       IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON


In the Matter of the Personal                      )          No. 77416-6-I
Restraint of                                       )
                                                   )          DIVISION ONE
       CARRI DARLENE WILLIAMS,                     )
                                                   )          UNPUBLISHED OPINION
                              Petitioner.          )
                                                   )         FILED: September 16, 2019

        ANDRUS, J.    —   Hana Williams, a teenage girl from Ethiopia, died in her

adoptive family’s backyard, the victim of physical abuse, inflicted starvation, and

hypothermia. A jury convicted Hana’s mother, Carri Williams,1 of homicide by

abuse in connection with her death and with assault of a child in the first degree in

connection with Carri’s abuse of her adopted Ethiopian son, I.W.2 We affirmed

Carri’s convictions and sentence in State v. Carri Darlene Williams, No. 71193-8-I

(Wash. Ct. App. Dec. 21, 2015) (unpublished), review denied, 185 Wn.2d 1036

(2016)~ (hereinafter C. Williams).

        In this personal restraint petition, Carri challenges both the legal and

evidentiary basis for her convictions as well as the adequacy of her trial and

appellate counsel’s representation. After a thorough consideration of the trial


        1 Carri and her husband, Larry, were both charged and were tried together. We refer to

them by their first names for convenience. We mean no disrespect.
       2 We refer to Hana by her given name but refer to the adopted son by the initials lW.

because he was a minor at the time of trial.
       ~ http://www.courts.wa.gov/opinions/pdf/71 1938. pdf.
 No. 77416-6-1/2

record, the parties’ briefing, and oral argument, we deny her personal restraint

petition.

                                             FACTS

        In the early hours of May 12, 2011, Carri telephoned her husband, Larry, as

he drove home from his job at Boeing. Carri told him that she had found their

teenage daughter, Hana, lying face down in the backyard, naked and unconscious.

After instructing Carri to call 9-1-1, Larry raced home and helped perform CPR until

the medics arrived and transported Hana to Skagit Valley Hospital. Hana was

pronounced dead at 1:30 a.m. on May 12, 2011.

        A subsequent investigation revealed that Carri and Larry routinely

physically and psychologically punished Hana, then a young teen, and l.W., a

9-year-old hearing-impaired boy, both of whom they had adopted from Ethiopia in

2008.

        Dr. Daniel Selove, the forensic pathologist who performed Hana’s autopsy,

noticed that Hana had visible injuries on her pelvis, elbows, knees, and calves;

bruises on her knees, eyebrow and upper pelvis; and multiple impact marks on her

thighs and calves. He determined that when she died, Hana suffered from severe

malnutrition, with an abnormally thin body and protruding ribs and shoulder blades.

Dr. Selove identified Hana’s cause of death as hypothermia, with malnutrition and

a bacterial infection in her stomach, h. pyIor~4 as contributing factors. Dr. Rebecca

Wiester, a Board-certified physician in child abuse pediatrics with malnutrition and

        ~ Helicobacterpylori (commonly known as h. pylon), is a bacterial infection of the
stomach. https://www. mayoclinic.org/diseases-conditions/h-pylori/symptoms-causeslsyc
20356171. Dr. Selove indicated the bacteria was present when Hana died but could not confirm
whether Hana was actively experiencing symptoms at the time of her death.

                                               -2-
 No. 77416-6-1/3

 hypothermia expertise, confirmed that Hana died from hypothermia brought on by

 inflicted starvation.

        When Child Protective Services (CPS) interviewed LW. and the Williamses’

seven biological children on May 24, 2011, the children revealed that Carri and

Larry had regularly beaten I.W. and Hana, causing scars, had denied them food,

had forced them to eat sandwiches soaked in water or eat frozen, uncooked

vegetables while sitting outside on the back porch away from the family, and had

forced Hana and I.W. to sleep in a locked closet or shower room. CPS removed

all of the children from the home in July 2011.

        On September 9, 2011, the State charged Carri and Larry with homicide by

abuse under RCW 9A.32.055 and the alternative crime of first degree

manslaughter under RCW 9A.32.060 for the death of Hana, and assault of a child

in the first degree under RCW 9A.36.120 for their mistreatment of I.W.                        On

September 9, 2013, following a seven week jury trial, the jury found Carri guilty of

all three charges.5

        On October 29, 2011, the trial court vacated Carri’s manslaughter conviction

on double jeopardy grounds, and it sentenced Carri to consecutive sentences of

320 months for the homicide by abuse and 123 months for the assault of l.W. We

affirmed Carri’s convictions and sentence on direct appeal. C. Williams, No. 71193-

8-I, slip op. at 2.6


        ~ The same jury found Larry guilty of first degree manslaughter and assault of a child. It
could not reach a verdict on Larry’s homicide by abuse charge.
        6 This court also affirmed Larry’s convictions and sentence. ~ State v. Larry Paul

Williams, No. 71112-1-I (Wash. Ct. App. Dec. 21, 2015) (unpublished), review denied, 185 Wn.2d
1034, 377 P.3d 741 (2016), http://www.courts.wa.gov/opinions/pdf/711121.pdf (hereinafter L
Williams).

                                              -3-
No. 77416-6-1/4

             In this personal restraint petition, Carri challenges (1)the sufficiency of the

evidence to prove either homicide by abuse or manslaughter in the first degree;

(2) the constitutionality of the homicide by abuse statute; (3) the prosecutor’s

statements during opening and closing argument; and the assistance of counsel

she received (4) at trial and (5) on direct appeal.7

                                           ANALYSIS

         An appellate court may grant relief to a petitioner who is under restraint and

who can demonstrate his restraint is unlawful. RAP 16.4; In re Pers. Restraint of

Cook, 114 Wn.2d 802, 805, 792 P.2d 506 (1990). Restraint is unlawful when a

conviction is obtained in violation of the United States Constitution or the laws of

the state of Washington. RAP 16.4(c)(2).

         Relief by way of a collateral challenge to a conviction is extraordinary and

a petitioner must meet a high standard before this court will disturb an otherwise

settled judgment. In re Pers. Restraint of Coats, 173 Wn.2d 123, 132, 267 P.3d

324 (2011). A petitioner has the burden of demonstrating error and, if the error is

constitutional, actual and substantial prejudice. In re Pers. Restraint of Sandoval,

189 Wn.2d 811, 821, 408 P.3d 675 (2018). If the error is not constitutional, the

petitioner must show that the error represents a ‘fundamental defect                     .   .   .   that

inherently resulted in a complete miscarriage of justice.” kf. (quoting In re Pers.

Restraint of Finstad, 177 Wn.2d 501, 506, 301 P.3d 450 (2013)). Furthermore, a

petitioner may not renew an issue that was raised and rejected on direct appeal


        ~‘  Carri also attempts to “join[] in the claims presented by Larry Williams in his parallel
[petition].” We decline to address Larry’s claims here. Carri’s petition fails to comply with RAP
16.7(b) to assert claims alleged by Larry in his personal restraint petition.

                                               -4-
No. 77416-6-1/5

unless the interests of justice require the issue to be reexamined.          In re Pers.

Restraint of Pirtle, 136 Wn.2d 467, 473, 965 P.2d 593 (1998).

                     Claim 1: Conviction for Homicide by Abuse

       Carri raises two challenges to her conviction for homicide by abuse. First,

she argues that the State presented insufficient evidence to prove she was

extremely indifferent to whether Hana lived or died or that she actually knew there

was a substantial risk Hana could die from hypothermia. Second, she contends

that the trial court erred in failing to define “extreme indifference to human life” for

the jury in violation of article IV, section 16 of the Washington state constitution.

(a) Sufficiency of the Evidence

       The due process clauses of both the state and federal constitutions require

the State to prove each element of the crime charged beyond a reasonable doubt.

State v. Mau, 178 Wn.2d 308, 312, 308 P.3d 629 (2013). When a party challenges

the sufficiency of the evidence, this court reviews the evidence in the light most

favorable to the prosecution. j.~ The evidence is sufficient when any rational trier

of fact could have found the essential elements beyond a reasonable doubt. State

v. Baeza, 100 Wn.2d 487, 490, 670 P.2d 646 (1983).

       Under RCW 9A.32.055:
      A person is guilty of homicide by abuse if, under circumstances
      manifesting an extreme indifference to human life, the person causes
      the death of a child or person under sixteen years of age. and the
                                                                     .   .


      person has previously engaged in a pattern or practice of assault or
      torture of said child [or] person under sixteen years of age.

