State Of Washington, V. Chayce Hanson ( 2022 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
STATE OF WASHINGTON,
No. 80046-9-I
Respondent, (Consolidated with
No. 82905-0-I)
v.
DIVISION ONE
CHAYCE HANSON,
UNPUBLISHED OPINION
Appellant.
In the Matter of the Personal Restraint
of Chayce Hanson
COBURN, J. — This review consolidates Chayce Hanson’s personal
restraint petition (PRP) and his direct appeal of his convictions for rape in the
second degree, tampering with a witness, assault in the second degree with
sexual motivation, felony hit and run, and vehicular assault. Through a
combination of his direct appeal, PRP, and statement of additional grounds,
Hanson claims (1) the State violated equal protection by charging him with
assault in the second degree with intent to commit indecent liberties rather than
indecent liberties, (2) sufficient evidence did not support the vehicular assault
and felony hit and run convictions, (3) ineffective assistance of counsel, (4)
prosecutorial misconduct, and (5) the accumulation of errors affords him a new
trial. Hanson waived his charging claim and fails to establish an error affecting a
Citations and pin cites are based on the Westlaw online version of the cited material.
No. 80046-9-I/2
constitutional right. Sufficient evidence supports the vehicular assault and felony
hit and run convictions. His counsel was not ineffective. The prosecutor did not
engage in misconduct. Hanson failed to demonstrate an accumulation of errors
warranting reversal. Accordingly, we affirm and deny his petition.
FACTS
C.C. lived in an apartment with her teenage son in West Seattle. She lived
near her friends Crystal Hansen 1 and Crystal’s boyfriend, Christopher Alatorre.
Alatorre worked a block away at West Seattle Brewing as an operations manager,
and C.C. would occasionally visit the brewery.
Chayce Hanson is an owner of a barbeque restaurant, which is next door
to West Seattle Brewery. The businesses share a parking lot. Hanson would
patronize the brewery semi-regularly. Hanson and C.C. knew each other for a
couple of years, and they had previously gone out for drinks in West Seattle.
One evening in February 2017, Hanson ordered a beer at the brewery.
Hanson saw C.C. walking by and invited her for a drink. He ordered a beer for
her. After about 45 minutes to an hour, they left for the Maharaja restaurant.
The brewery bartender was not concerned about their levels of intoxication when
they left.
At Maharaja, Hanson introduced C.C. to the bartender as a long-time
friend. The bartender observed that they did not appear intoxicated when they
arrived. Hanson bought a round of drinks for C.C. and himself. C.C. ordered a
1Because Chayce Hanson and Crystal Hansen have similar surnames,
we refer to Crystal Hanson as “Crystal” for clarity.
2
No. 80046-9-I/3
“gin soda tall” that she sipped for an hour. C.C. felt buzzed after that one drink.
Although someone bought C.C. a shot of tequila, she did not drink it. Later, the
bartender observed that C.C. seemed intoxicated and pushed aside drinks, not
wanting to drink them. The bartender testified that C.C. suddenly was acting
more intoxicated than what she had to drink. C.C. and Hanson left around 11:20
p.m. Video footage shows C.C. unable to walk in a straight line and stumbling
and supported by Hanson as she left Maharaja.
At 11:30 p.m., video footage from the brewery’s parking lot depicted
Hanson’s truck pulling in with C.C. slumped over in the passenger seat. C.C.
appeared to be incapacitated, limp to the touch, not functional or moving, and
unresponsive. Hanson physically propped her up, put his hand inside her jacket
and below her waist, and kissed her. C.C. was mostly unresponsive except for
an attempt at pushing away Hanson’s hand. C.C. testified that she had no
recollection of this event, did not consent to it, and found it offensive after
watching the video.
Alatorre testified to what Hanson later told him happened next regarding
the collision. Sometime after Hanson left the parking lot, he was driving around a
roundabout a few blocks away, C.C. flopped over, Hanson lost control, and he
crashed his truck into a rock wall. Alatorre said Hanson explained he was
“slightly buzzed” and “made a mistake.” According to C.C., Hanson later told her
he was “really wasted,” should not have been driving, and that C.C. “hit her head
on the windshield.” The damage to the truck included a spider web crack on the
windshield in front of where C.C. was seen sitting when Hanson left the brewery.
3
No. 80046-9-I/4
After the collision, Hanson left the scene without reporting the accident or calling
for help.
The next morning, C.C. woke up to Hanson having sex with her in his
apartment. C.C. testified that she woke up really confused and unable to speak
despite wanting to tell Hanson to stop and that she wanted to go. C.C. had no
recollection of anything that occurred between being at Maharaja and waking up
in Hanson’s bed while he was penetrating her. Blood matching C.C.’s
deoxyribonucleic acid (DNA) was later found on a pillow in Hanson’s bedroom.
Around 9:00 a.m., C.C.’s son called her on the phone. C.C.’s voice was
choppy, she stuttered, and she could not fully understand what he was saying to
her. Her son described C.C. as having “serious mental difficulty speaking[.]”
C.C. could not find all of her clothes before she left Hanson’s apartment
and wore only pants and shoes with her coat. She did not put more clothes on
because she “didn’t understand how to do that” and wanted to get home.
Although she remembered leaving Hanson’s apartment, she did not remember
the walk home. C.C.’s bra and shirt were later found on her front porch.
Because C.C. did not have her phone or keys, she went to Crystal’s apartment.
Crystal testified that C.C. could not speak well and had almost “zero
communication ability.” C.C. was able to communicate that she needed to go to
the hospital, but she could not say anything else. She had dried blood on her
face and hands, and her face was swollen.
Crystal took C.C. to the nearby hospital. C.C. had difficulty
communicating with the doctors. So instead, they asked her to write down what
4
No. 80046-9-I/5
she was experiencing, but she was only able to repeatedly write her name. An
ambulance then took C.C. and Crystal to Harborview Medical Center
(Harborview).
An obstetrics/gynecology doctor (OB/GYN) at Harborview examined C.C.
as part of a sexual assault examination that evening. The OB/GYN observed
that C.C. was having physical and neurological issues. C.C. remembered that
she had been with a man but not the details of what occurred or how she was
injured.
A sexual assault nurse examiner also examined C.C. C.C. had significant
word-finding difficulty. The examiner testified that C.C. was able to convey that
she had sex with a man when she did not want to. C.C. also told the examiner
that at the time C.C. could not talk, but she just wanted it to be done. Later, a
DNA analysis of the semen recovered from a swab of C.C.’s perineal vulvar
matched Hanson’s DNA. 2
Doctors determined C.C. had suffered an ischemic stroke in the area of
her left frontal lobe, which was consistent with her communication problems. The
cause of the stroke was contested at trial. The director of the comprehensive
stroke center at Harborview, where C.C. was examined and treated, testified
that, without any other compelling causes, trauma was the best assessment as
the cause of C.C.’s stroke. A defense expert, managing partner of Neurological
Associates of Washington, who did not examine C.C., testified that there was a
2 A forensic scientist reported that the estimated probability of selecting an
unrelated individual at random from the United States population with a matching
profile is one in 1.1 undecillion.
5
No. 80046-9-I/6
“50/50 chance” that C.C.’s stroke was caused by a carotid web, which is an
abnormality in the inside wall of the carotid artery.
About five days after the incidents, the police executed a search warrant
on Hanson’s truck, which had extensive damage to the front left corner. Swabs
were taken from the inside surface of the smashed windshield. A detective also
took samples from inside the truck, the seat and the passenger door, that he
believed might be blood. The swab from the seat was not tested. A forensic
scientist later matched C.C.’s DNA to the blood swab from the passenger door.
About two months later, Hanson saw C.C. walking by in the neighborhood
and spent over an hour and half trying to convince her to sign a notarized
statement that Hanson did not rape her. C.C. testified she was scared and that
she told Hanson, in order to get out of the confrontation, she would meet him the
next day. She immediately called a detective when she got inside her apartment.
While she was on the phone with the detective, Hanson started pounding on her
door, and C.C. was scared he would break in. She felt compelled to answer the
door.
C.C. followed instructions from the detective to put her cell phone in her
pocket with the detective on the line. The detective then used another phone to
call 911 and relay what was happening and what she could hear in live time.
C.C. said Hanson was getting more and more agitated because the phone
number C.C. gave him was wrong, so he tried to get C.C. to say something on
6
No. 80046-9-I/7
his phone camera. At trial, part of the 911 recording was admitted. 3 The jury
heard the detective tell the 911 dispatcher that she heard Hanson tell [C.C.] what
he could lose if she does not help him and that he said, “I’m going to fucking
prison. I’m going to fucking prison over this.” Hanson was arrested shortly
thereafter.
Additional facts are discussed below where relevant.
Hanson did not testify at trial. A jury found Hanson guilty of (1) rape in the
second degree by engaging in sexual intercourse with another person when the
other person is incapable of consent by reason of being physically helpless, (2)
tampering with a witness, (3) assault (with intent to commit indecent liberties) in
the second degree with sexual motivation, (4) felony hit and run, and (5)
vehicular assault. At sentencing, the court imposed an indeterminate high-end
sentence of 304 months for the rape conviction. Hanson’s sentences for the
remaining felony convictions were ordered to run concurrently.
Hanson filed a timely appeal. While that appeal was pending, he filed a
PRP. We granted his request to consolidate the matters for review.
DISCUSSION
Equal Protection
Hanson raises for the first time in his direct appeal that the State violated
his constitutional right to equal protection by failing to charge him with indecent
3The redacted 911 recording, State’s Exhibit No. 31, was not designated
for appeal.
7
No. 80046-9-I/8
liberties, instead of assault in the second degree with intent to commit indecent
liberties, because the statutes are concurrent. We disagree.
“No State shall . . . deny to any person within its jurisdiction the equal
protection of the laws.” U.S. Const. amend. 14. “No law shall be passed
granting to any citizen, class of citizens, or corporation other than municipal,
privileges or immunities which upon the same terms shall not equally belong to
all citizens, or corporations.” Wash. Const. art. I, § 12.
“Equal protection is violated when two statutes declare the same acts to
be crimes, but penalize more severely under one statute than the other.” State v.
Aamold, 60 Wn. App. 175, 179, 803 P.2d 20 (1991). Further, “ ‘equal protection
of the laws is denied when a prosecutor is permitted to seek varying degrees of
punishment when proving identical criminal elements.’ ” State v. McEnroe, 179
Wn. 2d 32, 44, 309 P.3d 428 (2013) (citing State v. Campbell, 103 Wn. 2d 1, 25,
691 P.2d 929 (1984)).
A party may claim an error for the first time on appeal if it concerns “(1)
lack of trial court jurisdiction, (2) failure to establish facts upon which relief can be
granted, [or] (3) manifest error affecting a constitutional right.” RAP 2.5(a).
Hanson’s argument regarding equal protection does not fall within one of these
exceptions.
“The defendant has the initial burden of showing that (1) the error was
‘truly of constitutional dimension’ and (2) the error was ‘manifest.’ ” State v.
Grimes, 165 Wn. App. 172, 185-86, 267 P.3d 454 (2011) (quoting State v.
O’Hara, 167 Wn.2d 91, 98, 217 P.3d 756 (2009)). “A defendant cannot simply
8
No. 80046-9-I/9
assert that an error occurred at trial and label the error ‘constitutional’; instead,
he must identify an error of constitutional magnitude and show how the alleged
error actually affected his rights at trial.” Grimes, 165 Wn. App. at 186.
“When a specific statute and a general statute punish the same conduct,
the statutes are concurrent and the State can only charge a defendant under the
specific statute.” State v. Wilson, 158 Wn. App. 305, 313-14, 242 P.3d 19,
(2010) (citing State v. Shriner, 101 Wn.2d 576, 580, 681 P.2d 237 (1984); State
v. Presba, 131 Wn. App. 47, 52, 126 P.3d 1280 (2005)). Whether statutes are
concurrent involves examining the elements of the statutes, not the facts of the
particular case. State v. Chase, 134 Wn. App. 792, 802-03, 142 P.3d 630(2006).
The crimes of indecent liberties and assault in the second degree with
intent to commit indecent liberties are not concurrent statutes.
Under RCW 9A.44.100, “[a] person is guilty of the felony of indecent
liberties when he or she knowingly causes another person to have sexual contact
with him or her or another . . . When the other person is incapable of consent by
reason of being mentally defective, mentally incapacitated, or physically
helpless.” RCW 9A.44.100(1)(b). Further, sexual contact means “any touching
of the sexual or other intimate parts of a person done for the purpose of gratifying
sexual desire of either party or a third party.” RCW 9A.44.010(13).
Under RCW 9A.36.021, “a person is guilty of assault in the second degree
if he or she, under circumstances . . . with intent to commit a felony, assaults
another. . .” RCW 9A.36.021(1)(e). The jury was instructed that assault was “an
9
No. 80046-9-I/10
intentional touching of another person that is harmful or offensive regardless of
whether any physical injury is done to the person. A touching is offensive if the
touching would offend an ordinary person who is not unduly sensitive.” The
State alleged that Hanson committed assault with the intent to commit indecent
liberties.
While indecent liberties requires actually having sexual contact, assault in
the second degree with the intent to commit indecent liberties does not require
having sexual contact. The two crimes do not punish the same conduct. Thus,
they are not concurrent statutes—which Hanson conceded at oral argument. 4
Because the crimes do not have identical elements, a prosecutor does not violate
equal protection by electing to charge one crime over another.
Further, “[p]rosecutors have broad discretion with respect to charging
decisions.” State v. Lee, 69 Wn. App. 31, 36, 847 P.2d 25 (1993). The act
underlying the charge in the instant case was captured by video camera. C.C.
had no memory of the event and could only testify that she was offended from
what she viewed on the video. The video showed Hanson kissing C.C. and
reaching his hand inside her jacket and below her waist out of view of the camera
while she appeared to be unconscious. The prosecutor charged what the
evidence supported.
4 Wash. Court of Appeals oral argument, State v. Hanson, No. 80046-9-I
(Nov. 2, 2021), at 3 min., 40 sec., video recording by TVW, Washington State’s
Public Affairs Network,
https://tvw.org/video/division-1-court-of-appeals-
2021111009/?eventID=2021111009.
10
No. 80046-9-I/11
Hanson fails to establish an error of constitutional dimension and thus
waives this claim.
Sufficiency of the Evidence
Hanson claims in his PRP that the State failed to prove beyond a
reasonable doubt that he committed vehicular assault and felony hit and run. We
disagree.
To prevail on a PRP, Hanson bears the burden of proving by a
preponderance of evidence that “he was actually and substantially prejudiced
either by a violation of his constitutional rights or by a fundamental error of law.”
In re Pers. Restraint of Benn, 134 Wn.2d 868, 884, 952 P.2d 116 (1998); In re
Pers. Restraint of Lord, 152 Wn.2d 182, 188, 94 P.3d 952 (2004). “Actual
prejudice must be determined in light of the totality of circumstances.” In re Pers.
Restraint of Music, 104 Wn.2d 189, 191, 704 P.2d 144 (1985). In determining
whether actual prejudice exists, we look to see if the error “so infected [the]
petitioner’s entire trial that the resulting conviction violates due process.” Music,
104 Wn.2d at 191. An error warrants relief when the reviewing court has a
“grave doubt as to the harmlessness of an error.” In re Pers. Restraint of Sims,
118 Wn. App. 471, 477, 73 P.3d 398 (2003) (internal quotation marks omitted).
These threshold requirements are “necessary to preserve the societal
interest in finality, economy, and integrity of the trial process. It also recognizes
that the petitioner has had an opportunity to obtain judicial review by appeal.” In
re Pers. Restraint of Delgado, 160 Wn. App. 898, 903, 251 P.3d 899 (2011).
11
No. 80046-9-I/12
“Sufficiency of the evidence is a question of constitutional magnitude
because due process requires the State to prove its case beyond a reasonable
doubt.” In re Pers. Restraint of Tortorelli, 149 Wn.2d 82, 93, 66 P.3d 606 (2003)
(citing State v. Baeza, 100 Wn.2d 487, 488, 670 P.2d 646 (1983)). “A sufficiency
challenge admits the truth of the State’s evidence and accepts the reasonable
inferences to be made from it.” State v. O’Neal, 159 Wn.2d 500, 505, 150 P.3d
1121 (2007). Evidence is sufficient if, “ ‘after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.’ ” State v. Green, 94
Wn.2d 216, 221, 616 P.2d 628 (1980) (quoting Jackson v. Virginia, 443 U.S. 307,
319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)). Circumstantial and direct
evidence carry equal weight. State v. Goodman, 150 Wn.2d 774, 781, 83 P.3d
410 (2004). “Credibility determinations are for the trier of fact and are not subject
to review.” State v. Thomas, 150 Wn.2d 821, 874, 83 P.3d 970 (2004).
Accordingly, we “defer to the trier of fact on issues of conflicting testimony,
credibility of witnesses, and the persuasiveness of the evidence.” Thomas, 150
Wn.2d at 874-75. We will reverse a conviction “only where no rational trier of fact
could find that all elements of the crime were proved beyond a reasonable
doubt.” State v. Smith, 155 Wn.2d 496, 501, 120 P.3d 559 (2005).
A. Vehicular Assault
Hanson’s first argument has more to do with how the State chose to prove
vehicular assault than whether evidence was sufficient to support the crime as
charged. The State charged Hanson with vehicular assault for driving or
12
No. 80046-9-I/13
operating a vehicle “while under the influence of intoxicating liquor or any drugs,
as defined by RCW 46.61.502” and causing substantial bodily harm.
Hanson contends that the prosecution “relying on the ‘affected by’ clause
was plain error, as this failed to describe a distinct type of conduct that could
reasonably be interpreted as creating alternative means.” While not altogether
clear, it appears Hanson cites to State v. Sandholm for the proposition that
“under the influence of” or “affected by” are alternative means of committing the
crime of driving under the influence and that the State was required to prove that
Hanson’s blood-alcohol concentration was 0.08 or greater under RCW
46.61.502(1)(a), which defines the crime driving under the influence. 184 Wn.2d
726, 734, 364 P.3d 87 (2015). However, our Supreme Court in Sandholm
concluded the opposite:
[T]he DUI statute’s “affected by” clauses do not describe
multiple, distinct types of conduct that can reasonably be
interpreted as creating alternative means. Rather, those
portions of the DUI statute contemplate only one type of
conduct: driving a vehicle under the “influence of” or while
“affected by” certain substances that may impair the driver.
Id. at 735. 5 Hanson fails to recognize that vehicular assault may be committed
while the driver is “under the influence of intoxicating liquor or any drug, as
defined by RCW 46.61.502.” RCW 46.61.522(1)(b). “There are two ways to
prove driving while under the influence of intoxicating liquor under RCW
46.61.502: (1) by showing the defendant’s blood alcohol level was at least 0.08
within two hours after driving or (2) by evidence tending to show the defendant
5The court in Sandholm discusses Former RCW 46.51.502 (2008), but
the clause at issue remains the same as the current version of the statute.
13
No. 80046-9-I/14
was under the influence of alcohol and/or other drugs.” State v. Brown, 145 Wn.
App. 62, 69, 184 P.3d 1284 (2008) (emphasis added); RCW 46.61.502(1)(a), (c).
The State was not required to prove his alcohol concentration was 0.08 or higher.
Hanson next argues that “although there was evidence that petitioner had
consumed some alcohol prior to the accident, there was a complete absence of
any evidence of being under the influence of or affected by intoxicants.” He
further argues that the evidence that was submitted permitted the jury to
“speculate as to the existence of a fact not supported by the evidence.” We
disagree.
At trial, the jury was instructed that in order to find Hanson guilty of
vehicular assault, it would have to find Hanson’s “driving proximately caused
substantial bodily harm to another person” and that “at the time [Hanson] was
under the influence of intoxicating liquor.” The jury was further instructed that a
“person is under the influence of intoxicating liquor when the person’s ability to
drive a motor vehicle is lessened in any appreciable degree as a result of
intoxicating liquor.”
Because Hanson did not testify, and C.C. had no memory of the accident,
there were no eyewitness accounts of the actual accident. However, a conviction
may be based on circumstantial evidence. The jury was instructed on the
evidence it may consider:
The evidence that has been presented to you may be either
direct or circumstantial. The term “direct evidence” refers to
evidence that is given by a witness who has directly perceived
something at issue in this case. The term “circumstantial evidence”
refers to evidence from which, based on your common sense and
14
No. 80046-9-I/15
experience, you may reasonably infer something that is at issue in
this case.
The law does not distinguish between direct and
circumstantial evidence in terms of their weight or value in finding
the facts in this case. One is not necessarily more or less valuable
than the other.
Witness testimony and video footage established Hanson had at least two drinks
in less than an hour at the brewery. About 10 minutes after leaving the brewery,
C.C. and Hanson entered the Maharaja restaurant. A detective who viewed
security footage from the restaurant testified that Hanson ordered three drinks for
himself while at the restaurant. A Maharaja bartender also testified that someone
else bought each of them a tequila shot. Alatorre, the brewery’s operations
manager, testified that Hanson said he was “slightly buzzed” and had “made a
mistake” in explaining the accident. Hanson said that he was going up the street,
C.C. flopped over, he lost control, went around the island, and hit a brick wall or
rock wall. When asked, “And when you talk about Chayce allegedly telling you
that it could happen to anybody, he was talking about the accident, right?”
Alatorre answered, “Yeah, just, you know, being intoxicated. And, you know,
wrecking the car. It could happen to anybody.” C.C. also testified that Hanson,
months later, told C.C. that he was “really wasted, and he shouldn’t have driven
his car” that night.
Sufficient evidence provided a basis for a jury to find that Hanson was
under the influence at the time of the accident.
B. Felony Hit and Run
Hanson alleges insufficiency of the evidence as to only one element of the
felony hit and run conviction—that the accident resulted in injury to C.C. Hanson
15
No. 80046-9-I/16
repeats the defense theory argued at trial: C.C.’s physical injuries suggested she
fell somewhere else, but her injuries did not occur inside the truck as a result of
the accident. The jury rejected this theory.
C.C. appeared on video in the parking lot of the brewery unbuckled in
Hanson’s undamaged truck after leaving Maharaja and without any signs of
bleeding or injuries on her face. As discussed above, Hanson admitted to driving
the vehicle and hitting a wall while C.C. was in the truck, causing C.C. to hit her
head on the windshield. The day after the accident, the truck’s windshield had a
spider web crack. It was undisputed that C.C. had suffered an ischemic stroke
prior to being admitted to the hospital the day after the accident. The cause of
the stroke was disputed at trial.
However, we review the evidence in the light most favorable to the
prosecution. State v. Green, 94 Wn.2d at 221. The jury heard testimony from
the State’s expert and C.C.’s treating physician, Tirschwell, a professor of
neurology at the University of Washington and medical director of the
comprehensive stroke center at Harborview Medical Center. He testified that
C.C. could have suffered trauma causing a small dissection, an injury to a blood
vessel, which created a blood clot that broke off and caused the stroke.
Tirschwell testified that C.C. was in an age group where “trauma and dissections
are a fairly frequent cause of stroke.” Although a dissection was not detected
from an angiogram, Tirschwell explained:
Dissections as is the case for all biology come in a huge range of
severities, and so the more significant and severe dissections we
can usually see on a CT angiogram, but it’s hypothesized that
dissections can be so small that our imaging just isn’t able to pick
16
No. 80046-9-I/17
them up. So just because a CT angiogram was negative doesn’t
absolutely eliminate the possibility that there could have been a
small dissection. . . . I think because we weren’t seeing any severe
narrowing [in blood vessels], and we had this history of trauma that
we were suspicious of the possibility of a small dissection that we
couldn’t image that might have caused the blood clot to form[,]
break off and then cause her stroke.
Defense expert Naini, managing partner of Neurological Associates of
Washington, testified that dissections are defined based on what the imaging
study shows, “so if you don’t see anything on the scan on the image study of the
vessel, then they don’t have dissection.” Naini testified that there was a “50/50
chance” that C.C.’s stroke was caused by a carotid web, which is an abnormality
in the inside wall of the carotid artery. Naini also testified that “the type of stroke
that [C.C.] had was one where the blood flow to that part of brain was occluded
by a clot or something. Something that sort of stopped the blood flow. And that’s
not really something that’s caused by trauma to the brain or to the blood vessel
really. . . . Unless there is a dissection of some structural reason why the clot
would form.”
Tirschwell explained that although doctors found C.C. had a carotid web,
“it was probably there for quite some time before any of the events in question
here, and they are usually very stable lesions. Many people probably live with
them without having any symptoms at all as she had for forty odd years.” He
added that there was no indication that C.C. had a susceptibility to stroke or had
previously suffered strokes. Tirschwell testified that it seemed “very unlikely” that
C.C. coincidentally had a stroke in the setting of events that included a motor
vehicle accident. When asked to give his general conclusion about what caused
17
No. 80046-9-I/18
C.C.’s stroke, Tirschwell testified, “I think our best assessment at that point in
time, without any other compelling causes, was that the trauma was related to
the cause of the stroke.”
After viewing the evidence in the light most favorable to the prosecution, a
rational trier of fact could have found the essential elements of vehicular assault
and felony hit and run beyond a reasonable doubt.
Ineffective Assistance of Counsel
Hanson also contends on direct appeal that he was prejudiced because
his trial attorney was ineffective for (1) failing to file a pretrial offer of proof as to
the relevancy of C.C.’s sexual history, (2) failing to object when the State violated
the court’s pretrial ruling by opening the door to C.C.’s sexual history, and (3)
failing to propose a reasonable belief instruction. All these alleged errors are
related to C.C.’s sexual history, which was heavily discussed during motions in
limine.
Defense counsel contended, and the State did not dispute, that according
to C.C.’s medical records, at some time while she was at the hospital she
indicated that she knew her assailant, and that they previously had one
consensual sexual intercourse encounter about two or three months prior.
However, in a defense interview, C.C. denied ever having consensual sexual
intercourse with Hanson. In the interview, C.C. stated she had only one other
previous sexual encounter with Hanson eight months prior, and it was under
similar nonconsensual circumstances of drinking together—blacking out despite
18
No. 80046-9-I/19
not drinking that much, waking up naked on her couch, and feeling like someone
had sex with her.
During motions in limine, the State sought to exclude evidence of C.C.’s
prior sexual behavior under the rape shield statute. Defense counsel, without
submitting a written pretrial motion with an offer of proof, argued that Hanson
should be allowed to introduce C.C.’s inconsistent statements regarding her past
sexual history with Hanson because they would speak to her credibility. After
consideration of the parties’ arguments, the court ruled that whether or not a past
encounter was consensual or not was a collateral matter and should be
excluded. Defense counsel asked a clarifying question after the initial ruling: “So
when [C.C.] makes a statement that’s directly in opposition to previous
statements with regards to this I’m not going to be able to impeach her?” The
court responded by explaining, “She is not going to make any statements. She is
not going to be able to talk about it.”
“ ‘Because claims of ineffective assistance of counsel present mixed
questions of law and fact, we review them de novo.’ ” State v. Linville, 191 Wn.2d
513, 518, 423 P.3d 842 (2018) (quoting In re Pers. Restraint of Brett, 142 Wn.2d
868, 873, 16 P.3d 601 (2001)).
A defendant in a criminal case has the right to conflict-free counsel to
represent him. U.S. Const. amend. VI; Wash. Const. art. I, § 22; Wheat v. United
States, 486 U.S. 153, 159, 108 S. Ct. 1692, 100 L. Ed. 2d 140 (1988). Further,
“the right to counsel is the right to effective assistance of counsel.” State v.
Humphries, 181 Wn.2d 708, 728, 336 P.3d 1121 (2014) (quoting Strickland v.
19
No. 80046-9-I/20
Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). “To
prevail on a claim of ineffective assistance of counsel, [the defendant] must
establish both deficient performance and prejudice.” State v. Jones, 183 Wn.2d
327, 330, 352 P.3d 776 (2015) (citing Strickland, 466 U.S. at 687).
“Deficient performance is performance falling ‘below an objective standard
of reasonableness based on consideration of all the circumstances.’ ” State v.
Kyllo, 166 Wn.2d 856, 862, 215 P.3d 177 (2009) (quoting State v. McFarland,
127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). We are highly deferential to the
performance of counsel in evaluating the reasonableness of their actions. State
v. Crawford, 159 Wn.2d 86, 98, 147 P.3d 1288 (2006). “There is a strong
presumption that trial counsel’s representation was adequate, and exceptional
deference must be given when evaluating counsel’s strategic decisions.” State v.
McNeal, 145 Wn.2d 352, 362, 37 P.3d 280 (2002).
Deficient performance prejudices a defendant when a “substantial”
likelihood of a different outcome exists; it is not enough for a different outcome to
be merely “conceivable.” In re Pers. Restraint of Lui, 188 Wn.2d 525, 538-39,
397 P.3d 90 (2017). If a defendant fails to satisfy either prong of the test, the
inquiry ends. State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563 (1996).
A. Offer of Proof
Hanson contends that he was prejudiced by his counsel failing to file a
written motion and offer of proof to pierce the rape shield statute, RCW
9A.44.020. We disagree. The relevant portions of the rape shield statute
provide:
20
No. 80046-9-I/21
(2) Evidence of the victim’s past sexual behavior . . . is
inadmissible on the issue of credibility and is inadmissible to prove
the victim’s consent except as provided in subsection (3) of this
section, but when the perpetrator and the victim have engaged in
sexual intercourse with each other in the past, and when the past
behavior is material to the issue of consent, evidence concerning
the past behavior between the perpetrator and the victim may be
admissible on the issue of consent to the offense.
(3) In any prosecution for the crime of rape . . . evidence of
the victim’s past sexual behavior . . . is not admissible if offered to
attack the credibility of the victim and is admissible on the issue of
consent, except where prohibited in the underlying criminal offense,
only pursuant to the following procedure:
(a) A written pretrial motion shall be made by the defendant
to the court and prosecutor stating that the defense has an offer of
proof of the relevancy of evidence of the past sexual behavior of
the victim proposed to be presented and its relevancy on the issue
of the consent of the victim.
(b) The written motion shall be accompanied by an affidavit
or affidavits in which the offer of proof shall be stated.
....
(4) Nothing in this section shall be construed to prohibit
cross-examination of the victim on the issue of past sexual behavior
when the prosecution presents evidence in its case in chief tending
to prove the nature of the victim’s past sexual behavior, but the
court may require a hearing pursuant to subsection (3) of this
section concerning such evidence.
RCW 9A.44.020.
The trial court gave Hanson an opportunity to provide a written declaration
as to what evidence he intended to offer for the court’s consideration. Hanson
did not provide a written offer of proof. The trial court correctly noted that the
issue was not whether C.C. consented, but whether she was capable of
consenting. The State alleged that Hanson engaged in sexual intercourse with
C.C. under circumstances where C.C. was physically helpless. Despite being
given an opportunity to do so, Hanson made no offer of proof that C.C. was not
physically helpless at the time Hanson engaged in sex with her. Hanson also
21
No. 80046-9-I/22
made no offer of proof as to how a previous sexual encounter supported a
defense theory that C.C. consented to sexual intercourse with Hanson on this
occasion.
On appeal, Hanson contends that the trial court’s ruling “prevented
[Hanson] from testifying to the ‘full picture’ of his version of events.”
Nothing prohibited Hanson from providing testimony to the trial court that
he intended to testify in support of his argument to admit C.C.’s sexual history. In
fact, the trial court invited Hanson to do just that. Before making its ruling, the
trial court told defense counsel, “I’m going to have you take a look at the rape
shield rule. Give me the written declaration that I’m entitled to so I know exactly
what it is you want to offer, and please be as specific as possible.” While the
record paints a picture as to why Hanson may not have wanted to subject himself
to cross-examination, nothing in the record suggests the trial court prevented him
from making an offer of proof or testifying to his version of events.
Hanson further summarily concludes on appeal that “[Hanson] reasonably
believed that on February 2, 2017, C.C. had not suffered from a stroke, but was
simply intoxicated – like she had been previously – and was capable of consent
or did consent.” Insofar as this claim amounted to the offer of proof that counsel
was aware of and should have presented to the court, defense counsel’s
performance was not deficient in failing to present this conclusory statement as
an offer of proof, especially in light of the video evidence of Hanson groping
unresponsive C.C. prior to the collision and stroke. Consent was not at issue
because the State had to prove that “the sexual intercourse occurred when [C.C.]
22
No. 80046-9-I/23
was incapable of consent by reason of being physically helpless or mentally
incapacitated.”
Hanson fails to establish that his counsel’s performance was deficient for
not providing an offer of proof.
B. Failing to Object/Opening the Door
Hanson next contends in his direct appeal that his trial counsel was
ineffective for not objecting to certain statements he believes opened the door to
C.C. and Hanson’s past sexual history. We disagree.
At issue are three statements suggesting that C.C. did not have a
relationship with Hanson. The first is when the prosecutor asked the Maharaja
bartender about when Hanson and C.C. arrived at the restaurant. The
prosecutor asked, “When they came in what was the – you know, what did their
relationship appear to be?” The bartender responded that they appeared to be
“[j]ust friends.” The prosecutor asked how she knew that, and she responded
that Hanson had repeatedly told her.
The second statement by C.C.’s neighbor, Crystal, came up during cross
examination by defense. Crystal agreed she had no knowledge about text
messages between C.C. and Hanson. Crystal added, “All I know is her
relationship.” Defense counsel followed up asking, “Her relationship with
whom?” Crystal responded that C.C. “didn’t have a relationship with anyone.”
C.C.’s son made the third statement at issue when the prosecutor asked whether
Hanson and C.C. had a romantic relationship. Her son responded, “No. None
whatsoever.”
23
No. 80046-9-I/24
When defendants base their ineffective assistance of counsel claim on
their trial counsel’s failure to object, defendants must show that the objection
would likely have succeeded. State v. Gerdts, 136 Wn. App. 720, 727, 150 P.3d
627 (2007). Counsel performs deficiently by failing to object to inadmissible
evidence absent a valid strategic reason. State v. Saunders, 91 Wn. App. 575,
578, 958 P.2d 364 (1998). Reversal is required if an objection would likely have
been sustained and the result of the trial would have been different without the
inadmissible evidence. Id.The court likely would not have sustained an objection to the answer given
in response to defense counsel’s own question. We now address the answers
given in response to the prosecutor’s questions about the nature of Hanson’s
relationship with C.C. Hanson assumes that an objection would have allowed
him to argue that the State opened the door to admit C.C.’s sexual history with
Hanson. However, assuming without deciding that such testimony did just that,
C.C. would have testified that her previous sexual encounter with Hanson was
under similar nonconsensual circumstances—another act of rape. This
testimony could hurt and not help Hanson.
Even if the trial court would have sustained an objection, it likely would
have, at most, instructed the jury to disregard rather than admit C.C.’s sexual
history based on the court’s previous ruling. Under these circumstances, it was
reasonable for defense counsel to avoid drawing attention to the statements with
an objection.
24
No. 80046-9-I/25
Defense counsel’s failure to object did not fall below the objective
standard of reasonableness because it was not done absent of a valid strategic
reason. Moreover, Hanson must establish prejudice and did not do so. He fails
to show a reasonable probability that the verdict on any charge would have been
different had the State not presented statements suggesting C.C. and Hanson
were just friends and not in a relationship.
C. Reasonable Belief Instruction
Hanson next contends he was prejudiced because his counsel was
ineffective for failing to request a reasonable belief instruction. We disagree.
A person is guilty of rape in the second degree if he or she “engages in
sexual intercourse with another person . . . When the victim is incapable of
consent by reason of being physically helpless or mentally incapacitated[.]”
RCW 9A.44.050(1)(b). In certain situations, reasonable belief is an affirmative
defense to rape in the second degree: “it is a defense which the defendant must
prove by a preponderance of the evidence that at the time of the offense the
defendant reasonably believed that the victim was not mentally incapacitated
and/or physically helpless.” RCW 9A.44.030(1); see also In re Pers. Restraint of
Hubert, 138 Wn. App. 924, 929, 158 P.3d 1282 (2007).
“A defendant is entitled to have his theory of the case submitted to the jury
under appropriate instructions when the theory is supported by substantial
evidence in the record.” State v. Griffith, 91 Wn.2d 572, 574, 589 P.2d 799(1979); State v. O’Dell, 183 Wn.2d 680, 687, 358 P.3d 359 (2015). By extension,
a defendant is entitled to a jury instruction for an affirmative defense if sufficient
25
No. 80046-9-I/26
evidence supports the defense. State v. Fisher, 185 Wn.2d 836, 848-49, 374
P.3d 1185 (2016).
Defense counsel’s performance was not deficient for failing to request a
reasonable belief instruction because the evidence did not support such an
instruction. There was overwhelming unchallenged evidence establishing that
C.C. was physically helpless at the time Hanson engaged in sexual intercourse
with her. Nor did Hanson present any evidence that, at the time of the event, he
reasonably believed that C.C. was not physically helpless.
Video footage captured Hanson groping C.C. while she was unresponsive.
Hanson admitted to a friend that C.C. had flopped over while he was driving
around a roundabout and he crashed the truck into a rock wall. Physical
evidence established a spider web crack in the windshield of the truck where
C.C. had been sitting, her blood on the truck’s passenger door handle, and blood
on the pillow in Hanson’s bedroom. Witnesses established that C.C., after
having sex with Hanson, still had dried blood on her swollen face and hands, and
that she had great difficulty communicating. C.C. testified that she woke up
really confused and unable to speak despite wanting to tell Hanson to stop and
that she wanted to go. The evidence did not support a reasonable belief
instruction.
Hanson also asserts additional claims of ineffective assistance of counsel
through his statement of additional grounds (SAG) along with his PRP. He
claims that his counsel was ineffective for (1) failing to request a Frye 6 hearing
6 Frye v. United States, 54 App. D.C. 46, 293 F. 1013 (1923).
26
No. 80046-9-I/27
regarding the testimony of the State’s expert Tirschwell, (2) failing to request a
continuance when the State added additional charges on the first day of trial, (3)
conceding that Hanson committed hit-and-run, and (4) failing to introduce C.C.’s
crime of dishonesty.
D. Frye Hearing
Hanson contends that counsel failed to request a Frye hearing regarding
Tirschwell’s expert testimony. Hanson asserts that “[i]t’s impossible to have a[n]
embolic stroke from trauma.” Thus, he argues, the “prosecutor encouraged or
allowed false evidence to be presented to the jury. He knowingly and
deliberately deceived the court and jurors.” We disagree.
In determining the admissibility of evidence based on novel scientific
theories or methods, Washington courts employ the “general acceptance”
standard set forth in Frye. State v. Pigott, 181 Wn. App. 247, 249, 325 P.3d 247(2014). Under Frye, novel scientific evidence is admissible if it is based on a
theory or principle that is generally accepted in the relevant scientific community,
but not admissible if qualified experts have significant disputes as to its validity.
Id. Evidence not involving new methods of proof or new scientific principles is
not subject to examination under Frye. State v. Baity, 140 Wn.2d 1, 10, 991 P.2d
1151 (2000). The Frye test “applies where either the theory and technique or the
method of arriving at the data relied upon is so novel that it is not generally
accepted by the relevant scientific community.” Anderson v. Akzo Nobel
Coatings, Inc., 172 Wn. 2d 593, 611, 260 P.3d 857 (2011). There is nothing
novel about the theory that trauma may cause a dissection, which may, in turn,
27
No. 80046-9-I/28
cause a stroke. Hanson’s own expert testified that an acute trauma could have
caused a stroke if there is a dissection.
Hanson appears to base his argument on the fact that his expert, who
admittedly did not examine C.C. and based his opinion on limited medical
records, testified that the stroke was not caused by trauma because no
dissection was detected. However, “[m]any medical opinions on causation are
based upon differential diagnoses. A physician or other qualified expert may
base a conclusion about causation through a process of ruling out potential
causes with due consideration to temporal factors, such as events and the onset
of symptoms.” Anderson, 172 Wn. 2d at 610.
At trial, Tirschwell described the results of C.C.’s angiogram. He stated
that initially, the scan did not show a dissection in her brain, which is a tear to the
inside of a blood vessel that can sometimes indicate a trauma-induced stroke.
However, he stated that although a dissection was not completely apparent, his
team was suspicious of the possibility of a small undetectable dissection that
might have caused the blood clot to form, break off, and then cause C.C.’s
stroke. Tirschwell testified that “everybody else in the stroke profession believes,
that our imaging isn’t necessarily sensitive enough to pick up all the small
dissections that do occur.” Tirschwell also explained how he ruled out other
causes of strokes, and that his general conclusion five days after the accident
was that the trauma was related to the cause of the stroke. Additionally, he
explained that although he observed blood vessels with a small amount of plaque
28
No. 80046-9-I/29
on the walls, C.C. was not necessarily susceptible to having strokes. He
maintained it was unlikely she had a stroke completely unrelated to the trauma.
Hanson’s counsel’s performance was not deficient for not requesting a
Frye hearing. 7
E. Trial Continuance
Hanson contends his trial counsel, in order to adequately prepare, should
have requested a continuance on the first day of trial when the State amended its
information. He also contends the State did not provide constitutionally sufficient
notice to the defense. Hanson is correct that the State amended its information
by adding the charges of assault in the second degree with sexual motivation,
felony hit and run, and vehicular assault on the first day of trial. However, the
court noted and defense counsel acknowledged that notice of the added charges
was provided previously in the omnibus order. Hanson had sufficient time to
retain an expert witness to attack whether C.C.’s injuries were caused by the
accident. Counsel’s performance was not deficient for not requesting a
continuance on the first day of trial.
F. Conceding Felony Hit and Run
Hanson argues in his PRP that his counsel was ineffective for misstating
evidence about blood in his truck and conceding Hanson was guilty of hit and
run. We disagree.
7 It follows that Hanson’s claim that the prosecutor introduced false
testimony from Tirschwell also fails. While the defense expert and Tirschwell
disagreed as to the cause of the stroke, differing medical opinions do not support
a claim that the prosecutor knowingly introduced false evidence.
29
No. 80046-9-I/30
Counsel’s performance is not deficient where it can be “characterized as
legitimate trial strategy or tactics.” State v. Kyllo, 166 Wn.2d at 863. Thus,
decisions and conduct which relate to the theory of the case or trial strategy will
generally not support a claim of ineffective assistance of counsel. State v. Grier,
171 Wn.2d 17, 33, 246 P.3d 1260 (2011). Hanson first contends that his counsel
was ineffective for misstating the evidence about the blood found in Hanson’s
truck during closing argument. He takes issue with his counsel stating C.C.’s
blood was on the passenger door. He argues that statement left the jury “with
assumptions that the witness was injured inside of the vehicle at the time of the
accident.” First, defense counsel did not misstate the evidence about the
blood—he correctly stated C.C.’s DNA was detected from the mark on the door
of the truck. A swab taken from the right front door of the truck tested positive for
the presence of blood and DNA from the swab matched a sample from C.C.
Second, there was a strategic reason for stating the blood was on the door of the
truck. Defense counsel contrasted that finding with the lack of blood found
anywhere else inside the truck and argued,
The mark on the door with her DNA indicates to me that she got in
and out of that truck at some point after her alleged injury, which
also indicates to me that she was not unconscious. Furthermore,
and if you were paying close attention you catch this, when they
showed the injuries to her hands she had an injury to her palm right
on the side. She had injuries to her knuckles. . . . That injury, ladies
and gentlemen, is consistent with a fall. We know that she was
inebriated that evening, and if you think about it what do you do
when you fall? You skin knuckles. You create injuries to the palm
of your hand.
Defense made a strategic decision to not ignore the undisputed evidence of
C.C.’s physical injuries and, instead, used it to support the defense theory that
30
No. 80046-9-I/31
C.C. was injured before she got inside the vehicle and that she was not
unconscious. This assertion supported counsel’s argument that C.C. was not
injured as a result of the accident and was not physically helpless when she had
sexual intercourse with Hanson. Defense counsel’s statement about C.C.’s DNA
on the passenger door did not fall below the objective standard of
reasonableness.
Hanson next contends that his trial counsel was ineffective for conceding
that Hanson was guilty of felony hit and run. During closing argument, defense
counsel stated:
I will tell you something else. The hit and run charge, he is guilty of
it. He is guilty. I have no defense for that. The only problem I have
with that is the subsection that talks about failure to administer aid
to someone who is injured in the accident. Based on the forensics I
don’t believe and I do believe though that she was - that she was
not injured in the truck. I don’t believe she was injured in the truck. I
do believe that she was injured some other way somewhere else. I
believe she fell.
Conceding guilt can be a valid trial tactic when evidence of the admitted
crimes is overwhelming. State v. Hermann, 138 Wn. App. 596, 605, 158 P.3d 96(2007). With the overwhelming evidence discussed above, Hanson conceded
guilt on the less serious charges 8 to gain credibility with the jury on the more
serious charges of rape and vehicular assault. Defense counsel explained to the
jury, “I have been very forthright with you about each and every last one of these
charges, and why he is guilty of some and not of others.” Defense counsel
argued in great detail why the evidence suggested C.C. was not injured as a
8 Defense counsel also conceded guilt on the charge of tampering with a
witness.
31
No. 80046-9-I/32
result of the accident and also not physically helpless during sexual intercourse.
This theory supported defense request for the jury to find Hanson guilty of the
lesser included crime of assault in the fourth degree with sexual motivation and
not guilty of vehicular assault, assault in the second degree, and rape.
Under these facts, counsel’s defense strategy of conceding the less
serious charge to gain credibility with the jury for the more serious charges did
not fall below the objective standard of reasonableness.
G. C.C.’s Criminal History
Hanson next argues his trial counsel should have impeached C.C. with
her previous theft conviction. The rules of evidence allow using crimes of
dishonesty to attack the credibility of a witness. ER 609(a). However, the rule
provides time limits:
Evidence of a conviction under this rule is not admissible if a
period of more than 10 years has elapsed since the date of the
conviction or of the release of the witness from the confinement
imposed for that conviction, whichever is the later date, unless the
court determines, in the interests of justice, that the probative value
of the conviction supported by specific facts and circumstances
substantially outweighs its prejudicial effect.
ER 609(b). C.C.’s conviction was from 1995. Hanson fails to establish that
counsel would have succeeded to persuade the court that the probative value of
her almost 24-year-old conviction outweighed its prejudicial effect.
Defense counsel’s performance was not deficient because C.C.’s 24-year-
old theft conviction was inadmissible.
32
No. 80046-9-I/33
H. More Statement of Additional Grounds
Hanson also contends in his SAG that his counsel was ineffective when
he did not interview “many of the states [sic] witnesses” and “never filed a brief
by 3/19 which the Trial Court required him to do.” These statements are not
sufficient to allow for review. In a SAG, “[r]eference to the record and citation to
authorities are not necessary or required, but the appellate court will not consider
a defendant’s statement of additional grounds for review if it does not inform the
court of the nature and occurrence of alleged errors.” RAP 10.10(c).
Next, Hanson contends his counsel was ineffective because he did not
provide the State with a witness list, filed the medical subpoena incorrectly and
late, and disclosed his expert witness late. Hanson fails to establish how he was
prejudiced because of these claimed errors.
Hanson also claims his counsel was ineffective because he drew an
objection with his first sentence of his opening statement. His counsel began the
opening statement as follows:
You will find as you sit in this jury box that this case, that these
cases, these stories, these events like so many other things we
encounter in our lives actually unfold, and that if everything that you
just heard, if the State’s case was 100 percent true as just told, if
that was correct, none of us would be here.
The trial court sustained the State’s objection and the court reminded defense
counsel that “this is opening statement.” However, Hanson must do more than
point to the sustained objection to suggest counsel made a mistake. Hanson
must show that the error caused prejudice. He fails to make any such argument
and the record does not show that it had any likelihood of affecting the verdict.
33
No. 80046-9-I/34
Prosecutorial Misconduct
Hanson, in his SAG, next argues that the State committed prosecutorial
misconduct. We disagree.
To prevail on a prosecutorial misconduct claim, a defendant must
demonstrate that a prosecutor’s conduct was both improper and prejudicial.
State v. Emery, 174 Wn.2d 741, 756, 278 P.3d 653 (2012). To show prejudice, a
defendant must show there is a “substantial likelihood” the prosecutor’s
misconduct affected the jury’s verdict. State v. Thorgerson, 172 Wn.2d 438, 442-
43, 258 P.3d 43 (2011). Where a defendant fails to object to a prosecutor’s
improper statement, the defendant waives the error unless the statement is so
“flagrant and ill intentioned” that the prejudice could not have been remedied by
an instruction to the jury. State v. Thorgerson, 172 Wn.2d at 443.
A prosecutor has wide discretion to make reasonable inferences from the
evidence. In re Glasmann, 175 Wn.2d 696, 704, 286 P.3d 673 (2012). However,
prosecutors act improperly when they seek a conviction based upon emotion
rather than reason. State v. Craven, 15 Wn. App. 2d 380, 385, 475 P.3d 1038(2020).
A. DNA Statement
Hanson first asserts the State committed prosecutorial misconduct
because the State argued facts not in evidence and made “prejudicial misleading
statements.” We disagree.
Hanson first takes issue with the following statement by the State:
So not every single time someone touches something that -
excuse me. DNA is not going to be left behind every time
34
No. 80046-9-I/35
someone touches an object. It’s just a fact. And you heard
Washington State Patrol Crime Lab testify about that. You
heard other witnesses testify about that as well.
Hanson did not object, but argues now that this was not a reasonable inference
because the forensic scientist testified that “if you touch a [sic] object you leave
DNA.”
However, the record establishes that the forensic scientist testified about
instances when “there are times when no DNA is detected or very little.” In those
instances, she explained that the likelihood of receiving a DNA profile is very low
to none. The State made a reasonable inference that not every single time
someone touches something that DNA will be left behind, or as the forensic
expert said, DNA will not always be detectable. In context of the trial testimony,
this statement was a reasonable inference.
Second, Hanson takes issue with the prosecutor’s statement in closing
that there were “massive amounts of blood in Hanson’s truck.” The prosecutor,
in closing, argued that “She bled all over the inside of his truck.” Hanson
incorrectly concludes that because forensic testing could not confirm that the
blood on the truck door handle was “human” blood and that the swab of a stain
that appeared to be blood was not tested, that the State could not argue that
C.C. bled all over the inside of the truck. The forensic scientist explained that the
quality of the sample can make it difficult to determine if blood is human, but that
does not necessarily mean it is not human blood. Crystal described C.C. the day
after the accident as “very bloody.” Also, Hanson’s truck was not swabbed for
evidence until five days after the incident, which presumably gave him time to
35
No. 80046-9-I/36
clean it. The prosecutor made a reasonable inference by stating that C.C. had
“bled all over the inside of his truck” in closing argument.
Third, Hanson takes issue with the State’s statement, “Instead he took her
back to his apartment, and raped her while she bled on his sheets.” He contends
that “[t]here was absolutly [sic] no blood on any sheets anywhere.” However,
there is evidence that she was in a car accident, her DNA was on his pillow, she
woke up to Hanson penetrating her on his bed, and Crystal said C.C. looked
bloody the next morning. When police tried to gather the bed sheets, they were
in the washing machine and observed a seemingly new set of sheets on the bed.
The prosecutor again made a reasonable inference.
Fourth, Hanson takes issue with the prosecutor’s statement that the
bruises and cuts on C.C.’s hands in all likelihood came from Hanson trying to
drag her out of the car after they got in the accident and back to his apartment.
There was evidence that C.C. was unconscious when Hanson groped her in his
truck and that she was flopped over during the car accident. This was another
reasonable inference by the prosecutor.
Moreover, Hanson did not object to any of these statements and they
were not so “flagrant and ill intentioned” that the prejudice could not have been
remedied by an instruction to the jury. State v. Thorgerson, 172 Wn.2d at 443.
Even if any of these statements were improper, Hanson waived these claims.
B. Vouching for Credibility.
Hanson also claims the prosecutor improperly vouched for C.C.’s
credibility. During closing argument, the prosecutor stated:
36
No. 80046-9-I/37
Now, are people capable of lying? They absolutely are. But
what you need to think about is why people lie. And the main
reason people lie is for some gain or to get themselves out of
trouble. Not to be forced to talk about the lowest, worst, most
embarrassing moments of their lives. So think about [C.C]’s
testimony for a minute. Think back to when she was on that stand.
[C.C] didn’t hesitate. She didn’t hmm or haw when she told you
about how she was incapable of consenting to the sex the
defendant was forcing on her. She wasn’t chomping at the bit to get
the defendant in trouble for crimes he didn’t commit. [C.C] wasn’t
excited to relive waking up to being raped by the defendant. In fact,
she was in tears. She sat in that chair and she bared her soul. She
recounted the worse [sic] experiences of her life and she was
credible.
(Emphasis added.)
Additionally, the prosecutor explained to the jury that “the words of a
believable victim like [C.C.]” can prove the State’s case beyond a reasonable
doubt in addition to the other evidence the prosecutor presented.
A prosecutor is afforded “wide latitude” during closing argument to make
reasonable inferences from the evidence, including the credibility of witnesses.
State v. Thorgerson, 172 Wn.2d at 448. So long as a prosecutor does not
express a personal opinion or incite the passions of a jury, a prosecutor may
comment on a witness’ veracity. State v. Edvalds, 157 Wn. App. 517, 525, 237
P.3d 368 (2010).
The prosecutor’s statements did not express a personal opinion or incite
the passions of the jury with his statements. He asked the jury to consider her
testimony on the stand and how that supported her credibility. The prosecutor
made a reasonable inference based on C.C.’s testimony regarding her credibility.
Regardless, Hanson did not object to the statement and, even if it was improper,
37
No. 80046-9-I/38
it was not so flagrant and ill-intentioned that the prejudice could not have been
remedied by an instruction to the jury.
C. Going to Prison Statement
Pretrial, Hanson objected to the admission of the 911 recording where the
detective repeated what she heard Hanson say to C.C. The trial court admitted
portions of the call over Hanson’s objection that they were hearsay. 9 Hanson
does not challenge that ruling, but, instead, raises for the first time on appeal that
the prosecutor improperly put forth before the jury the issue of sentencing during
closing argument. 10 Ironically, during motions in limine, the court granted the
State’s motion to exclude discussion of potential penalties. This is a standard
motion to prevent defense from introducing potential penalties as an attempt to
garner sympathy from the jury to the benefit of the defendant.
During closing, the prosecutor told the jury:
And lastly tampering with the witness looks like the
defendant screaming at [C.C.] outside of her apartment. He knows
what he did to her. And he’s desperate. He continues to pressure
[C.C.] to sign a document saying that he didn’t rape her.
[The detective] listens in on the conversation as it happens.
[The detective] hears the defendant tell [C.C.] how he is going to go
to fucking prison, and how she’s the only one who can release him.
9 The court made a detailed pretrial ruling excluding and admitting
statements contained in the call. The court determined the statement at issue
was a present sense impression and not hearsay because it was a statement by
a party opponent.
10 Hanson also argues on appeal that the 911 recording should not have
been admitted because it was impossible for the detective to have heard what he
said. This statement is nothing more than a conclusory argument and insufficient
to warrant review. Hanson also contends the admitted recording was incomplete
and that the excluded portion of the recording should have been admitted. This
statement also is not sufficient to allow for review. RAP 10.10(c).
38
No. 80046-9-I/39
At the time the court made its ruling on the admissibility of the statement, it
explained the State was not offering the statement for the truth of the matter
asserted. However, no party requested this specific limiting instruction at the
time the statements were admitted during trial.
As a general rule, “[t]he question of the sentence to be imposed by the
court is never a proper issue for the jury’s deliberation, except in capital cases.”
State v. Bowman, 57 Wn.2d 266, 271, 356 P.2d 999 (1960); see State v. Todd,
78 Wn.2d 362, 375, 474 P.2d 542 (1970) (“Punishment is a question of
legislative policy; the jury’s function is to find the facts.”).
Hanson relies on cases where the prosecutor directly discusses the issue
of sentencing in voir dire or closing argument. State v. Townsend, 142 Wn.2d
838, 846, 15 P.3d 145 (2001) (holding that a jury in a noncapital case may not be
informed about the penalty for the charged crime), overruled on other grounds by
State v. Pierce, 195 Wn.2d 230, 455 P.3d 647 (2020). State v. Murphy, 86 Wn.
App. 667, 670, 937 P.2d 1173 (1997) (deciding the trial court erred in informing
the jury during voir dire that the death penalty was not involved in the case);
Shannon v. United States, 512 U.S. 573, 114 S. Ct. 2419, 129 L. Ed. 2d 459(1994) (concluding the Insanity Defense Reform Act does not require a jury
instruction regarding consequences of a verdict of not guilty by reason of
insanity). That is not what the prosecutor did in the instant case.
The prosecutor was discussing evidence that supported the charge of
tampering with a witness. Hanson’s statement was made in the course of
39
No. 80046-9-I/40
attempting to influence C.C. The prosecutor did not discuss what potential
penalty Hanson could face if he were found guilty.
Prior to the prosecutor’s closing argument, the court correctly instructed
the jury stating, “You must disregard any remark, statement, or argument that is
not supported by the evidence or the law in my instructions.” The court also
instructed the jury stating, “You have nothing whatsoever to do with any
punishment that may be imposed in case of a violation of the law. You may not
consider the fact that punishment may follow conviction except insofar as it may
tend to make you careful.”
Hanson fails to demonstrate how the prosecutor’s conduct was both
improper and prejudicial.
CONCLUSION
We conclude that (1) Hanson waived his charging claim, (2) his counsel
was not ineffective, (3) the prosecutor did not commit misconduct and, if there
were any improper statements, they were not so flagrant and ill-intentioned that
they could not be cured with a jury instruction, and (4) sufficient evidence
supports the two convictions Hanson challenged, vehicular assault and felony hit
and run.
It follows that Hanson’s claim of cumulative error also fails. “The
accumulation of errors may deny the defendant a fair trial and therefore warrant
reversal even where each error standing alone would not.” State v. Davis, 175
Wn.2d 287, 345, 290 P.3d 43 (2012). A defendant has the right to a fair trial, not
a perfect one. In re Pers. Restraint of Elmore, 162 Wn.2d 236, 267, 172 P.3d
40No. 80046-9-I/41
335 (2007). Hanson did not demonstrate the existence of cumulative errors. A
new trial is not warranted.
We affirm Hanson’s convictions and deny his petition.
WE CONCUR:
41