                                                                                               FILE
                                                                                      COURT OF APPEAL:
                                                                                             DIVISION Li
                                                                                     2014 HAY - 6      Ail 8_ 29
                                                                                     STATE OF WASHINGTON
    IN THE COURT OF APPEALS OF THE STATE OFBWAS                                                           1N
                                                                                                  UT

                                                 DIVISION II

STATE OF WASHINGTON,                                                           No. 43745 -7 -II


                                      Respondent/
                                 Cross -Appellant.


       v.



CHAD ERNEST CHRISTENSEN,                                               UNPUBLISHED OPINION


                                      Appellant/
                               Cross -
                                     Respondent.




       LEE, J. —             Chad Ernest Christensen appeals his conviction of first degree child


molestation, arguing that he received ineffective assistance of counsel because his attorney failed

to object when the State elicted testimony concerning the victim' s truthfulness and the fact of his

arrest and    incarceration. In      a pro se statement of additional grounds (      SAG), Christensen argues


that his trial attorney also was ineffective in failing -o investigate the victim' s use of a sleeping
                                                        t

aid and     its   possible   side effects.   The State cross appeals, arguing that the trial court erred in

concluding that one of Christensen' s prior convictions " washed" and in failing to include it in his

offender score. Because the State did not elicit inadmissible testimony and because any evidence

concerning the victim' s use of a sleeping aid was irrelevant, Christensen did not receive

ineffective       assistance of counsel.     And, because the trial court properly concluded that the State

failed to   prove     that Christensen   committed    his   current offense   before the   washout period   for the
No. 43745 -7 -II




prior conviction expired, it properly calculated his offender score. We affirm the conviction and

sentence.



                                                               FACTS


          During the summer and fall of 2010, Christensen began a romantic relationship with

E. C.,   whom     he had known        since childhood.         At the time, Christensen was living with his infant

daughter in Chehalis,           and   E. C.   and   her four   children were      living   in Vancouver.    E.C. has two


daughters:        I.B.,   who    was    then 8      years   old,       and   A.B., who is two years older than I.B.


Christensen and E. C. married on December 11, 2010, and lived with their children in Onalaska.


             Sometime before the wedding, E.C. and her children stayed with Christensen in his

Chehalis      apartment.      One evening, I.B. and Christensen were in the living room on the couch,

watching television, when Christensen took I.B.' s hand by the wrist and placed it in his pants so

that   she   touched   his   penis.   She took her hand out and eventually went to sleep.

             The next morning, A.B. walked into the bathroom and saw I.B. washing her hands.

When A.B. asked what she was doing, I.B. told her about the touching and said that she was

washing her hands because              she " could still    feel it." Report      of   Proceedings ( RP) ( June ,14, 2012)


at 178. A.B. told I.B. that she needed to tell their mother, E. C., what had happened. I.B. told her


mother that Christensen had taken her hand and placed it in his pants and on his penis.


Christensen had left the apartment by that time, but when E.C. confronted him later with I.B.' s

claims, he denied the allegations. E. C. believed Christensen.

             In September 2011, Christensen and E. C. argued over an unrelated issue, and Christensen


left the home. Christensen told I.B. a few days later that it was her fault that he could not return.




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No. 43745 -7 -II




When I.B. repeated this to her mother, E.C. decided to report the touching incident to Child

Protective Services ( CPS).       E.C. and Christensen eventually filed for divorce.

        I.B. was reluctant to speak with the CPS investigator, Keith Sand, at school, so Sand

arranged for her to speak with investigator Ronnei Jensen at the CPS office. This interview was


audiotaped while Sand and Lewis County Sheriff' s Detective Tom Callas watched and listened

through a two -way mirror. When Jensen asked I.B. what she had told her mother, I.B. asked for

a piece of paper so     that   she could write   it down. I.B. wrote that Christensen " went in bed with


me and I was pretending to fall asleep and he grabbed my hand and took out his weiner [ sic] and

made   my hand touch it        and put   it down his   pants."   Ex. 2.   She then talked about the details of


the incident.   I.B.   gave a consistent    description to her    counselor,   Sandra Ames.   Chehalis Police


Detective Rick Silva subsequently interviewed Christensen, who admitted being on the couch

with I.B., but denied that anything inappropriate had occurred.

        The State charged Christensen by amended information with one count of first degree

child molestation and alleged that he used his position of trust to facilitate the commission of the

offense.   The charging document stated that the molestation took place between September 12,

2009, and October 12, 2011.


        Following a pretrial hearing, the trial court concluded that Christensen' s statements to

Detective Silva were admissible, that I.B. was competent to testify, and that I.B.' s statements to

her sister, her mother, the two CPS investigators and her mental health counselor were


admissible as long as she testified.




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No. 43745 -7 -II




        I.B. was the State' s first witness, and her testimony about the incident was consistent

with   what   she   told her   sister,   mother,   Jensen,     and   Ames.     During her direct testimony, the

following exchange occurred:

        Q. When you talked to your sister and mom that morning, did you tell them the
        truth about what happened?
        A. Yes.


        Q.    The things you told your counselor Sandra, were those things you told the
        truth?
        A. Yes.
        Q. Were these things you told Ronnei the truth?
        A. Yes.


RP ( June     14, 2012)   at    180 -81,    187.    I.B.   denied telling anyone that she had lied about

Christensen, and during cross -examination, she denied telling her aunt and sister that her

allegations were not true. During I.B.' s redirect examination, this exchange occurred:

        Q. Has anyone ever told you what to say about [ Christensen]?
        A. No. They just say tell the truth.
        Q. Who told you that?
        A. My grandma, my mom and so—

        Q. So you understand when the judge had you raise your right hand, you were
        promising to tell the truth?
        A. Yes.
        Q. You understand that?
        A. Yes.
        Q. Is everything you told us here today the truth?
        A. Yes.


RP ( June 14, 2012) at 211, 213.


        The CPS investigators        also   testified for the State,   as    did A.B., E. C., Ames, and Detective


Silva. After questioning Silva about his interview with Christensen, the prosecutor asked about

Christensen' s arrest:




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No. 43745 -7 -II



          Q. Direct your attention                   to December 7, 2011:             Did you make an arrest of the
          defendant on that day?
          A. Yes, I did. He was taken into custody and booked into the Lewis County jail.

RP ( June 15, 2012)             at   353 -54.       Silva' s interview with Christensen was published for the jury, as

was Jensen' s interview with I.B.


          E. C.'   s   sister   testified      for the defense that I.B., A.B., and E. C. had told her that I.B.' s


allegations        were    false.        Detective Callas testified that E.C. did not initially believe I.B.' s

allegations, and Christensen' s sister testified that E.C. had told her that Christensen was " going

to pay" for    leaving her            and    her    children.   RP ( June 15, 2012)         at   363.   Christensen testified that


E. C.   confronted       him     about      I.B.'   s allegations a   few   weeks     before the    couple married.     He denied


any inappropriate touching.

           The trial court instructed the jury that to find Christensen guilty, it had to find that he

committed      the      offense       between September 12, 2009,                   and   October 12, 2011.        The jury found

Christensen guilty and also found that he had used his position of trust or confidence to facilitate

the commission of the offense.



           At sentencing, the State noted that there was an issue concerning Christensen' s offender

score.     Christensen had four                 prior   offenses.      RP 505.       The parties agreed that the first three


convictions counted for a total of 6 points, but they disagreed about adding 1 point for the fourth

conviction of second                 degree   unlawful possession of a              firearm.     Christensen was released from


confinement         for this     class   C    felony    on   July   20, 2006. The applicable washout period expired on


July 20, 2011, which fell within the charging period for Christensen' s current offense included in

the information and the " to convict" instruction. The State argued that the evidence showed that


the     molestation occurred             before Christensen           and   E. C.   married      in 2010   and   before the firearm.
No. 43745 -7 -II




conviction washed, but Christensen argued that because the jury did not find that he committed

his current offense on a specific date before the washout period expired, his firearm conviction

should       not   count.   The trial   court   agreed   that the firearm   conviction   washed.   Based on an


offender score of 6, the trial court imposed an underlying sentence of 114 months, plus 18

months for the aggravator, for a total sentence of 132 months to life. 1

             Christensen appeals his conviction, arguing that he received ineffective assistance of

counsel.       The State cross appeals Christensen' s sentence, arguing that the trial court erred in

calculating Christensen' s offender score.

                                                     ANALYSIS


A. INEFFECTIVE ASSISTANCE OF COUNSEL


             Christensen contends that he received ineffective assistance of counsel because • his


attorney failed to object when the State elicited testimony from I.B. about her truthfulness as

well as testimony from Detective Silva about Christensen' s arrest and incarceration. Christensen

adds in his SAG that his attorney was ineffective because he failed to investigate I.B.' s use of

melatonin and offer expert testimony about its side effects.

             Whether a defendant received ineffective assistance of counsel is a mixed question of law


and fact that we review de novo. State v. McLean, 178 Wn. App. 236, 246, 313 P. 3d 1181, 1186

    2013),   review   denied, 179 Wn.2d 1026 ( 2014).           To prove ineffective assistance of counsel, a


defendant must show ( 1) that his counsel' s performance was deficient and (2) that the deficient




1
    With an offender score of 6, the standard range was 98 -130 months; with a score of 7, the range
would be 108 -144 months. RCW 9. 94A.510.




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No. 43745 -7 -II



performance was prejudicial            to defendant'     s   case.    State v. Hendrickson, 129 Wn.2d 61, 77 -78,


917 P. 2d 563 ( 1996).          A failure to satisfy either prong is fatal to a claim of ineffective assistance

of counsel. McLean, 178 Wn. App. at 246.

         When determining whether counsel' s performance was deficient, we begin with a strong

presumption          of counsel' s   effectiveness.     State v. McFarland, 127 Wn.2d 322, 335, 899 P. 2d


1251 ( 1995).          Counsel' s performance is deficient if it falls below an objective standard of


reasonableness and cannot            be    characterized as    legitimate trial strategy   or   tactics.   State v. Kyllo,


166 Wn.2d 856, 863, 215 P. 3d 177 ( 2009).                           Prejudice occurs when there is a reasonable


probability that the trial' s result would have differed had the deficient performance not occurred.

Hendrickson, 129 Wn.2d at 78.


         We now apply these standards to Christensen' s three claims of ineffective assistance of

counsel.




         1.    I.B.' s Truthfulness


         Christensen argues that his attorney should have objected when the State elicited I.B.' s

testimony that she was telling the truth. He contends that because I.B.' s credibility was the main

issue   at    trial,   defense counsel was ineffective in failing to object to the prejudicial and

inadmissible testimony that the State introduced to bolster her credibility.

         To support his claim of error, Christensen cites to cases holding that it is improper for a

prosecutor      to   ask a witness    to   testify   about   the credibility   of another witness.     See, e. g, State v.

Jerrels, 83 Wn.          App.    503, 507, 925 P. 2d 209 ( 1996) (           misconduct    occurs when prosecutor' s




cross examination seeks to compel a witness' s opinion as to whether another witness is telling

the truth); State        v.          Bravo, 72 Wn.
                              Suarez -                       App.     359, 366, 864 P. 2d 426 ( 1994) (       misconduct




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No. 43745 -7 -II




occurred when prosecutor repeatedly attempted to get defendant to call the police witnesses

liars).        Weighing the credibility of the witnesses is the jury' s province; witnesses may not

express        their   opinions on whether another witness          is telling the truth. State v. Casteneda -
                                                                                                             Perez,


61 Wn. App. 354, 360, 810 P.2d 74, review denied, 118 Wn.2d 1007 ( 1991).

               In asserting that a witness may not testify about her own credibility, Christensen cites

State     v.   Reed, 102 Wn.2d 140, 684 P. 2d 699 ( 1984).                 This case does not support Christensen' s


assertion. Instead, it stands for the proposition that an attorney may not assert his personal belief

in the credibility of the witnesses or the accused' s guilt. Reed, 102 Wn.2d at 145 -46.

               Christensen cites no authority that directly supports his claim of error, perhaps because it

is unassailable that a witness may be asked and may testify as to whether her testimony is

truthful.        Indeed, such a statement is made every time a witness takes the stand and declares

under oath or affirmation that she will testify truthfully, as required under ER 603.

               Christensen is   correct   that this   case    turned   on   the   victim' s   credibility.    Consequently,

both      parties questioned      I.B.   about   her veracity.      In addition, defense counsel called witnesses


who       testified that I.B.     had     recanted    her   allegations,    that E. C.   did not initially believe her

daughter'        s accusation, and   that   E. C.    wanted   Christensen to " pay" for          leaving     her.   Instead of


calling attention to I.B.' s assertions of truthfulness by objecting, defense counsel sought to

undermine          those   assertions with substantive evidence.            Thus, defense counsel' s failure to object


to the State' s questioning of I.B. can be characterized as a legitimate trial strategy that defeats a

claim of deficient performance.


               Christensen has failed to cite any authority that establishes I.B .' s testimony about her

truthfulness was inadmissible. Counsel' s failure to object to evidence cannot prejudice the




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No. 43745 -7 -II



defendant      unless   the trial   court would    have    ruled   the   evidence   inadmissible. McLean, 178 Wn.


App.   at   248.    Here, Christensen has failed to show that I.B.' s testimony about her own veracity

was inadmissible. Accordingly, Christensen' s claim fails.

            2. Christensen' s Arrest and Incarceration


            Christensen next argues that Detective Silva' s testimony about arresting him and taking

him to jail constituted improper opinion testimony as to Christensen' s guilt. Christensen cites to

no authority supporting his contention that the fact of arrest is categorically inadmissible.

