). The fact of complaint exception "allows the prosecution in sex offense cases to present evidence that the victim complained to someone after the assault," but only to establish that a complaint was timely made. Chenoweth, 188 Wn.App. at 532. The prosecution may not present "evidence of the details of the complaint, including the identity of the offender and the nature of the act." State v. Ferguson, 100 Wn.2d 131, 136, 667 P.2d 68 (1983).
The prosecution may also present fact of complaint evidence to show how allegations came to the attention of law enforcement. Chenoweth, 188 Wn.App. at 533. This type of testimony is properly admissible not for the truth of the allegations, but to show what the witnesses did next and to provide a basis for their testimony. Id. at 534.
1. H.C.'s Testimony
H.C. testified that M.A.G. reported an incident to her within a week of it happening. She stated that M.A.G. was acting upset: she was crying and clearly not happy. This testimony falls within the fact of complaint exception because it establishes a timely complaint occurred. See id. at 532 (allowing evidence that will establish the complaint was timely made).
Fagaautau argues that the testimony from H.C. that M.A.G. confided in her about an incident, that M.A.G. was clearly upset when she told H.C. about the incident, and that H.C. told M.A.G. to tell her family was too much detail and exceeded what is permitted under the fact of complaint doctrine. But this information does not exceed the fact of complaint exception because it does not reveal any details about the actual incident. See Ferguson, 100 Wn.2d at 136 ("Excluded is evidence of the details of the complaint, including the identity of the offender and the nature of the act."). Therefore, the trial court did not abuse its discretion in allowing the testimony from Cargile.
2. M.A.G.'s Parents' Testimony
Shantz and D.G. testified that M.A.G. told them about the March 2015 incident. Unlike H.C.'s testimony, this testimony does not fall under the fact of the complaint exception because M.A.G. told her parents nearly three years after the incident. Chenoweth, 188 Wn.App. at 533 (holding the rule applies only to evidence that will establish that a complaint was timely made, and disclosures made nearly a year later cannot be considered timely).
The State argues that the testimony "was simply innocuous testimony explaining how the case developed." Br. of Resp't at 34. We agree.
Shantz stated that she remembered talking to M.A.G. "about what happened in Carson" the previous summer. 1 VRP (June 10, 2019) at 160. D.G. gave similar testimony, stating he found out about the incident at the same time as Shantz. D.G. also stated that he went to Shantz's home after hearing about the incident and they "planned what to do from there." 1 VRP (June 10, 2019) 186. Neither Shantz and D.G. provided any details about the incident, Fagaautau was not identified as the perpetrator, and the nature of the acts was not disclosed. Thus, the testimony is innocuous because it only shows when and how M.A.G.'s parents learned of the incident and merely provided context for the jury. The trial court did not abuse its discretion in allowing the testimony from Shantz and D.G.
D. Evidence of Other Bad Acts
We review a trial court's decision to admit evidence for an abuse of discretion. McWilliams, 177 Wn.App. at 147. A trial court abuses its discretion if no reasonable person would have decided the matter as the trial court did. Id.
1. ER 404(b)
Fagaautau argues that the trial court abused its discretion in allowing the State to present evidence of alleged other bad acts committed by Fagaautau against M.A.G. both before and after the incident. We disagree.
Other acts of a person are excluded from evidence if offered "to prove the character of a person in order to show action in conformity therewith." ER 404(b). But other acts may be admissible for other purposes. ER 404(b). "[E]vidence of collateral sexual misconduct may be admitted under ER 404(b) when it shows the defendant's lustful disposition directed toward the offended female." State v. Ray, 116 Wn.2d 531, 547, 806 P.2d 1220 (1991). Such evidence makes it more probable that the defendant committed the offense charged. Id.
The trial court has discretion to determine the limits of how old evidence must be to be admissible, and incidents alleged from 10 years prior have been considered admissible. Id. at 547-48. Further, incidents that occur after the charged offense also may be admissible. See Ferguson, 100 Wn.2d at 134 ("'The kind of conduct receivable to prove this desire at such prior or subsequent time is whatever would naturally be interpretable as the expression of sexual desire.'" (alterations in original) (quoting State v. Thorne, 43 Wn.2d 47, 60-61, 260 P.2d 331 (1953))). "'The important thing is whether it can be said that it evidences a sexual desire for the particular female.'" Ferguson, 100 Wn.2d at 134 (quoting Thorne, 43 Wn.2d at 60-61).
