                                                                   FILED 


                                                              MAR 12,2013 


                                                      In the Office of the Clerk of Court 

                                                    W A State Court of Appeals, Division III 


         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                            DIVISION THREE 


STATE OF WASHINGTON,                            )           No. 29429-3-III
                                                )
                              Respondent,       )
                                                )
         v.                                     )
                                                )           UNPUBLISHED OPINION
ROBERT RUSSELL TRAINOR,                         )
                                                )
                              Appellant.        )

       KORSMO, C.J. - Robert Trainor appeals his convictions for three counts of child

rape and two counts of child molestation, arguing that he was denied a fair trial due to

ineffective assistance of counsel and prosecutorial misconduct. He also challenges

several of the trial court's evidentiary rulings as well as the denial of his request for a

new trial. Finding no error, we affirm.

                                       BACKGROUND

       Jamie Lynn Sanders has four daughters, including C.M.S., A.N.S., and D.L.S. l

She also has a stepdaughter, M.A.S. In January 2010, Ms. Sanders found a suicide note

in A.N.S's bedroom. The letter stated that Robert Trainor, who is Ms. Sanders'


       1 Ms.   Sariders' fourth daughter is not involved in this case.
No. 29429-3-III
State v. Trainor


stepfather, had started sexually abusing A.N.S. sometime in early 2006. At the time the

letter was discovered, C.M.S. was 13, A.N.S was 12, D.L.S. was 10, and M.A.S. was 14.

       After discussing the note with A.N.S., Ms. Sanders sent a Facebook message to

her 20-year old cousin, E.M.W., who lived in Spokane. In the message, Ms. Sanders told

her that A.N.S. was claiming to have been sexually molested by a close family member,

and she asked E.M.W. if anything like this had happened to her. E.M.W. called Ms.

Sanders to tell her she was driving to Ms. Sanders' home in the Tri-Cities.

       Within the next several hours, C.M.S., D.L.S., M.A.S., and E.M. W. all reported

that Mr. Trainor had sexually abused them. According to each of the girls, none of them

discussed the alleged abuse with each other before reporting it.

       Mr. Trainor was arrested the following day and interviewed by Detective Mathew

Clarke. The State charged Mr. Trainor with one count of rape of a child in the first

degree, two counts of rape of a child in the second degree, one count of child molestation

in the first degree, and one count of child molestation in the third degree. There was one

count for each of the five girls.

       Each girl testified at triaL A.N.S. testified that Mr. Trainor started to molest her in

2006. She would give him back rubs and then he would place her hand on his male

private part. She testified that on multiple occasions Mr. Trainor digitally penetrated her,

but that she never told anyone because she did not think anyone would believe her. She


                                              2

No. 29429-3-II1
State v. Trainor


also testified that in August or September 2009 he digitally penetrated her and performed

oral sex on her. Afterwards she told her best friend, K.H., about the abuse.

       C.M.S. testified that Mr. Trainor began molesting her when she was 11 years old.

He would have her give him back rubs and he would rub her stomach and chest. She also

testified that in November of her seventh grade year Mr. Trainor touched her vagina.

       D.LS. testified that when she was seven years old, she was staying at Mr.

Trainor's house and sleeping in his bed when Mr. Trainor touched her and digitally

penetrated her.

       M.A.S. testified that in December 2009 Mr. Trainor rubbed her stomach in a way

that made her uncomfortable and put his hand on her breast underneath her bra.

       E.M.W. testified that Mr. Trainor began abusing her in 2002 when he digitally

penetrated her. The abuse continued and escalated in 2006 with Mr. Trainor penetrating

her with his penis. She testified that after she graduated from high school in 2008, she

moved away and tried to avoid any further contact with Mr. Trainor.

       The jury on August 16, 2010, found Mr. Trainor guilty on all counts. On

September 29, after denying Mr. Trainor's motion to arrest judgment and grant a new

trial, the court sentenced Mr. Trainor to a total of 280 months. The judgment and

sentence ordered restitution in the amount of$539.99 to Crime Victims Compensation.

At the time of sentencing neither the prosecutor nor the defense counsel knew what this


                                             3

No. 29429-3-III
State v. Trainor


restitution amount pertained to, but after defense counsel requested a breakdown of the

restitution charges they discovered that it was for a sexual assault exam.

       In July 2011, appellate counsel for Mr. Trainor contacted the prosecutor's office to

inquire about the sexual assault exam. Detective Clarke indicated that he ordered a

sexual assault exam for A.N.S., which occurred on February 2,2010. The exam report

was made available to the prosecutor on October 4, 2011, and was promptly given to

defense counsel. The report concluded that the findings for any abuse were negative, but

noted that this finding does not prove or disprove that the alleged abuse occurred.

       Mr. Trainor timely appealed.

                                        ANALYSIS

       This appeal challenges the effectiveness of trial counsel and also alleges the

prosecutor engaged in misconduct. Mr. Trainor also argues that the trial court erred in

several of its evidentiary rulings and by denying his request for a new trial. Each is

addressed in tum. 2

Ineffective Assistance o/Counsel

       Mr. Trainor challenges his trial counsel's performance, alleging nine instances of

ineffective assistance of counsel. Since Mr. Trainor fails to establish that actual prejudice



       2 Mr.Trainor also raises a cumulative error argument, but because we conclude
there were no errors, there is no basis for finding cumulative error.

                                             4

No. 29429-3-III
State v. Trainor


resulted from any of these alleged failures, he has not established that trial counsel

provided ineffective assistance.

       Ineffective assistance of counsel claims are adjudged under the standards of

Strickland v. Washington, 466 U.S. 668,689-91, 104 S. Ct. 2052, 80 L. Ed. 2d 674

(1984). That test is whether or not (1) counsel's performance failed to meet a standard of

reasonableness, and (2) actual prejudice resulted from counsel's failures. Id. at 690-92.

In evaluating ineffectiveness claims, courts must be highly deferential to counsel's

decisions. A strategic or tactical decision is not a basis for finding error. Id. at 689-91.

       Mr. Trainor first attacks trial counsel's failure to file a CrR 4.7(e) motion

requesting any information or documentation dealing with physical, medical, or mental

examinations. erR 4.7(e) allows the court to grant a defendant access to information

beyond what the prosecutor is specifically obligated to disclose under the discovery rules.

State v. Norby, 122 Wn.2d 258, 266,858 P.2d 210 (1993). Mr. Trainor has failed to

show that trial-counsel's performance was deficient for failing to file a CrR 4.7(e) motion

because the prosecutor was already under a duty to disclose those materials under CrR

4.7(a)(iv). This claim is without merit.




                                              5

No. 29429-3-III
State v. Trainor


       Mr. Trainor also argues trial counsel was ineffective for failing to request a bill of

particulars seeking more specificity with regards to the dates of the alleged abuse in the

formal charges. 3

       A criminal defendant has "a constitutional right to be informed of the nature and

cause of the accusation against him" to enable him to prepare a defense. State v.

Bergeron, 105 Wn.2d 1,18,711 P.2d 1000 (1985) (citing U.S. CONST. amend. VI;

CONST. art. I, § 22 (amend. 10». The purpose ofa bill of particulars is to "amplify or

clarify particular matters essential to the defense." State v. Holt, 104 Wn.2d 315, 321,

704 P.2d 1189 (1985).

       No bill of particulars is required if the particulars are already in the charging

document or if the information called for has been provided by the government in some

other satisfactory form. State v. Noltie, 116 Wn.2d 831, 845, 809 P.2d 190 (1991).

Whether or not to grant a request for a bill of particulars is a matter left to the discretion

of the trial court. Id. at 844. Discretion is abused when it is exercised on untenable

grounds or for untenable reasons. State ex rei. Carroll v. Junker, 79 Wn.2d 12,26,482

P.2d 775 (1971).




       3 Additionally, Mr. Trainor argues that the long time frames in the charging
document exposed him to double jeopardy. However, Mr. Trainor was protected from
the threat of double jeopardy because the evidence was sufficiently specific as to the act
                                               6
No. 29429-3-II1
State v. Trainor


       Mr. Trainor has not established that trial counsel was deficient for failing to

request a bill of particulars or that the motion likely would have been granted. The

information informed Mr. Trainor that he was being charged with three counts of rape of

a child and two counts of child molestation, with each charge corresponding to one ofthe

five girls. The information did not include the specific dates of each alleged offense

because the girls could not remember the specific dates, but instead alleged that each

count of abuse occurred within a specified time frame. It was not necessary for the State

to give the exact dates for each alleged offense. State v. Carver, 37 Wn. App. 122, 126,

678 P.2d 842 (1984). Mr. Trainor was informed of the nature and cause of the

accusations against him. Furthermore, the lack of specificity did not prejudice Mr.

Trainor because an alibi defense would not have been reasonable in these circumstances

and therefore specific dates were not necessary to the defense. It does not appear that

there was any additional information to disclose in a bill of particulars.

       Mr. Trainor's third argument is that trial counsel erred in failing to file a motion to

sever the counts. He claims that defense counsel should have moved to sever all the

counts, or at least sever the count of second degree rape of E.M. W. from the other counts.




charged for each girl within the charged time frames. State v. Newman, 63 Wn. App.
841,851,822 P.2d 308 (1992).

                                              7
No. 29429-3-Ill
State v. Trainor


       Offenses that are permissibly joined under CrR 4.3(a) may be severed if "the court

determines that severance will promote a fair determination of the defendant's guilt or

innocence of each offense." CrR 4.4(b). The decision whether to grant a motion to sever

counts is within the trial court's discretion. State v. Bryant, 89 Wn. App. 857, 864,950

P.2d 1004 (1998). When determining whether to grant a request to sever counts, a court

considers (1) the strength of evidence on each count, (2) the clarity of the defenses on

each count, (3) the court's instructions to consider each charge separately, and (4) the

admissibility of the evidence of one charge in a separate trial of the other charge. State v.

Russell, 125 Wn.2d 24, 63, 882 P.2d 747 (1994).

       To prevail on an ineffective assistance claim based on failure to move to sever

counts, the defendant must show deficient performance by counsel and demonstrate

prejudice by showing both that the motion would likely have been granted and a

reasonable probability that the outcome of the proceeding would have been different had

the motion been granted. State v. Sutherby, 165 Wn.2d 870, 884, 204 P.3d 916 (2009).

       Mr. Trainor has failed to satisfY the Sutherby standard. The State's evidence was

equally strong on each count and the defense to each count was general denial, so trying

the counts together did not present a problem of conflicting defenses. The court

specifically instructed the jury that it had to decide each count separately and that the

verdict on one count should not control the verdict on any other count. It is also likely


                                              8

No. 29429-3-III
State v. Trainor


that evidence ofthe abuse of each girl would have been cross admissible under ER

404(b) as evidence of a common scheme or plan even if the counts were tried separately.

Additionally, in denying Mr. Trainor's request for a new trial based on the failure to

request severance, the trial court stated, "I didn't hear a matter requesting severance but

had I heard it chances were extremely good I wouldn't have granted a severance should

that motion have been made." Report of Proceedings (RP) (Sept. 29, 2010) at 3-4. This

claim has no merit.

       Mr. Trainor's fourth claim of ineffective assistance alleges that trial counsel was

deficient for failing to seek suppression of his statements to the police. When pursuing

an ineffective assistance argument on this basis, the defendant must establish that a

motion to suppress likely would have been granted. State v. McFarland, 127 Wn.2d 322,

333-34,899 P.2d 1251 (1995). Mr. Trainor cannot meet this standard. He fails to

explain why any of the statements should have been suppressed, and does not show that it

is likely the trial court would have granted a motion to suppress. This claim has no merit.

       Mr. Trainor's fifth argument is that trial counsel erred in failing to object to the

testimony of several of the State's witnesses: A.N.S., E.M.W., expert witness Carol

Harting, and rebuttal witnesses K.H. and Kimberly Henle. Each is addressed in tum.

       To establish ineffective assistance of counsel based on defense counsel's failure to

object to testimony, the defendant must show (1) the absence of a legitimate strategic or


                                              9

No. 29429-3-III
State v. Trainor


tactical reason for not objecting, (2) that the trial court would have sustained the

objection if made, and (3) the result of the trial would have differed if the evidence had

not been admitted. State v. Saunders, 91 Wn. App. 575,578,958 P.2d 364 (1998).

       Mr. Trainor first claims that trial counsel should have objected to testimony by

A.N.S. and E.M. W., who both testified about incidences of abuse taking place outside the

charged time frames. ER 404(b) prohibits the use of evidence of other crimes or acts to

"prove the character of a person in order to show action in conformity therewith."

However, evidence of a defendant's prior sexual acts against the same victim is

admissible to show the defendant's lustful disposition toward that victim. State v. Ray,

116 Wn.2d 531,547,806 P.2d 1220 (1991). Evidence ofprior sexual acts may include

acts occurring both before and after the charging period. State v. Russell, 171 Wn.2d

118,249 P.3d 604 (2011).

       To admit evidence of other acts or crimes under ER 404(b), the trial court must

(1) find that the prior misconduct occurred by a preponderance of the evidence,

(2) identify the purpose for which the evidence is sought to be introduced, (3) determine

whether the evidence is relevant to prove an element of the crime charged, and (4) weigh

the probative value of the evidence against its prejudicial effect. State v. Pirtle, 127

Wn.2d 628, 648-49, 904 P.2d 245 (1995).




                                              10 

No. 29429-3-II1
State v. Trainor


       The information charged Mr. Trainor with second degree rape of A.N.S. between

May 30, 2009 and December 31,2009, and second degree rape ofE.M.W. between

November 18,2001 and November 17,2003. A.N.S. testified that Mr. Trainor began

touching her inappropriately in 2006, and E.M.W. testified that Mr. Trainor abused her

during the charged time period, but that he also raped her in 2006 and continued to

molest her on various occasions until she left town in 2008. The defense did not object to

this testimony. During closing arguments, the State explained to the jury that although

both girls testified to incidents outside the charging time frames, the jury could only find

Mr. Trainor guilty if they found him guilty of the alleged conduct and found that the

alleged conduct occurred during the charged time frame.

       Generally, the decision of when or whether to object is a classic example of trial

tactiCs, and the failure to object only constitutes deficient performance in egregious

circumstances. State v. Madison, 53 Wn. App. 754, 763, 770 P.2d 662 (1989). However,

defense counsel may be deficient for failing to object to lustful disposition testimony.

State v. Dawkins, 71 Wn. App. 902,863 P.2d 124 (1993).

       Even if trial counsel's performance was deficient, Mr. Trainor has not shown

ineffective assistance because he has not established that the trial court would have likely

sustained the objection to the testimony. Both A.N.S. and E.M.W. testified in specific

detail about the abuse they suffered at the hands of Mr. Trainor, during and outside the


                                             11 

No. 29429-3-III
State v. Trainor


charged time periods. The State introduced this evidence to show that Mr. Trainor

abused both girls on multiple occasions, and it was relevant to show that Mr. Trainor felt

sexual desire for both A.N.S. and E.M.W. Considering the record as a whole, including

the testimony of all five girls, the prejudicial effect of the testimony did not outweigh its

probative value.

       Mr. Trainor also alleges that defense counsel committed error when he conceded

that Ms. Harting was qualified as an expert witness and when he failed to object to her

testimony regarding delayed reporting.

       A witness may qualify as an expert by knowledge, skill, experience, training, or

education. ER 702. The determination of whether a witness is qualified to testify as an

expert is within the sound discretion of the trial court. State v. Nelson, 152 Wn. App.

755, 765,219 P.3d 100 (2009). Ms. Harting testified that she was a licensed mental

health counselor with 23 years of experience, had a master's degree in clinical

psychology, worked as director ofthe Sexual Assault Center for four years, and that

about half of her clientele are survivors of abuse. Given her experience, education, and

knowledge, Mr. Trainor has not shown that defense counsel was deficient for failing to

object to Ms. Harting as a witness. There was no basis to challenge her expertise.

       Trial counsel was also not deficient for failing to object to Ms. Harting's testimony

regarding delayed reporting. When the credibility of the victim has been put in issue, an


                                              12 

No. 29429-3-III
State v. Trainor


expert's opinion that it is not uncommon for a sexual abuse victim to delay reporting the

abuse is appropriate. State v. Holland, 77 Wn. App. 420, 427,891 P.2d 49 (1995).

While cross-examining A.N.S., defense counsel indirectly raised the issue of credibility

by asking A.N.S. whether something happened that caused her to be angry with Mr.

Trainor and report him, whether anyone helped her write her suicide letter or discussed

the abuse with her before she reported it, and discussed whether she had ever lied about

things in the past. The credibility of the five girls was put in issue, and it was appropriate

for Ms. Harting to express her opinion that it is not uncommon for sexual abuse victims

to delay reporting abuse.

       Mr. Trainor next argues that trial counsel erred in failing to object to the testimony

of rebuttal witnesses, K.H. and Kimberly Henle. He contends that the testimony

constituted inadmissible hearsay, and that it was not properly offered as rebuttal

testimony.

       Hearsay is any out-of-court statement offered to prove the truth of the matter

asserted. ER 801(c). Generally, hearsay is not admissible. ER 802. However, a

witness's prior consistent statement may be admissible as nonhearsay if offered to rebut

an express or implied charge against the declarant of recent fabrication or improper

motive. ER 801 (d)( 1)(ii). If offered to rebut impeachment, the statements must have

been made prior to the events which gave rise to the inference of fabrication. State v.


                                              13 

No. 29429-3-III
State v. Trainor


Stark, 48 Wn. App. 245, 249, 738 P.2d 684 (1987). A trial court's decision to admit

evidence under one of the hearsay exceptions is discretionary. State v. Strauss, 119

Wn.2d 401,417,832 P.2d 78 (1992).

       K.H. and Ms. Henle were properly called as rebuttal witnesses. During trial, the

defense suggested that A.N.S. falsely reported the abuse because she was angry at Mr.

Trainor for reprimanding her about her grades and she was upset that he was spending

less time with her. After the defense rested, the State called K.H. and Ms. Henle both

who testified that A.N.S. told K.H. about the abuse as early as October 2009, before

A.N.S. allegedly became angry with Mr. Trainor. Since Mr. Trainor's testimony implied

that A.N.S. had improper motive and fabricated the charge of abuse, the testimony was

admissible under ER 801 (d)( 1)(ii) as a prior consistent statement. Trial counsel was not

deficient for failing to object and it is not likely that the trial court would have sustained

an objection.

       Mr. Trainor's sixth ineffective assistance argument relates to trial counsel's failure

to include Joseph Lee on the witness list. At trial, E.M.W. testified that she tried to avoid

Mr. Trainor after moving out oftown in 2008. Mr. Trainor wanted Mr. Lee, his half

brother, to testify that in September of2008 he had lunch with E.M.W. who told him she

had been at Mr. Trainor's house and that Mr. Lee had the impression that E.M.W. had

spent the previous night there. However, Mr. Lee was left off of the witness list and he


                                              14 

No. 29429-3-II1
State v. Trainor


was present in the courtroom during most of the trial, including during E.M.W.'s

testimony. The trial court did not allow Mr. Lee to testify.

       The decision whether to call a witness is generally presumed to be a matter of trial

strategy or tactics but this presumption may be overcome by showing that the witness

was not presented because counsel failed to conduct appropriate investigations. State v.

Thomas, 109 Wn.2d 222,230, 743 P.2d 816 (1987). Failing to conduct a reasonable

investigation is considered especially egregious when the uncovered evidence is

exculpatory. In re Pers. Restraint ofDavis, 152 Wn.2d 647, 721, 101 PJd 1 (2004).

       Although the failure to include Mr. Lee on the witness list may have been a

deficient performance, Mr. Trainor has not shown that he was prejudiced by this error.

Mr. Lee's testimony would not have directly impeached E.M.W.'s testimony that she

tried to avoid Mr. Trainor after she moved away. It is not likely that Mr. Lee's testimony

would have affected E.M. W.' s credibility such that the jury would have found the rest of

her testimony suspect. This claim is without merit.

       Mr. Trainor's final ineffective assistance argument is that trial counsel erred by

failing to seek a new trial based on the newly discovered evidence that A.N.S. had

undergone a sexual assault exam. Mr. Trainor acknowledges that trial counsel filed a

motion for a new trial on the grounds that he provided ineffective assistance of counsel,




                                             15 

No. 29429·3·III
State v. Trainor


but he contends that trial counsel should have amended the motion or made an oral

application for a new trial on the basis of the new evidence.

       The record shows that defense counsel did not find out about the sexual assault

exam until the time of sentencing, after the court had denied the motion to arrest

judgment or grant a new trial. Under CrR 7.5(e), a motion for a new trial "shall be

disposed of before judgment and sentence or order deferring sentence." Here, the court

had already ruled on the motion and moved on to sentencing when defense counsel was

alerted to the fact that a sexual assault exam may have been conducted on A.N.S. He

could not amend his motion for a new trial because the court had already disposed of that

motion and moved on to sentencing.

       The claims of ineffective assistance of counsel are without merit.

Prosecutorial Misconduct

       Mr. Trainor next alleges there were two instances of prosecutoriaI error: (1) a

Brady4 violation, and (2) several improper comments during closing arguments. Each is
                          s
addressed in tum below.




       4   Bradyv. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).
       S Mr.Trainor also alleges that the prosecutor committed misconduct by calling
K.H. and Ms. Henle as rebuttal witnesses. As discussed already, K.H. and Ms. Henle
were properly called under ER 801 (d)(1 )(ii), and trial counsel did not object to this
testimony. This argument is without merit.

                                             16 

No. 29429-3-111
State v. Trainor


       The appellant bears the burden of demonstrating prosecutorial misconduct on

appeal. State v. Stenson, 132 Wn.2d 668, 718, 940 P.2d 1239 (1997). The appellant must

establish that the conduct was both improper and prejudicial. Id. Prejudice occurs where

there is a substantial likelihood that the misconduct affected the jury's verdict. Id. at 718­

19. Reversal is not required where the alleged error could have been obviated by a

curative instruction. State v. Gentry, 125 Wn.2d 570, 596, 888 P.2d 1105 (1995).

Moreover, the failure to object constitutes a waiver unless the remark was so flagrant and

ill-intentioned that it evinced an enduring and resulting prejudice that could not have

been neutralized by an admonition to the jury. Id.

       The first argument involves the sexual assault exam that A.N.S. underwent in

February 2010. Mr. Trainor claims that the prosecutor committed a Brady violation and

violated CrR 4.7 when she failed to notify Mr. Trainor of the sexual assault exam or to

provide him a copy of the exam results.

       A Brady violation occurs when: (1) the evidence at issue is favorable to the

accused, either because it is exculpatory or impeaching; (2) the evidence was suppressed

by the State, either willfully or inadvertently; and (3) the evidence is material in the sense

that if it had been disclosed to the defense, there is a reasonable probability that the result

of the proceeding would have been different. Strickler v. Greene, 527 U.S. 263, 281-82,

119 S. Ct. 1936, 144 L. Ed. 2d 286 (1999).


                                              17
No. 29429-3-III
State v. Trainor


       Mr. Trainor has failed to establish a Brady violation because the evidence is not

exculpatory or impeaching, and there is not a reasonable probability that the result of the

trial would have been different had the evidence been disclosed to the defense. Mr.

Trainor has also failed to establish a CrR 4.7(a) violation. Although the prosecutor is

obligated to disclose the results of any physical exams within her possession or control,

the record shows that the prosecutor had no knowledge of the exam until the sentencing

hearing. Since the prosecutor was not in control or possession of the exam results, there

was no CrR 4.7(a) violation.

       Mr. Trainor also claims that the prosecutor made several improper comments

during closing argument. We address each of the challenged comments in turn.

       During closing arguments, alleged misconduct is considered in the context of the

total argument, the evidence addressed therein,jury instructions, and the issues of the

case. State v. Turner, 167 Wn. App. 871, 882, 275 P.3d 356 (2012). A prosecutor is

allowed to draw and express reasonable inferences from the evidence produced at trial.

State v. Hale, 26 Wn. App. 211, 216, 611 P.2d 1370 (1980).

       Mr. Trainor first takes exception to the prosecutor's comment asking the men on

the jury to think about the impropriety of grown men hanging out with teenage girls. The

prosecutor stated: "Now, I want you all to think about something. Especially, you men.

When was the last time you actively made a decision to hang out with a fourteen-year-old


                                             18 

No. 29429-3-III
State v. Trainor


girl?" RP at 605. After defense counsel objected, the prosecutor continued with, "He is a

forty-six year old single man. It makes zero sense. But it makes complete sense when

you look at the evidence of this case. He was grooming her." RP at 606-07. The trial

court issued a curative instruction telling the jury to disregard any argument asking them

to place themselves in the position ofthe defendant.

        The prosecutor made this comment in the context of arguing that Mr. Trainor

groomed the victims. Several of the girls testified that Mr. Trainor spent time with them

doing things like watching movies and taking trips, and that the inappropriate touching

began with him asking them to give him back rubs or rubbing their stomachs. Ms.

Harting testified that this type of touching was typical touching associated with the

concept of grooming. The prosecutor argued the grooming concept by stating that Mr.

Trainor spent all this time with the girls in order to groom them and that there was no

other explanation for why he would choose to spend so much time with young female

relatives. Given the context of the entire argument, the issues in the case, the evidence

addressed in the argument, and the curative instruction given by the court, Mr. Trainor

has not established that the prosecutor erred, let alone that this comment deprived him of

a fair trial.




                                             19 

No. 29429-3-III
State v. Trainor


       Mr. Trainor also alleges that the prosecutor inappropriately offered her own

opinions about how an innocent person would react to the allegations and asked the jury

to think about its emotions as opposed to how Mr. Trainor reacted. 6

       During closing argument, the prosecutor showed the jury part of the taped police

interview of Mr. Trainor. The prosecutor first asked the jury how it thought it would

react during the interview if it was informed it was brought in for allegations of rape of a

child. Defense counsel objected and a side bar followed, where defense counsel

requested a mistrial. He also accused the prosecutor of making facial gestures for the

jury. The trial court advised the prosecutor to make it less personal and tone down the

dramatics. The prosecutor went on to show part of the interview, prefacing it by saying,

"When you watch this interview, generally, think about how one would act when they

have been advised about allegations of Rape of a Child. How would one act? Would

they talk about where they went to high school? Would they talk about what name their

dog is? ... Or would they say, why the heck am I here? Who is making these allegations

against me? I haven't raped anybody." RP at 612.


       6 Mr. Trainor also claims that during the side bar to discuss this improper
comment, the prosecutor made inappropriate facial gestures for the jury. However, the
only evidence of this is defense counsel's statement that "she is making sure that the jury
sees her looking a certain way," and the trial court's admonition to the prosecutor to
"tone it down a little bit, the dramatics." RP at 610-11. Mr. Trainor has not satisfied his
burden of showing the impropriety of the prosecutor's facial gestures or their prejudicial
effect.
                                             20
No. 29429-3-111
State v. Trainor


       A jury may consider whether conduct on the part of an accused person is not likely

to be the conduct of a person who was conscious of his innocence or tends to show an

indirect admission of guilt. State v. McGhee, 57 Wn. App. 457, 461,788 P.2d 603

(1990). It is improper for a prosecutor to express a personal opinion about the credibility

ofa witness during closing argument. State v. Reed, 102 Wn.2d 140, 145,684 P.2d 699

(1984). Testimony regarding a defendant's statements and demeanor is not opinion and

therefore is admissible if relevant. State v. Day, 51 Wn. App. 544, 552, 754 P.2d 1021

(1988).

       At trial, the State played Mr. Trainor's entire police interview for the jury. The

prosecutor could properly ask the jury to consider whether Mr. Trainor's conduct was the

conduct of a person who was conscious of his innocence. The trial court issued a

curative instruction for the jury to ignore any argument made by the prosecutor that asked

jury members to place themselves in the position of Mr. Trainor. Given the evidence

addressed in this argument and the court's curative instruction, Mr. Trainor has not

established that this comment constituted prosecutorial misconduct.

       Mr. Trainor's final argument regarding the prosecutor's closing remarks is that the

prosecutor distorted the testimony given by Mr. Trainor and suggested to the jury that in

order to acquit Mr. Trainor, it had to believe that the girls were lying. A prosecutor

engages in misconduct by arguing that the jury must conclude that the State's witnesses


                                            21 

No. 29429-3-II1
State v. Trainor


are either lying or mistaken to return a not guilty verdict. State v. Fleming, 83 Wn. App.

209,213,921 P.2d 1076 (1996). The record shows that the prosecutor told the jury that

the girls had no motive to lie but that Mr. Trainor had every motive not to be honest.

However, the prosecutor never told the jury it had to find the girls were lying in order to

acquit Mr. Trainor.

       The claims of prosecutorial misconduct are without merit.

Evidentiary Rulings

       Mr. Trainor contends that the trial court committed error in four of its evidentiary

rulings. Evidentiary rulings are reviewed for abuse of discretion. State v. De Vincentis,

150 Wn.2d 11, 17,74 P.3d 119 (2003).

       Mr. Trainor first takes issue with the trial court for restricting the number of

photographs the defense could offer into evidence during the cross-examination of

E.M.W. She testified that after leaving town in 2008 she tried to avoid all contact with

Mr. Trainor. On cross-examination, the defense sought to prove that E.M.W. actually

stayed in contact with Mr. Trainor, e-mailing him and sending him photographs. Defense

counsel marked a dozen photographs it planned to admit that E.M.W. had allegedly sent

to Mr. Trainor. The prosecutor objected to the relevance of the photographs and the court

ordered defense counsel to limit the number of photographs because they were




                                             22 

No. 29429-3-II1
State v. Trainor


duplicative. Six photos were submitted to the jury, and defense counsel was allowed to

cross-examine E.M.W. using all of the photographs. 7

       ER 403 provides that relevant evidence "may be excluded if its probative value is

substantially outweighed by the danger of unfair prejudice, confusion of the issues, or

misleading the jury, or by considerations of undue delay, waste of time, or needless

presentation of cumulative evidence." Here, all of the pictures were being admitted to

prove the same thing and several of them were duplicative. The trial court's decision to

admit only some of the pictures was a proper evidentiary ruling pursuant to ER 403.

There was no abuse of discretion.

       Mr. Trainor also contends that the trial court erred with respect to several rulings

relating to the defense witnesses. His initial claim is that the trial court erred in

restricting the number of character witnesses Mr. Trainor could call.

       A defendant may introduce evidence of his character ifit is pertinent to the crime

charged. State v. Kelly, 102 Wn.2d 188, 193-95,685 P.2d 564 (1984). Sexual morality is

considered a pertinent character trait in sexual offense cases. State v. Woods, 117 Wn.

App. 278,280, 70 P.3d 976 (2003). Proof of sexual morality may be made through


       7 Counsel did not designate any ofthe photographs for the purpose of this appeal
and therefore those exhibits are not part of the record before this court. RAP 9 .1 (a); State
v. Jackson, 36 Wn. App. 510,516,676 P.2d 517 (1984). However, the substance of the
photographs is apparent from the record. The photographs were all pictures ofE.M.W.
which were purportedly sent to Mr. Trainor by E.M.W. herself.
                                              23
No. 29429-3-111
State v. Trainor


testimony of a character witness who is knowledgeable about the defendant's reputation

in the community for sexual morality. State v. Callahan, 87 Wn. App. 925, 934, 943

P.2d 676 (1997). A party seeking to admit reputation testimony must lay a foundation

establishing that the witness is familiar with the person's reputation and that his or her

testimony is based on the community's perception of that person in regards to the

pertinent character trait. ld. at 935. The witness's personal opinion is not competent

testimony. Kelly, 102 Wn.2d at 195. The trial court's decision regarding the adequacy of

the foundation necessary to admit reputation evidence is reviewed for an abuse of

discretion. ld.

       Mr. Trainor sought to admit the testimony of six character witnesses. The court

ruled that there was insufficient foundation for three of the witnesses to testifY regarding

Mr. Trainor's reputation for sexual morality. The trial court did not abuse its discretion

in concluding that there was an insufficient foundation for these three witnesses. Two of

them lived in Richland and only occasionally had contacts with people from Benton City;

Mr. Trainor failed to show why either of them would be familiar with his reputation for

sexual morality in Benton City. The trial court also correctly excluded the other

character witness because she was not familiar with Mr. Trainor's reputation for sexual

morality in the community.




                                             24 

No. 29429-3-II1
State v. Trainor


       Mr. Trainor also claims that the trial court erred because it restricted the number of

defense witnesses, improperly preventing him from calling 16 witnesses. However, the

record shows that defense counsel voluntarily chose to call only eight witnesses, and that

the trial court did not restrict the number of defense witnesses. This claim has no merit.

       Additionally, Mr. Trainor contends that the trial judge erred in excluding Mr. Lee

as a defense witness. The decision to allow an unlisted witness to testifY lies within the

sound discretion of the trial court and will not be overturned except for a manifest abuse

of discretion. State v. Funches, 5 Wn. App. 491, 494, 487 P .2d 793 (1971). Here, where

Mr. Lee was not included on the witness list, he was in the courtroom during all of

E.M.W.'s testimony, and his testimony did not directly impeach E.M.W., the trial court

did not abuse its discretion in denying the request to let Mr. Lee testifY.

       The trial court properly limited the photographic evidence and defense witnesses.

Motion/or New Trial

       Mr. Trainor attacks the trial court's denial of his posttrial motion to set aside the

verdict and grant a new trial. The trial court correctly denied the request. There was

sufficient evidence to support the verdict and therefore Mr. Trainor did not demonstrate a

ground for arrest ofjudgment under erR 7.4. He also did not establish any grounds for a

new trial. The trial court did not abuse its discretion.




                                              25 

No. 29429-3-III
State v. Trainor


Statement ofAdditional Grounds

       Mr. Trainor also filed a Statement of Additional Grounds (SAG) in which he

argues five grounds for reversal. The majority of the issues Mr. Trainor raises are issues

that were adequately addressed by counsel and therefore not reviewed again. See RAP

10.l0(a). Mr. Trainor also contends that part ofD.L.S.'s testimony should have been

stricken from the record and that Detective Clarke knowingly committed perjury and his

false testimony prejudiced Mr. Trainor. We will briefly address each of these claims.

       Under ER 611(c), leading questions should not be used on the direct examination

of a witness except as may be necessary to develop the witness's testimony. Mr. Trainor

contends that the prosecutor used leading questions and harassed D.L.S. until she said

what she was supposed to say in response to the question of how Mr. Trainor had touched

her. However, a review of the record shows that D.L.S., who was 11 years old at the time

of trial, did not understand what the prosecutor was asking and the prosecutor rephrased

the same question several times in an attempt to answer the question of whether Mr.

Trainor digitally penetrated D.L.S., which was a necessary element the State had to

prove. Mr. Trainor has failed to show prosecutorial error, ineffective assistance, or trial

court error based on this line of questioning.

       Mr. Trainor also claims that Detective Clarke falseJy testified that E.M.W. and the

other alleged victims never had an opportunity to discuss the case among themselves, and


                                             26 

No. 29429-3-III
State v. Trainor


that as soon as E.M.W. contacted him, she drove directly to his office from her home in

Spokane. However, contrary to those assertions, Detective Clarke never testified as to

whether the victims had a chance to discuss the case prior to talking to him, nor did he

testify that E.M.W. came straight to his office from Spokane. He testified that Ms.

Sanders told him that E.M.W. was en route to the Tri-Cities and wanted to talk to him,

and that E.M.W. showed up at his office at 4:00 that afternoon. Mr. Trainor has not

established that Detective Clarke committed perjury or that the testimony prejudiced him.

       The arguments presented in the SAG are without merit.

      Affirmed.

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

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.



                                                    ,          Korsmo, C.J.

WE CONCUR:



      Brown, 1.




                                            27 

