* State Of Washington, Respondent V. Joshua Lee Mccabe, Appellant

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
Respondent,
v.
JOSHUA LEE MCCABE,
Appellant.
DIVISION ONE
No. 84635-3-I
OPINION PUBLISHED IN PART
DWYER, J. — Joshua McCabe appeals from the judgment entered on a
jury’s verdict finding him guilty of one count of child molestation in the first
degree, one count of child molestation in the second degree, one count of incest
in the second degree, and one count of bail jumping. The State concedes that
McCabe’s bail jumping conviction was not supported by sufficient evidence and
that multiple errors require McCabe to be resentenced. We accept the State’s
concessions and remand for dismissal of McCabe’s conviction for bail jumping.
We affirm the remainder of McCabe’s convictions and also remand for
resentencing.
I
When McCabe’s daughter S.M. was in high school, she reported to a
school guidance counselor that her father had, on three separate occasions,
inappropriately touched her genital area while she was attempting to sleep. After
a forensic interview was conducted with S.M., the State charged McCabe with
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No. 84635-3-I/2
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two counts of child molestation in the first degree, one count of child molestation
in the second degree, and one count of incest. When McCabe failed to appear
for a pretrial hearing, the State amended the information to add a charge of bail
jumping.
The jury acquitted McCabe on one count of child molestation in the first
degree, but convicted on all other charges. McCabe appeals.
II
A
McCabe first asserts that he was constructively deprived of his
constitutional right to counsel, in violation of his right to counsel under United
States v. Cronic, 466 U.S. 648, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984), due to
an alleged exceptionally poor performance by his defense attorney. However, he
specifically disclaims a claim of ineffective assistance of counsel within the ambit
of Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984).
Applying the legal standards applicable to a deprivation of counsel claim—
as opposed to an ineffective assistance of counsel claim—we conclude that
McCabe does not demonstrate an entitlement to appellate relief.
B
On May 14, 1984, the United States Supreme Court filed its opinion in
Strickland. As noted by the Court, the right to counsel is included in the Sixth
Amendment as a means of ensuring that the accused receives his fundamental
right to a fair trial. Strickland, 466 U.S. at 684. “[A] fair trial,” the Court stated, “is
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one in which evidence subject to adversarial testing is presented to an impartial
tribunal for resolution of issues defined in advance of the proceeding.”
Strickland, 466 U.S. at 685. The right to counsel is a crucial part of ensuring a
fair trial, because the knowledge and skill of counsel allows the accused to
challenge the prosecution’s case on an even footing. Strickland, 466 U.S. at
685. “That a person who happens to be a lawyer is present at trial alongside the
accused, however, is not enough to satisfy the constitutional command.”
Strickland, 466 U.S. at 685. Accordingly, the Court has recognized that the right
to counsel encompassed in the Sixth Amendment is the right to effective
assistance of counsel. Strickland, 466 U.S. at 686.
In Strickland, David Washington, a criminal defendant sentenced to death
in Florida for three counts of murder, filed a habeas petition alleging ineffective
assistance of counsel at his sentencing hearing. 466 U.S. at 678. Until that
point, the Supreme Court had not had the occasion to address a claim of “‘actual
ineffectiveness’” of counsel that did not involve a conflict of interest or
interference by the government. Strickland, 466 U.S. at 686.
The Court first recognized that any claim of actual ineffectiveness must be
guided by the purpose of the right to counsel—to ensure a fair trial. Strickland,
466 U.S. at 686. With this purpose in mind, the Supreme Court announced the
following test applicable to claims of ineffective assistance of counsel:
First, the defendant must show that counsel’s performance was
deficient. This requires showing that counsel made errors so
serious that counsel was not functioning as the “counsel”
guaranteed the defendant by the Sixth Amendment. Second, the
defendant must show that the deficient performance prejudiced the
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defense. This requires showing that counsel’s errors were so
serious as to deprive the defendant of a fair trial, a trial whose
result is reliable. Unless a defendant makes both showings, it
cannot be said that the conviction or death sentence resulted from
a breakdown in the adversary process that renders the result
unreliable.
Strickland, 466 U.S. at 687.
On the same day that it filed its opinion in Strickland, the United States
Supreme Court also issued its opinion in Cronic. There, the Court of Appeals
had held that the defendant had been completely denied counsel because the
attorney appointed for him was inexperienced and lacked sufficient time to
prepare for trial and, accordingly, reversal was required regardless of the quality
of the defense counsel’s actual performance. Cronic, 466 U.S. at 652-53. The
Supreme Court in Cronic overturned the Court of Appeals’ decision.
In reversing the appellate court decision, the Supreme Court noted,
consistent with its opinion in Strickland, that the Sixth Amendment is not
implicated absent an effect of the challenged conduct on the reliability of the trial
process. Cronic, 466 U.S. at 658; see also Strickland, 466 U.S. at 691-92 (“The
purpose of the Sixth Amendment guarantee of counsel is to ensure that a
defendant has the assistance necessary to justify reliance on the outcome of the
proceeding.”). Ordinarily, the burden to prove an effect on the reliability of the
trial process rests with the defendant. Cronic, 466 U.S. at 658; Strickland, 466
U.S. at 687. However, the Court recognized that there exists a limited set of
“circumstances that are so likely to prejudice the accused that the cost of
litigating their effect in a particular case is unjustified.” Cronic, 466 U.S. at 658.
Only when one of these circumstances applies will prejudice be presumed and
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No. 84635-3-I/5
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the defendant relieved of his burden under Strickland. Cronic, 466 U.S. at 658.
Although it did not purport to create an exclusive list of these
circumstances, the Supreme Court did discuss three situations in which a
presumption of prejudice is warranted. The first of these situations is when the
defendant has been completely denied counsel at a critical stage of the
proceedings. The Supreme Court listed multiple examples of cases that fell
under this exception, including Geders v. United States, 425 U.S. 80, 96 S. Ct.
1330, 47 L. Ed. 2d 592 (1976), wherein the trial court prohibited the defendant
from speaking to his counsel overnight during the trial, and Hamilton v. Alabama,
368 U.S. 52, 82 S. Ct. 157, 7 L. Ed. 2d 114 (1961), in which the defendant did
not have a private attorney nor was an attorney appointed to represent him at his
arraignment. Cronic, 466 U.S. at 659 n.25.
The second situation discussed in Cronic arises when the circumstances
are such that “the likelihood that any lawyer, even a fully competent one, could
provide effective assistance” is minimal. Cronic, 466 U.S. at 659-60. As an
example of this situation, the Supreme Court noted Powell v. Alabama, 287 U.S.
45, 53 S. Ct. 55, 77 L. Ed. 158 (1932), wherein the trial court first appointed the
entire Alabama bar as counsel for eight defendants charged with a capital
offense, then, on the day of trial (only six days after arraignment), instead
appointed an attorney from Tennessee who was not licensed to practice law in
Alabama. Cronic, 466 U.S. at 660.
The third and final situation discussed in Cronic arises when “counsel
entirely fails to subject the prosecution’s case to meaningful adversarial testing.”
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No. 84635-3-I/6
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Cronic, 466 U.S. at 659. If the defendant cannot establish that his case is
sufficiently similar to one of these three situations, then the claim of denial of
assistance of counsel is subject to the standard announced in Strickland,
Cronic’s companion case, and a showing of actual prejudice is required.
C
The Supreme Court elaborated on what it means for counsel to “‘entirely
fail[] to subject the prosecution’s case to meaningful adversarial testing’” in Bell v.
Cone, 535 U.S. 685, 696, 122 S. Ct. 1843, 152 L. Ed. 2d 914 (2002) (quoting
Cronic, 466 U.S. at 696). There, the defendant argued that he had been denied
his Sixth Amendment right to counsel at his death penalty sentencing hearing
because his attorney did not present mitigating evidence and waived closing
argument. Bell, 535 U.S. at 692. The federal circuit court determined that
because Bell’s counsel had not asked for mercy following the prosecution’s
closing argument, the defense attorney had failed to subject the prosecution’s
call for the death penalty to “meaningful adversarial testing” and, accordingly,
ruled that no showing of actual prejudice was required to establish a violation of
the right to counsel. See Bell, 535 U.S. at 693 (citing Cone v. Bell, 243 F.3d 961,
979 (6th Cir. 2001)). The Supreme Court reversed the decision of the Court of
Appeals. Bell, 535 U.S. at 693.
In so doing, the Supreme Court clarified that “[w]hen we spoke in Cronic of
the possibility of presuming prejudice based on an attorney’s failure to test the
prosecutor’s case, we indicated that the attorney’s failure must be complete.”
Bell, 535 U.S. at 696-97 (emphasis added). When assessing whether a
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No. 84635-3-I/7
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complete failure has occurred, the Court indicated that the specific proceeding
must be viewed “as a whole,” not by assessing any claimed ineffectiveness “at
specific points.” Bell, 535 U.S. at 697. With respect to the case at hand, the
Supreme Court stated that “[t]he aspects of counsel’s performance challenged by
respondent—the failure to adduce mitigating evidence and the waiver of closing
argument—are plainly of the same ilk as other specific attorney errors we have
held subject to Strickland’s performance and prejudice components.” Bell, 535
U.S. at 697-98.
As Bell indicates, the cited exception is a narrow one and cases in which
there is a complete failure to subject the prosecution’s case to meaningful
adversarial testing will be few and far between. Indeed, cases in which this
exception has been properly applied are limited to those in which the defendant’s
counsel was so uninvolved that the attorney may as well have not been present
in court at all. See Lewis v. Zatecky, 993 F.3d 994, 1006 (7th Cir. 2021), cert.
denied sub nom. Reagle v. Lewis, 142 S. Ct. 897, 211 L. Ed. 2d 605 (2022)
(counsel’s only comment during sentencing hearing was “‘Judge, I’m going to
defer to Mr. Lewis if he has any comments. I don’t have anything to add.’”);
Burdine v. Johnson, 262 F.3d 336, 338-39 (5th Cir. 2001) (counsel slept through
trial); Harding v. Davis, 878 F.2d 1341, 1345 (11th Cir. 1989) (counsel was silent
through entire trial); Martin v. Rose, 744 F.2d 1245, 1250 (6th Cir. 1984) (counsel
refused to participate in trial).
On the other hand, federal courts have been consistent in holding that
allegations of poor performance are subject to the Strickland analysis and actual
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No. 84635-3-I/8
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prejudice must be demonstrated in order for the defendant to obtain relief. See,
e.g., Darden v. United States, 708 F.3d 1225, 1230 (11th Cir. 2013) (no
presumption of prejudice when attorney conceded guilt on one charge and
defended against others); McDowell v. Kingston, 497 F.3d 757, 763 (7th Cir.
2007) (counsel allowed client to testify in narrative form); United States v.
Theodore, 468 F.3d 52, 57 (1st Cir. 2006) (counsel conducted incomplete
investigation, asked open-ended questions of witnesses, and was unfamiliar with
federal rules); United States v. Thomas, 417 F.3d 1053, 1057 (9th Cir. 2005)
(counsel conceded guilt on one charge while defending on others); United States
v. Griffin, 324 F.3d 330, 363 (5th Cir. 2003) (counsel repeatedly deferred to
counsel of co-defendant); Moss v. Hofbauer, 286 F.3d 851, 862 (6th Cir. 2002)
(counsel did not conduct witness interviews, gave no opening statement, and
conducted limited examination of State’s witnesses). As one circuit court
observed, “bad lawyering, regardless of how bad, does not support the
presumption [of prejudice]; more is required.” McInerney v. Puckett, 919 F.2d
350, 353 (5th Cir. 1990).
D
The Washington Supreme Court has discussed Cronic on only one
occasion. See In re Pers. Restraint of Davis, 152 Wn.2d 647, 101 P.3d 1 (2004).
There, our Supreme Court rejected the petitioner’s argument that the
presumption of prejudice articulated in Cronic should apply to his 15 claims of
ineffective assistance of counsel. Instead, the court held that “[a]bsent a
complete denial of counsel or a breakdown in the adversarial process, Davis ‘can
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No. 84635-3-I/9
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therefore make out a claim of ineffective assistance only by pointing to specific
errors made by trial counsel.’” Davis, 152 Wn.2d at 675 (quoting Cronic, 466
U.S. at 666). The court then proceeded to analyze the petitioner’s claims of
ineffective assistance of counsel under the Strickland standard.
Our Supreme Court has never upheld a claim of denial of assistance of
counsel based on counsel’s performance without a showing of prejudice. Only in
rare cases have we done so. In State v. Harell, 80 Wn. App. 802, 805, 911 P.2d
1034 (1996), we held that the defendant was denied the right to counsel when
his attorney took the stand to testify against him.1 Similarly, in State v. Regan,
143 Wn. App. 419, 427, 177 P.3d 783 (2008), we held that the right to counsel
was denied and we would presume prejudice when the defendant demonstrates
an actual conflict of interest that adversely affected counsel’s performance.
The sole appellate decision which relied on Cronic to find a deprivation of
counsel without requiring a showing of prejudice was State v. Chavez, 162 Wn.
App. 431, 257 P.3d 1114 (2011). There, Division Three considered a claim that
the defendant was deprived of the assistance of counsel because his attorney
filed an Anders2 brief in conjunction with the defendant’s request to withdraw a
guilty plea. Division Three held that counsel was denied because an Anders
brief is not an appropriate filing in a trial court and the brief effectively conceded
that the motion was frivolous. Chavez, 162 Wn. App. at 439-40. The opinion did
1 Although we did not cite Cronic in our opinion in Harell, the facts of that case fall
squarely within the circumstances in which the United States Supreme Court has held that
because a conflict of interest was present, assistance of counsel is denied and prejudice is
presumed.
2 Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967).
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No. 84635-3-I/10
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not address the issue of prejudice, instead remanding for further review of the
defendant’s motion to withdraw his guilty plea. Chavez, 162 Wn. App. at 440.
Judge Korsmo dissented. In his dissent, Judge Korsmo concluded that
counsel’s filing of an Anders brief did not constitute a “complete denial of counsel
at a critical stage of the proceedings” under Cronic whereby prejudice could be
presumed. Chavez, 162 Wn. App. at 445 (Korsmo, A.C.J., dissenting). This was
so, Judge Korsmo stated, because counsel “did present the arguments to the
court.” Chavez, 162 Wn. App. at 445 (Korsmo, A.C.J., dissenting).
Although we believe the dissent in Chavez had the better of this
exchange, the majority opinion can charitably be read to hold that an issue of fact
existed by virtue of counsel’s concession that the motion was meritless.
Nonetheless, we decline to adopt the approach taken by Division Three.
E
We turn now to the specific arguments made in this case. McCabe
asserts that he was constructively denied the assistance of counsel because his
attorney failed to alert the court that McCabe was falling asleep during trial, did
not object to inadmissible evidence, did not cross-examine many of the State’s
witnesses, did not make an opening statement, did not move for dismissal of the
bail jumping charge, was inattentive at sentencing, did not correct a
miscalculated offender score, and argued for sentencing alternatives for which
McCabe was not eligible.
All of McCabe’s complaints concern his counsel’s level of performance.
Nevertheless, he specifically bases his claim on Cronic and affirmatively
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No. 84635-3-I/11
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disclaims a Strickland claim. However, allegations of poor performance, no
matter how poor, cannot form the basis of a Cronic claim. McInerney, 919 F.2d
at 353. For such a claim to be presented, counsel must have been absent or
entirely nonparticipatory. But McCabe makes no such allegation. On the
contrary, McCabe’s counsel clearly participated in the trial, even if not in a
manner satisfactory to McCabe. Accordingly, McCabe’s assertions of
underperformance and “lack of dedication” are not cognizable under Cronic.
McCabe discusses his counsel’s performance in a manner that is typical
of a Strickland ineffective assistance of counsel claim. However, because he
affirmatively disclaims advancing such a claim, we will not treat his claim as
such.
McCabe fails to demonstrate that he was deprived of the assistance of
counsel within the meaning of Cronic. His claim fails.
A majority of the panel having determined that only the foregoing portion
of this opinion will be printed in the Washington Appellate Reports and that the
remainder shall be filed for public record pursuant to RCW 2.06.040, it is so
ordered.
III
At trial, the State primarily relied on the testimony of S.M. S.M. testified
that when she was in third grade, she woke up feeling a hand on her buttocks
inside of her pants. After the touching stopped, S.M. waited, then opened her
eyes to see McCabe getting up from underneath the raised footrest of the
recliner on which she had been sleeping. S.M. testified that the same thing
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No. 84635-3-I/12
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happened a second time while she was in third grade. However, she could not
remember as many of the details. She did not see McCabe during the second
incident.
S.M. further testified that when she was in sixth grade, she was asleep on
her grandparents’ couch when she awoke to a “tickling feeling” under her
underwear on the skin of her vagina. S.M. saw McCabe’s head peeking up from
the back of the couch. When S.M. looked at him, McCabe “ducked down” and
then “went into the kitchen.”
S.M. told several people about these incidents, including her best friend
Kambria, S.M.’s mother Samantha, her “mom’s girlfriend” Maxine Buhler, and
S.M.’s grandparents. In 2019, when S.M. was in high school, she disclosed the
three incidents to her school guidance counselor. S.M.’s guidance counselor
made a report to law enforcement, which then scheduled a forensic interview.
Deedee Pegler, a forensic interviewer with the Arthur D. Curtis Children’s Justice
Center, conducted the interview with Vancouver Police Department Officer
Darren Oceguera observing.
Kambria, Samantha, Pegler, Oceguera, and S.M.’s brother Jeremy all
testified at trial that S.M. had told them that she had been abused. None of the
witnesses were questioned about what precisely S.M. had said to them or about
other specifics of the disclosures.
During her testimony, Pegler was questioned about her experience in
conducting forensic interviews of children. Pegler testified that:
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No. 84635-3-I/13
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So, different children process events in different ways. And some
of those children, not all, have undergone traumatic events that
they could process in different ways. So, so their reactions to what
we’re discussing are gonna be different.
Pegler also testified that delayed disclosures of abuse are common due to
a wide variety of factors, including “loyalty to the offender,” feelings of “shame,
blame, [or] embarrassment,” “developmental factors,” not wanting the “positive
aspects” of a relationship with the offending family member “to go away,” and
whether someone else had been in the room when the abuse was occurring.
During closing argument, the prosecutor informed the jury that “we as the
State have the burden to prove to you each element of each crime charged
beyond a reasonable doubt.” After defining all of the elements of each of the
charged sexual offenses, the prosecutor argued to the jury, “If you believe [S.M.],
every single one of the elements in the sex crimes is met. If you believe [S.M.],
the defendant is guilty of the first four counts.” McCabe did not object to this
argument.
The prosecutor admitted that S.M.’s memory of the incident giving rise to
the second count of child molestation in the first degree was not as clear as her
memory of other incidents. The prosecutor argued:
Doesn’t remember as many details and that’s okay and that makes
sense. Trauma affects memory and reactions. So, going through a
traumatic event of your father touching you inappropriately, sexually
is not something you remember every detail of.
McCabe did not object to this argument.
The prosecutor additionally addressed the fact that the charged incidents
had occurred multiple years before S.M. had told her guidance counselor about
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No. 84635-3-I/14
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them. As part of this argument, the prosecutor stated the following:
[S.M.] told her mom, her brother, her friend, her mom’s partner, and
the counselor. She’s been consistent with everyone that she’s
been abused. But until this point, nothing has ever happened about
it. And she did delay her disclosure. She did not tell right away.
The prosecutor then recounted the testimony of Oceguera and Pegler about why
children commonly delay disclosing abuse. McCabe did not object to this
testimony.
The jury found McCabe guilty of one count of child molestation in the first
degree, one count of child molestation in the second degree, one count of incest,
and one count of bail jumping. The jury found McCabe not guilty on the second
count of child molestation in the first degree.
The trial court began McCabe’s sentencing hearing on September 10,
2021.3 At the hearing, the State asserted that McCabe had an offender score of
9, but did not present any evidence of McCabe’s prior convictions. The trial court
accepted the State’s assertion. The trial court sentenced McCabe to a minimum
of 149 months of confinement on count one (child molestation in the first degree),
116 months of confinement on count three (child molestation in the second
degree), 60 months of confinement on count four (incest in the second degree),
and 29 months on count five (bail jumping), all to be served concurrently.
As conditions of his community custody, the trial court ordered that
McCabe “[m]ay not possess or access sexually explicit materials that are
3 Defense counsel sought to appear at sentencing by telephone. The sentencing hearing
had to be continued due to defense counsel’s poor telephone connection. The hearing was
continued a second time in order for McCabe to undergo a competency evaluation.
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No. 84635-3-I/15
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intended for sexual gratification” and “[m]ay not enter into or frequent
establishments or areas where minors congregate without being accompanied by
a responsible adult approved by [Department of Corrections] and sex offender
treatment provider to include, but not limited to: . . . parks.”
IV
McCabe asserts that the prosecutor committed misconduct during closing
argument and that this misconduct deprived him of a fair trial. The State
counters that no misconduct occurred and, if it did, McCabe has failed to
demonstrate any prejudice. The State has the better argument.
A defendant claiming prosecutorial misconduct has the burden to prove
that the prosecutor’s conduct was both improper and prejudicial. State v. Fisher,
165 Wn.2d 727, 747, 202 P.3d 937 (2009). “Absent a proper objection, a request
for a curative instruction, or a motion for a mistrial, the issue of a prosecutor’s
misconduct cannot be raised on appeal unless the misconduct was so flagrant
and ill intentioned that no curative instructions could have obviated the prejudice
engendered by the misconduct.” State v. Padilla, 69 Wn. App. 295, 300, 846
P.2d 564 (1993).
When reviewing a claim of prosecutorial misconduct, we consider the
prosecutor’s statements and actions in the context of the entire case. State v.
Thorgerson, 172 Wn.2d 438, 443, 258 P.3d 43 (2011). The prosecutor has “wide
latitude in making arguments to the jury and prosecutors are allowed to draw
reasonable inferences from the evidence.” State v. Gregory, 158 Wn.2d 759,
860, 147 P.3d 1201 (2006) (citing State v. Gentry, 125 Wn.2d 570, 641, 888 P.2d
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1105 (1995)), overruled on other grounds by State v. W.R., 181 Wn.2d 757, 336
P.3d 1134 (2014).
McCabe asserts that the prosecutor committed misconduct in three
different respects.4 First, McCabe contends that the prosecutor engaged in
misconduct by suggesting that the jury could only acquit if they believe the victim
lied. Second, McCabe contends that the prosecutor engaged in misconduct by
arguing facts that were not in evidence at trial. Third, McCabe contends that the
prosecutor engaged in misconduct by attempting to bolster S.M.’s credibility
through the improper use of prior consistent statements. We address each of
these arguments in turn.
First, McCabe contends that the prosecutor committed misconduct by
suggesting that the jurors could acquit only if they believe that the victim lied.
During closing argument, the prosecutor made the following argument to the jury:
If you believe [S.M.], every single one of the elements in the sex
crimes is met. If you believe [S.M.], the defendant is guilty of the
first four counts. So, how do we know [S.M.] is telling the truth?
That comes down to credibility. Jury Instruction 1 talks about that.
That you are the sole judges of credibility. You decide how much
weight you put on the testimony and the evidence that you heard
come out of that box. Consider someone’s motive. [Their] reasons
for testifying. What they have to gain or to lose. And [S.M.] has
nothing to gain from this. Something she doesn’t want to be a part
of. Think about the details that she gave. Where it happened to
her, what happened to her, in graphic detail. And think about her
demeanor while testifying.
. . . .
4 A fourth claim of misconduct pertains to the introduction of evidence in support of the
charge of bail jumping. Because we order that McCabe’s bail jumping conviction be dismissed on
other grounds, we do not consider this claim of error.
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No. 84635-3-I/17
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And does [S.M.] have any motive to lie and make and
exaggerate, no. None whatsoever. She tried to tell people what
happened to her too.
McCabe interposed no objection to this argument.
McCabe asserts that this argument constituted flagrant and ill-intentioned
misconduct, likening this circumstance to that in State v. Fleming, 83 Wn. App.
209, 921 P.2d 1076 (1996). In Fleming, the prosecutor began his closing
argument by stating:
“Ladies and gentlemen of the jury, for you to find the
defendants, Derek Lee and Dwight Fleming, not guilty of the crime
of rape in the second degree, with which each of them have been
charged, based on the unequivocal testimony of [D.S.] as to what
occurred to her back in her bedroom that night, you would have to
find either that [D.S.] has lied about what occurred in that bedroom
or that she was confused; essentially that she fantasized what
occurred back in that bedroom.”
Fleming, 83 Wn. App. at 213. The prosecutor further argued that because there
was no evidence the victim lied, the defendants must be guilty. Fleming, 83 Wn.
App. at 214. We held that this constituted flagrant misconduct because it had
been well-established in case law that a prosecutor cannot argue that the jury
must find that the complaining witness was lying or mistaken in order to acquit.
Fleming, 83 Wn. App. at 213.
This case is not like Fleming. Here, the prosecutor argued that if the jury
believed S.M. to be telling the truth, then all of the elements of child molestation
had been established. It does not follow that this statement would lead the jury
to believe that they could acquit only if they believed S.M. had lied. When
considered in the context of the entire closing argument, we cannot say that this
single statement constituted misconduct. Unlike in Fleming, the prosecutor here
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No. 84635-3-I/18
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correctly informed the jurors of the law, repeatedly informing them that they could
convict only if the State proved each element of each charge beyond a
reasonable doubt.
Furthermore, in order to obtain the relief he seeks, McCabe must show not
only that the prosecutor committed flagrant and ill-intentioned misconduct, but
also that any prejudice from the misconduct could not have been cured by a jury
instruction. Padilla, 69 Wn. App. at 300. McCabe presents no argument as to
how he was prejudiced, let alone how any prejudice could not have been cured
by a jury instruction. Here, the jury was correctly instructed that the State had
the burden of proving each element of the charges beyond a reasonable doubt.
The jury is presumed to have followed that instruction. State v. Kalebaugh, 183
Wn.2d 578, 586, 355 P.3d 253 (2015).
Second, McCabe contends that the prosecutor engaged in misconduct by
arguing facts that were not in evidence at trial. Specifically, McCabe avers that
the prosecutor transgressed by stating “that’s okay and that makes sense.
Trauma affects memory and reactions.”
The prosecutor’s full statement was as follows:
And then Count 2 is child molestation in the first degree as well.
This is the other incident that happened to [S.M.] in third grade. It’s
the one where she described it happening almost the same, almost
identically. Doesn’t remember as many details and that’s okay and
that makes sense. Trauma affects memory and reactions. So,
going through a traumatic event of your father touching you
inappropriately, sexually is not something you remember every
detail of.
The prosecutor later argued on rebuttal:
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No. 84635-3-I/19
19
And so, ladies and gentlemen, why is [S.M.] credible, again.
This case comes down to [S.M.]’s credibility. Again, it’s common
sense. People don’t give the same details or every single detail,
every time they talk about something. It depends on who they’re
with, how comfortable they are and what questions you’re asking
them.
The memories of trauma are also not static. It affects people
differently. While defense points out inconsistencies in [S.M.]’s
account of the abuse. What she should or shouldn’t have done.
That she didn’t remember every little detail. That’s natural and
normal.
References to facts outside the evidentiary record constitute misconduct.
Fisher, 165 Wn.2d at 747 (citing State v. Belgarde, 110 Wn.2d 504, 507-08, 755
P.2d 174 (1988)). However, it is not misconduct to draw or suggest inferences
based on the evidence. Thorgerson, 172 Wn.2d at 448.
In In re Personal Restraint of Phelps, 190 Wn.2d 155, 410 P.3d 1142
(2018), our Supreme Court considered whether it constituted flagrant and ill-
intentioned misconduct when the prosecutor used the word “grooming” 19 times
during closing argument, given that no expert witness had testified about
grooming. The court held that no misconduct had occurred because the
prosecutor did not urge the jury to consider grooming as a fact establishing the
defendant’s guilt. Phelps, 190 Wn.2d at 167. Rather, the prosecutor used
grooming as a means of summarizing the evidence presented, basically “to paint
a picture of the evidence for the jury.” Phelps, 190 Wn.2d at 167. By using the
word “grooming” in this manner, the prosecutor’s statement was more akin to an
inference than a fact not in evidence. Phelps, 190 Wn.2d at 167.
Here, the prosecutor’s two references to trauma affecting memory
similarly were more akin to an inference than a fact. The jury herein heard
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No. 84635-3-I/20
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testimony from Pegler that children who experience traumatic events process the
events in different ways and that delayed disclosure of abuse is common for
children. Officer Oceguera testified that, in his experience, children commonly
make disclosures in bits and pieces, rather than all at once. Pegler testified that,
with regard to S.M. specifically, S.M. acted nervous, “look[ed] away a few times,”
and cried during her forensic interview. S.M. herself testified that the “whole
case” made her sad. From this evidence, it could reasonably be inferred that
S.M. had experienced a traumatic event and that it had an effect on her. The
prosecutor was permitted to encourage the fact finders to draw such inferences.
Our decision today is in line with courts in other states that have held that
similar remarks about trauma affecting a child subject to sexual abuse did not
constitute prosecutorial misconduct, even in the absence of any expert testimony
concerning trauma. See People v. Maloy, 465 P.3d 146, 160 (Colo. App. 2020)
(not misconduct for prosecutor to argue “Is she absolutely supposed to cry every
time she talks about it, or perhaps is there more than one way to deal with that
trauma[?]” as reasonable jurors could have inferred from evidence that child
experienced trauma); State v. Ringstad, 424 P.3d 1052, 1070 (Utah Ct. App.
2018) (argument, based on counsel’s personal experience, that “‘[w]e don’t
remember everything . . . especially when it’s a traumatic experience,’” did not
constitute misconduct); State v. Ceballos, 832 A.2d 14, 42 (Conn.
2003), overruled on other grounds by State v. Douglas C., 2022 WL 17660010
(Conn. Dec. 13, 2022) (“In our view, it is axiomatic that child sexual abuse has
mental and emotional repercussions for the victim. Thus, the state’s attorney’s
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No. 84635-3-I/21
21
comments about the psychological effects of the sexual acts alleged to have
been committed against S were proper.”); cf. Petric v. State, 157 So.3d 176, 224
(Ala. Crim. App. 2013) (reference to “post-traumatic stress disorder” not
misconduct when evidence showed witness was frightened of domestic violence
perpetrator).
Even if the prosecutor’s statements about trauma affecting memory had
been in reference to facts outside of the record, McCabe makes no attempt to
demonstrate how the statements were so prejudicial that no jury instruction could
have cured the prejudice. Nor could he. The prosecutor’s argument that trauma
affects memory was made in support of count 2, the second charge of child
molestation in the first degree. The jury found McCabe not guilty on count 2.
McCabe could not have been unfairly prejudiced by an argument that the jury
plainly did not accept.
Third, McCabe contends that the prosecutor committed misconduct by
arguing that S.M. was “consistent with everyone that she’s been abused,”
thereby urging the jury to consider matters outside of the record. As McCabe did
not object to this argument, he must demonstrate that the prosecutor’s
misconduct was so flagrant and ill-intentioned that no jury instruction could have
cured the prejudice. Once again, he does not do so.
McCabe likens the prosecutor’s argument to the closing argument given in
State v. Boehning, 127 Wn. App. 511, 111 P.3d 899 (2005). In that case, we
held that the prosecutor had committed misconduct in three respects: first, by
referencing three counts of rape that had been dismissed; second, by bolstering
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No. 84635-3-I/22
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the victim’s credibility by arguing that her prior unadmitted statements were
consistent with her trial testimony; and third, by asking the defendant whether the
victim had “‘made [it all] up.’” Boehning, 127 Wn. App. at 513-14. It is the
second of these circumstances that McCabe contends occurred in his case as
well. However, the prosecutor in Boehning did not merely state that the victim
was “consistent” in reporting abuse. Rather, the prosecutor argued:
“And then she comes and she talks to you. And there wasn’t
anything brought up that she told a different story to Diana
Tomlinson. If she had told a different story to Diana Tomlinson
about the touching, you would have heard about it, because
Defense counsel would bring up something if it was different. So
the reasonable inference, when she spoke to Diana Tomlinson, she
told her the same thing she told you.
. . . .
Is open court—you know, just think about this common
sense, common experience, is open court going to be the best
place to gather information from a child? Or is it going to be in a
place where a child might feel a little bit safer? The State would
submit that it’s in a place where a child would feel a little safer. And
so it’s reasonable that this child might have gone a little farther in
discussing what happened to her in a safer environment.
Boehning, 127 Wn. App. at 521.
By making this argument, the prosecutor not only urged the jury to
surmise the substance of the victim’s earlier statements, but also suggested that
the witnesses possessed far more information favorable to the State than was
introduced at trial. Boehning, 127 Wn. App. at 522. Furthermore, the prosecutor
also argued that because the defendant had not shown that the victim made prior
inconsistent statements, that this proved that the victim was credible. Boehning,
127 Wn. App. at 523. This argument impermissibly shifted the burden of proof to
the defendant. Boehning, 127 Wn. App. at 523.
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No. 84635-3-I/23
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The prosecutor’s argument here is far different from the one made in
Boehning. Here, the prosecutor argued only that S.M. was consistent about the
fact that she had been abused. This was well-supported by the testimony of
multiple witnesses. The prosecutor did not suggest that the substance of S.M.’s
earlier disclosures was consistent with her trial testimony; nor did the prosecutor
suggest that S.M. had disclosed more than what she testified to at trial. To the
contrary, the prosecutor argued on rebuttal that the substance of S.M.’s earlier
statements did not matter; that the only thing the jury could consider was the
testimony given in court. Furthermore, the prosecutor’s argument was not made
to bolster S.M.’s credibility by the fact of repetition, but to explain why S.M. had
delayed disclosure: that she had repeatedly said she was abused, but no one did
anything about it. Boehning is therefore inapposite. The prosecutor’s argument
did not constitute misconduct.5
Furthermore, McCabe once again fails to demonstrate prejudice. McCabe
states in his brief that the cumulative effect of the prosecutor’s argument
prejudiced him without explaining how this is so. Nor does McCabe assert how a
curative instruction could not have cured any prejudice that may have occurred.
We cannot simply presume prejudice based on the facts of this case, particularly
when McCabe was acquitted on one of the charges. We therefore affirm
McCabe’s convictions for child molestation in the first degree, child molestation in
the second degree, and incest in the second degree.
5 Similarly, the prosecutor did not misstate the law by arguing that S.M. was “consistent
with everyone that she’s been abused.” This argument was a summation of witness testimony,
not a statement of law.
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No. 84635-3-I/24
24
V
McCabe additionally asserts that his conviction for bail jumping was not
supported by sufficient evidence, that the State did not present evidence of his
prior convictions, and that his community custody conditions prohibiting him from
entering parks or possessing sexually explicit material are not crime-related. The
State concedes error as to all of these assertions. We accept the State’s
concessions. Accordingly, we order that McCabe’s conviction for bail jumping be
dismissed, and remand this matter for such dismissal and for resentencing.
Affirmed in part, reversed in part, and remanded for further proceedings.
WE CONCUR:
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