          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON



STATE OF WASHINGTON,                               NO. 71330-2-1                        CJ-1

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                      Respondent,                  DIVISION ONE
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                     v.                                                                          r    *

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ANTON CURTIS JOHNSON,                              UNPUBLISHED OPINION                  V?
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                     Appellant.                    FILED: August 31, 2015



       Lau, J. —A jury convicted Anton Johnson of three counts of third degree rape of

a child. He appeals, arguing that reversal of his convictions is warranted because (1)

improper election of prior uncharged crimes by the State violated various constitutional

rights; and (2) ineffective assistance by trial counsel deprived him of a fair trial.

Johnson also claims remand for resentencing is warranted for violation of the statutory

maximum based on the court's imposition of a variable term of community custody.

Because no constitutional violations occurred, trial counsel provided effective

representation, and the court properly imposed a variable term of community custody

under State v. Bruch, 182 Wn.2d 854, 346 P.3d 724 (2015), we affirm Johnson's

judgment and sentence.
No. 71330-2-1/2



                                          FACTS


       Pes Moines Residence


       K.K.'s grandmother and Anton Johnson dated and eventually moved in with

K.K.'s mother in Des Moines. K.K. and her five sisters also lived with their mother. K.K.

was in the sixth grade and was 11 or 12-years-old at that time. Johnson took an

interest in K.K. They liked each other and talked a lot. He told her she was cute and

praised her for doing her homework. He held her hand under the covers to avoid

detection whenever they watched TV together. After he kissed her in her grandmother's

bedroom, he touched her more often. For example, he kissed her on the neck and

digitally penetrated her vagina in her grandmother's bedroom.

       Fir Street Residence


       The entire family including Johnson moved to Fir Street in Seattle. By then, K.K.

was 13-years-old and in the seventh grade. There, Johnson performed oral sex on K.K.

under the covers while K.K.'s sister, T.K., was on the phone across the room. On a

different day, he picked her up, positioned her on the kitchen counter with her legs

open, and "put it in" her until she felt a pop and it hurt a lot. Report of Proceedings (RP)

(Oct. 29, 2013) at 253.

       Brighton Street Residence

       The family moved to Brighton Street when K.K. was 14 and in the eighth grade.

There, Johnson "had sex" with K.K. for the first time. RP (Oct. 29, 2013) at 249. K.K.

was watching TV. Johnson turned off the TV and started kissing her. He used no

condom and "put it inside of [her]." He stopped when she said it hurt and then

performed oral-genital contact. RP (Oct. 29, 2013) at 250.

                                          -2-
No. 71330-2-1/3



       In late 2011, K.K.'s grandmother had surgery and radiation treatment for cancer.

She was confined to her bedroom to avoid exposing others to radiation. During this

time, Johnson slept in the living room or in the den where K.K. sometimes slept. While

the family slept, he had sex with K.K. Between September 15, 2011, and April 1, 2012,

Johnson had sexual intercourse with K.K. at least 15 times.1 This happened more often

in the den at night when the family was asleep. Sometimes they quickly had sex in

K.K.'s bedroom.


       In March 2012, K.K.'s mother took her to the doctor due to stomach pain and

nausea. The doctor told her she was pregnant. K.K. was 14-years-old. To keep her

relationship with Johnson a secret, K.K. let her mother assume that the father was her

teenage boyfriend. Johnson and K.K. stopped having sex in March 2012 after K.K. had

an abortion. She told clinic staff her teenage boyfriend was the father to keep

Johnson's identity a secret.

      About 11 months later, K.K. told T.K., her younger sister, that Johnson was the

true father. T.K. cried, telephoned Johnson, and threatened to "kill him." RP (Oct. 29,

2013) at 153, 268-69. K.K.'s grandmother noticed Johnson standing quietly with the

telephone and asked what was wrong. He said T.K. just "cussed [him] out." RP (Oct.

29, 2013) at 207. K.K.'s grandmother telephoned K.K.'s mother to ask why T.K. was so

angry. K.K.'s mother confronted T.K. T.K. told her that Johnson "hurt" K.K. and got

K.K. pregnant. RP (Oct. 29, 2013) at 155. K.K.'s mother called the police a few days

later after K.K. confirmed that what T.K. said was true.




       1 The parties agree that K.K. turned 14-years-old on September 15, 2011.
No. 71330-2-1/4



      Seattle Police Officer Eric Beseler responded and talked to T.K. and K.K.'s

mother. T.K. told Officer Beseler that K.K. said she had sex with Johnson for the first

time when she was 11-years-old. After K.K.'s mother reported the offense to the police,

Johnson telephoned K.K.'s mother. He acknowledged to her "that it did happen" but

claimed "[K.K.] came on to me." RP (Oct. 29, 2013) at 129. K.K.'s grandmother also

confronted Johnson about what he did to K.K. At first he denied having sex with K.K.,

but later admitted, "Do you want to know the truth? It happened." RP (Oct. 29, 2013) at

210. He also said K.K. performed oral sex on him.

      On May 28, 2013, Johnson was charged with three counts of third degree rape of

a child. The State alleged that Johnson had "sexual intercourse" with K.K. when she

was at least 14 and "during a period of time intervening between September 15, 2011

through April 1, 2012     " Clerk's Papers (CP) at 1-2. During the trial, the State

presented evidence of two pre-charging period sex acts that occurred at the Fir Street

residence when K.K. was under 14 and in seventh grade.2

      At trial, K.K. described the first uncharged act involving oral sex under the

covers:



      [K.K.]: I was in 7th grade and we lived on Fir Street.3 I was in the room
             with [T.K.]. She was like on her phone. Everyone else was in the
             living room, watching TV. I was on like my phone. He [Johnson]
              had told me that he wanted to taste me. It was like an awkward
             moment.




      2 The undisputed evidence shows that K.K. was in eighth grade when she turned
14 on September 15, 2011, the first day of the charging period.

       3 During the charging period, K.K., her sisters, mother, grandmother, and
Johnson lived in the apartment on Brighton Street.
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No. 71330-2-1/5



            So, he like, I took my panties off and he like went under the covers
      and then he did it. Then he told me like watch if anybody was like coming
      or something.

RP (Oct. 29, 2013) at 252 (emphasis added). She referred to the second uncharged act

involving sexual intercourse as the "counter" incident:

      [STATE]: There was another time that you mentioned in the interview with
                 the defendant that the defendant's lawyer that had to do with
                 the counter. Do you remember that incident?

      [K.K.]: A counter, yes.

      [STATE]: Tell the jury about that time?

      [K.K.]: I was in 7th grade.
                            Me and Anton [Johnson] had went in the kitchen. He
                    put me on the counter and he opened my legs and then he
                    like, put it in, in like, I felt like a pop, it hurt a lot.
                            Then I just like pushed him back. Then I hop off the
                   counter and kind of said like somebody is coming or
                   something.

RP (Oct. 29, 2013) at 253-54 (emphasis added). K.K was the only witness to testify

about these uncharged acts. She testified that the first time she and Johnson "had sex"

was when she was 14 and lived in the Brighton house. RP (Oct. 29, 2013) at 250-51.

Both the "under-the-covers" and the "counter" incidents (collectively, the "Fir Street

incidents") occurred when K.K. was in 7th grade and living in the Fir Street house—

before she moved to the Brighton house, where she lived during the charging period.

RP (Oct. 29, 2013) at 120-25, 252-54, 275.

       During closing argument, the prosecutor reminded the jury that they must agree

on a singular criminal event for each of the three counts. He mistakenly argued that the

Fir Street incidents occurred during the charging period:



                                          -5-
No. 71330-2-1/6



              You have to agree on a singular event for Count I, a singular event
       for Count II, and a singular event for Count III. I suggest there is two ways
       that you can do that in this case.
              [K.K.] told you that between those charging dates they were on
       Brighton Street, the defendant had sex with her, she believes roughly 15
       times. She described to you with specific detail three separate incidents
       and two of them I just mentioned. The first was that first time in the living
       room. The second was a time on the counter. The third time was a time
       when he had oral sex with her under the blanket as [T.K.] played with her
       phone on the bed across the room.
              Then she described to you all of the incidents that occurred in the
       den. She said that she thought there were 10 or 15 of those. You can
       either agree, for example, that Count I has been proven by your
       unanimous agreement on the first time he ever had sex with her.
              Count II is proven by your unanimous agreement about the time
      that he described on the counter-
              Count III is described by your unanimous agreement that at least
       one time he had sexual intercourse with her in that den, or you agree with
      the occasion that he described which occurred underneath the blanket in
      the room with [T.K.].

RP (Oct. 30, 2013) at 331-32 (emphasis added).

      The jury convicted Johnson as charged. The trial court denied Johnson's motion

for new trial, or alternatively, to dismiss counts two and three. The court imposed three

concurrent terms of the statutory maximum of 60 months, followed by a period of

community custody "for any period of time the defendant is released from total

confinement before the expiration of the maximum sentence." CP at 36-37. Johnson

appeals.

                                       ANALYSIS4

       Uncharged Sex Acts

      Johnson argues that the State presented evidence of sexual intercourse that

occurred before the charging period. He contends that his convictions on counts two



      4 Johnson filed no brief in reply to the State's response brief.
                                          -6-
No. 71330-2-1/7



and three should be reversed because the prosecutor's closing argument "elected" acts

falling outside the charging period that "could not legally constitute third degree rape of

a child." Br. of Appellant at 7. He also claims the prosecutor "wrongly [claimed] they

occurred during the charging period when K.K. lived on Brighton Street." Br. of

Appellant at 10. Accordingly, the State violated his constitutional rights to (1) sufficiency

of the evidence, (2) a unanimous jury verdict, (3) notice, and (4) a fair trial. We

disagree.

       Sufficiency of the Evidence

       Johnson specifically argues that because the State "elected" in closing argument

to rely on acts that happened before the charging period when K.K. was less than

14-years-old, insufficient evidence exists to support his convictions on counts two and

three. Johnson claims that K.K. could not remember dates or details about the Brighton

Street acts even though she testified he had sex with her there at least 15 times.

Viewing the evidence in the light most favorable to the State, we conclude a rational jury

could find the essential elements of the crimes of third degree rape of K.K.

       Under RCW 9A.44.079, third degree rape of a child occurs when a person (1)

has sexual intercourse with a child, (2) who is at least fourteen years old but less than

sixteen years old, (3) who is not married to the person, and (4) who is at least forty eight

months younger than the person. Here, the to-convict instruction informed the jury that
to convict Johnson of third degree rape of a child, each of the following elements must

be proved beyond a reasonable doubt:

    (1) . . . during a period of time intervening between September 15, 2011 and
       April 1, 2012 the defendant had sexual intercourse with [K.K.];


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No. 71330-2-1/8



   (2) . . . [K.K.] was at least fourteen and less than sixteen years old at the time
       and was not married to the defendant;

   (3) . . . the defendant was at least forty-eight months older than [K.K.]; and

   (4). . . the acts occurred in the state of Washington.

CP at 26.5

       Evidence is sufficient to support multiple counts of child rape if the jury is also

instructed as to the need for jury unanimity on a specific act for each count. The trial

court also gave the jury a Petrich instruction to ensure jury unanimity. Read together,

the to-convict instruction (jury instructions 7, 8, and 9) and the Petrich instruction (jury

instruction 6) required the jury to unanimously agree as to a particular act that

constitutes the charge for each count and to find beyond a reasonable doubt that the

State proved all the elements set forth in the to-convict instructions.

       In a criminal prosecution, the State must prove each element of the charged

crime beyond a reasonable doubt. In reWinship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25

L. Ed. 2d. 368 (1970). "The test for determining the sufficiency of the evidence is

whether, after viewing the evidence in the light most favorable to the State, any rational

trier of fact could have found guilt beyond a reasonable doubt. When the sufficiency of

the evidence is challenged in a criminal case, all reasonable inferences from the

evidence must be drawn in favor of the State and interpreted most strongly against the

defendant. A claim of insufficiency admits the truth of the State's evidence and all

inferences that reasonably can be drawn therefrom." State v. Salinas, 119 Wn.2d 192,

201, 829 P.2d 1068 (1992) (internal citations omitted).


       5 The court gave this same to-convict instruction for each of the three counts of
third degree rape of a child.
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No. 71330-2-1/9



      Where, as here, the perpetrator is a "resident" molester, the State may support

multiple counts of a child rape charge with the victim's generic testimony. State v.

Haves, 81 Wn. App. 425, 438, 914 P.2d 788 (1996). In Haves, we approved the use of

generic testimony to support multiple counts when the evidence satisfies three

requirements:

                First, the alleged victim must describe the kind of act or acts with
       sufficient specificity to allow the trier offact to determine what offense, if
       any, has been committed. Second, the alleged victim must describe the
       number of acts committed with sufficient certainty to support each of the
       counts alleged by the prosecution. Third, the alleged victim must be able
       to describe the general time period in which the acts occurred. The trier of
       fact must determine whether the testimony of the alleged victim is credible
       on these basic points.

Haves, 81 Wn. App. at 438.6 Considering the victim's testimony in light ofthese
requirements, we concluded sufficient evidence supported multiple counts of child rape
against Hayes:




      6Citing State v. Brown, 55 Wn. App. 738, 780 P.2d 880 (1989), we noted the
important policy considerations supporting admission of general testimony in cases
involving a resident molester:
             The Brown court first acknowledged the problems inherent in prosecuting
       cases of sexual molestation against children when the perpetrator is a "resident
       molester." Recognizing that Washington courts have approved of such "general"
       testimony in the context of its admissibility, the court reiterated that "[t]o require
       [the victim] to pinpoint the exact dates of oft-repeated incidents of sexual contact
       would be contrary to reason." The court. . . [concluded] that
                [Rendering such testimony as was given here inadequate even under a
                unanimity instruction would force prosecutors to make an election that the
                Petrich court described as "impractical." With the exception of those who
                happen to select victims with better memories orwho are 1-act offenders,
                the most egregious child molesters effectively would be insulated from
                prosecution.
       IBrown, 55 Wn. App. at 749.]. . . [The court observed] that the use of such
      evidence was sufficient to support the conviction.
Haves, 81 Wn. App. at 435-36.
                                             -9-
No. 71330-2-1/10



               K.'s testimony that Hayes "put his private part in mine" establishes the first
       prong of the requirement, specificity of description of the acts. Her descriptions of
       how he did these acts add to the specificity prong. She described Hayes' usual
       course of conduct in detail (it would happen in his bed, while he was on top of
       her, and he used paper towels to clean up) and tied the abuse to events in her
       life occurring at that time (when she was living with Nicky, while they were
       staying with Donaldson, and two weeks before authorities took her away from
       Hayes in June 1992). Her testimony that he had intercourse with her at least
       "four times" and up to "two or three times a week" establishes the second prong.
       Her further testimony that these acts occurred during the period between 1990
       and 1992 is sufficient to establish the third prong. Thus, K.'s testimony described
       the type of act committed, the number of acts committed, and the general time
       period. Her generic testimony was therefore specific enough to sustain
       separately each of the four counts charged.

Haves, 81 Wn. App. at 438-39.

       Here, K.K.'s testimony is substantially similar to the victim's testimony in Haves

that lead us to conclude sufficient evidence supported the convictions. Regarding the

first prong, K.K.'s testimony was sufficiently specific such that the trier of fact could

determine the nature of the committed offense. K.K. stated that the first time Johnson

"had sex" with her was when she was 14 and living in the Brighton house. RP (Oct. 29,

2013) at 249-51. She provided specific details of this incident: "I had came out of the

bathroom and I was like laying down. He was sitting on the couch watching TV, I was

like, getting ready to like to go to bed. He had turned off the TV and rolled me over and

then we started kissing. Then he like—put it inside of me." RP (Oct. 29, 2013) at 250.

She further clarified that this occurred in the living room at night, that Johnson did not

use a condom, and that everyone else was in their rooms at the time. She stated that it

"really hurt" so Johnson "took it out" and performed oral sex on K.K. instead. RP (Oct.

29, 2013) at 251. K.K. indicated that other instances were similar to the first, and that

she and Johnson developed a regular pattern of sexual activity:


                                            -10-
No. 71330-2-1/11



      [STATE]: Can you remember another time that [Johnson] had sex with
      you in the Brighton house?

      [K.K.]: I don't really remember specific times. But they mostly happened
      in the den, because that's where we usually were, him and I.
              Everyone was usually asleep or something. Sometimes I would
      sleep in there. He would sleep in there, when my grandmother was
      having, like, radiation or something.
              Then like he sometimes would like wake me up and then we would
      just do it.

      [STATE]: Were there times at night after you got back from training, or
      school, that people just kind of stuck to their own place and did their own
      thing watching TV or studying or whatever?

      [K.K.]: Yes.
              So it was pretty easy not to get caught because people were like,
      pretty preoccupied doing their own thing.

      [STATE]: Did any of these sexual encounters take a long time or were
      they all fairly brief?

      [K.K.]: Sometimes, like—most of the time, when we did it in the den, it
      was like longer, because no one was ever up. Like we would have more
      time. But sometimes we go in my room, like, if no one was in there and
      like get it like a quick one, kind of, in a way of saying, like.

      [STATE]: You mentioned that you slept in the den occasionally. Why did
      you sleep in the den?

      [K.K.]: Because, like, by now that we like knew that we had a thing, and
      that's mostly where—like everything went down. So, he knew that I would
      be in there. I knew that he would be in there. So we, basically, just like
      stuck to that room.


