                                                                                           Filed
                                                                                     Washington State
                                                                                     Court of Appeals
                                                                                      Division Two

                                                                                       July 9, 2019


      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                        DIVISION II
    STATE OF WASHINGTON,                                         No. 51298-0-II

                         Respondent,

          v.

    JOHN MICHAEL BROOKS,                                   UNPUBLISHED OPINION

                         Defendant.


         SUTTON, J. — John M. Brooks appeals his jury trial convictions for two counts of first

degree rape of a child. We hold that under RCW 2.28.150, the trial court had the authority to

permit an adult witness to testify at a Ryan 1 child-hearsay hearing via Skype, 2 that the jury

instructions as a whole ensured that Brooks was not denied his right to a unanimous verdict, and

that defense counsel’s failure to make a contemporaneous objection to the State’s rebuttal

argument was not deficient representation in light of defense counsel’s post-argument objection

and motion for mistrial. We further hold that Brooks’s claims in his Statement of Additional

Grounds for Review3 (SAG) either have no merit or cannot be reviewed because they relate to

matters outside the record. Accordingly, we affirm.


1
    State v. Ryan, 103 Wn.2d 165, 691 P.2d 197 (1984).
2
 “Skype is a live video chat and long-distance voice calling service.” In re Marriage of Swaka,
179 Wn. App. 549, 551 n.1, 319 P.3d 69 (2014).
3
    RAP 10.10.
No. 51298-0-II


                                              FACTS

                                             I. CHARGES

       In April 2016, six-year-old AB was living with her step-grandmother Sherri Brooks in

Washington State because her father, Brooks, had moved to Virginia for a new job. Sherri 4

contacted law enforcement and reported that AB had disclosed that Brooks had been having

inappropriate sexual contact with her.

       The State charged Brooks with two counts of first degree rape of a child–domestic violence.

                 II. MOTION TO PRESENT SKYPE TESTIMONY AT RYAN HEARING

       In January 2017, the State moved to allow AB and her mother Randi, who were then living

in Texas, to testify at the Ryan child hearsay hearing using Skype to avoid unnecessary travel.

Counsel who was standing in for Brooks’s original defense counsel responded that he did not

object to the use of Skype testimony at the Ryan hearing.

       Noting that the Ryan hearing was only an evidentiary hearing, the trial court granted

permission for the Skype testimony “given the distances involved and the nature of the hearing.”

1 Report of Proceedings (RP) (Jan. 10, 2017) at 5. The trial court also commented that “[t]he rules

ha[d] changed to allow the [c]ourt to make this decision.” 1 RP (Jan. 10, 2017) at 5.

       The Ryan hearing was delayed by the departure of Brooks’s original defense counsel and

appointment of new counsel. Seven months after the trial court ruled on the Skype testimony,

Brooks’s new counsel objected to the trial court’s ruling. The trial court characterized this

objection as a motion for reconsideration.



4
  Because Sherri Brooks, AB’s mother Randi Brooks, and Brooks share the same last name, we
refer to Sherri and Randi by their first names to avoid confusion. No disrespect is intended.


                                                 2
No. 51298-0-II


       At a hearing on the motion for reconsideration, defense counsel objected to the use of

Skype testimony by AB, Randi, or AB’s counselor Courtney Each at the Ryan hearing. The State

asserted that Skype was appropriate because the Ryan hearing was merely an evidentiary hearing

and the testimony at this hearing was not “evidence.” 1 RP (Oct. 10, 2017) at 13.

       In addressing witnesses other than AB, the trial court stated,

       I think that case law and the change of the court rule [sic] it’s pretty clear that the
       [c]ourt can make that call based on a number of factors, including convenience to
       the [c]ourt, to the parties, and to the witnesses. Given that these witnesses are
       located, as I recall, in the State of Nevada[,] this is a relatively-short hearing that
       occurs well prior to the trial and makes it rather difficult to—for everybody here
       for both of those (sic).

