                                                                                                                       i__
                                                                                                                             LED
                                                                                                              Oil`;    101- APPEALS
                                                                                                                       k.` Si0 t"=I 11



       IN THE COURT OF APPEALS OF THE STATE OF W

                                                           DIVISION II

 In the Matter of                                                                         No. 45
the Personal Restraint Petition of



    GEORGE P. WOODARD,
                                                                                   UNPUBLISHED OPINION


                                             Petitioner.


          WORSWICK, J. —             In this   personal restraint petition ( PRP),       George P. Woodard challenges


his conviction for first degree kidnapping with sexual motivation) and second degree child rape,2
for   kidnapping     and     raping M.P.'       Woodard argues that ( 1) appellate counsel provided ineffective


assistance by failing to assign error to the trial court' s denial of two mistrial motions for

jailhouse informant testimony to Woodard' s prior bad acts. Woodard also argues that trial

                                                                        to ( 2) properly impeach   witnesses, ( 3)    object to
counsel provided         ineffective     assistance        by failing

Lisa Wahl-Hermosillo' s testimony defining rape as blunt penetrating trauma, (4) object to Wahl-

Hermosillo' s testimony stating that sex as M.P. had described would constitute " victimization,"

    5) object to Wahl- Hermosillo' s testimony referencing a medical study not in evidence about 37

pregnant       teenage   girls, (   6) object to the State' s mischaracterization of Wahl- Hermosillo' s


testimony referencing the study                of   the   pregnant girls, (   7) call a medical expert for the defense, or




1
    Former RCW 9A.40. 020( 1)( b) ( 1975); former RCW 9. 94A.835 ( 2006).


2 RCW 9A.44. 076.

3
    We   use   initials to   protect   the   victim' s     privacy.
No. 45709 -1 - II



 8) object to admission of M.P.' s rape kit and underwear for a lack of chain of custody. In

addition, Woodard argues that he was denied a right to a fair trial by (9) the trial court' s

admission of   the   rape   kit   and underwear without a sufficient chain of   custody, ( 10) the trial


court' s comment on     the   evidence, (   11) the trial judge' s bias against Woodard, and ( 12)


cumulative error. We reject Woodard' s arguments and deny his petition.

                                                     FACTS


        In 2008, M.P. spent Christmas Eve with friends and family members at Woodard' s home.

M.P. was 12 years old at the time. M.P. wanted to go to the store and Woodard agreed to drive

her there in his van. Three witnesses testified the store was only a few minutes away by vehicle,

but Woodard and M.P. were gone for between 20 and 45 minutes.


        According to M.P., while returning from the store, Woodard took a different route home,
drove down a back road, and stopped the van. Woodard ordered M.P. to get into the backseat

and pull down her pants. He then put his mouth on her breast over the outside of the hoody that

she was wearing and inserted his finger into her vagina. He stopped after about 10 to 20 minutes

and drove home.


        The next day, M.P.' s mother learned what had happened and called the police. The State

charged Woodard with first degree kidnapping with sexual motivation, second degree child rape,

and second degree child molestation.4 Woodard' s case proceeded to a jury trial.

A.       Trial Court' s Pretrial Instruction to the Jury

        Prior to trial, the trial court made the following instruction to the jury:




4 RCW 9A.44. 086.



                                                          2
No. 45709 -1 - II



        There may be some evidence that certain things happened at a particular location.
        You may know where that location is. You may go near it or by it going to or from
        the Law and Justice Center or perhaps over the weekend or during a long recess. If
        that' s the situation don' t stop to look things over, because conditions may not
        necessarily be the same as they were when all the actions tookplace that led to the
        charges beingfiled.
                 Keep an open mind. Don' t decide any issue in this case, until the entire case
        has been submitted to you.


1,. Verbatim Report     of   Proceedings ( VRP)   at   107 ( emphasis     added).   Woodard' s trial counsel


moved for a mistrial, arguing that the trial court' s statement that " all the actions took place that

led to the   charges   being filed"   commented on      the   evidence.    1 VRP at 107. The trial court


denied the mistrial motion.


B.       Trial Testimony ofJames Barnes and Jonathan Neff

        At trial, the State presented testimony from two jailhouse informants: James Barnes and

Jonathan Neff, both called by the State to testify that Woodard had confessed to the sex offenses

at issue in Woodard' s case. Woodard challenges one statement from each witness.

         Barnes' s Testimony Woodard Confessed to Sexual Intercourse with M.P. on Six Prior
         Occasions


        During a pretrial hearing on motions in limine, trial counsel expressed concern Barnes or

Neff might testify that Woodard confessed to sexual intercourse with M.P. on six occasions prior

to the sex offenses at issue in Woodard' s case. The State said it did not intend to elicit testimony

 about uncharged prior sexual incidents on direct examination, but that it could contemplate

 possible scenarios where the issue could arise on cross- examination. The trial court ordered the

 State to instruct the witnesses not to mention Woodard' s alleged admissions of sexual

 intercourse with M.P. prior to the incident at issue in the case. At trial, during the State' s

 examination    of Barnes, the following testimony            occurred:
No. 45709 -1 - II


            State]: Did [ Woodard] say he did anything                 else   to [ M.P.] on that night?
            Barnes]:    The comment was that [ Woodard] didn' t have a rubber, so he had oral
        sex with her.
            State]:   In other words, he was denying that he had penile sexual intercourse with
        her?
            Barnes]: That night, yes.


            State]:   You said that Mr. Woodard indicated to you that he had stuck his finger in
            M.P.]?
            Barnes]: Yes.


4 VRP at 64- 66. Then, during trial counsel' s cross- examination of Barnes, the following

testimony occurred:

            Trial Counsel]:    Is it your testimony that [ Woodard] told you directly all of the
        things that you just testified to?
            Barnes]: Yes, sir.


            Trial Counsel] : [ Woodard]      told you he didn' t have sexual intercourse with [M.P.]?
            Barnes]: On Christmas         day. On Christmas eve he did not. He had six times of
        intercourse before that he bragged about.

4 VRP   at    68 (   emphasis added).     Outside of the jury' s presence, trial counsel immediately moved

for a mistrial. The State asserted that it had told Barnes to refrain from mentioning the six prior

instances of intercourse and argued that trial counsel' s question may have unintentionally elicited

the response. Trial counsel asked if his question to Barnes could be read back. The trial court

initially   responded     by telling   trial   counsel, "   You    can   be   quiet,"   but eventually had the question

read back. 4 VRP at 70- 71.

            The trial court denied the mistrial motion. The trial court then recalled the jury and

 instructed them' to disregard the question and answer.


            2. Neff's Testimony Woodard Smoked Crack Cocaine Immediately Prior to the Rape

            The parties agreed not to elicit testimony regarding any of the witnesses' drug use. Later,

 during the State' s direct examination of Neff, the following testimony occurred:

                                                                  El
No. 45709 -1 - II



          State]:    Did [ Woodard] ever indicate anything that he had done on Christmas eve
         of 2008?
          Neff]: Well, he indicated he was at his house with some friends and his wife and
         they were smoking crack and he was asked— I                   can'   t say if he   asked or   if [M.P.] had
         asked to go to the store to get some candy.

           State]:   Okay,. What else did [ Woodard] say?
          Neff] :.... [ Woodard]          explained   that he had   pulled over      there with [ M.P.] and that

         he had      digitally penetrated    her   and   orally— had oral sex with her.


4 VRP     at   78- 79 ( emphasis   added).    Trial counsel did not object to this testimony, but at the

conclusion of Neff s testimony, counsel moved for a mistrial, arguing that Barnes' s testimony

about    Woodard'     s confession   to   prior   intercourse   with   M.P.,    combined with Neff s testimony

about Woodard' s confession to using crack cocaine, denied Woodard a fair trial. The trial court

denied the. motion. The trial court ruled that, within the context of Neff s testimony as a whole,

the violation was not egregious enough to warrant a mistrial. The trial court also ruled that

Barnes' s and Neff s testimony combined did not rise to the level of warranting a mistrial. The

trial court offered to instruct the jury to disregard the question and answer regarding Woodard' s

drug use, but trial counsel declined the offer because he did not.want to draw the jury' s attention
to it.


C.        Inability To Impeach Witnesses

          Trial counsel endeavored to impeach witnesses on four separate occasions.

          1.    Impeachment ofDallas Hazelrigg Concerning the Purpose ofHis Trip

          At trial, Dallas Hazelrigg was one of three witnesses who testified that Woodard and

 M.P. were gone to the store for between 20 and 45 minutes. To establish the length of time

 Woodard and M.P. were away from Woodard' s home, Hazelrigg testified about his activities

 during the time Woodard left to take M.P. to the store. Hazelrigg said that he and his brother left


                                                                5
No. 45709 -1 - II



Woodard' s home just after Woodard left with M.P., and followed Woodard until Woodard


stopped at the store. Hazelrigg and his brother then stopped following Woodard and went down

a gravel road   to   a place "[ a]   lmost   across   the   street     from the   store."   2 VRP ( Part 1) at 83.


Hazelrigg testified that his brother went down the gravel road with intent to purchase drugs from

a drug dealer, and that Hazelrigg also went down the road to purchase a chain saw from the same

drug dealer.

        On cross- examination, trial counsel attempted to impeach Hazelrigg' s testimony with his

unrecorded out-of-court statement to trial counsel, in which Hazelrigg specifically denied the

purpose for the errand:


         Trial Counsel]: ...         You and I have talked a couple of times about this case; is
        that right?

         Hazelrigg]:      That' s right.
         Trial Counsel]:      You have specifically told me that when you and [ your brother]
        went on your errand, it was not to buy drugs; is that right?

2 VRP (Part 1) at 94. The trial court sustained a hearsay objection by the State, ruling trial

counsel could not impeach Hazelrigg with an oral statement given to trial counsel because trial

counsel could not testify in Woodard' s trial, -meaning Hazelrigg' s statement to trial counsel could

not be corroborated. Trial counsel subsequently elicited the following testimony:

         Trial Counsel]:      What you told me [ out of court] yesterday, does that differ from
        what we heard in Court today?

         Hazelrigg]: It' s not different. It' s just more.
         Trial Counsel]: Really? What' s the more?
         Hazelrigg]: Yesterday, you were looking for a drug run and I wouldn' t basically
         tell you what I was doing, because I felt it was irrelevant to the case or further
         putting me admitting on the stand that I was going to run for drugs, which I really
         wasn' t if you want to go into the long haul of it.

          Trial Counsel]:      So what you are saying is I asked you yesterday about a drug
         run—




                                                                 Con
No. 45709 -1 - II



           Hazelrigg] : Correct.

           Trial Counsel]: Did you tell me " yes" or " no"?

           Hazelrigg]: I didn' t answer it. I said I went for a chainsaw [ sic] is what I
          answered.




           Trial Counsel]:         Did they sell [ your brother] drugs?

           Hazelrigg]: No, they did not.

2 VRP ( Part 1)      at   100- 03.    Trial counsel also elicited testimony that Hazelrigg did not mention

drugs when giving a statement to Deputy Susan Shannon.

          2. Impeachment ofDeputy Shannon Concerning Mirandizing Woodard

          The State called Deputy Shannon, who gave Woodard his Miranda' warnings. Deputy

Shannon testified that when she asked Woodard whether he wanted to speak with her, Woodard

said, "   Yes."    3 VRP     at   133.    Trial counsel attempted to impeach this testimony with Deputy

Shannon'       s written report      in   which   Woodard   said, "   Yeah, I don' t have a problem" instead of


 yes" by personally reading from the report. 3 VRP at 148. The trial court raised its own
                                             impeachment method          was   improper     under   ER 613.     Outside of
objection,     ruling trial   counsel' s




the jury' s presence, trial counsel explained to Deputy Shannon that he wanted Deputy Shannon

to   testify   to Woodard'        s statement, "   Yeah, I don' t have a problem" in Deputy Shannon' s written

report. 3 VRP at 148. With the jury present, Deputy Shannon testified that in Deputy Shannon' s

written report      Woodard         responded     to   Deputy   Shannon'   s request   to   speak with   him   with, " Yeah,   I


don' t have       a problem."       3 VRP at 148.




  Miranda v. Arizona, 384 U.S. 436 ( 1966).




                                                                  7
No. 45709 -1 - II


        3.    Impeachment ofDeputy Shannon Concerning M.P. 's Statement She Wore a Hoody

        Deputy .Shannon also took recorded statements from M.P. Deputy Shannon testified that

she collected a " hoody" from M.P. The State called M.P., who testified that she wore this hoody

when Woodard raped her and put his mouth on her breast over the hoody. DNA testing

confirmed that Woodard' s DNA was on the hoody, in the same location as where M.P. testified

Woodard had put his mouth on her breast over the hoody. Woodard' s DNA came from

  a] mylase    activity"   which was "      usually              with saliva,"
                                                      associated -                   although " other body fluid

sources [ could not]       be   eliminated."   Petition ( App. H at 3).

        When Woodard was presenting his case, trial counsel recalled Deputy Shannon and

elicited the following testimony:

         Trial Counsel]:         Do you remember if on either one of [M.P.' s] taped statements
        she told you what she was wearing when she was driven to the store by Mr..
        Woodard?


         Trial Counsel] : You don' t recall?
         Deputy         Shannon]:  I was trying to recall your question. Did she ever tell me?
         Trial Counsel]: [        W] hat she was wearing as far as a shirt when she went to the
        store with [ Woodard].
         Deputy         Shannon]: Yes.
             Trial Counsel]: Do you recall what that was?


          Deputy        Shannon]:   It was a gray " I love me" shirt, blue hoody and the Vigoss
        j eans.

5 VRP   at    44- 45.    Trial counsel attempted to impeach Deputy Shannon' s testimony ( that M.P.

told Deputy Shannon that M.P. was wearing a hoody when she was raped) with M.P.' s alleged
                                                   in her taped                to   Deputy   Shannon.   The State
 omission of     any    reference   to a   hoody                   statement




 objected and the trial court sustained, ruling that Deputy Shannon testified M.P. stated that she




                                                              N.
No. 45709 -1 - II



was wearing a hoody during the rape, but did not testify that M.P.' s statement about the hoody

was recorded in M.P.' s taped statement. Then, the following occurred:

         Trial Counsel]:     Deputy Shannon, the question I asked moments ago, did you
        understand     it to be that I   was   asking   you about what [ M.P.]   told you in her two
        taped statements?



         Deputy Shannon]: No.

5 VRP   at   51.   Trial counsel then attempted to elicit testimony from Deputy Shannon that M.P.' s

statement about the hoody was recorded in M.P.' s taped statement, but was prevented from

eliciting such testimony by the State' s successful hearsay objections.

        4. Impeachment ofBarnes with His.Declaration to the State

        Prior to Woodard' s trial, Barnes sent a declaration under penalty of perjury to the State

requesting withdrawal of a State subpoena compelling Barnes to testify at Woodard' s trial.
Barnes' s declaration stated he had no actual or constructive knowledge regarding Woodard' s

case and could provide no testimony for either the State or the defense. Barnes testified at

Woodard' s trial for the State, but trial counsel did not impeach Barnes with his declaration.

D.      Expert Testimony

         The State called two medical experts at Woodard' s trial. First, the State called Dr. Paul

 Sunderland, who gave M.P. a medical examination on December 25, 2008. Dr. Sunderland

testified that M.P. said she had been raped. Dr: Sunderland testified that the. entrance of M.P.' s

 vagina was tender and swollen and that M.P.' s hymen was not intact. Dr. Sunderland testified

 that hymen breakage typically resulted from penetration and that broken hymens do not grow

 back. Dr. Sunderland testified that while there was some evidence of vaginal trauma, none of

 M.P.' s injuries were serious, and all her injuries would have healed within a week at the longest.



                                                             OJ
No. 45709 -1 - II



        Second, the State called nurse practitioner Lisa Wahl -Hermosillo, who had given M.P. a

medical examination on December 30, 2008. Wahl -Hermosillo testified M.P. told her that she


had been sexually assaulted, and that this sexual assault included penile/vaginal penetration.

Contrary to Dr. Sunderland' s testimony, Wahl -Hermosillo testified that M.P' s hymen was intact.

Wahl -Hermosillo also testified that the physical exam had no indications that M.P. had been

raped. While Wahl -Hermosillo testified that M.P. had no vaginal injuries, Wahl -Hermosillo

testified that she would not expect to see any vaginal injuries on M.P. when she conducted her

examination, which was five to six days after the rape.


        Wahl -Hermosillo made three statements in her testimony that Woodard challenges in his

PRP. First, Wahl -Hermosillo stated the following on direct examination:

         State] : Now, what did you note on your physical exam when you looked at [ M.P.' s]
        hymen?
         Wahl -Hermosillo] : I found that        she   had   a shallow notch on   her hymen ....   A notch

        is considered a normal variant and it could or could not indicate blunt penetrating
        trauma, which as the legal term is called rape.


5 VRP   at   13- 14 (   emphasis added).   Second, the following testimony occurred on redirect:

         State]: So in      your opinion,   it   would   be    possible   for [ M.P.] to have sex as she

        described and not see any physical signs, correct?
         Wahl -Hermosillo]: Well, I wouldn' t call it sex. I would call it victimization, but,
        yes, that' s true.


5 VRP   at   24 ( emphasis    added).   Third, the following testimony occurred on redirect:

          State]:   Is it possible to have actual penile penetration without any injuries?
         Wahl -Hermosillo]: Yes.           In fact, they have done a study, where they had 37
        pregnant teenage girls and all but three had normal findings and it' s fairly obvious
        that something had happened.

5 VRP   at   23.   Trial counsel did not object to the above statements by Wahl -Hermosillo.

Woodard did not call a medical expert.




                                                             10
No. 45709 -1 - II



E.       Physical Evidence— Chain              of Custody

         At trial, the State admitted M.P.' s rape kit and a bag containing M.P.' s underwear. Lisa

Engler, a registered nurse at a hospital, testified she watched M.P. remove the underwear and

place it in the bag, and that Engler sealed the bag with an evidence seal and placed her initials

and   the time    on   the   bag.   Engler testified   she conducted a series of   tests   on   M.P., and then placed


the testing materials and the underwear in a rape kit, which she sealed with her initials and a time

stamp. Engler testified she then submitted the rape kit to the sheriff' s office.

         Sheriff' s Deputy Chris Fulton testified that he went to the hospital and received the rape

kit in sealed condition, transported it to the sheriff' s office, and placed it in the sheriff' s evidence

refrigerator. Deputy Fulton testified he sealed the refrigerator with evidence tape and initialed
the tape.



         Sheriff' s Deputy Debra Hensley testified she removed the seal from the refrigerator and

removed the rape kit from the refrigerator. Deputy Hensley testified the rape kit was then

submitted to the Washington State Patrol Crime Lab ( WSPCL).

         Teresa Shank, a WSPCL forensic scientist, testified she received the rape kit in sealed

 condition. Shank testified she opened the rape kit, removed the bag from the rape kit, and

removed     the   underwear         from the   bag. Shank testified she then conducted tests on the items,

 resealed the underwear in the bag, resealed the underwear and other items in the rape kit, and

 returned the rape kit to the sheriff.

         After the sheriff received the rape kit, the sheriff submitted the rape kit to Orchid

 Cellmark Incorporated, a private DNA testing corporation. Orchid tested the items in the rape

 kit and returned the rape kit to the sheriff.




                                                              11
No. 45709 -1 - II



        In preparation for trial, the rape kit was unsealed and opened in Engler' s presence and the


bag was removed from it. At trial, Engler identified the rape kit and testified it was in the same
condition as when she gave it to the sheriff except that it had additional seals. Engler identified

the bag by the evidence seal, the time, and her initials on the bag. Engler testified that the bag
was in the same condition as when she gave it to the sheriff. Shank identified the rape kit and

bag at trial and testified they were in the same condition at trial as when she received them at the

WSPCL, except that they were already opened at trial.

         Deputy Hensley identified the rape kit at trial. Deputy Hensley testified that it looked

the same as when she acquired it from the refrigerator prior to it being sent to the WSPCL,

except that it had additional seals. Deputy Fulton could not identify the rape kit at trial.

        On direct examination, M.P. identified the underwear as the underwear she wore when


she was raped. But then, on cross- examination, M.P. testified she could not identify the

underwear.




        The State attempted to admit the rape kit multiple times during trial. Trial counsel

consistently   challenged admission     by   objecting to " foundation." See 3 VRP at 154; 4 VRP at


 116. While trial counsel did not specifically say he was objecting to chain of custody, it was

clear that trial counsel' s foundation objections went to chain of custody. After one of trial

counsel' s foundation objections, a colloquy about chain of custody occurred. After another

 foundation objection, a voir dire of a witness about chain of custody occurred. The trial court

 sustained trial counsel' s foundation objections multiple times. After the State presented an

 additional witness to establish chain of custody, the trial court admitted the underwear and rape

 kit over trial counsel' s objection.




                                                      12
No. 45709 -1 - II



F.      Closing Argument

        Whereas Wahl -Hermosillo testified that the study of 37 pregnant teenaged girls

concluded it is possible for a woman to have had sexual intercourse and still have an intact


hymen, the State stated in closing argument:

        Ms. Wahl even told you about statistics that showed women that were pregnant and
        it' s hard to tell whether the hymen was in fact intact or not.

5 VRP   at   98 ( emphasis   added).   Trial counsel did not object to this statement.


        Both parties made many objections to the other party' s closing argument for arguing facts

not in evidence or misrepresenting testimony. The trial court sustained six of the State' s

objections for arguing facts not in evidence or misrepresenting testimony. In contrast, the trial

courtoverruled all of trial. counsel' s five objections for arguing facts not in evidence or

Misrepresenting testimony. After closing arguments, trial counsel moved to dismiss the charges

because the trial court ruled in favor of the State and against trial counsel on the objections. The

trial court denied trial counsel' s motion to dismiss, ruling there was no evidence in the record to

substantiate trial counsel' s arguments objected to by the State.

G.      Conviction, Evidentiary Sentencing Hearing on Prior Conviction' s Existence, and Trial
        Court' s Statement


        A jury found Woodard guilty on all three counts. After Woodard' s conviction, the trial

court held an evidentiary sentencing hearing on the existence of Woodard' s prior child

molestation conviction. When the trial court ordered Woodard to provide his fingerprints in

court to be used as evidence in the hearing, Woodard refused to comply. Woodard asked the

trial court, " Who   is trying the   case, you or   the   prosecutor?"   5 VRP at 160. The trial court


responded, "    I'm trying the case and you' re right on the edge of contempt. If I find you in



                                                           13
No. 45709 -1 - II



contempt,     it' s dead time." 5 VRP   at.   160- 61 (   emphasis added).    Woodard then provided his


prints.



           The trial court found that the prior child molestation conviction existed. Based on the


prior child molestation conviction and Woodard' s current conviction for first degree kidnapping

and second degree child rape, the trial court found that Woodard was a persistent offender and


sentenced him to life imprisonment without the possibility of parole.

H.         Direct Appeal


           Woodard appealed his convictions. On direct appeal, appellate counsel argued that


admitting testimony of Woodard' s confession to the six prior instances of intercourse with M.P.

and crack cocaine use violated the evidence rules and denied Woodard a fair trial. While

appellate counsel noted that trial counsel made mistrial motions that were denied, appellate


counsel neither explicitly assigned error to the trial court' s denial of the mistrial motions nor

argued that the trial court erred by denying the mistrial motions. Because appellate counsel did

not assign error to or challenge the trial court' s denial of the mistrial motions, we did not

consider Woodard' s arguments regarding Barnes' s and Neff s testimony to Woodard' s

confessions to prior bad acts.


           We reversed Woodard' s current conviction for second degree child molestation on


double jeopardy grounds, but upheld the. kidnapping and second degree child rape convictions

and his life sentence as a persistent offender. Woodard then filed this PRP.

                                                    ANALYSIS


            The petitioner' s ability to collaterally attack his restraint through a PRP is limited by law.

In   re   Pers. Restraint of Crow,       Wn.     App. _,         349 P. 3d 902, 905- 06 ( 2015). The petitioner




                                                            14
No. 45709 -1 - II



must allege particularized facts which, if proven, would entitle the petitioner to relief. 349 P. 3d

at    905. The petitioner also must support those factual allegations with evidence. 349 P. 3d at


905. Where the record does not support the petitioner' s allegations, he must produce affidavits


or other forms of corroboration showing that competent and admissible evidence will establish

his       allegations.      In   re   Pers. Restraint of Rice, 118 Wn.2d 876, 886, 828 P. 2d 1086 ( 1992). If the


parties' materials raise issues of material fact, we order a reference hearing for the superior court

to        resolve   them.    118. Wn.2d at 886- 87. But we will not remand for a reference hearing unless

the petitioner has made his threshold showing. See 118 Wn.2d at 886- 87.

              Before the petitioner is entitled to collateral relief through a PRP, he must prove the

alleged error' s existence. Crow, 349 P. 3d at 906. Furthermore, to be entitled to relief for a

constitutional error, he must prove that the error caused actual and substantial prejudice. 349


P. 3d at 906. To be entitled to collateral relief for a nonconstitutional error, he must prove that

the        error caused a        fundamental defect resulting in       a complete miscarriage of justice.   349 P. 3d at


     1.


                                            I. INEFFECTIVE ASSISTANCE OF COUNSEL


               On an ineffective assistance of trial counsel claim, the defendant bears the burden of


showing deficient performance and resulting prejudice. State v. Grier, 171 Wn.2d 17, 32- 33,

246 P. 3d 1260 ( 2011); Strickland                v.   Washington, 466 U. S. 668, 687 ( 1984).    Counsel' s


performance is deficient if it falls below an objective standard of reasonableness. State v.

Stenson, 132 Wn.2d 668, 705, 940 P. 2d 1239 ( 1997).                       Our scrutiny of counsel' s performance is

highly deferential; it strongly presumes reasonableness. State v. Thomas, 109 Wn.2d 222, 226,

743 P. 2d 816 ( 1987).




                                                                  15
No. 45709 -1 - II



          To show deficient performance, the defendant must show the absence of any conceivable

legitimate tactic supporting trial       counsel' s action.   Grier, 171 Wn.2d   at   32- 33.   To establish


prejudice, the defendant must show a reasonable probability that but for the deficient

performance, the result of the proceeding would have been different. Thomas, 109 Wn.2d at

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


we review them de novo. In re Pers. Restraint ofBrett, 142 Wn.2d 868, 873, 16 P. 3d 601

 2001).


          In order to establish an ineffective assistance of appellate counsel claim, the defendant


must show the legal issue appellate counsel failed to raise had merit and that he was actually

prejudiced by the failure to raise or adequately raise the issue. In re Pers. Restraint ofDalluge,

152 Wn.2d 772, 787- 88, 100 P. 3d 279 ( 2004). To show prejudice, the petitioner must show a


reasonable probability that but for counsel' s failure to raise the meritorious issue on appeal, the

petitioner would     have   prevailed.    152 Wn.2d at 788.


A.        Appellate Counsel' s Failure To Assign Error to the Denial ofMistrial Motions

          Woodard argues that appellate counsel provided ineffective assistance by failing to assign

error to the trial court' s denial of mistrial motions -for Barnes' s and Neff s testimonies of

Woodard' s confessions to prior bad acts. Because Woodard cannot show prejudice, we disagree.


          To establish prejudice, Woodard must show a reasonable probability that but for

counsel' s failure to raise the issue on appeal, Woodard would have prevailed. Dalluge, 152


Wn.2d     at   788. To determine whether Woodard would have prevailed, we review the trial court' s


decision to deny the motions for mistrial.




                                                         16
No. 45709 -1 - II



          On direct appeal, we review the decision to grant or deny a mistrial motion under the

abuse of discretion standard because the trial court is in the best position to assess whether a

remark can be cured by admonition or requires a mistrial. State v. Dickerson, 69 Wn. App. 744,

748, 850 P. 2d 1366 ( 1993);       State v. Escalona, 49 Wn. App. 251, 254- 55, 742 P. 2d 190 ( 1987).

A mistrial is appropriate only when the defendant was so prejudiced that only a new trial can

ensure a fair trial. State v. Whitney, 78 Wn. App. 506, 515, 897 P. 2d 374 ( 1995).

          To determine whether erroneous testimony was prejudicial enough to warrant a mistrial,

we consider three factors. First, we consider the erroneous testimony' s seriousness, i.e., whether

the erroneous testimony was serious enough to materially affect the trial' s outcome. State v.

Greiff, 141   Wn.2d 910, 921, 10 P. 3d 390 ( 2000); State v. Hopson, 113 Wn.2d 273, 284, 286, 778


P. 2d 1014 ( 1989).    Second, we consider whether the erroneous testimony involved cumulative

evidence.     Greiff, 141   Wn.2d   at   921.    Third, we consider whether the trial court provided a


proper instruction to disregard the erroneous testimony; an instruction the jury is presumed to

follow. 141 Wn.2d at 921; Hopson, 113 Wn.2d at 287. Finally, we determine whether the

erroneous testimony denied the defendant a fair trial by analyzing the strength of the State' s case

against   Woodard,    considered " against       the   backdrop   of all   the   evidence."   Escalona, 49 Wn. App.

at 254.


          Under ER 404( b), " Evidence of other crimes, wrongs, or acts is not admissible to prove


the   character of a person   in   order   to   show   action in conformity therewith."         Here, Barnes testified


that Woodard claimed to have intercourse with M.P. on six occasions prior to the alleged rape at


issue in Woodard' s case, and Neff testified that Woodard used an illicit drug prior to the alleged

rape at issue in Woodard' s case.




                                                            17
No. 45709 -1 - II



         In analyzing whether a mistrial should have, been granted for these statements, we first

characterize Barnes' s and Neff s statements as serious, but not serious enough to materially

affect the trial' s outcome. The offending testimony here consisted of Barnes' s brief statement

that Woodard had told Barnes about Woodard' s prior intercourse with M.P. and Neff s brief

statement that Woodard told Neff about Woodard' s drug use. Neither Barnes nor Neff testified

that Woodard actually committed these acts. Rather they claimed only that Woodard claimed to

have committed these acts. Barnes' s and Neff s brief statements were not serious enough to


materially affect the trial' s outcome.

          The second factor is whether the statements were cumulative. Greiff, 141 Wn.2d at 921.

There was no other evidence offered at trial regarding Woodard' s prior sex offenses or drug use.

In fact, the trial court had excluded the evidence of prior sex offenses and the parties had agreed

not to elicit testimony about Woodard' s drug use. Thus, the evidence was not cumulative. .

          The third factor is whether the trial court properly instructed the jury to disregard the

erroneous    testimony. 141 Wn.2d       at    921. Here, the trial court gave an instruction to disregard


Barnes' s testimony about Woodard' s claimed prior intercourse with M.P., an instruction jurors

are presumed to follow. Hopson, 113 Wn.2d at 287. The trial court offered to give a curative


instruction for Neff s statement about Woodard' s claimed drug use, but trial counsel declined

that   instruction for   strategic reasons.
No. 45709 -1 - II



        Finally, we must determine whether the erroneous testimony denied the defendant his

right to a fair trial by analyzing the strength of the State' s case against Woodard, considered

 against   the   backdrop    of all   the   evidence."    Escalona, 49 Wn. App. at 254. The State' s case

against Woodard was very strong and included the victim' s testimony and DNA evidence.

M.P.' s testimony was unequivocal. DNA testing confirmed that Woodard' s DNA was on the

hoody in the same location as where M.P. testified Woodard had put his mouth on her breast

over the hoody. The evidence supported that this DNA came from " amylase activity" which is

usually associated with saliva. M.P. testified that after Woodard took M.P. to the store, Woodard

took a different route home, drove down a back road, stopped the van, and raped her for about


ten to twenty minutes. Three witnesses testified the store was only a few minutes away by

vehicle, but that Woodard was gone for between 25 and 30 minutes.

         Dr. Sunderland testified that the entrance of M.P.' s vagina was tender and swollen.


Wahl -Hermosillo testified that M.P. had no vaginal injuries but that she would not expect to see


any vaginal injuries on M.P. when she conducted her examination five to six days after the rape.

         Digital penetration and.oral sex both establish the " sexual intercourse" element of child


rape.   RCW 9A.44.010( 1)(        c);   State   v.   Tili, 139 Wn.2d 107, 115- 17, 985 P. 2d 365 ( 1999). M.P.


testified that Woodard had oral sex with her and digitally penetrated her. This was confirmed by

Barnes and Neff, both of whom testified that Woodard confessed to performing oral sex on and

digitally penetrating M.P. on the date at issue in Woodard' s case. Finally, two witnesses testified

to M.P.' s distressed demeanor after the incident. Viewing Barnes' s and Neff s brief and indirect

remarks against the wealth of evidence against Woodard, we hold that Woodard was not denied

his right to a fair trial.




                                                              19
No. 45709 -1 - II



        We hold that the trial court did not abuse its discretion in refusing to grant a mistrial.

Thus, Woodard has failed to show a reasonable probability that had appellate counsel assigned

error to the trial court' s denial of the mistrial motion on direct appeal, Woodard would have

prevailed. Therefore, Woodard cannot prove prejudice and his ineffective assistance of appellate

counsel claim fails.


B.      Trial Counsel' s Improper Impeachment of Witnesses

        Woodard argues that trial counsel provided ineffective assistance by failing to properly

impeach witnesses in four instances. We disagree.


        1.   Impeachment ofHazelrigg with His Unrecorded Statement to Trial Counsel

        Woodard argues that his trial counsel provided ineffective assistance by failing to

properly use Hazelrigg' s out- of-court statement to trial counsel to impeach Hazelrigg' s

testimony that his brother went to the street to purchase drugs. ' We disagree.

        Although trial counsel initially failed to use Hazelrigg' s out-of-court statement to trial

counsel to impeach Hazelrigg' s testimony that his brother went to the street to purchase drugs,

trial counsel did elicit testimony that Hazelrigg mentioned drugs neither in his out-of-court

statement to trial counsel nor in his statement to Deputy Shannon. Thus, because trial counsel

successfully elicited the inconsistency between Hazelrigg' s testimony about his brother' s intent

and what Hazelrigg told both trial counsel and Deputy Shannon, Woodard has failed to show that

trial counsel' s performance fell below an objective standard of reasonableness. Therefore,


Woodard has failed to show deficiency.




                                                   20
No. 45709 -1 - II



        2. Impeachment ofDeputy Shannon with Her Written Report

        Woodard argues that trial counsel provided ineffective assistance by struggling to use

Deputy Shannon' s written report to impeach Deputy Shannon' s testimony that Woodard said

 yes" in response to Deputy Shannon asking Woodard whether he wanted to speak with her. We

disagree.


        Deputy Shannon testified that when she asked Woodard whether he wanted to speak with

her, Woodard    said, "   Yes."   3 VRP at 133. Trial counsel eventually succeeded in impeaching this

testimony with Deputy Shannon' s written report, in which Woodard responded to Deputy
Shannon'    s question with, " Yeah,      I don' t have   a problem," rather     than " yes."   3 VRP at 148.


Because trial   counsel was able     to   elicit   that Woodard   said, "   Yeah, I don' t have   a problem,"   in


response to Deputy Shannon' s question, Woodard has failed to show that trial counsel' s

performance fell below an objective standard of reasonableness. Therefore, Woodard has failed

to show deficiency.

         3. Impeachment ofDeputy Shannon or M.P. with M.P. 's Taped Statement

         Woodard argues that trial counsel provided ineffective assistance by failing to properly

 use M.P.' s taped statement to impeach M.P.' s and Deputy Shannon' s testimony that M.P. was

 wearing a hoody. We disagree.

         At trial, M.P. provided unequivocal testimony that she was wearing the hoody when

 Woodard raped her and that Woodard put his mouth on her breast over the hoody. Deputy

 Shannon testified that M.P. told Deputy Shannon, albeit not necessarily in the taped statement,

 that she was wearing the hoody when she was raped. DNA testing confirmed that Woodard' s




                                                           21
No. 45709 -1 - II



DNA was on the hoody, in the same location as where M.P. testified Woodard had put his mouth

on her breast over the hoody.

        This testimony is not contradicted by the mere absence ofa reference to the hoody in

M.P.' s taped statement. The mere absence of a reference to a hoody provides minimal benefit to

Woodard. Therefore, Woodard has failed to show that there is a reasonable probability that but

for trial counsel' s failure to impeach M.P. or Deputy Shannon with the absence of a reference to

the hoody in M.P.' s taped statement, the outcome of the trial would have been different. Thus

Woodard has failed to show prejudice.


        4. Impeachment ofBarnes with his Declaration Requesting Withdrawal ofa Subpoena

        Woodard argues that trial counsel provided ineffective assistance by failing to impeach

Barnes with his declaration requesting the State to quash its subpoena, in which Barnes claimed

he had no testimony to contribute to Woodard' s case. We disagree.

        Trial counsel did not impeach Barnes with his declaration that he had no testimony to

contribute to Woodard' s case. While Barnes' s statement has some impeachment value because it

shows Barnes' s dishonesty, it does not directly contradict Barnes' s claims against Woodard.

Furthermore, the State would have been able to easily explain Barnes' s statement to the jury by

arguing that Barnes claimed he did not have any information to contribute to Woodard' s trial

because Barnes wanted the State to quash its subpoena merely because Barnes did not want to

testify at Woodard' s trial. On the other hand, as discussed above, the State' s case against

Woodard was very strong and included the victim' s unequivocal testimony, DNA evidence, and

strong circumstantial evidence. Thus, Woodard has failed to show a reasonable probability that




                                                 22
No. 45709 -1 - II


but for trial counsel' s failure to impeach Barnes with his statement, the outcome of the trial

would have been different. Therefore, Woodard has failed to show prejudice.6

C.      Trial Counsel' s Failure To Object to Wahl-Hermosillo' s Testimony Defining Rape

        Woodard argues that trial counsel provided ineffective assistance by failing to object to

Wahl-Hermosillo' s testimony providing a legal conclusion by defining rape as blunt penetrating

trauma. The State concedes Wahl-Hermosillo' s testimony improperly provided a legal

conclusion, but argues that trial counsel' s failure to object to this testimony did not constitute

ineffective assistance of counsel. Because Woodard has failed to prove prejudice, we agree with


the State.


        A witness may not testify to a conclusion of law. Hyatt v. Sellen Constr. Co., Inc., 40

Wn.   App.   893, 899, 700 P. 2d 1164 ( 1985). "   Improper legal conclusions include testimony that a

particular law applies to the case, or testimony that the defendant' s conduct violated a particular

law."   State v. Olmedo, 112 Wn. App. 525, 532, 49 P. 3d 960 ( 2002).

        Here, Wahl-Hermosillo' s testimony defining rape as blunt penetrating trauma testified to

an ( inaccurate) legal conclusion. But this testimony did not suggest that M.P. was raped: it

suggested that because Wahl -Hermosillo was unable to tell whether M.P. suffered blunt

penetrating trauma, she was unable to tell whether M.P. had been raped. In fact, Wahl -

Hermosillo testified that M.P.' s physical exam had no indications of rape. The jury was given

instructions properly defining rape, which jurors are presumed to follow. State v. Williams, 159



 6 Woodard also argues that trial counsel' s inability to impeach witnesses violated his right to
 confrontation, but does not explain how. Thus, we hold that Woodard has failed to prove the
 alleged error' s existence.




                                                     23
No. 45709 -1 - II



Wn.   App.   298, 321, 244 P. 3d 1018 ( 2011).   Thus, Woodard has failed to show a reasonable


probability that but for trial counsel' s failure to object to Wahl-Hermosillo' s statement defining

rape, the outcome of the trial would have been different. Therefore, Woodard has failed to prove

prejudice. 7

D.      Trial Counsel' s Failure To Object to Wahl-Hermosillo'     s "   Victimization" Comment


        Woodard argues that trial counsel provided ineffective assistance by failing to object to

Wahl-Hermosillo' s testimony to her opinion that intercourse as M.P. had described would

constitute victimization. We disagree.


        Expert witnesses may testify in the form of an opinion. ER 702. But expert witnesses

may not testify to an opinion as to a defendant' s guilt. Olmedo, 112 Wn. App. at 530.
        Here, Wahl-Hermosillo' s statement was that intercourse as M.P. had described would be

victimization, not that such a victimization actually occurred. In fact, Wahl -Hermosillo testified

that the physical exam had no indications that M.P. had been raped. The parties below did not

dispute that intercourse as M.P. had described would be victimization; they disputed only the

truth of M.P.' s description. Thus, Woodard has failed to show a reasonable probability that but

for.trial counsel' s failure to object to Wahl-Hermosillo' s statement about victimization, the




  Woodard argues that Wahl-Hermosillo' s testimony defining rape denied Woodard a fair trial by
testifying to a legal conclusion. For the same reason he has failed to show prejudice under the
 ineffective assistance of counsel standard, Woodard has failed to show either actual and
 substantial prejudice or a fundamental defect resulting in a complete miscarriage ofjustice.
 Thus, Woodard' s claim fails whether it asserts an evidentiary or constitutional error.




                                                     Im
No. 45709 -1 - II


outcome of the trial would have been different. Therefore, Woodard has failed to show

prejudice.8

E.      Trial Counsel' s Failure To Object to Wahl- Hermosillo' s Testimony About the Study

        Woodard argues that trial counsel provided ineffective assistance by failing to object to

Wahl-Hermosillo' s testimony for referencing a study of 37 pregnant girls that was not admitted.

We disagree.


        Here, Wahl -Hermosillo gave a passing reference to the study of 37 pregnant girls without

providing any detail. If trial counsel had objected to Wahl-Hermosillo' s reference to the study, it

would have called attention to the study. Also, the State could have responded by eliciting

additional foundational information about the study to support her reference to the study, which

could have damaged Woodard' s case. Thus, it is a conceivable legitimate strategy to avoid

objecting to Wahl-Hermosillo' s passing reference to the study to avoid eliciting additional

testimony expanding upon the study' s legitimacy. Therefore, Woodard has failed to show that

trial counsel was deficient for failing to object to Wahl-Hermosillo' s testimony for referencing a

study of 37 pregnant girls that was not admitted.9


8 Woodard also argues that Wahl-Hermosillo' s testimony that intercourse as M.P. had described
would constitute victimization denied him his constitutional right to a fair trial. For the same
reason Woodard has failed to show prejudice under the ineffective assistance of counsel
standard, he has failed to show actual and substantial prejudice. Thus, his claim fails.

9 Woodard also argues that Wahl-Hermosillo' s testimony about the study of 37 pregnant girls
 denied him a fair trial by citing a study that was inadmissible under the evidence rules and the
test for novel scientific evidence articulated in Frye v. United States, 293 F. 1013, 1014 ( D. C.
 Cir. 1923). But Woodard has provided no information revealing the details of the study, and the
 record does not reveal the study' s details. Thus, Woodard has failed to show that competent and
 admissible evidence would establish that the study was inadmissible under the evidence rules or
 Frye, and his claim fails.




                                                  25
No. 45709 -1 - II



F.      Trial Counsel' s Failure To Object to the State' s Mischaracterization of 37 Pregnant
        Girls Study in Closing

        Woodard argues that trial counsel provided ineffective assistance by failing to object to

the State' s mischaracterization of the conclusion of the study of 37 pregnant girls referenced by

Wahl-Hermosillo' s testimony. We disagree.

        In closing, the State said that the study of 37 pregnant girls concluded that it' s difficult to
determine whether a hymen is intact, while Wahl-Hermosillo' s testimony supported only that the

study concluded that it is possible for a woman to have had intercourse and still have an intact
hymen. But Woodard does not explain how the State' s misstatement of the study' s conclusion is

more harmful to his case than the study' s actual conclusion. Thus, Woodard has failed to show a

reasonable probability that but for trial counsel' s failure to object, the outcome of his trial would
have been different. Therefore, Woodard has failed to show prejudice. lo

G.       Trial Counsel' s Decision Against Calling a Medical Expertfor the Defense

        Woodard argues that trial counsel provided ineffective assistance by failing to call a

medical expert for the defense. We disagree. ii




 io Woodard argues that we should grant his petition because the State' s mischaracterization of
the study constituted prosecutorial misconduct. In a PRP, prosecutorial misconduct can
 constitute constitutional error or nonconstitutional error, depending upon the specific misconduct
 at issue. See State v. Emery, 174 Wn.2d 741, 756- 57; 278 P. 3d 653 ( 2012); In re Pers. Restraint

 of Pirtle, 136 Wn.2d 467, 485, 965 P. 2d 593 (
                                                1998).         For the same reason he has failed to show
 prejudice under the ineffective assistance of counsel standard, Woodard has failed to show either
 actual and substantial prejudice or a fundamental defect resulting in a complete miscarriage of
justice. Thus, Woodard' s claim fails whether it asserts an evidentiary or constitutional error.

   Woodard also argues that trial counsel was ineffective for failing to consult with a medical
 expert, and requests a reference hearing on this issue. But Woodard failed to show through
 affidavits or other   forms   of corroboration   that   competent and admissible evidence will establish
No. 45709 -1 - II



          The State bears the burden of proving Woodard' s guilt beyond a reasonable doubt. State

v.   Bennett, 161   Wn.2d 303, 307, 165 P. 3d 1241 ( 2007). Here, the State' s two medical experts

both examined M.P. and reached contradictory conclusions as to whether M.P.' s hymen was

intact. Furthermore State medical expert Wahl -Hermosillo testified that M.P.' s physical exam

had no indications that M.P. had been raped. This testimony raised doubt in favor of Woodard.

While calling a third medical expert could have potentially resolved this doubt in favor of

Woodard, it could also have resolved this doubt against Woodard. Thus, it is a conceivable

legitimate tactic for trial counsel to argue that the State' s medical experts created reasonable

doubt, rather than call a third medical expert who could have resolved that doubt to Woodard' s

detriment. Therefore, Woodard has failed to prove that trial counsel was deficient.

H.        Trial Counsel' s Allegedly Incomplete Objection to the Rape Kit and Underwear

          Woodard argues that trial counsel provided ineffective assistance by failing to object to

the admission of the rape kit and underwear for a lack of chain of custody. We disagree.

          Here, trial counsel' s foundation objections to admitting the rape kit and underwear were

 chain of custody objections. This is evidenced by the colloquy about chain of custody after one
 of trial counsel' s foundation objections, as well as trial counsel' s voir dire about chain of custody

 after another foundation objection. Thus, because trial counsel' s foundation objections objected

 to a lack of chain of custody, Woodard has failed to show that trial counsel was deficient for

 failing to object to a lack of chain of custody.




 that trial counsel failed to consult with a medical expert. Thus, because Woodard has not made a
 threshold showing, he is not entitled to a reference hearing and his claim fails.


                                                    27
No. 45709 -1 - II


                              II. ADMISSION OF THE RAPE KIT AND UNDERWEAR

        Woodard argues that admission of the rape kit and underwear without a proper chain of


custody denied him a fair trial because the witnesses at trial could not identify the underwear,

Deputy Fulton could not identify the rape kit, and no witnesses traced the rape kit and underwear
to and from Orchid. We disagree.


        We review the trial court' s chain of custody rulings for an abuse of discretion. State v.

Campbell, 103 Wn.2d 1, 21, 691 P. 2d 929 ( 1984). " Before a physical object connected with the


commission of a crime may properly be admitted into evidence, it must be satisfactorily

identified and shown to be in substantially the same condition as when the crime was

committed."        103 Wn.2d    at   21.   When the evidence is susceptible to alteration by tampering or

contamination, the proponent of the evidence must " establish a chain of custody ` with sufficient


completeness to render it improbable that the original item has either been exchanged with

another or   been     contaminated or      tampered with."'          State v. Roche, 114 Wn. App. 424, 436, 59

P. 3d 682 ( 2002) ( emphasis         omitted) (   quoting United States v. Cardenas, 864 F.2d 1528, 1531

  10th Cir. 1989)).       In-assessirig the chain of custody' s completeness, the trial court shall consider

   the nature of the article, the circumstances surrounding the preservation and custody of it, and

 the likelihood     of   intermeddlers tampering      with   it."'    Campbell, 103 Wn.2d at 21 ( quoting

 Gallego   v.,   United States,. 276 F. 2d 914, 917 ( 9th Cir. 1960)).         Minor discrepancies in the chain


 of custody affect the weight of the evidence, not its admissibility. 103 Wn.2d at 21.




                                                             28
No. 45709 -1 - II



A.      Inability To Identify the Underwear

         Woodard argues that the underwear was inadmissible because the witnesses could


identify only the bag holding the underwear, not the underwear itself. We disagree.
         Engler testified that she watched M.P. remove the underwear and place it in the bag, and

that Engler sealed the bag with an evidence seal and placed her initials and time stamp on the

       Engler identified the   bag by the   evidence seal,   the time,   and   her initials. Shank testified she
bag.

removed the underwear from the sealed bag, conducted her tests, and resealed the underwear in

the bag. Shank identified the bag at trial.

         While Shank and Engler did not testify that they could identify the underwear itself, they

provided detailed testimony about how they sealed the underwear in the bag and identified the

bag at trial. This established the chain of custody with sufficient completeness to render it
improbable that the underwear had either been exchanged with another or been contaminated or

tampered with. Thus, the trial court did not abuse its discretion by deciding the chain of custody

was established. Therefore, Woodard' s claim fails.

B.       Fulton' s Inability To Identify the Rape Kit

         Woodard argues that the trial court erred by admitting the rape kit because Fulton could

 not identify the rape kit at trial. We disagree.

         Engler saw the rape kit before Deputy Fulton acquired it and identified the rape kit at

 trial, after Deputy Fulton had placed it in the refrigerator. Deputy Fulton testified that he took
 the rape kit from the hospital and placed it,in the refrigerator and sealed the refrigerator. Deputy

 Hensley testified she saw the rape kit, sealed, in the refrigerator. Deputy Hensley identified the
 rape kit at trial.




                                                      wt
No. 45709 -1 - II



        This shows that the rape kit did not significantly change from before Deputy Fulton

received it until after Deputy Fulton placed it in the refrigerator. Thus, even without Deputy

Fulton' s identification of the rape kit, the evidence establishes the chain of custody with


sufficient completeness to render it improbable that the rape kit had either been exchanged with

another or been contaminated or tampered with. Thus, the trial court did not abuse its discretion

by deciding the chain of custody was established, and Woodard' s claim fails.
C.      Transfer of the Rape Kit and Underwear to Orchid

        Woodard argues that the trial court erred by admitting the rape kit and underwear because

the testimony did not trace the rape kit and underwear to and from Orchid. We disagree.
        Three witnesses, Engler, Deputy Hensley, and Shank, saw the rape kit before Orchid had

tested it and identified the rape kit at trial after Orchid had tested it. Two witnesses, Engler and

Shank, saw the bag before- Orchid received it and identified the bag at trial after Orchid had
tested it. This shows that the bag and rape kit did not significantly change from before Orchid

received it until after Orchid returned it.' This sufficiently establishes the chain of custody.

Thus, the trial court did not abuse its discretion by deciding the chain of custody was sufficiently

 established, and Woodard' s claim fails.

                                        III. COMMENT ON THE EVIDENCE


         Woodard argues that the trial court commented on the evidence when it told the jury not

 to visit locations mentioned in the testimony because " conditions may not necessarily be the

                                  the   actions   took   place   that led to the   charges   being filed."   Petition at
 same as   they   were when all




 22- 23. We disagree.
No. 45709- 1- I1



        We review constitutional issues de novo. State v. Vance, 168 Wn.2d 754, 759, 230 P. 3d

1055 ( 2010).    Article IV, section 16 of the Washington State Constitution prohibits trial judges

from commenting on the evidence presented at trial. State v. Deal, 128 Wn.2d 693, 703, 911
P. 2d 996 ( 1996).    An impermissible comment on the evidence is one that conveys the judge' s

attitude on the merits of the case or permits the jury to infer whether the judge believed or

disbelieved   certain   testimony. 128 Wn.2d at 703.

        Here, the trial court' s statement occurred before any testimony was presented to the jury,

and was intended to communicate to the jurors that they should not visit locations referenced in

future testimony to collect information. The comment did not state what actions took place, and

did not state that Woodard committed a crime or that any crime was committed. Thus, we hold

Woodard has failed to show that the trial court' s comment either conveyed its attitude on the

merits of the case or permitted the jury to infer whether the trial court believed or disbelieved

certain testimony. Therefore, Woodard' s claim fails.
                                                  IV. JUDICIAL BIAS


        Woodard asserts the trial judge was biased against him because the trial judge said he

 was trying the case, told trial counsel to be quiet, and ruled against Woodard many times at trial.
 We disagree.


         We     review constitutional       issues de   novo.    Vance, 168 Wn.2d at 759. Criminal defendants


 have a due process right to a fair trial by an impartial judge. U.S. CONST. amends. VI, XIV;

 WASH. CONST.        art.   I, §   22; In re Pers. Restraint ofSwenson, 158 Wn. App. 812, 818, 244 P. 3d

 959 ( 2010).




                                                            31
No. 45709 -1 - II



          We generally review claims ofjudicial bias under the appearance of fairness doctrine,
which states     that "`    a judicial proceeding is valid only if a reasonably prudent and disinterested

observer would conclude           that all   parties obtained a        fair, impartial,   and neutral   hearing."'   State v.


Bilal, 77 Wn.        App.   720, 722, 893 P. 2d 674 ( 1995) (          quoting State v. Ladenburg, 67 Wn. App.

749, 754- 55, 840 P. 2d 228 ( 1992)).            But the party who argues that a judge has a bias must

support the claim with evidence; a claim unsupported by such evidence is without merit. State v.

Post, 118 Wn.2d 596, 619, 826 P. 2d 172, 837 P. 2d 599 ( 1992).                       Thus, before we will apply the

appearance of fairness doctrine, Woodard must show such evidence of a judge' s actual or

potential    bias.    118 Wn.2d at 619; Carter, 77 Wn. App. at 11- 12.

          First, the trial judge       stated   he   was "   trying the   case."   5 VRP at 160. This is a correct


statement. "[     T] ry"    means "[   t]o examine judicially; to examine and resolve ( a dispute) by means

of a   trial."   BLACK' S LAw DICTIONARY 1750 ( 10th                   ed.   2014). Thus, because the trial court was


examining Woodard' s case judicially, the trial court was trying the case. The statement is not
evidence of the trial judge' s actual or potential bias.

           Second, when trial counsel asked the trial court whether he could have his question to

 Barnes read back, the trial court initially responded by telling trial counsel " you can be quiet,"

 but eventually had the question read back. 4 VRP at 70. While the trial court' s comment may

 reveal the trial judge' s frustration, it does not constitute evidence of the judge' s actual or

 potential bias, particularly because the trial court complied with trial counsel' s request to have
 his question to Barnes read back.




                                                                  32
No. 45709 -1 - II



        Woodard' s other allegations of bias are simply a listing of the trial court' s rulings to

which Woodard disagrees, particularly the trial court' s rulings during closing argument. These

trial court decisions do not provide evidence of an actual or potential bias against Woodard, but

rather show legal determinations against Woodard' s interests. Thus, Woodard' s claim of judicial

bias fails.


                                       V. CUMULATIVE ERROR


          Woodard argues that accumulation of errors deprived him of a fair trial. See State v. Coe,

101 Wn.2d 772, 789, 684 P. 2d 668 ( 1984). We disagree.


          Under the cumulative error doctrine, we may reverse a defendant' s conviction when the

combined effect of trial errors effectively denies the defendant his or her right to a fair trial, even

if each error alone would be harmless. State v. Weber, 159 Wn.2d 252, 279, 149 P. 3d 646

 2006).    But the defendant bears the burden to show multiple trial errors and that the

accumulated prejudice from those errors affected the outcome of his or her trial. In re Pers.

Restraint of Cross, 180 Wn.2d 664, 690, 327 P. 3d 660 ( 2014). Because Woodard has failed to


 show any prejudicial errors, we hold that Woodard,has failed to meet his burden of showing that
the accumulated prejudice of multiple trial errors affected the outcome of his trial.




                                                    33
No. 45709 -1 - II



          We deny Woodard' s petition. 12

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

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

2. 06. 040, it is so ordered.




                                                                         Worswick, J.
 We concur:




               Q. C. J.
                          41C
 Bj` .   gen




 Lee, J.




 12 Woodard requests a reference hearing multiple times in his petition. If the parties' materials
 raise issues of material fact, we. order a reference hearing for the superior court to resolve them.
 Rice, 118 Wn.2d at 886- 87. But we will not remand for a reference hearing unless the petitioner
 has made his threshold showing. See 118 Wn.2d at 886- 87. On every issue raised by Woodard,
 either Woodard failed to make a threshold showing, or the parties' submissions to us did not
 raise any issues of material fact. See 118 Wn.2d at 886- 87. Thus, we do not order a reference
 hearing.



                                                     34
