In re Phelps, 94185-8

• Decision Date: 22 February 2018
• Docket Number: No. 94185-8,94185-8
• Citation: 190 Wash.2d 155,410 P.3d 1142
• Court: Washington Supreme Court
• Parties: In the MATTER OF the Personal Restraint of Todd Dale PHELPS, Petitioner.

190 Wash.2d 155

410 P.3d 1142

In the MATTER OF the Personal Restraint of Todd Dale PHELPS, Petitioner.

No. 94185-8

Supreme Court of Washington.

Filed February 22, 2018

Sara I. Beigh, Lewis County Prosecutors Office, 345 W Main St. Fl. 2, Chehalis, WA, 98532-4802, for Petitioner

Suzanne Lee Elliott, Attorney at Law, 705 2nd Ave. Ste. 1300, Seattle, WA, 98104-1797, for Respondent

JOHNSON, J.

¶ 1 This case involves the issue of whether a prosecutor's closing argument asserting a victim was "groomed" by the defendant, where testimony of grooming was disallowed during trial, constitutes flagrant and ill-intentioned misconduct requiring reversal. The Court of Appeals, Division Two, granted Todd Phelps's personal restraint petition (PRP) and reversed his convictions for third degree rape and sexual misconduct with a minor.¹ The Court of Appeals held that expert testimony is required if the State intends to rely on grooming to argue and prove its case. Thus, because the prosecutor did not provide expert testimony, the Court of Appeals found that the prosecutor argued facts not in evidence during his closing argument. The Court of Appeals held that the prosecutor's actions constituted flagrant and ill intentioned misconduct and that Phelps had shown the misconduct caused him actual and substantial prejudice. In re Pers. Restraint of Phelps, 197 Wash. App. 653, 389 P.3d 758, review granted, 189 Wash.2d 1001, 403 P.3d 38 (2017).

¶ 2 We reverse the Court of Appeals on both issues and hold that under the facts and charges involved in this case, expert testimony on grooming was not required and the use of the term "grooming" during closing argument did not amount to arguing facts not in evidence. The prosecutor also did not commit flagrant and ill-intentioned misconduct, nor has Phelps shown that if misconduct occurred it caused him actual and substantial prejudice.

FACTS

¶ 3 Phelps was an assistant coach for the Pe Ell School girls' softball team. During the summer of 2010, Phelps took his family and members of the team to tournaments most weekends. One of those team members was A.A., a 16-year-old who had a strained relationship with her own parents. A.A. was dealing with several emotional issues: she cut herself, experienced depression, and had contemplated suicide.

¶ 4 Once softball season started in February 2011, A.A. told Phelps she had been cutting herself and had considered suicide. Over the next several months, Phelps continued to talk with A.A. about her self-harm, her suicidal thoughts, and other personal issues. Phelps also told A.A. personal stories involving his sexual experiences with women. According to A.A., Phelps explained that this was so she could have dirt on him because he now had dirt on her. Over time, Phelps and A.A. developed a relationship of in-person conversations, phone calls, and frequent texts, sometimes late into the night.

¶ 5 Phelps also had A.A. show him where she cut herself at or near the tops of her thighs, which required her to pull her pants halfway down. This happened several times. Each time A.A. showed him her cuts, some kind of sexual contact occurred; the contact escalated each time. During softball team trips, several instances of Phelps inappropriately grabbing parts of A.A.'s body occurred. A.A. eventually told Melody Porter, her youth pastor's wife, that she and Phelps had kissed. Porter reported the kiss to the school superintendent and Phelps was placed on administrative leave.

¶ 6 With A.A.'s parents' consent, Phelps was reinstated as softball coach. Several people, including members of the school board and A.A.'s parents, instructed Phelps not to text A.A. anymore and to maintain an appropriate coach/player relationship. Disregarding these warnings, Phelps and A.A. continued to communicate on a near daily basis. When school officials discovered Phelps and A.A. were still communicating, Phelps was forced to resign as coach in late April 2011 and A.A.'s father told him not to have any further contact with A.A. However, Phelps and A.A. continued to communicate.

¶ 7 Phelps and A.A. met several times in July while A.A. was with a friend. At some point, Phelps talked with a coworker about how he could control A.A.'s emotions. Phelps and A.A. eventually met in private at Phelps's brother's house, where A.A. again showed Phelps her cuts. According to A.A., Phelps then forced her to have sex with him. Soon after, A.A. went to go live with an aunt in Auburn. About two months after the alleged rape occurred, A.A. told her parents she had had sex with Phelps. Her parents called the sheriff and reported the rape.

¶ 8 Phelps was charged with one count of third degree rape and one count of sexual misconduct with a minor. At trial, during voir dire, the prosecutor asked potential jurors if they had ever heard of grooming and if they knew anything about it; several jurors responded. No indication exists in the record that the prosecutor talked about grooming in his opening statement. The focus of the claimed misconduct arises in the context of closing argument.

¶ 9 The term "grooming" came up twice during trial testimony. The first time was during A.A.'s father's testimony. The prosecutor asked him what he thought Phelps's intentions were. Defense counsel objected as to speculation, but the trial judge overruled the objection. A.A.'s father responded, "I believe [Phelps's] intentions were dishonorable. I believe he was grooming her to the end result of what he did. He ended up raping her on the 27th." 2 Verbatim Report of Proceedings (VRP) (Apr. 18, 2012) at 180. Defense counsel did not object to this response. The second time grooming came up was during the testimony of Yvonne Keller, the other softball coach. The prosecutor asked her if she believed Phelps was grooming A.A. Keller said she did just as defense counsel objected as to her belief. The court sustained the objection. The prosecutor then asked Keller if she knew anything about grooming. Defense counsel objected to relevance, and the judge said, "That's an issue that is for expert testimony. She is not an expert. She's already stated she's not an expert. So I'm sustaining the objection." 2 VRP (Apr. 18, 2012) at 211.

¶ 10 During closing arguments, the prosecutor went through the witnesses' testimony and explained how the evidence showed A.A.'s isolation and vulnerability, how A.A. trusted Phelps, Phelps's position of authority, how Phelps bragged about being able to control A.A.'s emotions, and how Phelps selectively disclosed A.A.'s secrets to others to keep the spotlight on her. The prosecutor also discussed the day of the alleged rape in detail, as well as both A.A.'s and Phelps's credibility.

¶ 11 The prosecutor used the term "groom" or "grooming" 19 times during his argument and rebuttal. He referenced the jurors' remarks during voir dire about grooming. He also pointed out the continuous, secretive nature of grooming, telling the jury that grooming does not happen out in the open and that it is a constant process happening all the time. He stated that A.A. was a "prime candidate" to be groomed because of her low self-esteem and stressed relationship with her family. 8 VRP (Apr. 26, 2012) at 1540. He argued that Phelps was not only grooming A.A. but also grooming her family and friends around her to make himself appear concerned about A.A.'s mental health. The prosecutor discussed Phelps's repeated efforts to desensitize A.A. to sexual contact, arguing that because of grooming, Phelps knew A.A. was not going to respond to his escalating sexual advances. He used a similar argument to explain Phelps's sexually explicit remarksto A.A. and his efforts to isolate her by having her break up with her boyfriend and stop talking to her counselor. The prosecutor also argued grooming explained some aspects of A.A.'s behavior, such as her efforts to protect Phelps by deleting their text messages and her apparent obsession with him. Toward the end of his closing, the prosecutor told the jury, "We're here because of grooming, we're here because of deceit, concealment, half-truths, misrepresentations." 8 VRP (Apr. 26, 2012) at 1548.

¶ 12 The prosecutor's closing argument was accompanied by 97 PowerPoint slides, 8 of which mentioned grooming. The defense attorney did not object to the prosecutor's use of grooming in his closing argument or to the PowerPoint slides. Phelps's trial defense apparently was that he did not commit the crimes because he was not there, but even if he did have sex with A.A., she consented. The jury found Phelps guilty on all counts, including the aggravating circumstances.

¶ 13 Phelps filed an initial appeal. The Court of Appeals, Division Two, affirmed,² and Phelps filed a petition for review, which we denied. State v. Phelps, 181 Wash.2d 1030, 340 P.3d 228 (2015). Phelps then filed this PRP in the Court of Appeals, raising the issue of prosecutorial misconduct. The Court of Appeals granted the PRP and reversed Phelps's convictions. The State filed a motion for discretionary review, and we granted review.

ISSUES

(1) Whether the State is required to present expert testimony if it intends to use the concept of grooming to argue its case to a jury.

(2) Whether, by referencing grooming in closing argument, the prosecutor committed flagrant and ill-intentioned misconduct.

ANALYSIS

¶ 14 The first issue is whether expert testimony is required when the State uses the concept of grooming to argue its case to a jury. While we have never addressed when and under what circumstances expert testimony on grooming is admissible, several jurisdictions have held it is admissible, but not that it is required. See Jones v. United States, 990 A.2d 970, 978 (D.C. 2010) ; State v. Berosik, 2009 MT 260, 352 Mont. 16, 23-24, 214 P.3d 776 (2009) ; Morris v. State, 361 S.W.3d 649, 669 (Tex. Crim. App. 2011). States are divided on whether expert testimony is required where the State intends to use grooming to argue its case. Compare State v. Akins, 298...