Opinion
65776-3-I
03-12-2012
STATE OF WASHINGTON, Respondent, v. DAMION ANTOINE THOMAS, Appellant.
UNPUBLISHED OPINION
APPELWICK, J.
Thomas was convicted of raping and molesting his eight year old stepdaughter and of witness tampering. The trial court allowed two other children to testify about Thomas's prior misconduct as evidence of a common plan or scheme. Thomas argues that it was an abuse of discretion to allow the additional testimony. He also claims the prosecutor made an impermissible comment on his constitutional right to testify, and otherwise engaged in prosecutorial misconduct. Finding no error, we affirm.
FACTS
Damion Thomas and Sarah Thomas married in 2007. Thomas took on a role as stay-at-home dad for Sarah's daughters, D.G. and A.G. And, Thomas's daughter from a previous relationship, D.T., frequently visited. When D.T. visited, L.J. usually came as well. L.J. is D.T.'s half-sister. She is not biologically related to Thomas.
Thomas served as the house disciplinarian. He testified that he got the final say, and agreed with the prosecutor's statement that he got the last word. Thomas admitted that he whipped the children as part of his role as disciplinarian.
In April 2009, there was an altercation at the Thomas household and the police were called. Thomas was arrested for investigation of domestic violence assault. That night, the children and Thomas's sister gathered and began to discuss Thomas. D.G. told everyone either that Thomas "put his peepee in her butt" or that Thomas "would put his thing inside of her."
Later, the girls went to their grandmother's apartment. Officer William Shaub went to the grandmother's apartment to interview witnesses about the altercation. D.G. approached him and said "something to the effect of . . . 'He raped me.'" She told Officer Adley Sheppard, that Thomas "put his thing in my butt" four times. She said that each time it happened in her bedroom and that the most recent occurrence was four days before.
Officer Sheppard took D.G. and Sarah to the hospital. D.G. repeated her allegations to a social worker and a doctor. Sarah told the social worker that Thomas "'has done things in the past when drinking heavily which he does not remember afterward.'" The doctor observed no physical evidence or symptoms of abuse. However, she was not surprised that there was no physical evidence from a penetration that occurred several days before, because the elastic structure in the anus heals quickly. The doctor scheduled an appointment for D.G. to see a specialist at the hospital's sexual assault clinic the next week.
Frederick Grant, D.G.'s father, came to pick her up the next day. D.G. told Grant that Thomas touched her in her backside. When Grant asked what that meant, D.G. pointed to Grant's genital area and then pointed to her own bottom.
Thomas soon began calling D.G. and Sarah from jail. In one call, Thomas asked D.G. why she was lying and asked if L.J. told D.G. to make the allegations. He explained that he would not be able to come home and said, "[Y]ou know damn well I didn't try to do nothing like that to your butt." Eventually, D.G. agreed that L.J. had told her to speak. Sarah reassured Thomas that D.G.'s interview would be different when she went back to the sexual assault clinic. She said she told D.G. to emphasize that someone else told her what to say and confirmed that she would talk to D.G. right before her appointment to make sure it was fresh in her mind.
At the sexual assault clinic on April 27, D.G. told her doctor that nobody had ever tried to touch her in an inappropriate way and that L.J. told her to say those things. She said that she could not remember what happened during the emergency room visit just a little over 24 hours before.
Sometime in May, Grant began taking D.G. to counseling with Claudia Kirkland at the sexual assault clinic. Later, Sarah told the clinic she was going to sue if Kirkland continued to see D.G.
On May 28, Thomas instructed Sarah to have D.G. write a letter to the judge. D.G. wrote the letter, but testified that Sarah told her to write that L.J. told her to lie. Grant testified that he thought portions of the letter were not in D.G.'s handwriting. The letter read:
Dear Judge,
The things that I said wasn't true because my stepsister told me a big lie of Damion touching me sometime. What she told me was a lie. I'm sorry that she told me a lie and made me tell the police a lie and can you tell the police that I'm sorry for telling them a lie. I'm sorry what I have done to you and the police officers. My stepsister [was] wrong for that.
Thomas was charged with first degree child rape, first degree child molestation, witness tampering, and two counts of misdemeanor violation of a sexual assault protection order. He pleaded guilty to the two misdemeanor charges.
