Opinion
Nos. 60569-1-I; 61161-5-I.
April 13, 2009.
Appeals from a judgment of the Superior Court for King County, No. 06-1-05678-3, Nicole Maclnnes, J., entered September 10, 2007.
Affirmed by unpublished opinion per Appelwick, J., concurred in by Grosse and Cox, JJ.
The State charged Cheng, a massage therapist, with two counts of second degree rape for improperly touching two women. After the court found that the evidence of each count would be cross-admissible under the ER 404(b) common scheme or plan exception, the two counts were tried together. The jury convicted Cheng of both charges. He appeals the court's denial of the motion to sever, the determination that the testimony of the two victims was cross-admissible, and the sufficiency of the evidence of one count, as well as various evidentiary rulings. He also claims prosecutorial misconduct. Because we find that no errors occurred, we affirm.
FACTS
Charlie Cheng, a massage therapist and owner of Dr. Cheng's Muscle Rehab Clinic, was charged with two counts of rape in the second degree for improperly touching two clients. The victim in Count I was K.R. The victim in Count II was V.C. Cheng's version of the facts contradicts the victims' version.
Count I
K.R., who routinely sees alternative treatment providers, was referred to Cheng for treatment of back pain in November 1997. She received massages in which no misconduct occurred. After her back pain subsided, she and Cheng discussed her low energy and low libido. K.R. testified that the treatment changed, in January 1998, to focus on breathing patterns, with Cheng directing her to breath from her navel up to her head and out through her groin area, in order to move the fluids in that area of her body. K.R. explained that in February 1998 Cheng began touching her breasts, first over her gown, then under her gown, and then touching her vaginal area over her underwear. During the frequent sessions, Cheng would repeat this pattern and then began to touch her vaginal area without underwear, including touching her clitoris. K.R. explained that she did not report the improper touching, because she was "buying into this alternative treatment."
On April 12, she saw Cheng for a massage during which the same pattern of touching her breasts and vagina continued, but he also sucked on her nipples. When she was leaving, Cheng asked how she was feeling and she replied that she was "tired." Next, Cheng told her to return to the massage room, where he had her remove her bra and unbutton her jeans. He touched her breasts, and put his mouth on her nipples. Then he sat behind her and touched her breasts and vagina again, pulsating around her clitoris, but never going "inside her vagina." K.R. alleged that, as she left, she asked Cheng why he was touching her breasts and vagina. Cheng explained that there were internal meridian lines he had to access.
K.R. filed a complaint with the Department of Health, the resolution of which was that Cheng would provide all female patients a form indicating that they could have another female present during the massage, and that the massage would not include any touching of the vagina, breasts, or anus. Shortly after the Department of Health investigation concluded, Seattle Police contacted K.R. and she explained that she did not want to press charges. A detective contacted K.R. again in 2006 to request that she participate in Cheng's prosecution. She agreed, because the prosecution was already going forward.
According to Cheng, his treatment of K.R. followed a very different path. He agrees that he gave K.R. massages from 1997 to April 12, 1998, but denies touching K.R.'s genital areas. He also denies discussing low libido with her. On April 12, after what he claims was a 40 minute session, Cheng testified that K.R. embraced him and kissed him on the mouth. K.R. denies kissing Cheng. Cheng denies that he ever asked K.R. to go back to the massage room once they had finished the session. Cheng testified that K.R. left right after the 40 minute session, and that he then met with a family friend, Wang, and Wang's family. After telling his wife what K.R. had done, Cheng wrote to K.R. stating that her behavior was inappropriate and cancelling her remaining appointments.
Count II
V.C. sought alternative medical treatment from Cheng for pain resulting from uterine prolapse, relating to the pregnancy and birth of her child in 2004. Cheng had previously treated V.C. for other injuries, including a 1997 racquetball injury and shoulder, back, and knee problems.
In December 2004, V.C. scheduled three visits with Cheng for treatment of her uterine prolapse. During the first massage Cheng placed his hand on her breasts, on top of the gown, and jiggled her breast. Although the treatment struck her as odd, she did not doubt Cheng's motives. Having experienced pain relief from the first treatment, she returned for the second treatment. The treatment began the same way, holding her breasts and jiggling them. Then Cheng massaged her upper hips and inner thighs, before suddenly touching her clitoris and inserting his finger into her vagina. V.C. pushed back and said "Whoa. I am not comfortable with that." Cheng immediately removed his finger. V.C. testified that Cheng sounded angry.
She did not report Cheng at this point, because she wanted to give him the benefit of the doubt. She returned for the third massage, where no inappropriate touching occurred. She told her husband about the incident shortly thereafter, but did not report the incident to law enforcement until June 2006.
Contrary to V.C.'s testimony, Cheng testified that in 2001 V.C. approached him, because she wanted to write a book about him. Cheng admitted that he had treated her with massage for her 1997 injuries, but denied that he had ever massaged V.C. after July 2, 2002. Cheng explained that he told V.C. about K.R.'s allegations, without mentioning K.R.'s last name. Cheng claims that in December 2004, V.C. contacted him not as a patient, but to discuss the book and that they met three times. The third meeting ended, according to Cheng, with V.C. presenting a document giving her exclusive rights to his story, and Cheng refusing to sign it. Cheng explained that the three $48.00 checks he deposited from V.C. were for the time he spent telling his story to her.
The State charged Cheng with two counts of rape in the second degree. Cheng moved to sever the two counts. The trial court denied the motion, finding that evidence of each allegation would be cross-admissible in separate trials under the common scheme or plan exception to ER 404(b). Cheng was convicted by a jury of both counts of rape in the second degree, and sentenced to 102 months.
DISCUSSION
I. Common Scheme or Plan
Cheng claims the trial court erred when it found that the testimony of the two victims was cross-admissible as evidence of a common scheme or plan exception to ER 404(b). The correct interpretation of an evidentiary rule is reviewed de novo as a question of law. State v. DeVincentis, 150 Wn.2d 11, 17, 74 P.3d 119 (2003). "Once the rule is correctly interpreted, the trial court's decision to admit or exclude evidence is reviewed for an abuse of discretion." Id. A trial court abuses its discretion when its decision is manifestly unreasonable or based on untenable grounds. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).
Evidence of prior bad acts is presumed to be inadmissible. DeVincentis, 150 Wn.2d at 17. ER 404(b) prohibits admission of evidence to prove a defendant has a criminal propensity:
[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
If the State wishes to admit prior acts under one of the exceptions, the State must meet a substantial burden. The Supreme Court established the analysis for admission of evidence of prior bad acts to prove a common scheme or plan in State v. Lough, 125 Wn.2d 847, 889 P.2d 487 (1995). The prior acts must be "(1) proved by a preponderance of the evidence, (2) admitted for the purpose of proving a common plan or scheme, (3) relevant to prove an element of the crime charged or to rebut a defense, and (4) more probative than prejudicial." Id. at 852. Moreover, "the evidence of prior conduct must demonstrate not merely similarity in results, but such occurrence of common features that the various acts are naturally to be explained as caused by a general plan of which the charged crime and the prior misconduct are the individual manifestations." Id. at 860. The degree of similarity must be substantial, but the level of similarity does not require the evidence of common features to show a unique method of committing the crime. DeVincentis, 150 Wn.2d at 20-21. "[T]he trial court need only find that the prior bad acts show a pattern or plan with marked similarities to the facts in the case before it." Id. at 13 (emphasis added).
The trial court issued an oral ruling on cross-admissibility, explaining both the circumstantial similarities of the treatment and the more specific similarities on how Cheng touched K.R. and V.C.:
[H]e was in the room alone with them. They were gowned with either just underwear or not underneath. . . . There was a similar touching of the breasts, and particularly the nipples in terms of the manipulating, and his approach to that part of the body. The massaging of the groin area, and then eventual touching of the vaginal area. Specifically the clitoris. . . .
He had a history with both women of appropriate massage. . . .
So I think Ms. Jensen [the prosecutor] used the word grooming, and that seems to be an appropriate word for looking at that particular behavior. Based on those factors I think that it could easily be said that they would be cross-admissible for this purpose, and that the probative value of the admission of those incidences . . . does outweigh the prejudice to the defendant by having them addressed separately.