1 RP (Oct. 10, 2017) at 13.

       The trial court further stated that the witnesses were “some distance away” and the use of

Skype did not change “the process for either party or for the fact finder.” 1 RP (Oct. 10, 2017) at

14. The trial court also noted that Skype still offered Brooks “the full opportunity to question

those individuals; everybody gets not only to hear what they have to say but to see them as they

say it.” 1 RP (Oct. 10, 2017) at 13-14.

                                          III. RYAN HEARING

       AB, Each, Randi, Sherri, and forensic interviewers John Hancock and Samantha Mitchell

testified at the Ryan hearing. Each, AB’s therapist, was the only witness who testified by Skype.

       The trial court ruled that AB was competent to testify. It also ruled that Each, Randi, Sherri,

Hancock, and Mitchell could testify about AB’s statements to them.




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No. 51298-0-II


                                            IV. TRIAL

       At trial, AB, Sherri, Randi, Hancock, Mitchell, and Each testified for the State. Brooks

and his grandmother Beulah Brooks testified for the defense.

A. STATE’S EVIDENCE

       AB testified that Brooks had engaged in numerous separate incidents of sexual contact with

her, including oral sex and penile/vaginal contact.

       Sherri testified about AB’s disclosures, which included statements that Brooks had

engaged in cunnilingus and fellatio with AB, had rubbed his penis against her vagina and against

her butt, and had engaged in intercourse with her. Sherri also testified that around the time of the

disclosures, AB had complained of a sore bottom and crotch. When bathing AB, Sherri observed

that AB’s “crotch was red and raw.” 6 RP (Nov. 1, 2017) at 149. Additionally, Sherri stated that

AB revealed that Brooks made her promise to keep their activities secret and that she (Sherri) had

once overheard Brooks ask AB if their secret was still “safe.” 6 RP (Nov. 1, 2017) at 153.

       Randi testified that AB’s normally “happy, joyful” demeanor changed after living with her

father. 8 RP (Nov. 2, 2017) at 73. Randi removed AB from Washington after learning of the

sexual abuse allegations. AB subsequently disclosed to Randi that Brooks had “had sex” with her.

8 RP (Nov. 2, 2017) at 77. When Randi asked AB what she meant by “sex,” AB had described

vaginal intercourse. 8 RP (Nov. 2, 2017) at 77. AB also revealed that Brooks had “taught her how

to play with [her vagina] and use toys and stuff.” 8 RP (Nov. 2, 2017) at 79. Randi stated that

since AB returned from living with Brooks, AB had been “acting out sexually.” 8 RP (Nov. 2,

2017) at 82.




                                                 4
No. 51298-0-II


       The State played Hancock’s forensic interview with AB for the jury. During the interview,

AB acknowledged that she and her father shared a secret, but she refused to reveal what the secret

was and said that “something will happen” if she revealed the secret. 7 RP (Nov. 1, 2017) at 211.

When it became clear that AB would not answer any more questions, Hancock terminated the

interview.

       The State also played Mitchell’s forensic interview with AB for the jury. In this interview,

AB disclosed to Mitchell that she (AB) had had “[s]ex” with her father and described performing

fellatio on more than one occasion. 8 RP (Nov. 2, 2017) at 26. AB also admitted that she had

once been caught watching pornography on a computer. 8 RP (Nov. 2, 2017) at 48.

       Each testified that AB had consistently disclosed that Brooks had engaged in sexual contact

with her numerous times and that this contact included oral sex and vaginal intercourse. AB also

expressed fear that if her father was not found guilty, he might hurt her or hurt or kill her sister.

Additionally, Each testified that sexual abuse victims can start engaging in “sexually-reactive

behaviors, which would be anything from fondling/masturbation of themselves to using toys to

even touching of other peers or adults within the home.” 8 RP (Nov. 2, 2017) at 158.

       Each also testified that part of her role as a therapist was to help child victims of sex abuse

prepare for trial by allowing them to “process[] how they feel about [going to court] and

overcoming any fears or worries so that they could feel more comfortable with the idea of coming

to court.” 8 RP (Nov. 2, 2017) at 107. Each stated that this process did not include coaching the

child about what to say in court. Instead, the process often included teaching the child about the

role each person plays in court and helping the child find a way to tell his or her story.




                                                  5
No. 51298-0-II


       Each also testified that AB made some of her disclosures while they were working on

making AB more comfortable with going to court. But Each asserted that when AB would start

talking about the abuse, she (Each) would clarify that she was now being the therapist rather than

roll playing with AB about the trial process.

B. DEFENSE EVIDENCE

       Brooks’s grandmother testified that in April 2015, she had discovered AB looking at

pornography on her father’s computer.

       Brooks testified that the family had previously lived in Texas but that he had brought his

daughters to Washington against Randi’s wishes because he was afraid she would try to get

custody of them in Texas. Brooks denied having any sexual contact with AB. He was aware that

his grandmother had discovered AB watching pornography, and he knew that AB had once

inadvertently opened a pornographic website on his computer while trying to look at video on

another cites. But he denied ever intentionally exposing AB to pornography.

       Brooks also testified about his younger daughter, CB. He stated that CB had speech

development issues, that she had difficulty communicating, and that her ability to speak had

improved while she was at preschool and she would possibly be able to start kindergarten on time.

C. CLOSING ARGUMENT

       In closing argument, defense counsel argued that Each’s therapy or Randi caused AB to

become concerned that Brooks might kill CB. The State rebutted this statement with the following

argument:




                                                6
No. 51298-0-II


                 And let’s think about then why it is that over a period of time after [AB’s]
       finally processed her feelings about this man who repeatedly raped her over a year,
       why it is that she’s scared for her little sister? This is a little girl who finally found
       her voice when she spoke with her grandmother after a couple of weeks of living
       there with her. This is a little girl who is finally processing and becoming able to
       talk to you people about it, about her feelings and about what happened to her. This
       is a little girl who has known her sister all her life, she has known that her sister has
       absolutely no voice, is incapable of talking.

                So you ask why it is that she might be scared that the Defendant could do
       this to her little sister? Her sister can’t talk to you about what happened to her, that
       is why. She doesn’t want it to happen to her little sister because no one can defend
       her little sister. She is defending herself. She told you people what happened. She
       was terrified of doing so, and she still was able to tell you that she sucked his penis;
       that his penis went inside her vagina like this.

10 RP (Nov. 3, 2017) at 73-74.

       After the argument, defense counsel objected to the portion of the State’s rebuttal argument

referring to the fact CB “could not tell what happened to her.” 10 RP (Nov. 3, 2017) at 79. Defense

counsel argued that this statement was inflammatory and that it suggested that “something actually

happened to [CB] and that she can’t talk about it.” 10 RP (Nov. 3, 2017) at 79. Commenting that

he was “not really sure what kind of curative instruction could cure that,” defense counsel asked

for a mistrial. 10 RP (Nov. 3 2017) at 79.

       The State responded that the argument was based on the evidence and was rebuttal to

defense counsel’s claim argument that AB is now claiming she’s afraid Brooks is going to kill her

sister. The trial court denied the motion for mistrial.

D. JURY INSTRUCTIONS

       The trial court gave the jury a Petrich5 unanimity instruction stating,



5
 State v. Petrich, 101 Wn.2d 566, 572, 683 P.2d 173 (1984), overruled on other grounds by
State v. Kitchen, 110 Wn.2d 403, 405-06, 756 P.2d 105 (1988).


                                                   7
No. 51298-0-II


               The State alleges that the defendant committed acts of Rape of a Child in
       the First Degree on multiple occasions. To convict the defendant of Rape of a Child
       in the First Degree, as charged in count I, one particular act of Rape of a Child in
       the First Degree must be proved beyond a reasonable doubt, and you must
       unanimously agree as to which act has been proved. To convict the defendant of
       Rape of a Child in the First Degree, as charged in count II, one particular act of
       Rape of a Child in the First Degree must be proved beyond a reasonable doubt, and
       you must unanimously agree as to which act has been proved. You need not
       unanimously agree that the defendant committed all the acts of Rape of a Child in
       the First Degree.

Clerk’s Papers (CP) at 103 (Jury Instruction 11). The trial court also provided the jury with to

convict instructions for each count.

       During its deliberations, the jury submitted the following question to the trial court:

“Instruction 9 mentions Count I, Instruction 10 mentions Count II—with exception of Count I,

Count II they read exactly the same. Instruction 11 reads the same for Count I and Count II. What

is the difference between Count I and Count II.” CP at 87.

       After consulting with the parties, the trial court retracted the original to convict instruction

for Count II and provided the jury with a new to convict instruction for Count II, revised Jury

Instruction 10, that provided in part:

              To convict the defendant of the crime of rape of a child in the first degree
       in Count II, each of the following elements of the crime must be proved beyond a
       reasonable doubt:

              (1) That on, about, or between May 20, 2015 and March 31, 2016, on an
       occasion separate and distinct from Count I, the defendant had sexual intercourse
       with Arianna Brooks.

CP at 102 (emphasis added). The new instruction added the phrase, “on an occasion separate and

distinct from Count I,” to the original instruction. CP at 102.




                                                  8
No. 51298-0-II


       The jury found Brooks guilty of two counts of first degree rape of a child. Brooks appeals

his convictions.

                                           ANALYSIS

                                      I. SKYPE TESTIMONY

       Brooks first argues that the trial court erred when it allowed Each to testify by Skype during

the Ryan hearing. He argues that because there is no criminal rule or other authority allowing for

such testimony, the Skype testimony was not permitted. We disagree.

              A trial court may exercise reasonable control over the orderly presentation
       of argument and evidence. See, e.g., ER 611(a) (granting the court authority to
       make the “presentation effective for the ascertainment of the truth” and to “avoid
       needless consumption of time”); State v. Johnson, 77 Wn.2d 423, 426, 462 P.2d
       933 (1969) (“Because the trial court has a duty to conduct the trial fairly,
       expeditiously and impartially, it has a corresponding power to adopt practices and
       procedures reasonably designed to secure such ends.”). When considering a
       procedure “not regulated or covered by statute, formal rule or precedent,” we
       review in light of that “wide discretion.” Id.

Sanders v. State, 169 Wn.2d 827, 851, 240 P.3d 120 (2010). A trial court abuses its discretion

when it makes a manifestly unreasonable decision or bases its decision on untenable grounds or

reasons. In re Pers. Restraint of Duncan, 167 Wn.2d 398, 402, 219 P.3d 666 (2009). Application

of the wrong legal standard is an abuse of discretion. Duncan, 167 Wn.2d at 403.

       Brooks contends that Each’s Skype testimony in a Ryan hearing was not allowed under

RCW 9A.44.150(1). RCW 9A.44.150(1) establishes when a child witness under the age of

fourteen may testify outside the presence of the defendant and the jury by means of “one-way

closed-circuit television.” Because Each was not a child under the age of fourteen and the trial

court was not addressing the use of “one-way closed-circuit television equipment,” Brooks is

correct that RCW 9A.44.150(1) does not apply here. But the fact RCW 9A.44.150(1) does not



                                                 9
No. 51298-0-II


provide express authority to allow Skype testimony from an adult witness during a Ryan hearing

is not dispositive.

        Brooks’s argument assumes that the trial court must have express authority to permit Skype

testimony during a Ryan hearing, but this assumption is incorrect. Under RCW 2.28.150, the trial

court has authority to adopt “any suitable process or mode of proceeding . . . which may appear

most conformable to the spirit of the laws” in the absence of a statute or rule6 defining a procedure.

Brooks does not cite to, nor can we locate, any authority defining a procedure by which the trial

court may allow any form of two-way audio visual communication to facilitate the appearance and

testimony of an adult, non-victim witness in an evidentiary hearing, such as a Ryan hearing, in a

criminal proceeding. And Brooks does not cite to, nor can we locate, any authority prohibiting

such an accommodation. Thus, under RCW 2.28.150, the trial court had discretion to allow the

Skype testimony if it conformed to the spirit of the laws.

        Where the criminal rules are silent, the civil rules can be instructive as to matters of

procedure. State v. Moen, 129 Wn.2d 535, 540 n.2, 919 P.2d 69 (1996) (citing State v. Hackett,

122 Wn.2d 165, 170, 857 P.2d 1026 (1993); State v. Gonzalez, 110 Wn.2d 738, 744, 757 P.2d 925

(1988)). CR 43(a)(1) demonstrates that the trial court’s decision to allow the Skype testimony is

“conformable to the spirit of the laws.” RCW 2.28.150. Although a civil rule rather than a criminal

rule, CR 43(a)(1) allows the trial court to “permit testimony in open court by contemporaneous

transmission from a different location” for “good cause in compelling circumstances and with




6
 For purposes of RCW 2.28.150, statutes and court rules are treated equally. In re Detention of
Cross, 99 Wn.2d 373, 380-81, 662 P.2d 828 (1983).


                                                 10
No. 51298-0-II


appropriate safeguards.” This rule demonstrates that the law allows certain testimony to be

presented via two-way real-time transmissions.

         Because RCW 2.28.150 allows the trial court to adopt a suitable procedure in the absence

of existing statutes or rules governing such procedure and because allowing the Skype testimony

conforms to the spirit of the law, the trial court did not abuse its discretion in permitting Each’s

Skype testimony at the Ryan hearing.7 Accordingly, this argument fails.

                                        II. JURY UNANIMITY

         Brooks next argues that the trial court’s Petrich instruction deprived him of his right to a

unanimous verdict on each of the charges because the instruction did not advise the jury that it had

to base Count II on a particular act that was different from the particular act supporting a conviction

on Count 1. This argument fails because Brooks reads the Petrich instruction in isolation.

         We review jury instructions as a whole to determine whether the instructions properly

inform the jury of the applicable law, are not misleading, and allow the parties to argue their

theories of the case. State v. Embry, 171 Wn. App. 714, 756, 287 P.3d 648 (2012). We review

the adequacy of jury instructions de novo. Embry, 171 Wn. App. at 756.

         Although the Petrich instruction did not require that the jury predicate Count II on an act

separate and distinct from the act that was the basis of Count I, the trial court’s revision to the to

convict instruction for Count II, revised jury instruction 10, expressly stated this requirement.

Reading the revised instruction 10 together with the Petrich instruction, these two instructions




7
    We do not address whether Skype testimony by an expert would be proper in a criminal trial.


                                                  11
No. 51298-0-II


required the jury to unanimously find two separate and distinct acts. Accordingly, this argument

fails.

          III. INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM: FAILURE TO TIMELY OBJECT

         Brooks next argues that he received ineffective assistance of counsel when defense counsel

failed to timely object to the State’s rebuttal argument, which he asserts implied that he had also

sexually molested CB or that the jury would be placing CB in danger if it did not convict him.

This argument fails.

A. PRINCIPLES OF LAW

         To prevail on a claim of ineffective assistance of counsel, Brooks must show that defense

counsel’s performance was deficient and that the deficient performance was prejudicial. State v.

Humphries, 181 Wn.2d 708, 719-20, 336 P.3d 1121 (2014) (citing Strickland v. Washington, 466

U.S. 668, 687-88, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). Counsel’s performance is

deficient if it falls “‘below an objective standard of reasonableness.’” State v. Grier, 171 Wn.2d

17, 33, 246 P.3d 1260 (2011) (quoting Strickland, 466 U.S. at 688).

         Brooks bears the burden of establishing, based on this record, deficient performance and

must overcome “‘a strong presumption that counsel’s performance was reasonable.’” Grier, 171

Wn.2d at 33 (quoting State v. Kyllo, 166 Wn.2d 856, 862, 215 P.3d 177 (2009)); see also Grier,

171 Wn.2d at 29; State v. Linville, 191 Wn.2d 513, 524-25, 423 P.3d 842 (2018) (citing State v.

McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995)). A failure to demonstrate either deficient

performance or prejudice defeats an ineffective assistance claim. Kyllo, 166 Wn.2d at 862.




                                                 12
No. 51298-0-II


B. NO DEFICIENT PERFORMANCE

       Brooks contends that defense counsel failed to timely object to the State’s rebuttal

argument, which Brooks asserts implied that he had also sexually molested CB or that failing to

convict him would place CB in danger. Brooks is correct that defense counsel did not lodge a

contemporaneous objection and that he objected only after the State’s rebuttal was over. But

Brooks cites no authority establishing that a motion for a mistrial following closing argument,

rather than a contemporaneous objection, is not a reasonable approach to improper argument.

Moving for mistrial following the prosecutor’s closing argument can be a reasonable decision. See

State v. Lindsay, 180 Wn.2d 423, 430-31, 326 P.3d 125 (2014) (motion for mistrial following

closing argument preserves challenges to prosecutorial conduct).

       Additionally the record here gives us insight into why defense counsel did not make a

contemporaneous objection. Defense counsel explained that he did not think that a curative

instruction would adequately address the challenged argument.             Given this, making a

contemporaneous objection would risk drawing even more attention to the challenged argument

without any benefit. Because defense counsel had a reasonable tactical basis for delaying his

objection, Brooks does not establish ineffective assistance on this ground.

                                            IV. SAG

       In his SAG, Brooks raises several additional ineffective assistance of counsel claims,

contends that he was denied his right to counsel during a portion of the proceedings, and asserts

several prosecutorial misconduct claims. These claims either fail or we cannot address them.




                                                13
No. 51298-0-II


A. ADDITIONAL INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS

1. Failure To Investigate or Call Expert Witnesses

       Brooks asserts that he received ineffective assistance of counsel based on defense counsel’s

failure to investigate whether the defense could present testimony from a medical examiner and a

“childhood memory expert.” SAG at 2. This claim involves matters that are outside the record

and are therefore only reviewable in a personal restraint petition. State v. McFarland, 127 Wn.2d

322, 338, 899 P.2d 1251 (1995). Accordingly, we do not address this claim.

2. Failure To Call Material Witness

       Brooks next contends that defense counsel failed to call Brooks’s father, whom Brooks

characterizes as a material witness. Based on this record, this claim fails.

       “Generally, the decision to call a witness will not support a claim of ineffective assistance

of counsel.” State v. Thomas, 109 Wn. 2d 222, 230, 743 P.2d 816(1987); see also State v. Davis,

174 Wn. App. 623, 639, 300 P.3d 465 (2013). “A defendant can overcome this presumption by

showing that counsel failed to adequately investigate or prepare for trial.” Davis, 174 Wn. App.

at 639. But to overcome the presumption that defense counsel’s failure to call a witness is a

legitimate tactical decision, the record before us must demonstrate that the decision not to call the

witness was not a legitimate trial tactic. See Linville, 191 Wn.2d at 524-25 (citing McFarland,

127 Wn.2d at 335).

       The record shows that defense counsel listed Brooks’s father as a potential witness but did

not call Brooks’s father to testify at trial. But in his statement to the court at sentencing, Brooks’s

father stated that defense counsel did not have him testify “because of one element that [Brooks’s

father] said definitely happened.” Thus, the record explains why defense counsel did not call



                                                  14
No. 51298-0-II


Brooks’s father as a witness. Not calling a witness because that witness’s testimony would prove

part of the offense or corroborate harmful evidence is a reasonable trial tactic. Because the record

reveals a reasonable trial tactic, this ineffective assistance of counsel claim fails.

3. Intentional Failures To Object

        Brooks next argues that he received ineffective assistance of counsel because defense

counsel was intentionally “neglect[ing] his duties” in order to set up opportunities for a successful

appeal. SAG at 3. Brooks specifically notes that defense counsel told him that this was his intent

and that defense counsel said he had intentionally failed to object to a “vague” or confusing jury

instruction and failed to object to the State’s rebuttal argument during argument. SAG at 3. But

what defense counsel told Brooks is outside the record. Accordingly, we cannot address this claim.

