                                                             Li 1
                                                                    0:Vj; 7o   K.i if* '^




          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON



STATE OF WASHINGTON,                            NO. 72829-6-

                    Respondent,
                                                DIVISION ONE
                    v.



JAMES ALAN DELONG                               UNPUBLISHED OPINION

                    Appellant.                  FILED: May 23, 2016



      Lau, J. — James DeLong appeals his convictions on one count of second degree

rape, one count of first degree promoting prostitution, one count of second degree

promoting prostitution, and one count of second degree theft. He contends the trial

court erred when it concluded that the rape shield statute prohibited evidence of the

victim's contemporaneous sexual relationship with her boyfriend. DeLong claims this

evidence was relevant to show the victim possessed the mental capacity to consent to

sex. He argues excluding this evidence violated his Sixth Amendment right to present a

defense. DeLong also claims that the prosecutor's statements during closing argument

amounted to misconduct and that defense counsel was constitutionally ineffective for

failing to object to these statements. We conclude the trial court properly excluded
No. 72829-6-1/2



evidence of the victim's alleged sexual relationship with her boyfriend as more

prejudicial than probative and that this did not deprive DeLong of his constitutional right

to present a defense. Even if we assume, without deciding, that the prosecutor's

statements were improper, Delong fails to show incurable prejudice. For similar

reasons, defense counsel's failure to object was not deficient. And DeLong cannot

show that the outcome would have been different but for defense counsel's failure. We

affirm the judgment and sentence.

                                          FACTS

       For a four to five month period during 2013-14, Christina Stark lived with James

DeLong and P.W. in a Federal Way residence. Stark testified that P.W., age 51,

exhibited a diminished mental capacity. For example, Stark explained that P.W. had

many child-like tendencies—she enjoyed watching cartoons, especially Scooby Doo,

she had a large collection of toys and dolls, and she referred to Stark as "mom." Report

of Proceedings (RP) (Nov. 12, 2014) at 5-8. Stark tried to teach P.W. basic skills like

the alphabet, reading, rudimentary math, and how to tell time. She said her attempt to

teach P.W. "wasn't going very well." RP (Nov. 12, 2014) at 4. Despite Stark's efforts,

P.W. could not tell time and could not recite the alphabet on her own. Stark testified

that DeLong also had a close relationship with P.W. She said they did "art stuff" and

went to movies. RP (Nov. 12, 2014) 10. She described their relationship as "like

daughter and father." RP (Nov. 12, 2014) at 10.

       Although P.W. usually stayed at the Federal Way residence, she occasionally

spent the night at her boyfriend Tim's house. Throughout February and March of 2014,

Stark noticed that P.W. was spending more and more time at Tim's house. Eventually,

                                           -2-
No. 72829-6-1/3



Stark asked P.W. why she was spending more time away from the Federal Way house.

After this conversation, Stark confronted DeLong and accused him of being a pedophile:

      [STATE]:       What was [DeLong's] response to you calling him a
                     pedophile?
      [Stark]:       He said, "With children?" And I said yes, [P.W.] was a child.
                     And he said, "I don't mess with children. What I do with
                     [P.W.] is none of your business."

RP(Nov. 12, 2014) at 16.

       Stark took P.W. to the Federal Way Police Department four days later. Stark and

P.W. spoke with Detectives Richard Kim and Adrienne Purcella. Detective Kim testified

that P.W. was difficult to understand and that "[s]he wasn't functioning as a normal

adult." RP (Nov. 4, 2014) at 56. He explained that P.W. could not perform basic

cognitive tasks:

       [Det. Kim]:   A normal adult of her age would be able to read, write, spell,
                     understand, and have a decent conversation with an adult,
                     and [P.W.] did not have that interaction with us. When we
                     asked her questions of her birthdate, her age, we asked her,
                     her ABC's, we didn't get a response, a quick enough
                     response. And it appeared that she was delayed to some
                     degree.

RP (Nov. 4, 2014) at 58-59. The investigating detectives were unable to get meaningful

information from P.W. After interviewing Stark, Detectives Kim and Purcella went to the

Federal Way residence to interview DeLong. He agreed to return to the police station

with them.


       At the police station, Detective Kim informed DeLong that he was not in custody

and that he was free to leave at any time. Detective Purcella read DeLong his Miranda1

rights. Delong stated that he understood his rights and was willing to answer the

       1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L Ed. 2d 694 (1966).
                                          -3-
No. 72829-6-1/4



detectives' questions. DeLong denied any sexual relationship with P.W. He later

admitted digital and genital penetration with P.W. "about 40 [or] 50 times." Exhibit (Ex.)