Cheng contends that the court relied on similarities that were aspects of his professional behavior with all clients, not common features of a plan to commit the charged crime. The State responds that the court, in addition to following Lough's procedure for admitting ER 404(b) evidence, reached the correct substantive conclusion. The allegations by the two victims were quite similar: both women were consistent clients, both had gynecological issues, and Cheng first touched their breasts and then gradually worked his way down to the groin area.
The Supreme Court affirmed the trial court's finding of common scheme or plan in DeVincentis, where the defendant molested two children in a similar manner after befriending them, desensitizing them by wearing skimpy clothing around his house in their presence, asking the girls to remove their clothes, and then requesting that they perform the same sexual act. 150 Wn.2d at 16. Likewise, in Lough, the Court admitted the testimony of four women under ER 404(b), as a common scheme or plan, where the defendant had a personal relationship with the victim, offered the victim a drink into which he put a medication rendering the victim unconscious, then raped the victim. 125 Wn.2d at 850.
Cheng distinguishes Lough and DeVincentis on the grounds that the acts in those cases were not part and parcel of the defendants' professional relationship with the victims, whereas here, many of the commonalities are inherent in Cheng's routine massage practice.
The trial court did not abuse its discretion in finding that the two victims' testimony was cross-admissible as a common scheme or plan exception to ER 404(b), or in determining that the probative value substantially outweighed any prejudicial effect. As the Court explained in DeVincentis, the degree of similarity in a common scheme or plan must be substantial. 150 Wn.2d at 20. In addition to the reasons the trial court articulated in the oral ruling, it is also notable that both women discussed gynecological problems with Cheng. Additionally, he had treated them with appropriate massage in the past, earning each victim's trust over time. The progression of touching is substantially similar: after touching the victims' breasts, he gradually massaged more toward the groin area, and eventually touched each victim in the vaginal area. Although Cheng allegedly touched the women's vaginal area and breasts in different ways, these small differences do not defeat the conclusion that the acts were part of the same common scheme or plan: the method of securing trust and victimizing the women remained the same. The differences are not substantial enough to render the trial court's determination untenable.
Cheng highlights the differences in how he allegedly touched the victims' breasts and vaginal areas in an effort to suggest that the two incidents were not a common scheme or plan. He digitally penetrated V.C. during treatment, whereas with K.R., he massaged her clitoris for a few minutes while sitting on her feet. With K.R., there was continual touching of the breasts, under and over the gown. With V.C., he would hold her nipple between his fingers and jiggle it a specific number of times in conjunction with breathing. However, the specific method he employed to touch both victims' breasts and vaginal areas is not sufficient to outweigh the similarities.
II. Motion to Sever
CrR 4.3(a) permits offenses of similar character to be joined in one trial. If "the court determines that severance will promote a fair determination of the defendant's guilt or innocence of each offense," the offenses should be tried separately. CrR 4.4(b).
Cheng moved to sever the two counts. The trial court denied the motion, finding that evidence of each allegation would be cross-admissible in separate trials under the common scheme or plan exception to ER 404(b).
We review a trial court's ruling on a motion to sever for an abuse of discretion. State v. Bythrow, 114 Wn.2d 713, 717, 790 P.2d 154 (1990). "Defendants seeking severance have the burden of demonstrating that a trial involving both counts would be so manifestly prejudicial as to outweigh the concern for judicial economy." Id. at 718. Relevant factors are, "the jury's ability to compartmentalize the evidence, the strength of the State's evidence on each count, the issue of cross admissibility of the various counts, [and] whether the judge instructed the jury to decide each count separately," and we weigh strongly the concern for judicial economy. State v. Kalakosky, 121 Wn.2d 525, 537, 852 P.2d 1064 (1993). Jurors are presumed to follow the trial court's limiting instructions. State v. Johnson, 124 Wn.2d 57, 77, 873 P.2d 514 (1994).
Cheng contended that, because the evidence in Count I was substantially weaker than in Count II (K.R. allowed the inappropriate touching to continue for weeks before she even told her husband about it), the jury would assume Count I transpired given the prejudice of Count II.
The defense agreed that the evidence of Count I (K.R.) would be cross-admissible in Count II (V.C.).
