                                                                                         Filed
                                                                                   Washington State
                                                                                   Court of Appeals
                                                                                    Division Two

                                                                                    March 1, 2016




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                      DIVISION II
 STATE OF WASHINGTON,                                           No. 45996-5-II
                                                       (Consolidated with No. 46113-7-II)
                              Respondent,
                                                         PART PUBLISHED OPINION
        v.

 EUGENE A. YOUNG,

                              Appellant.
 STATE OF WASHINGTON,                                            No. 46113-7-II

                              Respondent,

        v.

 CLAUDE A. HUTCHINSON,

                              Appellant.

       BJORGEN, A.C.J. — Eugene Young and Claude Hutchinson appeal their convictions for

second degree rape, promoting commercial sexual abuse of a minor, communication with a

minor for immoral purposes, and second degree attempted theft.
No. 45996-5-II
(Cons. w/ No. 46113-7-II)


        Young argues that (1) the trial court abused its discretion in ruling that there was

sufficient evidence to support authenticating text messages from “Y.G.” and “Papi,” and that

without those messages, there is insufficient evidence to support his conviction of

communicating with a minor for immoral purposes. Hutchinson argues that (2) there is

insufficient evidence to support his conviction of communicating with a minor for immoral

purposes and (3) the prosecutor improperly impugned the integrity of his defense counsel when

he asked a witness about whether his defense counsel was present at a pretrial interview. Both

Young and Hutchinson (4) argue that the prosecutor misstated the law on accomplice liability

during closing argument, which amounted to prosecutorial misconduct, and (5) raise additional

arguments in their statements of additional grounds (SAG).

        In the published portion of this opinion, we hold that the trial court reasonably exercised

its discretion in ruling there was sufficient evidence to permit a reasonable juror to find that the

text messages were authenticated or identified as from Young. In the unpublished portion, we

address and reject Young’s remaining arguments and Hutchinson’s arguments. Accordingly, we

affirm Young’s and Hutchinson’s convictions.

                            FACTS RELATING TO TEXT MESSAGES

        In 2012, Young and Hutchinson promoted and directed two young women, N.H. and 16-

year-old C.B.,1 in prostitution activities. To facilitate her prostitution, C.B. communicated with




1
 “[I]n all opinions . . . in sex crime cases, [we] shall use initials . . . in place of the names of all
witnesses known to have been under the age of 18 at the time of any event in the case.” Gen.
Order 2011-1, Division II, In Re The Use Of Initials Or Pseudonyms for Child Witness in Sex
Crime Cases,
                                                    2
No. 45996-5-II
(Cons. w/ No. 46113-7-II)


Young through telephone calls and text messages. C.B. named the contact information for

Young in her phone as “Papi.” Report of Proceedings (RP) at 317-20.

        Young and Hutchinson also forced 16-year-old R.E. to participate in a fraudulent check

transaction for them. When the check transaction involving R.E. was concluded, Young put the

contact name “Y.G.” into R.E.’s cell phone. RP at 874. Later, Y.G. texted R.E. asking if she

would be interested in prostitution. Y.G. was unsuccessful in persuading R.E. into prostitution,

but the two continued to communicate about how she could get her money back after the

fraudulent check transaction. Id.

        The State subsequently charged both Young and Hutchinson with second degree rape,

promoting commercial sexual abuse of a minor, first degree robbery, first degree kidnapping, and

communication with a minor for immoral purposes. At trial, evidence was introduced describing

these features of the text messages. The jury returned verdicts finding both Young and

Hutchinson guilty of second degree rape,2 promoting commercial sexual abuse of a minor,3

communication with a minor for immoral purposes,4 and second degree attempted theft.5 Young

and Hutchinson appeal their convictions.



http://www.courts.wa.gov/appellate_trial_courts/?fa=atc.genorders_orddisp&ordnumber=2011-
1&div=II.
2
    RCW 9A.44.050.
3
 Former RCW 9.68A.101 (2010) was amended in 2012 and 2013. These amendments do not
affect the issues in this matter.
4
  Former RCW 9.68A.090 (2006) was amended in 2013. This amendment does not affect the
issues in this matter.


                                                3
No. 45996-5-II
(Cons. w/ No. 46113-7-II)


                                            ANALYSIS

       Young argues that the trial court abused its discretion when it determined that the State

had presented sufficient evidence to authenticate that texts from Papi to C.B. and from Y.G. to

R.E. were from Young. This argument fails because R.E. and C.B. both had personal knowledge

that these contacts were Young and the contents of the text messages corroborate their

interactions with him. Accordingly, the trial court reasonably exercised its discretion when it

admitted the text messages.

                         I. STANDARD OF REVIEW AND LEGAL PRINCIPLES

       We review a trial court’s admission of evidence for an abuse of discretion. State v.

Bradford, 175 Wn. App. 912, 927, 308 P.3d 736 (2013), review denied, 179 Wn.2d 1010 (2014).

A trial court abuses its discretion when its decision is manifestly unreasonable or based on

untenable grounds. Id.

       “The requirement of authentication or identification as a condition precedent to

admissibility is satisfied by evidence sufficient to support a finding that the matter in question is

what its proponent claims.” ER 901(a). In State v. Bashaw, 169 Wn.2d 133, 140-41, 234 P.3d

195 (2010) (quoting State v. Payne, 117 Wn. App. 99, 106, 69 P.3d 889 (2003)), overruled on

other grounds by State v. Guzman Nunez, 174 Wn.2d 707, 285 P.3d 21 (2012),6 the Supreme

Court held that to meet this requirement



5
 Former RCW 9A.56.040 (2009) was amended in 2012 and 2013. These amendments do not
affect the issues in this matter.
6
 The Nunez court expressly noted that it was not overruling Bashaw’s authenticity holding.
Nunez, 174 Wn.2d at 709 n.1.
                                                  4
No. 45996-5-II
(Cons. w/ No. 46113-7-II)


       [t]he party offering the evidence must make a prima facie showing consisting of proof
       that is sufficient “to permit a reasonable juror to find in favor of authenticity or
       identification.”

“‘[T]he proponent of offered evidence need not rule out all possibilities inconsistent with

authenticity or conclusively prove that evidence is what it purports to be.’” In re Det. of H.N.,

188 Wn. App. 744, 751, 355 P.3d 294 (2015) (alteration in original) (quoting State v. Andrews,

172 Wn. App. 703, 708, 293 P.3d 1203 (2013)).

       “‘Because under ER 104 authenticity is a preliminary determination, the court may

consider evidence that might otherwise be objectionable under other rules.’” Id. (quoting Rice v.

Offshore Sys., Inc., 167 Wn. App. 77, 86, 272 P.3d 865 (2012)). “‘A trial court may, therefore,

rely upon such information as lay opinions, hearsay, or the proffered evidence itself in making its

determination.’” Id. (quoting State v. Williams, 136 Wn. App. 486, 500, 150 P.3d 111 (2007)).

“Such information must be reliable, but need not be admissible.” Id. The rules of evidence

provide a number of illustrative examples that demonstrate methods of authentication, including

testimony of a witness with knowledge, ER 901(b)(1), and the contents of a message. See ER

901(b)(10)(iii). “‘Once a prima facie showing has been made, the evidence is admissible under

ER 901.’” H.N., 188 Wn. App. at 751-52 (quoting Rice, 167 Wn. App. at 86).

       Both parties rely on Bradford from Division One of our court. In Bradford, the court

found under ER 901(a) that there was sufficient evidence introduced at trial to support a finding

that text messages were what the State contended they were: text messages written and sent by

Bradford. 175 Wn. App. at 928-29. The Bradford court drew on several pieces of evidence that

supported authentication of the text messages, including evidence showing that: (1) Bradford’s

text messages were consistent with his desperate desire to communicate with the victim, (2) the
                                                 5
No. 45996-5-II
(Cons. w/ No. 46113-7-II)


content of the texts in tandem with Bradford’s corroborating behavior demonstrated that he was

the one who sent them, (3) the timing of the texts was consistent, since the victim only received

texts when Bradford was out of jail and did not receive texts when he was in jail, and (4) the

victim and another witness testified that they believed the text messages were from Bradford. Id.

at 929-30.

       After Bradford was decided, ER 901(b) was amended to add a specific section illustrating

some methods for authenticating e-mail:

       Testimony by a person with knowledge that (i) the email purports to be authored or
       created by the particular sender or the sender’s agent; (ii) the email purports to be
       sent from an e-mail address associated with the particular sender or the sender’s
       agent; and (iii) the appearance, contents, substance, internal patterns, or other
       distinctive characteristics of the e-mail, taken in conjunction with the
       circumstances, are sufficient to support a finding that the e-mail in question is what
       the proponent claims.

ER 901(b)(10).7

       When Division One of our court examined the admissibility of text messages again in

H.N., it relied on ER 901(b)(10) by analogy. 188 Wn. App. at 759. In H.N., the trial court

allowed the State’s expert medical witness to read into the record a set of e-mailed screen shots

of text messages used as part of her opinion testimony to support the State’s case in committing

H.N. to involuntary treatment. Id.at 755-57. The trial court also allowed the screenshots of the

text messages to be admitted as substantive evidence. Id. at 757. The H.N. court found this to be

a proper exercise of the trial court’s discretion in admitting the evidence for five reasons: (1)



7
 The trial court’s rulings on the authenticity of the text messages occurred on December 10,
2013 or afterwards. The effective date of amendment for ER 901(b)(10) was December 10,
2013.
                                                  6
No. 45996-5-II
(Cons. w/ No. 46113-7-II)


H.N. had admitted to the expert witness that she had sent the text messages, (2) identifying

information, including her phone number and full name, was displayed on the top of the text

messages, (3) the contents of the text messages suggested H.N. was the sender, (4) the text

messages were consistent with certain events that happened in H.N.’s life, and (5) the timing of

the text messages was consistent with H.N.’s hospitalization on the night of the incident. Id. at

758-59.

                                  II. TEXTS FROM Y.G. TO R.E.

       Turning to the present appeal, we hold that, similar to Bradford and H.N., sufficient proof

supported the trial court’s ruling that the text messages from Y.G. to R.E. were what they

purported to be: text messages from Young to R.E. First, R.E. had personal knowledge that the

sender of the text messages was Young. R.E. testified that after Young used her phone to call

someone, he put his number in her phone. R.E. also testified that Young had put “Y.G.” as the

contact name under that phone number. She further testified that the text messages she received

from Y.G. were from the same number that Young had put in her phone.

       Second, the content of some of the texts supports a finding that the texts in question are

from Young. R.E. testified that Young forced her to participate in a fraudulent check

transaction. Some of the texts corroborate this testimony as R.E. texted with Y.G. that she

wanted some of her money back and Y.G. was agreeable. The text messages also show that Y.G.

was interested in getting R.E. to engage in prostitution. Consistently, with Bradford and H.N.,

R.E.’s personal knowledge, in tandem with the contents of the texts, is sufficient evidence to

permit a reasonable trier of fact to find that Young was the one texting R.E.



                                                 7
No. 45996-5-II
(Cons. w/ No. 46113-7-II)


       Although it is true, as Young argues, that there is evidence showing that Hutchinson or

some other person wrote the texts from Y.G., the trial court “considers only the evidence offered

by the proponent and disregards any contrary evidence offered by the opponent” in determining

whether evidence has been authenticated. Rice, 167 Wn. App. at 86. Young was free to bring up

any contrary evidence, but this goes to weight, not admissibility. State v. Tatum, 58 Wn.2d 73,

76, 360 P.2d 754 (1961). For these reasons, the trial court did not abuse its discretion when it

admitted the text messages under ER 901.

                                  III. TEXTS FROM PAPI TO C.B.

       Similarly, Young contends that the text messages from Papi to C.B. were not properly

authenticated. However, the record here also shows that the trial court did not err in ruling that

Young was the one texting C.B. through the contact, Papi.

       C.B. testified that she put Young’s name and number into her phone, reflecting her

personal knowledge that this person was Young. C.B. testified that she continued receiving text

messages from Young and renamed him “Papi” in her phone. RP at 319-20. The subject matter

of the text messages is consistent with C.B.’s testimony that she and Young worked together in

prostitution. C.B.’s personal knowledge in tandem with the subject matter of the texts is

sufficient evidence for a reasonable trier of fact to find that these texts came from Young.

Accordingly, we hold the trial court did not abuse its discretion in admitting these text messages.

                                         CONCLUSION

       The text messages at issue were properly authenticated under ER 901(a), and the trial

court did not abuse its discretion in admitting them.



                                                 8
No. 45996-5-II
(Cons. w/ No. 46113-7-II)


         A majority of the panel having determined that only the foregoing portion of this opinion will

be printed in the Washington Appellate Reports and that the remainder shall be filed for public record

pursuant to RCW 2.06.040, it is so ordered.

                                       ADDITIONAL FACTS

                           IV. DEFENDANTS’ INITIAL CONTACT WITH C.B.

         In September 2012, 16-year-old C.B. met Young and Hutchinson at a bus stop. They

asked C.B. to cash a check for them, which she did. However, because the automated teller

machine had a withdrawal limit, C.B. was only able to get a portion of the deposited check.

Young and Hutchinson walked with C.B. to her home and exchanged phone numbers and contact

information with her.