D.G. testified at trial that Thomas touched her four times. She claimed he touched her over her pajamas twice, and twice the contact was skin to skin. She said that, at least once, his genitals touched her skin and went halfway inside her bottom. She also testified that her mother told her to lie and to tell the prosecutor that Thomas didn't touch her. She explained that she would not lie in court because it was wrong.
In addition to D.G.'s testimony, the trial court admitted evidence of two prior bad acts pursuant to ER 404(b). L.J. testified that Thomas touched her bottom when she was staying at Thomas's father's apartment. She explained that L.J., Sarah, and Thomas were sleeping on the floor in the living room. The other girls were on a bed in the same room. L.J. woke during the night to the feeling of something touching her bottom between her cheeks. She opened her eyes and saw Thomas move to her side. L.J. got up and went into the bed with the other girls. The next morning, L.J. told her aunt about the incident.
One of A.G.'s friends also testified. A.L. stayed at the Thomas household for A.G.'s birthday in August 2008. A.L., D.G., A.G., and another cousin slept together on two mattresses pushed together in A.G.'s bedroom. While the girls were sleeping, A.L. heard footsteps and felt something press down on the mattress. She looked up, and saw Thomas with his shirt off and pulling up his shorts. The pressure on the mattress was near D.G. The next morning, A.L. told A.G. and Sarah about what happened. Sarah called Thomas into the room and made A.L. repeat her allegation to Thomas. Thomas denied it and called A.L. a liar.
Thomas was convicted by a jury of first degree rape of a child, first degree child molestation, and witness tampering. He appeals.
DISCUSSION
I. Evidence of Prior Acts
We review the trial court's decision to admit evidence for an abuse of discretion. State v. Foxhoven, 161 Wn.2d 168, 174, 163 P.3d 786 (2007). The trial court abuses its discretion when its decision is manifestly unreasonable or based on untenable grounds. Id.
Evidence of other crimes, wrongs, or acts is not admissible to show criminal propensity. ER 404(b). Such evidence may, however, be admitted to show a common scheme or plan to repeatedly commit similar crimes. ER 404(b); State v. DeVincentis, 150 Wn.2d 11, 20-21, 74 P.3d 119 (2003). But, the evidence is presumptively inadmissible. State v. Gresham, No. 84148-9, 2012 WL 19664, at *5 (Wash. Jan. 5, 2012). The prior acts must be (1) proved by a preponderance of the evidence, (2) admitted for the purpose of proving a common scheme or plan, (3) relevant to prove an element of the crime charged or to rebut a defense, and (4) more probative than prejudicial. State v. Lough, 125 Wn.2d 847, 852, 889 P.2d 487 (1995).
The similarities between the prior acts and the charged crime need to be substantial, but the acts do not necessarily need to be identical. DeVincentis, 150 Wn.2d at 21; State v. Kennealy, 151 Wn.App. 861, 888, 214 P.3d 200 (2009). The prior misconduct and the charged crime should share common features such that the acts are naturally explained as caused by a general plan of which each act is simply an individual manifestation. Gresham, 2012 WL 19664, at *6. Mere similarity in results is insufficient. Id. But, the method of committing the crimes itself need not be unique. Id.
Because determining whether the trial court abused its discretion by finding a common plan or scheme is a fact-intensive inquiry, it is helpful to consider other cases in which ER 404(b) was properly admitted. In Gresham, Scherner was charged after he molested his 7 or 8 year old granddaughter while they were on a trip to Bellevue to visit the defendant's sister. 2012 WL 19664, at *1. On three different nights, the defendant asked his granddaughter to come lie down with him. Id. When she did, he fondled her vagina. Id. The third time, he also took off her night gown and placed her hand on his genitals. Id. The trial court admitted the testimony of four prior victims as evidence of a common scheme or plan. Id. at *2. Much of the abuse occurred decades before the charged crimes. Id. Two of the prior victims were the defendant's nieces. Id. When the nieces visited his home, he fondled them and performed oral sex on them. Id. He abused one niece for fifteen years, beginning when she was four or five. Id. He abused the second niece when she was 13. Id. The third victim was the then 13 year old daughter of a close friend. Id. While they were on a trip together, the defendant waited until the other adults had gone to bed. Id. Then, he approached her, began rubbing her back, and fondled her vagina. Id. The fourth victim was another of the defendant's granddaughters. Id. On two trips to Disneyland, the defendant went to her bed at night and performed oral sex on her. Id. The Washington Supreme Court reasoned that the abuse of two of the prior victims was markedly similar to the charged crime. Id. at *6. The defendant went on a trip with the girls, and at night, while other adults were asleep, approached the girls and fondled their genitals. Id. Small differences, such as the presence of oral sex, were not significant enough for the court to determine the acts were not part of a common scheme or plan. Id. The court also determined that the nieces testified to sufficiently similar acts, even though the abuse occurred in the defendant's home. Id.
