Filed Washington State Court of Appeals Division Two
September 24, 2024 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II STATE OF WASHINGTON, No. 57260-5-II
Respondent,
v. UNPUBLISHED OPINION CHRISTOPHER LAMONT POSEY,
Appellant.
PRICE, J. — Christopher L. Posey appeals his convictions for one count of first degree
burglary, one count of second degree rape, and one count of second degree assault committed
against his ex-girlfriend S.K.1
During the trial, the prosecutor asked questions about a photo of Posey holding a gun and
money. Posey argues that the State committed race-based prosecutorial misconduct by appealing
to jurors’ potential racial biases by questioning Posey about the photo. Posey also argues that he
received ineffective assistance of counsel because his counsel failed to object to the State’s
questions about the photo.
Posey further argues that the use of S.K.’s initials in the jury instructions and special verdict
form constituted an impermissible comment on the evidence by the trial court.
1 After the incident, but before trial, the victim changed her last name. As a result, her initials were changed from S.F. to S.K. Our record refers to the victim with both last names interchangeably. However, because the victim expressed a preference to be referred to by her new last name, we use the initials S.K. No. 57260-5-II
Posey next contends that he should be resentenced because his offender score included
prior juvenile convictions which, following recent legislative amendments, should no longer be
included.
Finally, with respect to his judgment and sentence, Posey challenges the trial court’s
imposition of two community custody conditions (condition 8—consent to home visits and
condition 12—testing for drugs and alcohol) and requests that community custody supervision
fees and the victim penalty assessment (VPA) be stricken.
We remand for the trial court to strike the community custody supervision fees and the
VPA. Otherwise, we reject Posey’s arguments and affirm his convictions.
FACTS
I. BACKGROUND
Posey and S.K. began dating in 2016. Within about a week of meeting, Posey recorded
videos of the two having sex without S.K.’s consent. Soon, Posey moved into S.K.’s home. But
in February 2018, S.K. ended the relationship and Posey moved out. Posey is a Black man and
S.K. is a white woman.
About three months after Posey moved out, S.K. and a friend, Victor Garcia, were sleeping
in S.K.’s home when Posey banged on the window, took off the window screen, and climbed
through. According to S.K., over the next hour and a half, Posey dragged, slapped, strangled, and
raped her.
While the rape was ongoing, law enforcement loudly knocked on the door and ordered
them to “open up.” 4 Verbatim Rep. of Proc. (VRP) at 573. Posey instructed S.K. to answer the
door and tell law enforcement that he was not there. But when S.K. opened the door and law
enforcement asked her whether Posey was there, S.K. nodded her head “yes.” 4 VRP at 574.
2 No. 57260-5-II
S.K. then stepped outside and the door locked behind her. As law enforcement began searching
the premises, a neighbor reported seeing someone run from the house.
While S.K. was still with law enforcement, Posey called her phone. She handed her phone
to law enforcement. Talking with law enforcement on the phone, Posey admitted that he had just
left S.K.’s home, but he insisted that he had done nothing wrong and that he would return with his
attorney.
While at the scene, law enforcement observed that S.K.’s window screen was broken.
S.K. was taken to the hospital. Her injuries included abrasions, bruises, and handprints on
her neck.
Several months later in January 2019, the State charged Posey with one count of first degree
burglary with a special allegation of sexual motivation, one count of second degree rape, and one
count of second degree assault—all alleged as crimes of domestic violence.
II. MOTIONS IN LIMINE
After a long delay, the case proceeded to a jury trial in 2021. Before opening arguments,
Posey moved in limine to exclude any prior bad acts evidence under ER 404(b), including Posey’s
prior juvenile convictions. The State agreed that Posey’s prior juvenile convictions were not
admissible but requested that the trial court reserve ruling on the admissibility of prior interactions
between Posey and S.K.
The State referred to a time when Posey had allegedly sent S.K. a photo of himself holding
what appeared to be a gun and displaying a large amount of money. The State further explained
that Posey had represented to S.K. “on a number[] of occasions that . . . he want[ed] her to be a
prostitute and work for him.” 1 VRP at 62. The State contended that the nature of their relationship
explained why S.K. behaved the why she did when Posey allegedly assaulted her. The State argued
3 No. 57260-5-II
that although propensity evidence is inappropriate, “things that are done to . . . cause a certain
effect on the person . . . should be admissible under [ER] 404(b).” 1 VRP at 62-63.
Posey requested that the trial court reserve ruling on the issue until such evidence was
offered and, if it was, that an offer of proof take place outside the presence of the jury.
The trial court agreed to reserve ruling on the admissibility of the evidence about Posey
sending a photo to S.K. until more information was provided about the incident. The trial court
stated,
Yeah. I think at this point it’s appropriate. I will . . . reserve a ruling on that until such time there[ is] more information to be provided, and then we can, again, handle that outside the presence of the jury.
1 VRP at 63.
The case proceeded to jury selection and opening statements.
III. TRIAL TESTIMONY
Following opening statements, the State began its case. An emergency room nurse, four
law enforcement officers, and S.K. testified consistently with the facts set forth above.
S.K. testified at length about the assault. She explained that after Posey climbed through
her window, Posey grabbed her by the hair, pulled her to the ground, and threw her into a bedroom
dresser. Posey told Garcia (who was in the room) to give him his phone and money, and demanded
that Garcia strip down to his underwear. When S.K. yelled at Posey to leave, he told her that she
was a “stupid b[*]tch.” 4 VRP at 560. Posey slapped S.K. on the right side of her face three or
four times. Eventually, Posey made Garcia leave the house.