         The next morning, Young and Hutchinson contacted C.B. and picked her up to get the

rest of the money. While riding with C.B., Young explained that C.B. could make “more

money” by “hav[ing] sex with guys.” RP at 275-76. C.B. agreed to Young’s proposition.

Young and Hutchinson also picked up Young’s girlfriend, N.H., and the four of them went to a

motel.

         At the motel, N.H. rented a room for her and C.B. Young and Hutchinson had their own

room in the motel, but maintained contact with C.B. Young asked N.H. and C.B. to take their

clothes off, and either Young or Hutchinson took pictures of them lying on the bed. Young then

posted them to Backpage.com8 to generate customers for their prostitution. N.H. instructed C.B.

in how to engage in prostitution.



8
    Backpage.com is an online classifieds company that offers adult advertisements.
                                                   9
No. 45996-5-II
(Cons. w/ No. 46113-7-II)


                                          V. RAPE OF N.H.

        During N.H.’s and C.B.’s prostitution, N.H. was beaten by Hutchinson over a couple of

days. Hutchinson slapped and choked N.H. repeatedly, and forced her to perform oral sex on

him, Young, and another man. N.H. believed that her sexual activity with Young was

consensual. Not long after the repeated beatings and rape, N.H. fled from the motel.

                                     VI. C.B.’S PROSTITUTION

        C.B. engaged in prostitution with at least 10 to 15 men. Young would receive the money

C.B. obtained through her prostitution and in exchange would buy her food and take care of her.

A few days after the prostitution started, C.B. was arrested by an undercover police officer.

About two days after her arrest, she contacted Young and began prostitution again. Not long

after, an undercover police officer posed as a client to C.B., resulting in the end of her

prostitution.

                                     VII. CONTACT WITH R.E.

        R.E. became involved with Young and Hutchinson when Hutchinson approached her at a

bus station. R.E. testified that Hutchinson “kind of got [her] in a corner” and talked about

“things he wanted to do to [her], kind of like rape kind of things, you know, kind of like oral

sex.” RP at 841, 845. Hutchinson said R.E. was “really pretty and talk[ed] about stuff that he

wanted to do to [her].” RP at 845. As noted, Young and Hutchinson forced R.E. to participate in

a fraudulent check transaction, and Young subsequently texted R.E. asking if she would be

interested in prostitution.




                                                 10
No. 45996-5-II
(Cons. w/ No. 46113-7-II)


                                          PROCEDURE

                                       I. REDIRECT OF C.B.

       At trial, on redirect of C.B., the prosecutor elicited testimony that Young’s attorney, but

not Hutchinson’s, had attended a pretrial interview of C.B. Each defendant objected on the basis

of relevance, which the court overruled. The prosecutor then continued:

       [Prosecutor]: Were there investigators and others on their behalf asking you
                     questions?
       [C.B.]:       I don’t think so, no.
       [Prosecutor]: Was [Young’s attorney] asking you questions?
       [C.B.]:       Yeah.
       [Prosecutor]: Was he the only one?
       [C.B.]:       Yeah.

RP at 572.

                                     II. CLOSING ARGUMENT

       In closing argument, the prosecutor argued that Young was an accomplice to Hutchinson

in raping N.H. During his remarks, he made the following argument about the law of

accomplice liability and how it applied to Young:

                And he sits there. He’s not some guy that just happened to be there. This
       is during the course and after days or at least a day of his own involvement with
       [C.B.]. [N.H.] is now nothing more than Mr. Hutchinson’s hoe. He’s the pimp for
       her. That’s what’s occurring here. When you read that accomplice liability
       instruction, you’ll understand. Mere presence or encouragement. It doesn’t even
       have to be by words. It can be by just mere presence is sufficient for accomplice
       liability.

RP at 1439 (emphasis added). Hutchinson’s attorney objected and the court stated that the

prosecutor “may have misspoken” on that. RP at 1439. The prosecutor then began reading from

the jury instructions and stated how Young was an accomplice to Hutchinson’s rape of N.H.:



                                                11
No. 45996-5-II
(Cons. w/ No. 46113-7-II)


       The instruction[] specifically says, and you’ll read it -- it’s No. 7 -- “A person who
       is present at the scene and ready to assist by his or her presence in aiding the
       commission of the crime.” And that word “aid” includes words, acts,
       encouragement, support, or presence.

               I’ll read it again. “The word ‘aid’ means all assistance, whether given by
       words, acts, encouragement, support, or presence. A person who is present at the
       scene and ready to assist by his or her presence is aiding in the commission of the
       crime.”

               That’s what the instruction says and that’s what I say. He’s there with
       knowledge of what’s happening. It’s not just that he doesn’t do a gentlemanly thing
       or an honorable thing by forcing Mr. Hutchinson to stop. By his mere presence and
       acquiescence to what Mr. Hutchinson is doing, he’s assisting; he’s giving it his
       stamp of approval.

RP at 1439-40 (emphasis added). Again, Hutchinson’s attorney objected, and the court sustained

the objection. The prosecutor then said, “By his presence he’s giving the stamp of approval to

what is occurring here.” RP at 1440. The court overruled the defense attorney’s objection to this

statement.

       The prosecutor then proceeded with his argument, stating how Young was an

accomplice:

              And what does the defendant do? What does Mr. Young do? Does
       somebody force him to take his pants down or pull his penis out? No. He does
       that. That’s assisting. That’s being involved. That’s not just being an innocent
       bystander. That’s not mere presence. He’s an active participant.

RP at 1440-41.

                                          III. VERDICTS

       At the close of trial, the jury returned verdicts finding both Young and Hutchinson guilty

of second degree rape, promoting commercial sexual abuse of a minor, communication with a

minor for immoral purposes, and second degree attempted theft. They appeal their convictions.

                                                12
No. 45996-5-II
(Cons. w/ No. 46113-7-II)


                                   ADDITIONAL ANALYSIS9

                                   I. SUFFICIENCY OF EVIDENCE

       Hutchinson argues that there is insufficient evidence to support his conviction of

communication with a minor for immoral purposes10 because the sexual act about which

Hutchinson communicated with R.E., consensual sex with a 16 year old, was not illegal.

However, because a rational juror could have found the elements of communication with a minor

for immoral purposes beyond a reasonable doubt, Hutchinson’s argument fails.

       Evidence is sufficient to support a conviction if, viewed in the light most favorable to the

State, it permits a rational juror to find the essential elements of the crime beyond a reasonable

doubt. State v. McPherson, 186 Wn. App. 114, 117, 344 P.3d 1283, review denied, 183 Wn.2d

1012 (2015). A claim of insufficiency admits the truth of the State’s evidence and all reasonable

inferences that a juror can draw from that evidence. State v. Notaro, 161 Wn. App. 654, 671,

255 P.3d 774 (2011). All reasonable inferences from the evidence must be drawn in favor of the

State and interpreted strongly against the defendant. State v. Wilson, 141 Wn. App. 597, 608,




9
  The jury also returned verdicts finding both Young and Hutchinson guilty of second degree
attempted theft as a lesser included offense to first degree robbery. Both Young's and
Hutchinson's appeal of these convictions fail, because any asserted grounds for challenging the
theft convictions are without merit, as shown in this opinion. Therefore, we do not further
discuss second degree attempted theft.
10
  Young also argues that that there is insufficient evidence to support the charge that he was the
one who communicated with R.E. for immoral purposes. However, his entire argument is
premised on this court ruling that the text messages from Y.G. were not properly authenticated.
Because there was sufficient evidence to support the authentication of those text messages,
Young’s sufficiency of the evidence challenge fails.


                                                 13
No. 45996-5-II
(Cons. w/ No. 46113-7-II)


171 P.3d 501 (2007). Circumstantial evidence is no less reliable than direct evidence. Id. We

must defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the

persuasiveness of the evidence. State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004).

       The crime of communication with a minor for an immoral purpose is intended to prohibit

“‘communication with children for the predatory purpose of promoting their exposure to and

involvement in sexual misconduct.’” State v. Hosier, 157 Wn.2d 1, 9, 133 P.3d 936 (2006)

(emphasis omitted) (quoting State v. McNallie, 120 Wn.2d 925, 933, 846 P.2d 1358 (1993)). A

person, however, cannot be punished for communications to a minor about sexual conduct that

would be legal if performed. State v. Luther, 65 Wn. App. 424, 427-28, 830 P.2d 674 (1992).

       Here, there is sufficient evidence in the record to permit a rational trier of fact to find

beyond a reasonable doubt that Hutchinson communicated with R.E. for immoral purposes. R.E.

testified that when Hutchinson approached her, he “kind of . . . corner[ed]” her and talked about

“things he wanted to do to [R.E.], kind of like rape kind of things, you know, kind of like oral

sex.” RP at 841, 845. The jury could have also believed that Hutchinson had communicated to

R.E. that he wanted to rape her based on the evidence at trial. This communication would

involve sexual misconduct with a minor, and therefore, would support a conviction for

communicating with a minor for immoral purposes. Hosier, 157 Wn.2d at 9.

       Hutchinson argues that because R.E. was 16 years old, it would not have been illegal for

him to have sexual intercourse with her. Indeed, Hutchinson is correct that if he only had

communicated that he wanted to have oral sex with R.E., this in itself would not be able to




                                                 14
No. 45996-5-II
(Cons. w/ No. 46113-7-II)


support a conviction for communication with a minor for immoral purposes, since consensual

sex with one 16 years of age is not illegal. See RCW 9A.44.079.

       However, on appeal, we admit “the truth of the State’s evidence and all reasonable

inferences that a trier of fact can draw from that evidence.” Notaro, 161 Wn. App. at 671. As

shown above, a rational trier of fact could find that Hutchinson’s communications were for the

purpose of raping R.E. Unlike consensual oral sex, rape would involve sexual misconduct with a

minor, and this evidence therefore supports Hutchinson’s conviction of communicating with R.E.

for immoral purposes.

                                II. PROSECUTORIAL MISCONDUCT

       Hutchinson argues that the prosecutor first committed prosecutorial misconduct because

he impugned the integrity of defense counsel by inquiring about her absence at an interview of

the victim. Hutchinson and Young both argue that the prosecutor committed prosecutorial

misconduct in his characterization of the law on accomplice liability. We find that neither of

these comments were improper, and accordingly, their claims fail.

1.     Legal Principles

       To establish prosecutorial misconduct, the defendant must prove that the prosecuting

attorney’s remarks were both improper and prejudicial. State v. Allen, 182 Wn.2d 364, 373, 341

P.3d 268 (2015). Among other ways, a prosecuting attorney commits misconduct by impugning

the integrity of defense counsel or by misstating the law. Id.; State v. Lindsay, 180 Wn.2d 423,

431-32, 326 P.3d 125 (2014). Because we find that the challenged remarks were not

misconduct, we do not reach the question of prejudice.



                                               15
No. 45996-5-II
(Cons. w/ No. 46113-7-II)


2.     Impugning Defense Counsel

       Hutchinson first claims that the prosecutor impugned the integrity of defense counsel and

that this amounted to prosecutorial misconduct. It is improper for the prosecutor to

disparagingly comment on defense counsel’s role or impugn the defense lawyer’s integrity.

Examples include repeatedly referring to defense counsel’s tactics as “bogus” and involving

“sleight of hand,” State v. Thorgerson, 172 Wn.2d 438, 451-52, 258 P.3d 43 (2011); referring to

defense counsel’s closing argument as a “number of mischaracterizations” and “an example of

what people go through in a criminal justice system when they deal with defense attorneys,”

State v. Warren, 165 Wn.2d 17, 29-30, 195 P.3d 940 (2008); and suggesting that while the

prosecution sees that justice is served, defense counsel only has an obligation to a client. State v.

Gonzales, 111 Wn. App. 276, 283-84, 45 P.3d 205 (2002).

       Here, on redirect of C.B., the prosecutor inquired into whether Hutchinson’s defense

counsel was present at an interview of C.B. The prosecutor asked C.B. who participated in the

interview and asked a few questions that established that Hutchinson’s defense counsel was not

present. After the trial court overruled an objection on the basis of relevance, the prosecutor

again pointed out that only Young’s attorney asked C.B. questions at the interview.

       This is not the sort of blatant impugning of defense counsel found in Thorgerson,

Warren, or Gonzales. Rather, the prosecutor merely could have been setting the stage with his

witness to allow him to better question her about the interview, which is what he later did. We

find that the integrity of defense counsel was not impugned, and Hutchinson does not meet his

burden in showing that this was misconduct.



                                                 16
No. 45996-5-II
(Cons. w/ No. 46113-7-II)


3.     Closing Argument on Accomplice Liability

       Hutchinson and Young also argue that the prosecutor committed prosecutorial

misconduct by misstating the law on accomplice liability while discussing Young’s second

degree rape charge involving N.H. We hold that the prosecutor’s comments did not constitute

misconduct.

       Accomplice liability requires knowledge of the crime and that the accomplice: (1)

solicits, commands, encourages, or requests another person to commit it, or (2) aids or agrees to

aid another person in planning or committing it. RCW 9A.08.020(3)(a). “Presence at the scene

of an ongoing crime may be sufficient if a person is ‘ready to assist.’” In re Welfare of Wilson,

91 Wn.2d 487, 491, 588 P.2d 1161 (1979) (quoting State v. Aiken, 72 Wn.2d 306, 349, 434 P.2d

10 (1967)). However, mere presence coupled with assent is insufficient to establish accomplice

liability. Wilson, 91 Wn.2d at 491; State v. Everybodytalksabout, 145 Wn.2d 456, 472, 39 P.3d

294 (2002).

       Here, looking at the prosecutor’s argument on accomplice liability as a whole, we find

that it was not improper. The prosecutor’s first statement, that mere presence is sufficient for

accomplice liability, was clearly wrong and objectionable. Defense counsel objected and the

trial court told the jury that the prosecutor misspoke. As further discussed below, the prosecutor

then correctly quoted from the jury instruction and argued that presence plus giving his stamp of

approval was enough for accomplice liability. In this full context, the prosecutor’s initial

misstatement does not rise to the level of impropriety.




                                                17
No. 45996-5-II
(Cons. w/ No. 46113-7-II)


       The prosecutor then quoted from the jury instruction and said, “By his mere presence and

acquiescence to what Mr. Hutchinson is doing, he’s assisting; he’s giving it his stamp of

approval.” RP at 1440. The defendant objected and the trial court sustained the objection.

However, it is not clear whether this actually misstates the law. Accomplice liability requires

knowledge of the crime and, as relevant here, aiding or agreeing to aid in committing it. RCW

9A.08.020(3)(a)(ii). Thus, a person can be an accomplice based on presence if that presence

assists in the crime. The jury instruction states that an accomplice is one who, with knowledge

that it will promote or facilitate the commission of the crime, “aids” or agrees to aid in the

commission of a crime. Clerk’s Papers (CP) at 56. The instruction further states: “The word

‘aid’ means all assistance whether given by words, acts, encouragement, support, or presence. A

person who is present and is ready to assist by his or her presence is aiding in the commission of

a crime.” CP at 56 (emphasis added). The instruction then gives the caveat that “more than

mere presence and knowledge of the criminal activity” must be shown. CP at 56.

       Based on the instruction and the entire context, we do not find this argument

improper. The prosecutor did not argue that Young was aiding by his presence alone, but that by

his presence he also gave his “stamp of approval” to the crime. RP at 1440. In some situations,

a “stamp of approval” may be little different from presence plus “assent,” which is insufficient

for accomplice liability. Wilson, 91 Wn.2d at 491. Here, however, one may reasonably infer

from the evidence that Young was both present and ready to assist with his presence, which is

sufficient to satisfy accomplice liability. Thus, the prosecutor’s argument and “stamp of

approval” characterization is consistent with the instruction’s statement that one who is present



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No. 45996-5-II
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and is ready to assist by his or her presence is aiding in a crime. In addition, the prosecutor

followed this statement up with the argument that Young was actively assisting by pulling his

pants down. He argued: “That’s not just being an innocent bystander. That’s not mere

presence. He’s an active participant.” RP at 1141.

        Viewing the prosecutor’s argument as a whole, we find it sufficiently based in the law as

expressed in the instructions to avoid characterization as improper.

                                          III. SAG CLAIMS

1.      Accomplice Liability Instruction

        In his SAG, Young argues that the accomplice liability instruction was erroneous because

it refers to “a crime” rather than “the crime.” SAG at 3. Our Supreme Court has expressly found

that it is error to use “a crime” in the accomplice liability instruction in State v. Roberts, 142

Wn.2d 471, 509-11, 14 P.3d 713 (2000) and State v. Cronin, 142 Wn.2d 568, 578-79, 14 P.3d

752 (2000). The instruction at issue, though, refers appropriately to “the crime” and mirrors the

statute on accomplice liability. CP at 56; RCW 9A.08.020; 11 WASHINGTON PRACTICE:

WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL (WPIC) 10.51. Accordingly, Young’s

claim fails.

2.      Lesser Included Charge/Ineffective Assistance of Counsel

        Hutchinson argues that he should have been given a lesser included charge of second

degree promoting prostitution to his promoting commercial sexual abuse of a minor charge

because he did not know the age of the minor.11 A defendant is entitled to an instruction on a


11
 Promoting commercial sexual abuse of a minor does not require the State to prove that
Hutchinson knew the age of the minor. The Legislature has specifically stated this is not a
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No. 45996-5-II
(Cons. w/ No. 46113-7-II)


lesser included instruction if two conditions are met: (1) each of the elements of the lesser

offense are a necessary element of the offense charged and (2) the evidence supports an

inference that the lesser crime was committed. State v. Workman, 90 Wn.2d 443, 447-48, 584

P.2d 382 (1978). Both the legal12 and factual prongs are met here.

       However, Hutchinson’s defense counsel never requested this lesser included instruction.

Therefore, the appropriate analysis is whether Hutchison’s defense counsel was ineffective in not

requesting a jury instruction. State v. Grier, 171 Wn.2d 17, 42, 246 P.3d 1260 (2011), cert.

denied, 135 S. Ct. 153 (2014) (when defendant had shown he was entitled to lesser included

instruction but had not requested it at trial, appropriate analysis was whether it was ineffective

assistance of counsel not to request the lesser included instruction).

       In order for Hutchinson to prevail on an ineffective assistance claim, he must overcome

the presumption that his counsel was effective. State v. Witherspoon, 180 Wn.2d 875, 885, 329

P.3d 888 (2014). “[C]ounsel is strongly presumed to have rendered adequate assistance and

made all significant decisions in the exercise of reasonable professional judgment.” Strickland v.

Washington, 466 U.S. 668, 690, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). To overcome this

presumption, Hutchinson must demonstrate that (1) counsel’s representation fell below an



defense. RCW 9.68A.110(3) (“In a prosecution under . . . RCW 9.68A.101 [promoting
commercial sexual abuse of a minor] . . . it is not a defense that the defendant did not know the
alleged victim’s age.”).
12
  Compare former RCW 9.68A.101 with RCW 9A.88.080; see also State v. Johnson, 173
Wn.2d 895, 898, 270 P.3d 591 (2012) (“The jury was instructed on both attempted promotion of
commercial sexual abuse of a minor and attempted promotion of prostitution, a lesser included
offense.”).

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No. 45996-5-II
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objective standard of reasonableness and (2) the deficient performance prejudiced the defense.

Id. at 687-88.

       As to the first prong, a criminal defendant can rebut the presumption of reasonable

performance by demonstrating that “‘there is no conceivable legitimate tactic explaining

counsel’s performance.’” Grier, 171 Wn.2d at 33 (quoting State v. Reichenbach, 153 Wn.2d

126, 130, 101 P.3d 80 (2004)). In this case, however, there is a conceivable reason for why

defense counsel did not request this instruction: an all-or-nothing approach. Id. at 43;

Witherspoon, 180 Wn.2d at 886. Defense counsel could have reasonably thought that it was

better to risk the choice between conviction of promoting commercial sexual abuse of a minor or

acquittal than it was to give the jury a second option. State v. Hoffman, 116 Wn.2d 51, 112, 804

P.2d 577 (1991) (“The defendants cannot have it both ways; having decided to follow one course

at the trial, they cannot on appeal now change their course and complain that their gamble did

not pay off.”).

       As to the second prong, the defendant has not met his burden in showing prejudice. We

must presume that the jury would not have convicted Hutchinson of promoting commercial

sexual abuse of a minor unless the State had met its burden of proof. Grier, 171 Wn.2d at 43-44.

As such, a compromise verdict would not have changed the outcome of the trial. Id. at 44.

       Accordingly, Hutchinson’s claim fails.13




13
   Hutchinson also cites State v. Daniels to support his argument. 183 Wn. App. 109, 332 P.3d
1143 (2014). However, this case is about the double jeopardy doctrine, which is irrelevant to
this claim.
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No. 45996-5-II
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3.     Tampering with a Witness

       Hutchinson also states that Young tampered with one of the State’s witnesses, N.H.,

because she talked to Young in the Pierce County Jail. The record indeed indicates that Young

and N.H. were involved in a relationship and talked frequently while he was in jail. However,

the record contains no evidence of coercion or tampering in these conversations. In fact, N.H.

testified that she never minimized anything that Young did or withheld information regarding

Young’s involvement. It is the province of the jury to determine N.H.’s credibility, and we will

not revisit that determination on appeal. State v. Dietrich, 75 Wn.2d 676, 677-78, 453 P.2d 654

(1969). Accordingly, we disagree with Hutchinson’s claim of witness tampering.

                                          CONCLUSION

       We hold that (1) the trial court reasonably exercised its discretion in ruling there was

sufficient evidence that the text messages were authenticated or identified as from Young, (2)

there was sufficient evidence presented at trial from which a rational trier of fact could have

found the elements of communication with a minor for immoral purposes beyond a reasonable

doubt for both defendants, (3) the prosecutor’s questioning of the witness about a pretrial

interview was not improper and did not impugn the integrity of defense counsel, (4) the

prosecutor’s discussion of accomplice liability during closing argument was not improper, and




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(5) none of the SAG claims warrant reversal of the defendants’ convictions. Accordingly, we

affirm Young’s and Hutchinson’s convictions.




                                                    BJORGEN, A.C.J.
 We concur:



MAXA, J.




LEE, J.




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