      The jury was instructed that in order to convict Carri of homicide by abuse,

it had to find beyond a reasonable doubt that: (1) on or about May 12, 2011, Carri


                                         -5-
No. 77416-6-116

or her accomplice acted under circumstances manifesting an extreme indifference

to human life; (2) that Hana died as a result of her acts or the acts of an accomplice;

(3) that Hana was under 16 years of age; (4) that Carri or her accomplice previously

engaged in a pattern or practice of assault or torture of Hana; and (5) any of the

acts occurred in Washington.

       1. Circumstances Manifesting an Extreme Indifference to Human Life

        Extreme indifference to human life may be proved by evidence of “an

aggravated form of recklessness” falling below a specific intent to kill. State v.

Adams, 138 Wn. App. 36, 50, 155 P.3d 989 (2007) (quoting State v. Dunbar, 117

Wn.2d 587, 593, 817 P.2d 1360 (1991)). The State may prove this element by

demonstrating that a defendant has engaged “in extremely reckless conduct that

creates a grave risk of death.” jç~, at 50. The mens rea of homicide by abuse

requires evidence that the defendant demonstrated indifference toward a particular

victim, rather than to human life in general. State v. Edwards, 92 Wn. App. 156,

163, 961 P.2d 969 (1998). Evidence that a defendant engaged in a pattern or

practice of assaulting a child is sufficient to demonstrate an extreme indifference

to that child’s life. ki. at 165.

       We conclude that the State established that Carri acted under

circumstances manifesting an extreme indifference to whether Hana lived or died,

both in the months leading up to, and on the day of her death. At trial, l.W., who

was 12 at the time of trial, and six of the Williamses’ biological children, spanning

in ages from 13 to over 18, described the circumstances under which Carri acted

toward Hana preceding her death, from which a reasonable jury could conclude


                                        -6-
 No. 77416-6-1/7

Carri placed Hana at risk of death and simply did not care whether she lived or

died.8

         The Williams children described their parents’ chosen methods of punishing

Hana physically and psychologically for what they called her “disobedient”

behavior. Jacob saw Carri spank Hana with “switches”9 at least once every day in

the last six months of her life. Carri, who home-schooled all nine children, also

instructed her eldest sons to beat Hana when she deemed Hana to be “defiant.”

This physical punishment at times included beating Hana on the bottom of her feet,

treatment her brother, I.W., experienced and described as “very painful.” Hana’s

elder brother Jacob testified that the intent of this corporal punishment was to inflict

pain.

         The Williams children and their parents provided consistent descriptions of

Hana’s quotidian living conditions. When Hana first arrived from Ethiopia, she

slept in a bedroom with her sisters. When Carri and Larry caught Hana stealing

food, they forced her to sleep outside in a barn. For a two week period in the fall

of 2010, they locked Hana in a shower room at night without access to a toilet. For

the last six months of Hana’s life, Carri and Larry locked her into a small closet

every night.1° Hana had to remain in this closet until either Larry or Carri let her




         8  Four of Carri’s Sons all have the same initials—J.W. To avoid confusion, we refer to the
two eldest sons by their given first names, Joshua and Jacob, because they were both over the
age of 18 at trial. We will refer to her other two sons as the third and fourth biological sons. The
two daughters who testified will be referred to as C.W., age 14 at trial, and SW., age 13 at trial.
         ~ The Williamses used a plastic plumbing tube and glue stick to strike the children, referred
to by the children as “switches.”
         10 The closet measured 2 feet by 4 feet, 3 inches. Hana was 5 feet tall.



                                                -7-
No. 77416-6-118

out, and she had no ability to turn on the light while inside because the switch was

on the outside of this closet.

         Moreover, Carri forced Hana to stay in the closet all day if she refused to

follow Carri’s instructions to go outside. One of Carri’s younger sons testified that

Hana was locked in the closet for up to 24 hours at a time. When Carri locked

Hana inside the closet during the daytime, she played an audiobook of the Bible

because, as one of the Williams children put it, Carri ‘was trying to get Hana’s brain

to think differently.”

        Larry and Carri also made Hana use an outhouse behind the barn, and

wash her hands and shower outside in the backyard, and would not permit her to

use any of the three indoor bathrooms in the home. Carri began imposing this

punishment in the summer of 2010 because Hana suffered from a “blood-borne

disease,”11 had started menstruating, and, Carri suspected, was deliberately

smearing blood on the bathroom walls and door. Carri regularly escorted Hana to

and from the backyard outhouse, which Hana was the only child forced to use.

l.W. was unsure why Larry and Carri would hose Hana off in the backyard with

cold water, but he could see that “she wasn’t comfortable” when being hosed

down. Carri also decided at one point to cut off all of Hana’s hair in punishment

for having cut the grass too short.

        The Williamses also used food deprivation as a form of punishment. Carri

and Larry forced Hana and I.W. to miss meals, with Hana sometimes being denied


         ~ Hana contracted Hepatitis B in Africa and received treatment for it after she was adopted
by the Williamses. The entire Williams family received the Hepatitis B vaccine before Hana arrived
in 2008.

                                               -8-
No. 77416-6-1/9

any food for two consecutive days. When they did provide food to eat, they

required Hana and I.W. to eat separately from the rest of the family. The parents

forced both Hana and I.W. to eat on the floor, in another room, or outside, when

the rest of the family ate at the dining room table. Carri often required Hana to eat

her meals in the locked closet. In the last few months of Hana’s life, Carri and

Larry forced both Hana and l.W. to eat their meals outside for what Carri described

as “meal time oppositionality.” Carri testified that as time went on, Hana ate most

meals outside on the back patio.

       Moreover, when Hana and l.W. received meals, they were not fed the same

food as the other Williams children. Instead, the lunch sandwiches that Hana and

I.W. received had been soaked in water by either Larry, Carri, or one of the other

children at their parents’ direction. Carri testified that the children were fed these

“wet sandwiches” because Hana and I.W. refused to cooperate at the meal table.

Dinnertime was no different. Carri usually served Hana and l.W. cold leftovers

topped with un-defrosted frozen vegetables. Hana went from a weight of 108

pounds and a base metabolic index (BMI) of 23.46 in April 2009, to 78 pounds,

and a BMI of less than 16, signifying severe malnutrition, on the day of her death

in May2011.

      Carri’s physical punishment followed Hana to the backyard. Carri forced

Hana to engage in punishments she and the children called “walk[ing] the line” and

“boot camp.” “Walk[ing] the line” involved forcing Hana to walk the perimeter of an

outdoor pickle ball court in the backyard. “Boot camp” involved extra chores,

usually outdoors, and sometimes involved stacking and restacking the same pile


                                        -9-
No. 77416-6-1/10

of rocks. Hana underwent ‘boot camp” at least once or twice a week in the last six

months of her life.

       May 11, 2011, began as a typical day for the Williamses. While the children

emerged from their bedrooms, Carri let Hana out of the locked closet. Then Larry,

with C.W. and S.W.’s assistance, prepared breakfast around 10:00 a.m. Given

that Larry admitted that Hana ate breakfast outside “more often than not,” she likely

ate her breakfast outside that morning.

       After breakfast, the children cleaned up the kitchen, did their chores, and

went outside to play.    The children recalled playing “Capture the Flag” that

morning. Hana, who was wearing a t-shirt and sweat pants, was outside but did

not participate. Larry left for work around noon.

       The children typically ate lunch between 2:00 or 3:00 p.m. Carri escorted

Hana to the outhouse before lunch. She then gave Hana her lunch, presumably a

wet sandwich, around 3:00 p.m. Although Carri initially denied forcing Hana to

remain outside as punishment that day, she admitted she forced Hana to eat

outside “for disobedience, being oppositional.” And one of Carri’s sons confirmed

that Hana was required to stay outside all day as punishment. There was also

testimony that Carri refused to let Hana remain indoors when she was

menstruating, and that Hana got her hands bloody because she was “spotting” that

day.

       Carri testified that around 4:00 or 4:30 p.m., she told Hana to come back

inside, presumably to do her schoolwork, but that Hana would not comply. Carri




                                       -   10-
No. 77416-6-I/Il

saw Hana remove her shoes and stand at the back door. Carri shut the door on

Hana.

          Carri testified that initially she checked on Hana every five to ten minutes

after Hana refused to come inside after lunch. She saw Hana put her shoes back

on but had no recollection of what Hana did between 4:30 and 6:00 p.m., when

Carri again walked Hana to the outhouse. Carri claimed she again told Hana to

come inside and Hana again refused. By that time, it had started to drizzle outside.

At some point before it got dark, Carri went outside and spanked Hana with a

switch.

