                                                                             FILED
                                                                       COURT OF APPEALS
                                                                            DIVISW 1
                                                                      2013 APR -2 AM 8:48

                                                                       STATE OF WASHINGTON
                                                                       BY
                                                                                   TY




        IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                DIVISION II

STATE OF WASHINGTON,                                                  No. 42319 7 II
                                                                                - -


                                    Respondent,

          0




STEVEN GRANT WILLIAMS,                                           UNPUBLISHED OPINION


                                    Appellant.


          HUNT, J. — Steven Grant Williams appeals his jury trial conviction and exceptional

sentence for second degree assault of a child based on his having physically abused his

girlfriend's           year old
                 seven -    -      son,   DR.' Williams argues that (1)during closing argument, the

prosecutor committed misconduct by misstating the law and appealing to the jury's passions and

prejudices; ( )he (Williams) received ineffective assistance when his trial counsel failed to
            2

object to the prosecutor's improper closing argument; and (3) .State presented insufficient
                                                             the

evidence to support the three aggravating factors on which the trial court based his exceptional

sentence.




1
    To protect this juvenile's privacy, we use his initials and refer to his adult caretakers by their
first   names.   We intend   no   disrespect.
No. 42319 7 II
          - -



        In his Statement of Additional Grounds (SAG),
                                                    Williams also,asserts that (1)during

                                               3
closing argument, the prosecutor "misinstructed"   the jury about the elements of his crime; 2)
                                                                                             (

the State's search warrant was not sufficiently particular in describing the items to be seized

from his home; ( )the prosecutor "made up "
               3                                   several allegations against him; and (4)his

disciplinary spankings of DR could not constitute criminal assault of a child as a matter of law.

Williams also challenges several of the jury's implied findings and raises a number of issues

concerning matters outside the trial record. We affirm.

                                            FACTS


                                       I. BACKGROUND


        As of summer 2010, seven -year old DR had been on an, Individualized Educational
                                       -

Program since kindergarten: He was having difficulty in school; likely had undiagnosed learning

disabilities; could not count to 10, recite his ABC's, perform work at grade level; and had
                                                      or

recently failed first grade. He was about personal hygiene matters, such as brushing his
teeth and   showering.   With his mother's consent, he had been living with his paternal

grandparents for a couple of years.




2
   In his SAG, Williams reiterates the ineffective assistance of counsel addressed in his
appellant's brief.
3
    SAG at1.

4
    SAG at 4.




                                               2
No. 42319 7 II
          - -



       In late July 2010, however, DR spent about three weeks with his mother and her

boyfriend, Steven Grant Williams. No one else was present in the home at the time. Because
DR's mother worked the graveyard shift and slept during the day, Williams became DR's

primary caretaker and disciplinarian. DR's mother agreed that Williams could spank DR with an

open palm[ ]"    on the buttocks; but she did not allow Williams to use any other forms of

discipline. 2 Verbatim Report of Proceedings (VRP)at 208

       Williams soon disapproved of certain aspects of DR's behavior and personal hygiene.

According to Williams, DR did not know how to do chores, to put dishes away, to flush the

toilet,to brush his teeth, or to wash his hair and penis; DR watched too much TV. 3 VRP at 329.

Williams believed it was his duty to correct these "problems" and to help DR "become a

productive member of society."3 VRP at 330.

                              A. Second Degree Assault of DR

       On the second day of DR's visit,Williams began spanking DR, swatting him four or five

times with an open palm on the outside of his pants. When DR appeared unaffected, Williams

instructed DR to pull down his pants and then hit him a few more times directly on his bare

buttocks. When DR's mother saw the resulting "
                                             purple hand prints"and large hand sized bruise
                                                                               -

on DR's buttocks, she became very upset and told Williams never to touch DR again. Clerk's

Papers (CP)at 52.




5
 When DR arrived at his mother's home, he had a burn mark on his leg from an accident at
daycare; but he had no other visible markings or bruises on him.

                                               3
No. 42319 7 II
          - -



       But Williams continued to "spank" DR, hitting him with a belt across his bare arms,

back, and buttocks, thinking it would have less "impact "; these "spankings,"
                                                                            however, also left

bruises on DR. When DR did not perform well on his math and reading, Williams "choke[
                                                                                    d]"

DR several times; Williams once threw DR across the room, causing DR to hit his head on a

bookshelf. 1 VRP at 45.


       DR's bathing habits particularly bothered Williams, who "fought a lot"with DR about

taking showers. 2 VRP at 214. After DR's mother left for work, Williams would wake up DR
and make him shower     a   second time.   DR did not like getting his face and hair wet and

frequently resisted Williams' attempts to make him shower. According to Williams, DR "
                                                                                     went

berserk"and kicked Williams in the crotch. 3 VRP at 315. "[
                                                         ed]"
                                                         f] by DR's resistance,
                                                            rustrat[

Williams " hipped off' his belt, got within " foot or so"of DR's body, and gave him a "couple
         w                                  a

of slaps"him with the belt. 3 VRP at 322, 334.

       These bathtime "slaps"eventually escalated to the point where Williams was regularly

making DR strip naked in the living room, covering DR's eyes with a bandana, taping his mouth

shut with black electric tape,,
                              binding his wrists, and hitting DR across his naked front and back

with a belt. Williams also shoved DR's head in the toilet,poured cold water over him,and wrote

the words "Stop staring" on DR's buttocks because Williams thought it was "funny"and the

bruising from [DR's]
                   butt was healing up." at 74, 75.
                                       CP

       One morning DR awoke with two black eyes, which DR's mother and Williams could

not explain; nor did they not seek medical treatment for him. When DR's grandparents picked

him up a couple of days later on August 18, they immediately noticed his black eyes and the


6CPat53.


                                                 LI
No. 42319 7 II
          - -



 assive bruising" all
m]                       over    his   body. 1 VRP at 85. DR's mother appeared to be "extremely

nervous or scared,"
                  was acting " efensive," told DR's grandparents that a vitamin deficiency
                             d          and

             s black eyes.
had caused DR'                    1 VRP at 70, 85. Extremely concerned, DR's grandparents took

him to the hospital.

                                           B. Medical Exams


         Dr. Jonathan Halper thoroughly examined DR. DR's vital signs were normal, but he had

bruises and injuries over "almost every part of him,"
                                                    including his scapula, shoulders, back,

forearms, clavicle, lower abdomen, legs, penis, and both buttocks; DR also had blood and

bruising   in both eyes and he   was    missing   a   tooth. 1 VRP at 24. The bruises were different


colors and appeared to be of varying ages, indicating that DR had sustained the injuries over a

period   of time. The words "`    Stop staring "' had been written in Magic Marker on his DR's

buttock.    1 VRP at 28. The     hospital photographed         s bruises. Because DR'
                                                             DR'                    s bruises and


injuries were so extensive, Dr. Halper (1)believed DR had been the "victim of something

horrible,"likely had been physically assaulted, and bruised as the result of "
                                                                             nonaccidental

trauma"'; (2)
       and referred him to Seattle Children's Hospital to receive specialist care.
         At Seattle Children's Hospital later that same day, Dr. Kenneth Feldman also examined

DR.      He confirmed that DR had no broken bones or organ damage but that DR had a

tremendous number of bruises" on the soft body parts, or padded areas, of his body, where

children do not    normally   sustain bruises.        2 VRP at 148.   Dr. Feldman (1)observed and

photographed the same injuries that Dr. Halper had noted; 2)
                                                          ( found additional bruising on DR's



  1 VRP at 24, 29.



                                                       R
No. 42319 7 II
          - -




wrists, hipbone, kneecaps, armpits, shins, inner thighs, ankle, and scrotum; 3)
                                                                             ( observed a bruise

with "patterning" on the shaft of DR's penis, which looked like it had been caused by an

                     noted
impact[ ]object "; (4)              composite bruise " on DR's buttocks, indicating repeated blows;
                                  a "




5)noted that the bruising on DR's eyes would have similarly resulted from "
                                                                          separate blows to

each eye ";     and (6)ruled out any preexisting medical reasons, such as a bleeding disorder, for

DR's bruises. When asked how the bruises had started, DR replied to Dr. Feldman, When he
                                                                                 "

Williams] gets mad."2 VRP at 143. DR also told Dr. Feldman how Williams had taped his

DR's)
    mouth shut, bound his wrists together, placed electric tape over his eyes, dunked his head

in cold water, shoved his head in a toilet, and beaten him repeatedly with a belt. Based on the

distribution and character of DR's bruises and DR's disclosures, Dr. Feldman was " 00 percent"
                                                                                 1

certain that DR had been abused. 2 VRP at 149.


                                            C. Investigation

         The next day, DR's grandparents took him to Olympia for two child forensic interviews,

during   which he made similar disclosures.            DR stated that (1)Williams had put him in cold

shower to     help   him "[ e nice . ,
                         b]               not   fuss, and] not be.... baby "; (
                                                      [           a cry               2) (DR)had
                                                                                        he
                                                12 (
                                                     slapped Silly 13
gotten his bruises from being "spanked"; 3) had been `.`
                                           he                                        and (4)Williams


82 VRP at154.

92 VRP at155.

2VRPat169.

112 VRP at 247.
12
     1 VRP at 95




                                                        G
No. 42319 7 II
          - -



had grabbed him by the throat and choked him while stating, Stop it or I'l f* you, "
                                                            "           l   cking kill

and, I] you keep that up I' going to kill you."1 VRP at 97.
     "[ f                 m

          The police obtained a search warrant for Williams' home, where they discovered several

belts strewn throughout the rooms, duct tape on the bathroom floor, and black electrical tape

with cotton in the kitchen trashcan. VRP at 97 98, 100; 102 03,106 09. Based on this evidence
                                               -            -      -
                                                                                                        15
and DR's disclosures, the     police arrested Williams for      child abuse and read him his Miranda


rights.

          Williams waived his rights and gave a statement to the police. Williams claimed that he

was   at his "
             f*cking wits   end, trying   to   get [ R]to clean himself properly "
                                                   D                                 and admitted that he


had (1)pushed DR's head toward to toilet when he did not flush, 2)restrained DR in the
                                                                (

shower, 3)grabbed DR's head and told him to "stop acting like a little *
        (                                                              sshole and get in the
     17 (
water," 4)spanked DR hard enough                        purple hand
                                               to leave "             prints " on his buttocks, 5)
                                                                                                ( tried to

remove" the handprint bruises on DR's buttocks by using a hairbrush to rub lotion on the

bruises, and (6)written on DR's buttocks. CP at 74. Williams laughed frequently about DR's

hygiene, stating that DR's hair smelled like " eces"and that he had "never seen the head of his
                                             f



13 1 VRP at 95.

14 2 VRP at 253.

15
     Miranda v. Arizona, 384 U. .436, 86 S. Ct. 1602, 16 L.Ed. 2d 694 ( 966).
                              S                                       1

16CPat60.

17 CP at 42.

1sCPat52.


                                                        7
No. 42319 7 II
          - -



d ck before." CP at 46.
  *                            Williams repeatedly minimized DR's injuries and asserted that he

Williams)had experienced the same, or worse, injuries as a child.
                                          II. PROCEDURE


         The State charged Williams,with second degree assault of a. child. It also alleged three

aggravating sentencing factors: that Williams (1)had known or should have known DR was

particularly vulnerable or incapable of resistance, contrary to RCW 9. )(
                                                                    b);
                                                                    535( 4a.2)had
                                                                       3
                                                                       9
demonstrated deliberate cruelty toward DR, contrary . o RCW 9.
                                                    t       a);
                                                            535( 4A. and (3)had
                                                               3)(
                                                               9

displayed an egregious lack of remorse, contrary to RCW 9.
                                                        q).
                                                        535( 4A.
                                                           3)(
                                                           9

                                              A. Trial


         The State's witnesses testified about the    previously   described facts.   The trial court


accepted into evidence the photographs of DR's bruises and a transcript from Williams' police

interrogation. Williams testified that (1) s grandmother had "spoiled him"and had failed to
                                          DR'
                                                   20 (
teach him any of the "life lessons" he needed;            2)he (Williams) found DR's resistance to
                          21
showering " rustrating"; and (3)
          f                     aside from someone in a " ental ward," (Williams)had not
                                                        m            he

seen a person react as violently or reach the same "degree of animal savagery" as DR when

showering.      3 VRP at 332.     Williams admitted having stated that DR's hair smelled like

feces ";     having to restrain DR physically and to force him into the shower; getting angry and


19
     The Legislature amended this statute in 2011, but the amendments do not affect our analysis in
this opinion.

20 3 VRP at 329, 330.
21
     3 VRP at 334.


22 3 VRP at 311.


                                                  8
No. 42319 7 II
          - -



spanking DR several times, with his palm and belt making direct contact with DR's skin; leaving

handprints"and bruises on DR's buttocks; writing on his (DR's)
                                                             buttocks; and knowing that DR

had two black eyes. 3 VRP at 319. But Williams denied knowing how DR's black eyes had

occurred, making DR take cold showers, throwing DR into a bookshelf, and spanking him

anywhere besides on his buttocks.

       During the State's closing argument, the prosecutor discussed the physical and emotional

abuse that DR had suffered and how it had escalated over time:

               This violence escalated over the weeks he was there, started out with
       spanking, then moved on to that belt, and then a couple days before [DR] leaves
       he gets this massive head injury. It' getting worse as he went along. It' a good
                                           s                                   s
       thing that it ended when it did.

3 VRP at 374 (emphasis    added). Williams neither objected to this argument nor requested a

curative instruction.


       Discussing the reasonable doubt instruction's abiding belief' language, the prosecutor
                                                       "

argued:

               T] be convinced beyond a reasonable doubt, you do not have to be
                o
       convinced beyond all doubt. Reasonable doubt is not 100 percent..If reasonable
       doubt really was 100 percent, we would never convict anyone of anything....
       Just because a scenario is possible doesn't make it reasonable.'So when. you're
       trying to' figure out whether a doubt you have might be reasonable or not, just
       because it' possible doesn't make it reasonable. It' possible I might win the
                   s                                          s
       lottery tomorrow. It' not reasonable to think that's going to happen, though.
                             s
                The question is do you have an abiding belief that this happened. Abiding
       belief is something you can know in your mind, something you can get from your
       heart, or something you can know in your gut. Do you have an abiding belief that
       this happened.

3 VRP at 430 31 (emphasis added). Again, Williams neither objected nor requested a curative
             -

instruction.




                                               E
No. 42319 7 II
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         Williams then argued in closing that the evidence was insufficient to convict him,

repeatedly stating that the jury could not "speculate" in the context of emphasizing the lack of

direct evidence of substantial bodily harm:

                  Instruction]   11 talks about substantial   bodily harm.   And one of the
         aspects of it [ s]there has to be substantial loss or impairment of a function of any
                       i
         bodily part or organ. Now, the State] has said [DR's]
                                       [                          eyes [were] swollen and,
         therefore, it impaired his vision. Where is the evidence of that? You know, he
         says, well, look at his eyes, you can see they're swollen and, therefore, it has to
         impair   his vision.
                           You're not allowed to speculate and that's exactly what the
         prosecutor   asking you to do, speculate. A lot of his closing had to do with
                      is

         speculate. You know, you can't do it.

3 VRP at 446 47 ( mphasis added).
             - e

         Treating Williams' "
                            speculation" argument as implying that the jury could not draw

reasonable inferences from the evidence, the State argued in rebuttal:

         The simplest explanation is that [Williams] beat the living daylights out of DR]
                                                                                      [
         for those three weeks. Counsel says you can't speculate. That's not accurate. In
       fact, the instructions suggest you're supposed to use your common sense.

                  Instruction number three suggests this when it talks about circumstantial
         evidence.    Circumstantial evidence is facts or circumstances for which the
         existence or nonexistence of other facts may be reasonably inferred from
         common experience. So you can decide the facts are present when you look at the
         evidence and use your common experience. So to say you can't speculate, that's
         not accurate.


3 VRP at 465 ( emphasis          added). Again, Williams neither objected to this argument nor

requested a curative instruction.

                                       B. Judgment and Sentence

         The jury convicted Williams of second degree assault and returned special verdicts

finding that the State had proven all three aggravating sentencing factors beyond a reasonable

doubt.     Based on these aggravating factors, the State asked the trial court to impose an


                                                   10
No. 42319 7 II
          - -




exceptional sentence of 102 months of confinement. VRP (
                                                       June 27, 2011)at 2. Noting his lack

of prior criminal history, Williams asked the trial court to impose 31 months of confinement, the

bottom end of the standard sentencing range. VRP (June 27, 2011) at 3. When the trial court

asked if Williams would like to make a personal statement, he replied:

              Well, Your Honor, in consideration of everything that I' already losing
                                                                          m
       because of this conviction, I think that [102 months] is a bit excessive. My entire
       retirement, my career, my entire identity from the age of 17 on is now taken away
       from me. So a lengthy prison term ... seems to me excessive.


VRP (June 27, 2011) at 4. Remarking that Williams' personal statement supported the jury's

special verdict finding about his egregious lack of remorse, the trial court imposed an

exceptional sentence of 102 months of confinement. VRP ( une 27, 2011)at 4- .' trial court
                                                       J                  5 The

entered findings that (1)each of these aggravating factors by themselves would justify the
                          "

         and (
sentence,"   2) would "
               it     impose ... the same sentence even ifthere was just one"of the three

aggravating factors. VRP ( une 27, 2011)at 5 (emphasis added).Williams appeals.
                         J

                                           ANALYSIS


                                I. PROSECUTORIAL MISCONDUCT


       For the first time on appeal, Williams argues that the prosecutor committed misconduct

by appealing to the jury's.passions and prejudices and by misstating the law in closing
          23
argument.      Holding that Williams has failed to meet the burden necessary to avoid his

procedural default below, we do not address the substance of his prosecutorial misconduct

argument beyond that necessary     to evaluate the   applicable   standard of review. His related


ineffective assistance of counsel argument also fails.


23 In a related argument, Williams also contends that his trial counsel rendered ineffective
assistance in failing to object to this prosecutorial misconduct. We address this argument later.

                                                11
No. 42319 7 II
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                 A. Failure To Object and To Request Curative Instruction Below

       A defendant claiming prosecutorial misconduct bears the burden of proving that the

prosecutor's conduct was both improper and prejudicial in the context of the entire record and

the circumstances at trial. State v. Magers, 164 Wn. d 174, 191, 189 P. d 126 (2008);
                                                   2                  3             State v.

Weber, 159 Wn. d 252, 270, 149 P. d 646 (2006). A prosecutor has wide latitude in closing
             2                  3

arguments to draw reasonable inferences from the facts in evidence and to express such

inferences to the jury. State v. Gregory, 158 Wn. d 759, 860, 147 P. d 1201 (2006);
                                                2                  3              State v.

Dhaliwal, 150 Wn. d 559, 577, 79 P. d 432 (2003).We review any allegedly improper closing
                2                 3

argument statements "within the context of the prosecutor's entire argument, the issues in the

case, the evidence discussed in the argument, and the jury instructions."Dhaliwal, 150 Wn. d at
                                                                                         2

578.   A prosecutor's improper comments are prejudicial "only where `there is a substantial

likelihood the misconduct affected the   jury's   verdict. "'   State v. McKenzie, 157 Wn. d 44, 52,
                                                                                         2

134 P. d 221 (2006)emphasis omitted) quoting State v. Brown, 132 Wn. d 529, 561, 940 P. d
     3              (                (                             2                  2

546 (1997),
          cent. denied, 523 U. . 1007 (1998)).
                             S              Such is not the case here.

       In addition, where, as here, a defendant did not object to a prosecutor's allegedly

improper comment and request a curative instruction at trial, he waives a prosecutorial

misconduct claim raised for the first time on appeal unless he can also show that the comment

was so flagrant [and] ill-
                         intentioned that an instruction could not have cured the prejudice."
State v. Corbett, 158 Wn. App. 576, 594, 242 P. d 52 (2010) citing State v. Russell, 125 Wn. d
                                              3              (                             2

24, 86, 882 P. d 747 (1994),
             2             cent. denied, 514 U. . 1129 (1995)).
                                              S               Williams fails to meet this

burden here.




                                                   12
No. 42319 7 II
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                               1. Alleged appeal to jury passions or prejudices

          Williams first argues that the prosecutor improperly appealed to the jury's passions and

prejudices in ( )
              1 summarizing how Williams' abuse had intensified over the three week period—
                                                                               -

from spanking DR with an open hand to giving him two black eyes; and (2)
                                                                       then arguing, It'
                                                                                     "` s

getting   worse    as   he [ Williams] went    along. It' a good thing it ended when it did."' of
                                                        s                                    Br.

Appellant at 21 (quoting 3 VRP at 374).This was not improper argument.

          Prosecutors have     a   duty      seek
                                          to "`     a   verdict free of prejudice and based   on reason. "'   State


v. Echevarria, 71 Wn. App. 595, 598, 860 P. d 420 (1993) quoting State v. Huson, 73 Wn. d
                                          2               (                           2

660, 663, 440 P. d 192 (1968)).
               2              Thus, prosecutorial appeals to jury passion and prejudice are
            24
improper.         See State v. Claflin, 38 Wn. App. 847, 850751, 690 P. d 1186 (1984).Viewed in
                                                                      2




24
     For example, a prosecutor arguably engages in prosecutorial misconduct if he "` ppeals to
                                                                                   a
jurors' fear     and   repudiation   of criminal groups "'    or argues "that the jury should convict in order .
to protect the community, deter future law breaking, or other reasons unrelated to the charged
crime."State v. Ramos, 164 Wn. App. 327, 338 n. , 263 P. d 1268 (2011) quoting State v.
                                                 3     3               (
Perez-
     Mejia, 134 Wn. App. 907, 916, 43 P. d 838 (2006).
                                 1     3
       Williams argues that the prosecutor's closing argument improperly appealed to the jury's
passions because it "appeal[ d] to the community conscience" that inflamed the jurors'
                           e
emotions, urging them          to convict Williams to            protect children from future abuse.      Br. of
Appellant at 24. Williams' reliance on Perez Meija and Ramos is not helpful. In Perez -Meija,
                                              -
Division One of our court held that a prosecutor committed misconduct by repeatedly telling the
jury that it should "pick up the torch" and "[ ] a message" to gang members that gang
                                              send
violence will not be tolerated and that such violence offends the values recognized in the
Declaration of Independence; the prosecutor also "called further unnecessary attention to the
defendant's      ethnicity." Perez -Meija, 134          Wn. App. at 917 18.
                                                                        -      Similarly, in Ramos, Division
One again held that the prosecutor committed misconduct in arguing that the jury should convict
the defendant, charged with an isolated drug crime, to "protect the community" and to "prevent
the coke dealers' from engaging in `drug activity' at Sunset Square."Ramos, 164 Wn. App. at
337, 338. The court further noted that this improper argument was " ot based on the evidence."
                                                                    n
Ramos, 164 Wn. App. at 340.
       Unlike Ramos and Perez -Meija, the prosecutor's statements here did not appeal to the
jury's civil or patriotic obligations to "protect the community" or "to send a message" to

                                                            13
No. 42319 7 II
          - -



the context of the prosecutor's entire argument, the evidence, issues in the case, and .the trial

court's instructions, the prosecutor's comments here about the escalating nature of Williams'

abuse of DR and the physical and emotional harm that this abuse had caused him were not

improper. Moreover, Williams fails to show that any arguable prejudice could not have been

cured   by   a   jury instruction,   which he did not request.   Williams' failure to show that the


prosecutor's argument "was so flagrant [and] ill-
                                                intentioned that an instruction could not have

cured the    prejudice "    precludes our further consideration of his unpreserved prosecutorial

misconduct claim on this ground.

                                      2. Alleged misstatements of law

                                       Heart"and "
                                     a. "        gut ";speculation"
                                                        "

         Similarly, Williams fails to meet his burden for challenging the prosecutor's closing

argument explanation that "[
                           r] doubt is not 100 percent" and his comment that
                             easonable

a] belief is something you can know in your mind, something you can get from your
 biding

heart, or something you can know in your gut."3 VRP at 430, 431 (emphasis added). Even if

the comments about the jurors' relying on their "hearts" and "guts"were arguably improper,

again, they were,not " o flagrant [and] ill-
                     s                     intentioned that an instruction could not have cured the

prejudice. "       Corbett, 158   Wn.   App. at 594. Williams failed not only to object but also to

request such a curative instruction. .



criminals like Williams, who might also abuse children. Nor did the prosecutor's statements
refer to facts not in evidence or seek a conviction for reasons unrelated to the charged crime.
25
     Corbett, 158 Wn.App. at 594.

26 See related analysis in the ineffective assistance of counsel section, infra.

                                                    14
No. 42319 7 II
          - -




       Williams similarly fails to meet this burden for his claim that the prosecutor misstated the

law and encouraged the jury to consider facts not in evidence by arguing in rebuttal that the jury

could engage in "
                speculation." Br. of Appellant at 26. First, the prosecutor did not invite the

jury to engage in speculation; instead, he was attempting to explain that the jury could use

common sense to infer facts from circumstantial evidence in the absence of the direct evidence

                                           27
that Williams had    argued   was   missing.    We note, however, that, taken out of context, the

prosecutor's comment about " peculation"could be construed as a misstatement of the law. But,
                           s

even assuming the prosecutor's argument was a misstatement of the law, Williams fails to show

that this comment was "so flagrant [and] ill-
                                            intentioned that an instruction could not have cured

the prejudice."Corbett, 158 Wn. App: at 594. Again, Williams failed not only to object but also

to request such a curative instruction.

       Thus, we hold that Williams waived his prosecutorial misconduct argument for these two

unpreserved alleged misstatements of the law because he fails to show that the comments were

so flagrant [and] ill-
                     intentioned that an instruction could not have cured the prejudice."Corbett,

158 Wn. App. at 594.




27 More specifically, the prosecutor argued:
        Counsel says you can't     speculate. That's not accurate. . .         In fact,.the
        instructions suggest you're supposed to use your common sense.

                Instruction number three suggests this when it talks about circumstantial
        evidence.   Circumstantial evidence is facts or 'circumstances from which the
        existence or nonexistence of other facts may be reasonably inferred from common
        experience. So you can decide the facts are present when you look at the evidence
        and   use .your   common    experience. So to say you can't speculate, that's not
        accurate.

3 VRP at 465 (emphasis added).

                                                  15
No. 423 1 9 7 II
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                               b. SAG: second degree assault elements

         In his SAG, Williams asserts that the prosecutor "knowingly misinstructed the jury"

about the elements of second degree assault of a child because he stated that Williams needed to

have had "
         engaged in a pattern or practice of assaulting the child"in order to convict. SAG at 1.

Our review of the record discloses no such instances where the prosecutor instructed the jury that

it needed to find that Williams had engaged in a "pattern or practice"of assault. On the contrary,

the prosecutor discussed Instruction 4, noting that, although Williams had bruised DR several

times over the course of three weeks, the jury needed to "be sure that on at least one occasion

Williams] ha[ ]committed assault in the second degree."3 VRP at 438 (emphasis added).
            d

         We further note that the trial court properly instructed the jury on the elements of second

degree assault of a child and that the jury should follow the court's instructions about the law,

not counsel's arguments and statements. "A jury is presumed to follow the court's instructions."

State v. Foster, 135 Wn. d 441, 472, 957 P. d 712 (1998).We hold that the prosecutor did not
                       2                  2

misinstruct"     28 the jury on the elements of second degree assault of a child.

                      3. Additional SAG allegations of prosecutorial misconduct

         Williams also asserts in his SAG that the prosecutor (1)repeatedly characterized

Williams as "frustrated" without explaining or offering into evidence why and (2)made up"
                                                                                  "

that Williams had " ushed"DR's head in the toilet. SAG at 3,4, 5. The record does not support
                  p

these assertions.    On the contrary, Williams testified at trial that he was "frustrate[ d]"
                                                                                        e   about

DR's resisting showers. 3 VRP at 334. He also admitted in his police interview that he had



28
     SAG at 1.




                                                   16
No. 42319 7 II
          - -




pushed DR's head toward the toilet when DR did not flush. The prosecutor's statements, thus,
were   neither " ade up "
               m            nor improper argument.

                                 B. Effective Assistance of Counsel


          In a related argument, in both his appellant's brief and his SAG, Williams contends that

his trial counsel provided ineffective assistance in failing to object to the prosecutor's improper

closing   and rebuttal argument comments.30   This argument also fails.

          A claim of ineffective assistance of counsel presents mixed questions of law and fact,

which we review de novo. State v. Sutherby, 165 Wn. d 870, 883, 204 P. d 916 (2009). To
                                                  2                  3

prevail on an ineffective assistance of counsel claim, a defendant must show that (1)his

counsel's performance was deficient, and ( 2) the deficient performance prejudiced him.

Strickland v. Washington, 466 U. . 668, 687 88, 104 S. Ct.2052, 80 L.Ed. 2d 674 (1984);
                               S            -                                         State

v. Thomas, 109 Wn. d 222, 225 26,743 P. d 816 (1987).A failure to prove either prong ends
                 2            -       2

our inquiry. State v: Hendrickson, 129 Wn. d 61, 78, 917 P. d 563 (1996). Williams fails to
                                         2                2
meet his burden here.




29
     SAG at 4.

31
   In his SAG, Williams also asserts that his trial court provided ineffective assistance by (1)
failing to utilize the questions"Williams asked; 2) ing]to investigate information Williams
                                                 ( fail[
provided related to his case; and (3)telling Williams that he (Williams' trial counsel) was
burned out"and that he "didn't know how long he could keep practicing law."SAG at 18 19.
                                                                                     -
Because these ineffective assistance of counsel claims involve matters outside the record,
Williams must raise them in a personal restraint petition, not on direct appeal. State v.
McFarland, 127 Wn. d 322, 335, 899 P. d 1251 (1995).Therefore, we do not further consider
                 2                  2
these claims.


                                                  17
No. 42319 7 II
          - -




                                             1. Deficient performance prong

         To prove deficient performance, a defendant must overcome "` strong presumption that
                                                                    a

counsel's   performance       was     reasonable. "'    State v. Grier, 171 Wn. d 17, 33, 246 P. d 1260
                                                                              2                3

2011)quoting State v. Kyllo, 166 Wn. d 856, 862, 215 P. d 177 (2009)),
      (                            2                  3             adhered to in part on

remand, 168 Wn. App. 635, 278                      3                 When counsel's conduct can be
                                                  P. d 225 ( 2012). "`


characterized as legitimate trial strategy or tactics, performance is not deficient."'Grier, 171

Wn. d at 33 (quoting Kyllo, 166 Wn. d at 863).
  2                               2

         As we previously explained, the prosecutor did not engage in improper closing argument

when he (1)stated that Williams' abuse was "getting worse as he went along. It' a good thing
                                                                              s
                                    31 (
that it ended when it did";                2)characterized Williams as "frustrated" ; and (3)argued that
                                                                                  32
Williams pushed DR's head in toilet. Nor did the prosecutor engage in improper, argument by

                the
misinstruct[ing]" jury              about the elements of second     degree   assault of   a   child. SAG at 1.


Because these prosecutor closing statements were not improper, Williams' counsel was not

deficient in   failing   to   object. State v. Larios-
                                                     Lopez, 156 Wn. App. 257, 262, 233 P. d 899
                                                                                        3

2010). Thus, these alleged instances of prosecutorial misconduct do not support Williams'
                                            33
ineffective assistance argument.


         We next address Williams' argument that his counsel was ineffective in failing to object

when the prosecutor argued in rebuttal:

31
     3 VRP at 374.

32
     3 VRP at 384.

33
   Because Williams fails to establish the first prong of the ineffective assistance of counsel test
for these prosecutor statements, we do not address the second prong for these statements.



                                                           18
No. 42319 7 II
          - -



       Counsel says you can't     speculate. That's not accurate. . . .     In fact, the
       instructions suggest you' e supposed to use your common sense .... [
                                r                                             Y] u can
                                                                                 o
       decide the facts are present when you look at the evidence and use your common
       experience. So to say you can't speculate, that's not accurate.34]
                                                                       [
3 VRP at 465 (emphasis added). As we previously explained, for the most part, these rebuttal

argument comments were a fair response to Williams' inaccurate suggestion to the jury that

drawing reasonable inferences from the evidence was impermissible because it required that they
            3s
speculate."

              As a general rule, remarks of the prosecutor, including such as would
      otherwise be improper, are not grounds for reversal where they are invited,
      provoked, or occasioned by defense counsel and where [the comments] are in
      reply to or retaliation for [defense counsel's]    acts and statements, unless such
      remarks go beyond a pertinent reply and bring before the jury extraneous matters
      not in the record,or are so prejudicial that an instruction would not cure them."

State v. Davenport, 100 Wn. d 757, 761, 675 P. d 1213 (1984) emphasis added) emphasis
                          2                  2               (               (

omitted) alteration in original) quoting State v. LaPorte, 58 Wn. d 816, 822, 365 P. d 24
         (                       (                              2                  2

1961)).Here, Williams "invited" and "provoked" the prosecutor's speculation" rebuttal
                                                                 . "

comments, made in the context of explaining the court's instruction that, even when there was no

direct evidence of a fact, it was permissible for the jury to infer facts from circumstantial

evidence.


       Nevertheless, as we acknowledge earlier in this opinion, when taken out of context, the

prosecutor's latter statementthat defense counsel inaccurately said the jury could not
                              —

speculate " —arguably   could have warranted    a   defense   objection. We cannot tell from the



34 In between these two comments about speculation, the prosecutor attempted to explain the
court's Instruction 3 and the difference between direct and circumstantial evidence.

3s 3 VRP at 445.


                                               19
No. 42319 7 II
          - -



record, however, whether defense counsel might have had a legitimate strategic reason for not

objecting. But even assuming, without deciding, a lack of defense strategy, we turn to the

second prong of the ineffective assistance of counsel test to determine whether Williams has

shown prejudice.

                                            2. Prejudice prong

        To show prejudice,the defendant must establish that "`
                                                            there is a reasonable probability

that, but for counsel's deficient performance, the outcome of the proceedings would have been

different. "'   Grier, 171 Wn. d at 34 (quoting Kyllo, 166 Wn. d at 862).A failure to prove either
                             2                               2

prong ends our inquiry. Hendrickson, 129 Wn. d at 78. Williams, however, fails to meet the
                                           2

prejudice prong of his ineffective assistance challenge based on counsel's failure to object to the

prosecutor's 1)speculation" comments and (2)statements that the jury could rely on their
              ( "

heart"and "gut"in interpreting the reasonable doubt standard. 3 VRP at 431. Again, we note
that the trial court instructed the jury:

               The lawyers' remarks, statements, and arguments are intended to help you
        understand the evidence and apply the law. It is important, however, for you to
        remember that the lawyers' statements are not evidence.... law is contained
                                                                     The
        in my instructions to you. - You must disregard any remark, statement, or

        argument that is not supported by the evidence or the law in my instructions.

CP at 114 (Instruction 1)emphasis added). And, again, we presume that the jury followed.the
                          (

court's instructions. Foster, 135 Wn. d at 472. Instruction 1, combined with the trial court's
                                    2



36 We have already held in a previous section of our analysis that these "heart" and "gut"
comments were not ill-
                     intentioned and flagrant in the context of deciding that Williams fails to
meet his burden to      challenge   these comments for the first time   on   appeal. Nevertheless, for
purposes of our assistance of counsel analysis here, we assume, without deciding, that these
comments were improper.



                                                    20
No. 42319 7 II
          - -



reasonable doubt and circumstantial evidence instructions (Instructions 2 and 3) substantially

mitigated any prejudice that Williams might arguably have suffered from the prosecutor's

improper comments and misstatements of the law.

        Furthermore, the evidence against Williams       was   overwhelming:    Williams admitted


being "frustrate ed] "when DR resisted taking a shower, restraining DR, spanking him hard
                 [


enough to leave "purple hand prints"on his buttocks, pushing his head toward the toilet, calling

him a "little a* *
               hole," writing on his buttocks. 3 VRP at 334; CP at 42, 52. Several doctors,
                    and

police officers, and social workers corroborated DR's testimony that Williams had engaged in

this abusive conduct. The jury saw numerous photographs of DR's bruises, belts that Williams

had used to beat DR, and electrical tape and duct tape that police had recovered from Williams'

home.    Dr. Feldman testified that DR's injuries were not the result of preexisting medical

disorders and that he was "100 percent" certain that DR had been abused. 2 VRP at 149. The.

evidence further showed that Williams was DR's caretaker while his mother worked the night

shift and slept during the day, making Williams the only available and likely person to have

inflicted DR's injuries.

        Based on the strength of the State's evidence and the trial court's instructions to the jury,

Williams fails to show that "`
                             there is a -reasonable probability that, but for counsel's deficient

performance, the outcome of the proceedings would have been different."'
                                                                       Grier, 171 Wn. d at
                                                                                    2

34 (quoting Kyllo, 166 Wn. d at 862).Because Williams fails to demonstrate prejudice, we hold
                         2

that his ineffective assistance of counsel claim also fails.




                                                  21
No. 42319 7 II
          - -



              II. SUFFICIENT EVIDENCE TO SUPPORT EXCEPTIONAL SENTENCE FACTORS

          Williams next   challenges the trial   court's   imposition   of   an   exceptional   sentence.   He


argues that insufficient evidence supports the jury's finding of three aggravating sentencing

factors: (1)that he had known or should have known that DR was particularly vulnerable, 2)
                                                                                        (

that he had demonstrated deliberate cruelty toward DR, and (3)that he had displayed egregious

lack of   remorse. 37 The record does not support Williams' argument. We further note that any

one of these three factors standing alone would support Williams' exceptional sentence and that

the trial court so stated on the record.


                                        A. Standard of Review


          A trial court may sentence a defendant to an exceptional sentence above the standard
range if ( ) jury enters a special verdict, finding beyond a reasonable doubt one or more
         1 the

aggravating factors alleged by the State; and (2) trial court determines that the facts found are
                                                 the

substantial and compelling reasons justifying an exceptional sentence. RCW 9. RCW
                                                                           535;
                                                                             94A.


37
     Williams also argues that, because he was not convicted of a sex crime, the trial court erred in
considering his " future dangerousness" when imposing his exceptional sentence. Br. of
Appellant at 18. Williams is correct that future dangerousness is a non -statutory aggravating
factor that may support an exceptional sentence only in a sexual offense case. State v. Halgren,
 137 Wn. d 340, 346, 971 P. d 512 (1999).But the trial court did not use future dangerousness
         2                  2
to justify imposing Williams' exceptional sentence here.
          Rather, the trial court stated, as an aside, that Williams' sentence was "meant to punish
him] and to protect other kids" from him; the trial court did not reduce these statements to
formal findings or include them in its written findings of fact and conclusions of law justifying
Williams' exceptional sentence. VRP (June 27, 2011) at 5 6. Nor does Williams cite anything
                                                             -
in the record showing that the trial court relied on these statements in imposing his exceptional
sentence. Therefore, we do not further consider this argument.

38 The Legislature amended this statute in 2011, but the amendments do not affect our analysis in
this opinion.



                                                    22
No. 42319 7 II
          - -




537( 4A.6); v. Stubbs, 170 Wn. d 117, 123, 240 P. d 143 (2010).To reverse such
9. ), (
   3
   9     State               2                  3

an exceptional sentence, we must find either that the record does not support the sentencing

court's articulated reasons, that those articulated reasons do not justify a sentence outside the

standard sentence range for that offense, or that the length of the exceptional sentence was

clearly excessive. RCW 9. ).
                       585( 4A.
                          4
                          9

       We review the jury's special verdict findings for a sufficiency of the evidence, Stubbs,

170 Wn. d at 123. Under this standard, we review the evidence in the light most favorable to the
      2

State to determine whether any rational trier of fact could have found the presence of the

aggravating   circumstances   beyond   a   reasonable doubt.   State v. Chanthabouly,.164 Wn. App.

104, 143, 262 P. d 144 ( 2011),review denied, 173 Wn. d 1018 ( 2012). "
               3                                    2                 A claim of


insufficiency admits the truth of the State's evidence and all inferences that reasonably can be

drawn therefrom."State v. Salinas, 119 Wn. d 192, 201, 829 P. d 1068 (1992).Circumstantial
                                         2                  2

evidence and direct evidence are equally reliable. State v. Moles, 130 Wn. App. 461, 465, 123

P. d 132 ( 2005).
 3                   We defer to the jury on issues of conflicting testimony, credibility of

witnesses, and the persuasiveness of the evidence. State v. Thomas, 150 Wn. d 821, 87475,83
                                                                          2           -

P. d 970 (2004)citing State v. Cord, 103 Wn. d 361, 367, 693 P. d 81 (1985)).
 3              (                          2                  2

                                  B. Egregious Lack of Remorse

       The State presented sufficient evidence (1) support the jury's special verdict finding
                                                  to

that Williams "
              demonstrate d]or
                          [        display[ d]an egregious lack of
                                          e                             remorse "   and (2) justify
                                                                                           to



39
  Williams does not challenge the length of the trial court's exceptional sentence as "clearly
excessive"under RCW 9.
                     b).
                     585( 4A.4)(
                             9

41 CP at 146.


                                                   23
No. 42319 7 II
          - -




the trial court's imposition of an exceptional sentence under RCW 9.
                                                                  q).
                                                                  535( 4A. Refusing to
                                                                     3)(
                                                                     9

admit guilt or remaining silent is an exercise of one's rights, not an indication of lack of remorse.

State v. Russell, 69 Wn. App. 237, 251, 848 P. d 743 (1993).Thus, ordinary lack of remorse is
                                             2

insufficient to support this aggravating factor; instead, a defendant's lack of remorse must be of

an "aggravated"or "
                  egregious" character. State v. Wood, 57 Wn. App. 792, 800, 790 P. d 220,
                                                                                  2

review denied, 115 Wn. d 1015 (1990). Whether a sufficient quantity or quality of remorse is
                     2

present depends on the facts of the case. State v. Ross, 71 Wn. App. 556, 563, 861 P. d 473
                                                                                    2

1993), P. d 329, review denied, 123 Wn. d 1019 (1994).
     883 2                            2

       In Ross, we upheld a trial court's exceptional sentence based on egregious lack of

remorse where Ross continued to " lame the justice system"for his crimes and the trial court did
                                b

not find him credible when he said "he     was   sorry."Ross, 71   Wn. App. at 563.     Similarly in

Wood, we upheld an exceptional sentence based on a showing of egregious lack of remorse

where Wood joked with her husband's killer (
                                           her boyfriend) about the gurgling sounds that her

husband had made when he was shot and she had moved in with her boyfriend three weeks after

her husband's death. Wood, 57 Wn. App. at 795, 800. And in Russell, we held that the record

sufficiently supported the egregious lack of remorse aggravating factor where Russell had hidden

his pain-
        inflicted child -
                        victim in a bedroom, prevented him from receiving medical treatment,

insisted on cleaning up the victim's bedroom before the police arrived, and was willing "`
                                                                                         to

party "' a few days after the victim's death. Russell, 69 Wn. App. at 251.

        Williams also tried to hide his abuse of DR: Williams routinely waited for DR's mother

to leave before waking up DR to shower, when most of the abuse occurred; Williams made

varying excuses for DR'
                    eye.
                      s injuries; and he admitted having tried to remove the bruises on


                                                 24
No. 42319 7 II
          - -



DR's buttocks with lotion and a hairbrush. Williams had frequently belittled DR, calling him

derogatory names like "little * hole"and writing the words "stop staring" on his buttocks
                              a* *

because the bruises were "healing"and he thought it was "funny." at 42,75; 2 VRP at 219.
                                                                CP

Williams minimized DR's injuries, stating that he (Williams) had suffered worse injuries as a

child. At Williams' sentencing, he (1)expressed virtually no remorse for his actions; and (2)

focused    solely   on   what he       was "   losing "    and the negative effects that his conviction and

sentence would have         on   his   own      life.   We hold that sufficient evidence supports Williams'

egregious lack of remorse, which aggravating factor justified Williams' exceptional sentence.

                                                 C. Deliberate Cruelty

          The State also presented sufficient evidence (1)to support the jury's special verdict

finding that Williams' conduct during the commission of the crime "manifested deliberate

cruelty   to the victim "    and (2) justify the trial court's imposition of an exceptional sentence
                                    to

under RCW       535( 4A. Deliberate cruelty is "gratuitous violence or other conduct,
                a).
                9. 3)(
                   9

significantly more serious or egregious than typical of the crime, which inflicts physical,

psychological or emotional pain as an end in itself."Russell, 69 Wn. App. at 253. Deliberate

cruelty exceeds that normally associated with the commission of a charged offense or that which

is inherent in the elements of the offense. State v. Gordon, 172 Wn. d 671, 680 81, 260 P. d
                                                                   2            -        3

884 (2011)citing State v. Tili, 148 Wn. d 350, 369, 60 P. d 1192 (2003)):
           (                          2                 3




41 VRP (June 27, 2011)at 4
42CPat148.



                                                             25
No. 42319 7 II
          - -



         Williams contends that because RCW 9A. 6. (
                                            130 second degree child assault)
                                              3

contemplates "torture" as a means of assault, the jury could not find deliberate cruelty as an

aggravating factor because this factor relied on the same facts that were necessary to prove the

underlying assault.    Br. of   Appellant    at 10.   We previously rejected a similar argument that a
                                                             43
deliberate   cruelty aggravating    factor   was   improper,      reasoning that "even where a statute

proscribes behavior that generally could be described as deliberately cruel, it remains possible

for a defendant to engage in gratuitous violence more egregious than typical."Russell, 69 Wn.

App. at 253.

          We held that there was sufficient evidence to support Russell's deliberate cruelty

aggravating factor because it was possible to commit his homicide by abuse crime by "more
                                                                  - -

passive, less violent means" than those used by Russell, who had deliberately and severely

beaten a 20-
           monthold child with brass knuckles, ruptured the child's liver, and denied him
                -

medical assistance. Russell, 69 Wn. App. at 253 54. We also upheld Ross's deliberate cruelty
                                                -

aggravating factor where he had murdered his victim by inflicting an "extraordinarily high

number of wounds, cuts and marks,"
                                 which were more than necessary to kill the victim. Ross,

71 Wn. App. at 562.

          Here, Williams inflicted an extraordinarily high number of extreme injuries and bruises

on DR, evidenced by the "[
                        m] assive bruising"on all parts of DR's body, the " omposite bruise"
                                                                          c

on his buttocks, and his two black eyes, which had resulted from " eparate blows to each eye."1
                                                                 s

VRP at 85, 2 VRP at 155, 169. Williams' conduct also exceeded that which was necessary to


43
     Russell argued that his homicide by abuse crime required a "pattern or practice of assault or
torture and extreme indifference to human life."
                                               Russell, 69 Wn. App. at 253.



                                                       M
No. 42319 7 II
          - -




commit simple assault on a child in that Williams routinely made DR strip naked, bound his

wrists, covered his eyes, taped his mouth shut, dunked his head in cold water, shoved his head in

a toilet, and hit him indiscriminately with a belt over all parts of his naked body. It is beyond

dispute that there are more passive, less violent means of assaulting a child that qualify as second

degree assault under     RCW    9A. 6. without
                                130
                                  3                   manifesting   deliberate   cruelty.   We hold,

therefore, that sufficient evidence supports that Williams' assaults of DR manifested deliberate

cruelty,which aggravating factor justified Williams' exceptional sentence.

                                D. Particularly Vulnerable Victim

       The State also presented sufficient evidence to support the jury's special verdict finding

that DR was particularly vulnerable, despite Williams' arguments that (1)DR's age was an

element already contemplated by the abuse of a child statute; and (2)DR was "an articulate

seven year old who could have told his mother or grandmother about the abuse" and, thus, was

not particularly vulnerable due to extreme youth. Br. of Appellant at 16. We agree with the

State that age is not the only factor in determining victim vulnerability and that the jury could

infer DR's vulnerability based on the circumstances of the crime.

       A trial court may impose an exceptional sentence based on a jury's finding that the
defendant "knew    or   should have known that the victim . . .     was particularly vulnerable or

incapable of resistance." RCW 9.
                              b).
                              535( 4A. To prove a victim's vulnerability as such an
                                 3)(
                                 9

aggravating factor,the State must show ( ) the defendant knew or should have known ( )
                                       1 that                                      2 of

the victim's particular vulnerability and (3)that the vulnerability was a substantial factor in

accomplishing the crime. State v. Suleiman, 158 Wn. d 280, 291 92,143 P. d 795 (2006).To
                                                  2            -       3

be a substantial factor, the victim's disability must have rendered the victim "`
                                                                               more vulnerable to


                                                 27
No. 42319 7 II
          - -



the   particular   offense than   a   nondisabled victim would have been. "' State v. Mitchell, 149 Wn.


App. 716, 724, 205 P. d 920 (2009)quoting State v. Jackmon, 55 Wn. App. 562, 567, 778 P. d
                    3              (                                                   2

1079 (1989)),d,169 Wn. d 437, 237 P. d 282 (2010).
           aff'      2             3

          Generally, the victim's age does not justify an exceptional sentence when age constitutes

an element of the crime and, thus, has already been factored into the sentencing guidelines. State

v. Garibay, 67 Wn. App. 773, 778, 841 P. d 49 (1992),
                                       2            abrogated on other grounds by State v.

Moen, 129 Wn. d 535, 919 P. d 69 (1996). But even when age is an element of the crime, a
            2             2

victim's age "may also be used as [ a]justification for departure from the standard sentencing

range if the extreme youth of the victim in fact distinguishes the victim significantly from other
victims of the       same   crime."Garibay, 67 Wn.          App.   at 779.   For example, the Washington

Supreme Court upheld an indecent liberties victim -
                                                  vulnerability aggravating factor where the

statute contemplated a wide range of victims ( 14 years old)and the victim was a 5 1/ year old
                             -               0-                                     2      -

boy at a local swimming pool, who trusted the defendant enough to go to the bathroom with him

because it was reasonable to conclude that the child's young age rendered him particularly

vulnerable and incapable of resistance. State v. Fisher, 108 Wn. d 419, 421, 424 25, 739 P. d
                                                               2                 -        2

683 (1987).In contrast, in State v. Woody, Division Three of our court held that a seven year-
                                                                                         -

old school aged victim of indecent liberties was not particularly vulnerable because "grade -
           -

school age children are regarded as having achieved a level of reason that sets them apart from

younger children."State v. Woody, 48 Wn. App. 772, 777, 742 P. d 133 (1987),
                                                             2             review denied,

110 Wn. d 1006 (1988).
      2

          Williams argues that, like Woody's victim, DR was not particularly vulnerable based on

his age because he, too, was seven years old, of school age, and in the "middle of the age range"


                                                       28
No. 42319 7 II
          - -



contemplated by the child assault statute, which by definition contemplates victims under age 13.

Br. of Appellant at 16 (citing RCW 9A. 6. Here, however, DR's age is not the only factor
                                   130).
                                     3

contributing to his particular vulnerability; DR's potential learning disabilities and the other

circumstances of Williams' crimes rendered DR particularly vulnerable to abuse.

         Although most cases dealing with victim vulnerability have involved extreme youth,

advanced age or disability, caregivers, family relationships, or sleeping victims, vulnerability can

also result from " haracteristics other than the victim's physical condition or stature."Ross, 71
                 c

Wn. App. at 565. For example, we upheld an aggravating factor based on victim vulnerability

where the evidence showed that the defendant had purposefully selected his female robbery and

murder victims when they were " lone in offices open to the public"because such circumstances
                              a

made them particularly vulnerable to his attacks. Ross, 71 Wn. App. at 565 66. Similarly, the
                                                                           -

Washington Supreme Court held that there was sufficient evidence to support the victim

vulnerability aggravating factor where multiple defendants beat an adult male to death after

knocking him to the ground. Gordon, 172 Wn. d at 674 75,680.
                                          2          -

         Here, DR was not a typical seven -year old boy who had achieved a recognized.level of
                                                -                                      "

reason "   such that he could repel or resist Williams' abuse. On the contrary, DR was a special

education student who likely had undiagnosed learning disabilities,was failing in school, did not

know his ABC's     or   how to count to 10, and   was   performing   below   grade   level. As in Ross,


Williams inflicted his abuse when he was alone in the home with DR or while DR's mother was


sleeping. He also routinely beat DR after making him strip naked and binding his wrists, mouth,


44
     Woody, 48 Wn. App. at 777.



                                                  29
No. 42319 7 II
          - -




and eyes, which, much like the circumstances in Gordon, rendered DR incapable of repelling

Williams' attacks or fleeing. Under these circumstances, the jury could reasonably infer that DR

was particularly vulnerable or incapable of resistance, that Williams knew or should have known

about DR's particular vulnerability, and that such vulnerability was a substantial factor in

Williams'   accomplishing   his crimes.   We hold, therefore, that sufficient evidence supports

Williams'     aggravating factor based on victim vulnerability, which justified Williams'
                      45
exceptional   sentence.


                                   III. REMAINING SAG ISSUES


                                  A. Matters Outside the Record


       Williams asserts that the State's search warrant was insufficiently particular in describing

the items to be seized from his home. The record does not include a copy of the State's search

warrant or affidavit for a search warrant. A number of other the issues that Williams raises in his


SAG also depend on matters outside the record before us in this direct appeal. These matters

include his assertions that ( ) photographs of DR were "doctored"and deliberately designed
                            1 the

to elicit jury prejudice, SAG at 2; 2)DR's forensic interview was mishandled, based on the
                                    (

Department of Justice recommendation that such interviews be video recorded and that a child be

interviewed only once; and (3) s grandmother fabricated the child abuse allegations because
                             DR'

Williams and DR's mother were trying to obtain custody of DR.




45 We reiterate that the trial court specifically ruled at sentencing that " ach of these aggravating
                                                                           e
factors by themselves would justify the sentence"and that it would "mpos[
                                                                    i   e] same sentence
                                                                             the
even if there was just one"of these three aggravating factors. VRP ( une 27,2011)at 5.
                                                                   J


                                                 30
No. 42319 7 II
          - -




           Because these issues rely on matters outside the record, we cannot consider them in this

direct    appeal.   State   v.   McFarland, 127 Wn. d 322, 335, 899 P. d
                                                  2                  2       1251 (1995).   They are more

properly raised in a personal restraint petition. McFarland, 127 Wn. d at 335.
                                                                   2

                                            B. Spanking"as Assault
                                               "

           Williams' fourth SAG assertion is that spanking as part of parental discipline cannot be a

criminal assault of a child as a matter of law where the spanking "
                                                                  never even elicited an `ow!'
                                                                                             or

a tear."SAG at 3. This assertion does not call for reversal for two reasons: First, as a matter of

law, even a so-
              called " imple spanking"can constitute assault of a child when it
                     s

           causes bodily harm that is greater than transient physical pain or minor temporary
           marks, and the person has previously engaged in a pattern or practice either of i) (
           assaulting the child which has resulted in bodily harm that is greater than transient
           pain or minor temporary marks, or (ii)    causing the child physical pain or agony
           that is equivalent to that produced by torture.

RCW 9A. 6.
    b).
    130(
       1)(
       3

           Second, as a matter of fact, the record shows that Williams' so-
                                                                          called repeated

spankings"of DR, sometimes with a belt on DR's naked body and at least once throwing DR

into a bookcase, resulted in "[
                             m] assive bruising" all over his body, including bruises on his

scrotum, penis, and buttocks; two black eyes, blood and bruising in both eyes; and a missing

tooth. 1 VRP at 85; CP at 52. The medical witnesses who examined DR described these injuries

as the result of child abuse and "
                                 nonaccidental trauma," normal childhood accidents. 1 VRP
                                                      not

at 29. DR reported that when Williams "[
                                      got]mad,"
                                              Williams taped DR's mouth shut, bound his

wrists together, placed electric tape over his eyes, dunked his head in cold water, shoved his head

in   a   toilet, and beat him repeatedly with      a   belt. 2 VRP at 143.    These injuries and repeated

abuses clearly fall within the statutory definition of " odily harm that is greater than transient
                                                       b


                                                        31
No. 42319 7 II
          - -




physical pain   or   minor   temporary marks, ...        or ...   causing the child physical pain or agony that

is equivalent to that produced by torture."RCW 9A. 6.
                                               b).
                                               130(
                                                  1)(
                                                  3

                                 C. Challenges to Jury's Implied Findings

       In the remainder of his SAG (SAG numbers 9, 10 14),
                                                      -  Williams challenges the jury's

implied findings on witness credibility, the weight given to witness testimony, and whether the
                                                                                                                  46
State met its ultimate burden of           proving   the elements of his crime       beyond   a   reasonable doubt.


As we have already noted, the persuasiveness, credibility, and weight of the evidence are matters

for the trier of fact and      are   not   subject   to review    by this   court.   See State v. Camarillo, 115

Wn. d 60, 71, 794 P. d 850 (1990);
  2                2             State v. Walton, 64 Wn. App. 410, 415 16, 824 P. d 533,
                                                                       -        2

review denied, 119 Wn. d 1011 (1992).For this reason, Williams' remaining SAG assertions do
                     2




46
    More specifically, Williams asserts that (1)he cannot be guilty , of assault for "simple
spanking,"  SAG at 3; 2) did not have two bookcases butted up against each other, and DR
                        ( he
had no bruises that would have been consistent with an impact against a bookcase,"    SAG at 8;
3) s bruising pattern did not match the prosecutor's explanation about how the bruises had
    DR'
occurred, so the jury should have given more weight to his (Williams')   testimony; 4) cell
                                                                                     ( his
phone photographs were "useless" to prove his crime because they showed that DR was
happier"during his stay with Williams, SAG at 12; 5) duct tape and electric tape seized
                                                      ( the
from his (Williams')  home were never fingerprinted, and no witnesses identified the belts as the
ones he had actually used to spank DR; 6) "[y assault victim will present with one eye more
                                        ( a]  n
swollen than the other,"so Dr. Feldman's testimony was not credible, SAG at 14; ( )the    7
allegation that Williams "choked" DR by wrapping his hand around his neck is "laughable"
because, although DR had bruises on his neck, the bruises were not shaped like fingerprints,
SAG at 16; 8) is unlikely that DR would have pointed out the bruises on his neck without
             ( it
being coached because he could not see them; and ( )
                                                   9 when asked in court who had harmed him,
DR failed to identify Williams.

                                                           32
No. 42319 7 II
          - -




not support reversal of his conviction.

       We affirm Williams' conviction and 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

040,
2.6.it is so ordered.
 0




                                               Hunt, J.   l
We concur:




J hanson, A. .
          J.
           C
       r




B' rge , J.




                                             33