Now alone with S.K., Posey began to strangle her. After a few moments, Posey let go of
S.K.’s neck and began dragging S.K. to the kitchen. S.K. tried to run towards the kitchen hoping
to use some of the knives for protection, but Posey caught her by the hair and started strangling
4 No. 57260-5-II
her again. S.K. was able to make it to the back door and screamed for help. S.K. managed to get
out of the house and ran into the street. But Posey chased after her, caught her, and dragged her
back into the house by her hair.
S.K.’s testimony then turned to the rape. She explained that once Posey dragged her back
into the house, he threw her on the couch and asked her whether she had “been with anybody”
since they were last together. 4 VRP at 571. Posey lifted up S.K.’s shirt and checked her for
“hickies because he thought [she] was with [Garcia].” 4 VRP at 595.
S.K. then noticed a shift in Posey’s demeanor, going from angry to quiet and blank.
Terrified and hoping to end the attack, S.K. told Posey that she loved him and pleaded with him to
not hurt her. Posey then asked S.K., “[W]ell, if you really love me why aren’t you with me?”
4 VRP at 572. S.K. told Posey that he had done “too much to [her] in the past.” 4 VRP at 572.
Posey then said, “[L]et’s have sex.” 4 VRP at 572. S.K. said no, but Posey pulled down her pants
anyway. S.K. kept telling Posey, “[N]o” and tried to “cross [her] legs,” but Posey “kept pulling
them open.” 4 VRP at 572. Posey then proceeded to rape S.K. with his fingers while she pleaded
with him to stop.
After describing the assault and rape, S.K. also explained how one of Posey’s friends had
messaged S.K. on social media and offered her $5,000 to drop the charges against Posey. S.K.
rejected the offer.
During cross-examination, defense counsel asked S.K. whether she had sent Posey sex
videos. S.K. denied that she had ever made videos of them having sex, but she said that Posey
had. S.K. said that Posey had recorded those videos about one week after the two had met.
S.K. denied that she gave Posey permission to record the sex videos.
5 No. 57260-5-II
Defense counsel also questioned S.K. about several exhibits that appeared to be social
media messages sent by S.K. to Posey after the State had filed charges against Posey. In the
exhibits, S.K. purportedly used racial slurs to refer to Posey and insinuated that she had made up
the allegations to extort money from him. In one of the exhibits, S.K. also purportedly told Posey
that her allegations would be believed because she was white and Posey was Black. S.K. denied
writing the messages in the exhibits.
The defense then began its case. Posey testified in his own defense and offered a very
different account of what happened. Posey denied committing the burglary, assault, and rape.
According to Posey, S.K. invited him to her house on the day of the incident. Posey stated that he
and S.K. had an “on and off” relationship and on the day of the incident, the relationship was
“[o]n.” 6 VRP at 705, 731.
When he arrived, Posey claimed that he encountered another man leaving the house. Posey
knocked on the door and S.K. answered. Posey said that he did not “necessarily see the condition
that [S.K.] was in” when he arrived, but he later noticed a bruise on her eye. 6 VRP at 707-08. He
asked her about how that happened, and she said that it did not matter because they were not
together anymore. Posey accepted S.K.’s response because it was “none of [his] business” and
“[s]he does what she does. I do what I do.” 6 VRP at 738.
Posey claimed he ran away from law enforcement because he thought the officers were
actually S.K.’s cousin (who Posey claimed had threatened to harm him over a debt). And when
he spoke to law enforcement on the phone shortly after the incident, Posey claimed that he thought
that S.K.’s cousin was impersonating a law enforcement officer.
Posey testified that he received, from S.K., the social media messages that both used racial
slurs and insinuated the allegations were false as an attempt to extort money from him.
6 No. 57260-5-II
Posey also testified about the videos that depicted S.K. and him having sex. In contrast to
S.K.’s testimony, Posey claimed these videos were made with her permission after the alleged
incident, and not two years before.
During Posey’s cross-examination, the State asked whether Posey had ever tried to
intimidate S.K. Posey responded, “No.” 6 VRP at 753. Then, after asking several questions about
a photo of S.K.’s bedroom, the State turned to a proposed exhibit of a photo of Posey holding what
appeared to be a gun and money. Posey explained that the photo was taken at a music-video shoot
and that the gun and money in the photo were not real; they were props for the music video. The
State also asked about the theme of the music video, and Posey responded that it was “hip hop
rap.” 6 VRP at 755. The entire exchange encompassed the following:
[State]: . . . Showing what’s been marked as 25. Who is that in that picture? [Posey]: That’s me. [State]: Who took that picture? [Posey]: [S.K. took the photo.] That’s at my brother’s music video shoot. [State]: Okay. So explain to me what happened in this photograph, what the deal is. [Posey]: I was a stand-in and then that’s me holding money and a weapons prop. [State]: It’s a weapons prop? [Posey]: Yes. [State]: And [S.K.] took that? [Posey]: Yes, she was there. [State]: And she took it at your request? [Posey]: Yeah. [State]: And when did that happen? [Posey]: 2016 . . . end of 2016 beginning of 2017. [State]: So when you-all were together. You and—you-all being you and [S.K.]? [Posey]: Yeah. [State]: And she took that at your request?
7 No. 57260-5-II
[Posey]: Yeah. [State]: And you—that was not a real pistol in your hand? [Posey]: No. [State]: Was it real money? [Posey]: No, it’s prop money. [State]: Okay. So it’s prop money and it’s—the idea is that it’s going to—what’s— what’s the theme of the music video? [Posey]: Just like hip hop rap. [State]: Okay.
6 VRP at 754-55.
Following this exchange, the State offered the exhibit for admission into evidence. Posey
objected, arguing that it was irrelevant since the photo was from 2016. The State responded that
testimony from 2016 had been elicited throughout the trial. The trial court overruled Posey’s
objection and admitted the exhibit. The exhibit was never shown to the jury.
The following day, the State apparently changed its mind about the exhibit. While outside
the presence of the jury, the State expressed second thoughts about having the exhibit in evidence
and offered to have it withdrawn. The State said that it did not intend to mention the exhibit again
during testimony or in closing argument. The following exchange occurred:
[Prosecutor]: So overnight I rethought offering 25 which is the photograph of Mr. Posey holding a pistol and some money. That was perhaps overly aggressive on my part. I asked him if he ever tried to intimidate and he said, No. There are other things I could have done that would have been less drastic, quite frankly. So I’m —I’m just trying to be frank with the [c]ourt. If counsel wants that withdrawn— [Defense counsel]: We do. [Prosecutor]: So—yeah, I don’t intend to mention it in closing either way. He provided an explanation. I wasn’t going to ask anybody else to follow up on anything. But if he wants it withdrawn, I don’t have an issue with that. I think it was a mistake on my part. I was kind of in full mode there and—and having a chance to reflect overnight, I think that’s the right answer.
7 VRP at 846-47.
8 No. 57260-5-II
The trial court withdrew the exhibit from evidence. The State then asked whether there
needed to be some comment about the exhibit or whether it should just be ignored. Defense
counsel responded he did not “need for it to be discussed.” 7 VRP at 847. As a result, the trial
court did not further mention the exhibit and the exhibit was not mentioned again at trial.
IV. JURY INSTRUCTIONS
Following the completion of testimony, the case proceeded to jury instructions.
Throughout the trial, S.K. was referred to by her first name and last name. However, several of
the to-convict jury instructions and one of the special verdict forms referred to S.K. only by her
initials. Posey did not object to the to-convict instructions or the special verdict form.
V. VERDICT, SENTENCE, COMMUNITY CUSTODY CONDITIONS, AND APPEAL
The jury found Posey guilty as charged, except that it rejected the allegation that the
burglary was sexually motivated.
The trial court sentenced Posey to an indeterminate sentence of 136 months to life for the
second degree rape conviction, 75 months for the first degree burglary conviction, and 17 months
for the second degree assault conviction, all to be served concurrently. Three of Posey’s prior
juvenile convictions were included in his offender score.
The trial court also imposed 18 months of community custody on the first degree burglary
and second degree assault convictions, and community custody for life on the second degree rape
conviction. As part of his community custody, the trial court imposed numerous conditions,
including the following:
3. Not possess or consume controlled substances except pursuant to lawfully issued prescriptions[.] ....
9 No. 57260-5-II
8. Consent to DOC [Department of Corrections] home visits to monitor compliance with supervision. Home visits include access for the purposes of visual inspection of all areas of [the] residence in which the offender lives or has exclusive/joint control/access. .... 11. Do not use or consume alcohol and/or Marijuana. 12. Be available for and submit to urinalysis and/or breath[]analysis upon the request of the CCO [community corrections officer] and/or the chemical dependency treatment provider.
Clerk’s Papers (CP) at 162-63.
The trial court also found Posey indigent but imposed a $500 VPA. Community custody
supervision fees were struck from one portion of the judgement and sentence but imposed in
another portion.
Posey appeals.
ANALYSIS
Posey makes the following arguments: (1) the State committed race-based misconduct by
appealing to jurors’ potential racial biases when it asked questions about the photo showing Posey
with the gun and money, (2) he received ineffective assistance of counsel related to his counsel’s
failure to object to these questions, (3) the trial court impermissibly commented on the evidence
when it used S.K.’s initials in the to-convict jury instructions and special verdict form, (4) he
should be resentenced because recent changes to the Sentencing Reform Act of 1981 (SRA),
chapter 9.94A RCW, mean his offender score should not include his previous juvenile convictions,
(5) the trial court erred by imposing two of his community custody conditions, and (6) community
custody supervision fees and the VPA should be stricken from his judgment and sentence.
Each argument will be addressed in turn.
10 No. 57260-5-II
I. RACE-BASED PROSECUTORIAL MISCONDUCT
Posey argues that the State committed race-based prosecutorial misconduct when it
questioned Posey about the photo that depicted him holding a gun and money. While
acknowledging the importance of this issue, we disagree.
A. LEGAL PRINCIPLES
Allegations of race-based prosecutorial misconduct are deeply concerning because “[i]f
justice is not equal for all, it is not justice.” State v. Monday, 171 Wn.2d 667, 680, 257 P.3d
551 (2011). It is particularly damaging when the prosecutor, as a representative of the State,
introduces racial discrimination or bias into the jury system. State v. Zamora, 199 Wn.2d 698,
710, 512 P.3d 512 (2022). A prosecutor has a duty to ensure that a defendant’s constitutional
rights to a fair trial are not violated. Id. When a prosecutor resorts to racist argument and appeals
to racial stereotypes or racial bias to achieve convictions, a prosecutor gravely violates a
defendant’s right to an impartial jury. Monday, 171 Wn.2d at 676. Allowing racial bias to infringe
upon the jury system at any stage of a criminal proceeding damages the jury’s role as a pivotal
check against wrongful State action. Zamora, 199 Wn.2d at 711.
When allegations of prosecutorial misconduct implicate racial bias, we apply a separate
test that is distinct from the test for prosecutorial misconduct allegations not involving racial bias.
Id. at 709. A separate test is applied because such bias in the justice system undermines the
principle of equal justice and is repugnant to the concept of an impartial trial. Id. We reverse a
defendant’s conviction when a prosecutor “ ‘flagrantly or apparently intentionally appeals to racial
bias in a way that undermines the defendant’s credibility or the presumption of innocence’ . . . .”
Id. (quoting Monday, 171 Wn.2d at 680). Defense counsel’s failure to object is irrelevant to claims
of race-based prosecutorial misconduct because a defendant’s right to a fair trial cannot be waived.
11 No. 57260-5-II
Id. at 717. Once a court has concluded that a prosecutor’s conduct flagrantly or apparently
intentionally appealed to jurors’ racial bias, it cannot be cured and is per se prejudicial. State v.
Bagby, 200 Wn.2d 777, 803, 522 P.3d 982 (2023) (lead opinion of Montoya-Lewis, J.); id. at
804-805, (Stephens, J., concurring); Zamora 199 Wn.2d at 722.
But not all references to race are improper. In re Pers. Restraint of Sandoval, 189 Wn.2d
811, 834, 408 P.3d 675 (2018). The issue of whether a prosecutor flagrantly or apparently
intentionally appealed to jurors’ racial bias is analyzed objectively. Zamora, 199 Wn.2d at 716.
Thus, we determine whether an objective observer could view the prosecutor’s questions and
comments as an appeal to jurors’ potential prejudice, bias, or stereotypes in a manner that
undermined the defendant’s credibility or the presumption of innocence. Id. at 718.
An “objective observer” is an individual “who is aware of the history of race and ethnic
discrimination in the United States and aware of implicit, institutional, and unconscious biases, in
addition to purposeful discrimination.” Id. With this objective observer standard, we consider the
four Bagby factors: (1) the content and subject of the statements, (2) the frequency of the remarks,
(3) the apparent purpose of the statements, and (4) whether the comments were based on evidence
or reasonable inferences in the record. 200 Wn.2d at 793.
B. APPLICATION
Posey argues that the State “flagrantly or apparently intentionally” appealed to the jurors’
potential implicit bias against Black men by asking Posey about the photo that showed him holding
a fake gun and money. Posey contends that the content and subject matter of the questions showed
that the State was evoking the racist stereotype that Black men are dangerous. Even though the
photo was not seen by the jury, Posey argues that specific questions were intentionally provocative
of these stereotypes, including asking whether Posey was holding “a real pistol,” whether Posey
12 No. 57260-5-II
was holding “real money,” and about the theme of the music video. Br. of Appellant at
31 (emphasis omitted). These questions, according to Posey, all built the image of Posey in the
minds of the jurors of a young Black man who “flaunts money and values violence.” Br. of
Appellant at 40. Posey argues that the purpose to appeal to the implicit racial biases is apparent
because there was no other relevant purpose for the photo.2
We begin our analysis with the four Bagby factors.
With Bagby’s first factor, the content and subject matter of the questions, Posey has his
strongest argument. Although the State’s questions did not specifically mention race or ethnicity,
the questions were about an actual photo of Posey, a young Black man, holding what appeared to
be a gun and money. The photo itself was not shown to the jury, but the State’s questions, asking
whether Posey had a “real pistol” in his hand and “real money,” and soliciting that the theme of
the music video was “hip hop rap,” elicited responses that likely painted an accurate picture for
the jury of what the photo depicted. 6 VRP at 755. Viewing this first Bagby factor in isolation,
the questioning could have evoked images consistent with the harmful stereotype that young Black
men are dangerous. Posey’s concern about these themes has merit.
2 At oral argument before this court, the State argued that the questions about the photo should not be analyzed under the race-based prosecutorial misconduct framework because “the prosecutor made no reference of race” in their questions about the photo. Wash. Ct. of Appeals oral arg., State v. Posey, No. 57260-5-II (Sept. 4, 2024), at 13 min., 49 sec. through 13 min., 52 sec., video recording by TVW, Washington State’s Public Affairs Network, https://tvw.org/video/division-2- court-of-appeals-2024091156/?eventID=2024091156.
We reject the contention that an explicit “reference of race” is necessary before there can be a claim for race-based prosecutorial misconduct. Zamora, 199 Wn.2d at 714-15 (“Courts must be vigilant of conduct that appears to appeal to racial or ethnic bias even when not expressly referencing race or ethnicity, . . . . subtle references to racial bias are ‘just as insidious’ and ‘[p]erhaps more effective.’ ” (second alteration in original) (quoting Monday, 171 Wn.2d at 678)).
13 No. 57260-5-II
But Bagby instructs that we do not stop our analysis at this first factor. See 200 Wn.2d at
796-99. The second, third, and fourth factors from Bagby require an analysis of “the frequency of
the remarks, the apparent purpose of the statements, and whether the comments were based on
evidence or reasonable inferences.” Id. at 793. This is where Posey’s argument fails.
With respect to the second Bagby factor, the remarks were not voluminous and were not
repeated. The State asked Posey 12 questions about the photo, which constituted one and a half
pages of testimony in a multiday trial that included nearly 500 pages of testimony. Of those
12 questions, only 5 referenced or elicited testimony about guns, money, or hip hop music. And
Posey’s responses to the questions explained the benign origin of the photo—that it was taken by
S.K. at a music-video shoot—further minimizing the questioning’s impact. Moreover, the State
did not reference the photo or Posey’s responses at any other point during the trial. Considering
that the trial involved 5 days of testimony with multiple witnesses, the arguable references to race
and ethnicity were minor and few in number.
With respect to the third Bagby factor, the apparent purpose of the questions appeared to
be unrelated to provoking racial stereotypes. The State had preceded the questioning about the
photo by asking Posey whether he had ever attempted to “intimidate” S.K. to which Posey
answered, “No.” 6 VRP at 752-53. With questions about the photo coming in such close proximity
to that denial by Posey, the apparent purpose was impeachment—that is, that the State was trying
to show that Posey had actually attempted to intimidate S.K. by sending her a photo of himself
holding a gun.
And as for the fourth Bagby factor, the State’s questions were clearly tied concretely to
evidence. The State’s remarks were not arguments untethered to potential evidence; rather, they
14 No. 57260-5-II
were questions literally about an actual photo of Posey. There were no argumentative assertions
or rhetorical appeals tied to the photo, and the photo was never referenced by either party again.
As instructed by our Supreme Court, we must endeavor to eradicate racial bias from the
legal system. Posey alleges that such racial bias infected his trial and he argues persuasively that
the issues potentially raised by the photo deserve careful consideration. However, when all the
circumstances are viewed collectively within the framework of the four Bagby factors, we
conclude that an objective observer could not view the prosecutor’s questions and comments as a
flagrantly or apparently intentionally appeal to potential racial prejudice, bias, or stereotypes in a
manner that undermined Posey’s credibility or the presumption of innocence. Therefore, we hold
that the State did not commit race-based prosecutorial misconduct.3
3 Separate from his race-based prosecutorial misconduct argument, Posey also appears to be possibly arguing that the State committed prosecutorial misconduct by violating the trial court’s motion in limine ruling that any prior bad acts evidence would first need to be heard outside the jury’s presence. If Posey is making this as a separate argument, we disagree.
This argument appears to be about a procedural violation—that the State disregarded the trial court’s motion in limine ruling. In a non-race-based prosecutorial misconduct claim, if the defendant fails to object to the State’s remarks at trial, any error regarding prosecutorial misconduct is deemed to have been waived unless the misconduct was “so flagrant and ill intentioned that [a jury] instruction could not have cured the resulting prejudice.” State v. Emery, 174 Wn.2d 741, 760-61, 278 P.3d 653 (2012).
Here, Posey did not object when the State did not make an offer of proof outside the presence of the jury about the photograph, which means he must make the higher showing of “so flagrant and ill intentioned that [a jury] instruction could not have cured the resulting prejudice.” Id. But Posey provides no analysis of the application of these standards for non-race-based prosecutorial misconduct. Thus, to the extent Posey is attempting to make this argument (separately from his race-based misconduct argument), we do not further consider it. State v. Elliott, 114 Wn.2d 6, 15, 785 P.2d 440 (1990) (court need not consider claims that are insufficiently argued).
15 No. 57260-5-II
II. INEFFECTIVE ASSISTANCE OF COUNSEL
Related to the same photo showing him holding a gun, Posey argues that he received
ineffective assistance of counsel based on his counsel’s failure to object to the prosecutor’s
questions about the photo. We disagree.
To show ineffective assistance of counsel, the defendant must demonstrate (1) that their
counsel’s performance was deficient and (2) that the deficient performance prejudiced the
defendant. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984);
In re Pers. Restraint of Yates, 177 Wn.2d 1, 35, 296 P.3d 872 (2013). Failure to establish either
prong is fatal to the claim. Strickland, 466 U.S. at 700.
To show prejudice—the second prong of the Strickland test—the defendant must
demonstrate a reasonable probability that the outcome of the proceeding would have been different
if counsel had not performed deficiently. See State v. Bertrand, 3 Wn.3d 116, 129, 546 P.3d
1020 (2024).
Here, Posey contends he can meet the requirement for prejudice because the case largely
came down to making credibility determinations about S.K. and Posey. He asserts that the State’s
questions about the photo led the jury to find that Posey’s testimony was not credible based on
implicit racial bias. But for that illegitimate damage to his credibility, Posey argues the jury would
have found reasonable doubt.
Posey’s attempt to demonstrate prejudice is unpersuasive. The questioning about the photo
was minor in the context of the entire trial. As discussed above, the questioning was merely
12 questions in the course of a multiday trial with multiple witnesses, and Posey’s answers to these
few questions provided a benign explanation which would have softened any effect it may have
otherwise had. In addition, the photo was never shown to the jury nor was it ever referenced again
16 No. 57260-5-II
by either party. Although Posey’s concern about implicit bias has merit, under these narrow
circumstances, Posey cannot show a reasonable probability that the outcome of the proceeding
would have been different. Because Posey cannot demonstrate prejudice, his ineffective assistance
of counsel claim fails.
III. COMMENT ON THE EVIDENCE
Posey argues that when S.K.’s initials were used in the to-convict jury instructions and the
special verdict form, the trial court made an impermissible comment on the evidence. The State
argues that the use of S.K.’s initials did not amount to a judicial comment on the evidence. We
agree with the State.4
The purpose of prohibiting judicial comments on the evidence “is to prevent the jury from
being influenced by knowledge conveyed to it by the court as to the court’s opinion of the evidence
submitted.” State v. Elmore, 139 Wn.2d 250, 275, 985 P.2d 289 (1999). Article IV, section 16 of
our state’s constitution provides, “Judges shall not charge juries with respect to matters of fact, nor
comment thereon, but shall declare the law.” This provision prohibits a judge “from expressing to
the jury his or her personal attitudes regarding the merits of the case or instructing the jury that
issues of fact have been established as a matter of law.” State v. Gouley, 19 Wn. App. 2d 185,
197, 494 P.3d 458 (2021), review denied, 198 Wn.2d 1041 (2022). The critical inquiry underlying
4 The State also argues that Posey failed to preserve this argument by not objecting below. However, a judicial comment on the evidence is generally an error of constitutional magnitude that a defendant may raise for the first time on appeal. State v. Levy, 156 Wn.2d 709, 719-720, 132 P.3d 1076 (2006).
17 No. 57260-5-II
our analysis is whether the mention of a fact in a jury instruction “conveys the idea that the fact
has been accepted by the court as true.” State v. Levy, 156 Wn.2d 709, 726, 132 P.3d 1076 (2006).
We review de novo whether a jury instruction amounts to a judicial comment on the
evidence in the context of the instructions as a whole. Id. at 721.
Posey’s argument that the trial court impermissibly commented on the evidence is rooted
in his assertion that the use of initials, by itself, communicates to the jury that the trial court has
prejudged the case—that the trial court has already decided that S.K. is a credible victim, not just
an alleged victim.
Posey exaggerates the effects of initials. In State v. Mansour, the defendant challenged his
child molestation conviction, arguing, like Posey, that using the victim’s initials “A.M.” instead
of the person’s name constituted a judicial comment on the evidence. 14 Wn. App. 2d 323,
328-29, 470 P.3d 543 (2020), review denied, 196 Wn.2d 1040 (2021). Division One disagreed,
reasoning that the name of the victim was not a factual issue requiring resolution. Id. at 329.
Division One also rejected the argument that initials conveyed anything about the merits of the
allegations, explaining,
[A] juror would likely not presume that A.M. was a victim—or believe the court considered her one—merely because the court chose to use A.M.’s initials. Indeed, we have observed that even the court’s use of the term “victim” has “ordinarily been held not to convey to the jury the court’s personal opinion of the case.” Therefore, we are unpersuaded that the use of A.M.’s initials in the to-convict instruction conveyed anything to the jury about the judge’s “personal attitudes toward the merits of the case,” much less that the judge considered A.M. a victim.
Id. at 330 (internal quotation marks omitted) (quoting, State v. Alger, 31 Wn. App. 244, 249,
640 P.2d 44 (1982); Levy, 156 Wn.2d at 721).
18 No. 57260-5-II
Posey contends Mansour was wrongly decided, but we are persuaded by Division One’s
reasoning. Like in Mansour, S.K.’s name was not a factual issue requiring resolution, and a juror
would likely not presume that use of the initials, by itself, was conveying the trial court’s personal
opinion of the merits of the case. Thus, we hold that the use of S.K.’s initials in the
to-convict instructions and the special verdict form did not constitute a judicial comment on the
evidence.
IV. OFFENDER SCORE
Posey argues that we should remand for resentencing because recent changes to
RCW 9.94A.525(1)(b) mean his offender score should not include his previous juvenile
convictions. We disagree.
A. STANDARD OF REVIEW
Statutory interpretation is a question of law that we review de novo. Lakeside Indus., Inc.
v. Dep’t of Revenue, 1 Wn.3d 150, 155, 524 P.3d 639 (2023). The goal of statutory interpretation
is to carry out the legislature’s intent. Leishman v. Ogden Murphy Wallace, PLLC, 196 Wn.2d
898, 904, 479 P.3d 688 (2021). We must give effect to the plain meaning of a statute as an
expression of legislative intent where possible. Id. If the plain language of the statute is
unambiguous, our inquiry is over. Id.
B. CHANGE IN THE LAW REGARDING JUVENILE CONVICTIONS
When the trial court sentenced Posey, it included his prior juvenile convictions in his
offender score. At the time Posey was convicted and sentenced, this was consistent with the SRA
because former RCW 9.94A.525 (2017) provided that prior juvenile convictions were included in
a defendant’s offender score.
19 No. 57260-5-II
But in 2023, after Posey was sentenced, the legislature amended RCW 9.94A.525 to
remove, in most situations, juvenile convictions from offender scores. RCW 9.94A.525(1)(b).
This amendment became effective on July 23, 2023. LAWS OF 2023, ch. 415, § 2.
Whether this amendment should be applied to Posey while his case is on appeal depends
on whether this amendment applies to crimes committed only after its effective date or whether it
also applies to pending cases that are not final.
Because determining the appropriate legal punishments for criminal offenses is generally
a legislative function, not a judiciary function, sentences are generally imposed in accordance with
the law in effect at the time of the offense. State v. Tester, 30 Wn. App. 2d 650, 655, 546 P.3d 94
(2024). This principle can be seen in both the “timing statute” and the “savings clause statute.”
Id. at 654; State v. Dean, 113 Wn. App. 691, 695, 54 P.3d 243 (2002) (referring to RCW 9.94A.345
as “timing statute”), review denied, 149 Wn.2d 1009 (2003).
The timing statute provides that, in general, when sentencing a defendant, the applicable
law is the law in effect at the time the offense was committed; it states:
Except as otherwise provided in [the SRA], any sentence imposed under this chapter shall be determined in accordance with the law in effect when the current offense was committed.
RCW 9.94A.345 (emphasis added).
Similarly, the savings clause statute provides that even if a criminal statute has been
amended after a criminal act, the version of the statute effective at the time of the act is applied,
unless a “contrary intention” is explicitly declared in the amendment; it states:
Whenever any criminal or penal statute shall be amended or repealed, all offenses committed or penalties or forfeitures incurred while it was in force shall be punished or enforced as if it were in force, notwithstanding such amendment or repeal, unless a contrary intention is expressly declared in the amendatory or repealing act, and every such amendatory or repealing statute shall be so construed
20 No. 57260-5-II
as to save all criminal and penal proceedings, and proceedings to recover forfeitures, pending at the time of its enactment, unless a contrary intention is expressly declared therein.
RCW 10.01.040 (emphasis added).
C. APPLICATION
Posey argues that the amendment to RCW 9.94A.525 applies to his case on appeal such
that he should be resentenced without the inclusion of his juvenile convictions in his offender
score. He contends that the timing statute and the savings clause statute do not apply because the
plain language of the amendment “ ‘fairly convey[s]’ ” its intention to apply to pending cases that
are not final. Br. of Appellant at 62 (quoting State v. Jenks, 197 Wn.2d 708, 720, 487 P.3d 482
(2021)). Posey points to language from the amendment stating that the legislature intended to
facilitate rehabilitation, reintegration, and due process, and to recognize the research on juvenile
brains and the disproportionate impact of juvenile convictions on adult sentences. Unless the
amendment is applied to pending cases, Posey argues that “the law will not remedy the injustice it
was aimed at remedying.” Br. of Appellant at 63. Posey also argues that the amendment is
remedial, and “ ‘[r]emedial statutes are generally enforced as soon as they are effective, even if
they relate to transactions predating their enactment.’ ” Br. of Appellant at 64 (quoting State v.
Pillatos, 159 Wn.2d 459, 473, 150 P.3d 1130 (2007)). We disagree.
Recent cases have addressed and rejected these same arguments about the amendment to
RCW 9.94A.525(1). Tester, 30 Wn. App. 2d at 657-59; State v. Troutman, 30 Wn. App. 2d 592,
594, 546 P.3d 458 (2024). In Troutman, the defendant argued that the amendment to
RCW 9.94A.525(1) applied to her case pending appeal by pointing to the same language as Posey
in the intent section and asserting that it expressed a legislative intent that the amendment should
apply to pending cases on appeal. 30 Wn. App. 2d at 599. Division One rejected the defendant’s
21 No. 57260-5-II
argument, reasoning that the plain language of the intent section of the statute “says nothing about
retroactivity.” Id.
Similarly, in Tester, this court addressed the argument that RCW 9.94A.525(1)(b) is a
remedial statute that should be applied to a case on appeal. 30 Wn. App. 2d at 658-59. There, the
defendant argued, like Posey, that RCW 9.94A.525(1)(b) is a remedial statute because it involved
a procedural change. Id. at 658. In rejecting this argument, this court noted that “ ‘changes to
criminal punishments are substantive, not procedural,’ ” and regardless, whether an amendment is
remedial is irrelevant when the law is subject to the savings clause statute. Id. at 658-59 (quoting
Jenks, 197 Wn.2d at 721).
Here, Posey makes the same arguments as the defendants in Troutman and Tester. And
we see no basis to depart from the rationale of either case. The intent provision of the amendments
does not mention retroactivity or express a “contrary intention” from the application of the savings
clause statute and, therefore, does not show that the legislature intended for the law to apply to
pending cases. Tester, 30 Wn. App. 2d at 655; Troutman, 30 Wn. App. 2d at 599-600. And the
amendment constituted a substantive change to criminal punishment, not a procedural change.
Tester, 30 Wn. App. 2d at 658.
We conclude, like the Tester and Troutman courts, that the legislature did not express an
intent to avoid the application of the savings clause statute when it amended RCW 9.94A.525(1).
Thus, because the savings clause statute applies, we hold that Posey is not entitled to be
resentenced with the benefit of this amendment.
V. COMMUNITY CUSTODY CONDITIONS
Posey argues that two of his community custody conditions must be stricken. First, Posey
argues that condition 8, requiring that he consent to searches of his home, is unconstitutionally
22 No. 57260-5-II
overbroad in violation of article I, section 7 of the Washington Constitution. Second, Posey
contends that condition 12, requiring Posey to submit to breath and urine tests, must be stricken
because it is not crime related.
We disagree.
A. CONDITION 8: CONSENT TO HOME VISITS
Posey contends that community custody condition 8 is overbroad and violates his
constitutional right not to have his private affairs disturbed without authority of law. Condition 8
provides:
8. Consent to DOC home visits to monitor compliance with supervision. Home visits include access for the purposes of visual inspection of all areas of [the] residence in which the offender lives or has exclusive/joint control/access.
CP at 162.
Posey argues that for a search like this to be constitutional, a CCO must have reasonable
cause to believe the supervised person has violated a condition or requirement of the sentence and
there must be a nexus between the property sought to be searched and the alleged violation.
The State claims that Posey’s challenge to this condition is not ripe for review, citing State
v. Cates, 183 Wn.2d 531, 354 P.3d 832 (2015). We agree.
A preenforcement challenge to a community custody condition is ripe for review if “ ‘the
issues raised are primarily legal, do not require further factual development, and the challenged
action is final.’ ” Id. at 534 (internal quotation marks omitted) (quoting State v. Sanchez Valencia,
169 Wn.2d 782, 786, 239 P.3d 1059 (2010)). “[W]e must consider the hardship to the [defendant]
if we refused to review [the] challenge on direct appeal.” Sanchez Valencia, 169 Wn.2d at 789.
In Cates, the defendant was convicted of sexual assault crimes. 183 Wn.2d at 533. On
appeal, the defendant challenged a condition of community custody, which read, “You must
23 No. 57260-5-II
consent to [DOC] home visits to monitor your compliance with supervision. Home visits include
access for the purposes of visual inspection of all areas of the residence in which you live or have
exclusive/joint control/access, to also include computers which you have access to.” Id. (internal
quotation marks omitted).
Our Supreme Court declined to decide the merits of the case because it determined the
issue was not ripe. Id. at 536. The court reasoned that “[t]he condition as written [did] not
authorize any searches . . . .” and that the risk of hardship to the defendant was insufficient. Id. at
535-36. Distinguishing other cases involving conditions that imposed requirements on defendants
immediately upon release from prison, the Cates court emphasized that complying with the
particular condition did not require the defendant to do, or refrain from doing, anything upon his
release until the State actually conducted a home visit. Id. at 536. Accordingly, the court
concluded that the defendant would not suffer hardship if it declined to review the merits of the
defendant’s argument. Id.
Here, Posey argues we should not follow Cates, but offers no persuasive explanation of
how his condition is different from the condition discussed in Cates. Thus, we are compelled to
follow Cates and conclude that the issue is not ripe for review.
B. CONDITION 12: BREATH AND URINE TESTING CONDITION
Posey next challenges condition 12, which reads as follows:
12. Be available for and submit to urinalysis and/or breath[]analysis upon the request of the CCO and/or the chemical dependency treatment provider.
CP at 163.
24 No. 57260-5-II
Posey argues that this condition must be stricken because it is not crime related. The State
concedes the issue and agrees with Posey that condition 12 should be stricken because neither
drugs or alcohol were alleged to have contributed to the offenses.
We do not accept the State’s concession. See State v. Lewis, 62 Wn. App. 350, 351,
814 P.2d 232, review denied, 118 Wn.2d 1003 (1991) (court not bound to accept erroneous State
concession). The challenged condition did not need to be crime related—it is a permissible
condition to enforce community custody conditions 3 and 11, which prohibit the consumption of
drugs and alcohol.
The sentencing court may impose crime-related conditions. Under the SRA, “the court
may order an offender to . . . [c]omply with any crime-related prohibitions” in its discretion “[a]s
part of any term of community custody.” RCW 9.94A.703(3)(f); see also RCW 9.94A.505(9)
(granting the court authority to impose crime-related conditions “[a]s a part of any sentence”).
But there are a limited number of community custody conditions that the trial court can
impose regardless of their connection to the crime, including prohibiting the use of drugs or
alcohol. RCW 9.94A.703(2)(c) (“Unless waived by the court, as part of any term of community
custody, the court shall order an offender to . . . [r]efrain from possessing or consuming controlled
substances except pursuant to lawfully issued prescriptions.”); RCW 9.94A.703(3)(e) (“As part of
any term of community custody, the court may order an offender to . . . [r]efrain from possessing
or consuming alcohol.”); State v. Jones, 118 Wn. App. 199, 207, 76 P.3d 258 (2003) (trial court is
permitted to prohibit consumption of alcohol regardless of connection to the crime).
If these prohibitions are ordered, the trial court has the authority to impose testing to
enforce compliance with them. See State v. Vant, 145 Wn. App. 592, 603-04, 186 P.3d 1149
(2008) (holding that the sentencing court has authority to impose random urinalysis and breath
25 No. 57260-5-II
analysis to monitor compliance with valid conditions). This includes imposing breath and urine
testing. See id.
Here, in two separate community custody conditions, the trial court imposed prohibitions
on Posey’s consumption of drugs and alcohol—conditions he does not challenge on appeal. CP at
162-63 (Condition 3: Do “[n]ot possess or consume controlled substances except pursuant to
lawfully issued prescriptions” and condition 11: “Do not use or consume alcohol and/or
Marijuana.”). Once imposed, the trial court was entitled to impose the breath and urine testing
condition in order to enforce the drug and alcohol conditions regardless of their connection to the
crimes. Thus, we affirm the imposition of condition 12.
VI. IMPOSITION OF LEGAL FINANCIAL OBLIGATIONS
Posey argues that after the trial court found him indigent, one portion of his judgment and
sentence erroneously imposed community custody supervision fees, and therefore, we should
remand for the trial court to strike this reference. He also argues that the VPA should be stricken.
The State concedes that the case should be remanded for the trial court to strike the supervision
fees and the VPA.
We accept the State’s concession. Community custody supervision fees are no longer
authorized by statute and the VPA is no longer authorized for indigent defendants. State v. Ellis,
27 Wn. App. 2d 1, 16-17, 530 P.3d 1048 (2023). Accordingly, we remand to the trial court to
strike the community custody supervision fees and the VPA.
26 No. 57260-5-II
CONCLUSION
We remand for the trial court to strike the community custody supervision fees and the
VPA. Otherwise, we reject Posey’s arguments and affirm his convictions.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,
it is so ordered.
PRICE, J. We concur:
VELJACIC, A.C.J.
CHE, J.