State v. Ross
| Decision Date | 27 September 2021 |
| Docket Number | 82547-0-I |
| Court | Washington Court of Appeals |
| Parties | STATE OF WASHINGTON, Respondent, v. JACK ROSS, Appellant. |
UNPUBLISHED OPINION
A jury found Jack Ross guilty of rape in the second degree and rape of a child in the second degree. On appeal, Ross contends that (1) the State committed prosecutorial misconduct, (2) his defense counsel rendered ineffective assistance of counsel (IAC), (3) the trial court erred by denying his motion for a mistrial, (4) insufficient evidence supports his conviction for rape in the second degree, and (5) the court inadvertently imposed discretionary legal financial obligations (LFOs) on him. For the reasons discussed below we remand for the trial court to strike the supervision fees and affirm in all other respects.
During the summer of 2012, when H.T. was 12 or 13 years old, she babysat some children in her apartment complex, including D.R., the child of David and Brandy Ross. Defendant Ross lived with David (his brother) and Brandy.[1] Ross was 27 years old at the time.
The day of the incident, Brandy asked H.T. at the apartment swimming pool if she could watch D.R. while she ran an errand. H.T agreed and went to the parents' apartment to change D.R. into her swimsuit.
During trial, H.T. testified about the following: She thought she was alone in the apartment with D.R. While she was in the bedroom retrieving D.R.'s swimsuit, she heard the apartment door close. When she entered the living room, she heard the freezer door shut, and then Ross "came behind" her, put his "freezing cold" hands inside her top, and touched her breasts. She "stood there for a few seconds, not knowing what to do," then "removed" herself from Ross's hands, went to sit on the couch, and focused on trying to change D.R.'s clothes. Ross followed her to the couch and sat between H.T. and the front door. He touched her leg, moved his hand up her leg into her clothing, and put his fingers inside her vagina. H.T. felt "sharp cold pain." She stood up and "shoved" Ross off in "one big movement," using her "momentum." She ran out of the apartment, leaving D.R. behind, and began crying once she was out of Ross's presence.
H.T. kept the incident to herself for about four years. In 2016, during a camp counselor training exercise, after another trainee shared her experience with sexual assault, H.T. disclosed the incident involving Ross. A camp director reported the disclosure to law enforcement.
Officer Brent Eggleston contacted H.T. and she provided a statement. Officers then interviewed Ross. He told them that he remembered H.T. and putting his cold hands on her and wrestling with her. He did not admit to touching her breasts or vagina and said, if he did so, possibly while wrestling, he did not remember it. The State charged Ross with rape in the second degree and rape of a child in the second degree.
During trial, H.T.'s testimony differed in some respects from her statement to the officer, which she had provided about three years before. She testified that, at the time of the incident, she was wearing only a two-piece bathing suit. But she had told Officer Eggleston that she was wearing a shirt and shorts over her bathing suit. Also at trial, H.T. denied screaming during the incident and then said she did not recall whether she or D.R. screamed. Yet she had told Officer Eggleston that when Ross penetrated her, she screamed for 30 to 50 seconds, and that D.R. also screamed.
After the jury reached a verdict, but before its announcement, defense counsel moved for a mistrial, contending the State impermissibly diminished its burden of proof during closing argument. The trial court denied the motion as untimely and shared that it would have denied the motion even if it were timely.
The jury found Ross guilty as charged.
Ross says the State committed prosecutorial misconduct during closing argument in four ways: (1) misstating the law on forcible compulsion; (2) diminishing its burden of proof; (3) encouraging the jury to reach a verdict based on evidence outside the record; and (4) inflaming the jury's passions and prejudices. We do not see a basis for reversal on any of these grounds.
A prosecutor must ensure that they do not violate a defendant's right to a constitutionally fair trial. State v. Monday, 171 Wn.2d 667, 676, 257 P.3d 551 (2011). To establish misconduct, the defendant bears the burden of first showing the prosecutor's comments were improper. State v. Boyd, 1 Wn.App. 2d 501, 517-18, 408 P.3d 362 (2017); State v. Emery, 174 Wn.2d 741, 759, 278 P.3d 653 (2012).
Once a defendant establishes that a prosecutor's statements are improper, we determine whether the defendant was prejudiced under one of two standards of review. If the defendant objected at trial, the defendant must show that the prosecutor's misconduct resulted in prejudice that had a substantial likelihood of affecting the jury's verdict. If the defendant did not object at trial, the defendant is deemed to have waived any error, unless the prosecutor's misconduct was so flagrant and ill intentioned that an instruction could not have cured the resulting prejudice.
Emery, 174 Wn.2d at 760-61 (citation omitted). If the defense does not object at trial, "the defendant must show that (1) 'no curative instruction would have obviated any prejudicial effect on the jury' and (2) the misconduct resulted in prejudice that 'had a substantial likelihood of affecting the jury verdict.'" Id. (quoting State v. Thorgerson, 172 Wn.2d 438, 455, 258 P.3d 43 (2011)). Also, if defense counsel fails to object to allegedly improper comments made by a prosecutor, it "'strongly suggests'" that the comments "'did not appear critically prejudicial to [the defendant] in the context of the trial.'" State v. McKenzie, 157 Wn.2d 44, 53 n.2, 134 P.3d 221 (2006) (emphasis omitted) (quoting State v. Swan, 114 Wn.2d 613, 661, 790 P.2d 610 (1990)).
Ross says the State committed misconduct during closing argument by suggesting the jury could find forcible compulsion based on penetration alone. The State disputes it made any such suggestion and points to its broader argument about the circumstances surrounding the incident. We conclude the State did not misstate the law.
A prosecutor commits misconduct by misstating the law. State v. Allen, 182 Wn.2d 364, 373, 341 P.3d 268 (2015). Misstatements of the law have "'grave potential to mislead the jury.'" In re Det. of Urlacher, 6 Wn.App. 2d 725, 746, 427 P.3d 662 (2018) (quoting State v. Davenport, 100 Wn.2d 757, 763, 675 P.2d 1213 (1984)). "Statements as to the law in closing argument are to be confined to the law set forth in the instructions." Id. at 746-47.
To find Ross guilty of rape in the second degree, consistent with the law, [2]the applicable instruction required the jury to find: "(1) That between the 16th day of July, 2011, and the 31st day of July, 2012, the defendant engaged in sexual intercourse with H.T.; and (2) That the sexual intercourse occurred by forcible compulsion." (Emphasis added.) Also consistent with the law, [3] another instruction provided, "[f]orcible compulsion means physical force which overcomes resistance."
During closing argument, the State explained that rape in the second degree involves forcible compulsion when "sexual intercourse was done with physical force that overcomes resistance." The State said, "So the component or the element in this case is that the sexual intercourse, putting the fingers in the vagina, was done with physical force that overcame [H.T.]'s resistance." The State then reviewed facts relating to the issue of overcoming resistance such as the size and age difference between Ross and H.T. and the fact that they were in his home. The State said, Finally, the State said, "So again, he was able to put his fingers in her vagina with forcible compulsion."
Ross contends the State suggested to the jury that it could find forcible compulsion based on the act of digital penetration alone and that doing so was a misstatement of the law. But the State did not do so. It explained forcible compulsion using wording similar to the jury instruction. See Urlacher, 6 Wn.App. 2d at 746-47 (). Then, it argued-perhaps not as fully as it could have-that Ross's actions taken as a whole constituted forcible compulsion.
Ross says the State impermissibly diminished its burden of proof during closing argument. He contends that the State did so by telling the jury that it could convict despite having a reasonable doubt. We conclude that while the State's comments were improper, a jury instruction could have cured any resultant prejudice.
"Arguments by the prosecution that shift or misstate the State's burden to prove the defendant's guilt beyond a reasonable doubt constitute misconduct." State v. Lindsay 180 Wn.2d 423, 434, 326 P.3d 125 (2014). "Due process requires that the State bear the burden of proving every element of the crime beyond a reasonable doubt." State v. Warren, 165 Wn.2d 17, 26, 195 P.3d 940 (2008). Id. at 26-27 (emphasis added).
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