This argument is unpersuasive. The relative strength of the evidence on each count is a factor that the court must consider, and it did so when it explained that the resolution of both counts would depend upon the jury's credibility determinations, as there was no physical evidence.
Furthermore, Cheng had the burden of demonstrating manifest prejudice outweighing the concern for judicial economy. Cheng did not demonstrate that prejudice would occur if evidence was cross-admissible under ER 404(b), suggesting that prejudice would not occur from joinder either.
Moreover, the court's determination of whether to sever the counts and whether the testimony in both would be cross-admissible was interrelated and simultaneous. The court's ruling that the evidence was cross-admissible, also suggested that it properly denied Cheng's motion to sever.
The court also properly analyzed the jury's ability to compartmentalize, considering the fact that there are two different victims, two different time frames, and fairly straightforward evidence. Lastly, the court instructed the jury to consider each count separately.
The trial court did not abuse its discretion in denying Cheng's motion to sever.
III. Exclusion of Defense's Rebuttal Witnesses
Cheng contends the trial court erred when it granted the State's motion to exclude testimony of Cheng's other female massage patients, who did not claim he touched them improperly. We review a trial court's decision to admit or exclude evidence for an abuse of discretion. State v. Lane, 125 Wn.2d 825, 831, 889 P.2d 929 (1995).
Cheng also asserts that the trial court's exclusion prevented him from rebutting the common scheme or plan evidence. As the State points out, admission of ER 404(b) evidence does not create an inference. The jury was not allowed to infer that, because there was a common scheme or plan, it could find that an element of second degree rape existed. Cheng's argument is inapposite.
The trial court issued the final ruling granting the State's motion, explaining that it was propensity evidence and it was irrelevant to whether Cheng committed the acts. The trial court articulated three bases for its decision; the relevancy analysis alone justifies the court's exclusion of this testimony. The court had already determined that the two counts constituted a common scheme or plan. Under DeVincentis, Cheng's treatment of the two victims had "marked similarities," showing a pattern or plan. 150 Wn.2d at 13, 20-22. Once the court ruled that a common scheme or plan existed, any testimony from Cheng's other clients was not relevant to whether Cheng had committed the acts in these two instances. The trial court did not abuse its discretion in excluding the testimony of Cheng's other patients.
Neither would the use of these witnesses be proper for impeachment purposes. The court noted this in its oral ruling, explaining that introduction of this testimony "takes us on a completely different avenue. It's not relevant to whether the two witnesses that are testifying in this trial are credible or not."
IV. Sufficiency of the Evidence — Count I
Cheng contends that the State failed to prove penetration beyond a reasonable doubt in Count I (K.R.), because the evidence showed he only touched K.R.'s clitoris, not "inside" her vagina. Cheng cites authority explaining that the labia minora are part of the vagina, but argues that the clitoris is outside the labia minora. Cheng contends that if the clitoris is outside the labia minora, then he did not penetrate K.R.'s vagina.
A reviewing court must affirm a conviction if "after reviewing the evidence in the light most favorable to the State, any rational trier of fact could have found guilt beyond a reasonable doubt." State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). "A claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom," with circumstantial evidence and direct evidence being equally reliable. Salinas, 119 Wn.2d at 201; State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99. Credibility determinations may not be reviewed on appeal. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).
RCW 9A.44.050(d) defines rape by a health care provider as "sexual intercourse . . . during a treatment session." One of the definitions of sexual intercourse in RCW 9A.44.010(1)(b) is "any penetration of the vagina or anus however slight, by an object."
Before determining whether there was sufficient evidence to find that Cheng had penetrated K.R., we must address Cheng's argument that the clitoris is outside the labia minor, and therefore, not part of the vagina for purposes of establishing penetration under RCW 9A.44.010(1)(b). In State v. Delgado, the defendant made a similar argument as Cheng, positing that sexual intercourse as defined by RCW 9A.44.010(1) required penetration of the vagina, and that vagina did not include the labia minora. 109 Wn. App. 61, 65-66, 33 P.3d 753 (2001), reversed in part by, 148 Wn.2d 723, 63 P.3d 792 (2003). The uncontested factual finding from trial was that Delgado had touched the victim's labia minora but did not penetrate her vaginal canal. Id. at 65. These facts are similar to Cheng's touching of K.R. In Delgado, this court explained that the State needed only to prove that the "`defendant penetrated, at a minimum, the lips of the victim's sexual organs.'" Id. (quoting State v. Bishop, 63 Wn. App. 15, 19, 816 P.2d 738 (1991)). This court also relied on State v. Montgomery's definition of vagina as "all of the components of the female sexual organ and not just `[t]he passage leading from the opening of the vulva to the cervix.'" 95 Wn. App. 192, 200, 974 P.2d 904 (1999) (alteration in original) (quoting The American Heritage Dictionary 1970 (3d ed. 1992)). Montgomery precludes Cheng's argument that the clitoris is outside the labia minora, because it clearly states that all parts of the female sexual organ are properly considered in a rape case. Id.
K.R. testified that Cheng, with his fingers, did "this pulsating thing . . . around my clitoris. He never went inside my vagina." She also testified that "he would go around in a pulsating way on the inside of my labia and around my clitoris." This testimony is sufficient evidence to show that a rational trier of fact could have found that penetration occurred beyond a reasonable doubt.
V. Lay Witness Testimony
Cheng claims that the trial court erred when it allowed the prosecutor to ask K.R., "[a]nd your understanding of the location of the clitoris within the female anatomy is what exactly?" Defense counsel objected on the grounds that it was a leading question and that the answer called for expert knowledge. The court overruled the objection. A trial court's decision on the admissibility of evidence is reviewed for abuse of discretion. State v. Finch, 137 Wn.2d 792, 810, 975 P.2d 967 (1999).
A leading question suggests the desired answer. State v. Scott, 20 Wn.2d 696, 698, 149 P.2d 152 (1944). As the State points out, the prosecutor's question did not suggest an answer, it prompted K.R. to give an explanation. The court did not abuse its discretion in overruling defense counsel's objection on the grounds that it was a leading question.
Cheng does not provide argument or citation to legal authority on his assertion that the question called for expert knowledge. This court will not consider an issue absent argument and citation to legal authority. State v. Dennison, 115 Wn.2d 609, 629, 801 P.2d 193 (1990).
VI. Relevancy of V.C.'s Fear
Cheng also claims that the trial court erred when it allowed V.C. to testify that she was afraid Cheng would kill her, asserting that this was not relevant under ER 402. A trial court's decision on the admissibility of evidence is reviewed for abuse of discretion. Finch, 137 Wn.2d at 810.
For evidence to be admissible, a party need only show minimal logical relevance — any tendency to make the existence of a fact more or less probable. State v. Bebb, 44 Wn. App. 803, 814, 723 P.2d 512 (1986), aff'd, 108 Wn.2d 515, 740 P.2d 829 (1987). The prosecutor asked V.C. about her fear of contacting law enforcement, to which she replied: "Honestly, that [sic] my greatest fear was that he would kill me." This testimony came in the midst of direct examination, where the prosecutor was establishing the various reasons that V.C. had waited so long to report the incident to the authorities. The State correctly notes that this testimony was relevant to the issue of V.C.'s credibility, given the significant time between the incident and her decision to report it. The court did not abuse its discretion when it allowed V.C. to testify that she was afraid of Cheng.
VII. Second Degree Rape Jury Instruction
Cheng contends that the court erred by refusing to instruct the jury that second degree rape requires a finding of intent. His chief concern is that, absent the intent instruction, the jury would not be allowed to consider whether he accidentally or innocently had contact with either woman's vagina.
This argument is inconsistent with Cheng's theory of the case. He denies that he gave V.C. a massage on the date in question, and denies any improper touching whatsoever during the course of K.R.'s massage.
The question of whether a jury instruction accurately states the law is reviewed de novo. Blaney v. Int'l Ass'n of Machinists Aerospace Workers, Dist. No. 160, 151 Wn.2d 203, 210, 87 P.3d 757 (2004). Cheng concedes that Washington courts have consistently held that intent is not an element of rape. However, he requests this court to address the issue specifically as it relates to RCW 9A.44.050(1)(d), where the perpetrator is a health care provider and the victim is a client or patient.