In State v. Sexsmith, the defendant molested his girlfriend's daughter from the time she was 11 until she was 18. 138 Wn.App. 497, 502, 157 P.3d 901 (2007). The trial court admitted evidence of prior acts committed against Sexsmith's 13 year old daughter. Id. at 503. The evidence was admissible because Sexsmith was in a position of authority over both girls, and the girls were about the same age when they were molested. Id. at 505. Further, he isolated the girls when he molested them, forced them to take nude photographs and watch pornography, and fondled both of them. Id.
In Kennealy, the defendant raped and molested three children between the ages of five and seven who all lived in the same apartment complex. 151 Wn.App. at 868. The trial court admitted evidence of prior bad acts involving the defendant's daughter and three of his nieces. Id. at 875. The girls were all between the ages of 7 and 13. Id. at 876. The defendant told one of the victims from the charged crimes and some of the previous victims not to tell anyone about what happened, and he committed the acts out of view of others or alone with the children. Id. The children were related to him or lived and played close to him, and he committed the acts only after the children trusted him. Id. at 889. He touched the girls under and outside of their clothing on their vaginas, and committed sexual acts more than once with most of the girls. Id. The Kennealy court recognized that the defendant's behavior was not identical in each case, but determined that the prior acts demonstrated a design to molest young children. Id. at 888.
In this case, the trial court admitted the evidence after it went through the appropriate four-step process. It determined the prior acts were established by a preponderance of evidence and held that the evidence was highly relevant to the presented issues. In regards to a common scheme or plan, the trial court cited that the acts were relatively close in time, that the girls were members of the defendant's extended family, and that the girls were of similar age. It reasoned that the fact that the case revolved around D.G.'s testimony made evidence of prior acts particularly relevant. It found that the allegations of witness tampering and Thomas's guilty plea on the misdemeanor charges made the evidence even more relevant. Ultimately, it determined that the evidence was more probative than prejudicial.
Thomas claims that the trial court abused its discretion by permitting A.L. and L.J. to testify about Thomas' prior acts. He argues that the instances were not sufficiently similar. Specifically, he argues that the age spread was too large, that the extent of the abuse was entirely different, and that the court made a factual error by stating that all the victims were part of the extended family. Thomas also argues the evidence was more prejudicial than probative.
Thomas's reliance on the girls' age differences is not persuasive. In Gresham, the victim was 7 or 8. 2012 WL 19664, at *1. The additional witnesses were between 5 and 13 when the abuse began. Id. at *2. In Sexsmith, the victim was 11 when the abuse began, and the witness was abused starting when she was 13. 138 Wn.App. at 502-03. In Kennealy, the children were between 5 and 13. 151 Wn.App. at 868, 876. Here, D.G. was 8 when the abuse occurred. It appears that L.J. was about 11 when she was abused. A.L. testified to an event that happened when she was 13. The age gap of 8 to 13 is well within the age range in Gresham, Sexsmith, and Kennealy. Further, A.L. did not testify that she herself was the victim. Rather, she testified that she saw Thomas with his pants down near D.G. Thus, A.L.'s age at the time of the event is not particularly important.
Thomas also contends that the trial court erroneously relied on the assertion that A.L. was part of the extended family, when, in fact, she was just a school friend of D.G.'s older sister. But, A.L. testified to a prior incident in which Thomas was near D.G. and pulling up his pants. Thus, A.L. was not the victim in that incident and while the trial court may have mischaracterized her relationship to the family this fact would not be dispositive as to the conclusion.
Thomas is correct that the extent of the abuse is different in the charged crimes and the prior acts. While D.G. testified Thomas put his genitals in her bottom, Thomas only touched L.J.'s bottom between the cheeks. L.J. woke up and the act went no further. And, A.L. did not testify that Thomas touched her at all. Rather, she testified that Thomas was near D.G. Despite these differences, the remaining details are sufficiently similar that we cannot say the trial court abused its discretion.