14. DeLong believed the sex with P.W. was consensual despite what he called her

"learning disability": "I have not done anything wrong. [P.W.] is a mature woman when

it comes to sex and I'll say it over and over and over again." Ex. 14.

       DeLong also admitted to receiving payment for transporting P.W. and another

woman to the Gig Harbor home of his friend, Marvin Douglass. He told the detectives

that he brought the girls to Douglass to have sex with him, but the payment he received

from Douglass was simply to cover transportation costs:

              [Det. Purcella]:     So I mean you knew they had sex.
              [DeLong]:            Uh huh.
              [Det. Purcella]:     Yeah. Okay.
              [DeLong]:            Yeah.
              [Det. Kim]:          Was the understanding did [P.W.] know that's why
                                   she was gonna go out there?
              [DeLong]:            Uh huh.
              [Det. Kim]:          She did. That she was gonna specifically go there to
                                   have sex with Marv [Douglass]? You're nodding your
                                   head, yes.
              [DeLong]:            Yeah.

              [DeLong]:            Because of [Douglass's] income or what he wants to
                                   give and so I didn't get paid for the girls, I got paid for
                                   transportation.
              [Det. Purcella]:     But you take the girls down there and then you get
                                   paid by him.
              [DeLong]:            Yeah.
              [Det. Purcella]:     And they have sex with him.
              [DeLong]:            Yeah and they have sex.
              [Det. Purcella]:     Okay.
              [DeLong]:            But I'm just being paid for transportation.

Ex. 14. At trial, Douglass testified that DeLong knew he was lonely and that DeLong

offered to "bring somebody over to be company for [him]." RP (Nov. 10, 2014) at 23.


                                           -4-
No. 72829-6-1/5



DeLong told police that Douglass was "a friend ... and he wanted some female

companionship." Ex. 14. Douglass said he occasionally gave the women food and

small amounts of money, but he paid DeLong around $100 per visit to "cover his [travel]

expenses." RP (Nov. 10, 2014) at 24, 30.

       P.W.'s testimony at trial reveals her limited mental capacity. For example, P.W.

could not state her correct age, the current time of day, or her address. She also failed

to correctly recite the alphabet, omitting about 10 letters. Throughout her testimony,

P.W.'s speech impediment required repeating questions and resulted in many

unintelligible responses.

       Nevertheless, P.W. testified that she knew what "sex" means. RP (Nov. 12,

2014) at 167. She explained that pregnancy could result from sex and she knew that

one could contract certain diseases from having sex. P.W. explained that she had been

married in the past and had three children from that marriage. She said she

occasionally had sex with DeLong, but that she did not like it:

              [State]:      ... Did you have [vaginal] sex with Jim [DeLong]?
              [P.W.]:       Yep.

              [State]:      Did you like that?
              [P.W.]:       Uh-uh.
              [State]:      Did you tell him no?
              [P.W.]:       I said no. I didn't want (unintelligible.)
              [State]:      What?
              [P.W.]:       (Unintelligible.)
              [State]:      What was that?
              [P.W.]:       I just said no.
              [State]:      What did you tell him?

              [P.W.]:       No.

              [State]:      ... Are there times when you said yes to having s<
                            Jim [DeLong]?

                                           -5-
No. 72829-6-1/6



              [P.W.]:       Once in a while, but a lot of times (unintelligible).

RP (Nov. 12, 2014) at 178-79. P.W. also explained that DeLong would take her to

Douglass's residence to have sex with him in order to get money:

              [State]:      Did Jim [DeLong] bring you to [Douglass's] place?
              [P.W.]:       Yeah.
              [State]:      Did he tell you why?
              [P.W.]:       To have cash to pay the rent and the phone bill and
                            electric bill.
              [State]:      But you had to what?
              [P.W.]:       Pay the phone bill.
              [State]:      Pay the phone bill. Did [DeLong] tell you what you
                            were suppose to do when you went to [Douglass's]?
              [P.W.]:       Have sex with him and I don't like.
              [State]:      Did you want to?
              [P.W.]:       Uh-uh.

RP(Nov. 12, 2014) at 182.

       P.W. also provided some testimony about Tim Blakeny2 her alleged boyfriend.

P.W. stated that she had lived with Blakeny on and off for five years and that she was

currently living with him at the time of the trial. Throughout her testimony, P.W. referred

to Blakeny as her "friend," her "playmate," and her "boyfriend." RP (Nov. 12, 2014) at

151; RP (Nov. 13, 2014) at 25. P.W. also testified that Scooby Doo was her boyfriend.

Both DeLong and Stark were aware of P.W.'s relationship with Blakeny. Detective

Purcella testified that she knew P.W. considered Blakeny as her boyfriend, but

Detective Purcella made no contact with him.

       On February 21, 2014, the State charged DeLong on one count of second

degree rape, one count of first degree promoting prostitution, and one count of second

       2 The record contains two different variations of Tim's last name. Some parts of
the record refer to P.W.'s boyfriend as Tim Blakely, other parts refer to him as Tim
Blakeny. Generally, the attorneys and the trial court referred to him as Tim Blakeny, so
we use that iteration.

                                             -6-
No. 72829-6-1/7



degree promoting prostitution. The State later added one count of second degree theft.

To support the second degree rape charge, the State alleged that DeLong "did engage

in sexual intercourse with another person [who] was incapable of consenting to sexual

intercourse by reason of being mentally incapacitated," a violation of RCW

9A.44.050(1)(b) and (f)(i). Accordingly, the to-convict instruction required as an element

"that the sexual intercourse [with DeLong] occurred when P.W.... was incapable of

consent by reason of being mentally incapacitated." Clerk's Papers (CP) at 50. The

jury instructions defined mental incapacity as "a condition existing at the time of the

offense that prevents a person from understanding the nature or consequences of the

act of sexual intercourse whether that condition is produced by illness, defect, the

influence of a substance, or by some other cause." CP at 52.

       Before trial, DeLong sought to introduce evidence of P.W.'s consensual sexual

relationship with her boyfriend to rebut the State's allegation that P.W. lacked the

mental capacity to consent. Consistent with RCW 9A.4A.020—the "rape shield"

statute—DeLong requested a hearing outside the presence of the jury to examine P.W.

regarding her relationship with Blakeny. The trial court denied DeLong's motion and

excluded any evidence of P.W.'s sexual relationship with Blakeny. The trial court

concluded that DeLong's offer of proof was insufficient to justify a hearing on the issue

and that the rape shield statute prohibited the evidence because it was not probative of

P.W.'s mental capacity to consent.

       A jury convicted DeLong on all counts. DeLong appeals.




                                           -7-
No. 72829-6-1/8



                                         ANALYSIS

       Standard of Review

       This court reviews a trial court's decision to admit or exclude evidence for an

abuse of discretion. State v. McDonald. 138 Wn.2d 680, 693, 981 P.2d 443 (1999). A

court abuses its discretion when it makes a manifestly unreasonable decision or bases

its decision on untenable grounds or reasons. In re Pet, of Duncan. 167 Wn.2d 398,

402, 219 P.3d 666 (2009).

       A defendant's claim that the trial court violated his Sixth Amendment right to

present a defense is reviewed de novo. State v. Jones. 168 Wn.2d 713, 719, 230 P.3d

578(2010).

       Evidence of P.W.'s Sexual Behavior

       DeLong argues the trial court erred when it concluded that the rape shield statute

prohibited evidence of P.W.'s sexual activity with her boyfriend, Tim Blakeny. We

disagree.

       The rape shield statute requires a defendant to submit "[a] written pretrial motion

... stating that the defense has an offer of proof of the relevancy of evidence of the past

sexual behavior of the victim       " RCW 9A.44.020(3)(a). "If the court finds that the

offer of proof is sufficient, the court shall order a hearing out of the presence of the jury"

to determine whether the proffered evidence is admissible. RCW 9A.44.020(3)(c).

Before a trial court holds a hearing to determine whether the evidence is admissible, the

defendant must show relevance. DeLong's initial offer of proof contained a single

sentence: "In this case, defense represents that [P.W.] has had and continues to

engage in sexual activities with her 'boyfriend' Tim Blakeny." CP at 16. The trial court

                                           -8-
No. 72829-6-1/9



denied DeLong's motion for a hearing under the rape shield statute. It concluded this

offer of proof was insufficient because P.W.'s capacity to consent to sex was irrelevant.

      We conclude the trial court properly determined that DeLong failed to meet his

burden to show relevance. In State v. Summers. 70 Wn. App. 424, 853 P.2d 953

(1993), we held that evidence of the victim's prior sexual acts was irrelevant to show

that the victim had the mental capacity to consent to sex. Summers. 70 Wn. App. at

434-35. The facts in Summers are nearly identical to this case. In Summers, the State

alleged the defendant committed second degree rape when he had sexual intercourse

with a woman who lacked the mental capacity to consent. Summers. 70 Wn. App. at

430-31. The defendant sought to introduce evidence of the victim's prior sexual acts to

demonstrate that she possessed the mental capacity to consent to sexual acts.

Summers. 70 Wn. App. at 432. The trial court excluded this evidence and we affirmed.

We reasoned that evidence of prior sexual acts was irrelevant to demonstrate the

victim's capacity to understand those sexual acts:

       Evidence of past sexual encounters does not necessarily show
       understanding of the nature and, even more clearly, the consequences of
       sexual intercourse, such as pregnancy or disease. The court's statement
       that the evidence was not probative is, of course a different way of saying
       that the evidence was not relevant. The best evidence of [the victim's]
       capacity to understand is her testimony. Whether she gained knowledge
       from prior sexual experience or otherwise is unimportant, the issue is her
       capacity to understand.

       Where the lack of capacity is based on a permanent, organic condition, it
       logically follows that prior acts of intercourse cannot demonstrate that the
       victim understands the nature and consequences because the prior acts
       may have occurred due to the same lack of capacity. The risk of undue
       prejudice from the admission of such evidence is high, while the benefit to
       the defense is insubstantial.




                                          -9-
No. 72829-6-1/10



Summers. 70 Wn. App. at 434-35. The same reasoning applies here. Evidence of

P.W.'s other sexual encounters is not probative on capacity to consent. As in

Summers, the best evidence of P.W.'s capacity to consent was her own testimony to

show her knowledge of sexual matters and her ability to make decisions. That she may

have had other sexual encounters does not demonstrate a capacity to consent. The

trial court reasonably concluded that the evidence of P.W.'s alleged sexual relationship

with Blakeny was more prejudicial than probative. This is particularly true given the trial

court's broad discretion in balancing the probative value of evidence against its potential

prejudicial impact. See^e^, State v. Rice. 48 Wn. App. 7, 11, 737 P.2d 726 (1987).

       DeLong contends that Summers is distinguishable because P.W. exhibited a

more "sophisticated" understanding of sex than the victim in Summers. Br. of Appellant

at 30. Although P.W. showed some understanding of the nature and consequences of

sexual activity, her capacity was not markedly better than the victim's in Summers. For

example, like P.W., the victim in Summers had a basic understanding of the mechanics

of sex, she knew about AIDS, and she knew that pregnancy could result from sex:

              [The victim's] only knowledge of AIDS was that "fw]hen a man puts
       a wiener in you and you get it from them." She knew that "[w]hen a man
       puts a wiener in you and the sperm comes inside of you and you have the
       baby," and thought that a baby "[c]omes out of like your stomach or
       something like that." She defined intercourse as "[w]hen a man holds you
       down and puts a wiener in you, and if they force it in you, if you want it or
       don't want it" and defined sex as "[w]hen a man does something or
       something.

Summers. 70 Wn. App. at 431. This is similar to P.W., who also testified that one could

contract AIDS and get pregnant from having sex. P.W. testified that she had three

children in a previous marriage. She also was aware that she was no longer capable of


                                          -10-
No. 72829-6-1/11



becoming pregnant. In contrast, the Summers court noted that the victim "showed no

understanding that she and Summers engaged in intercourse ... or that she could have

become pregnant or contracted a disease as a result." Summers. 70 Wn. App. at 432.

Like P.W., the victim in Summers showed "confusion as to such fundamental and

elementary facts" like her own age and what time it was. Summers. 70 Wn. App. at

432. Any difference between P.W.'s mental capacity and the Summers victim is

negligible. Excluding evidence of P.W.'s sexual encounters under Summers did not

amount to an abuse of discretion.3

       DeLong also argues that the evidence was relevant to show that various

individuals, including the investigating detectives, knew about P.W.'s relationship with

Blakeny but did nothing to stop it. First, we note that nothing in DeLong's offer of proof

contains any facts supporting this assertion. This evidence is not probative of P.W.'s

capacity to consent. The detectives could have chosen not to investigate Blakeny for


      3 DeLong also argues that the rape shield statute did not apply here, because the
evidence he sought to admit involved contemporaneous sexual acts and not "past"
sexual acts. RCW 9A.44.020(2). We note that it is questionable whether the rape
shield statute would apply to the evidence of P.W.'s allegedly contemporaneous sexual
activity with Blakeny. See State v. Jones. 117 Wn. App. 221, 722-23, 70 P.3d 171
(2003) ("A quick reading of the rape shield statute, however, shows that it applies only
to past sexual behavior... Any reading of the statute that conflates 'past' with 'present'
sexual conduct is tortured."). However, DeLong did not present this argument below,
and we therefore decline to address the issue here. RAP 2.5(a); State v. McFarland.
127 Wn.2d 322, 332-33, 899 P.2d 1251 (1995) ("As a general rule, appellate courts will
not consider issues raised for the first time on appeal."). But even if the rape shield
statute did not apply here, for the same reasons discussed above, the trial court
properly concluded under traditional evidentiary principles that the evidence was
inadmissible as more prejudicial than probative. See State v. Carver. 37 Wn. App. 122,
124, 678 P.2d 842 (1984) (When proffered evidence falls outside the scope of the rape
shield statute, the court "must apply general evidentiary principles of relevance,
probative value and prejudice.").


                                          -11-
No. 72829-6-1/12



several reasons, including, as the State notes, that Blakeny was also developmental^

disabled. The record also shows that DeLong had a fair opportunity to cross-examine

the witnesses regarding their opinions on P.W.'s mental capacity. Evidence that the

detectives or anyone else did nothing in response to P.W.'s alleged relationship with

Blakeny was also more prejudicial than probative.

      For the same reasons discussed below, if the trial court erred, any error was

harmless.

      Sixth Amendment Right to Present a Defense

       DeLong also contends that the trial court's decision to exclude this evidence

violated his Sixth Amendment right to present a defense. Because the evidence was

irrelevant, no Sixth Amendment violation occurred here. Even if the trial court erred,

that error was harmless.


       Both the federal and state constitutions protect a defendant's right to present a

defense. State v. Hudlow. 99 Wn.2d 1,14, 676 P.2d 553 (1984). In Hudlow. the court

articulated a two part test to determine whether the exclusion of evidence violated this

right. Hudlow. 99 Wn.2d at 15. First, the evidence must be relevant; a criminal

defendant has no constitutional right to the admission of irrelevant evidence. Hudlow.

99 Wn.2d at 15. Second, if the evidence is relevant, the court considers whether the

State has demonstrated a compelling interest that outweighs the defendant's interest in

admitting the evidence. If the evidence is not relevant, the court need not reach the

"compelling interest" question. State v. Jones. 117 Wn. App. 221, 234 n.2, 70 P.3d 171

(2003).



                                          -12-
No. 72829-6-1/13



      As discussed above, the evidence DeLong sought to introduce lacked relevance.

DeLong contends that any prejudicial impact from evidence of P.W.'s sexual encounters

is substantially outweighed by its highly probative value and that the trial court thus

deprived him of his right to present a defense by excluding it. But, in Summers, the

defendant made the same argument as DeLong under nearly identical circumstances,

and we rejected it:

       [E]ven if the evidence here in question has some minimal relevance, it is
       not necessarily error to exclude it.
              Summers merely quotes general language from [Hudlow] and
       ignores the fact that the court acknowledged the state's interest in using
       the rape shield statute to bar evidence even if it is of arguably probative
       value which may distract and inflame jurors and its interest in encouraging
       rape victims to step forward and prosecute.
              "[T]rial judges retain wide latitude to limit reasonably a criminal
       defendant's right to cross-examine a witness based on concerns about,
       among other things, harassment, prejudice, confusion of the issues, the
       witness' safety, or interrogation that is repetitive or only marginally
       relevant."

Summers. 70 Wn. App. at 435-36 (quoting Michigan v. Lucas. 500 U.S. 145,149, 111

S. Ct. 1743, 114 L Ed. 2d 205 (1991)). As in Summers, given the evidence's

questionable relevance and the State's legitimate prejudice concerns, the trial court did

not infringe DeLong's constitutional right to present a defense.

       But even if the trial court erred when it excluded this evidence, that error was

harmless. Because the alleged error implicates DeLong's constitutional right to present

a defense, it is harmless only if we are "convinced beyond a reasonable doubt that any

reasonable jury would have reached the same result without the error." State v. Smith.

148 Wn.2d 122, 139, 59 P.3d 74 (2002).




                                           -13-
No. 72829-6-1/14



      Although constitutional harmlessness is a demanding standard, the record here

contains overwhelming evidence of P.W.'s diminished capacity to consent to sexual

interaction. First, P.W.'s exhaustive testimony shows her diminished mental capacity.

As discussed above, P.W. could not tell time or accurately recite the alphabet. She also

did not know her address or her correct age. Throughout her testimony, P.W. typically

responded with simple, one-word answers. She also demonstrated an unusual

obsession with toys, dolls, and Scooby Doo, who she at one point referred to as her

"boyfriend." RP (Nov. 13, 2014) at 25.

      Second, there was substantial evidence of P.W.'s understanding of sexual

matters and previous relationships. Despite this evidence, the jury concluded that P.W.

lacked the capacity to consent to sex.4 For example, P.W. understood the difference

between a "handjob," a "blowjob," and vaginal intercourse. RP (Nov. 12, 2014) at 173-

74; RP (Nov. 13, 2014) at 13. During one exchange, defense counsel asked P.W.,

"You're actually good at hand jobs; is that right?" and P.W. responded, "(Laughing.)

Yeah." RP (Nov. 13, 2014) at 13. Although P.W. did not testify directly about sexual

encounters with individuals other than DeLong and Douglass, she did testify to previous

relationships. She testified about at least three boyfriends in the past. She also stated

that, at one point in time, she considered DeLong as her boyfriend. She also said that

she had been married, and she had three children from that marriage. When defense

counsel asked P.W. if she "didn't like to have sex with Jim," P.W. responded, "not every

day." RP (Nov. 13, 2014) at 13. Despite all of this evidence of P.W.'s knowledge of

      4 As discussed above, during his interview with detectives, DeLong admitted to
having repeated sexual contact with P.W., so the main issue at trial was whether P.W.
had the mental capacity to consent.
                                         -14-
No. 72829-6-1/15



sexual matters and previous relationships, the jury still concluded that she lacked the

capacity to consent to sex. Evidence of sexual activity with her then-current "boyfriend"

would not have changed the outcome. Any error was harmless beyond a reasonable

doubt.

         Prosecutorial Misconduct

         DeLong contends the prosecutor made improper comments during closing

argument amounting to prosecutorial misconduct. This argument fails. Even if the

prosecutor's comments were improper, DeLong has failed to show the comments are

incurably prejudicial.

         A defendant claiming prosecutorial misconduct on appeal must demonstrate that

the prosecutor's conduct at trial was both improper and prejudicial. State v. Fisher. 165

Wn.2d 727, 747, 202 P.3d 937 (2009). "Once a defendant has demonstrated that the

prosecutor's conduct was improper, we evaluate the defendant's claim of prejudice on

the merits under two different standards of review depending on whether the defendant

objected at trial." State v. Sakellis. 164 Wn. App. 170, 183, 269 P.3d 1029 (2011). "If

the defendant objected to the misconduct, we must determine whether the misconduct

resulted in prejudice that had a substantial likelihood of affecting the verdict." State v.

Anderson. 153 Wn. App. 417, 427, 220 P.3d 1273 (2009). If the defendant failed to

object, the court must ascertain whether the prosecutor's misconduct was so flagrant

and ill-intentioned that it caused an "enduring and resulting prejudice" incurable by a

jury instruction. State v. Stenson. 132 Wn.2d 668, 719, 940 P.2d 1239 (1997). "This

standard requires the defendant to establish that (1) the misconduct resulted in

prejudice that 'had a substantial likelihood of affecting the jury verdict,' and (2) no

                                           -15-
No. 72829-6-1/16



curative instruction would have obviated the prejudicial effect on the jury." Sakellis. 164

Wn. App. at 184 (quoting State v. Thoroerson 172 Wn.2d 438, 455, 258 P.3d 43

(2011)).

       DeLong highlights two portions of the prosecutor's closing argument. First,

DeLong claims the prosecutor improperly compared P.W. to a child:

             Children cannot and are not expected to understand the nature and
       consequences of sex. It is therefore illegal to have sex with them. And
       sadly, for some adults, they are mentally at the same level as children.
       And the law, this law, makes it illegal to have sex with them, too. There is
       too much danger, too much manipulation, too much abuse of power
       inherent in that.
              [P.W.] is like a sweet child. She doesn't appear to even realize that
       she could say no, that she could limit when and where and what in
       anything she would do. She doesn't quite understand that she has that
       power or that she should have that power. And because of that, she
       needs the protection of this law. She needs it. She is in many ways the
       epitome of who we want this law to protect.

              Consider that portion at the end of [DeLong's] interview with the
       detectives. Detective Kim, Detective Purcella were clearly getting
       frustrated with him. They were confronting him about the nature of
       [P.W.'s] disability and how he could possibly believe that it was okay to
       have sex with her and this is what he said.
              (Audio recording played)
              He tells them she has never said no. She's a child. She shouldn't
       have to say no. And the Defendant took gross and disgusting advantage
       of that. And now the trial's over and it's up to you. What are you going to
       do about it?

RP (Nov. 17, 2014) at 22-24. DeLong contends the prosecutor continued with this

theme and then ended with a "call to arms":

              And yet the Defendant saw [P.W.], and it must have been, a ha,
       here's a woman I can take advantage of, here's a woman I can make
       some money off of. And he kept doing it for years continuously.
              That's what this case is about. The Defendant told you how he did
       it. You have all the evidence. Now it's all up to you. You decide what's
       going to happen next. What are you going to do about it?


                                           -16-
No. 72829-6-1/17



            The law is clear, this man is guilty of everything he is charged with.
      Thank you.

RP(Nov. 17, 2014) at 54.

       DeLong contends these comments were improper because they urged the jury to

resolve the case on grounds other than the facts of the case and the applicable law.

But this mischaracterizes the prosecutor's comments. Although it is improper for a

prosecutor to "exhort[] the jury to send a message to society" during closing argument,

nothing in the prosecutor's statements here arises to an improper emotional appeal.

State v. Bautista-Caldera. 56 Wn. App. 186, 195, 783 P.2d 116 (1989); see ajso State v.

Curtiss. 161 Wn. App. 673, 701, 250 P.3d 496 ("Urging the jury to render a just verdict

that is supported by evidence is not misconduct."). In each of the cases cited by

DeLong, the prosecutor asked the jury to "send a message" to society with their verdict

or base their conclusion on facts or issues unrelated to the case. In Bautista-Caldera.

for instance, the prosecutor told the jury, "do not tell that child that this type of touching

is okay, that this is just something she will have to learn to live with. Let her and

children know that you're ready to believe them and [e]nforce the law on their behalf."

Bautista-Caldera. 56 Wn. App. at 195 (emphasis added). At no point during closing

argument here did the prosecutor similarly ask the jury to send a message to other

victims like P.W. that they would "believe them" and "enforce the law on their behalf."

       In State v. Neal. 361 N.J. Super. 522, 826 A.2d 723 (App. Div. 2003), a perjury

prosecution of a school board member, the prosecutor asked the jury to convict the

defendant not just for the crime of perjury, but also for betraying his oath as a school

board member and for betraying the children of the community he served. Neal. 826


                                            -17-
No. 72829-6-1/18



A.2d at 734. The court found these statements improper because they distracted the

jury from the facts of the case. Neal. 826 A.2d at 734. Nothing in the prosecutor's

closing argument here is comparable to Neal. He never suggested the jury convict

DeLong for any reason other than the charged offenses. Nor did the prosecutor argue

that the jury hold DeLong accountable for betraying anyone other than P.W., the sole

victim in the case. Compare Neal. 826 A.2d at 734 ("'I'm asking you to hold him

accountable for the betrayal of the children [of] Asbury Park.'" (emphasis omitted)

(alteration in original)). Further, the prosecutor's comparison of P.W. to a child did not

introduce "facts not in evidence." Br. of Appellant at 35. The prosecutor's statements

undoubtedly refer to the three separate witnesses in the case—Stark, Detective Kim,

and Detective Purcella—who testified that P.W. behaved like a child.

       But even if the prosecutor's comments were improper, DeLong has failed to

show that they substantially affected the verdict. As explained above, the record shows

overwhelming evidence of guilt. DeLong admitted sexual intercourse with P.W., and the

State presented substantial evidence of P.W.'s diminished mental capacity. It is unlikely

the prosecutor's benign comments affected the outcome.

       DeLong did not object, and he has failed to show that "no curative instruction

would have obviated the prejudicial effect on the jury." Thoroerson 172 Wn.2d at 455.

DeLong cites State v. Walker. 164 Wn. App. 724, 265 P.3d 191 (2011). Walker is

distinguishable. In Walker, the prosecutor substantially mischaracterized the law by

telling the jury that determining the defendant's culpability depended on whether they

"would have done the exact same thing [he did] if [they] had the same decision to

make." Walker. 164 Wn. App. at 735. The prosecutor also had a powerpoint slide

                                          -18-
No. 72829-6-1/19



instructing the jury that the entire case turned on whether "I would do it too, if I knew

what he knew." Walker. 164 Wn. App. at 736. The court held the statements were

improper because they "misstated the law of defense of others." Walker. 164 Wn. App.

at 736. DeLong fails to show the prosecutor's statements amount to similar misconduct.

DeLong never alleges that the prosecutor misstated the applicable law. Unlike this

case, defense counsel objected in Walker. Walker. 164 Wn. App. at 735. None of the

prosecutor's comments here were so egregious that they could not have been cured by

an instruction.


       Even in Bautista-Caldera. where the prosecutor asked the jury to show "children"

generally that they were "ready to believe them and enforce the law on their behalf," the

court held that "the improper comments are not nearly so extensive or egregious as

those found to constitute reversible misconduct... We do not find any prejudice such

as could not have been neutralized with a curative instruction." Bautista-Caldera. 56

Wn. App. at 195. The prosecutor's comments here are far less harmful than those in

Bautista-Caldera. A curative instruction would have neutralized any prejudicial effect on

the jury.

       Ineffective Assistance of Counsel

       DeLong also argues that his attorney's failure to object to the prosecutor's

closing statements, quoted above, violated his right to effective assistance of counsel.

       We review claims for ineffective assistance of counsel de novo. State v.

Sutherbv. 165 Wn.2d 870, 883, 204 P.3d 916 (2009). "To prevail on a claim of

ineffective assistance of counsel, counsel's representation must have been deficient,

and the deficient representation must have prejudiced the defendant." State v. Aho.

                                           -19-
No. 72829-6-1/20



137 Wn.2d 736, 745, 975 P.2d 512 (1999); Strickland v. Washington. 466 U.S. 668,

687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). "To establish ineffective representation,

the defendant must show that counsel's performance fell below an objective standard of

reasonableness. To establish prejudice, a defendant must show that but for counsel's

performance, the result would have been different." State v. McNeal. 145 Wn.2d 352,

362, 37 P.3d 280 (2002) (citation omitted). Failure to establish either prong of the test is

fatal to an ineffective assistance of counsel claim. Strickland. 466 U.S. at 700.

       We are reluctant to find ineffective assistance of counsel except in the most

extreme cases. "[Scrutiny of counsel's performance is highly deferential and courts will

indulge in a strong presumption of reasonableness." State v. Thomas. 109 Wn.2d 222,

226, 743 P.2d 816 (1987). This is particularly true where, as here, the alleged deficient

performance consists of an attorney's failure to object. "The decision of when or

whether to object is a classic example of trial tactics. Only in egregious circumstances,

on testimony central to the State's case, will the failure to object constitute

incompetence of counsel justifying reversal." State v. Madison. 53 Wn. App. 754, 763,

770 P.2d 662 (1989).

       Delong has failed to show either deficient performance or prejudice. DeLong

contends defense counsel was deficient for failing to object to the prosecutor's remarks.

But, as discussed above, the prosecutor's remarks were not improper. It is reasonable

to infer that counsel did not object because she believed the prosecutor's remarks were

within appropriate legal boundaries and supported by the facts. The record here is

insufficient to overcome the strong presumption that defense counsel acted reasonably

when she declined to object to the prosecutor's statements. DeLong has failed to cite

                                           -20-
No. 72829-6-1/21



any analogous cases demonstrating that defense counsel's performance here fell below

an objective standard of reasonableness.

       DeLong also failed to show prejudice. As discussed above, there was

overwhelming evidence of guilt. It is unlikely the outcome would have been different

had defense counsel objected to the prosecutor's statements. See McNeal. 145 Wn.2d

at 362 ("To establish prejudice, a defendant must show that but for counsel's

performance, the result would have been different.").

       Statements of Additional Grounds

       DeLong submitted two additional grounds for review. Both are meritless. First,

Delong contends that his first attorney was ineffective. He complains this attorney

would not discuss strategy with him and did not care whether or not he was innocent.

But DeLong concedes that this attorney transferred to a different department early on in

his case and did not represent him at trial. A different attorney represented DeLong for

the majority of the case, including pretrial motions and the jury trial. Therefore, even if

we assume, without deciding, that DeLong's first attorney was deficient, DeLong cannot

show prejudice because his second attorney handled the overwhelming majority of

DeLong's defense.

       DeLong's second claim also fails. He contends that his second attorney was

also ineffective, citing several disagreements he had with defense counsel's strategic

decisions before and during trial. For example, he alleges that no doctor examined

P.W. to determine her mental capacity. He also claims defense counsel did not meet

with him to discuss his case and failed to thoroughly investigate his claim of innocence

and discredit Stark as a "conspirator." DeLong's claim contains no citation to the

                                           -21-
No. 72829-6-1/22



record, nor does he cite any relevant case law other than the cases outlining the legal

test for an ineffective assistance of counsel claim. See, e.g.. Strickland v. Washington.

466 U.S. at 687. Our review of the record revealed nothing supporting DeLong's

claims. See State v. O'Connor. 155 Wn. App. 282, 293, 229 P.3d 880 (2010) ("[A]n

appellate court is not obligated to search the record in support of claims made in a

defendant/appellant's statement of additional grounds for review."). We need not

consider DeLong's claims to the extent they rely on facts or evidence not in the record.

See State v. Calvin. 176 Wn. App. 1, 316 P.3d 496 (2013). Further, DeLong's

complaints are based on defense counsel's strategic decisions. These decisions enjoy

a strong presumption of reasonableness, and usually "deficient performance is not

shown by matters that go to trial strategy or tactics." State v. Studd. 137 Wn.2d 533,

551, 973 P.2d 1049 (1999). DeLong has failed to overcome that presumption. But

even if counsel's performance was deficient, for the same reasons discussed above,

DeLong cannot show that the outcome would have been different but for defense

counsel's alleged errors.

                                      CONCLUSION

       For the foregoing reasons, we affirm the judgment and sentence.




WE CONCUR:




    TV^y T               Acj

                                          -22-
