FILED JUNE 10, 2025 In the Office of the Clerk of Court WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
STATE OF WASHINGTON, ) ) No. 39994-0-III Respondent, ) ) v. ) ) BLAKE ANTHONY BROWN, ) UNPUBLISHED OPINION ) Appellant. )
COONEY, J. — At the conclusion of trial, a jury found Blake Brown guilty of two
counts of child molestation in the first degree, two counts of assault in the second degree,
and one count of incest in the second degree.
Mr. Brown appeals, arguing: (1) the prosecutor engaged in multiple acts of
misconduct; (2) he received ineffective assistance from his trial counsel; and (3) the court
erred in admitting recordings of child forensic interviews, denying his motion for a
mistrial, and failing to give the jury a unanimity instruction for the assault charges. We
disagree with each argument and affirm. No. 39994-0-III State v. Brown
BACKGROUND
Mr. Brown and Morgan Hart are the parents of two children, daughter, E.H., and
son, T.B. When T.B. and E.H. were 13 and 14 years old, respectively, the Ellensburg
Police Department received a Child Protective Services (CPS) referral alleging Mr.
Brown had inappropriately touched E.H.
Detective Ryan Shull contacted Ms. Hart and arranged an interview with E.H.
Ms. Hart and E.H. did not return to their home after the interview. Detective Shull later
interviewed Mr. Brown, who denied the allegations of sexual abuse, but admitted to
strangling the children, claiming he was teaching them mixed martial arts.
The State charged Mr. Brown with three counts of child molestation in the first
degree listing E.H. as the victim, 1 two counts of assault in the second degree, one count
naming E.H. as the victim and the other naming T.B., and one count of incest in the
second degree, listing E.H. as the victim.
Mr. Brown moved, in limine, to exclude evidence of him spanking the children
and hitting them with a belt. The State opposed the motion, arguing the evidence was
relevant to demonstrate that Mr. Brown’s disciplinary methods created fear in the
children, thus explaining their delay in reporting. The court ruled the State could
1 The State dismissed count 3 after resting its case.
2 No. 39994-0-III State v. Brown
introduce evidence of the children being hit with a belt or spanked, but prohibited
witnesses from using the term “beaten.” Rep. of Proc. (RP) at 31.
Mr. Brown also moved to exclude evidence of him forcing his children to drink
alcohol or consume certain foods. The prosecutor responded that the evidence was
relevant to explain why the children were unable to refuse Mr. Brown’s demands and
why they delayed reporting the abuse. The court granted the motion but allowed E.H.
and T.B. to testify generally about their perception that Mr. Brown exerted control over
them.
At trial, Ms. Hart testified about her relationship with Mr. Brown. She described
Mr. Brown as “controlling” throughout the marriage and testified that she felt “verbally
and emotionally abused.” RP at 204. She further stated that it was not a happy marriage,
and that Mr. Brown remained “just as horrible,” even after returning from deployments in
Iraq. RP at 207.
E.H. testified that Mr. Brown had physically, emotionally, and sexually abused
her. She described Mr. Brown as intimidating and lived in fear of him lashing out at her
over the smallest things. She testified that Mr. Brown used physical discipline, including
hitting her with a belt and strangling both her and T.B. to the point of unconsciousness.
She further testified that Mr. Brown engaged in sexual misconduct with her several times
when she was 10 or 11 years old.
3 No. 39994-0-III State v. Brown
E.H. testified that she confided in Mr. Brown’s aunt about the abuse when she was
14 years old, who then reported the abuse to CPS. E.H. testified Detective Shull
interviewed her in the presence of a social worker and Ms. Hart.
T.B. testified that his childhood was marked by frequent yelling, hitting, and
punishment by Mr. Brown. He recalled that Mr. Brown had struck both he and E.H. with
a leather belt and had taken their money. He testified to Mr. Brown strangling him
multiple times and attested to a specific incident when Mr. Brown strangled him and E.H.
to the point of passing out. T.B. testified that he was interviewed by Detective Shull in
the presence of Ms. Hart and his step-grandmother, Rebecca Domcbik.
Throughout the trial, Mr. Brown’s attorney questioned whether the presence of
others during Detective Shull’s interviews of the children tainted the quality of the
interviews. To rebut this allegation, the State requested it be allowed to play the recorded
interviews for the jury. Mr. Brown’s attorney objected, arguing he had not attacked the
interviews sufficient to open the door to the recordings being played to the jury, that the
recording would be duplicative of other evidence, and that the recordings would not show
the presence of others in the room. The court disagreed, reasoning that the jury should be
able to evaluate the effect of others being present during the interviews.
Ultimately, the jury found Mr. Brown guilty of two counts of child molestation in
the first degree, two counts of assault in the second degree, and one count of incest in the
second degree. The jury further found the crimes were committed against family
4 No. 39994-0-III State v. Brown
members. Mr. Brown was thereafter sentenced to 173.5 months to life of confinement on
the child molestation charges.
Mr. Brown timely appeals.
ANALYSIS
PROSECUTORIAL MISCONDUCT
Mr. Brown argues the prosecutor engaged in acts of misconduct that, individually
and collectively, deprived him of a fair trial. We disagree.
Prosecutorial misconduct warrants reversal if the defendant establishes the
prosecutor’s conduct was both improper and prejudicial. State v. Monday, 171 Wn.2d
667, 675, 257 P.3d 551 (2011); State v. Emery, 174 Wn.2d 741, 756, 278 P.3d 653
(2012). A prosecutor’s misconduct is prejudicial when there is a substantial likelihood
the misconduct affected the jury’s verdict. Emery, 174 Wn.2d at 760. If a defendant
failed to object to the prosecutor’s alleged misconduct, then “the defendant is deemed to
have waived any error, unless the prosecutor’s misconduct was so flagrant and ill-
intentioned that an instruction could not have cured the resulting prejudice.” Id. at 760-
61.
Character, Prior Bad Acts, Vouching, and Appeal to Passion of Jury
Mr. Brown argues the prosecutor attacked his character, appealed to the passions
of the jury, and vouched for the State’s witnesses during its summation.
5 No. 39994-0-III State v. Brown
Aside from citing principles of law and cataloging the offending comments,
Mr. Brown fails to provide a meaningful analysis or clear argument as to why the
comments were improper, how the comments were prejudicial, or why an instruction
from the court could not have cured any resulting prejudice. “Passing treatment of an
issue or lack of reasoned argument is insufficient to merit judicial consideration.”
Brownfield v. City of Yakima, 178 Wn. App. 850, 876, 316 P.3d 520 (2014). Moreover,
this court refrains from creating arguments for the parties. In re Pers. Restraint of Coats,
173 Wn.2d 123, 138, 267 P.3d 324 (2011). Consequently, we decline review of the
prosecutor’s alleged improper comments.
Children’s Recorded Interviews
Relying on State v. Fisher, 165 Wn.2d 727, 202 P.3d 937 (2009), Mr. Brown
contends the State improperly used the recorded interviews as substantive evidence rather
than its stated purpose of rebutting Mr. Brown’s claim that the interviews were tainted by
outside influences.
Mr. Brown fails to direct us to any portion of the record where the State presented
the recorded interviews as substantive evidence. “Appellate courts need not consider
arguments that are unsupported by pertinent authority, references to the record, or
meaningful analysis.” Cook v. Brateng, 158 Wn. App. 777, 794, 262 P.3d 1228 (2010).
The recorded interviews presented to the jury were consistent with the State’s intended
purpose of dispelling any notion that they were tainted by outside influences.
6 No. 39994-0-III State v. Brown
INEFFECTIVE ASSISTANCE OF COUNSEL
Mr. Brown argues he received ineffective assistance of counsel when his attorney
failed to object to testimony about his character and prior bad acts. We disagree.
Criminal defendants have a constitutionally guaranteed right to effective
assistance of counsel. U.S. CONST. amend. VI; WASH. CONST. art. I, § 22; State v. Lopez,
190 Wn.2d 104, 115, 410 P.3d 1117 (2018). A claim of ineffective assistance of counsel
is an issue of constitutional magnitude that may be considered for the first time on appeal.
State v. Nichols, 161 Wn.2d 1, 9, 162 P.3d 1122 (2007). Claims of ineffective assistance
of counsel are reviewed de novo. State v. White, 80 Wn. App. 406, 410, 907 P.2d 310
(1995).
A defendant bears the burden of showing (1) that his counsel’s performance fell
below an objective standard of reasonableness based on consideration of all the
circumstances and, if so, (2) there is a reasonable probability that but for counsel’s poor
performance the outcome of the proceedings would have been different. State v.
McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). If either element is not
satisfied, the inquiry ends. State v. Kyllo, 166 Wn.2d 856, 862, 215 P.3d 177 (2009).
In reviewing the record for deficiencies, there is a strong presumption that
counsel’s performance was reasonable. McFarland, 127 Wn.2d at 335. The burden is on
a defendant alleging ineffective assistance of counsel to show deficient representation.
Id. The reasonableness of counsel’s performance is to be evaluated from counsel’s
7 No. 39994-0-III State v. Brown
perspective at the time of the alleged error and in light of all the circumstances.
Kimmelman v. Morrison, 477 U.S. 365, 384, 106 S. Ct. 2574, 91 L. Ed. 2d 305 (1986).
“When counsel’s conduct can be characterized as legitimate trial strategy or tactics,
performance is not deficient.” Kyllo, 166 Wn.2d at 863. A sufficient basis to rebut
legitimate trial strategy exists when the defendant demonstrates there is “no conceivable
legitimate tactic explaining counsel’s performance.” State v. Reichenbach, 153 Wn.2d
126, 130, 101 P.3d 80 (2004).
The decision whether to object can be a trial tactic. State v. Stotts, 26 Wn. App. 2d
154, 165, 527 P.3d 842 (2023). Defense counsel may choose not to object to avoid
highlighting otherwise inadmissible low-value evidence. Id. Our courts typically do not
consider a failure to object as incompetence of counsel unless it occurs in egregious
circumstances involving testimony central to the State’s case. State v. Vazquez, 198
Wn.2d 239, 248, 494 P.3d 424 (2021). Absent a valid strategic reason, “if defense
counsel fails to object to inadmissible evidence, then they have performed deficiently,
and reversal is required if the defendant can show the result would likely have been
different without the inadmissible evidence.” Id. at 248-49.
Mr. Brown claims his trial counsel was ineffective for failing to object to
inadmissible character evidence and prior bad acts. Among other statements, Mr. Brown
challenges his attorney’s failure to object to Ms. Hart’s testimony that he is “a controlling
person” and was “still just terrible” upon his return from Iraq. RP at 218, 247. He
8 No. 39994-0-III State v. Brown
further asserts his attorney was deficient in failing to object to E.H.’s testimony that he
had “never been a nice man” and “made us all miserable.” RP at 348. Mr. Brown also
claims his attorney was deficient in failing to object to T.B.’s testimony that Mr. Brown
had hit him with a leather belt, took his money, and constantly yelled at him.
In light of all the circumstances, defense counsel’s failure to object to evidence of
Mr. Brown’s character and prior bad acts amounted to a legitimate trial strategy. From
his opening statement, defense counsel presented a consistent theory of the case—that
Mr. Brown was on trial for his manner of parenting, that E.H. and T.B. were biased
against Mr. Brown due to his strict parenting, and that Ms. Hart was afraid Mr. Brown
would take the children from her. Defense counsel posited that these issues motived
coaching the children in what to report.
While delivering his opening statement, the State objected to defense counsel’s
comment, “Anytime there’s a divorce, one party is trying to advance their interest,
whether it’s economic.” RP at 195. In response to the objection, defense counsel
explained to the court that “[t]his is part of my case.” Id. Thereafter, defense counsel
told the jury, “Clearly, [Ms. Hart] and the children didn’t like this level of discipline.” Id.
During the cross-examination of Ms. Hart, defense counsel attempted to impeach
Ms. Hart with a declaration she had earlier authored. The State moved to exclude the
declaration. In response, defense counsel argued:
9 No. 39994-0-III State v. Brown
It goes to coaching the children, because here’s where it ties together. This is the nexus. Because, this attorney, her stepmom [Ms. Dombcik], is present for the interview of [T.B.], is present for the interview of [Ms. Hart], and is present, I believe and I don’t know this for sure, for the interview of [E.H.]. After they separate and—and [Mr. Brown] is out of the house, the children go and live with this attorney in Yakima [Ms. Dombcik]. I think she coached them as to what to say.
RP at 258. Defense counsel’s theme continued when, during summation, he argued,
“They wanted the discipline to stop. They were living in a disciplined household. And I
told you at the very beginning of my opening, he’s on trial for his parenting.” RP at 643.
Defense counsel further argued, “It’s clear they hated him, and they wanted to get out of
the house. That’s their interest and they wanted to punish him.” RP at 643.
Defense counsel’s opening statement, arguments presented during the trial,
and closing argument demonstrate his strategy was to use what may have otherwise
been inadmissible evidence to Mr. Brown’s benefit. Defense counsel used evidence of
Mr. Brown’s character and prior bad acts as proof that Ms. Hart, E.H., and T.B. harbored
bias against Mr. Brown and were motived by their support of Ms. Hart gaining custody of
the children.
Defense counsel’s failure to object to character evidence and prior bad acts was a
legitimate trial strategy. Mr. Brown did not receive ineffective assistance from his trial
counsel.
10 No. 39994-0-III State v. Brown
ADMISSION OF RECORDING
Mr. Brown argues the court erred when, over his objection, it admitted the
recorded interviews of E.H. and T.B. The State argues the admission of the recordings
was within the court’s discretion and necessary to rebut Mr. Brown’s assertion that E.H.
and T.B. were coached. We agree with the State.
We review a trial court’s admission of evidence for abuse of discretion. State v.
Lane, 125 Wn.2d 825, 831, 889 P.2d 929 (1995). A trial court abuses its discretion when
its decision is manifestly unreasonable or based on untenable grounds. State v. Rohrich,
149 Wn.2d 647, 654, 71 P.3d 638 (2003). Deference is given to the trial court’s
determination even if we disagree with the trial court’s ultimate decision. State v. Curry,
191 Wn.2d 475, 484, 423 P.3d 179 (2018).
During the cross-examination of Detective Shull, Ms. Hart, E.H. and T.B., defense
counsel’s questioning suggested that Ms. Dombcik participated in or inappropriately
influenced the interviews or E.H. and T.B. had otherwise been improperly coached. To
rebut these assertions, the State requested the recorded interviews be played to the jury.
After considering the arguments of the parties, the court ruled that Mr. Brown had opened
the door to the recordings being played, but ordered portions of the recordings be
redacted.
Mr. Brown asserts the trial court erred in admitting the recordings because
recorded statements given to law enforcement are inadmissible hearsay. Here,
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Mr. Brown claims that neither the State nor the court articulated an exception to the
hearsay rule sufficient to warrant admission of the recordings.
“‘Hearsay’ is a statement, other than one made by the declarant while testifying
at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”
ER 801(c). “Hearsay is not admissible except as provided by these rules, by other court
rules, or by statute.” ER 802.
Mr. Brown directs us to State v. Rushworth, 12 Wn. App. 2d 466, 458 P.3d 1192
(2020), to support his contention that the open door doctrine is a theory of expanded
relevance, not a means of admitting hearsay in violation of the rules of evidence.
Rushworth is distinguishable. In Rushworth, the State sought to admit inadmissible
hearsay after the defense elicited hearsay during its questioning of a witness. Id. at 478.
There, we rejected application of the curative admissibility doctrine, instead noting that
the State should have simply objected to the inadmissible hearsay. Id.
The facts before us are more similar to those in State v. Wafford, 199 Wn. App.
32, 397 P.3d 926 (2017). In Wafford, defense counsel explicitly referred to the victim’s
recorded interview during her opening statement and misrepresented that the victim had
denied the abuse. At the State’s prompting, the trial court held that defense counsel had
opened the door to admission of the relevant portion of the video. Id. at 35, 39. In
Wafford, we reasoned it did not matter whether the open door doctrine was triggered by
12 No. 39994-0-III State v. Brown
opening statements or the admission of evidence; the question was whether having done
so affected the fairness of the trial. Id. at 39.
Here, like in Wafford, the State did not offer the recordings to prove their truth.
Rather, the recordings were offered, and admitted, to rebut Mr. Brown’s contention that
the children’s statements had been improperly influenced by a third party. In allowing
the jury to view the recordings, the court found, “the issue though has been about the
presence and the effect of the presence of other people in the interview and the interviews
seem, to me, to be the best way for the jury to make that—that decision themselves.”
RP at 438. Because the recordings were not offered to prove the truth of the matters
asserted, the recordings were not hearsay.
Defense counsel consistently questioned the integrity of the interviews.
Admission of the recordings restored fairness to the trial. The trial court did not abuse its
discretion in allowing the jury to view the recorded interviews of E.H. and T.B.
UNANIMITY INSTRUCTION
Mr. Brown argues the trial court erred when it failed to provide the jury with
unanimity instructions for the two charges of assault in the second degree. We disagree.
We review a challenged jury instruction de novo. State v. DeRyke, 149 Wn.2d
906, 910, 73 P.3d 1000 (2003). “To convict a person of a criminal charge, the jury must
be unanimous that the defendant committed the criminal act.” State v. Camarillo, 115
Wn.2d 60, 63, 794 P.2d 850 (1990). A case is characterized as a multiple acts case if the
13 No. 39994-0-III State v. Brown
State presents evidence of multiple acts of alleged misconduct and any one of the acts
could satisfy the elements of the count charged. State v. Coleman, 159 Wn.2d 509, 511,
150 P.3d 1126 (2007). In such cases, because the jury must unanimously agree that one
such act satisfied the elements of the count charged, the court must either instruct the jury
to agree on a specific criminal act, or the State must elect which act the jury shall rely on.
Id. In a multiple acts case, if there is no election and no unanimity instruction to the jury,
prejudice is presumed. Id. at 512. When such an error results in prejudice, the error is
subject to constitutional harmless error analysis, and the conviction will be overturned
unless the error was harmless beyond a reasonable doubt. Id.
Here, the court did not err when it failed to provide the jury with a unanimity
instruction for the assault charges because the State elected one instance of strangulation
for each count of assault. The prosecutor explained in her openings statement, “And,
[T.B.] will describe one particular instance that he remembers at a house that they lived
in on Spokane Street. Again, he says this is a very frequent occurrence with his dad, but
he’s able to describe specifically one instance with him and [E.H.].” RP at 192.
Thereafter, the State elicited testimony from Ms. Hart, E.H., and T.B. about this specific
instance of assault. Finally, the State focused on this same incident reported by Ms. Hart
and the children in its closing argument.
14 No. 39994-0-III State v. Brown
Although similar instances of Mr. Brown strangling E.H. and T.B. were admitted,
the State elected a single act for the jury to rely on for each count. Thus, a unanimity
instruction was unnecessary.
The court did not err in failing to give the jury a unanimity instruction for the two
counts of assault in the second degree.
DENIAL OF MOTION FOR A MISTRIAL
Mr. Brown argues the court abused its discretion when it denied his motion for a
mistrial after evidence previously ruled inadmissible was shown to the jury.
A trial court’s decision to deny a motion for a mistrial is reviewed for abuse of
discretion. State v. Thompson, 90 Wn. App. 41, 45, 950 P.2d 977 (1998). The court
should grant a mistrial only when the defendant is prejudiced such that nothing short of a
new trial will ensure that the defendant will be tried fairly. Id. The trial court is best
situated to determine the impact of any irregular occurrence during the trial. Id. at 45-46.
On review, this court will determine the prejudicial effect of any irregular
occurrence by considering its seriousness, whether it involves cumulative evidence, and
whether the court properly instructed the jury to disregard it. Id. at 46.
Here, the court excluded statements from T.B. about Mr. Brown’s unfaithfulness
to Ms. Hart. In violation of the court’s ruling, evidence of Mr. Brown cheating on
Ms. Hart was presented to the jury during T.B.’s interview:
15 No. 39994-0-III State v. Brown
[DETECTIVE SHULL]: Can you remember anything else that may have been going on around that time?
[T.B.]: No. Only that he was trying to cheat on my mom. Practically—I don’t know what was going on, but my mom stayed with him. I don’t know why.
RP at 529 (emphasis added). Before the recording was presented to the jury, the parties
reviewed the transcript for necessary redactions. Nevertheless, the portion of the
recording containing T.B.’s statement about Mr. Brown’s alleged perfidy was not
Mr. Brown moved for a mistrial after the State rested its case. Although
Mr. Brown did not object when the offending statement was made to the jury, Mr. Brown
did timely move for a mistrial. A defendant must give the court the opportunity to take
corrective action in order to preserve the issue for appeal. State v. Koch, 126 Wn. App.
589, 597-98, 103 P.3d 1280 (2005) (moving for a mistrial preserves the issue for appeal
even if no objection is raised because it gives the court an opportunity to remedy). The
court denied the motion, reasoning that even though T.B’s statement violated an order in
limine, it did not rise to the level of depriving Mr. Brown of a fair trial. We agree with
the court’s assessment.
While the statement was more prejudicial than probative, it was only one
statement made in the context of substantial evidence that projected Mr. Brown in a
16 No. 39994-0-III State v. Brown
negative light. Further, the trial court offered to give a limiting instruction, directing the
jury to disregard the statement. Defense counsel declined the court’s offer.
Because the statement did not prejudice Mr. Brown to the point that nothing short
of a new trial would ensure he was tried fairly, the trial court did not abuse its discretion
in denying the motion for a mistrial.
Affirmed.
A majority of the panel has determined this opinion will not be printed in
the Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.
Cooney, J.
WE CONCUR:
Fearing, J.
Murphy, M.