                                                                                                        COU[; t OF APPEALS
                                                                                                             Df !VIJM It
                                                                                                      2015 JUN 23     11 8: 31




        IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                      DIVISION II

    STATE OF WASHINGTON,                                                           No. 45607 -9 -II


                                            Respondent,


              v.




    GEORGE THOMAS STRANGE,                                                   UNPUBLISHED OPINION


                                            Appellant.


             JOHANSON, C. J. —           George T. Strange appeals his jury trial convictions for one count of

second degree child molestation and one count of voyeurism. He argues that ( 1) his right to a fair

trial   by   an    impartial   jury   was violated, ( 2)   his trial counsel was ineffective because counsel failed


to object to the admission of irrelevant and improper opinion testimony, and ( 3) his right to a

unanimous jury verdict on the second degree molestation charge was violated because the trial

court did not give a Petrichl instruction. We hold that Strange received a fair trial because his jury

was impartial, Strange' s trial counsel' s decision to not object to a video of Strange' s police


interview was a legitimate trial tactic, and Strange was not entitled to a Petrich instruction because


the State relied on only one act of molestation. Accordingly, we affirm the convictions.




1
    State    v.   Petrich, 101 Wn.2d 566, 683 P. 2d 173 ( 1984).
No. 45607 -9 -II



                                                                   FACTS


            From 2011 to 2013, Strange lived with his wife and his wife' s children. J. M. was 12 years


old when, one night,            Strange    came    into her bedroom to tuck her in                  as   he usually did. However,


according to J.M., Strange "              asked    to   give [     her]   a --   a   breast   exam."     1B Report of Proceedings


 RP)   at   224.      Strange told J.M. that he was trying to help her learn how to detect cancer. Strange

and   J. M. had       not    discussed breast     cancer or        breast      exams    before. But Strange lifted J. M.' s shirt


and spent       three to      five   minutes   touching both          of      her breasts. When Strange thought that J.M.' s


mother had returned home, he stopped and told J. M. not to tell her mother what had happened.


            One morning after this event, J. M. woke up to find Strange looking down and into her

shorts. At some point while J.M. was sleeping, Strange had come into her bedroom and used his

hands to lift her shorts and underwear so that he could look into her shorts and at her genitals. J. M.


pretended to be asleep, rolled over in bed, and Strange left the room.

            In October 2013, the State charged Strange with one count of second degree child

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molestation           and    one count of voyeurism.                 During voir dire, the court and counsel asked the

prospective jurors, among other things, about their personal experiences with child molestation.

Although most of the jurors had no personal experience with child molestation, almost one -third


of the jurors knew someone who was either a victim or had been charged with child molestation.


In response to the court' s questioning, juror no. 54 stated,

                       JUROR: Um -- what I said before, like, I know people that I know. Like
            it' s   not an   easy    accusation   to   make.     Like, it is hard for         people ( inaudible).   It' s like
            if accusations were made there' s something behind that.


2 RCW 9A.44. 086.

3 RCW 9A.44. 115( 2)( a).

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No. 45607 -9 -II


                     JUDGE]:         Okay.     So, let   me ask you       this, ...   I mentioned this earlier that
            we talked about the presumption of innocence. That a person that' s charged with
         a crime     is -- is presumed innocent and that presumption continues throughout the
         entire   trial.   Is that something that you think you could use and implement that --
         that presumption of innocence throughout the entire trial starting now going
         forward?
                    JUROR: I don' t -- like, I don' t have a ton of experience but it has just been
         my experience people don' t make that accusation, you know, for no reason. Like,
         I feel like if an accusation was made there had to be something that had happened.

1 A RP at 72. Juror no. 54 was excused for unrelated hardship reasons.

         J.M. testified      at    trial   about   Strange'   s actions       consistently   with   the   above narrative.      In


addition,   she   testified that    when    Strange   would give        her   massages,   he occasionally " touch[ ed] [ her]


butt."   1B RP at 241.


         J. M.    worked    at    the    restaurant   that her   mother owned.            J.M.' s mother, her brother, and


Johnathan Layman, who also worked at J.M.' s mother' s restaurant, testified about Strange' s


behavior around J. M. J.M.' s mother testified that Strange spent more time with J. M. and that he


was often aggressive,         pulling J. M. into his          lap   and   holding     onto   her   and    hugging   her.   J. M.' s


brother stated that Strange wanted to buy J.M. thong underwear and that he often spent at least 15

to 30 minutes in J. M.' s bedroom                at night   tucking her in. Layman testified that Strange would

occasionally      visit    J. M.    at   work.     He explained some of Strange' s behavior, including his

expectation that J. M. would kiss him on the lips when he came in and hugging J.M. from behind

so that he could place his hands under her breasts.


         Detective Todd McDaniel also testified and the State played a video of Detective


McDaniel' s interview with Strange prior to his arrest. Strange did not object to playing the video

or   admitting it into      evidence.        In the interview, Detective McDaniel confronted Strange about


J.M.' s accusations of "inappropriate touching of [her] breasts" and " looking like down her pants


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No. 45607 -9 -II



one    time    while she was             sleeping."      1C RP    at   362. Strange admitted that he performed the breast


exam on         J. M., but insisted that          she    had    asked   him to do it.    He also denied ever looking down

J. M.' s     pants      at   her   genitals.      Strange said that because he had gone to nursing school, he

 approach[ ed] things in a very medical manner" and his intentions with the breast exam were not

sexual. 1C RP at 364. Detective McDaniel also asked Strange if, when he tucked J. M. in at night,

he   would ever          touch her buttocks            and " she would roll       over," presumably     so   he   would   leave.   1C


RP    at   371.       Strange insisted that this did not happen.


             In trying to get Strange to open up about his relationship with J.M., Detective McDaniel

was at times aggressive in his questioning. After Detective McDaniel asked Strange if he thought

that   his " behavior         was appropriate,"          Strange told him that he thought helping his daughter to learn

how to      perform a        breast     exam was " what         any father would do."    1C RP at 397. Detective McDaniel


disagreed         and responded,            saying that " we know better than that        and you' re --     you' re trying to feed

me a       line ...     of   baloney."        1C RP     at   398 -99. Strange     conceded   that   maybe "[   1] ooking at it back,

hindsight,        yeah, maybe           I   shouldn'   t have done it."      1C RP at 399. Detective McDaniel agreed and


said, "[     S] o I think you' re giving out certain details just to make your story better" and that "usually

 the truth]' s a        little   somewhere       in the      middle."    1C RP at 399.


             Finally, Karen Joiner, who is Strange' s former nursing school instructor as well as the Dean

of Instruction and Director of Nursing at Lower Columbia College, also testified. Joiner testified

that in the one semester that Strange was in nursing school, he would never have learned how to

do a breast exam and that breast exams are, traditionally, not necessary for children.

             Strange did not call any witnesses nor did he testify. The jurors were instructed that they

 are   the sole        judges      of   the credibility      of each witness. [   They] are also the sole judges of the value


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No. 45607 -9 -II


or weight    to be   given   to the   testimony    of each witness."   Clerk'   s   Papers   at   20.   Neither party

requested a Petrich instruction and the court did not give one. The jury convicted Strange on both

counts.    Strange appeals his convictions.


                                                    ANALYSIS


                         I. JURORS' COMMENTS DID NOT TAINT THE JURY VENIRE


          Strange argues that his right to a fair trial by an impartial jury was violated because of

prospective jurors' statements concerning their own prior experiences with child molestation,

either in their families or among friends or acquaintances, which tainted the entire jury venire.

Strange' s sole argument is that this case is factually similar to Mach v. Stewart, 137 F. 3d 630 ( 9th

Cir. 1997). We disagree.


          The Washington Constitution guarantees a criminal defendant the right to a fair trial by

 unbiased     jurors."   WASH. CONST.,      art.   I, § 22; State v. Momah, 167 Wn.2d 140, 152, 217 P. 3d


321 ( 2009).    The Sixth Amendment to the United States Constitution also guarantees the right to


a fair trial by impartial jurors. Irvin v. Dowd, 366 U.S. 717, 722, 81 S. Ct. 1639, 6 L. Ed. 2d 751

 1961).     We review constitutional questions de novo. State v. Siers, 174 Wn.2d 269, 273 -74, 274

P. 3d 358 ( 2012).


           In Mach, the Ninth Circuit held that a prospective juror who was a social worker had tainted


the entire jury venire with her responses to questions from counsel and the court.4 137 F.3d at
631 -33.     The defendant was charged with sexual misconduct with a minor and, in response to




4 Mach' s conviction was of an Arizona offense in Arizona state courts. The Ninth Circuit' s review
was of the district court' s denial of a habeas corpus petition and its decision was based on federal
Sixth Amendment law.
No. 45607 -9 -II



questions, the prospective juror stated that she " would have a difficult time being impartial given

her line of work, and that sexual assault had been confirmed in every case in which one of her

clients reported such an assault."          Mach, 137 F. 3d at 632. Addressing further questions from the

court, the prospective juror confirmed this opinion three additional times and also stated that she


had taken      courses       in psychology      and   had   worked "   extensively"     with    psychologists        and



psychiatrists on these issues. Mach, 137 F. 3d at 632.


        The Ninth Circuit relied in particular on the fact that the prospective juror


         a) . . .      had a certain amount of expertise in this area ( she had taken child
        psychology courses and worked with psychologists and psychiatrists; she worked
        with children as a social worker for the state for at least three years); and ( b) [ made]

        four separate statements that she had never been involved in a case in which a child
        accused an adult of sexual abuse where that child' s statements had not been borne
        out.




Mach, 137 F.3d        at   632 -33.   Relying on these   considerations,   the Ninth Circuit   concluded    that "[ a] t


a minimum,"         when the defendant moved twice for a mistrial, the trial court should have at least


conducted further voir dire and because the court did not conduct further voir dire, the court


presumed that " at least one juror was tainted" by the prospective juror' s statements. Mach, 137

F.3d at 633.


        Here, the facts         are   distinguishable from Mach for        at   least two   reasons   because ( 1)    no




prospective juror professed any expertise about these cases, and (2) none of the prospective jurors

in this case stated multiple times that, in their experience, children who are sexually abused never

lie about their abuse. 5




5 Another significant difference between Mach and this case is that in Mach the defendant moved
for a mistrial twice explaining its concerns about " the effect [ the social worker' s] statements had
on the other panel members" to the court. 137 F. 3d at 632. Here, because there was no objection,
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No. 45607 -9 -II



             First, unlike the social worker in Mach, here there were no jurors claiming expertise.

Although at least two of the prospective jurors were teachers and one was an elementary school

principal, and each of these prospective jurors admitted that they feel more instinctively protective

of children, none of them claimed to speak authoritatively about whether a child is being truthful

when she alleges that she is a victim of molestation. Therefore, the Ninth Circuit' s concern about


a prospective juror with more credible, authoritative knowledge tainting the rest of the venire is

not present here.


             Secondly, none of the prospective jurors stated multiple times that, in their experience,

child molestation victims never                lie   about   being   molested.     Most jurors were merely questioned

about    their    experiences with child molestation and asked                   if they   could remain   impartial.    Some


jurors admitted to a potential bias, most said that they thought that they could apply the court' s

instructions impartially, and two prospective jurors asked for individual voir dire, preferring not

to talk about their experiences in front of the rest of the venire. Even juror no. 54the prospective


juror   whose statements           Strange identifies particularly —said           only that he thinks child molestation

is "   not   an   easy      accusation   to   make"    and that, in his limited experience, people do not make


accusations of molestation " for no reason."                  1A RP at 72. But juror no. 54' s statement is different


from the       social worker' s      in Mach because he          qualified   his   statement,   prefacing it   by   saying, " I


don' t have       a   ton   of experience."    1A RP at 72. In contrast, the social worker in Mach relied on her

experience and her credentials to add weight to her much more unequivocal claim that victims of




the trial court had no opportunity to consider whether any of the prospective jurors' statements
might have compromised the jury' s ability to be impartial.
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No. 45607 -9 -II



child molestation never            lie. 137 F. 3d    at   632- 33.   Because Mach is factually distinguishable, we

conclude that Mach does not control the outcome here.


              We agree with the State and hold that Strange received a fair trial by an impartial jury.

                                       II. INEFFECTIVE ASSISTANCE OF COUNSEL


              Strange argues that his trial counsel was ineffective because he failed to object to the


admission           of a video    recording   of   Detective McDaniel' s interview         of   Strange.   Because trial


counsel' s failure to object was a legitimate trial tactic, it cannot be said that Strange' s trial

counsel' s performance was              deficient.   Therefore, his claim for ineffective assistance of counsel


fails.


                                                A. STANDARD OF REVIEW


              In order to prove ineffective assistance of counsel, Strange bears the burden to prove that

               1)    defense   counsel' s representation was         deficient, i. e., it fell below an objective
              standard of reasonableness based on consideration of all the circumstances; and (2)
              defense counsel' s deficient representation prejudiced the defendant, i.e., there is a
              reasonable probability that, except for counsel' s unprofessional errors, the result of
              the proceeding would have been different.

State    v.   McFarland, 127 Wn.2d 322, 334 -35, 899 P.2d 1251 ( 1995).                    We need not consider both


prongs of           this test if the defendant fails to     prove either one.     Strickland v. Washington, 466 U.S.


668, 697, 104 S. Ct. 2052, 80 L. Ed. 2d 674 ( 1984).                       We apply a strong presumption that trial

counsel was not            deficient   and we   do   not consider matters outside        the   record.   McFarland, 127


Wn.2d at 335.


              Where a defendant claims ineffective assistance of counsel for his trial counsel' s failure to


object, he must also prove that the decision not to object was not a legitimate trial tactic. State v.


Hendrickson, 129 Wn.2d 61, 79 -80, 917 P. 2d 563 ( 1996). " If defense counsel' s trial conduct can




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No. 45607 -9 -II



be characterized as legitimate trial strategy or tactics, then it cannot serve as a basis for a claim

that the defendant did      not receive effective assistance of counsel."                      State v. Lord, 117 Wn.2d 829,


883, 822 P. 2d 177 ( 1991).          We apply a strong presumption that trial counsel rendered adequate

assistance and " made all significant decisions in the exercise of reasonably professional judgment"

and the reasonableness of counsel' s performance must be performed in view of all of the facts and


circumstances of the       case.   Lord, 117 Wn.2d          at   883. In particular,         "[ t]he   decision whether to object


is a classic example of trial tactics, and only in egregious circumstances will the failure to object

constitute   ineffective    assistance   of   counsel."      State v. Kolesnik, 146 Wn. App. 790, 801, 192 P. 3d

937 ( 2008).


   B. NOT OBJECTING TO THE VIDEO WAS A TRIAL TACTIC, NOT DEFICIENT REPRESENTATION


        Strange argues that Detective McDaniel' s statements were improper opinion testimony

because they were offered to encourage the jury to rely on the detective' s opinion that Strange was

lying. Even assuming that Detective McDaniel' s statements were improper opinion testimony,

Strange must prove that his trial counsel' s failure to object was not a legitimate trial strategy. The

State argues that trial counsel' s failure to object was a legitimate trial tactic because it permitted


Strange to   put on   his defense      without    having     to    testify    at   trial.   Specifically, the State argues that

Detective McDaniel         asked    Strange " every    reasonable question,"                that Strange defended himself and


maintained     his innocence despite Detective McDaniel'                       s"   disbelief,"    and that the jury saw how

Strange   reacted   to tough       questions.    Br.   of
                                                            Resp' t     at   25.    We agree with the State and hold that,


even assuming that Detective McDaniel' s statements were irrelevant or improper opinion

testimony, Strange'    s   trial   counsel' s   decision     not   to   object was a        legitimate trial tactic.
No. 45607 -9 -II



          In Kolesnik, the defendant was charged with first degree assault, and we held that trial


counsel' s failure to object to an expert witness' s testimony that the defendant had anti- social

personality disorder and feels no remorse for his actions was not ineffective assistance of counsel.

146 Wn. App. at 796 -97, 801 -02. We held that the failure to object was not deficient representation

because trial counsel relied on the expert' s testimony to explain the defendant' s mental health and

the defendant explicitly told the court he agreed to the expert' s proposed testimony. Kolesnik, 146

Wn. App. at 801 -02.

          Here, Strange argues that his trial counsel was ineffective because he failed to object to


Detective McDaniel'      s statements    during   his interview   with   Strange.   But playing the entire video

at   trial had legitimate,   strategic purposes:     Strange presented his defense without having to testify

at trial, without,being subjected to cross -examination by the prosecution, and the jurors saw how

he reacted to tough questioning. Like in Kolesnik, Strange' s trial counsel here relied on the defense

that Strange put forth in his interview with Detective McDaniel, arguing that the sexual contact

element was not met          because J. M.   asked   Strange to   show    her how to do    a   breast   exam.   Not


objecting to the additional, more aggressive questioning during his interview with McDaniel

permits the jury to see how Strange responded to tough questions about his behavior. Instead of

calling Strange to testify at trial, his trial counsel, presented with a tape of the interview, could

have reasonably decided to allow the jury to see Detective McDaniel testing Strange' s story and

his credibility. Strange' s trial counsel may have determined that the version of Strange' s defense

from the interview           was   sufficiently convincing     and,   thus,   preferred the interview to the


unpredictable results of questioning from the prosecutor at trial.




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No. 45607 -9 -II



              Although Strange never suggests redacting the video, the State is also correct that, even if

Strange' s trial counsel had objected and requested that the video be redacted, some of the context

of   Strange'    s responses would     be lost. There is also a risk that significant redactions might force


the State to forego the video completely, requiring Strange to testify in order to present his defense

at   trial.     It is Strange' s burden to demonstrate that his trial counsel' s failure to object to the

admission of Detective McDaniel' s statements " fell below an objective standard of reasonableness


based    on consideration of all      the   circumstances."   McFarland, 127 Wn.2d at 334 -35. His argument


that " there was no possible tactical reason for the defense attorney to sit mute and fail to object"

is insufficient to meet that burden in light of the State' s arguments that playing the video,

unredacted, allows the jury to see and to weigh Strange' s defense, in context, without requiring

him to testify in court. Br. of Appellant at 24.

              Because allowing the admission of the video interview was a legitimate trial tactic, trial

counsel' s       performance    was   not    deficient.   Because failure to prove either prong defeats an

ineffective assistance of counsel claim, we hold that Strange' s claim for ineffective assistance of

counsel fails.


                                       III. No PETRICH INSTRUCTION REQUIRED


              Strange argues that the trial court violated his right to a unanimous jury verdict on the

second        degree   child molestation charge.      He asserts that the court erred when it failed to give a


Petrich instruction after the State argued that he molested J. M. both when he " showed her how to


perform a breast exam" and when he touched her buttocks. Br. of Appellant at 27. We disagree.




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No. 45607 -9 -II



                                   A. STANDARD OF REVIEW AND RULES OF LAW


          We review the adequacy ofjury instructions de novo. State v. Pirtle, 127 Wn.2d 628, 656,

904 P. 2d 245 ( 1995). Under the Washington and United States Constitutions, a criminal defendant


is   entitled   to   a unanimous    jury    verdict rendered      by   an   impartial   jury.   WASH. CONST.   art.   I, § 21;


U. S. CONST.         amend.   VI; State    v.   Beasley,   126 Wn.     App. 670,    682, 109 P. 3d 849 ( 2005).       Where


the State offers evidence of multiple acts that could each form the basis for one charged crime,


either ( 1) the State must choose which of the acts it relied on or ( 2) the court must give a Petrich


instruction to the jury requiring them to agree on a specific criminal act. State v. Bobenhouse, 166

Wn.2d 881, 893, 214 P. 3d 907 ( 2009).


          A violation of a defendant' s right to a unanimous verdict is constitutional error.


Bobenhouse, 166 Wn.2d              at    893.    Where the error is constitutional, the State bears the burden to

prove the error was harmless beyond a reasonable doubt. State v. Vander Houwen, 163 Wn.2d 25,


39, 177 P. 3d 93 ( 2008).

          A defendant commits second degree child molestation when he " has, or knowingly causes

another person under the age of eighteen to have, sexual contact with another who is at least twelve


years old but less than fourteen years old and not married to the perpetrator and the perpetrator is


at   least thirty -six   months older      than the    victim."   RCW 9A.44. 086( 1). "         Sexual contact" is defined


as " any touching of the sexual or other intimate parts of a person done for the purpose of gratifying

sexual    desire     of either   party   or a   third party."   RCW 9A.44. 010( 2).


                         B. THE STATE CHOSE To RELY ON ONE ACT OF MOLESTATION


           Here, the State solely argued that touching J. M.' s breasts amounted to an act of child

molestation.          In its opening       statement,    the State     claimed    that Strange " is charged with child




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No. 45607 -9 -II



molestation        in the   second   degree for touching [ J. M]'    s   breasts   when she was        twelve    years old."   1B


RP    at   202. J. M.' s    testimony    was also   focused    on   Strange'     s offer     to   perform a   breast   exam.   She


testified that he offered to give her a breast exam and that he touched both of her breasts with his


hands for three to five minutes after pulling up her shirt. J.M. testified that it did not hurt but that

it felt "[ n] ot   right" and that Strange stopped touching her breasts when she told him that she thought

her   mother was       home.     1B RP 228. J. M. also confirmed that she and Strange had not discussed


cancer prior to his offer to do an exam and that Strange' s concern about breast cancer and, thus,


the need to do an exam was unexpected.


            The State also argued in its closing that the breast touching was the act of sexual

molestation. It began its closing argument by summarizing the case:

            I started yesterday by telling you this was a simple and straightforward case. And,
            it has been. All you need in this case is your common sense. The State presented
            evidence    that the Defendant touched [ J. M.]'         s   breasts ....         The only question you
            have before you is, was this done for the purposes of sexual gratification?


1C RP at 448. The State continued to explain the elements of each charge and concentrated heavily

on    the definition    of " gratifying sexual      desire."   1C RP       at   450; RCW 9A.44. 086( 1), .         010( 2).    The


State emphasized seven examples of Strange' s behavior to support the conclusion that the ultimate


act of child molestation—            touching J. M.' s breasts —was for the purpose of gratifying sexual desire:

  l] ook at everything together with that idea and with all those seven things in mind and go to the

night      that   she was   talking   about   the breast   exam."    1C RP       at   453.    The State did not suggest that


any contact, other than the breast touching, was the basis for the sexual contact element of the

molestation charge.




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No. 45607 -9 -II



            In its rebuttal, the State again referred to the seven other instances of inappropriate behavior

with   J.M.    as "[   g] rooming" in preparation for the night when Strange offered to give her a breast

exam.       1C RP at 476. The State did not mention Strange touching J. M.' s buttocks.

            The State      mentioned     Strange      touching J. M.' s buttocks only            a couple of    times.   It elicited


testimony from J.M. directly only                   once   in   reference    to the fact that Strange " touch[ ed]       [   her] butt


when     he   massaged"      her. 1B RP        at   241.    In the recording of his interview with Strange, Detective

McDaniel asked whether, when Strange tucked J. M. into bed at night, he would " touch her rear


end and she would roll over."                  1C RP       at   371.    Strange points to these two comments alone to


support       his   argument   that "    it   was    well within       the   province of some       of   the   jury   members"     to



conclude that either the breast touching or the buttocks touching could establish the child

molestation that the State alleges. Br. of Appellant at 28. But these stray comments were offered

as evidence that Strange touched J. M.' s breasts for the purpose of sexual gratification and not as


evidence       of   the   sexual    contact.        Finally, the State also mentioned J. M.' s buttocks during its

explanation of the " sexual contact" element of child molestation when it offered a list of "intimate


parts"   that included "[      b] utt, lower torso,         upper chest, places        that   swimsuits would cover."          1C RP


at   450.     This, likewise, does not overcome the fact that the only " intimate part" the State argued

that Strange touched was her breasts.


            In the context of the State' s opening statement, the testimony it elicited at trial, and its

closing and rebuttal, it is clear the State chose to rely on the touching of the breasts to support the

sexual      contact       element   of   the   child       molestation       charge.     Thus, no Petrich instruction was


necessary.




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No. 45607 -9 -II



        Affirm.


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

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2. 06. 040,


it is so ordered.




 We concur:




 B7




 7
 SUTTON, J.




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