            We recently rejected a similar claim after observing that the defendant had cited no

authority stating that the fact           of an arrest   is categorically inadmissible.        McLean, 178 Wn. App.

at   249.    We also distinguished the same two cases on which Christensen relies to support his


claim of error. McLean, 178 Wn. App. at 249 ( citing Warren v. Hart, 71 Wn.2d 512, 429 P. 2d

873 ( 1967);       State v. Carlin, 40 Wn. App. 698, 703, 700 P.2d 323 ( 1985)).

            In Carlin, a police officer testified that a police dog followed a " fresh guilt scent" from

the   scene of a      burglary    to the defendant.       40 Wn.     App.   at   703.   We observed in McLean that


stating that a defendant emitted an objectively ascertainable " guilt scent" was not comparable to

stating the fact      of an arrest.      178 Wn. App. at 249.

            In Warren, defense counsel argued that the jury should find that a driver was not

negligent because police officers decided not to issue a traffic citation at the scene of a car


accident.      71 Wn. 2d     at   517.    As we observed in McLean, the Warren case says nothing about

admitting     evidence    showing the fact       of a criminal     defendant'    s arrest.   178 Wn. App. at 249.

            The fact that Detective Silva added that he took Christensen to jail following his arrest

does not alter our conclusion that Carlin and Warren do not support a claim of deficient.




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No. 43745 -7 -II



performance.       Nor does the timing   of   this   testimony influence   our    decision. Christensen argues


that the question concerning his arrest deliberately came at the culmination of the detective' s

testimony, but this argument overlooks the fact that the prosecutor recalled the detective for

additional questions that had nothing to do with the fact of arrest or incarceration.

         Here, as in McLean, withholding an objection can be characterized as a legitimate trial

tactic that sought to avoid emphasizing the fact of Christensen' s arrest and incarceration.

Furthermore, having failed to establish that this evidence was inadmissible, Christensen again

cannot show prejudice. Christensen' s claim of ineffective assistance of counsel fails.

         3.    Failure to Investigate and Hire Expert


         Finally, Christensen argues in his SAG that he received ineffective assistance of counsel

when his attorney failed to interview the State' s witnesses about the melatonin that I.B. was

taking as a sleeping aid at the time of the incident and failed to hire a medical expert to testify

about its side effects.


         During E.C.' s cross -examination, defense counsel asked about I.B.' s sleeping habits and

whether       E. C. had found it necessary to   give   I.B. any type   of pill.   After the State objected, the


trial court excused the jury, and defense counsel explained that he was referring to E.C. giving

her daughters melatonin for sleep issues, which might have some bearing on the possibility of

dreams    or    nightmares.   Defense counsel had no medical testimony about the side effects of

melatonin to offer, but he planned to have Christensen' s mother testify that melatonin gives her

nightmares.       The trial court explained that any evidence that witnesses take melatonin and have

nightmares would not be admissible absent expert testimony explaining that melatonin causes

nightmares, but it permitted an offer of proof on the issue.




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No. 43745 -7 -II



           Defense   counsel      then   asked    E. C.    about   giving I.B.      melatonin.       She replied that she


occasionally      gives   her    children melatonin without           it   having   any   adverse    effect on   them.   E. C.


could not remember giving I.B. melatonin the night before I.B. made her allegations against

Christensen.       Following this offer of proof, the trial court excluded the melatonin evidence as

irrelevant because there was no evidence that I.B. took melatonin the night before the alleged


incident, no evidence that she was asleep at the time of the incident, and no expert testimony

about melatonin' s        side   effects.     Our record does not disclose the scope of defense counsel' s

pretrial   investigation into I.B.'      s melatonin use.          Because our review is limited to the appellate


record, we decline to consider the issue of whether counsel was ineffective in failing to interview

the State'    s witnesses about      I.B.'   s melatonin use.      State v. Crane, 116 Wn.2d 315, 335, 804 P. 2d


10,   cent.   denied, 501 U. S. 1237 ( 1991).             Furthermore, given the lack of evidence that I.B. used


melatonin the night before she made her allegations, the failure to introduce expert testimony on

the   side effects of melatonin was neither               deficient   nor prejudicial.      Accordingly, Christensen' s

claim fails.


B. OFFENDER SCORE


           The State argues on cross appeal that the trial court erred in concluding that Christensen' s

prior conviction for unlawful possession of a firearm washed for the purpose of calculating his

offender score and standard           sentencing     range and        that resentencing is     required.    When a direct


appeal shows that an incorrect offender score was used to calculate the standard range,


resentencing is required even where the trial court imposed an exceptional sentence, unless the

record     clearly indicates that the sentencing           court would      have imposed the        same sentence   anyway.
No. 43745 -7 -II



State   v.   Ford, 137 Wn.2d 472, 485, 973 P. 2d 452 ( 1999); State v. Parker, 132 Wn.2d 182, 189,


937 P. 2d 575 ( 1997).


             Christensen' s prior conviction for second degree unlawful possession of a firearm is a

class    C    felony.      RCW 9. 41. 040( 2)( b).       Under the      Sentencing        Reform Act ( SRA), this prior


conviction "      shall not be included in the offender score if, since the last date of release from

confinement . . .           the offender    ha[ s]   spent five consecutive years in the community without

committing any             crime   that subsequently       results    in     a   conviction."       RCW 9. 94A. 525( 2)( c).


Christensen        was     released   from    confinement      for the firearm            conviction    on    July    20, 2006.


Consequently,        the five -
                              year     washout period expired on             July   20, 2011.   Christensen was charged


with committing his current offense between September 12, 2009, and October 12, 2011.

             The State argued below, as it does on appeal, that the testimony showed that the touching

incident occurred before E. C. and Christensen married on December 11, 2010, which was before

the    five -
            year   washout period expired.              Defense counsel responded that the State never sought,


and the jury never made, any finding that the offense occurred on a specific date before the

washout        period    expired,   and   that the firearm      conviction          had   washed.     The trial court ruled


without explanation that the offense washed.


             In addressing the State' s argument, we find guidance in Parker, 132 Wn.2d 182.2 In
Parker, the defendant was charged with committing two different crimes within a five -
                                                                                     year



2
    Christensen      asserts   that the   State is equitably estopped from raising this               argument.        We reject
this    assertion,   particularly     where   the State has clearly preserved its claim               of error.      See State v.
Yates, 161 Wn.2d 714, 738, 168 P. 3d 359 ( 2007) (                      declining to apply equitable estoppel after
observing that        no    Washington     case   has   extended     it to   criminal prosecutions),         cert. denied, 554
U. S. 922 ( 2008).           Equitable estoppel requires a statement inconsistent with the claim later




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No. 43745 -7 -II



period.        132 Wn.2d       at   185.     During the fourth year of the charging period, the legislature

amended        the SRA to significantly increase the                 standard ranges             for the   charged crimes.    Parker,


132 Wn.2d         at    185.   At trial, evidence was presented that the defendant committed the acts


throughout the charging             period.        Parker, 132 Wn.2d               at     185.    During closing, the prosecutor

urged the jury to consider the entire charging period; the jury was not asked to specify whether

the   defendant        committed    the    acts after   the    effective         date     of   the penalty    increase.   Parker, 132


Wn.2d     at   185.     The Supreme Court agreed with the defendant that the trial court erred by using

the increased penalties without requiring the State to prove that the crimes occurred after those

penalties      became      effective.      Parker, 132 Wn.2d              at   191. "[    W] hen the crime was committed is a


factual   question which must           be   put   to the   jury."   Parker, 132 Wn.2d at 192, n. 14.


          Christensen' s jury was not asked to specify whether he molested I.B. before the five -
                                                                                                year

washout period expired.              Rather, the "      to convict" instruction required the jury to find that he

committed       the    offense within a      timeframe that          straddled           the   washout     date.   During closing, the

prosecutor discussed the other elements of the crime and then urged the jury to consider the

entire   charging       period: "   that leaves element number 1, that on or about and between September


12, 2009       and     October 12, 2011 — big time            net —   basically from when she turned eight up to the

time it got reported, so we know we' re in that time, the defendant had sexual contact with [ I.B.]."


RP ( June 18, 2012) at 475.




asserted, action by the other party in reliance on that statement, and an injury to that other party
resulting from allowing the first party to repudiate that statement. Yates, 161 Wn.2d at 737 -38.
The application of equitable estoppel against the government is disfavored. Yates, 161 Wn.2d at
738.




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No. 43745 -7 -I1




        In determining a defendant' s sentence, the trial court may consider information that has

been   admitted, acknowledged or proved   in   a   trial. RCW 9. 94A.530( 2).   The State points out that


uncontroverted evidence shows that Christensen committed the molestation before the washout


period for his prior firearm conviction expired. Given the absence of a jury finding on this issue,

however, we see no proof that Christensen committed his current offense before his firearm

conviction washed out.    Consequently, we affirm the trial court' s calculation of the offender

score and the resulting standard range.

         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.




We concur:




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