There is clear precedent that intent is not an element of second degree rape. See State v. Brown, 78 Wn. App. 891, 896, 899 P.2d 34 (1995) (reaffirming the rule that intent is not an element of second degree rape); State v. Gurrola, 69 Wn. App. 152, 156-57, 848 P.2d 199 (1993) (explaining that even though the definition of sexual intercourse for purposes of rape includes the language "sexual contact," and "sexual contact" means touching sexual or other intimate parts of a person for gratifying sexual desire, applying this definition of sexual contact to rape would mean there would be no distinction between rape and molestation); State v. Walden, 67 Wn. App. 891, 895, 841 P.2d 81 (1992) (explaining that rape criminalizes nonconsensual sexual intercourse regardless of criminal intent or knowledge, so it is a strict liability crime).
The jury instruction reflected the elements as articulated in RCW 9A.44.050(d). The "to convict" instruction also correctly set out the elements: (1) the defendant engaged in sexual intercourse with the victim; (2) the intercourse occurred when Cheng was a health care provider and the victim was a client, and it occurred during treatment; and (3) the act occurred in Washington. Because the jury instruction properly reflected the statutory requirements for second degree rape, and accords with case law rejecting the notion that intent is an element of the crime, the jury instruction was proper.
VIII. Prosecutorial Misconduct
Cheng alleges that prosecutorial misconduct occurred during closing argument and during rebuttal.
When a defendant claims prosecutorial misconduct, he bears the burden of establishing both the impropriety of the prosecuting attorney's comments and their prejudicial effect. State v. McKenzie, 157 Wn.2d 44, 52, 134 P.3d 221 (2006). To determine whether a prosecutor's comments constitute misconduct, a reviewing court first decides whether the comments were improper, and, if so, whether a substantial likelihood exists that the comments prejudiced the jury. State v. Dhaliwal, 150 Wn.2d 559, 578, 79 P.3d 432 (2003). An appellate court reviews alleged misconduct "within the context of the prosecutor's entire argument, the issues in the case, the evidence discussed in the argument, and the jury instructions." Id.
Failure to object to a prosecutor's improper remark constitutes waiver unless the remark is deemed to be so flagrant and ill-intentioned that it evinces an enduring and resulting prejudice that could not have been neutralized by an admonition to the jury. Id. Defense counsel did not object in either instance, so review is limited to whether the remarks were flagrant enough to have an incurable prejudicial effect on the jury.
Defense counsel did object when the prosecutor stated "[y]ou saw them again [sic] testified, and you got to experience their demeanor, and their earnestness, and their, what appeared to me to be, their genuine pursuit of the truth." However, Cheng does not discuss this particular comment in his prosecutorial misconduct argument, so we do not review it.
During closing argument, the prosecutor discussed what she called Mr. Cheng's grooming process, and then alluded to how people groom children for sexual assault:
[T]he defendant chose to violate these particular women out of his clientele. . . . he knew that in order . . . to get away with it that he would have to pick women that would allow him to get away with it. . . . . I mean, that they both proactively and routinely sought all the alternative healthcare. . .
So we have this explanation that's called the grooming process to explain why these women wanted to go back . . .
Grooming happens all the time . . . as an example . . . with kids. Where, you know, you get them used to certain kind of conduct, and so you can get away with certain things.
The prosecutor, in rebuttal, stated:
You may not see physical injuries on these victims, but you can be assured that they have the emotional scars that will last for them throughout their lives, and whether these manifest in nightmares, getting physically ill at the thought of having to testify, having to tell their children at some point what had happened to them or try and look their husband in the face, you know, to what happened to themselves. There is a lasting traumatic effect.
Cheng asserts that these two comments were similar to the misconduct in both State v. Belgarde, 110 Wn.2d 504, 755 P.2d 174 (1988), and State v. Claflin, 38 Wn. App. 847, 690 P.2d 1186 (1984). In both of these cases, the appellate courts held that a comment was improper when it would lead the jury to convict based on that comment rather than properly admitted evidence. Belgarde, 110 Wn.2d at 507-08; Claflin, 38 Wn. App. 847 at 850-51. In Belgarde, the prosecutor alluded to the defendant's membership in the American Indian Movement (AIM), and went on to discuss AIM's indiscriminate killings. Belgarde, 110 Wn.2d at 507. In Claflin, a rape case, the prosecutor read a poem comparing rape to other violent acts, including being slit in the throat. Claflin, 38 Wn. App. at 850-51. None of the language in the poetry related to any of the facts of the case. Id. at 851. The poem was an appeal to the jury's passion and prejudice. Id. at 850.