          Carri escorted Hana to the outhouse a third time around 8:30 p.m. But this

time, Carri saw Hana “throw herself down” on the ground. Carri testified that Hana

took a few steps and lunged forward, landing on her hands and knees. She further

testified that Hana did this repeatedly before and after using the outhouse. Carri

took no steps to help Hana get up after falling because “I didn’t need to. She got

right back up herself.” Carri also saw Hana repeatedly hit her forehead on the

back patio. At that point, Carri chose to leave Hana outside because she “couldn’t

watch it anymore.”

        After Carri returned inside, she saw Hana continue to “throw herself” around

for another 20 to 30 minutes. One of Carri’s sons testified that he observed Hana’s

odd behavior as well. Carri noticed by this time that Hana had skinned her elbows

and knees and had a “knot” on her forehead.

        Carri claims she sent her oldest son, Joshua, outside to bring Hana inside,

but she also instructed Joshua to spank Hana with the plastic switch and to force


                                         -II   -
No. 77416-6-1/12

Hana to do exercises, like jumping jacks or sit-squats, to keep warm. Hana began

exercising as Joshua instructed, but when she stopped, Carri sent her next eldest

son, Jacob, to do the same thing. Jacob testified that he spanked Hana with the

plastic switch and ordered her to do sit-squats. Again, Hana complied for about a

minute, then stopped. Finally, Carri sent her third oldest son outside to repeat the

beatings. Carri admitted that she wanted Hana to do exercises “to keep warm.”

       Dr. Selove testified that when he conducted Hana’s autopsy, he observed

marks on Hana’s left thigh where she had been struck by a long, narrow object,

such as a strap or switch at least four times with sufficient force to cause her blood

vessels to burst. He found ten similar patterned bruises on Hana’s lower calves.

       Carri claimed that she then took Hana her dinner outside. Carri said Hana

did not eat the food; Hana brought the fork to her mouth as if she was going to take

a bite and then put the fork back. In a written statement to police, one of Carri’s

sons said that Hana was leaning over the table and was unable to eat. After five

minutes, Carri took Hana’s dinner plate away and moved it into the house.

       Carri said at some point, she attempted to carry Hana inside but Hana “went

limp.” She then ordered Jacob and Joshua to carry Hana inside. Carri told the

boys to first don latex gloves and to remove Hana’s shoes and socks because they

were soggy from dripping water and Hana’s blood. Carri said Hana was so bloody

and her clothes so wet from walking in the rain, that “[t]he water dripping down had

made the blood drip down all over her soft-centered shoes,” and she wanted them

removed before Hana came inside. Joshua complied, removing Hana’s shoes and

socks and throwing them in the garbage.           Jacob testified that when Joshua


                                        -   12-
No. 77416-6-1/13

returned to the back porch, Hana started taking off her clothes. Carri went outside

and saw Hana sitting “buck naked from the waist down.” Carri told her sons to go

back inside and to “forget it” because “modesty is important in our family.” Carri

took a set of dry clothes to Hana, told her to get out of her wet clothes, returned

back inside, and turned the patio light off, leaving Hana in the dark. Carri testified

that she checked on Hana twice, turning on and off the patio light each time. At

some point, she thought Hana had begun changing her clothes.

       But Carri was “busy” with her other children, so she instructed C.W. to check

on Hana. C.W. testified that she checked on Hana every 10 to 15 minutes and

saw that Hana continued to remove more clothing, until she was completely naked.

Like Carri, C.W. turned on and off the light every time she checked on Hana.

       Hana apparently remained outside in the dark, bloody, wet, cold, and naked

for at least two hours. Around midnight, Larry called Carri to let her know that his

vanpool had dropped him off at the park and ride, and that he was on his way

home. When Carri told Larry about her perception of Hana’s behavior, Jacob

overheard them arguing about whether Hana was really falling down on purpose.

Larry was not at all surprised by Carri’s description of Hana’s behavior.

       C.W. next saw Hana face down on the back patio. C.W. told Carri, who

went outside, to find Hana with her face halfway on the concrete and half on the

grass, and her mouth full of dirt from having her face fall onto a mole hill just off

the patio. Hana was cold to her touch. Carri rolled her over and “could see that it

wasn’t good.” She ran inside to grab a sheet from the linen closet to cover Hana

“for modesty,” and then tried to carry her inside with C.W.’s help. When Carri


                                        -13-
No. 77416-6-1114

realized they could not carry Hana, Carri enlisted Joshua’s help. Joshua came

outside and carried Hana inside.

       Once Hana was inside, neither Carri nor Joshua could find a pulse. Carri

called Larry who told her to call 9-1-1. The 9-1-1 operator directed Carri to perform

CPR.    When Larry arrived home shortly thereafter, he and Carri took turns

administering CPR until medics arrived.

       When Skagit County Sheriff Deputy Chad Clark arrived, he saw a large

lump on Hana’s forehead. Pictures taken of Hana’s body showed her contusions,

abrasions, and dirt above Hana’s right eye and in her right nostril. Hana was

transported to Skagit Valley Hospital where Dr. Janette Tomlinson pronounced her

dead at 1:30 a.m. on May 12, 2011. Dr. Tomlinson did a full examination of Hana’s

body and also saw contusions on her forehead, bruises and abrasions on her hips,

knees, and shins, and red streaks on her thighs. Carri told Dr. Tomlinson that

Hana had been “face planting” outside that night. She found this version of events

odd, given that it would be inconsistent with the normal human reflexive response

to a fall. “[l]f you try to fall down and hit your nose, if you are standing on flat

ground and you just try to fall to the ground, your hands usually protect you from

falling.” Had the police and CPS not already been involved, Dr. Tomlinson testified

she would have notified CPS.

       The State’s experts testified that Hana’s behavior before and on May 11,

2011, can be explained by the fact that she was so severely malnourished.

Dr. Wiester testified that starvation causes distress and anxiety in a child, leading

the child to steal food, to exhibit abnormal behaviors around food, and to engage


                                       -   14   -
No. 77416-6-1/15

in defiant behaviors in general.      Dr. Frances Chalmers, a pediatric medical

consultant for the State, testified that when a body lacks adequate fuel in the form

of calories, and it starts using stored body tissue, the result can be irritability,

behavioral changes, fatigue, and serious cardiac arrhythmia. Both Dr. Chalmers

and Dr. Wiester testified that a child as emaciated as Hana would be more

susceptible to hypothermia because she would have insufficient insulating fat

under the skin to keep the body warm in a cool environment. And Dr. Wiester

noted that people suffering from hypothermia exhibit erratic physical movements,

such as stumbling or having difficulty walking, and irrational behavior from an

altered mental status. Dr. Selove noted hypothermia victims often have a false

sensation that they are warm and engage in “paradoxical undressing,” meaning

they remove their clothing even though one would expect them not to in that

situation. Ultimately, an individual suffering from severe hypothermia will lapse

into a coma.

       Carri argues this evidence does not establish she acted with extreme

indifference to whether Hana lived or died and that her testimony indicated that

she “did everything she could think of to get [Hana] to come out of the rain and into

the house.” But there was substantial testimony indicating otherwise. The jury

was not obligated to accept Carri’s testimony.         When a defendant alleges

insufficiency of the evidence, we view the evidence in the light most favorable to

the State. Statev. Green, 94 Wn.2d 216, 221, 616 P.3d 628 (1980).

      Here, a reasonable jury could conclude from the evidence that Carri did not

care that she was starving Hana to death. Carri complained to her knitting club


                                       -   15-
No. 77416-6-1/16

friends that if Hana would not eat what was put in front of her, then she would not

eat at all. Carri denied Hana food or made the food unpalatable to eat and forced

her to eat it away from the rest of the family. Carri testified Hana then began

stealing food about a year before her death. And Carri said Hana lied about

stealing when confronted. Carri told friends that Hana was a “liar” who “rifled

through everyone’s belongings and stole from them.” Carri locked Hana in the

shower room and then the closet to keep her from “hoarding” or “gorging on

sweets.” When one of her friends suggested she return Hana to the adoption

agency, her response was “I don’t wish her on anyone.”

       Moreover, Carri admitted she never sought advice from any medical or

psychological professional for what she deemed to be Hana’s “revealed

rebelliousness.” She simply saw no cause for concern for Hana’s health. In fact,

the Williams family doctor, Harold Clark, testified the last time he had seen Hana

was in April 2009, over two years before her death.

       Dr. Wiester testified that this pattern of restricting Hana’s food intake,

punishing her for “bad behavior” by not allowing her to eat, confining her to a locked

closet, isolating her from her family, and forcing her to be punished by other

members of the family, are all actions consistent with the “intentional infliction of

starvation.” She testified:

       [C]hildren who have inflicted starvation begin with having restricted
       food or having bad food or no food or food different from the rest of
       the family or bread and water or something like that, and then the
       pattern of the behavior which is very commonly seen is that the kids
       start to steal food, they start to lie about food, they start to hoard food,
       they start to take other people’s food, and then the problem becomes
       that is seen as bad behavior which then sort of spirals into more
       disciplinary approaches and more restriction and more treatment for

                                         -   16-
No. 77416-6-1117

       bad behavior and being disagreeable and disobedient. So then
       there’s even more restriction and then it sort of becomes a self-
       fulfilling prophecy..




       On the day of Hana’s death, Carri removed her from a locked closet, forced

her outside, either because Hana was rebellious or because she was

menstruating, probably forced her to ‘walk the line” or stack rocks while outside,

then physically beat her, ordered her three eldest sons to beat her, and forced her

to do jumping jacks or squats. Carri then saw Hana fall to the ground and sustain

multiple injuries, including a significant trauma to her head. Yet, Carri did nothing

either to stop what may have been intentionally self-harming behavior or to

determine what may have been the cause of her erratic physical movements. Carri

offered cold food to Hana for dinner but then promptly took it away when Hana

lacked sufficient body coordination to actually get the fork to her mouth. And after

learning that Hana was naked, bloody, possibly concussed, cold and wet, Carri left

Hana sitting on the back porch. The jury could reasonably find Carri passively

stood by while Hana slipped into unconsciousness from starvation and exposure

because she simply did not care whether Hana lived or died.

      2. Sufficiency of Evidence of Carri’s Knowledcie of the Risk of Death

      Carri next argues that under State v. Dunbar, 117 Wn.2d 587, 817 P.2d

1360 (1991), the State had to prove she had actual knowledge that her conduct

presented a substantial risk of death by hypothermia, rather than proving she acted

recklessly and caused a death. In Dunbar, the Supreme Court analyzed whether

one could be charged with attempted first degree murder under RCW

9A.32.030(b), the elements of which are:


                                       -   17-
No. 77416-6-1/18

       Under circumstances manifesting an extreme indifference to human
       life, he or she engages in conduct which creates a grave risk of death
       to any person, and thereby causes the death of a person        .




The Supreme Court held that this crime is “an aggravated form of recklessness

which falls below a specific intent to kill.”     117 Wn.2d at 593.       “[T]he phrase

‘extreme indifference’ appears to contemplate a lesser mental state” than intent.

jçj~ And if the crime does not require proof of a specific intent to kill, the court held

that the defendant could not be convicted of attempting to commit that crime. ki.

at 594-95.

       Carri contends Division Three extended Dunbar’s construction of the first

degree homicide “extreme indifference” statute to a homicide by abuse case, State

v. Adams, 138 Wn. App. 36, 155 P.3d 989 (2007). In that case, the court, in

evaluating the sufficiency of evidence, cited Dunbar for the proposition that

extreme indifference to human life “may be proved where the defendant engages

in extremely reckless conduct that creates a grave risk of death.” k~. at 50. Carri

argues that because recklessness is statutorily defined in RCW 9A.08.010(1)(c)

as requiring proof that a defendant “knew of and disregarded a substantial risk;”

and Adams and Dunbar require proof of a grave risk of death, the State must prove

that Carri had actual knowledge that her conduct put Hana at a risk of death.

       She contrasts Adams with Division Two’s decision in State v. Madarash,

116 Wn. App. 500, 512, 66 P.3d 682 (2003), in which that court rejected the

argument that the definition of “extreme indifference” from the first degree murder

statute applies to the homicide by abuse statute. The Madarash court noted that

the homicide by abuse statute did not incorporate the language “conduct which


                                         -18-
No. 77416-6-1119

creates a grave risk of death” from the first degree murder statute. 116 Wn. App.

at 512. It held that “Madarash did not have to know or understand the physiological

response, or any other results, that [the child] might endure from drinking a 48-

ounce Diet Pepsi and ingesting great quantities of water in the bathtub. Rather, in

order to have acted with extreme indifference to [the child’s] life, Madarash simply

had to not care whether [the child] lived or died.” kL

       Carri asks this court to adopt the higher “actual knowledge” mens rea of

Adams and to reject what Carri characterizes as a lower mens rea standard of

Madarash. We do not need to resolve this legal issue here, however, because we

conclude the evidence is sufficient to prove that Carri knew that intentionally

starving Hana and exposing her to inclement weather for hours in inadequate

clothing created a substantial risk of death.

       First, Carri had full knowledge she was mistreating Hana. She testified she

knew it was wrong to lock Hana in a closet or shower room. She admitted it was

a mistake to force Hana to sleep in the barn, to force her to shower outside, and

to force her to use an outhouse. And she knew that law enforcement would be

asking questions about her role in Hana’s death, so she told her children to lie to

the police and to child protective services as to where Hana slept at night.

       Second, while Carri insisted she had never been trained in or had any

knowledge of the symptoms of hypothermia, Carri admitted that “as a common

sense kind of thing, as a mother,” she knew “being outside in the cold rain is

problematic.” She knew it was harmful for children to be outside when it is wet and

cold. She testified that around 8:30 p.m., she became afraid that Hana was too


                                        -19-
No. 77416-6-1/20

cold and wet so she reached under Hana’s shirt at one point and confirmed her

body felt warm. Her conduct appears to conflict with her statement that she had

no clue that hypothermia was a risk. And Carri also told Skagit County Sheriff

Detective Ben Hagglund that Hana’s body was cool—not warm—to the touch and

this fact scared her.      Finally, Carri’s third eldest son testified he knew what

hypothermia was because he had watched a movie about it during a hunting safety

class. He was aware that people, when suffering from hypothermia, may begin to

feel very hot and remove their clothing. On the night of Hana’s death, he was

watching Hana from the windows in the house, along with Joshua and Jacob and

his sister,   C.W. And he thought Hana was cold. From this evidence, the jury could
have reasonably concluded that Carri was aware Hana was descending into

hypothermia that night.

          Third, the jury could have reasonably concluded that Carri’s testimony about

regularly feeding Hana was untrue. Carolyn Roesler, an Australian doctor who

provided medical care to Hana while she was in the Ethiopian orphanage, testified

Hana was healthy with no evidence of malnutrition before leaving for the United

States.       Carri knew Hana was losing weight but claimed it was “gradual.”

Dr. Chalmers testified Hana’s weight loss was “precipitous.” She described the

pictures of Hana at death as “quite emaciated.” Dr. Selove testified her ribs were

visible and her shoulder blades protruded. Dr. Wiester testified the photographs

of Hana after death showed visible signs of temporal wasting, which she described

as the loss of fat around the eyes making her look like an older person.




                                         -   20   -
No. 77416-6-1/2 1

       Carri testified that when Hana first joined their family, she gained weight

rapidly and “grew out of her clothing.” Joseph denied ever telling a foster mother,

Trudy Wise, that the family took food away from Hana because she had gotten fat,

but Wise confirmed his statement to her. Joseph was certainly aware Hana was

losing weight. Several family members, including Carri, repeatedly stated that

Hana had been stealing food, a psychological effect of starvation. Carri freely

admiffed she locked Hana in the shower room and closet to prevent her from

stealing food.      The jury could conclude from this evidence that Carri was

intentionally starving Hana and that she knew she was creating a risk of death by

doing so.

       The record here is sufficient to prove beyond a reasonable doubt that Carri

knew of and disregarded a substantial risk of death by intentionally starving her

child and forcing her to remain outside in inadequate clothing, and then naked, in

the rain for an extended period of time.

(b) Lack of Instruction Defining “Extreme Indifference to Human Life”

       Carri next claims that her homicide by abuse conviction must be reversed

because the trial court failed to define the term “extreme indifference to human

life,” in violation of State v. Allen, 101 Wn.2d 355, 678 P.2d (1984) and article IV,

section 16 of the Washington State Constitution. We disagree.

      At trial, Carri proposed an instruction defining “extreme indifference to

human life.” The proposed instruction, based on Madarash and State v. Edwards,

92 Wn. App. 156, 961 P.2d 969 (1998), read: “Extreme indifference to human life’

means to not care whether the deceased lived or died.” The trial court declined to


                                       -21   -
No. 77416-6-1122

give this particular instruction, reasoning that the definition was not as simple as

counsel had reduced it to in the proposed instruction based on the court’s reading

of Madarash. It concluded that an ordinary person could figure out what “extreme

indifference to human life” means.

       On direct appeal, this court addressed the definition of “extreme indifference

to human life” when it rejected Carri’s argument that the phrase was

unconstitutionally vague.     C. Williams, No. 71193-8-I, slip op. at 16.         We

recognized that the homicide by abuse statute does not define “extreme

indifference.” But, citing the dictionary definitions of these terms and the court’s

adoption of the dictionary definitions in Madarash, we concluded that the plain

meaning of the term set an ascertainable standard of guilt that was not inherently

subjective as applied to Carri’s conduct. j~ç[~ at 17-18.

       In her petition, Carri argues that because “extreme indifference to human

life” is a technical term for the applicable mens rea, she was entitled to an

instruction defining that term for the jury. Due process requires that, when read as

a whole, jury instructions in a criminal case must correctly tell the jury the

applicable law, must not be misleading, and must permit the defendant to present

hertheory of the case. Statev. O’Hara, 167 Wn.2d 91, 105, 217 P.3d 756 (2009).

While the constitution requires that the jury be instructed as to each element of the

offense charged, the failure to further define one of those elements is not within

the ambit of the constitutional rule. ki. Thus, the trial court’s refusal to define

“extreme indifference to human life” would not rise to a due process violation.




                                        -22-
No. 77416-6-1/23

        Carri relies on Allen for her claim that a definition is constitutionally required.

In Allen, the defendant sought an instruction defining the word “intent,” an element

of the charged crime of attempted second degree burglary. 101 Wn.2d at 358.

Our Supreme Court stated that when the Legislature passed RCW 9A.080.010 to

establish a hierarchy of mental states for crimes of increasing culpability, it

intended to give these mental states technical meanings, as opposed to their

commonly understood meanings. ~ at 359. Because the crime of second degree

burglary included the specific mental state of an intent to commit a crime, it

concluded that the trial court erred in rejecting the defendant’s proposed statutory

definition of intent. jçj. “Although the jurors may be able to hammer out a definition

for intent and knowledge among themselves, it cannot be assumed that these

definitions would match those established by the Legislature for use at trial.” j.ç~ at

362.

       But Allen did not rest on due process principles; it instead relied on a

determination that the statutory term “intent” was a technical term of art. Unlike in

Allen, there is no statutory definition of “extreme indifference to human life,” and

the court in Madrash and this court in C. Williams determined the statutory phrase

is not in fact a technical term of art.

       Moreover, in State v. Barstad, 93 Wn. App. 553, 970 P.2d 324 (1999), the

court rejected the defendant’s argument that the trial court should have defined

“extreme indifference to human life” as used in the murder statute. ki. at 566. The

court recognized that as a general rule, the trial court must define technical terms

and expressions, but it need not define words or expressions that are of ordinary


                                          -   23   -
No. 77416-6-1/24

understanding or self-explanatory. ki. at 567 (internal quotation marks omitted)

(quoting State v. Brown, 132 Wn.2d 529, 611-12, 940 P.2d 546 (1997)).                             It

reasoned that:

        [T]he Legislature substituted the term ‘extreme indifference’ for the
        antiquated ‘evincing a depraved mind’ terminology of the prior law
        for the purpose of updating the code with modern language.        the     .   .   .


        courts have not attempted to further define ‘extreme indifference’;
        rather, the particular facts of each case are what illustrate its
        meaning. There is no need for further definition.
j~. We held in Carri’s direct appeal that the phrase “extreme indifference to human

life” was a phrase of ordinary understanding. Thus, Carri was not entitled to a

definitional instruction as a matter of law under Allen.12

        Carri separately argues the trial court violated article IV, section 16 by failing

to give her proposed definitional instruction.              Article IV, section 16, entitled

“Charging Juries,” provides “Judges shall not charge juries with respect to matters

of fact, nor comment thereon, but shall declare the law.” The purpose of this

provision is to prevent the jury from being influenced by the judge’s opinion of the

evidence that has been presented. City of Kirkland v. O’Connor, 40 Wn. App. 521,

523, 698 P.2d 1128 (1985).              Our Supreme Court has construed the latter

requirement for judges to “declare the law” in a very general way. Hiscock v.

Phinney, 81 Wash. 117, 123, 142 Pac. 461 (1914). This constitutional provision

merely requires that the court, and not a jury decide questions of law arising at

trial. Pepperall v. City Park Transit Co., 15 Wash. 176, 183, 45 Pac. 743 (1896).




        12 Because we conclude Carri was not entitled to the definitional instruction she proposed,
we need not address her contention that her appellate counsel provided ineffective assistance of
counsel in failing to raise this argument on Carri’s direct appeal.

                                              -   24   -
No. 77416-6-1/25

It does not provide an independent ground for chaHenging a conviction if the trial

court’s jury instructions otherwise met the requirements of due process.

         Because Carri was not legally entitled to an instruction defining “extreme

indifference to human life,” she has not demonstrated that the trial court’s rejection

of her proposed instruction requires a reversal of her homicide by abuse

conviction. We thus reject Carri’s Claim 1.

              Claim 2: Constitutionality of the Homicide by Abuse Statute

         Carri contends the homicide by abuse statute is unconstitutionally vague

because it fails to give notice of what types of parental discipline are prohibited. In

her direct appeal, Carri raised a nearly identical argument, where she claimed that

the terms “torture” and “extreme indifference to human life” in the homicide by

abuse statute were unconstitutionally vague as applied to her. This court rejected

her vagueness argument.13

         In this petition, Carri characterizes her current vagueness challenge as a

facial, rather than an as-applied, challenge to the statute. To succeed on a facial

challenge, the complaining party must demonstrate that the law is impermissibly

vague in all of its applications. Hoffman Estates v. Flipside, Hoffman Estates, Inc.,

455 U.S. 489, 497, 102 5. Ct. 1186, 71 L. Ed. 2d 362 (1982); State v. Worrell, 111

Wn.2d 537, 541, 761 P.2d 56 (1988). A facial challenge must be rejected if there

are any circumstances where the statute can constitutionally be applied.

Washington State Rejublican Party v. Washington State Pub. Disclosure Comm’n,


          13This court followed the reasoning in State v. Brown, 60 Wn. App. 60, 802 P.2d 803 (1990)
and State v. Russell, 69 Wn. App. 237, 848 P.2d 743 (1993) to conclude that neither the term
 torture,” nor the phrase “pattern or practice of assault or torture” in the homicide by abuse statute
was unconstitutionally vague. C. Williams, No. 71193-8-I, slip op. at 16.

                                               -25-
No. 77416-6-1/26

141 Wn.2d 245, 282 n.14, 4 P.3d 808 (2000).                     Carri does not argue that the

homicide by abuse statute is impermissibly vague in all of its applications. She

instead challenges the statute only in the context of parental discipline. This is in

essence an as-applied challenge.14

        A petitioner may not renew an issue that was raised and rejected on direct

appeal unless the interests of justice require the issue to be reexamined. Pirtle,

136 Wn.2d at 473. Because Carri raised, and this court rejected, her as-applied

challenge to the homicide by abuse statute, and she advances no reasons for why

the interests of justice require us to revisit the decision, we will not address this

constitutional argument anew.15 We thus reject Carri’s Claim 2.

                              Claim 3: Prosecutorial Misconduct

        Carri claims that she was deprived of her constitutional right to a fair trial

after the prosecutor committed two instances of misconduct: once during closing

argument and once during the rebuttal closing argument.

        “The right to a fair trial is a fundamental liberty secured by the Sixth and

Fourteenth Amendments to the United States Constitution and article I, section 22

of the Washington State Constitution.” In re Glasmann, 175 Wn.2d 696, 703, 286

P.3d 673 (2012). Prosecutorial misconduct may deprive a defendant of her right




        14 Carri argues that facial challenges in non-First Amendment cases are permissible under
Chicago v. Morales, 527 U.S. 41, 119 S. Ct. 1849, 144 L. Ed. 2d 67(1999), and that the contrary
holding in Seattle v. Montana, 129 Wn.2d 583, 919 P.2d 1218 (1996) is no longer good law. We
do not need to address this contention because we conclude that Carri’s challenge, although
designated as a facial one, does not fit into that analytical framework.
        15 Carri also challenges the sufficiency of the evidence supporting the jury’s finding of guilt

on manslaughter in the first degree. Because we affirm the homicide by abuse conviction, we need
not reach any issues relating to the vacated manslaughter conviction here.

                                                -26-
 No. 77416-6-1/27

 to a fair trial. Id. at 703-04. This court reviews constitutional issues de novo. State

 v. Enguist, 163 Wn. App. 41, 45, 256 P.3d 1277 (2011).

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

 establish both improper conduct by the prosecutor and prejudicial effect.” State v.

 Pirtle, 127 Wn.2d at 672. “Prejudice is established only if there is a substantial

likelihood the instances of misconduct affected the jury’s verdict.” ki. Furthermore,

unless the statements are “flagrant and ill-intentioned,” and the prejudice resulting

could not be cured by instructions or admonitions, failure to make a timely objection

waives any objection to such statements. State v. Swan, 114 Wn.2d 613, 661,

790 P.2d 610 (1990). Comments are prejudicial if there is a “substantial likelihood

the misconduct affected the jury’s verdict.”                Brown, 132 Wn.2d at 561.              “A

prosecuting attorney’s allegedly improper remarks must be reviewed in the context

of the total argument, the issues in the case, the evidence addressed in the

argument, and the instructions given to the jury.” j~çj~ A prosecutor “has wide

latitude to argue reasonable inferences from the evidence.” State v. Thorgerson,

172 Wn.2d 438, 448, 258 P.3d 43(2011).

(a) Closing Argument

        First, Carri asserts the prosecutor misstated the evidence by arguing that it

took “10 to 15 minutes” for Carri to bring Hana into the house and call 9-1-1. During

closing argument, the prosecutor said:          16


        [Carri] goes out there, turns [Hana] over, sees she’s not breathing,
        or breathing very little. So what’s the first thing [Carri] thinks about
        16Carri characterized this statement as asserting that Carri waited 10 to 15 minutes before
bringing Hana inside the house. We do not believe this is a fair characterization of the prosecutor’s
argument. We understand the argument to reflect the time lapse between C.W. reporting Hana’s
collapse and Carri’s telephone call to 9-1-1.

                                               -27-
No. 77416-6-1/28

       doing? Call 911? Get her in where it’s warm? I got to run in and get
       a sheet so I can cover her up. When I get her covered up, then I will
       call for the boys, and they can help me. Now, boys, if this sheet
       happens to fall off when we’re trying to take her in the house, don’t
       you look. Doesn’t matter how sick your sister is.
       Then she gets in the house, they finally get her into the house, they
       finally call 911, probably ten, fifteen minutes after it’s reported,
       because of the modesty, because they should have had her in
       before, and so she dies at the hospital, they pronounce her
       dead.  .




Although Carri’s counsel did not object to these statements, during Carri’s closing,

she responded to this factual argument:

       The prosecutor talked about, well, that Ms. Williams was just so
       concerned about modesty that she, you know, waited ten to fifteen
       minutes before calling 911 because she had to cover Hana up with
       a sheet. That is not the evidence. The evidence is that she went in
       the house quickly, she got a sheet that was located nearby, she went
       outside and she covered Hana up. There’s no testimony that took
       any ten to fifteen minutes. There’s no way that it could take ten to
       fifteen minutes. It doesn’t indicate an extreme indifference [to]
       human life because she wanted to cover her daughter’s naked body.

       Here, the prosecutor stated that “probably” ten to fifteen minutes passed

from the time C.W. first alerted Carri to Hana’s condition on the back patio to the

time Carri summoned medical aid by calling 9-1-1.           This argument was a

reasonable inference from the evidence. C.W. testified, and Carri confirmed, that

C.W. told Carri about Hana having collapsed, the two of them went outside, Carri

turned Hana over to check on her condition, enlisted C.W.’s help to try to lift Hana

and move her inside, then ran to find a sheet to cover Hana’s naked body, and

called to Joshua and Jacob to help carry Hana into the kitchen. Once inside, Carri

and Joshua both tried to find a pulse. Carri then called Larry to alert him to Hana’s

condition. Only after these events did Carri hang up and call 9-1-1. While it may


                                       -   28   -
No. 77416-6-1129

have taken Carri only a few seconds to find a sheet and return with it to cover

Hana’s body, the jury could reasonably infer from the testimony that Carri allowed

precious minutes to lapse before actually calling 9-1-1 because she was more

worried that her teenage sons would see the naked body of a girl than she was for

Hana’s well-being.

       Carri relies on Statev. Rose, 62 Wn.2d 309, 382 P.2d 513 (1963), and State

v. Reeder, 46 Wn.2d 888, 285 P.2d 884 (1955), to support her claim that the

statement was unsupported in the evidence and unduly inflammatory. Neither

case is analogous.     In Rose, the prosecutor called the defendant a “drunken

homosexual” even though there was no evidence that the defendant was drunk.

62 Wn.2d at 313-14.        While there was evidence that the defendant was

homosexual, the prosecutor’s use of the phrase “drunken homosexual” was not to

sum up the evidence but was instead intended as a degrading description of the

defendant. Id. The prosecutor’s comment about the duration of time Carri waited

to summon medical aid is not analogous to the degrading, and unsupported,

description of the defendant in Rose.

       In Reeder, the prosecutor made repeated statements that the defendant

threatened his wife with a gun. 46 Wn.2d at 891-92. But there was “not one word

of testimony in the record that the defendant threatened his first wife with a gun.”

~ at 892. Again, while there was no direct evidence as to the amount of time it

took Carri to call 9-1-1, there was sufficient circumstantial evidence to support the

prosecutor’s inference.




                                        -   29   -
No. 77416-6-1/30

       Carri argues that the reference to the passage of time during closing was

extremely prejudicial because the duration of this trial made it unlikely the jurors

would be able to recall all the testimony. But the trial court provided each juror

with a notepad and a pen and it encouraged them to take notes during the

witnesses’ testimony. They were also instructed to ignore any arguments by the

lawyers that were not supported by the evidence. We assume jurors follow this

instruction and disregard unsupported arguments. State v. Russell, 125 Wn.2d

24, 84-85, 882 P.2d 747 (1994). Even if the prosecutor’s statements could not be

characterized as a reasonable inference from the evidence, Carri cannot

demonstrate prejudice from this comment, particularly given that her own counsel

disputed the factual basis for it in closing argument.

(b) Rebuttal Closinci

       Second, Carri argues that the prosecutor misstated the law during rebuttal

by arguing that the jury could find she acted with extreme indifference to Hana’s

life based on her mistreatment of Hana over a several year period, rather than

limiting the “extreme indifference” period to Carri’s actions on May 11 and 12,

2011. We reject this argument as well.

       During the State’s rebuttal argument, the prosecutor stated:

      Now, let’s talk for a minute about extreme indifference, because
      that’s what the state needs to prove beyond a reasonable doubt for
      the homicide charge. Extreme indifference means you just don’t
      care.

      How do you decide if Mr. and Mrs. Williams just didn’t care? And the
      way you decide is the same way you decide what other people are
      thinking. You look at how they’re acting. Not just the day that Hana
      died, but throughout the entire time frame that Hana Williams was
      being starved and deprived of food and the basic necessities of life.

                                        -   30   -
No. 77416-6-1/31


Carri did not object to this statement.

       Instruction 8, the “to convict” instruction for homicide by abuse, provided, as

the first element, that “on or about May 12, 2011, the defendant, Carri Williams, or

her accomplice, acted under circumstances manifesting an extreme indifference

to human life       “   Carri argues that because the State charged this crime as

having occurred “on or about May 12, 2011,” the State had to establish a

manifestation of extreme indifference on that specific date. She contends the

prosecutor misstated the law by suggesting that it was sufficient to base a

conviction for homicide on manifestations of indifference toward Hana before the

charging period began.

       Carri relies on State v. Davenport, 100 Wn.2d 757, 675 P.2d 1213 (1984),

for the proposition that the prosecutor’s argument misled the jury and conflicted

with the court’s to-convict instruction.           But Carri’s reliance on Daveniort is

misplaced. There, the prosecutor, in closing argument, presented an alternate

theory of liability, namely accomplice liability, that the State had not charged and

for which the jury had not been instructed. j~ at 763.

       This case is distinguishable. First, although the charging period was “on or

about May 12, 2011,” the statute and the first element in the to-convict instruction

required evidence that Carri “acted under circumstances manifesting an

indifference to human life.” A “circumstance” is “a specific part, phase, or attribute

of the surroundings or background of an event, fact, or thing or of the prevailing

conditions in which it exists or takes place.”           WEBSTER’S NEW INTERNATIONAL

DICTIONARY 410 (2002).      To manifest means “to show plainly: make palpably

                                          -   31   -
No. 77416-6-1132

evident or certain by showing or displaying.” WEBSTER’S NEW INTERNATIONAL

DICTIONARY 1375 (2002). The background details of Carri’s mistreatment of Hana

before her death on May 12, 2011, are “circumstances” probative of Carri’s attitude

toward and treatment of Hana on the day of her death.

        Second, the Legislature indicated a clear intent to make a person’s pre

death conduct relevant by explicitly requiring the State to prove “a pattern or

practice” of past torture or abuse. As the Russell court noted, in a homicide by

abuse case, the statute’s reference to a “pattern or practice” requires proof of “a

series of assaultive acts—a continuing course of conduct—not a single incident.”

69 Wn. App. at 249. We see nothing unfair for a prosecutor to argue that Carri’s

mistreatment of Hana on May 11 or 12, 2011—mistreatment that was consistent

with her pattern or practice of past torture or abuse—demonstrated her extreme

indifference to Hana’s life. The prosecutor’s argument that Carri exhibited extreme

indifference to Hana for an extended period of time before Hana died was a

reasonable one based on the language of these elements in the “to-convict”

instruction. Unlike in Davenport, the prosecutor did not insert a new theory of

liability into the case.

       Moreover, in Larry’s direct appeal, the court rejected the argument that only

the conduct on May 12, 2011 was relevant:

       Contrary to Larry’s argument, the “[o]n or about May 12, 2011”
       charging period for the manslaughter charge does not limit the
       charge only to events when Larry was not home on May 11 and 12,
       2011.   .   .“[W]here time is not a material element of the charged
                       .


       crime, the language ‘on or about’ is sufficient to admit proof of the
       act at any time within the statute of limitations, so long as there is no
       defense of alibi.” Time is not a material element of first degree
       manslaughter. The conduct here also falls well within the statute of

                                        -   32   -
No. 77416-6-1/33

        limitations period, and Larry did not rely on a true alibi defense. The
       jury was not limited in determining Larry’s guilt to the events that
       occurred while he was not home on May 11 and 12, 2011.

Statev. Larry Paul Williams, No. 71112-1-I, slip op. at 11 (Wash. Ct. App. Dec. 21,

2015) (unpublished), review denied, 185 Wn.2d 1034, 377 P.3d 741 (2016).17

       Carri has not demonstrated that the prosecutor’s rebuttal statement

regarding the duration of Carri’s abuse of Hana was a misstatement of the law or

“flagrant and ill-intentioned.” We reject her prosecutorial misconduct claims.

                         Claim 4: Ineffective Assistance of Counsel

       Carri makes four new claims of ineffective assistance of counsel at trial and

on direct appeal: that her trial counsel was ineffective (1) for failing to ask for a

severance of the counts related to Hana from the count related to l.W. and (2) for

failing to object to testimony related to a parenting book found in the Williamses’

home; and that her appellate counsel was ineffective (3) for failing to assign error

to the admission of testimony about the parenting book and (4) for failing to assign

error to the trial court’s failure to define “extreme indifference to human life.” We

address each claim in turn.

       “To demonstrate ineffective assistance of counsel, a defendant must make

two showings: (1) defense counsel’s representation was deficient, i.e., it fell below

an objective standard of reasonableness based on consideration of all the

circumstances; and (2) defense counsel’s deficient representation prejudiced the

defendant, i.e., there is a reasonable probability that, except for counsel’s

unprofessional errors, the result of the proceeding would have been different.”


       17   http://www.courts.wa.gov/opinions/pdf/71 1121 .pdf.

                                               -   33   -
No. 77416-6-1/34

Statev. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251, 1256 (1995). A claim

of ineffective assistance of counsel presents a mixed question of law and fact

which we review de novo. In re Pers. Restraint of Fleming, 142 Wn.2d 853, 865,

16 P.3d 610 (2001).

(a) Trial Counsel’s Failure to File Pretrial Severance Motion

       Carri argues trial counsel should have moved to sever the homicide by

abuse and manslaughter charges relating to Hana’s death from the first degree

assault of a child charge related to   lW. Counsel submitted declarations in which
they testified that they did not seek a severance because it did not occur to them

to do so.

       Separate trials are not favored in Washington. State v. Dent, 123 Wn.2d

467, 484, 869 P.2d 392 (1994).          To demonstrate deficient performance, a

defendant must show in the record the absence of a legitimate strategic or tactical

reason supporting the challenged conduct by counsel. State v. Emery, 174 Wn.2d

741, 755, 278 P.3d 653 (2012). To establish prejudice based on an improper joint

trial, a defendant must show that a competent attorney would have moved for

severance, that the motion likely would have been granted, and that there is a

reasonable probability that the defendant would have been acquitted at a separate

trial. j~ The failure to show either deficient performance or prejudice defeats a

defendant’s claim. k~.

       We do not need to evaluate whether the failure to file a motion to sever was

deficient because we conclude Carri cannot establish prejudice. Under CrR 4.3(a),

the trial court has broad discretion to join offenses in one trial where the charged


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No. 77416-6-1/35

offenses “(1) [a]re of the same or similar character, even if not part of a single

scheme or plan; or (2) [a]re based on the same conduct or on a series of acts

connected together or constituting parts of a single scheme or plan.” State v.

Bluford, 188 Wn.2d 298, 310, 393 P.3d 1219 (2017). The defendant has the

“burden of demonstrating that a trial involving both counts would be so manifestly

prejudicial as to outweigh the concern for judicial economy.” State v. Bythrow, 114

Wn.2d 713, 718, 790 P.2d 154 (1990). To determine whether joinder may be

prejudicial, a court must consider “(1) the strength of the State’s evidence on each

count; (2) the clarity of defenses as to each count; (3) court instructions to the jury

to consider each count separately; and (4) the admissibility of evidence of the other

charges even if not joined for trial.” State v. Sutherby, 165 Wn.2d 870, 884-85,

204 P.3d 916 (2009) (quoting Russell, 125 Wn.2d at 63).

       Carri relies on Sutherby to argue that the trial court would have had to grant

a severance motion. That reliance is misplaced. In that case, the defendant was

charged with first degree child rape and first degree child molestation involving the

same child, and multiple counts of possession of child pornography. Sutherby,

165 Wn.2d at 874. The court held that the defendant’s counsel was deficient in

failing to move for a severance of the child rape/molestation charges from the

pornography charges because there was no strategic or tactical advantage in

having these charges tried together. j~ at 884.

       The court also found prejudice because while the State’s evidence related

to the child pornography charges was strong, the evidence related to the

molestation charges was weaker, as it relied on the testimony of a six-year-old girl.


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 No. 77416-6-1/36

j~. at 885. The defendant offered separate defenses for each charge and while
the jury was instructed to consider each count separately, the State consistently

argued that defendant’s possession of child pornography proved he molested the

child. j.ç~ at 885. The court noted that in cases involving sex crimes, joinder can

be “particularly prejudicial” despite proper jury instructions. jçj~ at 884.

        Unlike in Sutherby, Carri has not demonstrated that the trial court would

have granted a motion to sever the counts. First, we do not see a significant

difference in the strength of the State’s evidence relating to Hana’s death and the

strength of the evidence relating to the assault of l.W. The State’s evidence

relating to the abuse of   l.W., unlike in Sutherby, was not based solely on l.W.’s
testimony. There was objective, photographic evidence of l.W.’s scars, as well as

the testimony from the Williamses’ children attesting to the beatings, food

deprivation, and social isolation that lW. endured. Carri admitted using corporal

punishment on lW., including spanking him with switches, sometimes on the

bottoms of l.W.’s feet, rendering it painful to walk. She admitted having directed

her sons to spank l.W. as well. The evidence was consistent that l.W. was treated

the same as Hana was—from having to eat wet sandwiches, to being beaten with

a switch, to being locked overnight in a damp shower room.

       Second, while Carri claims she had separate defenses related to each

charge, the defenses were not inconsistent. The trial court gave Carri’s requested

jury instruction on lawful use of force by a parent. It instructed that “[t]he physical

discipline of a child is lawful when it is reasonable and moderate, and is inflicted




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No. 77416-6-1/37

by a parent for purposes of restraining or correcting the child.” The defense of the

lawful use of force thus applied to both counts.

       In closing, as to the homicide by abuse charge, Carri argued the evidence

demonstrated she did care what happened to Hana and was concerned about her

well-being on May 11, 2012, that she did not cause Hana to die of hypothermia

because she had not forced Hana to remain outside, and that the State had not

proven that Hana was under the age of 16. As to the manslaughter charge, Carri

argued that she had no reason to suspect Hana was at risk of dying from

hypothermia and she did not disregard any risk of death because she urged Hana

repeatedly to come indoors.

       As to the assault charge, Carri contended that her physical discipline of l.W.

did not cause him substantial bodily harm and any scars he had were there when

he arrived from Ethiopia.

       Severance is required only if a defendant “makes a convincing showing that

she has important testimony to give concerning one count and a strong need to

refrain from testifying about another.” State v. Watkins, 53 Wn. App. 264, 270, 766

P.2d 484 (1989). None of Carri’s defenses required her to admit an allegation as

to I.W. that would have undermined a defense as to Hana, or vice versa. Carri

actually admitted to the jury in closing that she was “guilty of many offenses for the

abuse that she inflicted on these children,” but she was not guilty of the charges

the State chose to bring. Carri’s defenses to the homicide counts and the assault

charge were simply not antagonistic.




                                        -   37   -
 No. 77416-6-1/38

         Third, the jury instructions properly told the jury to consider each count

 separately.     Instruction 6 provided that a separate crime was charged in each

 count, that the jury had to decide each count separately, and a “verdict on one

count as to one defendant should not control your verdict on any other count or as

to the other defendant.” We have evidence the jury understood and followed this

instruction because it found Carri guilty of homicide by abuse but could not reach

unanimity on that charge as to Larry.

         Finally, Carri cannot demonstrate that the prejudice from a joint trial would

have outweighed the concern for judicial economy.18                       “Defendants seeking

severance must not only establish that prejudicial effects of joinder have been

produced, but they must also demonstrate that a joint trial would be so prejudicial

as to outweigh concern for judicial economy.” Bythrow, 114 Wn.2d at 722. Our

Supreme Court has held that severance is not required “in every case where the

evidence of one count would not be admissible in a separate trial of the other

counts.” ~ (quoting State v. Gatalski, 40 Wn. App. 601, 609 n.6, 699 P.2d 804

(1985)).

        A significant amount of evidence the State presented to establish the crimes

against Hana was cross-admissible to establish the crime against l.W. The trial

court instructed the jury on the manslaughter aggravator that the offense “was part

of an ongoing pattern of psychological or physical or sexual abuse of the victim or

multiple victims manifested by multiple incidents over a prolonged period of time.”


        18Judicial economy is defined as “Efficiency in the operation of the courts and the judicial
system; esp., the efficient management of litigation so as to minimize duplication of effort and to
avoid wasting the judiciary’s time and resources.” BLAcK’s LAW DICTIONARY 1012 (11th ed. 2019).

                                              -   38   -
 No. 77416-6-1/39

All of the evidence of the pattern of physical abuse of            I.W., the details of which
were quite similar to that which Hana experienced, would have been admissible in

any trial of the manslaughter charge to establish this aggravating factor.

        Similarly, the assault of a child charge required evidence of a “pattern or

practice” of either assaulting LW. and “causing bodily harm that was greater than

transient physical pain or minor temporary marks,” or causing lW. “physical pain

or agony that was equivalent to that produced by torture.” Carri’s mistreatment of

Hana—both the physical abuse and the food deprivation—would have been

probative of Carri’s disciplinary practices that went to the heart of the State’s

assault case.

        The concerns for judicial economy would have been significant. The trial

lasted seven weeks, and involved the testimony of 54 witnesses, most of whom

would have had to testify in both trials, had the trials been severed. The sheer

length and complexity of the trial would have weighed against severance.                       In

addition, LW., who is deaf, required the assistance of two American Sign Language

interpreters to testify. And he and four of the children who testified were minors at

the time. Requiring these witnesses to provide the same evidence twice would

also have given the trial court significant reason not to sever the charges.

        We conclude Carri has not established that the trial court would have

granted a defense motion to sever the charges in this case. For this reason, she

has not proven she was prejudiced by her counsel’s failure to make this motion.’9


        19 Because we conclude that there is a strong probability that the trial court would have

denied any severance motion, we similarly deny carri’s request for a reference hearing related to
the issue of severance.

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No. 77416-6-1/40

(b) Trial Counsel’s Failure to Obiect to Testimony about the Book, To Train Up a
Child and Appellate Counsel’s Failure to Raise the Issue on Appeal
       Carri contends trial counsel provided ineffective assistance of counsel by

failing to object to questions regarding disciplinary practices recommended in the

book, To Train Up a Child.2° Carri asserts this book is a “controversial” parenting

book and that introduction of testimony about it violated her First Amendment

rights. We disagree that trial counsel’s failure to object to testimony about this

book was deficient performance or that its admission prejudiced Carri.

       While executing a search warrant on the Williamses home on August 24,

2011, law enforcement seized a parenting book entitled To Train Up a Child.

During the direct examination of Carri’s third eldest son, the prosecutor asked if he

was familiar with this book. He testified he understood that the book was about

“how to raise up children.”

       When Carri took the stand, the State questioned her about the book as well.

The State had good reason to do so. Carri had the phrase “train up a child” on a

poster affixed to the wall in her home.         She admitted she read the book and

followed some of its advice. For example, she got the idea of using a plumbing

rod as a switch for spanking from the book. Carri also admitted that the book

advocated “rinsing off” children for potty training and that influenced their decision

to hose down I.W. outside when he wet his pants. Carri further admitted that the

book informs readers that spanking should cause pain and fear. Carri insisted she

disagreed with this passage in the book, but Jacob testified he understood that the



      20   MICHAEL AND DEBI PEARL, To TRAIN UPA CHILD   (1994).

                                           -40-
 No. 77416-6-1141

punishment his parents and he inflicted was intended to inflict pain. The State

marked the book as Exhibit 436 but did not offer it into evidence.

       First, Carri’s adherence to techniques recommended by To Train Ur a Child

was highly probative of whether Carri’s disciplinary practices were “reasonable and

moderate,” as Carri asserted, or whether her conduct rose to the level of torture,

an element of both homicide by abuse and assault of a child. A reasonable jury

could conclude that Carri and Larry selected unreasonable disciplinary techniques

recommended in this book and believed they needed to exact pain for the

discipline to be effective.

       Second, Carri’s reliance on United States v. Waters, 627 F.3d 345 (9th Cir.

2010) is misplaced. In that case, the defendant was convicted of arson after setting

fire to buildings on the University of Washington campus to protest genetic

engineering. jçj~ at 348. The Ninth Circuit reversed, concluding the district court

erroneously admitted “anarchist literature” at trial without reading the literature to

determine if it was probative. ki. at 357. In this case, the State did not offer and

the trial court did not admit the book into evidence. Additionally, the probative

value of the limited questions the State posed about the contents of the book is

evident from the crimes charged, the defenses raised, and the instructions given.

Waters is distinguishable on these bases.

       Similarly, State v. Coe, 101 Wn.2d 772, 684 P.2d 668 (1984), and State v.

Hanson, 46 Wn. App. 656, 731 P.2d 1140 (1987), are inapplicable. Coe involved

the defendant’s own writings about masturbation, writings the court held to have

no probative value and to be inflammatory in the defendant’s rape trial. 101 Wn.2d


                                       -41-
No. 77416-6-1/42

at 779-80. Hanson involved evidence of the defendant’s crime fiction introduced

during his trial for assault.   46 Wn. App. at 662-63.      The court held that the

evidence, which involved stories of violence, was offered solely to show the

defendant’s propensity for violence, was inadmissible for that purpose, and was

highly prejudicial. j~

       Coe and Hanson are distinguishable because in both cases, the State

sought to introduce something the defendant had written as character evidence to

show a propensity for committing the charged crimes. In this case, neither Larry

nor Carri authored To Train Ui a Child. The State was not offering the evidence

to establish their propensity to commit child abuse or torture. Instead, it sought to

establish that they intentionally chose disciplinary techniques for the purpose of

inflicting pain on Hana and l.W.            The fact that they adopted techniques

recommended to cause such pain made their reading of this book highly probative

of their intent when disciplining Hana and l.W.

       Furthermore, on cross-examination, Carri was asked minimal questions

about the book. She repeatedly stated that she did not follow the book “as though

it was the Bible” and had not read it in 10-15 years. Larry was never asked about

the book or its contents; he testified that the idea of using the switch came from “a

book” but did not specify which book.

       Because the State did not offer, and the trial court did not admit, the book

itself into evidence and because the testimony about the book was probative as to

the purpose behind Carri’s chosen disciplinary techniques for Hana and l.W., trial




                                        -   42   -
No. 77416-6-1/43

counsel was not deficient in failing to object to this evidence and appellate counsel

was not ineffective for failing to assign error to the admission of this evidence.

(c) Appellate Counsel’s Failure to Assign Error to Lack of Definition of “Extreme
Indifference to Human Life”

       Finally, Carri contends that her appellate counsel was ineffective for failing

to assign error to the trial court’s rejection of the defense’s proposed instruction

defining “extreme indifference to human life.” As previously stated, the trial court’s

rejection of Carri’s proposed instruction was not error under both State v. Barstad

and this court’s decision in Carri’s direct appeal. Thus, Carri’s appellate counsel

was not ineffective.

       Because neither Carri’s trial counsel nor her appellate counsel were

ineffective, we reject Carri’s Claim 4.

                                   CONCLUSION

       Based on our review of Carri’s personal restraint petition and the trial record,

we conclude there were no constitutional errors giving rise to any actual prejudice

and no fundamental defects resulting in a complete miscarriage of justice. Carri

received a fair trial. We thus deny her personal restraint petition.



WE CONCUR:                                                              (,)

                                                                  ~o_Q



                                          -43-