As in Gresham, Sexsmith, and Kennealy, the prior acts in this case were not identical to the charged crime. However, as in each of those cases, the acts were markedly similar to the charged crime. They were not sufficiently different so that we may say the trial court abused its discretion. The acts occurred in a relatively close timeframe, the girls were of similar age, and the acts all occurred while the girls were sleeping and Thomas was acting as an authority figure.
We also reject Thomas's argument that the evidence was unduly prejudicial. Substantial probative value is needed to outweigh the prejudicial effect of ER 404(b) evidence. DeVincentis, 150 Wn.2d at 23. Legitimate factors to consider include the need for the evidence, the secrecy surrounding sex abuse offenses, the vulnerability of the victims, the absence of physical proof, and the lack of confidence in the ability of a jury to assess the credibility of child witnesses. Id. In this case, these factors weigh heavily in favor of admitting the evidence.
The trial court did not abuse its discretion.
II. Constitutional Right Not to Testify
Drawing an adverse inference from a defendant's failure to testify is an unconstitutional infringement on the defendant's Fifth Amendment right to silence. Griffin v. California, 380 U.S. 609, 614, 85 S.Ct. 1229, 14 L.Ed. 23 106 (1965). The defendant's right to testify on his own behalf is as protected as the right to silence. Rock v. Arkansas, 483 U.S. 44, 49-53, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987). Thus, the prosecutor may not draw an adverse inference from the defendant's decision to testify. A comment is impermissible when the prosecutor invites the jury to infer that a defendant is guilty based on the fact that the defendant exercised a constitutional right. State v. Burke, 163 Wn.2d 204, 222, 181 P.3d 1 (2008). If the comment was so subtle and brief that it does not naturally and necessarily emphasize the defendant's constitutional rights, then it is a mere reference that is only reversible with a showing of prejudice. Id. at 216. The prosecutor is entitled to make reasonable inferences from the evidence. State v. Brett, 126 Wn.2d 136, 175, 892 P.2d 29 (1995).
Thomas testified that he enforced the rules in the house, that he was the disciplinarian, and that he had the final say. He acknowledged that he whipped the children, and agreed with the prosecutor's statement that he gets the last word in the house. In closing, the prosecutor discussed how emotionally difficult it was for D.G. to testify and repeatedly referred to the fact that Thomas gets the last word. The prosecutor said that D.G. "listened to him as he opined yesterday. He got the last word in, of course." The prosecutor concluded by stating that, although Thomas got the last word with the girls and with his wife, and that he attempted to tamper with the evidence, the jury gets the last word on deciding his fate.
Thomas argues that these remarks asked the jury to draw a negative inference about his decision to testify on his own behalf. Specifically, Thomas argues that the prosecutor connected D.G.'s trauma to Thomas's decision to testify, and thereby implied that Thomas had done something wrong simply by exercising his right to testify. He further claims that the prosecutor was trying to portray Thomas's testimony as another attempt to bully the child and thus encourage the jury to punish Thomas for exercising his right to testify.
We disagree. References to Thomas getting the last word were mere references to his position in the household. They were directed at Thomas's own testimony that in his household he gets the final say. Particularly in a case where witness tampering was at issue, those statements reflected on Thomas's credibility, not his decision to testify.
Further, Thomas's interpretation of the statement, "She listened to him as he opined yesterday, " is incorrect. Witnesses were excluded at trial. There is no evidence that D.G. was in the courtroom when Thomas testified. Therefore, the only reasonable interpretation is, "She listened to him[, ] as he opined yesterday." The prosecutor was referring to Thomas's prior testimony about his role in the household. The statement did not refer to D.G. being forced to watch Thomas's testimony. It was a permissible inference about the pressure D.G. was under prior to the trial to recant her allegations.
Alternatively, Thomas claims that reversal is required because his attorney was ineffective in failing to object to a violation of his constitutional rights. But, an appellant only has a claim for ineffective assistance of counsel when the attorney's performance was both unreasonably deficient, and the deficiency prejudiced the defendant. State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987). If either part of the test is not satisfied, the inquiry need go no further. State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563 (1996). Prejudice is only shown when there is a reasonable probability that, but for counsel's errors, the result of the trial would have been different. Id. Thomas cannot make that showing here. The prosecutor's statements were permissible. Objecting would not have changed the result of the trial.