Here, in neither instance did the prosecutor comment on evidence that was not properly admitted. While the comparison to the grooming process that happens with kids is arguably irrelevant, the grooming process itself was a cornerstone of the theory of the case — one the State used to explain why both victims continued to see Cheng even after inappropriate touching, and to explain why each woman struggled to timely report the misconduct.
The State's explanation during rebuttal of the emotional impact that the rape had on the two women was not improper. Rather, it was a response to the defense's argument that Cheng was an unlikely and unthreatening perpetrator, reminding the jury that no matter the perpetrator, rape causes emotional scars.
Neither comment rose to the required level of prejudice to reverse when there was no objection on the record.
IX. Electronic Monitoring Device
During trial, Cheng wore an electronic home monitoring device around his ankle. One of the jurors noticed the device during his testimony. The juror reported this observation to the court. The court questioned the juror about his ability to ignore what he had seen and dismissed him upon defense counsel's request, because it might give the juror "a different perspective on him than perhaps the jury would otherwise have." The juror did not mention seeing the device to any of the other jurors, and there was no evidence that the other jurors had seen it.
Cheng asserts that wearing the device violated his right to appear before the jury unrestrained. A defendant in a criminal case is entitled to appear at trial free from shackles and bonds except in extraordinary circumstances. Finch, 137 Wn.2d at 842 (citing Illinois v. Allen, 397 U.S. 337, 90 S. Ct. 1057, 25 L. Ed. 2d 353 (1970)).
There is no authority that equates an electronic home monitoring device with shackles. In fact, the definition of shackle would not encompass such a device, because a shackle is something that "confines the legs or arms so as to prevent their free motion." In re Pers. Restraint of Davis, 152 Wn.2d 647, 693 n. 109, 101 P.3d 1 (2004) (quoting Webster's Third New International Dictionary 2297 (1993)).
Cheng's right to appear without shackles was not violated, as an electronic home monitoring device does not fall within the accepted definition of "shackle."
He also asserts that the court should have inquired whether the other jurors had noticed the monitoring device. This would have drawn unnecessary attention to the device, and the trial court had already granted defense counsel's motion to dismiss the juror who had seen it and brought it to the court's attention.
STATEMENT OF ADDITIONAL GROUNDS
I. Qualification of Interpreter
Cheng asserts a right to new trial based on noncompliance with RCW 2.43.030(2). This statute provides the proper procedure for appointment of an interpreter (certified or otherwise qualified):
[T]he appointing authority shall make a preliminary determination, on the basis of testimony or stated needs of the non-English-speaking person, that the proposed interpreter is able to interpret accurately all communications to and from such person in that particular proceeding. The appointing authority shall satisfy itself on the record that the proposed interpreter:
(a) Is capable of communicating effectively with the court or agency and the person for whom the interpreter would interpret; and
(b) Has read, understands, and will abide by the code of ethics for language interpreters established by court rules. RCW 2.43.030(2).
Marisa Hsu is a certified Cantonese interpreter, permanently sworn in for King County. She interpreted for Cheng in Mandarin, which is not yet a certified language. In compliance with RCW 2.43.030(2), the court ensured that Hsu had interpreted many other times in Mandarin and was familiar with the code of conduct. The court abided by RCW 2.43.030(2).
II. Ineffective Assistance of Counsel
Cheng asserts that his attorney rendered ineffective assistance of counsel in multiple instances.
