                                                                                                Filed
                                                                                          Washington State
                                                                                          Court of Appeals
                                                                                           Division Two

                                                                                            June 7, 2016


    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                          DIVISION II
 STATE OF WASHINGTON,                                                 No. 46969-3-II

                        Respondent,

        v.                                                     UNPUBLISHED OPINION

 KARL STEPHEN HANNA,

                        Appellant.

       MAXA, J. – Karl Hanna appeals his exceptional sentence above the standard range for his

convictions of four counts of first degree child molestation. The exceptional sentence was based

on two statutory aggravating factors: use of a position of trust to facilitate commission of the

offense and an ongoing pattern of sexual abuse.

       We hold that (1) the State presented sufficient evidence to support the jury’s verdict on

the position of trust aggravating factor, (2) the invited error doctrine precludes review of the

ongoing pattern of sexual abuse jury instruction because Hanna proposed the instruction, and (3)

Hanna’s defense counsel did not provide ineffective assistance by proposing a pattern jury

instruction regarding the ongoing pattern of sexual abuse aggravating factor that the Supreme

Court later invalidated. Accordingly, we affirm Hanna’s exceptional sentence.

                                              FACTS

       Blake Stepper, LS’s father, lived with Dominick Zook for approximately six months.

The Zook house had three floors. Zook and his wife lived upstairs with their three children,
No. 46969-3-II


Stepper lived on the main floor, and Hanna occupied the downstairs. At that time, LS and her

brother visited Stepper almost every weekend.

       Stepper allowed his children to spend time with Hanna, and permitted Hanna to take the

children to do various activities without Stepper present. LS and the other children living in the

house often played video games and watched television in Hanna’s downstairs living area. On

occasion, Hanna would take the children to the store in his truck for treats.

       On several occasions, Hanna inappropriately rubbed LS’s private area, described by LS

as “[w]here you go pee.” 3 Report of Proceedings (RP) at 242-43. Hanna rubbed LS’s private

area at least twice while she was downstairs on the couch watching television. The touching also

occurred twice in Hanna’s truck: once while Hanna was taking the children to the store and once

while Hanna was taking the children to the river. LS was nine years old and in the fourth grade

when the touching occurred.

       The State charged Hanna with five counts of first degree child molestation. Each count

further alleged the aggravating factors of use of a position of trust to facilitate commission of the

offense, an ongoing pattern of sexual abuse, and the victim’s particular vulnerability. The trial

court ultimately dismissed one of the counts and also dismissed the particular vulnerability

aggravating factor for all counts.

       At trial, the trial court gave jury instruction 18, which addressed the ongoing pattern of

sexual abuse aggravating factor:

       An “ongoing pattern of sexual abuse” means multiple incidents of abuse over a
       prolonged period of time. The term “prolonged period of time” means more than
       a few weeks.




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No. 46969-3-II


Clerk’s Papers (CP) at 82. Both the State and Hanna proposed this instruction, which was

identical to a pattern criminal jury instruction.

       The jury found Hanna guilty on all four counts of first degree child molestation. The jury

also found by special verdict for all four counts that Hanna used a position of trust to facilitate

the commission of the offense and that there was an ongoing pattern of sexual abuse of a minor.

       At sentencing, the trial court considered the two aggravating factors that the jury found.

The trial court stated that an exceptional sentence also may be justified because Hanna’s multiple

convictions, combined with his high offender score, would otherwise result in there being no

additional penalty for some of his crimes. In light of the two aggravating factors and the no

additional penalty factor, the trial court imposed an exceptional sentence of 220 months for each

count, to be served concurrently. The trial court did not state that it would have imposed the

same sentence if only one of the aggravating factors was valid.

       Hanna appeals his exceptional sentence.

                                             ANALYSIS

A.     EXCEPTIONAL SENTENCE

       Hanna argues that the trial court erred in imposing an exceptional sentence because (1)

there was insufficient evidence to support the jury’s verdict on the use of a position of trust

aggravating factor and (2) the ongoing pattern of sexual abuse jury instruction was an improper

judicial comment on the evidence. We hold that there was sufficient evidence to support the

jury’s verdict on the use of a position of trust aggravating factor and that the invited error

doctrine precludes review of Hanna’s challenge to the ongoing pattern of sexual abuse jury

instruction.



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No. 46969-3-II


       1.    Position of Trust Aggravating Factor

       Hanna argues that the trial court erred in imposing an exceptional sentence because there

was insufficient evidence to support the jury’s special verdict that Hanna used a position of trust

to facilitate commission of the offense. We disagree.

       We review a jury’s special verdict finding under the sufficiency of the evidence standard.

State v. Stubbs, 170 Wn.2d 117, 123, 240 P.3d 143 (2010). The test for determining 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 the elements of the crime beyond a reasonable doubt.

State v. Homan, 181 Wn.2d 102, 105, 330 P.3d 182 (2014). We assume the truth of the State’s

evidence and draw all reasonable inferences from the evidence in favor of the State. Id. at 106.

We defer to the trier of fact for purposes of resolving conflicting testimony and evaluating the

persuasiveness of the evidence. Id.

       Under RCW 9.94A.535(3)(n), a trial court may impose an exceptional sentence if the

defendant “used his or her position of trust, confidence, or fiduciary responsibility to facilitate

the commission” of the offense. In determining whether the defendant abused a position of trust,

we consider the duration and degree of the relationship between the defendant and the victim.

State v. Grewe, 117 Wn.2d 211, 218, 813 P.2d 1238 (1991). “ ‘A relationship extending over a

longer period of time, or one within the same household, would indicate a more significant trust

relationship, such that the offender’s abuse of that relationship would be a more substantial

reason for imposing an exceptional sentence.’ ” Id. at 219 (quoting State v. Fisher, 108 Wn.2d

419, 427, 739 P.2d 683 (1987)). The victim’s vulnerability to trust due to the victim's age and




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No. 46969-3-II


the degree of the defendant’s culpability also are important factors to consider. State v. Bedker,

74 Wn. App. 87, 95, 871 P.2d 673 (1994).

       At trial, the State presented evidence that Stepper lived at the Zooks’ house with Hanna

for a period of six months, during which time LS would visit on the weekends. The Supreme

Court in Grewe held that there was sufficient evidence of a position of trust when the victim

frequently visited the perpetrator’s house over a period of four months. 117 Wn.2d at 219.

       There also was evidence that LS played video games and watched TV in Hanna’s

downstairs living area. And Stepper allowed LS to spend time with Hanna and allowed Hanna to

be alone with his children when Hanna took them in his truck to do various activities. The abuse

of LS occurred in Hanna’s downstairs living area and in Hanna’s truck. This evidence showed

that Hanna was in a supervisory position with regard to LS.

       Viewed in the light most favorable to the State, a rational trier of fact could have found

beyond a reasonable doubt that Hanna used his position of trust in committing first degree child

molestation. Accordingly, we hold that there was sufficient evidence to support the jury’s

special verdict that Hanna used a position of trust to facilitate the offenses.

       2.    Ongoing Pattern of Abuse Aggravating Factor

       Hanna argues that under the Supreme Court’s recent precedent, the trial court made an

improper judicial comment on the evidence by giving the jury instruction defining “prolonged

period of time” to mean “more than a few weeks.” But because Hanna proposed this instruction,

we hold that the invited error doctrine precludes review.

       The trial court’s instruction 18, the ongoing pattern of abuse jury instruction, defined

“prolonged period of time” to mean “more than a few weeks.” CP at 82. The language of



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No. 46969-3-II


instruction 18 was substantially similar to the language used in Washington pattern jury

instruction 300.17(2)(a). 11A WASHINGTON PRACTICE: WASHINGTON PATTERN JURY

INSTRUCTIONS: CRIMINAL 300.17(2)(a), at 719 (3d ed. 2008) (WPIC). However, after Hanna’s

trial, the Supreme Court invalidated WPIC 300.17(2)(a) in State v. Brush, 183 Wn.2d 550, 561,

353 P.3d 213 (2015). The court held that WPIC 300.17(2)(a) not only incorrectly interpreted the

law, but was an improper judicial comment on the evidence. Id.

       Hanna relies on Brush in arguing that the trial court erred in giving instruction 18. But

Hanna proposed that ongoing pattern of abuse jury instruction. The invited error doctrine

prohibits a party from setting up an error at trial and then challenging that error on appeal. State

v. Momah, 167 Wn.2d 140, 153, 217 P.3d 321 (2009). To determine whether the invited error

doctrine applies, we consider whether the defendant “affirmatively assented to the error,

materially contributed to it, or benefited from it.” Id. at 154. Under this test, the invited error

doctrine precludes appellate review of a defendant’s claim of instructional error when the trial

court gave the instruction at the defendant’s request. State v. Studd, 137 Wn.2d 533, 547, 973

P.2d 1049 (1999).

       The Supreme Court in Studd expressly held that the invited error doctrine applies when

the defendant proposes and the trial court gives an instruction identical to a WPIC instruction,

and the Supreme Court subsequently invalidates that instruction. Id. at 547-48. The court stated,

“There can be no doubt that this is a strict rule, but we have rejected the opportunity to adopt a

more flexible approach.” Id. at 547. Further, the invited error doctrine applies to a comment on

the evidence. See State v. Elmore, 139 Wn.2d 250, 280, 985 P.2d 289 (1999).




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No. 46969-3-II


       Applying the invited error doctrine when a defendant proposes an instruction based on a

seemingly valid WPIC instruction seems inappropriate. Arguably, Hanna did not invite any

“error” because at the time of trial, it was not error to give an instruction identical to WPIC

300.17(2)(a). Hanna simply proposed, in good faith, an approved pattern instruction.

Nevertheless, we are bound by the Supreme Court’s resolution of this issue in Studd.

       Under Studd, Hanna invited the trial court’s alleged error by proposing the instruction he

now challenges. Accordingly, we hold that the invited error doctrine precludes our review of

Hanna’s argument that the trial court erred in giving the ongoing pattern of abuse jury

instruction.

B.     INEFFECTIVE ASSISTANCE OF COUNSEL

       Hanna argues that defense counsel’s proposal of the ongoing pattern of abuse jury

instruction constitutes ineffective assistance of counsel. We disagree.

       1.      Legal Principles

       We review claims of ineffective assistance of counsel de novo. State v. Hamilton, 179

Wn. App. 870, 879, 320 P.3d 142 (2014). The invited error doctrine does not bar review of a

claim of ineffective assistance of counsel. State v. Gentry, 125 Wn.2d 570, 646-47, 888 P.2d

1105 (1995).

       To prevail on a claim of ineffective assistance of counsel, the defendant must show that

(1) counsel’s performance was deficient, and (2) the deficient performance prejudiced the

defendant. State v. Grier, 171 Wn.2d 17, 32-33, 246 P.3d 1260 (2011). Representation is

deficient if, after considering all the circumstances, it falls below an objective standard of

reasonableness. Id. at 33. Prejudice exists if there is a reasonable probability that except for



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No. 46969-3-II


counsel’s errors, the result of the trial would have been different. Id. at 34. We review the

challenged conduct from defense counsel’s perspective at the time. Id.

       We begin our analysis with a strong presumption that counsel’s performance was

effective. Id. at 33. To rebut this presumption, the defendant must establish the absence of any

“ ‘conceivable legitimate tactic explaining counsel’s performance.’ ” Id. (emphasis added)

(quoting State v. Reichenbach, 153 Wn.2d 126, 130, 101 P.3d 80 (2004)). If defense counsel’s

conduct can be considered to be a legitimate trial strategy or tactic, counsel’s performance is not

deficient. Grier, 171 Wn.2d at 33.

       2.      No Deficient Performance

       At trial, defense counsel proposed an ongoing pattern of abuse jury instruction that was

substantially similar to WPIC 300.17(2)(a). Based on the Supreme Court’s invalidation of that

instruction in Brush, Hanna argues that there was no legitimate trial tactic for proposing this

instruction.

       But the Supreme Court rejected an identical argument in Studd. 137 Wn.2d at 551. The

facts in that case are almost identical to the facts here. The defendant proposed an instruction

based on WPIC 16.02, which the Supreme Court later invalidated. Id. at 545-46. The defendant

argued that his defense counsel provided ineffective assistance by proposing the instruction. Id.

at 550-51. The court emphasized the strong presumption that counsel’s representation was

effective and noted that WPIC 16.02 had not been invalidated at the time of trial. Id. at 551. The

court stated, “[H]is counsel can hardly be faulted for requesting a jury instruction based upon a

then-unquestioned WPIC 16.02.” Id. As a result, the court rejected the defendant’s ineffective

assistance of counsel claim. Id.



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No. 46969-3-II


        The State suggests without authority that defense counsel’s performance might be

deficient for unnecessarily proposing an instruction identical to one the State proposed, because

by so doing defense counsel makes it impossible for the defendant to later challenge the

instruction on appeal. We note that Hanna does not make this argument. And we decline to hold

that Hanna can establish ineffective assistance of counsel simply because defense counsel

proposed a WPIC instruction that was valid at the time. Defense counsel may have a legitimate

tactical reason to propose a WPIC instruction that is valid at the time of trial even if he or she

anticipates that the State may propose the same instruction.

        We hold that Hanna’s ineffective assistance of counsel claim fails.

                                          CONCLUSION

        We affirm Hanna’s exceptional sentence.

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

Washington Appellate Reports, but will be filed for public record in accordance with RCW

2.06.040, it is so ordered.



                                                      MAXA, A.C.J.


 We concur:



 MELNICK, J.




 SUTTON, J.



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