Opinion
No. 61207-7-I.
April 20, 2009.
Appeal from a judgment of the Superior Court for Snohomish County, No. 07-1-02449-7, Kenneth L. Cowsert, J., entered January 25, 2008.
Affirmed by unpublished opinion per Becker, J., concurred in by Grosse and Ellington, JJ.
UNPUBLISHED OPINION
Zahid Khan appeals his convictions for child rape and molestation, claiming that prosecutorial misconduct, ineffective assistance of counsel, and evidentiary errors deprived him of a fair trial. Because he fails to demonstrate any prejudicial error on the part of the prosecutor or his attorney or any abuse of discretion by the trial court, we disagree and affirm.
FACTS
On July 16, 2007, Eram Mirza and her husband Zahid Khan were hosting various family members in town for a celebration. The couple's seven-year-old son, R.K., and six-year-old daughter, M.K., slept on the floor of the second floor loft close to Mirza's 14-year-old daughter, R.H., who slept on the couch. Following incidents that occurred that night, the State charged Khan with second degree child molestation, second degree rape of a child, third degree rape of a child, third degree child molestation and attempted third degree child molestation. All the charges involved R.H.
At trial, R.H. testified that shortly after the family moved to Bothell in September 2004, while the children were still sleeping on mattresses on the floor, she awoke to find Khan squeezing her breasts. In August 2006, after she fell asleep on the loft couch while watching television, she awoke to Khan kneeling next to the couch and moving his finger in and out of her anus. On another occasion, when she was 13 or 14, she was sleeping on her bed in her room when she was awakened by Khan moving his finger in and out of her vagina. She testified that Khan had touched her several other times and that she was afraid to tell anyone because he threatened her and bought her gifts to keep her from telling her mother. At last, in July 2007, when she woke up on the couch and saw him reaching for her chest, she called out to her mother because she believed that her visiting family members would help her.
Mirza testified that on July 16, after Khan was asleep in his bedroom and the children were asleep in the loft, she and her sister Sanober went down the street to visit their sister. Mirza and Sanober both testified that when they returned after midnight, they heard R.H. call out, "Mom, Mom. Where are you?" As they started quickly up the stairs, they heard Khan say, "Shut up. Shut up. What's your problem?" When they reached the loft, they saw Khan, with a full erection, standing near the couch where R.H. sat, crying. Mirza testified that she took R.H. downstairs where R.H. said, "its been happening for a long time."
Mirza testified that she sent R.H. to California with Sanober and her husband the next morning. A few days later, after the remaining relatives left, Mirza contacted Child Protective Services (CPS). CPS reported the call to police. In early August, R.H. returned to Washington and provided statements. Khan denied touching R.H. He testified that R.H. was rebelling against him for his strict rules based on his Muslim faith. He claimed that on the night in July 2007, he was merely covering his daughter M.K. with a blanket when R.H. started yelling and that he did not have an erection.
The jury found Khan guilty as charged and the trial court imposed a standard range sentence. Khan appeals.
PROSECUTORIAL MISCONDUCT
Khan first contends that prosecutorial misconduct deprived him of a fair trial. During the State's cross-examination of Khan, the following exchange occurred:
Q. Do you think she's worried that you're going to do the same thing to [M.K.] that you have been doing to her?
A. What I'm doing with her?
Q. The sexual things.
A. How you know I'm doing sexual things?
Q. Well, I've been sitting here for three days.
A. I'm listening. That's why I'm surprised. How you guys saying this thing when I didn't do anything.
Khan did not object to this exchange at trial, but he now contends that the prosecutor's expression of her personal belief in his guilt requires reversal.
Khan claims that the jury was likely to give substantial weight and respect to the prosecutor's opinion given her status as a government official who may know more information indicating guilt than revealed by the evidence presented at trial.
To succeed in his claim, Khan bears the burden of establishing the impropriety of the prosecuting attorney's comment as well as its prejudicial effect. State v. Russell, 125 Wn.2d 24, 85, 882 P.2d 747 (1994). Where there is no objection, appellate review is precluded unless the prosecutorial misconduct was so flagrant and ill intentioned that no curative instruction could have obviated the resulting prejudice. State v. Belgarde, 110 Wn.2d 504, 507, 755 P.2d 174 (1988).
Although the prosecutor's statement in response to Khan's question may have been objectionable as argumentative, it could be viewed merely as a reference to the evidence presented during the trial rather than a personal opinion on Khan's guilt. The statement does not give the impression that the prosecutor was privy to additional evidence not presented to the jury. The trial court instructed the jury that the lawyers' statements were not evidence. Jurors are presumed to follow the court's instructions. State v. Kroll, 87 Wn.2d 829, 835, 558 P.2d 173 (1976). Khan fails to demonstrate that a timely objection and an additional curative instruction could not have obviated any prejudice resulting from the comment.