To prevail on a claim of ineffective assistance of counsel, a defendant must show that counsel's performance fell below an objective standard of reasonableness based on consideration of all the circumstances, and that the deficient performance prejudiced the trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Nichols, 161 Wn.2d 1, 8, 162 P.3d 1122 (2007). The reasonableness inquiry presumes effective representation and requires the defendant to show the absence of legitimate strategic or tactical reasons for the challenged conduct. State v. McFarland, 127 Wn.2d 322, 336, 899 P.2d 1251 (1995). To show prejudice, the defendant must prove that, but for the deficient performance, there is a reasonable probability that the outcome would have been different. In re Pers. Restraint of Pirtle, 136 Wn.2d 467, 487, 965 P.2d 593 (1998). If one of the two prongs of the test is absent, we need not inquire further. Strickland, 466 U.S. at 697; State v. Foster, 140 Wn. App. 266, 273, 166 P.3d 726 (2007), review denied, 162 Wn.2d 1007, 175 P.3d 1094 (2007). Competency of counsel is determined based upon the entire record below. State v. White, 81 Wn.2d 223, 225, 500 P.2d 1242 (1972) (citing State v. Gilmore, 76 Wn.2d 293, 456 P.2d 344 (1969)). First, Cheng argues that defense counsel's failure to move for a bill of particulars constituted ineffective assistance of counsel. Cheng believes that had counsel moved the court for a bill of particulars, Cheng would have demurred to Count II based on consent. Cheng appears to be arguing that counsel did not argue the consent defense for Count II (V.C.). It is clear from the record that Cheng wanted to pursue denial. Moreover, counsel could not have argued consent, because it would have been inconsistent with Cheng's denial. A consent defense would not have been proper.
For instance, there is mention of Cheng's denial of the events in Count II in defense counsel's declaration in support of motion for disclosure of the record of V.C.'s report to King County Sexual Resource Center.
Second, Cheng argues that defense counsel's failure to file a motion to dismiss Count II after receiving V.C.'s deposition testimony constituted ineffective assistance of counsel. Because V.C. explained that she sought treatment for a medical issue and called Cheng her "doctor," Cheng asserts that defense counsel should have sought to dismiss the charge, because V.C. consented to treatment. Cheng cannot show prejudice, as the court would not have dismissed the charge given the conflicting testimony about whether the activity was consensual.
Third, Cheng argues that defense counsel's failure to question K.R. about Cheng's allegation that she had kissed him constituted ineffective assistance of counsel. Cheng believes that defense counsel should have argued that K.R. had incentive to deny that she kissed Cheng in order to protect her marriage.
At the beginning of trial, the court approved of defense counsel questioning K.R. about the status of her marriage and whether K.R. was experiencing marital problems — including problems sexual in nature — at the time of the incident. However, the court limited counsel by instructing him to keep the questions general. Counsel did ask K.R. on cross-examination about her feelings toward her husband, and suggested that she may have had motives to lie about the incident. Cheng cannot meet either prong of the test — prejudice or performance that fell below an objective standard of reasonableness.
III. Prosecutorial Misconduct
Having addressed appellate counsel's arguments concerning prosecutorial misconduct, we only address Cheng's argument concerning a Brady violation. Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). Cheng alleges a Brady violation, because the prosecutor hid from defense counsel the fact that K.R. had filed for $21,120 in medical restitution.
Cheng points to one comment in particular that defense counsel did not address in briefing prosecutorial misconduct, where the prosecutor stated in rebuttal: ". . . I would encourage you to rely not on the attorney's recount of the facts here in court today, but on your notes and your own personal memories. But I suspect what defense counsel has to say is not reflected in your notes." Because defense counsel did not object, this comment would have to be so flagrant and ill-intentioned that it evinces an enduring and resulting prejudice that could not have been neutralized by an admonition to the jury. Dhaliwal, 150 Wn.2d at 578. While the prosecutor's comment was improper, it is not flagrant enough to merit reversal.
A Brady violation occurs when the prosecutor suppresses evidence favorable to an accused "where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Brady, 373 U.S. at 87. No Brady violation occurs if the defendant could have obtained the information himself through reasonable diligence. In re Pers. Restraint of Benn, 134 Wn.2d 868, 916, 952 P.2d 116 (1998).
Cheng's claim of a Brady violation fails, because defense counsel would have, as a matter of course, obtained information about K.R.'s medical restitution. The prosecutor had requested restitution, requiring a finding as to the amount. RCW 9A.20.030. Further, there is no evidence on the record that the court or prosecutor violated the procedure in RCW 9A.20.030 for imposition of restitution.
We affirm Cheng's conviction for two counts of second degree rape.
WE CONCUR: