                                                                                              Filed
                                                                                        Washington State
                                                                                        Court of Appeals
                                                                                         Division Two

                                                                                         August 20, 2019




      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                           DIVISION II
    STATE OF WASHINGTON,                                            No. 51098-7-II

                                  Respondent,

          v.

    JEREMIAH ALLEN TEAS,                                        PUBLISHED OPINION

                                  Appellant.

         LEE, J. — Jeremiah A. Teas appeals his conviction for first degree rape by forcible

compulsion, arguing that (1) the prosecutor engaged in numerous instances of misconduct, (2) the

trial court abused its discretion in refusing to give his requested consent instruction, and (3) his

sentence under Washington’s Persistent Offender Accountability Act (POAA) constitutes cruel

punishment under article I, section 14 of the Washington Constitution. We disagree and affirm.

                                                FACTS

A.       THE RAPE AND INVESTIGATION

         R.C.1 posted an advertisement offering massage services under the “Escorts” category of

an online forum. 3 Verbatim Report of Proceedings (VRP) (Sept. 12, 2017) at 287. Teas, who

was 39 years old at the time, responded to the advertisement and arranged for R.C. to give him a



1
    We use the victim’s initials to protect her privacy.
No. 51098-7-II



massage at R.C.’s apartment. When Teas arrived at R.C.’s apartment, she led him into her

bedroom and closed the door behind them. R.C. bent over to place her cellphone on the bedside

table, at which point, Teas jumped on her back, held a pocketknife blade to her throat, and said he

was going to rape her.

       R.C. told Teas that she would “do whatever he wanted” if he put the blade away. 3 VRP

(Sept. 12, 2017) at 297. Teas put the blade away and had sexual intercourse with R.C. for a couple

of minutes. Teas had difficulty maintaining an erection, so R.C. suggested that she get lubricant

to help. Teas agreed, and R.C. walked toward the bedroom door. Teas intercepted R.C. at the

bedroom door and instructed her not to leave the bedroom. R.C. struggled with Teas at the door,

pushed the door open, and ran screaming toward her roommate’s bedroom. R.C. hid in her

roommate’s bedroom until R.C. looked out the window and saw Teas exiting the front of her

apartment building. R.C. contacted law enforcement.

       Teas left his knife and hat in R.C.’s bedroom. The knife handle later tested positive for

both R.C.’s and Teas’s deoxyribonucleic acid (DNA) profiles. A sample swab of the hat also

matched Teas’s DNA profile. And samples taken from stains found on R.C.’s bedsheets matched

Teas’s DNA profile. The samples taken from R.C.’s bedsheets tested negative for the presence of

blood. Law enforcement later detained Teas, and he claimed that he was nowhere near R.C.’s

apartment but was only in the area visiting a friend.




                                                 2
No. 51098-7-II



B.     RELEVANT PORTIONS OF TRIAL

       1.      Witness Testimony

       The State charged Teas with one count of first degree rape by forcible compulsion. At

trial, R.C., law enforcement, including Deputy Richard Osborne of the Clark County Sheriff’s

Office, and a forensic scientist with the Washington State crime laboratory testified to the facts

discussed above.

       R.C. testified that after Teas put his knife away, he asked her to kiss him and perform oral

sex on him. R.C. said no to both requests. On cross-examination, R.C. admitted that she was not

a licensed massage therapist.

       The sexual assault examination nurse who examined R.C. testified that R.C. told her the

same facts detailed above, except R.C. told her that Teas suggested the lubricant, not R.C.

       Teas also testified and denied having sexual intercourse with R.C. According to Teas, he

only expected to receive a “happy ending” massage from R.C. 5 VRP (Sept. 13, 2017) at 673.

Teas stated that R.C. had asked him to take off his pants, and that he pulled them down to his mid-

thigh. R.C. then “proceeded to take off her pants that she was wearing.” 5 VRP (Sept. 13, 2017)

at 657. Teas asked R.C. if she would kiss him or perform oral sex on him. R.C. said no to both

requests. Teas “was trying—having some problems trying to become erect and she had said, ‘Well,

we need to have a condom on because I am not on any birth control.’” 5 VRP (Sept. 13, 2017) at

658. R.C. then gave Teas a condom that she had stored in the desk next to her bed. Teas still had

difficulty maintaining an erection, and R.C. “proceeded to ask if she could get some lube, hence,

ask for a penis pump to help [him] become erect because [he] was having trouble[] with it.” 5




                                                3
No. 51098-7-II



VRP (Sept. 13, 2017) at 658. At this point, he reached into his pocket to give R.C. money and

accidentally displayed the knife he had kept in his pocket. R.C. ran away screaming at the sight

of the knife, and Teas quickly left the apartment.

       On cross-examination, Teas repeatedly denied that he expected to receive any service other

than a massage from R.C. He also claimed that the two never had sexual intercourse because he

was unable to maintain an erection.

       2.      Request for Consent Instruction

       At the close of evidence, Teas proposed a jury instruction on consent. The trial court found

that the evidence at trial did not support the instruction because Teas claimed that sexual

intercourse never occurred, not that it was consensual and denied Teas’s request to include a

consent instruction.

       3.      Opening Statement and Closing Argument

       During opening statement, the prosecutor stated, “The DNA from the blood stain on

[R.C.]’s bed matched the defendant’s DNA.” 2 VRP (Sept. 11, 2017) at 196. In closing, the State

argued that R.C.’s version of what happened between her and Teas had “been consistent from the

very beginning” in what she told police, the sexual assault examination nurse, and defense counsel.

6 VRP (Sept. 14, 2017) at 724. And the State argued that the jury could conclude from this

consistency that R.C. did not fabricate the details of what happened.

       Later, in discussing Teas’s knife, the prosecutor argued:

               Now, it is not a gun. It’s not a firearm. It’s not a pistol, a revolver, because
       those are, per se, deadly weapons. Okay? But the manner in which this instrument,
       this implement was used, with either blade, and the proximity to a person’s neck,
       constitutes a deadly weapon.



                                                  4
No. 51098-7-II




               And we know that something like this has been used in the past. Okay? I’m
       not saying—what I’m about to say, and I will preface this by saying this is not a
       terrorist act. This is not even close to 9/11. Okay? But we all know what was
       reported about the people who meant to harm on—on those planes that crashed into
       the—the twin towers. What did they have? Box cutters.

              This, ladies and gentleman, with this blade exposed, the manner in which it
       was used, is a deadly weapon.

6 VRP (Sept. 14, 2017) at 735-36.

       The State also argued that all of the DNA evidenced placed Teas in R.C.’s bedroom. The

State then argued that Teas’s testimony “defie[d] logic” and “ma[de] no sense” because Teas told

the police he was nowhere near R.C.’s apartment. 6 VRP (Sept. 14, 2017) at 733.

                So that’s another reason why, ladies and gentlemen, the defendant decided
       to testify. He saw the overwhelming evidence against him. Couldn’t deny the
       DNA. Could not deny the DNA.

               ....

               . . . Again, the estimated probability of selecting an unrelated individual at
       random in the U.S. population with a matching profile is 1 in 130 quintillion. These
       are things that the defendant cannot dispute, cannot rebut. And so that’s why he
       got on the stand yesterday and came—came up with a story to try and explain away
       what happened. And he wrapped up some of the things that have been proved to
       be true. For example, his presence there, because he can’t deny that he wasn’t there
       because he was. But he had to explain why and how and then deny that he was able
       to engage in sexual intercourse.

6 VRP (Sept. 14, 2017) at 747-48.

       Teas did not object to any portion of the State’s closing argument. The jury found Teas

guilty as charged.




                                                 5
No. 51098-7-II



C.      SENTENCING

        Teas had a prior conviction for first degree child molestation. The record shows that this

crime was committed sometime between July 1994 and September 1996, when Teas was between

the ages of 17 and 19. Based on his prior conviction of first degree child molestation, the court

sentenced Teas to life in prison without the possibility of release under Washington’s Persistent

Offender Accountability Act (POAA).2

        Teas appeals.

                                            ANALYSIS

A.      PROSECUTORIAL MISCONDUCT

        Teas argues that his conviction must be reversed because of prosecutorial misconduct.

Teas asserts that the prosecutor committed misconduct by (1) directly commenting on Teas’s

exercise of his constitutional right to testify, (2) comparing Teas’s knife to the weapon used in the

9/11 terrorist attacks, (3) referencing facts not in evidence, and (4) and vouching for R.C.’s

credibility. We disagree that the prosecutor’s conduct requires reversal.

        1.     Legal Principles

        To prevail on a claim of prosecutorial misconduct, a defendant must show that the

prosecutor’s conduct was both improper and prejudicial. State v. Emery, 174 Wn.2d 741, 756, 278

P.3d 653 (2012). The effect of a prosecutor’s conduct is viewed in “‘the context of the total

argument, the issues in the case, the evidence addressed in the argument, and the instructions given




2
    RCW 9.94A.570.


                                                 6
No. 51098-7-II



to the jury.’” State v. Monday, 171 Wn.2d 667, 675, 257 P.3d 551 (2011) (internal quotations

omitted) (quoting State v. McKenzie, 157 Wn.2d 44, 52, 134 P.3d 221 (2006)).

       We first determine whether the prosecutor’s conduct was improper. Emery, 174 Wn.2d at

759. If the prosecutor’s conduct was improper, then the question turns to whether the prosecutor’s

improper conducted resulted in prejudice. Id. at 760. Prejudice is established by showing a

substantial likelihood that the prosecutor’s misconduct affected the verdict. Id.

       If the defendant fails to object to the prosecutor’s remarks at trial, he or she “is deemed to

have waived any error, unless the prosecutor’s misconduct was so flagrant and ill intentioned that

an instruction could not have cured the resulting prejudice.” Id. at 760-61. Under this heightened

standard of review, the defendant must show that “(1) ‘no curative instruction would have obviated

any prejudicial effect on the jury’ and (2) the misconduct resulted in prejudice that ‘had a

substantial likelihood of affecting the jury verdict.’” Id.at 761 (quoting State v. Thorgerson, 172

Wn.2d 438, 455, 258 P.3d 43 (2011)). In making this determination, we focus on whether the

resulting prejudice could have been cured. Id. at 762.

       2.      Exercise of Constitutional Right to Testify

       Teas argues that the prosecutor committed misconduct by creating an inference of guilt

based on Teas’s exercise of his right to testify during closing argument. Specifically, Teas asserts

that the prosecutor improperly impugned guilt upon Teas, thus violating his constitutional right to

testify on his own behalf under article I, section 22 of the Washington Constitution, when the

prosecutor argued in closing argument that (1) Teas testified in order to explain the presence of




                                                 7
No. 51098-7-II



DNA found in R.C.’s apartment and (2) Teas tailored his testimony to fit with the evidence

presented at trial.

                a. Standard of review

        As an initial matter, the parties dispute whether the waiver standard articulated in Emery

applies here because Teas did not object to the prosecutor’s comments at trial. Teas contends that

this assignment of error is not subject to the heightened waiver standard articulated in Emery

because it directly violated a constitutional right. According to Teas, whenever a prosecutor’s

improper comments violate a constitutional right, we solely consider prejudice and apply the

constitutional harmless error standard. The State argues that the waiver standard articulated in

Emery is still applicable here. We agree with the State.

        It is true that the constitutional harmless error standard applies when a prosecutor’s

improper comments directly violate a constitutional right. State v. Espey, 184 Wn. App. 360, 369,

336 P.3d 1178 (2014); Emery, 174 Wn.2d at 757. However, a prosecutorial misconduct claim of

this nature does not render the framework articulated in Emery wholly inapplicable. Teas’s

argument ignores that we have previously assessed waiver in the context of direct constitutional

claims involving prosecutors’ improper comments. See, e.g., Espey, 184 Wn. App. at 366; State

v. Pinson, 183 Wn. App. 411, 419, 333 P.3d 528 (2014).

        In Espey, we considered whether the prosecutor had improperly commented on the

defendant’s right to counsel by urging the jury to infer that the defendant was lying because he had

consulted with an attorney prior to arrest. 184 Wn. App. at 368-69. Before applying the

constitutional harmless error standard in Espey, we employed the framework articulated in Emery




                                                 8
No. 51098-7-II



to determine whether the defendant had waived the error by failing to object. Id. Similarly, in

Pinson, we considered whether the defendant had waived his prosecutorial misconduct claim when

he failed to object to the prosecutor’s express and deliberate comments that his post arrest silence

evidenced guilt. 183 Wn. App at 419.

       Thus, contrary to Teas’s argument, the framework articulated in Emery is still applicable.

If we determine that the prosecutor’s comments here were improper, Teas is deemed to have

waived the error unless he can show that the prosecutor’s misconduct was so flagrant and ill

intentioned that an instruction could not have cured the resulting prejudice. See Emery, 174 Wn.2d

at 760-61.

               b. Argument on why Teas testified

       Teas argues that the prosecutor impermissibly commented on his exercise of the right to

testify when the prosecutor argued that Teas testified in order to explain the DNA evidence in the

case. We hold that Teas waived this error because he fails to show that the prosecutor’s comments

were so flagrant and ill intentioned that the resulting prejudice could not have been cured.

       A criminal defendant’s right to testify is expressly protected under article I, section 22 of

the Washington Constitution. This right is fundamental, and it may not be impaired by counsel or

the court. State v. Robinson, 138 Wn.2d 753, 758, 982 P.2d 590 (1999). When a defendant decides

to testify, the State may not draw adverse inferences from the exercise of that right. State v. Rupe,

101 Wn.2d 664, 705, 683 P.2d 571 (1984). Therefore, it is improper for the State to speculate as

to why a defendant testified to infer guilt.




