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                                                                                                COURT* OF APPEALS
                                                                                                       DIVISION 11

                                                                                               2D15JUL 2 kAN 9: 27
                                                                                               S {. AAk-
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    IN THE COURT OF APPEALS OF THE STATE OF WASHI]

                                              DIVISION II


 STATE OF WASHINGTON,                                                            No. 46026 -2 -II


                                    Respondent,


        V.




 MICHAEL REUBEN HORST,                                                UNPUBLISHED OPINION


                                    0

       WORSWICK, J. —      Michael Horst appeals his conviction for second degree rape of K.H.


Horst argues that his trial counsel provided ineffective assistance by failing to move for a

mistrial after K.H.' s friend provided testimony suggesting K.H.' s allegations were believable.

We affirm.


                                                  FACTS


        During a jury trial for second degree rape of K.H., Bailey Karpa, K.H.' s friend, provided

the following testimony at Horst' s trial:

        Karpa]: [ K.H.] said that [ Horst] that he had raped her.


         The   State]:   Okay.      And— and    you   encouraged [         K.H.]    to— to   contact   law
        enforcement?

         Karpa]: Yes.


         The State] : Can I   ask   why   you encouraged   her to   call   the   police?
No. 46026 -2 -II




        Karpa]: Because I— I feel like,        you   know, that'   s—   that'   s—   that' s   a   pretty— it' s a
       pretty big    claim    to   make    against   somebody      and    you        know, I— if        it really
       happened— if it did -       if it didn' t actually happen, I don' t think she would have gone
       to the   police, you   know? Like it—it       really seemed like she really, really meant
       everything that she had said.
        The State] : Okay.
        Karpa]: There was never a point in the time that I had been with her—
        Trial Court]: I— I'm going to direct the jury to disregard any interpretation of the
       witness as to believability or what another person may have—
        Trial Counsel] : Thank you, Your Honor.
        Trial Court]:—   meant, or the believability of another witness who is scheduled to
       testify here, so the jury will disregard that.

Verbatim Report of Proceedings ( VRP) at 92- 94. Trial counsel did not request a mistrial.


       After Karpa' s testimony, K.H. testified that Horst had raped her and that she had reported

this rape to the police. Additional evidence included Horst' s text messages to K.H., in which he

confessed to raping K.H. and stated that he would lie about raping her:

        Horst]:  Fine I don' t know y I did it I just didn' t have for a long time so my body
        wanted it. I' m soo sorry I didn' t want to have sex with u. Cuz when u said no I got
        it. What u going to do to me u going to call the cops on me?

        I want us friends and I don' t want anyone to know about this please cuz if u tell
        people I will just lie about it.


Ex. 7; see VRP at 127. The jury found Horst guilty of second degree rape. Horst appeals.

                                                 ANALYSIS


        Horst argues he received ineffective assistance of counsel because trial counsel did not

request a mistrial based on Karpa' s testimony conveying that she thought. K.H. would not go to

the police unless her rape claim was true and that K.H. seemed to mean what she said about the


rape. We disagree.




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No. 46026 -2 -II




             Because ineffective assistance of counsel claims present mixed questions of law and fact,


our review is de novo. In re Pers. Restraint ofBrett, 142 Wn.2d 868, 873, 16 P. 3d 601 ( 2001).

The defendant bears the burden of showing both deficient performance and resulting prejudice.

State   v.   Grier, 171 Wn.2d 17, 32- 33, 246 P. 3d 1260 ( 2011); Strickland v. Washington, 466 U. S.


668, 687, 104 S. Ct. 2052, 80 L. Ed. 674 ( 1984).                  Counsel' s performance is deficient if it falls


below an objective standard of reasonableness. State v. Stenson, 132 Wn.2d 668, 705, 940 P. 2d

1239 ( 1997).      To establish prejudice, a defendant must show a reasonable probability that but for

the deficient performance, the result of the proceeding would have been different. State v.

Thomas, 1, 09 Wn.2d 222, 226, 743 P. 2d 816 ( 1987).                  Thus, to show prejudice, Horst must show a


reasonable probability that had trial counsel moved for a mistrial, the trial court would have

granted that motion. See 109 Wn.2d at 226.


             A trial court should grant a mistrial when, viewed in light of all the evidence, the


defendant has suffered prejudice such that nothing short of a new trial will insure that the

defendant receives a fair trial. State v. Rodriguez, 146 Wn.2d 260, 270, 45 P. 3d 541 ( 2002);

State   v.   Thompson, 90 Wn.          App.   41, 47, 950 P. 2d 977 ( 1998).     Whether a remark justifies a


mistrial      depends   on   three   factors: (   1) whether the irregularity was serious enough to materially

affect   the trial'   s outcome, ( 2)    whether the statement in question was cumulative of other


evidence, and ( 3) whether the irregularity could be cured by an instruction to disregard the

remark, an instruction the jury is presumed to follow. State v. Hopson, 113 Wn.2d 273, 284- 86,

778 P. 2d 1014 ( 1989).         Even serious irregularities can be cured by an instruction to disregard.

See State v. Gamble, 168 Wn.2d 161, 178- 79, 225 P. 3d 973 ( 2010).




                                                               3
No. 46026 -2 -II




         Witnesses may not testify to their opinion of the victim' s credibility because this

impermissibly infers the witness' s opinion of the defendant' s guilt. See State v. Black, 109

Wn.2d 336, 348- 49, 745 P. 2d 12 ( 1987).    Karpa' s testimony conveyed both that she thought

K.H. would not go to the police unless her rape claim was true and that K.H. seemed to mean


what she said. These remarks were improper opinion testimony.. But considering the three

Hopson factors in this case, Karpa' s testimony did not warrant a mistrial

         Regarding the first factor, the seriousness of the testimony, Karpa' s statements did not

comprise an expert diagnosis implying that the victim had been raped, but rather were statements

from a lay witness suggesting that K.H.' s rape allegations seemed believable. Furthermore,

Karpa' s testimony was insignificant compared to the other evidence in the case, namely Horst' s

text messages to K.H. confessing to the rape. These text messages provided overwhelming

evidence of Horst' s guilt, thus minimizing the seriousness of Karpa' s testimony.

         With regard to the second factor, Karpa' s comment was not cumulative of other


evidence. But regarding the third factor, the trial court instructed the jury to disregard the

comment, an instruction the jury is presumed to follow. Karpa' s improper testimony was cured

by the trial court' s sua sponte instruction to the jury to disregard it.

         Thus, we are satisfied through our analysis of the Hopson factors, and viewing the

improper testimony in light of all the evidence, that Horst has failed to show a reasonable

probability that had trial counsel moved for a mistrial, the trial court would have granted that

motion. Thus, Horst has failed to show prejudice,. and his ineffective assistance of counsel claim


fails.




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No. 46026 -2 -II




        We affirm.


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

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


2. 06. 040, it is so ordered.




                                                                       Worswick, J.
 We concur:




 JHanson, C. J.




 Melnick, J.             J




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