INEFFECTIVE ASSISTANCE OF COUNSEL
Khan next contends that he received ineffective assistance of counsel when his attorney failed to object to inadmissible and prejudicial testimony regarding the negative social consequences that R.H. actually experienced as a result of the prosecution of Khan. Khan acknowledges that the testimony regarding potential consequences was relevant to explain initial reluctance by R.H. and her mother to report the abuse to authorities, but claims that any actual consequences they suffered after reporting were irrelevant and merely served to inject unfairly prejudicial emotion into the case.
To prevail on an ineffective assistance claim, a defendant must show that defense counsel's representation was deficient and the deficient representation prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). A valid tactical decision cannot provide the basis for an ineffective assistance claim. State v. Alvarado, 89 Wn. App. 543, 553, 949 P.2d 831 (1998) (defense attorney's decision not to object to the admission of damaging evidence was not deficient performance because the evidence was admissible). The defendant must show an absence of legitimate strategic reasons to support the challenged conduct. Alvarado, 89 Wn. App. at 548. Prejudice is established by demonstrating a reasonable probability that the outcome of the trial would have been different if the evidence had not been admitted. State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563 (1996).
The record reflects that during defense counsel's cross-examination of R.H., the following exchange occurred:
Q. By coming forward and telling your mom and telling everybody this happened, you're probably not going to have any consequences against you in the Muslim community because you didn't do this voluntarily; is that right?
A. Yeah, but people still make it seem like I did. There's — like, everyone, like, my mom's friends, like, all went against her, like, her good ones, like, Why would she do something like that? And I have a good friend, Elvina, she goes to my school, and the word kind of got out and so, like, her mom heard of it from someone else, and they're, like, Oh, your daughter's friends with the girl who was raped. You know, just people say things that just, you know, make you really, really upset.
Then on re-direct examination the prosecutor asked R.H.:
Q. How has the community treated you since you told someone about this?
[Defense counsel]: Objection, your Honor; relevance.
THE COURT: Sidebar.
(Sidebar discussion off the record.)
THE COURT: The objection is overruled. You may answer, if you remember the question. Do you want her to repeat the question?
THE WITNESS: Yes, please.
BY [Prosecutor]:
Q. How have you been treated in the community since you told somebody about this?
A. Really, really badly. Everyone is — like, one of my friends who goes to my school, her mom found out about it, and she told me that the lady was telling her — I don't know who it was — that, Oh, gross, you know, how could you let your daughter be friends with a girl who has been raped.
[Defense counsel]: Objection, your Honor; hearsay.
THE COURT: Sustained.
[Defense counsel]: If we could ask the jury to disregard.
THE COURT: The last answer will be disregarded by the jury.
Finally, during her direct examination of Mirza, the prosecutor asked a general question as to how girls who have been molested are treated by the Muslim culture. Mirza responded: "Nobody wants to hang out with [R.H.] anymore. People are avoiding her. They have been telling their daughters not to hang out with her because she has been molested." Defense counsel did not object.
First, although Khan claims that R.H.'s first comments on the topic of actual consequences were in response to the prosecutor's questions, the record demonstrates that they were actually made in response to defense counsel's cross-examination question regarding potential consequences. It can be presumed that counsel made a tactical decision to move on to another topic rather than objecting to R.H.'s unexpected response in order to avoid overemphasizing her statements. State v. Lord, 117 Wn.2d 829, 883, 822 P.2d 177 (1991), cert. denied, 506 U.S. 856, 113 S. Ct. 164, 121 L. Ed. 2d 112 (1992); State v. Donald, 68 Wn. App. 543, 551, 844 P.2d 447 (1993), review denied, 121 Wn.2d 1024, 854 P.2d 1084 (1993).
Second, the record reveals that defense counsel actually objected on relevance grounds when the prosecutor asked R.H. about actual consequences. After a sidebar discussion that was not transcribed or memorialized on the record, the trial court overruled the objection. Because defense counsel specifically objected to the evidence Khan complains about and on the grounds Khan identifies, Khan fails to establish deficient performance.
Third, when Mirza later testified to specific actual consequences in response to the prosecutor's general question about potential consequences, defense counsel could have again made a strategic decision to avoid drawing attention to the testimony with an additional, and probably futile, objection on relevance grounds.
Fourth, to establish prejudice, Khan argues that evidence that R.H. suffered actual consequences in her community after reporting abuse was likely to generate strong emotional feelings in the jurors which would change the outcome of the trial. But given R.H.'s testimony regarding specific incidents of abuse as well as the testimony of Mirza and Sanober that they saw Khan standing near R.H.'s couch with an erection, Khan fails to show a reasonable probability that the verdict on any charge would have been different had the State not presented evidence that R.H. and Mirza lost friends or suffered from gossip since speaking to the police.
ADMISSION OF EVIDENCE
Khan also contends that the trial court erred by admitting an irrelevant and prejudicial photograph of M.K. he took in the early morning hours of July 17. Evidence is relevant and necessary if the purpose of admitting the evidence is of consequence to the action and makes the existence of the identified fact more probable. State v. Powell, 126 Wn.2d 244, 259, 893 P.2d 615 (1995); ER 401. Evidence is unduly prejudicial if it is likely to stimulate an emotional response rather than a rational decision. Id. at 264. The decision to admit evidence lies within the sound discretion of the trial court and will not be reversed absent an abuse of discretion. State v. Hamlet, 133 Wn.2d 314, 324, 944 P.2d 1026 (1997). An abuse of discretion exists when the trial court's exercise of its discretion is manifestly unreasonable or based upon untenable grounds or reasons. State v. Stenson, 132 Wn.2d 668, 701, 940 P.2d 1239 (1997).
During the State's case in chief, Sanober testified that when they found Khan standing near R.H., she referred to his erection and demanded an explanation. Khan claimed that he was merely covering M.K. with a blanket when R.H. called out. After they argued, Sanober's husband Shoukat, who is also Khan's uncle, asked them to explain what had happened. Khan later testified that he did not have an erection that night and that no one had confronted him about an erection or suggested that he had done anything inappropriate to R.H. until the police arrested him three weeks later.
In an attempt to impeach Khan's credibility, the State sought to introduce the picture, arguing that it indicated that family members actually confronted Khan about his behavior and he took the picture in an attempt to defend himself. In a hearing outside the presence of the jury, Khan admitted that he had offered to carry Shoukat, a paraplegic, upstairs to show him how M.K. had been sleeping and why he decided to cover her. When Shoukat refused, Khan took the picture. Defense counsel argued that the picture was not relevant and was more prejudicial than probative. In particular, defense counsel argued that the picture was very inflammatory and offensive because it showed M.K.'s lower torso and legs where she was wearing underpants and lying on the floor with her legs splayed.
After confirming with the court reporter that Sanober had testified that she referred to Khan's erection and demanded an explanation, the trial court determined that the picture and the circumstances leading to its being taken were relevant to Khan's credibility, as the State contended. Regarding prejudice, the trial court offered to give a limiting instruction, but admitted the picture, stating, "I don't think it's all that offensive, but it certainly does go to explain what he was trying to explain in his testimony about what he says he was doing."
Khan contends that the circumstances surrounding the picture and the fact that he took it may have been relevant to his credibility, but that admission of the picture itself was unnecessary and unfairly prejudicial. But Khan fails to demonstrate an abuse of discretion. The trial court did not believe the picture was offensive. There was no allegation that Khan had ever done anything inappropriate to M.K. The prosecutor did not suggest in argument that the picture demonstrated anything other than Khan's attempt to defend himself when family members demanded an explanation after finding him close to R.H. with an erection. Under these circumstances, Khan fails to establish grounds for relief.
Because he has not demonstrated any error, Khan's cumulative error argument fails as well.
STATEMENT OF ADDITIONAL GROUNDS FOR REVIEW
In his Statement of Additional Grounds for Review, Khan claims that the prosecutor committed misconduct and violated his constitutional rights by referring to his religious views as "ridiculous;" [VRP 11/29/07 at 450] by inviting the jury to rely on stereotypes and prejudice regarding the Muslim religion; and by vouching for the credibility of State witnesses based on their religious views. The record reveals that the prosecutor compared Mirza's statement regarding the negative reputation of a sexually experienced unmarried girl in the Muslim community with Khan's claim that a Muslim girl who had sex outside of marriage could simply move to another city and lie to potential suitors. The prosecutor argued that Khan's claim was ridiculous and Mirza's testimony was more credible. Nothing in the record indicates that the prosecutor appealed to stereotypes or prejudices regarding Muslims. In this context, Khan fails to establish misconduct.
Khan next claims that his rights were violated because the Snohomish County prosecutor charged him based on incidents that allegedly occurred in King County despite his refusal to waive venue. Although the prosecutor elicited testimony from R.H. regarding incidents that allegedly occurred in Bellevue, the information, jury instructions, and arguments clearly referred to incidents alleged to have occurred in Bothell after the family moved there in September 2004.
Khan contends that the State violated double jeopardy by charging him with third degree child molestation and attempted third degree child molestation. His reliance on In re Pers. Restraint of Orange, 152 Wn.2d 795, 815, 100 P.3d 291 (2004) (defendant who fired single gunshot at single victim could not be convicted for both attempted murder and first degree assault), is misplaced. The State charged and proved five counts based on separate and distinct acts occurring on separate dates. R.H. testified that Khan actually touched her on several occasions and also specifically testified that he was reaching for her chest when she awoke in the early hours of July 17. His convictions do not violate double jeopardy.
Khan claims that he received ineffective assistance of counsel when his attorney failed to object to the prosecutor's improper references to the Muslim faith. But the defense theory of the case was that R.H. fabricated the allegations to escape Khan's strict rules based on his Muslim religion. This sound tactical decision cannot form the basis of an ineffective counsel claim.
Finally, Khan contends that the jury instructions referring to incidents in 2004 improperly allowed convictions for incidents that occurred in King County because he did not move to Snohomish County until 2005. But Mirza testified that the family moved to Snohomish County on September 15, 2004. Khan fails to demonstrate grounds for relief.
Affirmed.
WE CONCUR: