                                                                                                                    F3LU3
                                                                                                           COURT OF APPEALS
                                                                                                                 DIVISION Ii
                                                                                                          2014 JUN 17      AM 8: 34 .




      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                         DIVISION II

STATE OF WASHINGTON,                                                                     No. 43557 -8 -II


                                          Respondent,


            v.



TODD DALE PHELPS,                                                                  UNPUBLISHED OPINION


                                          Appellant.



            LEE, J. —      In 2012, a jury found Todd Dale Phelps guilty of third degree rape and second

degree      sexual misconduct with a minor.                 Phelps     appeals,   arguing: ( 1) the trial court violated his


and   the   public' s right    to   an open and public         trial   during jury   selection, ( 2)   the trial court violated


his   right      to be   present    during jury       selection, (   3) the information charging Phelps with second

degree      sexual       misconduct      with    a    minor   was      deficient, ( 4) the trial court failed to give a


unanimity         instruction for       the   second     degree   sexual    misconduct     with   a    minor   charge, (   5) the


prosecutor committed misconduct during closing arguments, and ( 6) Phelps' s trial counsel was

ineffective for          failing   to   object   to   prosecutorial      misconduct     during    closing    arguments.      We


affirm.
No. 43557 -8 -II



                                                                FACTS


A.          Background

                                                                AA1

            In the   summer of       2010, 16- year       -
                                                          old           played fastpitch softball on a travelling team

with    Todd Phelps'        s   18- year   -old   daughter.     Phelps served as an assistant coach on the team.


Because AA' s family could not travel to her tournaments that summer, she generally travelled

with    the Phelpses    and came       to think     of   them   as. a " second    family.    3 Report of Proceedings ( RP)


at   444.    AA often stayed the night at the Phelps' s home and viewed Phelps as a role model and

father figure.


            AA began experiencing personal issues during the summer that continued into the fall of

her    sophomore      year.       She cut herself, experienced depression, tried drugs, and contemplated


suicide.




            In the spring. of 2011, AA began playing softball for the Pe Ell High School team. Phelps

was a paid employee of the school, working as an assistant softball coach. Having heard rumors

about    AA' s   drug   usage,     Phelps     confronted      her   during   softball practice   in March 2011.     AA told


Phelps about some of her personal issues, but later indicated through social media that she


wanted to talk with him more.


            On March 26, Phelps drove AA to watch a softball game between two rival schools.


Before returning her home, Phelps stopped in a Pe Ell church parking lot to speak with AA.

During their conversation in the car, Phelps graphically recounted to AA a number of his sexual

experiences over the years. According to AA, Phelps related these stories so that she would have

 dirt   on   him"    and,   in turn,   she could     trust him      with   her   problems.   3 RP   at   457. Phelps told AA


1 To provide some confidentiality in this case, we use initials in the body of the opinion to
identify the minor victim.


                                                                    2
No. 43557 -8 -II'



that he was going to help her get through her problems but, in return, she would need to repay

him sexually   once she   turned 18.   Phelps also told AA he would start texting her to make sure

she was not cutting herself. When Phelps finally dropped AA at home, he instructed her to tell

her parents that she was late getting home because they had stopped to eat.

        Over the next few months, Phelps and AA texted each other thousands of times, often


using other people' s phones, and also communicated frequently through social media and e -mail.

AA' s parents and school officials became aware of Phelps' s frequent communications with AA,


and ultimately, Phelps was forced to resign his coaching position because of his involvement

with AA. Additionally, Phelps engaged in the following conduct with AA during this time:

        On April 2, Phelps engaged in sexual contact with AA.


        On April 6, Phelps kissed AA.


        On April 9, 12 and April 21, Phelps inappropriately touched AA.

        On July 27, Phelps engaged in sexual intercourse with AA.

In September, AA disclosed      having   sexual   intercourse   with   Phelps to her   family.   AA' s father


reported the incident to police.


B.      Procedure


        On November 10, 2011, the State charged Phelps with third degree rape and second


degree sexual misconduct with a minor. The State later amended the information to include two


aggravating   circumstances   for the third degree   rape charge: (     1) that Phelps used his position of


trust to facilitate the rape and ( 2) that AA was a particularly vulnerable victim.

        Jury selection for Phelps' s trial began on April 17, 2012. Prior to voir dire beginning, the

court informed the parties that it would conduct hardship questioning at the beginning of voir



                                                     3
No. 43557 -8 -II



dire, reserve its ruling until just before peremptory challenges, then " inform counsel as to who

will   be   excused."        1 RP ( Voir Dire) at 3.


            During      voir     dire, juror         no. 28 indicated that serving on the jury would be an

inconvenience because he had previously committed to chaperoning                                a
                                                                                                    trip. Juror no. 48 told the

trial court that serving on the jury would create a hardship because he was the only income-

earner      in his household         and      his   employer would not        pay for   jury duty. Without having excused

either juror, the court then indicated that it would revisit hardship excusals later.

            The trial      court    then   questioned       jurors   about potential conflicts or. bias.       1 RP ( Voir Dire)


at 8 - 10.     The court asked whether any of the potential jurors had " read or heard anything about

this   matter,"       whether " what you heard or read [ has] caused you to form any opinions that would

affect your        ability to   sit as a      fair   and   impartial juror,"   and whether anyone was " acquainted with



the    parties,    their   attorneys, or       the   potential witnesses."      1 RP ( Voir Dire) at 9. Juror no. 62 raised


his hand in response to all three questions.

             During the State' s voir dire, juror no. 62 stated:

             I live in the town          of   Pe Ell. I know         almost   every   person on [   the   witness]   list. I
             know them from              church.     I know —my wife worked at the school, coached some
             of   these girls.      And I run the day care which has some of the family members
             there.



1 RP ( Voir Dire) at 20. The following exchange then occurred:

              The Court]: ... [          C] ould I interrupt just for a moment?
              The State]:       Yes.
              The Court] :      Juror 62 was actually excused from this case earlier and I thought he
             knew that. You' re Mr. Kephart; is that right?
              Juror    no.   62]: Yes, sir.
              The Court]:       Yes.
              Juror    no.   62]:    I   was.       But you also told me I had to come and go through the
             process, so I' m here.




                                                                       4
No. 43557 -8 -II



         The Court]:          I think      we    had   a miscommunication.             But you told me all of those
        things    and   I thought ...           Well, at any rate, your [ sic] excused today-

1 RP ( Voir Dire)       at    21 -22.      Following a sidebar, voir dire continued with both parties eliciting

responses    from the    venire.          The    parties   then   had    a sidebar   discussion to     pick   the   jury.   Juror no.


28 and 48 were not selected for the jury.

        Phelps' s jury trial began later that day. AA testified to the incidents described above and,

specifically, that      she    did   not consent        to the    July   27, 2011     sexual     intercourse   with    Phelps.     On


cross- examination, Phelps' s attorney questioned AA about whether she told prosecutors that she

had consented to the intercourse:


         Defense       Attorney]:           During one of your interviews or maybe more than one
        interview      with [ the prosecutor],             did you tell her that you used the word rape later
        but the sex was consensual or that you consented?
         AA] :    No, I don' t remember saying that.
         Defense    Attorney]: All right. And let me follow                           that up.      When you tell us " I
        don' t    remember           saying that,"         does that      mean   that    you     could   have told [ the
        prosecutor] that?
         AA]:      Because when it first happened I tried to make myself believe it was
        consensual anyways                because I didn' t       want [   Phelps] — I didn' t want that to be who
        he   was   because, in          honesty, I really, really, really, really respected him. I
                                          all

        didn' t   want       this to happen. I didn' t want to have to do this. But no, I don' t

        remember ever            saying that.          But because of the fact that I tried to make myself
        believe that it was consensual, and there is a chance I probably could have said
        that.


5 RP at 880.


        After the State          rested,        Phelps had four     witnesses        testify   on   his behalf: his mother, his


wife, his daughter, and his sister - -
                                   in law. Phelps' s mother testified that Phelps was with her at the


time of the charged sexual misconduct on April 2. Phelps did not testify.

        During closing arguments, Phelps' s attorney argued that AA either consented to sexual

intercourse     with   Phelps        or   that the   July   27 incident      never occurred.         In its closing    rebuttal,   the
No. 43557 -8 -II



State   commented        that, "   I got to be quite honest with you today, I didn' t know the defense was

one of consent."         8 RP at 1580. Following this, the State argued without objection that, even if a

deputy prosecutor had written a note about consent during an interview with AA, the defense

attorney was not there at the time and " has no idea of [what the] context was of the interview.

He doesn' t       even   know   what     the   notes were about,        but    we' re obligated       to   give   them to him."   8


RP   at   1582.       The State then        argued       that   looking   at   all   the   evidence —      especially AA' s trial

testimony — was clear that AA did not consent to sexual intercourse.
           it


          The jury found Phelps guilty of second degree sexual misconduct with a minor and third

degree rape and also found, as aggravating factors to the rape conviction, that AA was

particularly       vulnerable      and   that Phelps used        his   position of     trust to facilitate the        rape.   Phelps


appeals.



                                                            ANALYSIS


A         PUBLIC TRIAL RIGHT


          Phelps first argues that the trial court violated his and the public' s right to a public trial


when it privately excused jurors during voir dire and held various in-camera proceedings

throughout trial.         Because Phelps fails to meet his burden of establishing that public trial

violations occurred, we disagree.


             1.   Standard of Review


          The Sixth Amendment to the United States Constitution and article I, section 22 of the

Washington State Constitution                  guarantee a      defendant the        right   to   a public   trial.   State v. Wise,


 176 Wn.2d 1, 9, 288 P. 3d 1113 ( 2012).                   This court reviews alleged violations of the public trial


right   de    novo.   Wise, 176 Wn.2d          at   9.
No. 43557 -8 -II



          Generally, a trial court must conduct the five - art test set forth in State v. Bone -Club, 128
                                                         p

Wn.2d 254, 906 P. 2d 325 ( 1995), to determine if                       a closed   proceeding is   warranted.   2 However,

    not every interaction between the court, counsel, and defendants will implicate the right to a

public    trial,   or constitute a closure      if   closed   to the    public."    State v. Sublett, 176 Wn.2d 58, 71,


292 P. 3d 715 ( 2012).          Accordingly, the threshold determination when addressing an alleged

violation of the public trial right is whether the proceeding at issue even implicates the right.

Sublett, 176 Wn.2d at 71.


          In Sublett, the Washington Supreme Court adopted a two -
                                                                 part " experience and logic" test

to   address   this issue: (   1) whether the place and process historically have been open to the press

and general        public ( experience     prong),      and (      2) whether the public access plays a significant




2
     The five criteria in Bone -Club are: •
           1. The proponent of closure or sealing must make some showing [ of a compelling
          interest], and where that need is based on a right other than an accused' s right to a
          fair trial, the proponent must show a ` serious and imminent threat' to that right.
          2. Anyone present when the closure motion is made must be given an opportunity
          to object to the closure.

           3. The proposed method for curtailing open access must be the least restrictive
          means available for protecting the threatened interests.
          4. The court must weigh the competing interests of the proponent of closure and
          the public.

           5. The order must be no broader in its application or duration than necessary to
           serve its purpose.
Bone -Club, 128 Wn.2d          at   258 -59 (                 in
                                                       quoting Allied Daily Newspapers of
                                                alteration         original) (

Washington v. Eikenberry, 121 Wn.2d 205, 210 -11, 848 P. 2d 1258 ( 1993)).



                                                                    7
No. 43557 -8 -II


                                                                                                                   3
positive role       in the      functioning       of a particular process        in   question ( logic   prong).       176 Wn.2d at


72 -73.   Both questions must be answered affirmatively to implicate the public trial right. Sublett,

176 Wn.2d          at   73.    If the public trial right is implicated, reviewing courts then look at whether a

closure actually occurred without the requisite Bone -Club analysis. State v. Paumier, 176 Wn.2d

29, 35, 288 P. 3d 1126 ( 2012).                    If   a closure   has     occurred, "[   f]ailure to conduct the Bone -Club


analysis    is   structural error        warranting       a new   trial."   Paumier, 176 Wn.2d at 35.

          2. Jurors no. 28 and 48


          Phelps contends that the " record does not reflect how or when [jurors no. 28 and 48] were


excused" and, accordingly, we should assume the trial court violated his right to an open and

public    trial.    Br.   of    Appellant    at   13.     We reject this argument because it misrepresents the record


in this case, and on appeal, Phelps carries the burden to demonstrate that a public trial violation

occurred.




          We have previously addressed the burden of proof on appeal for a public trial violation
claim.    In both State           v.   Halverson, 176 Wn.         App.      972, 977, 309 P. 3d 795 (     2013), review denied,

179 Wn.2d 1016 ( 2014),                   and     State   v.   Miller, 179 Wn.         App.   91, 316 P. 3d 1143 ( 2014),       we




stressed    that the          appellant     bears the burden        of     establishing    a public   trial   violation.   In every

public trial right case cited by Phelps in his briefing, the record clearly established a courtroom

closure.




3
     Although only four justices signed the lead opinion in Sublett, a majority adopted the
    experience and            logic" test   with    Justice Stephens'        s . concurrence.   176 Wn.2d at 136 ( Stephens,
J., concurring).   More recently, our Supreme Court cited Sublett in unanimously applying the
    experience and logic" test in In re Personal Restraint of Yates, 177 Wn.2d 1, 28 -29, 296 P. 3d
872:( 2013).




                                                                       8
No. 43557 -8 -II



            For example, in Bone -Club, the trial court expressly ordered a courtroom closure during a
                                                                                                                        4
pretrial     suppression               hearing.     128 Wn.2d         at     256..   Also, in State   v.   Brightman,       In re Pers.


Restraint of Orange, 5                  and State v. Njonge, 6 the trial court explicitly ordered closures or told the

public that they could not attend voir dire proceedings because of space and security concerns.

And in State            v.    Leyerle, 158 Wn.                App.    474, 477, 242 P. 3d 921 ( 2010),           the record clearly

reflected ( and both parties agreed) that the trial court and both parties questioned a potential juror

in a hallway outside the courtroom. Finally, in Paumier, 176 Wn.2d at 33, Wise, 176 Wn.2d at 7,

and    State      v.   Strode, 167 Wn.2d 222, 224, 217 P. 3d 310 ( 2009),                             the trial court individually

questioned           jurors in         camera     during      voir   dire.     In all these cases, the appellate record clearly

established that the public was inappropriately excluded from some portion of a public trial.

            Here, in contrast, nothing in the record establishes that a closure occurred during voir dire

or   that   jurors      no.   28       and   48   were   privately     questioned or        dismissed from the   jury   pool.   Before


voir dire commenced, the trial court stated that " if there are people, as I assume there will be,


indicating that the length of the trial is a problem, I will do the questioning on that and then

reserve     ruling       until     I   see —   until just before peremptory challenges and I' ll inform counsel as to

who will         be    excused and who will              be   retained."       1 RP at 3.


            During voir dire, jurors no. 28 and 48 both indicated that the timing and length of the trial

would       be   a    hardship. Just as the trial court indicated, it refrained from excusing these jurors at




4 155 Wn.2d 506, 511, 122 P. 3d 150 ( 2005).

5 152 Wn.2d 795, 802, 100 P. 3d 291 ( 2004).

6
    161 Wn.       App.       568, 571 -72, 255 P. 3d 753 ( 2011), review granted, No. 86072 -6 ( Wash. Apr. 8,
2013)



                                                                              9
No. 43557 -8 -II



this preliminary           phase of voir       dire.     Instead, the record reflects that juror no. 28 was actively

involved during voir dire, and that juror no. 48 was at least mentioned at the end of voir dire.

         At the close of voir dire, the parties had a sidebar discussion to exercise peremptory

challenges and pick             the    jury.   Jurors    no.   28   and   48   were not selected         for the jury. The record


does not reflect that jurors no. 28 and 48 were excused outside of the courtroom or that any type

of courtroom closure occurred.                     Because the record does not establish that jurors no. 28 and 48


were excused during a closed proceeding, Phelps has failed to meet his burden of establishing a

public trial violation.


         To the extent that Phelps argues that a public trial right violation occurred when the


parties selected          the   jury   at sidebar,     this   argument     has been      rejected.      In State v. Love, 176 Wn.


App.    911, 920, 309 P. 3d 1209 ( 2013), Division Three                          of   this   court   held that "[ n] either prong of


the experience and logic test suggests that the exercise of cause or peremptory challenges must

take   place   in    public,"     and " the trial court did not erroneously close the courtroom by hearing the

defendant'     s    for   cause challenges at sidebar."             176 Wn. App. at 920. In so holding, the Love court

reasoned       that logic " does             not   indicate that [        cause   or    peremptory]         challenges need to be


conducted       in    public,"     and    that,    with regard      to Sublett'    s experience         prong, " over 140 years of


cause and peremptory challenges in this state" showed " little evidence of the public exercise of

such challenges, and some evidence                      that   they   are conducted           privately."   Love, 176 Wn. App. at

919.    We adopt the reasoning of the Love court and hold that exercising for cause challenges at

sidebar during jury selection does not implicate the public trial right.


7
    In State   v.   Dunn,              Wn.   App. ,            321 P. 3d 1283 ( 2014), we adopted the reasoning of the
Love court and held that exercising peremptory challenges at the clerk' s station does not
implicate the public trial right.



                                                                      10
No. 43557 -8 -II



         3.    Juror no. 62


         Phelps       next argues     that the colloquy between the trial              court and     juror   no.    62 "      suggests




that jurors    were questioned and excused                behind    closed   doors."    Br.    of   Appellant      at   13.      Phelps


further argues that although juror no.. 62 was excused for cause on the record in open court, we


should assume a public trial violation occurred before or during voir dire.

         This argument again misstates the defendant' s burden of proof on appeal for a public trial

violation claim.        While Phelps is correct that in camera or outside -of the- courtroom questioning
                                                                              -

of venire members may violate the public trial right, it is Phelps' s burden to establish a violation

and perfect     the   record   for   appellate review.      Miller, 179 Wn.      App.           at 1114, 316 P. 3d at 1148.


         Here, the record is unclear as to when, where, or why the trial court previously spoke

with   juror   no.    62. Thus, this claim relies, at least in part, on facts outside the record on appeal,


and we    do    not address      issues    on    direct   appeal    that rely   on   facts    outside   the record.           State v.


McFarland, 127 Wn.2d 322, 335, 899 P. 2d 1251 ( 1995).                               Accordingly, we hold that, on the

record before us, Phelps has not established that a public trial right violation occurred in regard


to the questioning ofjuror no. 62.

         4. Other Proceedings


         Phelps       next argues     that "[   t]he trial court erroneously held additional in camera hearings

without   undertaking Bone -Club            analysis."     Br. of Appellant at 14. But Phelps fails to adequately

explain what these in camera proceedings concerned, whether they implicated the public trial

right, and     how any     violation of     the   public   trial   right occurred.     We do " not consider conclusory

arguments unsupported            by   citation    to authority."        State v. Mason, 170 Wn. App. 375, 384, 285

P. 3d 154 ( 2012),        review      denied, 176 Wn. 2d 1014 ( 2013);               see     also   RAP 10. 3(     a)(   6). "     Such




                                                                   11
No. 43557 -8 -II



 p] assing treatment of an issue or lack of reasoned argument is insufficient to merit judicial
consideration. "'           West        v.   Thurston         County,        168 Wn.      App.    162, 187, 275 P. 3d 1200 ( 2012)


 quoting Holland            v.   City    of Tacoma, 90 Wn.              App.       533, 538, 954 P. 2d 290 ( 1998)).          Accordingly,

we refrain from addressing this argument.

B.         RIGHT TO BE PRESENT


           Phelps next argues that the trial court " violated his Fourteenth Amendment right to be

present at all critical stages of                 trial"      by   excusing jurors in his          absence.       Br. of Appellant at 17.


Because nothing in the record reflects that the trial court excused jurors in Phelps' s absence, we

disagree.


           Whether a defendant' s constitutional right to be present has been violated is a question of

law   reviewed         de   novo.        State    v.   Irby,    170 Wn. 2d 874, 880, 246 P. 3d 796 ( 2011).                     A criminal


defendant has          a constitutional right                to be   present at all critical stages of             the   proceedings.   Irby,

170 Wn.2d         at    880. "[      A] defendant has a right to be present at a proceeding ` whenever his

presence has a relation, reasonably substantial, to the fulness [ sic] of his opportunity to defend

against    the   charge."
                                  Irby, 170 Wn.2d at 881 ( quoting Snyder v. Mass., 291 U.S. 97, 105 -06, 54

S. Ct. 330, 78 L. Ed. 674 ( 1934),                          overruled in part on other grounds by Malloy v. Hogan, 378

U. S. 1,    84 S. Ct. 1489, 12 L. Ed. 2d 653 ( 1964)). "                                 The core of the constitutional right to be


present    is the      right     to be       present when evidence                 is   being   presented."       In re Pers. Restraint of

Lord, 123 Wn.2d 296, 306, 868 P. 2d 835 ( 1994). "                                      A violation of the due process right to be


present    is   subject     to harmless          error analysis."            Irby,   170 Wn.2d     at   885. "[   T]he burden of proving

harmlessness is          on      the State     and     it   must   do   so   beyond      a reasonable     doubt."    State v. Caliguri, 99


Wn.2d 501, 509, 664 P. 2d 466 ( 1983)).




                                                                              12
No. 43557 -8 -II



          Here, Phelps           argues   that "[   a] t some point, the trial court questioned and excused jurors

outside       the courtroom"       and,   this   process " affected        the makeup —and hence the fairness —of the



jury   that    presided over [      his] fate."      Br.   of   Appellant    at   18.   As explained above, nothing in the

record suggests        that any     jurors     were   dismissed in Phelps'          s absence.   Jurors no. 28 and 48 were


excused       for   cause   in   open court,     in Phelps'     s presence.       And juror no. 62 was excused for cause


on the record in open court. Phelps has failed to meet his burden of establishing error.

          To the extent that Phelps argues that his right to be present was violated because jurors

were dismissed at sidebar, this claim also fails. Here, the record is not clear as to whether Phelps

was     present     when     the   attorneys      exercised      their for   cause      challenges   at   sidebar.   Phelps was


present during voir dire, and it appears that Phelps' s claim is based on the allegation that he did
                                                                                                 8
not    join   counsel at sidebar when            they    exercised   for   cause challenges.         There is no indication in


the record that he did or did not accompany counsel when counsel exercised for cause challenges

at    sidebar.      Because the record is unclear whether Phelps was present at sidebar during the

exercise of for cause challenges, the claim relies, at least in part, on facts outside the record on

appeal.        We do not address issues on direct appeal that rely on facts outside the record.

McFarland, 127 Wn.2d at 335.


C.        DEFICIENT CHARGING DOCUMENT


          Phelps next argues that the information charging him with second degree sexual

misconduct with a minor was deficient because it failed to allege that AA was not more. than 21


years    old at     the time       of   the   offense.     Because this apparently missing element may be fairly

implied from the charging document, we disagree.

8
     Phelps has presented no authority that " being present" requires standing beside counsel during
a sidebar.




                                                                    13
No. 43557 -8 -II



            We    review     challenges            to the sufficiency        of a     charging document de       novo.   State v.


Williams, 162 Wn.2d 177, 182, 170 P. 3d 30 ( 2007).                                 When, as here, a defendant challenges an


information' s sufficiency for the first time on appeal, we liberally construe the document in favor

of    validity.    State   v.    Kjorsvik, 117 Wn.2d 93, 105, 812 P. 2d 86 ( 1991). "                       Words in a charging

document are read as a whole, construed according to common sense, and include facts which

are    necessarily implied."                 Kjorsvik, 117 Wn.2d               at    109.   This court' s standard of review


comprises         an essential- elements            prong                  prejudice
                                                             and an actual -                 prong.      Kjorsvik, 117 Wn.2d at


105.       Under the essential -elements prong, the reviewing court looks to the information itself for

some language that gives the defendant notice of the allegedly missing element of the charged

offense.      Kjorsvik, 117 Wn.2d                  at   105 -06.    If that language is vague or inartful, then this court


determines under the actual -prejudice prong whether such language prevented the defendant

from receiving actual notice of the charged offense, including the allegedly missing element.

Kjorsvik, 117 Wn.2d at 106.


            Here, the third amended information states:

                      On or about and between March 25, 2011 through April 3, 2011, in the
            County of Lewis, State of Washington, the above -named defendant, ( b) being at
            least sixty ( 60) months older than the student and being a school employee and
            not being married to the student and not being in a state registered domestic
            partnership with the student, did have, or knowingly cause another person under
            the age of eighteen ( 18) to have, sexual contact with a registered student of the
            school    who        is   at   least    sixteen (   16)    years   old,    to -
                                                                                          wit:   [   AA] ( DOB: [ 1994]);

            contrary to the Revised Code of Washington 9A.44. 096.

Clerk' s Papers ( CP) at 43.


            To convict Phelps of second degree sexual misconduct with a minor, the State had to

prove      beyond     a reasonable         doubt that ( 1) Phelps had          sexual contact with        AA, (2) AA was at least


 16   at   the time   of   the   contact     but    younger        than 21, ( 3) AA     was not married     to Phelps, ( 4) Phelps




                                                                        14
No. 43557 -8 -II



was at      least 60   months older         than AA    at   the time     of   the sexual contact, ( 5)    Phelps was employed


by    the   school,     and (   6) AA       was   an   enrolled    student        of   the   school   employing Phelps.    RCW


9A.44. 096.


            Phelps argues that the charging document is insufficient under the essential -elements

prong of the Kjorsvik test because it failed to explicitly state that AA was younger than 21 at the

time of the crime. Although iriartfully written, the State' s charging document plainly states AA' s

date of birth, indicating that she was 16 at the time of the alleged sexual misconduct. Moreover,

the document lists the               charged   crime    itself   as "   sexual misconduct with a minor in the second

                                                                           9
degree,"      implying      the involvement            of   a " minor. "         CP    at    43.   Keeping in mind the liberal

standard in Kjorsvik, it is clear that, whether the age of majority specific to these circumstances

was 18 or 21, Phelps had notice that the charged crime involved sexual contact with someone

younger       than the    age of      majority.    Accordingly, the missing element can be " fairly implied" in

these circumstances. Kjorsvik, 117 Wn.2d at 104.


            Although the missing element can be fairly implied, we must determine under the actual -

prejudice      prong      whether      the   defendant       can "      show that he or she was nonetheless actually

prejudiced      by     the inartful language which caused                  lack   of notice."       Kjorsvik, 117 Wn.2d at 106.


Here, Phelps cannot establish prejudice.


            Even if the charging document explicitly stated that the victim must be under .21 years of

age,    Phelps'   s    potential      defenses (   consent       or     alibi)   were not affected as it was undisputed


throughout trial that AA was 16 years old at the time the alleged sexual misconduct occurred.


9
     Although "      minor"     is    not   defined in RCW 9A.44. 096,                  under      Washington law "[   e] xcept   as

otherwise specifically provided by law, all persons shall be deemed and taken to be of full age
for    all purposes at     the   age of eighteen years."                RCW 26. 28. 010. RCW 9A.44. 096 is one of the
rare exceptions where it is possible for someone over 18 to be treated as a minor.


                                                                      15
No. 43557 -8 -II



 The primary goal of the essential elements rule is to give notice to an accused of the nature of

the   crime   that he   must   be   prepared   to defend     against."         State v. Lindsey, 177 Wn. App. 233, 245,

311 P. 3d 61 ( 2013) ( citing Kjorsvik, 117 Wn.2d                 at   101).    Therefore, based on facts in this record,


whether Phelps thought he was defending against the charge that he had inappropriate sexual

contact with a 16- year -old or with someone under the age of 18 or under the age of 21 is

immaterial.       Accordingly, Phelps has failed to show that he was prejudiced by the inartful

language in the charging document, and Phelps' s argument fails.

D.        UNANIMITY INSTRUCTION


          Phelps next argues that the trial court violated his right to a unanimous jury verdict by

failing to give a unanimity instruction for the second degree sexual misconduct with a minor

charge.       Specifically, he      argues   that the State "      presented evidence that Mr. Phelps had sexual


contact with [ AA] on multiple occasions."                  Br.   of   Appellant    at   23.   While it is true that the State


presented evidence of multiple acts of sexual misconduct in this case, the jury instructions

clearly indicated that the charged crime only involved acts " on or about and between March 26,

2011 through April 2, 2011."            CP     at   152.   At trial, the only evidence presented of sexual contact

during    this time frame involved the April 2 incident.                        Accordingly, no election or unanimity

instruction was required.


          We review alleged instructional errors de novo. State v. Sibert, 168 Wn.2d 306, 311, 230

P. 3d 142 ( 2010). "     Criminal defendants in Washington have a right to a unanimous jury verdict."

State   v.          Martinez, 124 Wn.2d 702, 707, 881 P. 2d 231 ( 1994).
             Ortega -                                                                                Accordingly, when the

State presents evidence of multiple acts that could each form the basis of one charged crime,

 either the State must elect which of such acts is relied upon for a conviction or the court must




                                                                  16
No. 43557 -8 -II



instruct the jury to       agree on a specific criminal act."                   State v. Coleman, 159 Wn.2d 509, 511, 150


P. 3d 1126 ( 2007).              This   requirement " assures             a unanimous            verdict   on   one   criminal   act"   by

 avoid[     ing]   the   risk   that jurors      will   aggregate        evidence      improperly."        Coleman, 159 Wn.2d at


512. "      Where there is neither an election nor a unanimity instruction in a multiple acts case,

omission of        the unanimity         instruction is        presumed       to   result   in   prejudice."    Coleman, 159 Wn.2d


at   512.     Reversal is required unless we determine the error is harmless beyond a reasonable


doubt. Coleman, 159 Wn.2d at 512.


            Here, the trial court instructed the jury that, to convict Phelps of second degree sexual

misconduct with a minor,                 the State       needed     to   prove      beyond       a reasonable     doubt "[ t] hat on or


about and between March 26, 2011 through April 2, 2011, the defendant had sexual contact with

 AA]." CP at 152. The trial court defined " sexual contact" as:


                     Sexual contact means any touching of the sexual or other intimate parts of
            a person     done for the      purpose of          gratifying     sexual   desires     of either    party. Contact
            is " intimate"        if the conduct is of such a nature that a person of common
            intelligence could fairly be expected to know that, under the circumstances, the
            parts touched were intimate and therefore the touching was improper.
                     When considering whether a particular touching is done for the purpose of
            a gratifying sexual desire, you may consider among other things the nature and
            the circumstances of the touching itself.

CP at 153.


            At trial, the State presented evidence of only one incident involving sexual contact

between AA          and   Phelps       during    the    date   range     in   question.     This was the April 2 incident where


Phelps straddled AA while she was on his bed, kissed her on the lips; put his tongue in her

mouth, and ground               his   erection   between her legs.             Because the State presented evidence of only

one incident involving sexual contact between AA and Phelps during the date range in question,




                                                                         17
No. 43557 -8 -II



it was not required to make an election, and the trial court did not err in refraining from giving a

unanimity instruction in this situation.

          Phelps also argues that a unanimity instruction was required because the State presented

evidence    of more        sexual misconduct after           April 2.    This   argument   is unavailing.   As already

discussed, the State charged Phelps with committing sexual misconduct between a specified date

range, March 26 to April 2, and the jury instructions repeated that the jury had to find that the

misconduct      occurred         during     that date    range.    We presume that juries follow the trial court' s


instruction.    State v. Hanna, 123 Wn.2d 704, 711, 871 P. 2d 135, cert. denied, 513 U. S. 919


 1994).     Accordingly, while the State admittedly presented evidence of other acts involving

sexual contact, none of those acts took place in the specified date range and could not have been

the basis for the jury' s conviction on the sexual misconduct charge.

E.        PROSECUTORIAL MISCONDUCT


          Phelps last argues that the prosecutor committed misconduct during closing argument.

We disagree.


          To   prevail on a prosecutorial misconduct claim,                 the defendant    must establish "'   that the



prosecutor' s conduct was both improper and prejudicial in the context of the entire record and


the circumstances           at   trial. '   State   v.   Thorgerson, 172 Wn.2d 438, 442, 258 P. 3d 43 ( 2011)


 quoting State       v.   Magers, 164 Wn. 2d 174, 191, 189 P. 3d 126 ( 2008)).              We look to " the evidence


presented, `   the context of the total argument, the issues in the case, the evidence addressed in the

argument,      and      the instructions given to the             jury ' when looking at the context of the entire

record.    State   v.     Monday,     171 Wn.2d 667, 675, 257 P. 3d 551 ( 2011) (          quoting State v. McKenzie,

157 Wn.2d 44, 52,                134 P. 3d 221 ( 2006)).          Moreover, a defendant' s failure to object to an




                                                                   18
No. 43557 -8 -II



improper remark constitutes a waiver of error unless the remark is so flagrant and ill intentioned

that it causes an enduring and resulting prejudice that could not have been neutralized by a

curative instruction to the jury. State v. Emery, 174 Wn.2d 741, 760 -61, 278 P. 3d 653 ( 2012).

        During closing statements, Phelps' s attorney argued to the jury that:

        You     can   find [Phelps]        not guilty for        the    rape   for two    reasons.        There was no rape
        and [   Phelps]      wasn'   t there.    And I' m going to             give you arguments               for both. [ AA]
        tells us that she disclosed to her aunt, disclosed to her mom and dad, and
        disclosed to [ police] that she had sexual intercourse with Todd Phelps.
                   And      on cross -examination,           I   asked      her   about some of           that   stuff.   And on
        some of       my     questions she agreed, "             I didn' t say     no."       And she can come in here
        and testify this is the detailed sequence of events, but she can' t get away from the
        other things she' s already told her aunt and mom and dad and [ police].
                And then the prosecutor, why would the prosecutor have in her notes that
         AA] said she consented? Why would the prosecutor have in her notes that [ AA]
        said she consented if [
                              AA] didn' t consent ? ".. .


                    And I guess during their conversations during their seemingly private
        conversations when she was talking with the prosecutor and not with me, she told
        them that it        was consensual.        She can' t get away from that.

8 RP at 1 571 -72.


        In its rebuttal, the State argued the following without objection,

        I will be as brief as possible, but I definitely need to address these points that
         defense counsel] has raised because I got to be quite honest with you today, I
        didn' t know the defense             was one of consent.               So I guess [ Phelps] was either there
        or   he   wasn'     t.   If he was there, you are to believe that [ AA] consented somehow.
        Well, let'      s work     through that.        So if you believe [ AA] that [ Phelps] was there, is
        there any evidence at all, at all, that [ AA] consented?
                    The only evidence that [ defense counsel] wants you to hang your hat on is
        that he had [ AA]           when she was cross -examined,                   say—       agreed     that ...       when she

        was       giving     a   statement      that   she   said, "     No, I didn' t stop him."                  But when I
        questioned her with regard to that as to when that conversation was in relation to,
        she was specific.           It   was after     he had already          entered    her      with   his   penis.    She was
        clear about that. It was not beforehand. It was after.


                    Now, the other thing that [ defense counsel] tries to discredit [ AA] with
        regard     to   consent     is   some notes      that the Prosecutor'             s   Office had.        He asked her,
        well,     didn' t    you   have    an   interview        with   the Prosecutor'        s   Office?       Unfortunately,


                                                                       19
No. 43557 -8 -II



          defense     counsel]    wasn' t    there.    He'   s   grasping   at straws   to   get   anything. He has
         no   idea    of [what    the]   context was of          the interview.    He doesn' t even know what
         the notes were about, but we' re obligated to give them to him. Not dated.

                     So   which   is it? Was [ Phelps] there and he raped [ AA] or had sex with her
         or he wasn' t there?


8 RP at 1580 -82.


         Phelps contends that the prosecutor' s statement that he did not realize that consent was at

issue implied " that the defense had been forced to                     change    theories based     on   the   evidence."      Br.


of   Appellant   at   28. "[   T] he prosecutor, as an advocate, is entitled to make a fair response to the


arguments of        defense    counsel."     State    v.   Russell, 125 Wn.2d 24, 87, 882 P. 2d 747 ( 1994),                   cent.




denied, 514 U.S. 1129 ( 1995)                Here, a fair reading of the record does not reflect that the

prosecutor' s comment was " calculated                to inflame the        passions or prejudices of           the   jury."   In re


Pers. Restraint of Glasmann, 175 Wn.2d 696, 704, 286 P. 3d 673 ( 2012).                               Instead, although the

                          surprised10




prosecutor     was                       by the defense' s argument that AA had consented to sexual

intercourse with Phelps and expressed that surprise in its brief comment, the prosecutor then


went on to explain why the evidence could not support a theory of consent, especially in light of

AA'    s extensive    testimony. " It is     not misconduct ...             for a prosecutor to argue that the evidence


does   not support     the defense       theory." Russell, 125 Wn.2d at 87.

          Phelps also argues that the prosecutor' s statement that defense counsel was " grasping at

straws   to   get   anything"     while discussing AA' s interview with the prosecutor' s office was an




10 Throughout trial, Phelps' s defense focused almost exclusively on establishing that Phelps
could not have committed the rape when the State argued it occurred and, additionally, that no
evidence of the rape remained at the crime scene.




                                                                   20
No. 43557 -8 -II



inappropriate comment on the evidence and that this expressed the prosecutor' s personal opinion


about Phelps' s guilt. 8 RP at 1582. This argument is unpersuasive.


        First, Phelps' s argument about consent relied exclusively on a handwritten note in the

margin of a statement          seemingly     written    by   one of    the   prosecutors.      It was appropriate for the


prosecution to point out that defense counsel was not at the interview and could not know the

context of the note or what the prosecutor was thinking when the note was written. Russell, 125

Wn.2d      at   87.     Second, the " grasping         at   straws"    comment was clearly directed to defense

counsel' s theory of the case and did not reflect the prosecutor' s personal view of Phelps' s guilt

or   innocence.         8 RP   at   1582.    Phelps fails to establish prosecutorial misconduct in these

circumstances.




F.      INEFFECTIVE ASSISTANCE OF COUNSEL


        Phelps also argues that his trial counsel was ineffective for failing to object to the

prosecutor' s         above -described     statements       in closing    argument.          To demonstrate ineffective


assistance,      a    defendant     must   show   that ( 1)     defense counsel' s representation was deficient


because it fell below an objective standard of reasonableness; and ( 2) the deficient representation

prejudiced the defendant because there is a reasonable probability that the result of the

proceeding       would     have been different      except     for    counsel' s   errors.    McFarland, 127 Wn.2d at


334 -35.    Here, because Phelps fails to establish prosecutorial misconduct, he cannot show that


his trial counsel was deficient for failing to object, and this argument necessarily fails.




                                                               21
No. 43557 -8 - II



        We affirm.


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

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

2. 06. 040, it is so ordered.




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