                                                                                           FILED
                                                                                    COURT OF APPEALS
                                                                                         DIVISION 11

                                                                                   2015 FEB' 24 AM 9: 32

                                                                                   STATE OF WASHINGTON
                                                                                   BY
                                                                                           DEPUTY




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                     DIVISION II

 STATE OF WASHINGTON,                                                               No. 45398 -3 -II


                                          Respondent,


           v.



 BRIAN EDWARD WILSON,                                                        UNPUBLISHED OPINION


                                          Appellant.


          JOHANSON, C. J. —               A jury found Brian Edward Wilson guilty of third degree child

molestation      based   on an   incident    at a   Port Orchard   ferry   dock.   Wilson appeals, contending that

the trial court erred by allowing the State to use the term " victim" and by continuing the trial over

Wilson' s objection. Wilson also filed a statement of additional grounds ( SAG) alleging additional

error. We hold that (1) use of the term " victim" was not improper, but even if it were, any alleged

error   is harmless, ( 2)   the court properly granted Wilson' s trial attorney' s motion to continue even

over    Wilson'   s   objection, (   3)   Wilson' s ineffective assistance of counsel claim fails, and ( 4)


Wilson' s remaining SAG claims rely on facts outside the record and fail to inform this court as to

the nature and occurrence of other alleged errors such that we decline to review those claims.


Therefore,      we affirm.
No. 45398 -3 - II



                                                           FACTS


         In March 2013, Kitsap Transit driver Helen Henry pulled her bus into the passenger ferry

stop in downtown Port Orchard. As she did so, Henry noticed Wilson pressing against a young

woman. Henry could see that Wilson had his chin and arm over the woman' s shoulder and that he

was   blowing     cigarette smoke       in the   woman' s       face.    According to Henry, Wilson appeared to be

under   the influence      of alcohol,    drugs,   or   both.    Henry     asked    the young   woman,   H.B., if she was


okay and whether she needed Henry to call someone on her behalf. H.B. declined, then boarded

Henry' s bus.

         Laura Talkington was also at the passenger ferry dock on the day of the incident.

Talkington noticed H.B., a former acquaintance, who appeared frightened and distressed as Wilson


stood   behind H.B.        with   his   body   pressed against          her back.    When H.B. saw Talkington, H.B.

mouthed     the   word "
                           help."   3 Report of Proceedings ( RP) at 96. Talkington told Wilson that H.B.


was only 15 years old and that he needed to leave her alone. Talkington then informed two nearby

Port Orchard police officers that they needed to address the developing situation.

           Officer Patrick Pronovost and Officer David Walker responded to Talkington' s request.


Officer Pronovost saw Wilson leaning over H.B. According to Officer Pronovost, H.B. looked as

though she did not want Wilson to be there.


           H.B. explained that she was at the passenger. ferry dock when Wilson, whom she did not

know,   came      up to her   and attempted        to initiate   conversation.       H.B. did   not respond.   Despite her


refusal,   Wilson tried to kiss her.           Confused, H.B. backed away, but Wilson persisted, placing his

hand down H.B.'       s shirt and       touching her breast. Wilson then tried to kiss H.B. a second time.

After H. B. told the       police what    happened, the         officers placed     Wilson   under arrest.
No. 45398 -3 -II


          The State charged Wilson with third degree child molestation. 1 Before his trial, Wilson' s

attorney requested that the court continue the trial date, explaining that she needed additional time

to prepare:


          My investigator and I have been working with Mr. Wilson with regard to trying to
          locate some witnesses that he believes can be helpful in potentially providing a
          defense for him. It' s been a bit of a struggle to get identifying information for these
          witnesses.




RP ( May 16, 2013)          at   2.   The State objected. Wilson himself also protested, asking why his trial

date could not be sooner. But the trial court granted the motion over both objections.


          Before trial began, Wilson moved in limine to preclude the State from referring to H.B. as

the "   victim."    The State objected, and the trial court denied the motion. The trial court noted, and


Wilson did not disagree, that Wilson' s position was that he was not involved in any crime, not that

H.B. was not victimized in some capacity.

          The State'      s witnesses     testified consistently     with   the facts   as   described   above.   Wilson


called no witnesses and did not testify. Wilson' s defense was general denial.

          During trial, the State and a State witness used the term " victim" to refer to H.B. a total of

six times. First, the State asked a question regarding H.B' s demeanor:

           THE STATE] :          You briefly described the victim 's demeanor while she was still
                     sitting at the bus station. Did you have additional contact with the victim?
           OFFICER PRONOVOST]: Yes.




1 " A person is guilty of third degree child molestation when the person has, or knowingly causes
another person under the age of eighteen to have, sexual contact with another who is at least
fourteen years old but less than sixteen years old and not married to the perpetrator and the
perpetrator    is   at   least   forty -eight months   older   than the   victim."   RCW 9A.44. 089( 1).



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No. 45398 -3 - II



4 RP    at   118 (   emphasis added).       The third and fourth use of the word occurred as part of the


following exchange:

             THE STATE]:         So when you got there, what was your role in it?
             OFFICER         WALKER]:            We     arrived,       the   suspect   was   pointed    out,    and I
                      immediately recognized him. So I sort of gravitated to the suspect, since I
                      was   the lead   car and   I   was closer    to him.     So I went that way while Officer
                      Pronovost spoke to the victim.
             THE STATE]:         Okay. Did you ever have a chance to talk to the victim?

4 RP    at   123 -24 (     emphasis    added).       Officer Walker          also referred   to H.B.   as   the "   victim"   one



additional     time    on cross -examination.          Finally, the State referred to H.B. as the " victim" in its

closing argument, noting Wilson' s proximity to the " victim."

         The jury found Wilson guilty of third degree child molestation. Wilson appeals.

                                                          ANALYSIS


                                 I. IMPERMISSIBLE OPINION ON WILSON' S GUILT


         Wilson argues that the trial court violated his constitutional right to a fair trial in which the


jury is the sole judge of the facts when it allowed the State and its witnesses to refer to H.B. as the

 victim."      We hold that, in context, the State' s use of the term " victim" was not an impermissible


opinion on Wilson' s guilt, and even if it were, any error is harmless beyond a reasonable doubt.

         We review a trial court' s decision on a motion in limine for an abuse of discretion. State


v.   Powell, 126 Wn.2d 244, 258, 893 P. 2d 615 ( 1995).                       An abuse of discretion exists when a trial


court' s exercise of its discretion is manifestly unreasonable or based on untenable grounds or

reasons.      State   v.   Quaale, _    Wn.2d _,        340 P. 3d 213, 216 ( 2014).


              Generally, no witness may offer testimony in the form of an opinion regarding the guilt

or veracity of the defendant; such testimony is unfairly prejudicial to the defendant because it

invad[ es] the       exclusive province of the         [ jury]."   State v. King, 167 Wn.2d 324, 331, 219 P.3d 642

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No. 45398 -3 - II



 2009) ( internal    quotation marks omitted) ( alterations           in   original) (   quoting State v. Demery, 144

Wn.2d 753, 759, 30 P. 3d 1278 ( 2001)).              Admitting impermissible opinion testimony regarding the

defendant' s guilt may be reversible error because it violates a defendant' s constitutional right to a

jury trial, including the independent determination of the facts by the jury. Demery, 144 Wn.2d at

759.


          Thus, witnesses may not offer opinions on the defendant' s guilt, either directly or by

inference.     King,   167 Wn.2d       at   331 (   citing State. v. Black, 109 Wn.2d 336, 348, 745 P. 2d 12

 1987)).    Whether testimony constitutes an impermissible opinion on guilt or a permissible opinion

embracing an " ultimate issue" will generally depend on the specific circumstances of each case,

including the type of witness involved, the specific nature of the testimony, the nature of the

charges,    the type   of   defense,   and   the    other evidence    before the trier      of   fact.   City of Seattle v.

Heatley,    70 Wn.   App.    573, 579, 854 P. 2d 658 ( 1993), review denied, 123 Wn.2d 1011 ( 1994).


           Testimony that does not directly comment as to personal belief of the defendant' s guilt or

the veracity of a witness is helpful to the jury, and testimony that is based on inferences from the

evidence is not improper opinion testimony. State v. Blake, 172 Wn. App. 515, 528, 298 P. 3d 769

 2012),    review   denied, 177 Wn.2d 1010 ( 2013). " The fact that an opinion encompassing ultimate


factual issues supports the conclusion that the defendant is guilty does not make the testimony an

improper     opinion on guilt."        Heatley,      70 Wn.   App.   at   579.   And constitutional error, if any, is

harmless if the State establishes beyond a reasonable doubt that any reasonable jury would have

reached the same result absent the error. See Quaale, 340 P. 3d at 218 ( discussing constitutional

harmless     error as applied   to improper         opinions on guilt).
No. 45398 -3 -II



           Here, whether Wilson was in fact guilty of the crime clearly is an " ultimate issue" in the

case.      Accordingly, we view the references to H.B. as the " victim" in context, considering the

nature of the charges, the circumstances involved, the type of defense, and the nature of the


testimony. Bearing these factors in mind, the references to the " victim" here do not rise to the

level of impermissible opinions as to Wilson' s guilt. Officers Pronovost and Walker testified that


when they arrived on the scene, they encountered H.B. who was shaky, upset, and appeared

intimidated.         H. B.   explained         to the    officers what        had happened to her.         For purposes of their


investigation, H.B.          was       the "   victim"        as that term is used by law enforcement to refer to a

complaining witness.


           Moreover, the State merely asked the witnesses questions about whether they had an

opportunity to speak to the victim and questions regarding H.B.' s perceived demeanor at the time

of   the   incident. Neither the questions nor the responses give rise to an inference that the State


presented     impermissible            opinions as       to Wilson'      s guilt or   the veracity    of a witness.   To constitute


improper      opinion as      to   a   defendant'       s guilt,   the   testimony    must " relate   to the defendant."    State v.


Wilber, 55 Wn.         App.    294, 298, 777 P. 2d 36 ( 1989).                   No use of "victim" here related to Wilson


specifically. And importantly, Wilson' s defense was a general denial. Wilson denied committing

the crime, but he did not argue that no crime had been committed.

            Furthermore,      our courts        have previously held that             use of   the term " victim,"    while perhaps




not encouraged, was harmless beyond a reasonable doubt. In State v. Alger, 31 Wn. App. 244, 640

P. 2d 44,     review    denied, 97 Wn.2d 1018 ( 1982), a statutory rape case, the trial court read the


following     stipulation      to the     jury: '       There has been         a stipulation ...      that [ Alger] has never been


married     to the   victim.'"     31 Wn. App.           at   248 -49. The     court noted     that "[ i]n the context of a criminal




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No. 45398 -3 -II



trial, the trial court' s use of the term `victim' has ordinarily been held not to convey to the jury the

court' s personal opinion of the case."               Alger, 31 Wn. App. at 249. As such, the court held that " the

one reference to ` the victim' by the trial judge, did not, under the facts and circumstances of this

case, prejudice the defendant' s right to a fair trial by constituting an impermissible comment on

the   evidence."   Alger, 31 Wn. App. at 249.

         Here, the State presented four uncontroverted witnesses who corroborated important


aspects of   H.B.'   s version of      the   events.        Even were we to consider the references to H.B. as the


 victim" error, we hold that any error was harmless under the facts and circumstances of this case

because any reasonable jury would have reached the same verdict beyond a reasonable doubt

despite the alleged error.


                                                          II. TIME FOR TRIAL


         Wilson also argues that his time for trial rights were violated when the court continued his

case   beyond the         original   June 3 trial date         over   Wilson'   s   objection.   The State responds that


Wilson' s   claim    is   waived under           CrR 3. 3( f)(2).   We agree with the State and hold that Wilson' s


claim fails because the motion to continue was brought by Wilson' s trial attorney, who has the

authority to make binding decisions on his behalf.

          CrR 3. 3 governs time for trial and accords with the United States Supreme Court' s


determination that states can prescribe reasonable periods for commencement of trials consistent


with constitutional standards.              State    v.   011ivier, 178 Wn.2d 813, 823, 312 P. 3d 1 ( 2013).           Under


CrR 3. 3( b)( 1)( i),     an individual held in custody pending trial must be tried within 60 days of

arraignment.       But    certain    time   is   excluded     from the   computation of    this 60 -day   period,   including
No. 45398 -3 -II



continuances granted        by   the trial   court.   CrR 3. 3(     e).   With regard to continuances, CrR 3. 3( f)(2)


provides,




            On motion ofthe court or a party, the court may continue the trial date to a specified
            date when such continuance is required in the administration of justice and the
            defendant   will not   be   prejudiced    in the   presentation of     his   or   her defense....   The
            court must state on    the   record or    in writing the        reasons   for the   continuance.    The

            bringing of such motion by or on behalf of any party waives that party' s objection
            to the requested delay.

            Here, Wilson' s trial attorney sought to continue Wilson' s trial beyond the original time for

trial date because she needed additional time to work with her investigator to locate witnesses she

felt would be helpful to Wilson' s defense. Our Supreme Court has concluded that counsel has the


authority under CrR 3. 3( f)(2) to make binding decisions to seek continuances. 011ivier, 178 Wn.2d

at   825.     Consequently, as the rule expressly provides, we hold that any objection is waived.

011ivier, 178 Wn.2d at 824; CrR 3. 3( f)(2).

                                   III. STATEMENT OF ADDITIONAL GROUNDS


            Wilson advances a number of arguments that essentially amount to a claim of ineffective

assistance of counsel.        Specifically, Wilson contends that his trial attorney failed to present key

evidence and denied him a fair trial by not asking certain questions and by requesting that the court

proscribe the State from eliciting certain testimony from its witnesses.

            To prevail on an ineffective assistance of counsel claim, a defendant must show both


deficient performance and resulting prejudice; failure to show either prong defeats this claim. State

v.   McNeal, 145 Wn.2d 352, 362, 37 P. 3d 280 ( 2002).                      An appellate court reviews an ineffective


assistance claim de novo, beginning with a strong presumption that trial counsel' s performance

was adequate and reasonable and giving exceptional deference when evaluating counsel' s strategic

decisions. Strickland v. Washington, 466 U. S. 668, 689, 104 S. Ct. 2052, 80 L. Ed. 2d 674 ( 1984).

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No. 45398 -3 -II



When counsel' s conduct can be characterized as a legitimate trial strategy or tactics, performance

is not deficient. State v. Grier, 171 Wn.2d 17, 33, 246 P. 3d 1260 ( 2011).


        Here, the majority of Wilson' s claims of deficient performance by his trial attorney can be

characterized as legitimate trial tactics. Wilson takes issue with his trial attorney' s refusal to ask

Henry what time the incident occurred and with the way his attorney phrased some of her questions

during her cross -examination of the State' s witnesses. But the record reveals that these are clearly

strategic choices made by Wilson' s attorney in her attempt to aid in his defense.

        Wilson' s mention of his attorney' s request to prohibit the State from eliciting certain

testimony is a reference to a motion in limine made before trial to exclude testimony regarding

statements,    presumably     by   Wilson, taken     several      weeks   after     the incident.   Such a motion


represents a similarly tactical choice by Wilson' s attorney to prevent arguably irrelevant evidence

from prejudicing her client.

        Wilson' s claim that his attorney refused to present key evidence that Wilson alleges would

have   changed   the   outcome of   his trial   relies on   facts   outside   the   record.   And when a defendant


raises issues that require evidence or facts not in the existing record, the appropriate means of

doing   so   is through   a personal restraint petition.        State v. McFarland, 127 Wn.2d 322, 335, 899


P. 2d 1251 ( 1995).    Accordingly, Wilson' s ineffective assistance of counsel claim fails.2

         Separately, Wilson makes a number of inquiries regarding facts that are not in the record.

For instance, Wilson asks whether the police searched the area for other potential suspects or


whether they arrested the only intoxicated person in the area, whether the police tested his blood




2 Wilson also argues in his SAG that his attorney violated his time for trial rights by requesting to
continue his trial. We addressed this issue above and, therefore, address it no further here.

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No. 45398 -3 -II



alcohol levels, whether a nearby convenience store had a videotape of Wilson entering on the day

of the incident, whether the victim identified Wilson when the police arrived, and other similar


questions. But there are not corresponding facts in the record, and even if there were, Wilson does

not explain how the answers to these questions affected his case. We hold that Wilson has failed

to inform this      court   as   to the   nature   and occurrence   of   these   alleged errors.   RAP 10. 10( c).


Consequently, we decline to reach his additional issues.

          Affirmed.


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

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2. 06. 040,


it is so ordered.




 We concur:




 MAXA




LEE, J.




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