III. Prosecutorial Misconduct
Prosecutorial misconduct is only grounds for reversal if the prosecutor's conduct was both improper and prejudicial. State v. Monday, 171 Wn.2d 667, 675, 257 P.3d 551 (2011). We evaluate a prosecutor's conduct in the full trial context, including the evidence presented, the total argument, the issues in the case, the evidence addressed in argument, and the jury instructions. Id. A prosecutor has wide latitude in closing argument to draw reasonable inferences from the evidence and to express such inferences to the jury. State v. Boehning, 127 Wn.App. 511, 519, 111 P.3d 899 (2005).
Absent a timely objection, reversal is only required if the conduct is so flagrant and ill-intentioned that it causes an enduring and resulting prejudice that could not have been neutralized by a curative instruction to the jury. State v. Warren, 165 Wn.2d 17, 43, 195 P.3d 940 (2008).
Thomas asserts that the prosecutor engaged in misconduct by arguing facts not in evidence, arguing propensity, appealing to the passions of the jury, and espousing personal opinions.
A. Arguing Facts Not in Evidence
A prosecutor may not make statements that are unsupported by the record and prejudice the defendant. State v. Ray, 116 Wn.2d 531, 550, 806 P.2d 1220 (1991). Thomas argues that the prosecutor made an unsupported statement when discussing A.L.'s testimony by referring to "that pressure of pinning her to the mattress before he realizes someone's awake and looking at [him]." But, a corrected report of proceedings indicates that the prosecutor actually said: "that pressure on the corner of the mattress before he realizes someone's awake and looking at him." That statement is supported by L.J.'s testimony.
B. Arguing Propensity
Thomas argues that the prosecutor urged a verdict on propensity grounds in violation of law and prohibited by the court's in limine ruling. He argues that the prosecutor's comments about prior acts were improper, including "that show [of] sexual desire for children, " "quit picking on little kids, " and "he's either the most unlucky guy in King County when it comes to little girls under the age of 12, or he's guilty."
Thomas relies on a molestation case in which the trial court ruled that evidence of the defendant's history of physically abusing children could only be used to explain the victim's delay in reporting, not to show common plan or scheme. See State v. Fisher, 165 Wn.2d 727, 734, 202 P.3d 937 (2009). Despite the ruling, the prosecutor argued throughout trial that the defendant's charged sexual abuse was consistent with his history of committing physical abuse. Id. at 734-38, 747-48. But, in a child sexual assault case where the issue is whether the crime occurred, a pattern of past behavior is probative of a plan to fulfill sexual compulsions. DeVincentis, 150 Wn.2d at 17-18. Thus, in this case the evidence was properly admitted and could properly be commented on. Thomas does not provide any citation to or further explanation of the in limine ruling he claims the prosecutor violated.
The prosecutor repeatedly clarified in closing that the evidence could only be used to show a common scheme or plan, and that Thomas had a plan to satisfy his sexual desire. The court gave a limiting instruction to inform the jury that the allegations could not be used to show that Thomas acted in conformity with the prior allegations, but could be used to determine whether the prior acts demonstrate a common scheme or plan. The prosecutor did not improperly argue for a verdict on propensity grounds.
C. Appealing to the Passions of the Jury
The prosecutor has a duty to seek verdicts free from passion and prejudice. State v. Perez-Mejia, 134 Wn.App. 907, 915-16, 143 P.3d 838 (2006). A prosecutor may not, for example, appeal to the juror's fear of criminal groups or invoke racial, ethnic, or religious prejudice as a reason to convict. Id. at 916. But, arguments that are reasonable inferences from the facts are proper. Id.
Thomas argues that the prosecutor improperly appealed to the jury's passion and prejudice and tried to align herself with the jury against the defendant. The prosecutor said, "'[P]ick on someone your own size.' Quit picking on little kids . . . He's picking on little girls who are not going to stand up for themselves. . . . [W]hat he needs to do is . . . 'Man up.'" She argued, "And for those of us who have the great pleasure of being a big sister, or having a big sister, we get it. Or maybe being a little brother or having a little brother, we get it." When discussing a police officer's testimony, the prosecutor stated, "He said (inaudible) what each and every one of us likely felt when Sarah Thomas took the witness stand." When discussing the jail calls, the prosecutor argued, "Did your mouth not drop open when he said, 'Kids don't matter'?" "[I]t's got to make you a little mad. . . . [I]t makes you just want to reach out and do something." However, she then explicitly instructed the jury that it had to push aside any anger and look at the facts.
Thomas testified and defense counsel argued that the girls were liars. The prosecutor's statements are properly characterized as a valid response to that assertion. Further, the prosecutor explicitly stated in closing that the jury had to make their decision based on the facts, and not on prejudice. The prosecutor did not improperly appeal to the jury's passions and prejudice.
D. Personal Opinion
It is misconduct for a prosecutor to state a personal belief as to the credibility of a witness. Warren, 165 Wn.2d at 30. But, a statement is only misconduct if it is a clear and unmistakable expression of a personal opinion. Brett, 126 Wn.2d at 175. Otherwise, the prosecutor remains free to argue an inference from the evidence. Id.
Thomas cites a number of statements by the prosecutor as improper. For instance, the prosecutor said there's nothing wrong with L.J. encouraging D.G. to disclose the molestation and praised D.G.'s courage by saying, "Good for her." These statements are not improper personal opinions.
The prosecutor argued that that, unlike Thomas, D.G.'s father put his faith in the court system, and further argued that "[t]he funny little thing about the truth [is] there's no hemming and hawing, there's no talking out of both sides of your mouth like Sarah Thomas did yesterday and the Defendant did." These statements were comments on the credibility of defense witnesses. Further, a comment about putting faith in the system is not improper where witness tampering was an issue being tried. They were not improper personal opinions.
The prosecutor argued that "he admitted to you, much to my surprise, [L.J.] didn't put [A.L.] up to it." This was a comment about Thomas's testimony, not a clear and unmistakable expression of a personal opinion.
The prosecutor attributed D.G.'s confidence in testifying to Kirkland, stating "don't you think that had anything to do with the good work that Claudia Kirkland was doing with her?" "It might have struck you as it did me, what kid wouldn't open up to her?" Regarding a doctor who treated D.G., the prosecutor stated it "makes you kind of breathe a sigh of relief knowing she's dedicated her life to kids who need it, who need her help." These were comments drawing the jury's attention to the witness's credibility, not improper personal opinions.
Even if we had instead concluded the prosecutor made improper statements, Thomas did not object below. The prosecutor's statements were not so flagrant and ill-intentioned that they caused an enduring and resulting prejudice that could not have been neutralized by a curative jury instruction.
IV. Statement Of Additional Grounds
We only consider issues raised in a statement of additional grounds that adequately inform us of the nature and occurrence of the alleged errors. State v. Alvarado, 164 Wn.2d 556, 569, 192 P.3d 345 (2008). Further, we only consider arguments that are not repetitive of briefing. RAP 10.10(a). Finally, issues that involve facts or evidence not in the record are properly raised through a personal restraint petition, not a statement of additional grounds. Alvarado, 164 Wn.2d at 569.
Thomas submitted a statement of additional grounds with an extensive list of alleged errors. Many of his assertions rely on facts outside the record, or were adequately dealt with in briefing. Of those that remain, most do not articulate any legal error. In short, Thomas argues that he did not have an impartial judge, that there was prosecutorial misconduct, and that he received ineffective assistance of counsel.
Most of Thomas's arguments regarding the judge refer to the judge's time management practices. These complaints do not articulate any legitimate legal errors. Thomas also claims the judge showed prejudice by telling Thomas to be quiet after Thomas interrupted, and telling Thomas at sentencing that the case had been appalling from the beginning. Those comments do not indicate prejudice, and they were made outside the presence of the jury.
Thomas claims prosecutorial misconduct, because the prosecutor contacted child protective services to remove D.G. from Thomas's home. That allegation does not state any legal error. Thomas also argues that the prosecutor did not properly edit tapes that were played for the jury, and that the prosecutor made misstatements of law in closing. But, both of those errors were addressed below.
Thomas argues that it was prosecutorial misconduct for the prosecutor to ask child witnesses leading questions, and that it was ineffective assistance of counsel to not object. But, the use of leading questions with child witnesses is an issue within the discretion of the trial court. State v. Allen, 70 Wn.2d 690, 692, 424 P.2d 1021 (1967). The questioning was not prosecutorial misconduct. There is no indication that, but for counsel's failure to object, there is a reasonable probability that the outcome of the trial would have been different.
Finally, Thomas claims ineffective assistance of counsel against his former counsel, and against trial counsel for not obtaining certain expert witnesses. There is no evidence in the record about either of these issues.
Thomas does not identify any legal errors that justify reversal.
We affirm.