Here, M.A.G. testified as to incidents between her and Fagaautau that occurred when she was 10 years old and he was living with her family. Specifically, M.A.G. stated that on multiple occasions Fagaautau would enter her room while she was sleeping and look under her shirt when she was 10.
M.A.G. also testified that Fagaautau came into her room and told her that she needed to practice kissing and began touching her vagina both over and under her underwear. This time M.A.G. told him it was wrong because "he was [her] cousin." 1 VRP (June 10, 2019) at 131. Fagaautau pulled his pants down and tried to get her to touch his penis. Eventually Fagaautau left after M.A.G. kept telling him no.
This testimony is admissible as evidence of lustful disposition because the incidents are directly connected to M.A.G. and show that Fagaautau was drawn to M.A.G. before and after the charged incident occurred. See Ray, 116 Wn.2d at 547. Therefore, the trial court did not abuse its discretion in admitting this testimony.
2. ER 403
Fagaautau next argues that "the prior acts testimony greatly exceeded the quantum of evidence necessary to provide proof of lustful disposition." Br. of Appellant at 42. We disagree.
The balancing of the probative versus the prejudicial value of evidence is left to the discretion of the trial court. State v. Gunderson, 181 Wn.2d 916, 922-23, 337 P.3d 1090 (2014). "[E]vidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." ER 403.
The purpose of allowing evidence of lustful disposition is to show that it is more probable that the offense charged was committed. Thorne, 43 Wn.2d at 61. This is especially important here where there was no physical evidence and the jury had to rely only on the testimony of witnesses.
Here, the trial court found, "[T]he court cannot find that the prejudicial effect is substantially outweighed by the probative value in this case." 1 VRP (June 5, 2019) at 46-47. The trial court stated that the evidence of other bad acts was relevant because it showed lustful disposition towards M.A.G. as well as information regarding whether or not he was grooming M.A.G. With regard to the prejudicial effect, the trail court stated, "[T]here's always going to be prejudicial effect with any evidence as presented." 1 VRP (June 5, 2019) at 46.
Fagaautau argues that the depth in which M.A.G. described his other bad acts was unfairly prejudicial. But M.A.G. did not describe in depth the incidents that occurred before Fagaautau's alleged rape. M.A.G. only stated, "I remember him coming upstairs and lifting up my shirt and I would just pretend like I was sleeping the whole time." 1 VRP (June 10, 2019) at 107. This evidence had probative value because it showed evidence of lustful disposition, which makes it more probable that Fagaautau committed the alleged rape. Further, there was only enough information to show that Fagaautau was engaging in an act that was sexual in nature. Therefore, the trial court did not abuse its discretion in determining the prejudicial effect of the testimony did not substantially outweigh its probative value.
M.A.G. went into more detail regarding the incident that occurred after the alleged rape. But she testified in only enough detail to show that Fagaautau attempted to have sexual intercourse with her. On the other hand, this evidence was highly probative because it showed Fagaautau's lustful disposition for M.A.G. Therefore, the trial court did not abuse its discretion in determining the prejudicial effect of the testimony did not substantially outweigh its probative value.
Fagaautau also argues that the number of incidents described by M.A.G. was unduly prejudicial. M.A.G. testified that Fagaautau lifted up her shirt "[j]ust a few times" and attempted to have sexual intercourse with her once. 1 VRP (June 10, 2019) at 108. While this evidence is prejudicial, it is probative because it again shows that Fagaautau had lustful disposition both before and after the alleged incident. The trial court did not abuse its discretion in determining that the prejudicial effect of the testimony did not substantially outweigh its probative value.
E. Petrich Instruction
Fagaautau argues that the trial court erred in giving a Petrich instruction because it caused the jurors confusion and consequentially may have resulted in a non-unanimous verdict. We disagree.