B. DENIAL OF RIGHT TO COUNSEL

        Brooks next asserts that he was denied his right to counsel during a critical stage of his trial

when his first defense counsel withdrew in March 2017, shortly before the originally scheduled

Ryan hearing and trial. Brooks claims that due to this withdrawal, he did not have counsel for

three weeks, he was forced to agree to waive his speedy trial rights, and his new counsel’s need to

conduct his own investigation allowed more time for AB to be “manipulate[d].” SAG at 5.

        The record shows that Brooks’s first counsel was replaced sometime before July 11, 2017,

but we have no record related to when Brooks’s first counsel withdrew and when defense counsel

was appointed. Nor do we have the record regarding all of defense counsel’s investigations.

Accordingly, this issue involves matters outside this record, and we cannot address it on appeal.




                                                  15
No. 51298-0-II


C. PROSECUTORIAL MISCONDUCT

1. Charging Decision

       Brooks contends that the State engaged in prosecutorial misconduct by demonstrating

“[p]artiality in pressing charges.” SAG at 6. He appears to assert that the prosecutor pursued the

two charges despite a lack of evidence.

       “Prosecuting attorneys are vested with great discretion in determining how and when to

file criminal charges.” State v. Korum, 157 Wn.2d 614, 625-26, 141 P.3d 13 (2006). And the

record clearly establishes that the evidence was sufficient to convict Brooks on two counts of first

degree child molestation. Accordingly, this claim has no merit.

       To the extent that Brooks is claiming that there was insufficient evidence to support the

charges when they were originally filed, the record does not contain any information disclosing

what evidence the prosecutor originally relied on when deciding to bring the charges.

Accordingly, we cannot address this claim.

2. “False Pretense”

       Brooks further contends that the prosecutor engaged in misconduct because he “us[ed]

false pretense to” obtain a waiver of speedy trial based on the unavailability of a witness. SAG

at 6. Brooks refers to a mid-January 2017 continuance.

       The only record from January 2017 before us relates to a motion to continue the Ryan

hearing based on Brooks’s original defense counsel being in trial and a motion to use Skype to

present testimony at the Ryan hearing. Because there is nothing in the appellate record related to

a waiver of speedy trial based on the unavailability of a witness for the Ryan hearing, we cannot

address this claim.



                                                16
No. 51298-0-II


3. Closing Argument

       Brooks contends that the prosecutor’s closing argument suggesting that there were

“additional victims” or that he had also raped CB was an appeal to the jury’s passion and prejudice

and amounted to prosecutorial misconduct. SAG at 6. Brooks misconstrues the State’s argument.

The State argued that AB was afraid that if Brooks was not convicted, he might harm CB and that

CB would be unable to disclose that harm, not that there were other victims or that Brooks had

already harmed CB. Accordingly, this claim fails.

4. Cumulative Prosecutorial Misconduct

       Finally, Brooks argues that these alleged instances of prosecutorial misconduct, viewed

cumulatively, demonstrate that the prosecutor was attempting to “win at all costs,” and that

reversal is warranted. SAG at 6. Because Brooks fails to show that any of the alleged instances

of misconduct amounted to prosecutorial misconduct or we are unable to examine these claims

based on the record, the cumulative prosecutorial misconduct claim fails.

                                         CONCLUSION

       We hold that under RCW 2.28.150, the trial court had the authority to permit the Skype

testimony, that the jury instructions as a whole ensured that Brooks was not denied his right to a

unanimous verdict, and that defense counsel’s failure to make a contemporaneous objection to the

State’s rebuttal argument was not deficient representation in light of the post-argument objection




                                                17
No. 51298-0-II


and motion for mistrial. We further hold that Brooks’s claims in his SAG either have no merit or

cannot be reviewed because they relate to matters outside the record. Accordingly, 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.



                                                    SUTTON, J.
 We concur:



 MAXA, C.J.




 MELNICK, J.




                                               18