      [STATE]: When he would come into that room and have sex with you,
      what—would it be late at night, after everybody else was long asleep?

      [K.K.]: Yes.

      [STATE]: Like what times?

      [STATE]: Like around 11 o'clock or later, if he like were to wake up.



                                         -11-
No. 71330-2-1/12



       [STATE]: When all this was going on, how did you feel about Anton
       [Johnson]?

       [K.K.]: I liked him. I wouldn't say that I was like in love or anything.

RP (Oct. 29, 2013) at 251-55. Like the victim in Haves, K.K.'s testimony shows the

"usual course of conduct" regarding Johnson's pattern of abusive behavior. See Hayes,

438-39.


      The second prong was met when K.K. estimated the number of times she and

Johnson had sexual intercourse during the charging period:

       [STATE]: Just a couple more questions, [K.K.].
                Between September 15, 2011 and April 1st, 2012, or the time
                that you got the abortion, how many times do you think that
                Anton [Johnson] had sexual intercourse with you?

      [K.K.]: At least 15 times. I am pretty sure it was probably more.

RP (Oct. 29, 2013) at 273. This estimate is sufficient to satisfy the requirement in

Haves that the victim "describe the number of acts committed with sufficient certainty to

support each of the counts alleged by the prosecution." Hayes, 81 Wn. App. at 438. In

Haves, the victim testified that sexual intercourse occurred "at least four times and

some two or three times a week between July 1, 1990 and May 31, 1992." Hayes, 81

Wn. App. at 435. The court concluded that this testimony satisfied the second prong.

Here, K.K.'s testimony is nearly identical to the victim's testimony in Haves, and it

likewise satisfies the second prong.

      The third prong was satisfied by K.K.'s description of the general time period in

which the acts occurred. In addition to responding to the State's direct question

regarding the charging period, K.K. provided many other details indicating the time

period during which the events occurred. For instance, K.K.'s description of Johnson's

                                           -12-
No. 71330-2-1/13



pattern of sexual misconduct generally references the Brighton house. Other

witnesses, including K.K.'s mother, corroborated that K.K.'s family lived with Johnson in

the Brighton house during the charging period. K.K. also testified that she and Johnson

had sexual intercourse during several nights when K.K.'s grandmother was sick from

radiation treatment. K.K.'s grandmother testified that she was recovering from radiation

treatment while living with K.K.'s family in the Brighton House during the charging

period. In light of these specific details, K.K.'s testimony provided sufficient facts to

establish the third prong of the Hayes test. See Hayes, 81 Wn. App. at 438-39.

       Given the court's proper instructions to the jury and K.K.'s ample testimony under

Hayes,7 the State presented sufficient evidence of criminal acts within the charging

period to support Johnson's convictions on counts two and three. This is particularly

true considering the deferential standard of review applied to challenges based on the

sufficiency of the evidence. See Salinas, 119 Wn.2d at 201.

       Unanimous Jury Verdict

       Johnson also contends that his convictions on counts two and three violate his


right to a unanimous jury verdict. Johnson argues that the prosecutor's closing remarks

"elected" acts that fell outside the charging period, thus the jury may have convicted him

of uncharged and legally insufficient acts. We disagree. As discussed above, the trial

court gave proper and clear instructions requiring the jury to agree on specific acts for

each count within the charging period. We presume the jury followed those instructions.

State v. Montgomery, 163 Wn.2d 577, 596, 183 P.3d 267 (2008) ("There was no written




       7 Johnson fails to address Haves anywhere in his brief.
                                           -13-
No. 71330-2-1/14



jury inquiry or other evidence that the jury was unfairly influenced, and we should

presume the jury followed the court's instructions absent evidence to the contrary.")

       When the State introduces evidence of several criminal acts and any one of

which could constitute the crime charged, the jury must unanimously agree on the act or

incident that constitutes the crime. State v. Petrich, 101 Wn.2d 566, 572, 683 P.2d 173

(1984) overruled in part on other grounds by State v. Kitchen, 110 Wn.2d 403, 756 P.2d

105 (1988). In these "multiple acts" cases, courts employ the "either/or" rule:

       Either the State [must] elect the particular criminal act upon which it will
       rely for conviction, or. . . the trial court [must] instruct the jury that all of
       them must agree that the same underlying criminal act has been proven
       beyond a reasonable doubt.

Kitchen, 110 Wn.2d at 411; see also Petrich, 101 Wn.2d at 572. "[T]he State need not

elect particular acts associated with each count so long as the evidence 'clearly

delineate[s] specific and distinct incidents of sexual abuse' during the charging periods."

Haves, 81 Wn. App. at 431 (quoting State v. Newman, 63 Wn. App. 841, 851, 822 P.2d

308). Further, "[t]he trial court must also instruct the jury that they must be unanimous

as to which act constitutes the count charged and that they are to find 'separate and

distinct' acts for each count when the counts are identically charged." Haves, 81 Wn.

App. at 431 (guoting State v. Noltie, 116 Wn.2d 831, 842-43, 809 P.2d 190(1991)).

       Johnson argues the State improperly "elected" the Fir Street incidents and, as a

result, "there can be little doubt that the jury relied on these crimes not charged." Br. of

Appellant at 12. In his closing remarks, the prosecutor mistakenly suggested that the

jury could rely on the Fir Street incidents as a basis for convicting Johnson on counts




                                             -14-
No. 71330-2-1/15



two and three. We disagree with Johnson's characterization that the prosecutor elected

to rely on the Fir Street incidents.

       The record in this case leaves no doubt that the prosecutor made no "election" as

Johnson alleges. In closing argument, the prosecutor discussed the interplay between

the Petrich instruction and the to-convict instructions:


              Ladies and gentlemen, there is [sic] a couple of instructions that I
       want to get to you very specifically because it could potentially be
       confusing. One of them is instruction number 6, we call it the Petrich
       instruction . . . .


RP (Oct. 30, 2013) at 331. The State followed these remarks by reading the entire

Petrich instruction to the jury. After that, the prosecutor discussed the three to-convict

instructions for each count. He told the jury that each count, as set forth in the to-

convict instructions, involved sexual intercourse with K.K. that occurred "during the

period of time intervening between September 15, 2011, and April 1, 2012, on a

different occasion" in each count. RP (Oct. 30, 2013) at 331. The evidence is

undisputed that during this period K.K.'s family and Johnson lived at the Brighton Street

residence. And there is no dispute that the evidence shows "the counter" and "under

the covers" incidents occurred at the Fir Street residence, not at the Brighton Street

residence. The record plainly shows the prosecutor's closing remarks did not constitute

an "election" of specific acts for purposes of the rule in Petrich.8


       8Jury instruction 6 provided:
               There are allegations that the defendant committed acts of rape of a child
       in the third degree against [K.K.] on multiple occasions. To convict the defendant
       on Count I, at least one specific act of rape of a child must be proved beyond a
       reasonable doubt and you must unanimously agree as to which act has been
       proved beyond a reasonable doubt. To convict the defendant on Count II, a
       different specific act of rape of a child must be proved beyond a reasonable
                                           -15-
No. 71330-2-1/16



       Defense counsel's closing remarks indicate he did not view the prosecutor's

remarks as an election. He properly told the jury that they could consider only the acts

that occurred during the charging period at the Brighton Street residence in accordance

with the charging documents and the to-convict instructions:

      The State has limited its charging documents and its to convict instructions to
      some very important dates .. . The dates are all the same for all three [counts]
      September 15, 2011, to April 1st, 2012.

RP (Oct. 30, 2013) at 344. He also told the jury that although K.K. testified about

incidents that occurred at the Des Moines and Fir Street residences, the State did not

charge "anything that happened at those . . . you are not to consider them for purposes

of finding whether or not Anton committed those [charged] acts. The Brighton Street is

where they lived at from September of 2011 to April of 2012." RP (Oct. 30, 2013) at

344. The State's rebuttal argument did not repeat its mistaken comments.

      As noted above, the court's to-convict instructions and the Petrich instruction told

the jury that in order to convict Johnson, they must unanimously agree beyond a

reasonable doubt on one, but different, specific act of rape of a child for each count.

Further, in order to convict Johnson, they must also unanimously agree that the State

has met its burden to prove each of the essential elements beyond a reasonable doubt.

Other instructions told the jury that "the law is contained in my instructions to you. You

must disregard any remark, statement, or argument [by counsel] that is not supported


       doubt and you must unanimously agree as to which act was proved beyond a
       reasonable doubt. To convict the defendant on Count III, another different
       specific act of rape of a child must be proved beyond a reasonable doubt and
       you must unanimously agree as to which act was proved beyond a reasonable
       doubt.
CP at 25.


                                          -16-
No. 71330-2-1/17



by the evidence or the law in my instructions." CP at 19. The trial court also instructed

the jury that "it is also your duty to accept the law from my instructions . . . You must

apply the law from my instructions to the facts . . . and in this way decide the case." CP

at 18.


         Under the facts presented here and the court's jury instructions, there is no

possibility that the jury impermissibly relied on prior uncharged acts when it rendered its

guilty verdicts. Johnson's Petrich violation claim fails. For the reasons discussed

above, we are not persuaded that Johnson's right to a fair trial was violated.

         Notice


         Johnson also argues that the State violated his constitutional right to notice by

presenting evidence of acts not charged in the information and electing those acts

during closing argument to the jury. Because the jury instructions aligned with the

charging document, we conclude Johnson had sufficient notice of the crimes charged.

         "In Washington, a defendant may be convicted only when a unanimous jury

concludes that the criminal act charged in the information has been committed." State v.

Kitchen, 110Wn.2d403, 409, 756 P.2d 105 (1988) (abrogated by In re Stockwell, 179

Wn.2d 588, 316 P.3d 1007 (2014)). "An accused person has a constitutional right to be

informed of the charge he is to meet at trial and cannot be tried for a crime not

charged." State v. Jain, 151 Wn. App. 117, 121,210P.3d 1061 (2009). In Jain, the

State violated the defendant's right to notice by failing to provide adequate jury

instructions:


         [N]o instruction asked the jury to unanimously decide which property's
         disposition made up the crime of money laundering. And the State does
         not argue that it made an election . . . [T]he jury in this case could have

                                            -17-
No. 71330-2-1/18



       returned a guilty verdict by finding that Jain committed acts not charged in
       the information, specifically acts relating to properties other than the
       [properties identified in the information].

Jain, 151 Wn. App. at 124.

       Unlike in Jain, the trial court properly instructed the jury here. As discussed

above, the jury instructions required the jury to unanimously agree on specific acts for

each count charged within the charged period. The information charged Johnson with

three counts of rape of a child in the third degree, and each count alleged the criminal

act occurred "during a period of time intervening between September 15, 2011 through

April 1, 2012 . . . ." CP at 1-2. The jury instructions properly mirrored the counts

charged in the information. The instructions indicated that, to return a guilty verdict on

each count, the jury needed to find that Johnson had sexual intercourse with K.K.

"during the period of time between September 15, 2011 and April 1, 2012." CP at 26-

28. The jury is presumed to follow the court's instructions on the law. Under the facts

presented and jury instructions given here, Johnson was convicted solely of acts for

which he was charged. No violation of his right to notice occurred.

       Ineffective Assistance of Counsel


       Johnson argues that he was deprived of his constitutional right to effective

assistance of counsel when his attorney failed to object to inadmissible hearsay,

improper opinion on credibility and guilt, and unproved prior acts. He challenges the

following evidence:

       [K.K.'s mother]: So then, when I got off the phone [with K.K.'s
       grandmother] I asked, I brought her in my room and I asked her what was
       going on.

       [STATE]: Asked who?

                                           -18-
No. 71330-2-1/19




      [K.K.'s mother]: [T.K., K.K.'s sister,] asked her what was going on and she
      told me that [K.K.] told her that she wasn't really pregnant by [K.K.'s
      teenage boyfriend]. It was Anton's baby.

      [STATE]: Did you ever, after [T.K.] told you that [K.K.] said it was Anton
      that she was pregnant by, did you ask [K.K.] whether or not that was true?

      [K.K.'s mother]: I did. After I talked to [T.K.] I brought [K.K.] into the room
      and I asked her and said, yes, it was true.

RP(Oct. 29, 2013) at 126.

      [T.K.]: Like, I could hear them [Johnson and K.K.], but they were like
      arguments like, "you got me pregnant." She used to have the argument
      just like—

      [STATE]: When did you learn that [K.K.'s boyfriend] was actually not the
      father of [K.K.Vs baby?

      [T.K.]: When she told me.

      [STATE]: What did you tell [your mother]?

      [T.K.]: I said, "Anton hurt [K.K.]."

      [STATE]: Did you get any more specific than that?

      [T.K.]: I said, "the baby that she had, it was his."

RP (Oct. 29, 2013) at 152-53, 155.

      [STATE]: You asked [K.K.] at that point whether those things were true?

      [K.K.'s grandmother]: Yes.

      [STATE]: And she said, yes, they were?

      [K.K.'s grandmother]: Yes.

RP(Oct. 29, 2013) at 233.

      Johnson also claims counsel failed to object to K.K.'s statement that she told

both her sister and her mother that Johnson was the father of the baby.

                                             -19-
No. 71330-2-1/20



       Johnson asserts counsel failed to object to the following hearsay and opinion

evidence:


       [K.K.'s grandmother]: The text [from K.K.'s mother] said, "ask your nigger
       how long he been sleeping with your granddaughter."

       [STATE]: Did you ever ask [K.K.] about it, whether it was true or not?

       [K.K.'s grandmother]: I asked her, I said, "well, you know, I wanted her to
       know that no matter—I support you." Because I love my grandchildren.
       They are my life. So I wanted her to know that I am not calling her to
       scold her or to, you know, talk bad to her. I just wanted to know the truth.
                            I said, "did it happen?"
                            She said, "yes."

                            I said, "well, how long has this been going on?"
              She said, "for a while." So we just talked. I wanted her to know
       that I love her. I am not mad at her.   I believe her.


RP(Oct. 29, 2013) at 208-09.

       Johnson also contends defense counsel improperly opened the door to extensive

hearsay and ER 404(b) evidence during Officer Eric Beseler's testimony. On direct

examination, the officer mentioned he interviewed K.K.'s mother and T.K. During cross-

examination, defense counsel questioned the officer regarding what T.K. said in this

interview. On re-direct, the prosecutor asked the officer to recount everything T.K. had

told him:


               [T.K.] explained when she and her sister were at the basketball
       court, the talk turned to older men being interested in them.
               [K.K.] confided slowly that Anton [Johnson] had showed an interest
       in her sexually. By the time that they returned home, [K.K.] was braiding
       [T.K.'s] hair and [K.K.] had said to have divulged that she had begun
       having sex with Anton [Johnson] when she was 11 years old. The first
       time was said to have occurred in the back room while other family
       members slept after Anton [Johnson] told her that he found her attractive
       saying that she was quote beautiful unquote and quote had a nice booty.
       [T.K.] stated that [K.K.] further stated that they continued to have sex on
       multiple other occasions.

                                          -20-
No. 71330-2-1/21




RP(Oct. 29, 2013) at 181-82.

       Standard of Review


       This court reviews claims for ineffective assistance of counsel de novo. State v.

Sutherbv, 165 Wn.2d 870, 883, 204 P.3d 916 (2009). "To prevail on a claim of

ineffective assistance of counsel, counsel's representation must have been deficient,

and the deficient representation must have prejudiced the defendant." State v. Aho,

137 Wn.2d 736, 745, 975 P.2d 512 (1999); Strickland v. Washington, 466 U.S. 668,

687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). "To establish ineffective representation,

the defendant must show that counsel's performance fell below an objective standard of

reasonableness. To establish prejudice, a defendant must show that but for counsel's

performance, the result would have been different." State v. McNeal, 145 Wn.2d 352,

362, 37 P.3d 280 (2002) (citation omitted). Failure to establish either prong of the test is

fatal to an ineffective assistance of counsel claim. Strickland, 466 U.S. at 700.

       Deficient Performance


       Johnson failed to show that his counsel's performance was deficient. He has not

shown that any objection would likely have been sustained, nor has he overcome the

strong presumption that the decision not to object was a reasonable tactical decision.

       We are reluctant to find ineffective assistance of counsel except in the most

extreme cases. "[S]crutiny of counsel's performance is highly deferential and courts will

indulge in a strong presumption of reasonableness." State v. Thomas, 109 Wn.2d 222,

226, 743 P.2d 816 (1987). This is particularly true where, as here, the alleged deficient

performance consists of an attorney's failure to object. "The decision of when or


                                          -21-
No. 71330-2-1/22



whether to object is a classic example of trial tactics. Only in egregious circumstances,

on testimony central to the State's case, will the failure to object constitute

incompetence of counsel justifying reversal." State v. Madison, 53 Wn. App. 754, 763,

770 P.2d 662 (1989). Further, "[w]here a claim of ineffective assistance of counsel rests

on trial counsel's failure to object, a defendant must show that an objection would likely

have been sustained." State v. Fortun-Cebada, 158 Wn. App. 158, 172, 241 P.3d 800

(2010).

          Even if defense counsel had objected, proper grounds to admit the evidence

existed, justifying its admission at trial. Not all out of court statements constitute

hearsay. Hearsay is an out of court statement offered to prove the truth of the matter

asserted, and is generally inadmissible except as provided in the rules of evidence. "In

some cases, the courts have held that a statement is not hearsay if it is offered as

'background' (typically explaining why a person did or said something) or to supply a

context for some other statement that is admissible. Usually these cases involve

statements implicating the defendant in a criminal case, but offered for the limited

purpose of explaining actions taken by police and others. In at least one case, the court

admitted an out-of-court statement by a third person to supply context for a statement

by the defendant." Evidence Lawand Practice, 5B Washington Practice § 801.13,

347-48; State v. Moses, 129 Wn. App. 718, 732, 119 P.3d 906 (2005) (Prosecution for

murder. Victim told social worker about defendant's tendency toward violence in the

home. The court held the victim's statements to social worker were not hearsay

because they were not offered to prove the truth of the matter asserted. The

statements were offered for nonhearsay purpose, to "show why [the social worker]

                                            -22-
No. 71330-2-1/23



contacted CPS." Also, the court found no confrontation clause violation.). Here, the

alleged hearsay statements fall under this well-settled rule and constitute nonhearsay

statements offered to show why K.K.'s grandmother confronted Johnson and his

subsequent admission of guilt to her and why Johnson called K.K.'s mother and his

admission of guilt to her. Given Johnson's well developed "theme" at trial, discussed

below, a reasonable jury would clearly understand that the alleged hearsay statements

were offered solely to provide context for the defendant's statements to K.K.'s mother

and grandmother. See State v. Demery, 144 Wn.2d 753, 762, 30 P.3d 1278 (2001) (no

error in failing to give limiting instruction because the jury "clearly understood" that the

third party's statements were offered solely to provide context for the defendant's

statements.).9 Johnson's deficient performance claim based on defense counsel's

failure to object is not persuasive.

       Even assuming counsel's failure to object constitutes deficient performance, the

record demonstrates a reasonable tactical decision not to object. Throughout the trial

from opening through closing remarks, counsel's defense strategy consisted of a well

developed theme—K.K., T.K., and K.K.'s mother and grandmother intensely disliked

Johnson and collaborated to oust him from the residence. Defense counsel stated in

opening remarks: "Ladies and gentlemen of the jury, this is the case about the two

sisters who got their way, when they got rid of Anton Johnson from their household."

RP (Oct. 29, 2013) at 111. He reemphasized this theme in his closing argument:



       9 The State argues that some of the alleged hearsay statements are admissible
as nonhearsay statements of identification under ER 801(d)(1). This assertion is
questionable because the rule suggests a temporal requirement—a prompt
identification after perceiving the person.
                                              -23-
No. 71330-2-1/24



              In my opening statements, we talked about a theme that I thought
      would inform all of the evidence that you heard in this case. That is how
      this family the King family and the dislike of Anton Johnson and his role in
      that family started very early on, the strain of dislike runs through the
      testimony of [K.K.'s mother], [T.K.], [K.K.], and in the end, [K.K.'s
      grandmother].
              [K.K.'s mother], in her testimony, said that she did not want him
      there from the beginning.

RP (Oct. 30, 2013) at 336. Defense counsel argued that all of the witnesses used

similar language, suggesting they had conspired:

             It is interesting that even the words that they chose on the witness stand
      and you saw them all testify together, there was no other witness in the room
      watching the testimony of the other family member, but they all just used that
      word, too. It is like a phraseology that seems to have developed over the last
      period of time since this happened and their testimony.
             Obviously, they have been talking about the blindly assumed thing as the
      story,[1°l the family story to tell.

RP (Oct. 30, 2013) at 342-343. Defense counsel used the hearsay statements to

advance the defense theory:

             [T.K.] hated Anton from earlier on. She said that he played sisters
      against each other. He would tell one she was pretty. Tell the other one
      something different. She said that he had said in this family many times
      and in public that she hated Anton from the beginning. She said even on
      one occasion she said that she wanted to kill him.

              Most tellingly, when [K.K.] told her what had happened to her, when
      [K.K.] told her, we would submit, that the untruth that Anton did this, she
      said, "I am going to send you to where your momma is." That is when she
      called Anton on the phone . . . [K.K.'s grandmother] decided to cast her lot
      with her own immediate family ....

RP (Oct. 30, 2013) at 336-37. Defense counsel also challenged the family members'

credibility by repeatedly referring to their testimony as "hearsay upon hearsay" and


       10 The "blindly assumed thing" to which defense counsel refers is the fact that
K.K.'s sister, mother, and grandmother all initially assumed that the father of K.K.'s baby
was her teenage boyfriend and none of them questioned whether it was someone else.
                                             -24-
No. 71330-2-1/25



"double hearsay on hearsay." RP (Oct. 30, 2013) at 339-40; see State v. Soonalole, 99

Wn. App. 207, 216, 992 P.2d 541 (2000) (Counsel's performance was not deficient

when counsel used alleged hearsay statements to undermine the victim's credibility).

Defense counsel's decision not to object to alleged hearsay statements was a

reasonable trial strategy given the facts in this case.

        Prejudice

        Even assuming deficient performance by defense counsel, Johnson cannot show

a reasonable probability that, but for counsel's errors, the verdict would have been

different.


       When a claim of ineffective assistance of counsel is based on the failure to

object, "[o]nly in egregious circumstances on testimony central to the State's case" will

the failure to object constitute incompetence of counsel justifying reversal. Madison, 53

Wn. App. at 763. None of the statements Johnson points to were central to the State's

case. The alleged hearsay consists only of the assertions that Johnson was having sex

with and impregnated K.K. Other than K.K., none of the family members testified to any

description of the sex acts. K.K. gave thorough, detailed testimony about the numerous

sex acts, and two witnesses testified that Johnson confessed to committing those acts.

The family members' alleged hearsay statements were merely cumulative of K.K.'s

testimony. In State v. Owens, 128 Wn.2d 908, 913 P.2d 366 (1996), a child molestation

case, the admission of erroneous hearsay statements made by the victim to family

members was harmless because "B.K. testified about the rapes at trial. . . The hearsay

at issue consists only of the assertion that Owens molested B.K. Neither B.K.'s mother



                                           -25-
No. 71330-2-1/26



nor his grandmother testified to any description of the molestation . . . The State also

presented extensive medical evidence . . . ." Owens, 128 Wn.2d at 914.

       Under the circumstances presented here, Johnson cannot show prejudice. The

alleged hearsay could not have affected the verdict. See Owens. 128 Wn.2d at 914

("Under these circumstances, admission of B.K.'s [hearsay] statements to his mother

and grandmother could not have affected the verdict."). Because Johnson establishes

neither deficient performance nor prejudice, his ineffective assistance claim fails.

       Opinion on Credibility and Guilt

       Johnson argues a comment by K.K.'s grandmother that she believed K.K.'s story

constitutes an impermissible opinion on credibility and guilt.

       In the context of the entire conversation between K.K. and her grandmother, it is

evident that a reasonable jury would consider the comment as nothing more than words

of reassurance and comfort rather than an impermissible opinion on credibility and guilt.

This isolated, benign comment could not have affected the verdict in this case.

       Unproved Prior Acts

       Johnson also argues that his attorney improperly opened the door to K.K.'s

testimony, discussed above, that sex with Johnson began when she was 11-years-old.

He claims his attorney's cross-examination of Officer Beseler about his interview with

T.K. opened the door to the prosecutor's redirect examination of Officer Beseler who

testified that T.K. told him that K.K. said "she had began having sex with [Johnson]

when she was 11 years old." RP (Oct. 29, 2013) at 182.

       But Johnson does not establish that counsel's cross-examination of Officer

Beseler about T.K.'s statements to him constitutes ineffective assistance of counsel.

                                          -26-
No. 71330-2-1/27



The scope of cross-examination is generally a matter of judgment and strategy. State v.

Johnston, 143 Wn. App. 1, 20, 177 P.3d 1127 (2007). We do not rest an ineffective

assistance of counsel claim upon cross-examination strategy in the absence of specific

reasons how such strategy is sufficient to undermine confidence in Johnson's

conviction. See State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987) (citing

Strickland, 466 U.S. at 694).

       The record shows that defense counsel asked the officer about "one statement"

in his report—K.K. and T.K's "sharing secrets about older men" and "talking about older

men being interested in them at the basketball court." RP (Oct. 29, 2013) at 181. It is

questionable whether this single inquiry "opened the door" to K.K.'s comment about sex

with Johnson beginning at age 11.

       Indeed, what the record actually shows is the prosecutor's assumption that

counsel's limited questioning allowed him to ask the officer to read T.K.'s complete

statement to the jury from his report.11 Johnson did not object at trial when the

prosecutor asked Officer Beseler to read from his report and he assigned no error to the

decision not to object.

       Further, defense counsel's narrowly drawn cross-examination of Officer Beseler

was strategically aimed at undermining T.K. and K.K.'s credibility by showing that T.K.

and K.K. shared "secrets" and tried to "top each others' stories" with "something more

outrageous than you," an overarching theme he developed throughout the trial. RP

(Oct. 30, 2013) at 346.



       11 The prosecutor stated "I guess we can go through what T.K. said, then." RP
(Oct. 29, 2013) at 181.
                                          -27-
No. 71330-2-1/28



          Johnson establishes neither deficient performance nor prejudice.12

          Sentence for Community Custody

          Johnson argues the court erred when it imposed community custody in addition

to the statutory maximum term of confinement. Initially, the State conceded the

sentence was improper and agreed with Johnson that the case should be remanded to

the trial court only for the purpose of amending the sentence. But while Johnson's

appeal was pending, our Supreme Court decided State v. Bruch, in which it held that

trial courts may impose variable terms of community custody such that a defendant's

total confinement does not exceed the statutory maximum. Bruch controls here, and we

need not remand for resentencing.

          In Bruch, the defendant claimed that his sentence was indeterminate because

"the trial court added a term of community custody for the entire period of early release."

Bruch, 182 Wn.2d at 862 (internal quotations omitted). The court rejected this

argument: "A sentence is not indeterminate just because an offender may earn early

release credits . . . Thus, trial courts still necessarily impose variable community custody

periods in the sense that terms of confinement may later be shortened . . . ." Bruch, 182

Wn.2d at 862-863.

          As in Bruch, the trial court here ordered a variable term of community custody not

to exceed the statutory maximum: "[Community custody] is ordered for any period of

time the defendant is released from total confinement before the expiration of the




          12 Johnson cites a civil case, Saks v. Hi-Tech Erectors. 168 Wn.2d 664, 230 P.3d
583 (2010). That case involved unfair prejudicial evidence—a party's immigration
status.

                                            -28-
No. 71330-2-1/29



maximum sentence." CP at 37.13 Johnson argues that a trial court may not "impose a

variable term depending on the length of earned early release." Br. of Appellant at 25.

But, as in Bruch, Johnson's variable term of community custody does not exceed the

statutory maximum. It merely requires that, if Johnson is released early, he is

transferred to community custody for the remaining amount of time available in the

statutory maximum sentence. Bruch's sentence operated in the same way, and the

court rejected his argument that the variable community custody term was improper.

Bruch, 182 Wn.2d. at 862-863. We conclude the trial court's sentence here was proper.

                                       CONCLUSION


         For the reasons discussed above, Johnson failed to establish that the State

violated his constitutional rights to sufficient evidence, jury unanimity, notice, and a fair

trial. Johnson also failed to establish ineffective assistance by trial counsel and any

error in sentencing. We affirm his convictions for three counts of third degree rape of a

child.




WE CONCUR:
                                                                 u          it



       13 In Bruch, the statutory maximum sentence was 120 months, and the trial court
imposed a sentence of 116 months of confinement and ordered community custody for
a period of "at least 4 months, plus all accrued earned early release time at the time of
release." Bruch, 182 Wn.2d at 859.

                                            -29-