The standard of review applied depends on whether the decision to include a jury instruction was based on a matter of law or a matter of fact. State v. Walker, 136 Wn.2d 767, 771, 966 P.2d 883 (1998). We review alleged errors of law in jury instructions de novo. Id. at 772. A trial court's factual decisions are reviewed for an abuse of discretion. Id. at 771-72. Here, Fagaautau's argument that the trial court erred in giving a Petrich instruction involves a matter of law.
"'Jury instructions are proper when they permit the parties to argue their theories of the case, do not mislead the jury and, properly inform the jury of the applicable law.'" State v. Hayward, 152 Wn.App. 632, 641, 217 P.3d 354 (2009) (quoting State v. Barnes, 153 Wn.2d 378, 382, 103 P.3d 1219 (2005)). An erroneous instruction is a reversible error if it prejudices a party. State v. Torres, 151 Wn.App. 378, 384, 212 P.3d 573 (2009), review denied, 167 Wn.2d 1019 (2010).
A Petrich instruction must be given when "'evidence indicates that several distinct criminal acts have been committed, but the defendant is charged with only one count of criminal conduct.'" State v. Carson, 184 Wn.2d 207, 217, 357 P.3d 1064 (2015) (quoting Petrich, 101 Wn.2d at 572. If this occurs, the jury must be instructed that they must all agree that the same underlying criminal act has been proved. Id.
In Carson, the defendant claimed ineffective assistance of counsel because their attorney objected to the inclusion of a Petrich instruction. Id. at 216. The defendant was charged with three separate counts of child molestation and the jury was given a Petrich instruction. Id. at 218-19. The court held that, though the Petrich instruction was an accurate statement of law, "an accurate statement of law can be confusing when it is applied to circumstances different from those that existed when the statement of law was first made." Id. at 219. The Petrich instruction was created for single-count cases and is "confusing when read in a multicount case." Id.
However, this confusion may be avoided if the State elects which act is associated with each count charged. See State v. Noltie, 116 Wn.2d 831, 842-43, 809 P.2d 190 (1991) (to preserve unanimity in a multicount case, the State must either elect the acts on which it will rely for conviction or receive an effective unanimity instruction); see also Carson, 184 Wn.2d at 227 (a multiple acts unanimity instruction is required "only when the State fails to 'elect the act upon which it will rely for conviction.'" (quoting Petrich, 101 Wn.2d at 572)).
Here, Fagaautau was charged with two separate counts of second degree rape of a child. At the conclusion of trial, the trial court gave the jury a Petrich instruction, stating:
The State alleges that the defendant committed acts of Rape of a Child in the Second Degree on multiple occasions. To convict the defendant on any count of Rape of a Child in the Second Degree, one particular act of Rape of a Child in the Second Degree as to that count, must be proved beyond a reasonable doubt, and you must unanimously agree as to which act has been proved. You need not unanimously agree that the defendant committed all acts of Rape of a Child in the Second Degree.CP at 113.
During closing arguments the State stated:
[T]he state has charged two counts. Count one, is for the defendant putting his hand on and in her vagina. Count two, is for when she changed positions, he had her bend over and he put his penis in her vagina. That's why there's two counts here.1 VRP (June 11, 2019) at 246. Any confusion that the Petrich instruction may have created was avoided when the State expressly stated which act was associated with which count charged. See Noltie, 116 Wn.2d at 842-43.
Fagaautau also argues that the jury was prejudiced because the jury asked during deliberations, "Which count refers as [sic] the hand and which count refers as [sic] penis?" 1 VRP (June 11, 2019) at 271.
The jury's question does not show confusion regarding the unanimity of a verdict. Rather, the jury's question shows an understanding that the counts were separate and needed to be decided separately. Further, the jury found Fagaautau guilty on both counts of second degree rape of a child. Therefore, Fagaautau's challenge to the Petrich instruction fails.
F. Motion for a New Trial
Fagaautau claims that the trial court erred in denying him a motion for a new trial. We disagree.
We review a motion for a new trial for an abuse of discretion. State v. Lopez, 190 Wn.2d 104, 117, 410 P.3d 1117 (2018). Factual findings are reviewed for substantial evidence and legal conclusions are reviewed de novo. Id. at 118.
Fagaautau filed a motion for a new trial arguing that he was denied his right to effective assistance of counsel, that the trial court erred in giving a Petrich instruction, and that the trial court erred in allowing testimony regarding M.A.G.'s prior consistent statements. As discussed in Sections B, C, and E, Fagaautau was not denied effective assistance of counsel, the trial court did not err in allowing testimony regarding M.A.G.'s prior consistent statements, and the trial court did not err in giving a Petrich instruction. Therefore, we hold that the trial court did not abuse its discretion in denying Fagaautau's motion for a new trial.
G. Cumulative Error Doctrine
Fagaautau claims that the cumulative errors deprived him of his right to a fair trial. We disagree.
"The cumulative error doctrine applies where a combination of trial errors denies the accused a fair trial even where any one of the errors, taken individually, may not justify reversal." In re Detention of Coe, 175 Wn.2d 482, 515, 286 P.3d 29 (2012). Here, the cumulative error doctrine does not apply because the trial court made no errors.
H. Motion to Continue Sentencing
Fagaautau claims that the trial court committed a manifest abuse of discretion by denying his motion to continue sentencing on September 12. We disagree.
"[T]he decision to grant or deny a motion for a continuance rests within the sound discretion of the trial court." State v. Downing, 151 Wn.2d 265, 272, 87 P.3d 1169 (2004). We do not disturb such a decision unless there is "'a clear showing . . . [that the trial court's] discretion [is] manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons.'" State v. Flinn, 154 Wn.2d 193, 199, 110 P.3d 748 (2005) (internal quotations omitted) (alterations in original) (quoting Downing, 151 Wn.2d at 272.)
The trial court may consider all relevant factors when deciding whether to grant a continuance. Flinn, 154 Wn.2d at 199. This may include "surprise, diligence, redundancy, due process, materiality, and maintenance of orderly procedure." Downing, 151 Wn.2d at 273. The court may also consider whether prior continuances had been granted. In re V.R.R., 134 Wn.App. 573, 581, 141 P.3d 85 (2006).
Here, Fagaautau appeared at sentencing on September 12 with new counsel, who stated he was unprepared to proceed with sentencing in part because Fagaautau's expert had not been able to complete an expert evaluation. The trial court did not abuse its discretion in denying Fagaautau's request for a continuance because the trial court had already granted two other requests to continue to obtain the expert report, which had delayed sentencing from July 2019 to September 2019. After granting the first continuance, the trial court noted that there is a victim who needs closure in the case. At the hearing on Fagaautau's September 12 motion to continue sentencing, the trial court noted, "These attempts to go ahead and continue these cases at the last moment, is just gamesmanship here, with regards to this matter." 1 VRP (Sept. 12, 2019) at 340. Indeed, the trial court's statement was supported when Fagaautau's new counsel forced the trial court to grant a two week continuance of sentencing to September 26, when Fagaautau's counsel withdrew and left Fagaautau without any representation for sentencing on September 12. This forced continuance allowed additional time for the expert evaluation to be completed. Also, Fagaautau counsel stated that he was prepared to go forward with sentencing at the hearing on September 26. Given all the relevant factors, the trial court did not abuse its discretion by denying the motion to continue sentencing on September 12.
CONCLUSION
We hold that (1) because the prosecutor did not state any personal opinions or ask the jurors to place themselves in the position of the victim, there was no prosecutorial misconduct; (2) Fagaautau has failed to overcome the strong presumption that counsel's representation was effective and has failed to show any prejudice resulting from any alleged deficient performance; (3) the trial court did not abuse its discretion by allowing witnesses to testify about the challenged consistent statements; (4) the trial court did not abuse its discretion in allowing testimony about other bad acts to show lustful disposition; (5) the challenge based on the Petrich instruction fails because the State expressly stated which act was associated with which count charged; (6) the trial court did not abuse its discretion in denying Fagaautau's motion for a new trial, in which he argued ineffective assistance of counsel, error in giving a Petrich instruction, and error in allowing testimony regarding M.A.G.'s prior consistent statements; (7) there is no cumulative error, and (8) the trial court did not abuse its discretion in denying Fagaautau's motion for a new trial. Therefore, we affirm Fagaautau's convictions and sentence.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040, it is so ordered.
We concur: Maxa, J., Sutton, J.P.T.