IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 79087-1-I Respondent, DIVISION ONE V. UNPUBLISHED OPINION EVAN NEIL SMITH,
Appellant. FILED: March 9, 2020
APPELWICK, C.J. — Smith appeals his convictions for indecent liberties by
forcible compulsion, attempted second degree rape, and fourth degree assault.
He argues that the trial court abused its discretion in failing to instruct the jury on
the missing witness doctrine. He contends that the prosecutor committed incurably
prejudicial misconduct during closing arguments. Further, he asserts that he
received ineffective assistance of counsel due to his trial counsel’s failure to object
to the prosecutor’s misconduct. He also asserts that cumulative error deprived
him of his right to a fair trial. Last, he argues that the provision in his judgment and
sentence imposing interest on nonrestitution LFOs must be stricken. We affirm
Smith’s convictions, but remand to the trial court to strike the provision requiring
interest accrual on nonrestitution LFOs.
FACTS
Late at night on December 12, 2016, and into the early morning hours of
December 13, Evan Smith went out walking in his neighborhood in rural Arlington. No. 79087-1 -1/2
He was carrying and drinking beer. One of Smith’s neighbors, Crystal Chiechi,
was up late on December 12 watching television. At around 11:30 p.m., she was
startled to see Smith standing outside her back room window, motioning towards
her back door. Chiechi’s boyfriend was friends with Smith’s dad, but she did not
know Smith very well.
Assuming her boyfriend would be home soon, Chiechi went out on her back
porch and engaged in small talk with Smith. However, he quickly started making
comments that Chiechi found bizarre. For example, when she asked Smith what
he did for fun, he responded that he liked to go to the brewery in town, but that “all
the women around here are either taken or they’re only 13 right now.”
Later in the conversation, Smith told Chiechi that she and her boyfriend
should start having kids. He then grabbed her right hip and told her that her “hips
need a baby between them.” Chiechi started to panic. Smith then tried to get her
to go into her detached garage with him to look for something an old owner might
have left behind. Chiechi responded that they needed to wait until her boyfriend
got home. Smith kept insisting that they go into the garage, at which point Chiechi
saw her boyfriend’s car coming down the road. Smith left soon after her boyfriend
arrived.
Shortly after midnight, another neighbor of Smith’s, M.G., heard her dogs
barking in an unusual manner. M.G. stuck her head out her door and saw Smith
standing about six feet away. He was reaching into a box of beer that she kept
outside. Smith had stopped at her home on two previous occasions to talk to her
husband, but MG. had not spent time with him before. Because the roads were
2 No. 79087-1-1/3
icy and Smith was on foot, M.G. thought that he might have wrecked his car. Her
husband was asleep, so she went outside to see if she could help. Once she got
outside, Smith told her that he had just left Chiechi’s house and had noticed her
outside. M.G. had taken her dogs outside about 15 minutes prior.
Smith initially told M.G. that he was going to get on her roof and fix her
chimney, which had a tarp on it. He wanted to get a ladder, and tried pulling her
towards her shop to find one. M.G. told Smith that she did not want him to fix her
chimney, and refused to go with him to her shop. At that point, M.G.’s daughter,
L.G., came outside. Smith let go of M.G.’s arm, and Smith and L.G. engaged in a
snowball fight. At one point during the snowball fight, Smith walked behind M.G.
and cupped her buttocks. M.G. reacted by shoving his hand away. Smith did not
touch M.G. again while her daughter was outside.
Once the snowball fight started to wind down, Smith went to the side of
M.G.’s garage and urinated in full view of both M.G. and L.G. Around this time,
M.G. let one of her dogs outside, and it lunged at Smith. She had never seen her
dog react that way, so she put it in the garage. As M.G. retrieved her dog, Smith
and L.G. had a conversation about dogs, during which Smith demonstrated how
he would gut a dog with a pocket knife. He pulled out a pocket knife and pretended
to gut a dog in the air.
At that point, M.G. put L.G. inside. She did not wake up her husband
because she felt like she could handle the situation. However, she told L.G. to
open the door every two minutes. She hoped that if L.G. kept opening the door,
3 No. 79087-1 -114
she would have an excuse to go back inside. She had already told Smith that she
needed to go to bed, but was unsure if he would try to follow her if she went inside.
About two minutes later, L.G. came back outside and asked for a bowl of
snow. M.G. grabbed the bowl and got some snow for L.G. During this time, Smith
yelled at L.G. to get back in the house. L.G. went back inside. M.G. became angry
that Smith had yelled at her daughter, and told him again that he needed to leave.
Smith then urinated a second time on M.G.’s porch. As he was urinating,
he asked M.G. for a ride to Arlington so that he could meet a bartender. M.G. told
him that she was not going anywhere. Smith then told her that if she was not going
to take him to Arlington, she needed to perform oral sex on him. M.G. was taken
aback and laughed in disbelief. At that point, she handed Smith a beer and
grabbed one for herself. Smith had already had several beers. She told Smith
that nothing was going to happen between them.
M.G. then went to light a cigarette. As she bent down to use her lighter,
Smith grabbed her by the collar and flung her 8 to 10 feet onto the hood of her car.
She became very scared and remembered saying, “[Nb, no, no, no.” With her
body on the car and Smith behind her, Smith tried reaching under her pullover shirt
and removing her leggings. He called her a “dirty bitch” and said that she “would
like it rough.” M.G. eventually heard her daughter crack the doorknob and was
able to spin around. L.G. did not actually come outside. Smith then backed away
from M.G., at which point she saw that his penis was fully exposed. M.G. did not
scream for help in part because she did not want her to daughter to come outside.
4 No. 79087-14/5
M.G. again told Smith that he needed to go home, and that nothing was
going to happen between them. She tried to calm down and grabbed another
cigarette. However, Smith took the cigarette from her, grabbed her hand, and
shoved her hand down his pants. He wrapped her hand around his penis and
began stroking it as he was talking to her. L.G. then opened the door. M.G. was
able to remove her hand from Smith’s pants as L.G. popped her head outside.
She did not actually step outside, and shut the door after making eye contact with
M.G. Smith also zipped up his pants and backed away. He told M.G. that she was
right and that he should go.
MG. grabbed another beer for Smith, and told him to take it and leave.
Smith then pushed her up against a pole about two feet from where she was
standing. He grabbed her right leg, pried her thigh open, shoved his hand into her
vaginal area, and forcibly rubbed the area through her leggings. M.G. was able to
shove Smith, who stumbled backwards. Smith then slapped M.G. in the face and
pinched both of her cheeks. Afterwards, he finally left. MG. then went inside,
woke up her husband, and called 911.
The State later charged Smith with indecent liberties by forcible compulsion,
attempted second degree rape, and fourth degree assault. The jury in Smith’s first
trial was unable to reach a verdict. As a result, the court declared a mistrial. At
his second trial, Smith requested that the court give a “missing witness instruction”
regarding M.G.’s daughter, L.G., who the State did not call as a witness. The court
denied Smith’s request.
5 No. 79087-1 -116
A jury found Smith guilty as charged. The court imposed a total minimum
term of 89.25 months of confinement to a maximum term of life. It also imposed a
$500 victim assessment and a $100 biological sample fee. The judgment and
sentence provided that the legal financial obligations (LFOs) imposed “shall bear
interest from the date of the judgment until payment in full.”
Smith appeals.
DISCUSSION
Smith makes four arguments. First, he argues that the trial court abused its
discretion in failing to give a missing witness instruction regarding L.G. Second,
he argues that the prosecutor committed incurably prejudicial misconduct during
closing arguments. Third, he argues that he received ineffective assistance of
counsel due to his trial counsel’s failure to object to the prosecutor’s misconduct.
Fourth, he argues that the provision in his judgment and sentence imposing
interest on non restitution LFOs must be stricken.
I. Failure to Give Missing Witness Instruction
Smith argues first that the trial court abused its discretion in denying his
request for a missing witness instruction. He asserts that, because the State did
not call L.G. as a witness, he was permitted to an instruction that the jury could
infer that L.G.’s testimony would have been unfavorable to the State.
“A missing witness instruction informs the jury that it may infer from a
witness’s absence at trial that his or her testimony would have been unfavorable
to the party who would logically have called that witness.” State v. Reed, 168 Wn.
App. 553, 571, 278 P.3d 203 (2012). Such an instruction is proper when (1) the
6 No. 79087-1-1/7
missing witness’s testimony is material and not cumulative, (2) the witness is
particularly available to only one of the parties and not equally available to both
parties, and (3) the witness’s absence is not satisfactorily explained. State v.
Montgomery, 163 Wn.2d 577, 598-99, 183 P.3d 267 (2008). We review a trial
court’s refusal to give a requested instruction based on the evidence in the case
for abuse of discretion. State v. Walker, 136 Wn.2d 767, 771-72, 966 P.2d 883
(1998).
Smith contends L.G. was a material witness. The record does not support
this argument. After Smith requested a missing witness instruction regarding L.G.,
the trial court stated that it did not view her potential testimony as “very significant”
in relation to the charges. The court asked counsel for Smith what “significant
information” in L.G.’s forensic interview she thought should have been testified to
that was not cumulative. The following exchange then took place:
[COUNSEL]: Well, the --
THE COURT: Because the only thing that I understood really was perhaps the daughter saw him urinating outside and the issue related to the knife, which to me, frankly, are not significant. I guess the other thing is, and I don’t know and maybe this is not relevant, really, this inquiry, but what if the child just didn’t observe anything, the child was just there? [COUNSEL]: Well, I think that is the issue, that is why the State didn’t call the child. She came out several times when Mr. Smith was present and didn’t ever see Mr. Smith close to her mother. The mother testified that in the incident up against the pole that the door opened, the child stepped out when Mr. Smith was making [M.G.] touch his penis. The child never saw anything. She was a very accurate historian of what she saw. She never saw --
THE COURT: So you’re telling me, then, that the child when --
the child came out, the specific testimony is that when she observed
7 No. 79087-1 -1/8
your client and [M.G.] that they were not in close proximity to each other? [COUNSEL]: She never saw them do anything --
THE COURT: That’s not my question. She may not have been in the position where she could have observed it, but you seem to indicate that the child said they were not in close proximity, and if that’s the case, that may be a material issue in relation to the allegations in this case. But I don’t know what the interview says, so I’m asking you, you made a representation that to me sounded like the child indicated they weren’t even in close proximity. In response, counsel for Smith did not state that L.G. actually said Smith and M.G.
were not in close proximity. Rather, she stated that L.G. was the “only other
eyewitness to these events aside from Mr. Smith and [M.G].”
As the discussion continued, counsel for Smith argued that L.G.’s testimony
bore on M.G.’s credibility as a witness. She stated,
[M.G.] said that there were times where the child was out and that Mr. Smith was grabbing her and that she was shushing him away. [L.G.] did not see anything like that. She did not see anything of Mr. Smith attempting to kiss [M.G]. She in her interview recounted the evening, said she came out multiple times, she had the snowball fight, she came out to get snow, that her mom smiled at her and told her to come back inside. She said if I had known what was going on, I have a rifle, I would have brought out my rifle. Her recount of what happened is not consistent with [M.G.]’s recount of what happened. The State disagreed with this characterization, pointing out that L.G. “was inside
the residence for most of the time,” and that there was “a lot that she couldn’t
actually see.”
The trial court declined to give the missing witness instruction. It explained,
In the WPIC,~1] one of the requirements is it says the circumstances must establish as a matter of reasonable probability that the party
111 WASHINGTON PRAcTIcE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 5.20, at 188-89 (4th ed. 2016) (WPIC).
8 No. 79087-1 -119
would not knowingly fail to call the witness in question unless the witness’s testimony would be damaging. I don’t find under the facts and circumstances of this case what the child observed, as well as the age of the child, that that prong is satisfied, and therefore, on that basis, I’m not giving the instruction. The trial court’s statements indicate that it did not consider L.G. to be an
important witness, and that it did not view her potential testimony as material. As
established above, the trial court asked counsel for Smith whether L.G. stated that
she did not see Smith and M.G. in close proximity when she opened the door
around the time that Smith made M.G. touch his penis. The court thought that this
statement could be a material issue in relation to the allegations. However,
counsel for Smith did not confirm that L.G. actually said that she did not see Smith
and M.G. in close proximity. Instead, she responded that L.G. was the “only other
eyewitness to these events.”
Smith nonetheless argues that L.G. was in a position to observe several
acts that comprised the charged crimes. He states that L.G. was close enough to
the door to work the latch when “the attempted rape occurred,” but that she “saw
nothing.” He further asserts that L.G. stuck her head out the door during one of
the two instances of indecent liberties, but that, again, she “saw nothing.” And, he
states that L.G. “noticed nothing amiss” when M.G. got a bowl of snow for her, and
that M.G. even smiled at her.
After Smith threw M.G. onto her car and tried reaching under her shirt and
removing her leggings, M.G. heard the doorknob click. She clarified that the door
never opened, and that L.G. never came outside. Smith does not cite evidence
that L.G. could have seen what was happening through the door. Thus, based on
9 No. 79087-1 -1/10
the record before this court, testimony by L.G. that she saw nothing during this
event would be of little material value. It would not contradict M.G.’s explanation
of what happened or undermine M.G.’s credibility.
Next, after Smith shoved M.G.’s hand down his pants and forced her to
touch his penis, M.G. saw the door open. She clarified that L.G. then stuck her
head outside. As this happened, Smith immediately stepped back from M.G., and
M.G. was able to remove her hand from Smith’s pants. M.G. was not sure how
close she and Smith were at the time L.G. stuck her head outside. She thought
that Smith might have been “stepping back.” Therefore, testimony by L.G. that she
saw nothing during this event would again be of little material value. It would not
contradict M.G.’s explanation of what happened or undermine M.G.’s credibility.
And, M.G. did not testify that any of the acts comprising the charged crimes
occurred while she got her daughter a bowl of snow. Thus, testimony by L.G. that
she noticed nothing amiss at the time, and that M.G. smiled at her, would not be
material. It would not contradict M.G.’s description of the events. The
circumstances here do not establish that L.G.’s testimony would have been
material and unfavorable to the State.
Moreover, the State had a reasonable explanation for its decision not to call
L.G. to testify at trial. In L.G.’s forensic interview, she did not say anything that the
State deemed to have evidentiary value. Specifically, the State explained that her
forensic interview did not contain any evidence “really relevant to this case other
than some information about her seeing Mr. Smith use a pocket knife to indicate
that he was gutting a dog.” And, given L.G.’s age, the State did not want to call a
10 No. 79087-1-I/Il
child witness unless it was absolutely necessary to do so. Therefore, Smith failed
to establish that the State would have called L.G. as a witness but for her damaging
testimony. Accordingly, the trial court did not abuse its discretion in declining to
give a missing witness instruction regarding L.G.
II. Prosecutorial Misconduct
Smith argues next that the prosecutor committed incurably prejudicial
misconduct at trial. He contends that this misconduct denied him his right to a fair
trial on all counts.
During the rebuttal closing argument, the prosecutor made the following
statement regarding L.G.’s absence as a witness:
[Defense counsel] said, you know, we didn’t hear from [M.G.’s] daughter. And I’ll leave you to consider why a prosecutor wouldn’t want to call a ten-year-old to testify in front of a bunch of strangers about her mother being assaulted when that’s not necessary because we have a victim who went through it all. Smith asserts that, “[i]n making this argument, the prosecutor improperly argued
facts not in evidence, suggesting that L.[G.] had seen her mother being assaulted.”
He further asserts that this argument “improperly claimed L.[G.] would have
corroborated M.G.’s testimony that Smith assaulted M.G.”
Smith failed to object to this statement at trial. As a result, our review is
limited to determining whether the prosecutor’s alleged misconduct was so flagrant
and ill intentioned that an instruction could not have cured the resulting prejudice.
State v. Sakellis, 164 Wn. App. 170, 184, 269 P.3d 1029 (2011). “This standard
requires the defendant to establish that (1) the misconduct resulted in prejudice
that ‘had a substantial likelihood of affecting the jury verdict,’ and (2) no curative
11 No. 79087-1 -1/12
instruction would have obviated the prejudicial effect on the jury.” j~ (quoting State
v. Thorgerson, 172 Wn.2d 438, 455, 258 P.3d 43 (2011)).
Smith contends that, even with a curative instruction, “[t]he jury was likely
to accept the State’s version of the facts.” He cites State v. Thierrv, 190 Wn. App.
680, 694, 360 P.3d 940 (2015), for the general proposition that, because the jury
normally places great confidence in the faithful execution of a prosecuting
attorney’s obligations, a prosecutor’s improper insinuations or suggestions are apt
to carry more weight against a defendant.
We agree that the State’s comment could have been interpreted to suggest
that L.G. witnessed the assault on her mother and the State simply did not want to
put a young child through the ordeal of a sexual assault trial. But, Smith fails to
explain why an admonishment to counsel and a curative instruction could not have
alleviated any prejudice. In Thorcierson, the State Supreme Court determined that
even ill intentioned remarks by a prosecutor in closing argument did not warrant
reversal of a conviction, because the victim’s testimony was consistent throughout
the trial and consistent with what she had told other witnesses before the trial. 172
Wn.2d at 452.
Here, M.G.’s testimony was similarly consistent throughout the trial and
consistent with what she reported to police before the trial. There was evidence
to corroborate M.G.’s testimony, including the neighbor who had similar contact
with Smith before he made his way to M.G.’s home, witnesses who saw her injuries
that night, and physical evidence consistent with M.G.’s version of events. Given
this evidence, the single, inappropriate comment in the State’s rebuttal closing
12 No. 79087-1-1113
argument did not have a substantial likelihood of having altered the outcome of
this case.
Also, the court gave the jury the following instruction:
The lawyers’ remarks, statements, and arguments are intended to help you understand the evidence and apply the law. It is important, however, for you to remember that the lawyers’ statements are not evidence. The evidence is the testimony and the exhibits. The law is contained in my instructions to you. You must disregard any remark, statement, or argument that is not supported by the evidence or the law in my instructions. We presume that the jury follows the court’s instructions. State v. Stein, 144 Wn.2d
236, 247, 27 P.3d 184 (2001).
Smith has failed to establish that the alleged misconduct resulted in
prejudice that had a substantial likelihood of affecting the jury verdict. Accordingly,
his prosecutorial misconduct claim fails.
Ill. Ineffective Assistance of Counsel
In the alternative, Smith argues that his attorney provided ineffective
assistance of counsel by not objecting to the prosecutor’s remark during closing
arguments.
To prevail on a claim of ineffective assistance of counsel, a defendant must
show that counsel’s performance fell below an objective standard of
reasonableness based on consideration of all the circumstances, and that the
deficient performance prejudiced the trial. Strickland v. Washington, 466 U.S. 668,
687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Nichols, 161 Wn.2d 1, 8,
162 P.3d 1122 (2007). If one of the two prongs of the test is absent, we need not
inquire further. Strickland, 466 U.S. at 697; State v. Foster, 140 Wn. App. 266,
13 No. 79087-1-1/14
273, 166 P.3d 726 (2007). The reasonableness inquiry presumes effective
representation and requires the defendant to show the absence of legitimate
strategic or tactical reasons for the challenged conduct. State v. McFarland, 127
Wn.2d 322, 336, 899 P.2d 1251 (1995). Prejudice is present if there is a
reasonable probability that, but for counsel’s error, the result would have been
different. ki. at 334-35. We review ineffective assistance of counsel claims de
novo. State v. Sutherby, 165 Wn.2d 870, 883, 204 P.3d 916 (2009).
The comment was brief and there was significant evidence corroborating
M.G.’s version of events. Even if we were to conclude that defense counsel’s
failure to object was deficient performance, Smith fails to establish that, but for
counsel’s failure to object, there is a reasonable probability that the result of this
trial would have been any different.
Smith did not receive ineffective assistance of counsel.2
IV. Legal Financial Obligations
Smith argues last that the provision in his judgment and sentence imposing
interest on nonrestitution LFOs must be stricken. He relies on House Bill 1783~
and State v. Ramirez, 191 Wn.2d 732, 426 P.3d 714 (2018).
2 Smith also argues that cumulative error deprived him of his right to a fair trial. The cumulative error doctrine applies “when a combination of trial errors denies the accused a fair trial, even when any one of the errors taken individually would be harmless.” State v. Salas, 1 Wn. App. 2d 931, 952, 408 P.3d 383, review denied, 190 Wn.2d 1016, 415 P.3d 1200 (2018). Because Smith has not shown any error, the cumulative error doctrine does not apply. ~ ENGROSSED SEcoND SUBSTITUTE H.B. 1783, 65th Leg., Reg. Sess. (Wash. 2018) (House Bill 1783).
14 No. 79087-1-1/15
In Ramirez, the State Supreme Court held that House Bill 1783 applies
prospectively to cases on appeal. 191 Wn.2d at 747. House Bill 1783 amends
RCW 10.82.090, providing that “no interest shall accrue on nonrestitution legal
financial obligations.” LAWS OF 2018, ch. 269, § 1(1). The State concedes that remand is appropriate to strike the provision requiring interest accrual on
nonrestitution LFOs. We accept the State’s concession and remand to the trial
court to strike the provision.
We affirm Smith’s convictions, but remand to the trial court to strike the
provision requiring interest accrual on nonrestitution LFOs.
WE CONCUR: