State Of Washington, Respondent V. Maurice Vanthrower, Appellant

ZOIUUN30 	AM 9=5o
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
Respondent,
v.
MAURICE VAN THROWER,
Appellant.
NO. 69950-4-1
DIVISION ONE
UNPUBLISHED OPINION
FILED: 	June 30, 2014
Leach, J. — Maurice Thrower appeals his convictions for two counts of
child molestation in the first degree. 	Thrower claims that he received ineffective
representation 	when 	defense 	counsel 	"opened 	the 	door" 	to 	evidence 	of
Thrower's uncharged misconduct and that a subsequent limiting instruction did
not cure the resulting prejudice. Thrower also contends the trial court violated his
public trial right by directing counsel to exercise peremptory challenges using a
written 	list. 	In 	a 	statement 	of 	additional 	grounds, 	Thrower 	also 	alleges
subornation of perjury, ineffective assistance of counsel, impermissible opinion
testimony, a Brady1 violation, prosecutorial misconduct, and insufficient evidence
to support his convictions. 	Because Thrower fails to show ineffective assistance
or a public trial violation and the further allegations in his statement of additional
grounds have no merit, we affirm his convictions.
1 Bradv v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L Ed. 2d 215 (1963).

NO. 69950-4-1 / 2
FACTS
In 2005, Maurice Thrower and Jennifer Wells began dating. 	Wells lived in
Northgate with 	her eight-year-old daughter, T.W., and T.W.'s younger sibling.
Thrower kept his personal belongings at the home and sometimes stayed the
night.
In spring 	2006, 	Wells 	moved 	the 	family 	to 	the 	Burke 	Gilman 	Place
Apartments in north Seattle. 	Thrower moved 	his 	personal belongings to the
apartment and sometimes stayed the night. 	Wells worked during the day and
hired a babysitter, C.A., to watch the children. 	Wells had Thrower come by the
apartment to check in on C.A. and the children. 	By this time, T.W.'s relationship
with 	Thrower 	had 	changed; 	T.W. 	became 	openly 	rude 	and 	was 	generally
disrespectful toward 	him. 	Thrower and Wells's relationship also deteriorated
during this time, 	and they ended the relationship in 2007, when T.W. was 10
years old.
When T.W. was 12 years old, Wells discovered that T.W. was using her
phone to send nude photographs of herself to a boy. 	Wells asked T.W. why she
was acting 	out and 	if anyone was touching 	her. 	T.W. told her 	mother that
Thrower had sexually molested her. 	T.W. did not want her mother to contact the
police, so Wells did not. When she was 16, T.W. learned that Thrower was back
in the community and decided to report the incidents to the police. 	The State
charged Thrower with two counts of child molestation in the first degree.
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NO. 69950-4-1 / 3
Before 	trial, 	it 	came to light that C.A., 	who 	was one of the State's
witnesses, had alleged that Thrower had also had inappropriate sexual contact
with 	her. 	The prosecutor initially did 	not seek to introduce evidence of this
incident because it was "too far afield."
After voir dire of prospective jurors and still in open court, counsel each
exercised seven peremptory challenges by alternately listing juror numbers on a
form pleading titled "Peremptory Challenges." 	The form contained two columns
of 	numbered 	blank 	lines, 	one 	labeled 	"Plaintiff/Petitioner" 	and 	the 	other
"Defendant/Respondent." While counsel passed the form back and forth, the trial
court gave jurors preliminary oral instructions.2 	Once counsel completed the
form and signed it, the court read aloud the numbers of the five excused jurors
seated in the jury box, filled their seats and one alternate with jurors from the
venire, and excused the rest of the panel. 	That same day, the court filed the
form with the county clerk.
At trial, Wells testified that there were "a lot of times" when she would
wake up and notice Thrower was no longer in her bed. 	T.W. testified that while
she lived with her mother in the Northgate home, Thrower would enter her room
at night and crawl into her bed. 	She testified that she would often wake up to find
Thrower lying beside her, pressing his erection against her buttocks and running
2 The court explained to the jury, "I'm going to take advantage of the time
while [counsel] are doing their work [of exercising peremptory challenges] to
instruct you on what comes next. 	And this is a way of using time efficiently, but it
really, especially, applies to the 13 jurors who will hear this case."
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NO. 69950-4-1 / 4
his hands over her hips and legs. 	T.W. also testified about an occasion when
she was sleeping on the floor of the living room with her two younger cousins and
awoke to find Thrower next to her, touching her breast beneath her tank top.
When she moved away from him, Thrower stopped and "went back upstairs."
T.W. testified that Thrower continued entering her bedroom at night, lying beside
her and placing his hands on her hips. 	C.A. and T.W. both testified that one day
they were playing at T.W.'s apartment when Thrower entered the room with his
erect penis "hanging out of his zipper."
At trial, C.A. testified that when she was 11 or 12, she would babysit T.W.
at Wells's apartment. 	C.A. said that Thrower "was never [at T.W.'s house],
except for the one time" when Thrower exposed himself to the girls. 	During
cross-examination, defense counsel pointed out several inconsistencies between
C.A.'s trial testimony and her earlier investigation interviews. 	Counsel noted that
even though 	C.A. was T.W.'s babysitter, 	C.A. 	"didn't do anything 	about this
alleged incident at the time." 	C.A. confirmed that she did not report the incident
to either her mother or Wells. Next, the following exchange occurred:
[Defense]: 	You 	say you 	were 	scared, 	has 	Mr. 	Thrower 	ever
threatened you?
[C.A.]: 	No.
[Defense]: 	Has he ever done anything to make you fear him,
physical, other than your allegation around this?
[State]: I can't hear the witness's response.
[Defense]: 	She hasn't given one.
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NO. 69950-4-1 / 5
[State]: Well, I thought she was shaking her head.
[Defense]: 	Has he ever threatened you?
[C.A.]: No.
[Defense]: 	No?
C.A. was crying and "shaking." 	Defense counsel continued cross-examination.
Outside the presence of the jury, the State argued that by asking C.A.
about anything 	"physical" Thrower did 	to 	make 	her afraid, 	defense 	counsel
opened 	the 	door 	to 	the 	earlier 	incident 	involving 	C.A. 	and 	Thrower. 	The
prosecutor had instructed C.A. that "she was absolutely not permitted to talk
about the second incident" and argued that is likely why "[C.A.] said [Thrower]
only came by the one time." 	Defense counsel argued that he was questioning
C.A. 	about the specific incident involving Thrower's exposure, 	not any other
incident. 	The trial 	court 	ruled 	that defense counsel's 	question 	of anything
"physical, other than your allegations around this" had opened the door and that
the evidence was "highly relevant and not unfairly prejudicial" because it went to
C.A.'s credibility. 	Defense counsel requested and received a limiting instruction
under ER 404(b).
On 	redirect, 	C.A. 	testified 	about 	another 	incident 	that she 	had 	not
mentioned earlier because "[she] was told that the story wasn't going to be
brought in." 	The State asked C.A. whether Thrower had done something to
make her fearful of him. 	C.A. 	answered, "[Y]es," and then 	provided details.
According to C.A., a couple of days after Thrower exposed himself, C.A. was
doing laundry in the kitchen. 	T.W. was outside playing at the time, and no one
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NO. 69950-4-1 / 6
else was in the house. 	Thrower picked C.A. up and carried her into the living
room, where he kissed her on her forehead. 	Thrower then said they were going
upstairs and that it was okay. 	Once upstairs in Wells's bedroom, Thrower was
on top of C.A., and he started to kiss her on her neck and chest. 	C.A. did not say
anything and started crying. 	Thrower told C.A. they were going to keep this to
themselves and 	went 	downstairs. 	After the 	incident, C.A. 	stopped 	going to
Wells's house to babysit, and she testified that she was still scared of Thrower.
Thrower 	testified 	in 	his 	own 	defense 	and 	denied 	all 	allegations 	of
inappropriate sexual conduct. 	The parties stipulated to Thrower's absence from
the community before February 16, 2005, and from June 16-30, 2005.
The 	jury 	found 	Thrower 	guilty 	as 	charged. 	The 	court 	imposed 	an
indeterminate standard range sentence of 180 months to life.
Thrower appeals.
ANALYSIS
Ineffective Assistance of Counsel
Thrower first alleges that his trial counsel provided ineffective assistance
to Thrower's 	significant 	prejudice 	by 	opening 	the door 	to testimony 	about
Thrower's uncharged misconduct. 	This court reviews an ineffective assistance of
counsel claim de 	novo as a mixed question of law and fact.3 	To establish
ineffective assistance of counsel, Thrower must show (1) that his counsel's
3 State v. Davis, 174 Wn. App. 623, 639, 300 P.3d 465 (citing State v.
Sutherbv, 165 Wn.2d 870, 883, 204 P.3d 916 (2009)), review denied, 178 Wn.2d
1012(2013).

NO. 69950-4-1 / 7
conduct fell below an objective standard of reasonableness and (2) a reasonable
possibility that but for counsel's deficient performance, the outcome of his trial
would have been different.4 We strongly presume the adequacy of trial counsel's
assistance.5 A defendant must establish both prongs of the test to succeed with
an ineffective assistance of counsel claim.6
By asking 	if Thrower had "ever done anything to make you fear him,
physical, other than your allegations around this," the defense intended to show
only that Thrower never "threatened" C.A. 	Defense counsel did 	not make a
strategic or tactical 	decision 	to 	open 	the 	door to 	Thrower's 	alleged 	earlier
uncharged conduct, given counsel's strenuous objections to admission of C.A.'s
testimony about the incident.
Our Supreme Court has stated that "questions on cross-examination may
elicit surprisingly damaging answers," but "the competence of counsel must be
judged from the whole record and not from isolated segments of it."7 	The law
affords trial counsel wide latitude in the choice of tactics.8 	Defense counsel's
continued cross-examination of C.A. was aimed at highlighting inconsistencies in
her testimony. 	In closing argument, defense counsel again used the incident to
attack C.A.'s credibility, arguing that C.A. "was crying because she got caught
4 State v. Reichenbach, 153 Wn.2d 126, 130, 101 P.3d 80 (2004) (citing
State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987)).
5 Reichenbach, 153 Wn.2d at 130 (citing State v. McFarland, 127 Wn.2d
322, 335, 899 P.2d 1251 (1995)).
e Strickland v. Washington. 466 U.S. 668, 697, 104 S. Ct. 2052, 80 L. Ed.
2d 674 (1984).
7 State v. Piche, 71 Wn.2d 583, 590-91, 430 P.2d 522 (1967).
8 Piche, 71 Wn.2dat590.

NO. 69950-4-1 / 8
lying" 	and 	"[s]he 	got 	caught with 	inconsistencies." 	Counsel 	requested 	and
received a limiting instruction. 	Thrower has not shown that defense counsel's
tactics constitute deficient performance.
Our Supreme Court has also recognized that when evaluating similar fact
evidence, 	"[a] 	careful 	and 	methodical 	consideration 	of relevance, 	and 	an
intelligent weighing of potential prejudice against probative value is particularly
important in 	sex cases, where the prejudice 	potential 	of prior acts is at its
highest."9 	Here, we conclude that Thrower has not shown prejudice. 	The State
presented 	substantial 	circumstantial 	evidence 	apart from 	C.A.'s 	testimony,
including Thrower's own testimony, which had a detailed description of T.W.'s
bed. 	Thrower described T.W.'s "metal futon bed" and testified "it made a lot of
noise" and would squeak, though he had earlier said that he only "cleaned her
room" one time. 	Viewing the admission of C.A.'s testimony about the uncharged
misconduct 	in 	the 	context 	of 	the 	whole 	record, 	Thrower 	fails 	to 	show 	a
reasonable possibility that but for this claimed error, the outcome of his trial
would have been different.
Limiting Instruction
Defense counsel submitted the following limiting instruction, which the trial
court gave to the jury:
Certain evidence has been admitted in this case for only a
limited purpose. 	This evidence consists of the testimony of [C.A.]
with regards to the allegation concerning the Defendant picking her
up, carrying her, and kissing her and may be considered by you
9 State v. Saltarelli, 98 Wn.2d 358, 363, 655 P.2d 697 (1982).
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NO. 69950-4-1 / 9
only for the purpose of determining whether she had reason to fear
the Defendant. You may not consider it for any other purpose. 	Any
discussion 	of the 	evidence 	during 	your 	deliberations 	must 	be
consistent with this limitation.
Thrower contends that this limiting instruction was "incomplete and insufficient"
because it failed to state explicitly "thatjurors could not use the evidence to show
appellant had a particular character (child molester) and acted in conformity with
that character."
We review de novo alleged errors of law in jury instructions.10 	We apply
an abuse of discretion standard to questions concerning the number and specific
wording of instructions.11
An adequate ER 404(b) limiting instruction must, at a minimum,
inform the jury of the purpose for which the evidence is admitted
and 	that 	the 	evidence 	may not be 	used 	for the 	purpose of
concluding that the defendant has a particular character and has
acted in conformity with that character.1121
An 	error 	in 	a 	limiting 	instruction 	is 	harmless 	"'unless, 	within 	reasonable
probabilities, had the error not occurred, the outcome of the trial would have
been materially affected.'"13
Here, the court instructed the jury that it admitted the evidence "only for
the purpose of determining whether [C.A.] had reason to fear the defendant" and
jurors "may not consider it for any other purpose," which would include character.
10 Hue v. Farmbov Spray Co., 127 Wn.2d 67, 92, 896 P.2d 682 (1995);
Singh v. Edwards Lifesciences Corp., 151 Wn. App. 	137, 150, 210 P.3d 337
(2009).
11 Hue, 127Wn.2d at 92 n.23 (citing Douglas v. Freeman, 117Wn.2d 242,
256, 814P.2d 1160(1991)).
12 State v. Gresham, 173 Wn.2d 405, 423-24, 269 P.3d 207 (2012).
13 Gresham, 173 Wn.2d at 425 (internal quotation marks omitted) (quoting
State v. Smith, 106 Wn.2d 772, 780, 725 P.2d 951 (1986)).

NO. 69950-4-1/10
This court presumes that the jury followed the trial court's instruction.14 	Thrower
does 	not show a 	reasonable 	probability 	that 	a 	different 	instruction 	would
materially change the outcome of his trial. 	The limiting instruction was adequate.
Right to a Public Trial
Thrower contends 	that 	by having 	counsel 	exercise 	their peremptory
challenges on paper during the court's preliminary oral instruction of the jury, the
trial court "conducted a portion of jury selection in private." 	Though all parts of
voir dire took place in open court, Thrower asserts this process violated his public
trial right because "the public was unable to see or hear what was happening
when the attorneys made peremptory challenges."
An alleged violation of the right to a public trial presents a question of law
we review de novo.15 	The Sixth Amendment to the United States Constitution
and article I, section 22 of the Washington Constitution guarantee the right of a
criminal defendant to a public trial.16 	Article I, section 10 of the Washington
Constitution 	contains 	an 	additional 	guarantee 	of open 	court proceedings:
"0]ustice in all cases shall be administered openly, 	and without unnecessary
delay." 	There is a strong presumption that courts are to be open at all stages of
14 State v. Warren, 	165 Wn.2d 	17, 28, 195 P.3d 940 (2008); State v.
Johnson, 124 Wn.2d 57, 77, 873 P.2d 514 (1994).
15 State v. Sublett, 176 Wn.2d 58, 70, 292 P.3d 715 (2012).
16 U.S. Const, amend. VI ("In all criminal prosecutions, the accused shall
enjoy the right to a speedy and public trial, by an impartial jury."); Wash. Const.
art. I, § 22 ("In criminal prosecutions the accused shall have the right to appear
and defend in person, or by counsel 	[and] to have a speedy public trial by an
impartial jury.").
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NO. 69950-4-1/11
trial.17 The right to a public trial extends to the voir dire of prospective jurors.18 In
those cases where a Washington appellate court has found an improper closure
during jury selection, the trial court conducted discussions with and/or dismissed
potential jurors in a closed courtroom, chambers, or other private setting, outside
the public eye.19
A party who proposes closure of a proceeding must show "an overriding
interest based on findings that closure is essential to preserve higher values and
narrowly tailored to serve that interest."20 	In State v. Bone-Club, the Washington
Supreme 	Court set forth a five-factor test courts 	must 	use 	to evaluate the
constitutionality of a proposed closure.21 	In State v. Sublett,22 the court adopted
17 Sublett. 176Wn.2dat70.
18 Presley v. Georgia, 558 U.S. 209, 213, 130 S. Ct. 721, 175 L. Ed. 2d
675 (2010); State v.Wise, 176Wn.2d1, 11,288P.3d 1113(2012).
19 See, e.g., Wise, 176 Wn.2d at 6-7 (partial voir dire in chambers); State
v. 	Paumier, 	176 Wn.2d 	29, 	32, 	288 	P.3d 	1126 (2012) 	(same); 	In re 	Pers.
Restraint of Morris, 176 Wn.2d 157, 160-61, 288 P.3d 1140 (2012) (same); State
v. Strode, 167 Wn.2d 222, 223, 217 P.3d 310 (2009) (same); State v. Brightman,
155 Wn.2d 506, 509, 122 P.3d 150 (2005) (courtroom closed to public during voir
dire); In re Pers. 	Restraint of Orange, 152 Wn.2d 795, 799-800, 100 P.3d 291
(2004) (same); State v. Nionqe, 161 Wn. App. 568, 570, 255 P.3d 753 (2011)
(same); State v. Tinh Trinh Lam, 161 Wn. App. 299, 301, 254 P.3d 891 (2011)
(interview of juror in chambers).
20 State v. Momah, 167 Wn.2d 140, 148, 217 P.3d 321 	(2009); see also
Waller v. Georgia, 467 U.S. 39, 45, 104 S. Ct. 2210, 81 L. Ed. 2d 31 (1984).
21 	In Bone-Club, the court held that a court must consider the following
factors on the record:
"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
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NO. 69950-4-1 /12
the "experience and logic" test articulated by the United States Supreme Court in
Press-Enterprise Co. v. Superior Court23 to determine if a particular process must
remain open to the public absent a Bone-Club analysis.
The record here does not support Thrower's claim that a closure occurred
during jury selection in his trial. 	Voir dire, including for-cause challenges and
some individual questioning of prospective jurors on sensitive topics, took place
in open court. 	Counsel considered and recorded their uncontested peremptory
challenges in open court. 	The form counsel used identified the prospective jurors
by number, the order in which counsel made the challenges, and the party who
made them. 	Members of the public saw the dismissed jurors leave and observed
which 	jurors 	remained. 	The 	court 	did 	not 	announce 	which 	attorney 	had
challenged each juror. 	But that same day the court filed the list as part of the
record. 	Thrower does not dispute that this information was accessible as a
public record.
We note that the court clerk electronically filed the form the same day
counsel completed it. 	Thus, no significant delay occurred in public access to it.
We do not address here two different factual scenarios—first, a significant delay
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."
128 Wn.2d 254, 258-59, 906 P.2d 325 (1995) (alteration in original) (quoting
Allied Daily Newspapers of Wash, v. Eikenberry, 121 Wn.2d 205, 210-11, 848
P.2d 1258(1993)).
22 176 Wn.2d 58, 72-73, 292 P.3d 715 (2012).
23 478 U.S. 1, 8-10, 106 S. Ct. 2735, 92 L. Ed. 2d 1 (1986).
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NO. 69950-4-1/13
in public access to the form or, second, the complete lack of public access to it.
Either may undermine the right to open administration of justice. 	Here, the trial
court's procedure, together with timely public access to the record, protected
both "the core values of the public trial right" and the open administration of
justice.24 While we do not endorse the trial court's practice, we hold that it did not
violate Thrower's right to a public trial.25
Statement of Additional Grounds
Thrower raises several pro se arguments. 	None have merit.
Thrower first contends that the 	prosecutor suborned 	perjury 	by "going
along with the State's witnesses [C.A. and T.W.], knowing very well that this
testimony was false." 	The record does not support Thrower's claim. 	C.A.'s
testimony about one incident, when it came to light later that there were two, was
not perjury. 	Nor does 	defense 	impeachment 	highlighting 	inconsistencies 	in
testimony establish 	perjury. 	Thrower does not show that the State suborned
perjury.
Second, Thrower alleges that defense's failure to call certain witnesses
constituted ineffective assistance of counsel. 	At trial, Thrower testified in his own
defense. 	Defense counsel did not call any other witnesses. 	Thrower contends
24 Sublett, 176Wn.2dat73.
25 Divisions Two and Three have held that the trial court does not violate a
defendant's public trial right by allowing the 	attorneys to exercise peremptory
challenges during a side bar. State v. Dunn 	Wn. App. 	, 321 P.3d 1283,
1285 (2014), petition for review filed, No. 90238-1 (Wash. May 16, 2014); State
v. Love, 176 Wn. App. 911, 920, 309 P.3d 1209 (2013), petition for review filed,
No. 89619-4 (Wash. Dec. 9, 2013).
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NO. 69950-4-1 /14
that testimony from T.W.'s grandmother, uncle, and the uncle's girlfriend that
"they lived 	in 	the apartment [at various 	intervals] 	and were useing 	[sic] the
downstairs as a living quarters would have no doubt created reasonable doubt in
the jury producing an acquittal for Thrower." 	Generally, the decision to call a
witness is a matter of legitimate trial tactics and will not support an ineffective
assistance of counsel claim.26 	Defense counsel likely considered and decided
against pursuing testimony that may not have been favorable to Thrower's case,
especially given that these witnesses are members of T.W.'s family. 	Thrower
does not show that this testimony had a reasonable probability of changing the
outcome of 	his 	trial. 	We 	hold 	that Thrower does 	not 	show deficiency and
therefore that he does not show ineffective assistance of counsel.
Thrower argues next that certain testimony was improper bolstering and
impermissible opinion. 	At trial, Jennifer Wells testified about what faced T.W.
after she reported her allegations against Thrower: 	"Come to court and tell a
bunch of strange people about personal business and things that happened to
her." 	Shannon Williams, a family friend, testified that she had urged Wells to
report the allegations: 	"My feeling was that she needed to tell somebody, that it
needed to stop. [T.W.] needed some closure. 	He—she didn't ever be allowed to
do this to anybody again." 	Detective Kizzier described his interview protocol for
child witnesses and testified that in his interview with T.W., 	"[H]er demeanor
became 	more serious 	as 	we spoke about the 	incidents in 	question or the
26 State v. Bvrd, 30 Wn. App. 794, 799, 638 P.2d 601 (1981).
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NO. 69950-4-1/15
allegations in question. 	And at one point she—when she got to a particular point
of her narrative, she had a very—a much more pronounced emotional response."
Kizzier's testimony provided context for the interview of a child victim and was
rationally based on his perceptions of T.W. during his interview with her.27 	He did
not testify that he believed T.W. or that she was telling the truth. 	Likewise,
Wells's 	and 	Williams's testimony 	about 	"what happened 	to" T.W. does 	not
constitute improper bolstering of T.W. 	or impermissible opinion on Thrower's
guilt. 	Defense counsel was able to cross-examine each witness. 	"A jury must
still determine credibility and truthfulness of each witness."28
Next, Thrower argues that the prosecutor "failed to disclose impeaching
and exculpatory evidence that Thrower was incarcerated at the time T.W. says
these allegations first 	took 	place," 	and that this failure 	constitutes a 	Brady
violation. 	At trial, 	Thrower proposed that a 	defense 	investigator who had
requested records from the State Department of Corrections (DOC) testify to the
dates Thrower was incarcerated or on work release. 	The trial court excluded the
investigator's testimony on the grounds that the investigator was not a custodian
of the DOC records or competent to testify about them. The parties agreed to a
stipulation that Thrower "was out of the community prior to February 16, 2005,
and also between June 16, 2005, and June 30, 2005."
27 see State v. Montgomery, 163 Wn.2d 577, 591, 183 P.3d 267 (2008)
(permissible lay opinion testimony is based on rational perceptions that help the
jury 	understand 	the witness's 	testimony and 	are 	not 	based 	on 	scientific or
specialized knowledge).
28 State v. Karman, 159 Wn.2d 918, 931, 155 P.3d 125 (2007).
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NO. 69950-4-1/16
"Due 	process 	requires 	the 	State 	to disclose 'evidence that 	is 	both
favorable to the accused 	and "material either to guilt or to punishment."'"29
Evidence is material "only if there 	is a 	reasonable 	probability that, 	had the
evidence been disclosed to the defense, the result of the proceeding would have
been different."30 	If the defendant could have obtained the information using
reasonable diligence, 	however, 	there is no 	Brady violation.31 	Here, defense
requested and received Thrower's DOC records, as well as information the State
had received from 	DOC. 	The parties stipulated to dates during the charging
period during which Thrower had been "out of the community," and Thrower
himself testified to those 	periods. 	Thrower does 	not demonstrate that 	any
information the State possessed about his DOC records was unobtainable by
reasonable diligence on the part of defense counsel or how it was material under
Brady. 	No Brady violation occurred.
Thrower further contends that the prosecutor made statements in closing
argument "not based on any evidence in the record," made improper comments
on T.W.'s credibility, 	misstated arguments, and shifted the burden. 	Defense
counsel made several objections during closing argument and rebuttal, all of
which the trial court overruled. The prosecutor argued that the reason T.W. gave
29 In re Pers. Restraint of Gentry, 137 Wn.2d 378, 396, 972 P.2d 1250
(1999) (quoting United States v. Baglev, 473 U.S. 667, 674, 105 S. Ct. 3375, 87
L. Ed. 2d 481 (1985) (quoting Brady, 373 U.S. at 87)).
30 Gentry, 137 Wn.2d at 396 (internal quotation marks omitted) (quoting
Baglev, 473 U.S. at 682).
31 	In re Pers. 	Restraint of Benn, 	134 Wn.2d 	868, 	916, 	952 	P.2d 	116
(1998).
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NO. 69950-4-1/17
for not telling her mother about the abuse "has that ring of truth to it now that
you ... . know a little bit more about Jennifer Wells." 	The prosecutor made
references to 	inconsistencies 	in Thrower's testimony and 	invited 	the jury to
assess 	Thrower's 	credibility. 	Rebutting 	defense 	counsel's 	assertions, 	the
prosecutor argued that a review of investigation interviews shows that some
putative inconsistencies "weren't inconsistencies at all."
Prosecutorial misconduct is grounds for reversal where the conduct is
both 	improper and 	prejudicial.32 	Generally, 	a 	prosecutor's 	comments 	are
prejudicial only where there is a substantial likelihood that they affected the jury's
verdict.33 	This court considers the effect of a prosecutor's improper conduct in
the 	context of the 	full 	trial, including evidence 	presented 	and 	addressed 	in
argument, 	the issues in 	the 	case, and 	the 	court's 	instructions to the jury.34
Prosecutors 	have 	wide 	latitude 	in 	closing 	argument 	to 	draw 	reasonable
inferences from 	the 	evidence and 	express 	those 	inferences to the 	jury.35
However, counsel must refrain from expressing 	a personal opinion about the
credibility of witnesses or the guilt or innocence of the accused.36 	Here, the
prosecutor's comments were argument and "an explanation of the evidence, not
a 	clear and 	unmistakable expression 	of personal 	opinion."37 	In 	overruling
32 State v. Monday, 171 Wn.2d 667, 675, 257 P.3d 551 (2011).
33 Monday, 171 Wn.2d at 675.
34 State v. McKenzie, 157 Wn.2d 44, 52, 134 P.3d 221 (2006).
35 State v. Stenson, 132 Wn.2d 668, 727, 940 P.2d 1239 (1997).
36 State v. Calvin, _ 	Wn. App. _, 316 P.3d 496, 505 (2013), petition for
review filed, No. 89518-0 (Wash. Nov. 12, 2013); State v. Rivers, 96 Wn. App.
672, 674-75, 981 P.2d 16 (1999).
37 Calvin, 316 P.3d at 505.
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NO. 69950-4-1/18
defense 	objections, 	the 	trial 	court 	reiterated 	several 	times 	that 	"[t]he jury's
instructed that this is argument and they're to confine themselves to the evidence
and the law." 	The prosecutor clearly stated that the State bore the burden of
proof, and the trial court correctly instructed the jury. 	Because Thrower does not
show that any of the prosecutor's comments were either improper or prejudicial,
we hold that Thrower does not show prosecutorial misconduct.
Finally, Thrower argues that the evidence was insufficient to support his
convictions. 	Thrower points to testimony by T.W. and Kizzier that he contends
shows that 	his 	conviction 	is "based 	on 	contradictory statements," especially
regarding dates the alleged incidents could have happened.
A challenge to the sufficiency of the evidence admits the truth of the
State's evidence.38 We view all facts and reasonable inferences in the light most
favorable to the State to determine whether any rational trier of fact could have
found the elements of the charged crime beyond a reasonable doubt.39 We defer
to 	the 	trial 	court on 	issues 	of 	conflicting 	testimony, 	witness 	credibility, 	and
persuasiveness of the evidence.40 	Viewed in the 	light most favorable to the
State, the evidence here was such that a 	rational trier of fact could 	find the
elements of child molestation in the first degree beyond a reasonable doubt. 	We
hold that the evidence was sufficient to support Thrower's convictions.
38 State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
39 State v. Embrv, 	171 Wn. App. 714, 742, 287 P.3d 648 (2012) (citing
State v. Yarbrough, 151 Wn. App. 66, 96, 210 P.3d 1029 (2009)), review denied.
177Wn.2d 1005(2013).
40 State v. Raleigh. 	157 Wn. App. 728, 	736-37, 238 P.3d 1211 	(2010)
(citing State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004)).
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NO. 69950-4-1/19
CONCLUSION
Because Thrower fails 	to 	show ineffective assistance or a 	public trial
violation and the further allegations in his statement of additional grounds have
no merit, we affirm.
WE CONCUR:
V)e^,v^. 	., 	OX 	\;SWi. .O f I
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