                                                 9
No. 51098-7-II



       Here, the State argued that Teas testified because “He saw the overwhelming evidence

against him. Couldn’t deny the DNA. . . . And so that’s why he got on the stand . . . and came—

came up with a story to try and explain away what happened.” 6 VRP (Sept. 14, 2017) at 747-48.

By speculating as to the reason Teas testified, the State inferred that Teas knew he was guilty based

on the evidence and testified so he could make up a story to try and explain away what happened.

This was improper.

       Nonetheless, we hold that the prosecutor’s comments here was not so flagrant and ill

intentioned that the resulting prejudice could not be cured with a jury instruction. As explained

above, Teas failed to object to this line of argument. And Teas makes no effort to meet the

heightened standard of review articulated in Emery. Instead, Teas argues that because his

credibility was central to the case, “the prosecutor’s comments undoubtedly prejudiced him.” Br.

of Appellant at 23. We also note that the prosecutor attempted to couch the argument around what

the evidence at trial showed. Therefore, even if the prosecutor’s remarks resulted in some

prejudice, it cannot be said that the remarks were so flagrant and ill intentioned that the resulting

prejudice could not have been cured through an instruction to disregard them. Thus, we hold that

Teas waived this error by failing to object to the prosecutor’s comments below.

               c. Tailoring argument

       Teas also contends that the prosecutor impermissibly suggested in closing argument that

Teas had tailored his testimony to conform to the evidence presented at trial. Teas relies on State

v. Martin, 171 Wn.2d 521, 252 P.3d 872 (2011), to argue that general tailoring arguments made

during closing argument violate article I, section 22 of the Washington Constitution.




                                                 10
No. 51098-7-II



       In Martin, our Supreme Court addressed whether a prosecutor may question a defendant

during cross-examination in a way that suggests that the defendant tailored his testimony to

conform to the evidence presented at trial. 171 Wn.2d at 533-34. The Martin court held that

questions suggesting tailoring of testimony during cross-examination of a defendant were

compatible with the Washington Constitution, based in part, on the view articulated by Justice

Ginsburg’s dissent in Portuondo v. Agard, 529 U.S. 61, 120 S. Ct. 1119, 146 L. Ed. 2d 47 (2000).

171 Wn.2d at 535-36. The Martin court stated that “[i]t is during cross-examination, not closing

argument, when the jury has the opportunity to determine whether the defendant is exhibiting

untrustworthiness.” Id. at 536. Teas relies on this language in Martin to argue that a prosecutor

may not argue in closing—as opposed to raising the issue during cross-examination—that the

defendant had tailored his testimony.

       However, in Martin, the court did not decide whether tailoring arguments made during

closing argument were compatible with the Washington Constitution. The court specifically noted

that “the majority and dissent in Portuondo agreed that generic accusations of tailoring are

permissible” although “there was disagreement about whether such accusations are permitted

during closing argument.” Martin, 171 Wn.2d at 536, n. 8. The court expressly declined to decide

whether generic tailoring accusations were prohibited under article I, section 22 because the

accusations of tailoring in that case were specific, not generic. Id.

       Following Martin, Division One of this court rejected the same argument that Teas now

makes based on Martin. State v. Berube, 171 Wn. App. 103, 116, 286 P.3d 402 (2012), review

denied, 178 Wn.2d 1002 (2013). The court in Berube noted that Martin had expressly declined to




                                                 11
No. 51098-7-II



address generic tailoring arguments. Id. The court further held that “the evil addressed in Martin

is a closing argument that burdens the exercise of constitutional rights without an evidentiary basis

and in a fashion preventing the defendant from meaningful response.” Id. at 116-17. However,

“[w]hen tailoring is alleged based on the defendant’s testimony on direct examination, the

argument is a logical attack on the defendant’s credibility and does not burden the right to []

testify.” Id. at 117. We agree with Berube.

        Here, when viewed in the context of the entire closing, the prosecutor did not make a

general tailoring argument. Teas’s trial testimony differed substantially from the statement he

made to law enforcement. He told law enforcement that he was nowhere near R.C.’s apartment,

and instead was in the area visiting a friend. At trial, Teas made a different statement and admitted

that he had arranged for a massage with R.C. and was in her apartment that afternoon. Thus, the

prosecutor’s argument was based on the change in Teas’s testimony from his initial statements,

which was the type of argument that the Berube court approved. See Id. at 116-17. Teas fails to

establish prosecutorial misconduct on this basis.

        3.      9/11 Weapon Argument

        Teas argues that the prosecutor impermissibly appealed to the passions and prejudice of

the jury when he likened Teas’s knife to the weapon used during the terrorist attacks on September

11, 2001. We agree that the argument was improper, but we hold that it was not so flagrant and

ill intentioned that it resulted in incurable prejudice.

        An appeal to the passion and prejudice of the jury through use of inflammatory rhetoric is

improper. In re the Pers. Restraint of Glasmann, 175 Wn.2d 696, 704, 286 P.3d 673 (2012). “A




                                                   12
No. 51098-7-II



prosecutor is not barred from referring to the heinous nature of a crime but nevertheless retains the

duty to ensure a verdict ‘free of prejudice and based on reason.’” State v. Pierce, 169 Wn. App.

533, 553, 280 P.3d 1158 (2012) (quoting State v. Claflin, 38 Wn. App. 847, 849-50, 690 P.2d 1186

(1984), review denied, 103 Wn.2d 1014 (1985)), review denied, 175 Wn.2d 1025 (2012). And

though the State has wide latitude to argue reasonable inferences from the evidence, it is

misconduct for a prosecutor to urge the jury to decide a case based on evidence outside the record.

Id.

       Teas argues that the prosecutor impermissibly appealed to the passion and prejudice of the

jury and referenced facts not in evidence when he compared his pocketknife to the weapon used

in the 9/11 terrorist attacks. We agree that this argument was improper.

       Contrary to the State’s argument, referencing the destruction of the World Trade Center in

the deadliest terrorist act to ever occur on American soil is more than “potentially ill-advised.” Br.

of Resp’t at 30. It is a blatant appeal to the passion and prejudice of the jury. However, when

viewed in the context of the total argument, the evidence, issues in the case, and instructions

provided to the jury, we hold that the prosecutor’s remarks were not so flagrant and ill intentioned

that the resulting prejudice could not have been cured with a jury instruction.

       The prosecutor referenced the 9/11 terrorist attacks in the context of discussing the deadly

weapon instruction and explaining that an item may constitute a deadly weapon depending on the

manner in which it is used. The prosecutor did not use the 9/11 terrorist attacks as a central theme

in closing argument and explicitly stated that he was not likening Teas’s conduct to a terrorist

attack. Viewed in context, the statements were not so flagrant and ill intentioned that the resulting




                                                 13
No. 51098-7-II



prejudice could not have been cured with a curative instruction. Because Teas failed to object

below and cannot meet this heightened standard, he has waived his prosecutorial misconduct claim

on this basis.

        4.       Arguing Facts Not In Evidence

        Teas also argues that the prosecutor engaged in flagrant misconduct by arguing facts not

in evidence. Specifically, Teas argues that the prosecutor argued facts not in evidence when he

(1) referenced a blood stain found on R.C.’s bedsheets during opening statement, (2) claimed

during closing argument that R.C.’s version of events had been consistent in order to bolster her

credibility, and (3) referenced a witness who never testified at trial.

        Again, Teas did not object to any of these remarks at trial. Therefore, he has waived any

error unless he can show that the prosecutor’s misconduct was so flagrant and ill intentioned that

the resulting prejudice could not have been cured with a jury instruction. See Emery, 174 Wn.2d

at 760-61.

        First, Teas argues that the prosecutor’s reference to a bloodstain containing Teas’s DNA

during opening statement was improper because it was unsupported by the evidence at trial. It is

true that the evidence at trial showed that the sample taken from R.C.’s bedsheets tested negative

for the presence of blood. However, the prosecutor’s reference to a bloodstain was made during

opening statement. A witness’s expected testimony is a permissible subject for opening statement.

Thorgerson, 172 Wn.2d at 444. Because the prosecutor’s opening statement only concerned

evidence that the State anticipated presenting at trial, the prosecutor’s reference to the bloodstain

was not improper.




                                                  14
No. 51098-7-II



       Next, Teas contends that the prosecutor improperly vouched for R.C.’s credibility during

closing argument when the prosecutor argued that R.C.’s story had been consistent. We disagree.

       “Improper vouching occurs when the prosecutor expresses a personal belief in the veracity

of a witness or indicates that evidence not presented at trial supports the testimony of a witness.”

Id. at 443. And a prosecutor may not state a personal belief as to the credibility of a witness. State

v. Ish, 170 Wn.2d 189, 196, 241 P.3d 389 (2010).

       Teas asserts that the prosecutor’s argument that R.C.’s story had been consistent was

“patently false” because the detail of who suggested the lubricant had changed with each retelling,

as did the detail of whether Teas jumped on R.C.’s back or shoved her onto the bed. Br. of

Appellant at 29. However, Teas acknowledges that in each retelling, R.C. claimed that Teas held

a knife to her throat, said he was going to rape her, and had sexual intercourse with her. We find

that the details as to who suggested lubricant and whether Teas jumped on or pushed R.C. do not

render the prosecutor’s statement that R.C.’s version of events was consistent “patently false.”

       Finally, Teas asserts that the prosecutor argued facts not in evidence when he referenced

Deputy Osborne’s testimony because Deputy Osborne never testified at trial. We disagree.

       A prosecutor commits misconduct by encouraging the jury to decide a case based on

evidence outside the record. Pierce, 169 Wn. App. at 553. However, contrary to Teas’s assertion,

Deputy Osborne testified in detail regarding his involvement in R.C.’s case. Therefore, the

prosecutor did not commit misconduct by referencing Deputy Osborne’s testimony during closing

argument.




                                                 15
No. 51098-7-II



B.     CONSENT INSTRUCTION

       Next, Teas argues that the trial court erred when it refused to provide his proposed jury

instruction on consent because there was evidence that the sexual intercourse was consensual. We

disagree.

       1.      Legal Principles

       A criminal defendant is entitled to have the trial court instruct the jury upon the theory of

his or her case so long as there is evidence in the record that supports the theory. State v. Fisher,

185 Wn.2d 836, 848, 374 P.3d 1185 (2016). Refusal to give a requested jury instruction constitutes

reversible error when the absence of the instruction prevented the defendant from arguing his or

her theory of the case. State v. Buzzell, 148 Wn. App. 592, 598, 200 P.3d 287, review denied, 166

Wn.2d 1036 (2009).

       We review de novo the trial court’s refusal to give a proposed jury instruction when the

refusal is based on a ruling of law. State v. Ayala Ponce, 166 Wn. App. 409, 416, 269 P.3d 408

(2012). We review the refusal for an abuse of discretion where refusal is based on lack of

evidentiary support. State v. Harvill, 169 Wn.2d 254, 259, 234 P.3d 1166 (2010). Under this

standard of review, we will not reverse the trial court’s ruling “unless it was manifestly

unreasonable or based on untenable grounds or reasons.” State v. Robinson, 193 Wn. App. 215,

217-18, 374 P.3d 175 (2016). A trial court necessarily abuses its discretion when its ruling is

based on an erroneous view of the law. Harvill, 169 Wn.2d at 259.




                                                 16
No. 51098-7-II



          2.     Consent Instruction Not Required for First Degree Rape

          Teas argues that the trial court’s refusal to give his proposed consent instruction was

manifestly unreasonable because it prevented him from arguing his theory of the case and there

was “more than enough evidence” of consent here. Br. of Appellant at 34. We disagree.

          A person is guilty of first degree rape when that person “engages in sexual intercourse with

another person by forcible compulsion.” RCW 9A.44.040(1). “‘Consent’ means that at the time

of the act of sexual intercourse or sexual contact there are actual words or conduct indicating freely

given agreement to have sexual intercourse or sexual contact.” RCW 9A.44.010(7). Consent

negates the element of forcible compulsion. State v. W.R., 181 Wn.2d 757, 763, 336 P.3d 1134

(2014).

          Once a defendant asserts consent as a defense and provides sufficient evidence to support

the defense, the State must prove lack of consent as part of its burden of proof on the element of

forcible compulsion. Id. This is because “[a]s defined, forcible compulsion contemplates force

that overcomes actual resistance or threats that place a person in actual fear. There can be no

forcible compulsion when the victim consents, as there is no resistance to overcome.” Id. at 765.

In W.R., our Supreme Court specifically noted that “[b]ecause the focus is on forcible compulsion,

jury instructions need only require the State to prove the elements of the crime. It is not necessary

to add a new instruction on consent simply because evidence of consent is produced.” Id. at 767,

n. 3.

          Thus, under W.R., the trial court was not required to provide a consent instruction here

because the State was already required to prove lack of consent as part of its burden of proof on




                                                  17
No. 51098-7-II



the element of forcible compulsion. Moreover, even without the proposed instruction, Teas was

still able to argue his theory that there was consent to engage in sexual intercourse. Therefore, we

hold that the trial court did not err in refusing to give Teas’s proposed consent instruction.

C.     CUMULATIVE ERROR

       Teas argues that the cumulative effect of the prosecutorial misconduct and the refusal to

give his consent instruction resulted in a trial that was fundamentally unfair. We disagree.

       “Under the cumulative error doctrine, a defendant may be entitled to a new trial when

cumulative errors produce a trial that is fundamentally unfair.” Emery, 174 Wn.2d at 766. This

doctrine does not apply when the defendant fails to establish how the claimed instances of

prosecutorial misconduct affected the outcome of the trial or how combined claims of misconduct

affected the outcome of the trial. Thorgerson, 172 Wn.2d at 454.

       Here, although the prosecutor made improper comments, Teas fails to show how either, or

both, instances of misconduct affected the outcome of the trial. Teas also fails to show that the

errors rendered his trial fundamentally unfair. Thus, we hold that Teas is not entitled to a new trial

based on the cumulative error doctrine.

D.     CRUEL AND UNUSUAL PUNISHMENT

       Finally, Teas argues that his mandatory sentence under the POAA of life without

possibility of release violates Washington’s Constitution; specifically, article I, section 14’s

prohibition against cruel punishment. He argues that this provision of the Washington Constitution

categorically bars imposition of a sentence to life without possibility of parole on adult offenders

who committed a predicate offense under the POAA as a youth. We disagree.




                                                 18
No. 51098-7-II



         1.     Standard of Review

         Whether a statute is constitutional is a question of law that we review de novo. State v.

Moen, 4 Wn. App. 2d 589, 598, 422 P.3d 930 (2018), review denied, 192 Wn.2d 1030 (2019). We

presume that a statute is constitutional, and the party challenging the statute bears the burden of

proving it is unconstitutional beyond a reasonable doubt. Id.

         2.     Teas’s Sentence Does Not Violate Article I, Section 14

         Article I, section 14 of the Washington Constitution bars “‘cruel punishment.’” Id. (quoting

State v. Witherspoon, 180 Wn.2d 875, 887, 329 P.3d 888 (2014)). Its federal counterpart, the

Eighth Amendment to the United States Constitution, prohibits cruel and unusual punishment. Id.

In the context of juvenile sentencing, Washington’s constitutional provision provides greater

protection than the Eighth Amendment. State v. Bassett, 192 Wn.2d 67, 82, 428 P.3d 343 (2018).

         Our Supreme Court recently held that sentencing juvenile offenders to life without parole

or early release constitutes cruel punishment in violation of article I, section 14 of the Washington

Constitution. Id. at 91. This holding was based on the national trend toward “abandoning juvenile

life without parole sentences,” and the considerable scientific research showing that “the

characteristics of youth do not support the penological goals of a life without parole sentence.” Id.

at 90.

         Teas argues that the framework articulated in Bassett compels us to hold that it is cruel to

sentence an adult as a persistent offender under the POAA when that adult committed one of his

predicate offenses as a youth. We disagree.




                                                 19
No. 51098-7-II



       As an initial matter, Teas’s argument confuses categorical bar challenges and as applied

challenges. He asks us to conduct categorical bar analysis, but he simultaneously characterizes his

challenge as an “as-applied challenge” to individuals like him as a “category.” Br. of Appellant at

48.

       The standard for assessing an as-applied challenge to a defendant’s sentence is articulated

in State v. Fain, 94 Wn.2d 387, 617 P.2d 720 (1980). In Fain, the defendant argued that his

sentence under the habitual criminal statute was disproportionate to the nature of his crimes. Id.

at 390-91. Fain outlined four factors that courts are to consider when determining whether a

defendant’s sentence is proportional to the nature of his crimes: “(1) the nature of the offense; (2)

the legislative purpose behind the habitual criminal statute; (3) the punishment [the] defendant

would have received in other jurisdictions for the same offense; and (4) the punishment meted out

for other offenses in the same jurisdiction.” Id. at 397.

       Teas does not challenge the proportionality of his sentence given the particular

circumstances of his crime. Instead, he argues that it is unconstitutional to sentence a class of

defendants, adults who committed a predicate offense under the POAA as a “youth,” to mandatory

life imprisonment. Br. of Appellant at 48. Therefore, even though Teas frames his challenge as

“an as-applied challenge” to individuals like him, Teas raises a categorical bar challenge here. 3

Br. of Appellant at 48.




3
  Teas also argues in the alternative, that if we do not apply categorical bar analysis, we should
adopt a new “Fain+” standard that accounts for a defendant’s youth. Br. of Appellant at 53. He
argues that this new test is necessary because the traditional Fain test fails to account for a youthful
offender’s diminished culpability. We decline to adopt Teas’s proposed test.


                                                  20
No. 51098-7-II



         In assessing a categorical bar challenge, we consider “(1) objective indicia of society’s

standards to determine whether there is national consensus against sentencing those [of a particular

class] to mandatory life imprisonment and (2) our own understanding of the prohibition of cruel

punishment.” Moen, 4 Wash. App.2d at 601. This second step requires this court to consider “‘the

culpability of the offenders at issue in light of their crimes and characteristics, along with the

severity of the punishment in question’ and ‘whether the challenged sentencing practice serves

legitimate penological goals.’” Bassett, 192 Wn.2d at 87 (quoting Graham v. Florida, 560 U.S.

48, 67, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010)).

         Teas does not provide any legislative enactments or state practices regarding use of

“youthful crimes” as predicate offenses under habitual offender statutes. Br. of Appellant at 50.

Recently, our Supreme Court held that “Article I, section 14 of the Washington Constitution does

not require a categorical bar on sentences of life in prison without the possibility of parole for fully

developed adult offenders who committed one of their prior strikes a young adults.” State v.

Moretti, No. 95263-9 slip op. at 2 (Wash. Aug. 15, 2019)4. And review of other jurisdictions’

statutes and case law does not show a national consensus against sentencing adults as persistent



        Teas’s proposal is a misguided attempt to blur the frameworks for analyzing categorical
bar and as-applied challenges. And it fails to appreciate the nature and purpose of the Fain
framework. The Fain framework weighs the nature of a particular offense with its resulting
punishment. Bassett, 192 Wn.2d at 83. This analysis informs whether the punishment is
disproportionate to the particular circumstances of a defendant’s crime. Moen, 4 Wn. App.2d at
600. Thus, the Fain framework is “ill suited” to analyze “a categorical challenge based on the
characteristics of the offender class.” Bassett, 192 Wn.2d at 83. Indeed, the very policy Teas
hopes to advance through his proposed test—considering the characteristics of the offender class—
is the precise reason the categorical bar analysis applies here.
4
    http://www.courts.wa.gov/opinions/pdf/952639.pdf


                                                  21
No. 51098-7-II



offenders when their predicate offenses were “youthful.” Rather, several jurisdictions have

rejected this very argument. Wilson v. State, 2017 Ark. 217, 521 S.W.3d 123; Commonwealth. v.

Bonner, 135 A.3d 592 (Pa. Super. Ct. 2016); Vickers v. State, 117 A.3d 516 (Del. 2015); Counts

v. State, 2014 WY 151, 338 P.3d 902.

       Moreover, we hold that punishing an adult as a persistent offender when a predicate offense

was youthful does not contradict the penological goals of the POAA. The POAA requires superior

court judges to sentence persistent offenders to life in prison without the possibility of release.

RCW 9.94A.570. A “persistent offender” includes someone who has been convicted of first

degree rape, and has on at least one occasion been convicted of first degree child molestation.

RCW 9.94A.030(38)(b)(i), (ii)5. An “offender” means a person who has committed a felony and

is eighteen years of age or older. RCW 9.94A.030(35).

       “The purpose of the POAA is the segregation of persistent offenders from the rest of

society, generally deterring others.” State v. Hart, 188 Wn. App. 453, 461, 353 P.3d 253 (2015).

As the Tenth Circuit has explained, “Unlike defendants who receive severe penalties for juvenile

offenses . . . recidivists have been given an opportunity to demonstrate rehabilitation, but have

elected to continue a course of illegal conduct.” United States v. Orona, 724 F.3d 1297, 1308

(10th Cir.), cert. denied, 571 U.S. 1034 (2013). Punishing an adult for continuing to commit

violent crimes after being given the chance for rehabilitation supports the penological goal of

separating repeat offenders from the rest of society.



5
   RCW 9.94A.030 has been amended since the events of this case transpired. Because the
amendments do not materially affect the statutory language relied on by this court, we refrain from
including the word “former” before RCW 9.94A.030.


                                                22
No. 51098-7-II



       Our courts have recognized that “children are less criminally culpable than adults, and the

characteristics of youth do not support the penological goals of a life without parole sentence.”

Bassett, 192 Wn.2d at 90. However, Teas is not a juvenile being punished for a crime he

committed as a juvenile. He was 39 years old when he raped R.C. by forcible compulsion.

Therefore, the mitigating factors of youth were not applicable when he was sentenced for this

crime. Teas’s constitutional challenge to his sentence fails.

                                         CONCLUSION

       We hold that Teas’s prosecutorial misconduct challenges fail, the trial court did not err

when it refused to provide his proposed jury instruction on consent, there was no cumulative error

necessitating reversal, and his constitutional challenge to his mandatory sentence to life without

possibility of parole fails. Accordingly, we affirm.



                                                     Lee, J.

 We concur:



Worswick, J.




Maxa, C.J.




                                                23
