                                                                      FILED
                                                                   JULY 16, 2020
                                                           In the Office of the Clerk of Court
                                                          WA State Court of Appeals, Division III




         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                            DIVISION THREE

STATE OF WASHINGTON,                          )        No. 36738-0-III
                                              )
                     Respondent,              )
                                              )
               v.                             )        UNPUBLISHED OPINION
                                              )
MARK AARON MOEN,                              )
                                              )
                     Appellant.               )

       LAWRENCE-BERREY, J. — Mark Moen appeals after a jury found him guilty of two

counts of first degree child molestation and one count of unlawful imprisonment with

sexual motivation. He argues he received ineffective assistance of counsel when his trial

counsel failed to challenge the victim’s competency to testify and failed to object and

move to strike improper vouching and opinion testimony. We disagree and affirm his

convictions.
No. 36738-0-III
State v. Moen


                                          FACTS

       Danielle Nesbitt has three children—M.A.1 and her two older brothers. During the

fall of 2016, Ms. Nesbitt’s stepfather, Mark Moen, watched her three children from when

school let out until she came home from work. On December 28, 2016, Ms. Nesbitt was

talking with M.A., who was about seven years old. M.A. talked about her close bond

with the family’s new puppy. M.A. said the puppy follows her everywhere, except when

Grandpa Mark closes her bedroom door and they play Barbies.

       Ms. Nesbitt asked how she and her grandpa play with the Barbies. M.A. said the

Barbies kiss and have sex. Ms. Nesbitt asked if anything else happens. M.A. became

nervous and curled up a bit. M.A. then said Grandpa Mark touches her.

       Ms. Nesbitt began asking pointed questions. She asked if Grandpa Mark put his

fingers inside her. M.A. said “yes.” Report of Proceedings (RP) at 441. M.A. also told

her mother that Grandpa Mark would put it in her butt and it hurt. M.A. stated that this

would happen in the bedroom. After hearing this, Ms. Nesbitt contacted law

enforcement.



       1
          To protect the privacy interests of M.A., we identify her only through the use of
initials. General Order of Division III, In Re the Use of Initials or Pseudonyms for Child
Victims or Child Witnesses (Wash. Ct. App. June 18, 2012), http://www.courts.wa.gov
/appellate_trial_courts/?fa=atc.genorders_orddisp&ordnumber=2012_001&div=III.

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No. 36738-0-III
State v. Moen


       On January 4, 2017, pediatric nurse practitioner Fiona Dennison physically

examined M.A. The physical examination was normal. During the exam, M.A. told Ms.

Dennison “‘Grandpa put his finger in my private’” and “‘Grandpa put his private

halfway in my butt.’” RP at 542. M.A. explained it was the front and back private, but

his fingers only went in her private in the front. M.A. said when her grandpa’s private

was halfway in her private it hurt, but there was no bleeding.

       On January 10, 2017, child interview specialist Tatiana Williams conducted a

recorded interview with M.A. M.A. told Ms. Williams that Moen was “doing bad stuff to

me like, um, putting his finger in my privates . . . and putting his privates in my other

private.” State’s Ex. 1, at 17 min., 17 sec. through 17 min., 34 sec. M.A. said it

happened more than one time. M.A. recalled that Moen untied his sweatpants and put it

in her butt, but she could not remember what happened next, only that “it hurt real bad.”

State’s Ex. 1, at 27 min., 8 sec. through 27 min., 58 sec.; 31 min., 19 sec. through 31 min.,

29 sec. M.A. also said Moen made her draw pictures with “big breasts,” and that the

pictures were in her purple and black notebook. State’s Ex. 1, at 47 min., 29 sec. through

47 min., 46 sec.; 56 min., 30 sec.

       After the interview, Ms. Nesbitt searched M.A.’s bedroom and found the

notebook. It contained descriptive drawings of girls with very large breasts.


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No. 36738-0-III
State v. Moen


       The State charged Moen with two counts of first degree child molestation, two

counts of first degree child rape, and one count of unlawful imprisonment with sexual

motivation.

       On January 11, 2019, the court held a child hearsay hearing. Moen did not contest

M.A.’s competency, only the reliability and admissibility of M.A.’s hearsay statements.

The court found that M.A. was competent to be a witness, and her statements were

consistent and admissible at trial.

       The trial court entered the following relevant findings regarding M.A.’s

competency: M.A. was nine years old at the time of the hearing. M.A. understood her

obligation to tell the truth. M.A.’s mother stressed the importance of telling the truth in

their home. M.A. demonstrated clear memories of the time period during which the

sexual abuse occurred. M.A. was able to answer and clarify questions. M.A.’s

statements to Ms. Dennison about the abuse were made spontaneously and close in time

to the events. M.A.’s statements to Ms. Williams were also close in time. Ms. Williams

asked open-ended questions and did not introduce terms to M.A. M.A. corrected and

clarified statements with Ms. Williams throughout the interview.

       Moen proceeded to trial. The jury found Moen guilty of two counts of first degree

child molestation and one count of unlawful imprisonment with sexual motivation. The


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No. 36738-0-III
State v. Moen


jury found Moen not guilty of two counts of first degree child rape. The court convicted

Moen and sentenced him to 114 months to life.

       Moen timely appealed.

                                        ANALYSIS

       INEFFECTIVE ASSISTANCE OF COUNSEL

       Moen contends he received ineffective assistance of counsel in multiple ways. We

divide his arguments into two categories: Counsel’s failure to challenge M.A.’s

competency, and counsel’s failure to object to testimony.

              1.     Failure to challenge M.A.’s competency

       Moen first argues he received ineffective assistance because his trial counsel failed

to challenge M.A.’s competency to testify. The State initially argues that Moen cannot

raise this argument because defense counsel did not challenge M.A.’s competency and,

thus, invited the error. We disagree.

       The invited error doctrine prohibits appellate review of an error that the party sets

up at trial. State v. Momah, 167 Wn.2d 140, 153, 217 P.3d 321 (2009). “The doctrine

was designed in part to prevent parties from misleading trial courts and receiving a

windfall by doing so.” Id. However, the invited error doctrine does not apply when a

defendant maintains the error occurred as a result of ineffective assistance of counsel.


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No. 36738-0-III
State v. Moen


See State v. Aho, 137 Wn.2d 736, 745, 975 P.2d 512 (1999); State v. Rodriguez, 121 Wn.

App. 180, 183-84, 87 P.3d 1201 (2004); State v. Doogan, 82 Wn. App. 185, 188, 917

P.2d 155 (1996). We therefore address the merits of Moen’s first argument.

       To protect a defendant’s right to counsel, a defendant has the right to receive

effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct.

2052, 80 L. Ed. 2d 674 (1984). An allegation of ineffective assistance of counsel is a

mixed question of law and fact that we review de novo. Id. at 698. To determine whether

counsel provided effective assistance, we apply a two-pronged test: (1) whether counsel’s

performance was deficient, and (2) whether that deficient performance prejudiced the

defendant to an extent that changed the result of the trial. Id. at 687. We can address the

second prong initially “[i]f it is easier to dispose of an ineffectiveness claim on the ground

of lack of sufficient prejudice.” Id. at 697.

       The State argues Moen cannot establish prejudice. We agree. To establish

prejudice, Moen must show defense counsel would have been successful and, if

successful, the outcome of the trial would have been different. See State v. Emery, 174

Wn.2d 741, 755, 278 P.3d 653 (2012); In re Pers. Restraint of Davis, 152 Wn.2d 647,

711, 101 P.3d 1 (2004); State v. Trujillo, 153 Wn. App. 454, 459-60, 222 P.3d 129




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No. 36738-0-III
State v. Moen


(2009). As explained below, had defense counsel contested M.A.’s competency, he

would not have been successful in doing so.

        Competency is a low bar; all persons, including children, are presumed competent.

RCW 5.60.020; State v. Brousseau, 172 Wn.2d 331, 347, 259 P.3d 209 (2011). A young

child is competent to testify as a witness if that child has

        “(1) an understanding of the obligation to speak the truth on the witness
        stand; (2) the mental capacity at the time of the occurrence concerning
        which he is to testify, to receive an accurate impression of it; (3) a memory
        sufficient to retain an independent recollection of the occurrence; (4) the
        capacity to express in words his memory of the occurrence; and (5) the
        capacity to understand simple questions about it.”

In re Dependency of A.E.P., 135 Wn.2d 208, 223, 956 P.2d 297 (1998) (quoting State v.

Allen, 70 Wn.2d 690, 692, 424 P.2d 1021 (1967)).

        Moen argues that M.A. did not demonstrate she understood her obligation to tell

the truth. We disagree. The trial court found that M.A. knew the difference between a

truth and a lie, and her mother stressed the importance of telling the truth.2 Had defense

counsel contested the first competency element, the trial court would have found against

Moen.



        2
         Moen has not assigned error to any of the trial court’s competency findings. We
accept the findings as true. In re Interest Mahaney, 146 Wn.2d 878, 895, 51 P.3d 776
(2002).

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No. 36738-0-III
State v. Moen


       Moen next contends that M.A. did not demonstrate an ability “to accurately relate

events contemporaneous to the alleged abuse.” Appellant’s Br. at 31. Moen complains

that Ms. Williams did not establish in the recorded interview that M.A. could recall

events even the day prior to the interview. Accurately relating contemporaneous events is

not one of the five requirements for establishing child competency. To the extent Moen is

arguing that memory is a necessary component of competency, his argument fails. The

trial court found that M.A.’s statements to Ms. Nesbitt, Ms. Williams, and Ms. Dennison

were made close in time to the events and were consistent. The fact that M.A. made

consistent statements to three adults near the time of the events shows M.A. had a good

memory. Had defense counsel challenged M.A.’s memory, the trial court would have

found against Moen. Moen fails to show prejudice because had he challenged M.A.’s

competency, the trial court would have found her competent to testify.

              2.     Failure to object to testimony

       Moen next contends he received ineffective assistance of counsel because his trial

counsel failed to object when Ms. Nesbitt and Ms. Williams vouched for M.A.’s

credibility or when Ms. Williams provided improper opinions.




                                             8
No. 36738-0-III
State v. Moen


                                         Ms. Nesbitt

       During trial, the State asked Ms. Nesbitt how she felt after hearing M.A. disclose

the sexual abuse to her. Moen objected, and the trial court overruled it. The State

nevertheless rephrased its question, and asked Ms. Nesbitt how she responded to M.A.

Ms. Nesbitt testified, “I mean, obviously I told her I believed her and I—I let her know it

was going to be okay.” RP at 443. Moen did not object after this statement.

       Declaring the victim to be telling the truth in essence is an opinion that the

defendant is guilty. Opinions on guilt are improper whether made directly or by

inference. State v. Quaale, 182 Wn.2d 191, 199, 340 P.3d 213 (2014). Courts consider

five factors when determining whether such testimony constitutes improper vouching:

(1) the type of witness involved, (2) the specific nature of the testimony, (3) the nature of

the charges, (4) the type of defense, and (5) other evidence before the trier of fact. State

v. Kirkman, 159 Wn.2d 918, 928, 155 P.3d 125 (2007).

       We do not think Ms. Nesbitt’s reassurance to her nervous daughter qualifies as

vouching, much less improper vouching. Nor do we think Moen was prejudiced by

defense counsel’s failure to object. The jury did not return a guilty verdict because Ms.

Nesbitt reassured her nervous daughter that she believed her. The jury returned a guilty




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No. 36738-0-III
State v. Moen


verdict because it found M.A. credible, and her statements to her mother, Ms. Williams,

and Ms. Dennison were specific and consistent.

                                        Ms. Williams

       The State asked Ms. Williams a series of questions about how child memory is

affected by the passage of time, traumatic events, and testifying in court in front of

several people. Ms. Williams conceded she was not an expert in such things, but

answered that these factors could explain problems in a child’s testimony.

       Moen argues the questions did not require an expert opinion, and Ms. Williams’s

opinions were lay opinions by an expert and likely were given significant weight by the

jury. Given that Ms. Williams told the jury she was not an expert in this area, we would

have to speculate whether the jury gave her opinions much weight. Moen’s argument

requires us to speculate whether his trial counsel’s failure to object resulted in prejudice.

It is just as likely the jurors reached their own independent opinions on these matters,

given that these opinions were within their general knowledge.

       The State also asked Ms. Williams if anything M.A. said made her believe M.A.

was being coached. Ms. Williams’s answer drew a long response. She reviewed various

detailed answers given by M.A., and then said, “[T]hose type of things you wouldn’t find




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No. 36738-0-III
State v. Moen


coming from a child if it hadn’t really been experienced.” RP at 623. Moen objected,

and the trial court sustained the objection.

       Before closing arguments and with the jury absent, defense counsel told the court

he should have objected earlier to Ms. Williams’s answer. Defense counsel also asked

the court to instruct the prosecutor to refrain from arguing another witness statement that

he had objected to and the trial court had sustained. This other statement came from the

child interviewer, who testified that the explicit pictures drawn by M.A. could only have

been drawn from someone who had experienced something similar to what M.A. alleged.

The court instructed the prosecutor not to draw the jury’s attention to either statement

because it had sustained both objections. The prosecutor agreed and did not discuss those

statements in her closing.

       Moen argues he received ineffective assistance of counsel because defense counsel

failed to ask the court to strike both of those improper statements. Moen argues, unless

the improper statements were struck by the court, the jury was entitled to consider them.

Given the court’s explicit instructions to the jury, we disagree.

       The court instructed the jury just before closing arguments. The first instruction

the court read to the jury stated in part: “If I have ruled that any evidence is inadmissible

. . . then you must not discuss that evidence during your deliberations or consider it in


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No. 36738-0-III
State v. Moen


reaching your verdict." Clerk's Papers at 125. We presume the jury followed the court's

instruction and did not consider either improper statement. State v. Kalebaugh, 183

Wn.2d 578, 586, 355 P.3d 253 (2015). Presuming the jury did not consider either

improper statement, we conclude that defense counsel's failure to request that the answers

be struck did not prejudice Moen.

      Affirmed.

      A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to

RCW 2.06.040.


                                         Lawrence-Berrey, J.
                                                                         j
WE CONCUR:




Korsmo, A.C ..




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