FILED JULY 6, 2017 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, )
I I V. Respondent, ) ) ) ) No. 33935-1-111
) DALE EUGENE WILSON, ) UNPUBLISHED OPINION ) Appellant. )
FEARING, C.J. - Dale Wilson challenges his conviction for first degree rape of a
child and his sentence that imposes legal financial obligations (LFOs). We affirm his
conviction, but remand to the trial court to conduct an individualized inquiry into
Wilson's ability to pay discretionary legal financial obligations.
FACTS
This prosecution arises from contact between Dale Wilson, a Bellingham resident,
and a minor girl, Betty Lewis, an East Wenatchee denizen. Dale Wilson was the
boyfriend of Laurie Lund, the custodian of Betty. Betty Lewis is a pseudonym.
Betty Lewis was born on October 7, 2005. After her mother died in 2009, she and
her brother lived with their aunt, Laurie Lund, in East Wenatchee. Betty was four and
I No. 33935-1-III State v. Wilson
Betty's brother was seven when they came to live with Lund. Lund began dating Dale
Wilson in October 2012.
Upon the commencement of their relationship in October 2012, Dale Wilson
visited Laurie Lund in East Wenatchee most weekends. When Wilson visited, Lund
occasionally left him alone with Betty and her brother. Lund worked at an orchard from
June to October 2013. On some occasions, when Lund worked, the two children stayed
home alone with Wilson.
Dale Wilson and Laurie Lund vacationed in Canada from June 4 to June 21, 2014.
In the couple's absence, Betty Lewis and her brother resided with Lund's sister, Julie
Bowers, in Odessa. While in Odessa, Betty and her teenage cousin visited a park where
Betty asked the cousin if she could hold a secret. Betty then disclosed that Dale Wilson
taught her about sex, including the act of a man placing his penis in the three main female
holes. When mentioning holes, Betty pointed to her mouth, buttocks, and vagina. Betty
told her cousin about sexual contact with Wilson. She informed her cousin that she
disclosed the information because she considered Wilson's conduct to be wrong and she
could not keep the conduct a secret anymore. The sexual contact happened when she was
in the second or third grade.
The teenage cousin escorted Betty to the cousin's home. The cousin ushered Betty
into her mother's room and told Betty to repeat to Aunt Julie what Betty told her. Betty
repeated her story to Julie Bowers. On a later day, Bowers asked Betty to repeat the
2 No. 33935-1-III State v. Wilson
description of Dale Wilson's conduct, and Betty recounted the narrative in the same
order. Betty added that a man squirted, but Wilson did not squirt in or on her.
On June 21, Dale Wilson and Laurie Lund retrieved Betty and her older brother
from Julie Bowers. Bowers then informed Lund about sexual contact between Betty and
Wilson. Lund and Wilson, with the two children, returned to East Wenatchee. Lund did
not talk about Betty's allegations between June 21 and 24, when Wilson returned to his
home in Bellingham.
On June 25, Laurie Lund spoke to Betty about what Betty told Betty's Aunt Julie.
Betty responded that Wilson taught her about sex, inserted his penis in her mouth, and
demonstrated how men squirt. Wilson warned Betty that, if she informed anyone about
his conduct, no one would believe her, and she would undergo a spanking. Betty
declared that Wilson performed sex acts with Lund absent from the home. Wilson
showed her videos of women sucking men's penises.
Days later Laurie Lund telephoned Dale Wilson and confronted him with Betty
Lewis' disclosures. Wilson denied Betty's accusations. He expressed shock and listed
reasons for Betty fabricating her stories. Wilson alleged that Betty's grandfather, John
Royce, performed sex acts on her and someone else spoke to Betty about sex. Royce had
attempted years earlier to sexually abuse his daughter, Laurie Lund. Royce lived in
Tonasket, where Betty formerly lived, but he last saw Betty in 2011. John Royce is also
a pseudonym.
3 No. 33935-1-III State v. Wilson
Laurie Lund reported the sexual conduct of Dale Wilson toward Betty Lewis to
law enforcement. On June 27, 2014, East Wenatchee Police Detective Darrin Darnell
investigated the allegations. Darnell searched for DNA and semen on the bathroom
counter, where Wilson allegedly ejaculated, and for pornographic videos on the computer
laptops of Lund and Wilson. Detective Darnell discovered no DNA, semen, or explicit
videos.
Detective Darrin Darnell interviewed Betty Lewis in the presence of Laurie Lund.
Betty attended second grade and was eight years old at the time of the June interview.
Betty disclosed that Wilson described sex to her and the portrayals included boy's use of
their penises around girls. Betty added that Wilson showed her videos showing naked
people. Betty insisted she did not fabricate her report to punish Wilson. Throughout the
interview, Betty's account remained consistent. The detective also interviewed Betty's
cousin and Julie Bowers.
PROCEDURE
The State of Washington charged Dale Wilson with one count of first degree rape
of a child. He stipulated to the admissibility of child hearsay statements in exchange for
the State's recommendation, if the jury convicted, of a low-end standard range sentence
of ninety-three months.
At the outset of voir dire, the court asked the jury panel several general questions,
the second being, "[h]ave you, a close friend or relative had experience with a similar or
4 No. 33935-1-III State v. Wilson
related type of case or incident?" Report of Proceedings (RP) (Oct. 7, 2015 - voir dire) at
10. If a juror raised his or her card, the judge further asked: "would that affect your
ability to be fair and impartial?" RP (Oct. 7, 2015 - voir dire) at 10. Several panel
members raised a card. The first two jurors lifting a card rendered equivocal answers,
and the trial court informed the jurors that attorneys would inquire further.
Juror 31, the third to be addressed by the judge, disclosed that she "was molested
as a child-and I would-I can't say that it would affect my decision or, or not, but,
so ... " RP (Oct. 7, 2015 - voir dire) at 11. The next juror 33, indicated that, as a victim
of rape who suffers from posttraumatic stress disorder, he would not be fair and impartial.
At defense counsel's request, the trial court excused juror 33 from jury service.
Later during voir dire, defense counsel questioned juror 31 and asked if she could
be fair and impartial despite her childhood experience. Juror 31 answered, "I believe I
can be fair and impartial." RP (Oct. 7, 2015 - voir dire) at 66. Defense counsel
continued his questioning of juror 31 at length. Juror 31 agreed with counsel that first
"perception isn't always accurate." RP (Oct. 7, 2015 - voir dire) at 68.
The trial court excused nine jurors for cause because each indicated he or she
could not be fair and impartial due to the nature of the allegations or his or her personal
experience with sexual abuse. The court excused six venire people before the
questioning of juror 31 and three after the questioning. The trial court excused juror 33
because of posttraumatic stress disorder from sexual molestation as a child; Juror 41
5 No. 33935-1-111 State v. Wilson
because of the sexual molestation of her daughters; juror 8 because of an emotional
reaction during questioning; juror 20 because of an inability to listen to graphic evidence;
juror 2 because of being an incest survivor and therapist for child sexual assault victims;
juror 42 because his fiance's son suffered molestation; juror 13 because he formed an
opinion and made a judgment of Dale Wilson during voir dire; and juror 28 because of
his predilection to believe the child's accusations before hearing the evidence. The trial
court also excused two additional panel members for other reasons: juror 22 because of a
family member's health situation; and juror 1 because of his strong slant in favor oflaw
enforcement officers. Defense counsel neither challenged juror 31 for cause, nor
exercised a preemptory challenge to remove juror 3 1.
During trial, Betty Lewis testified that Dale Wilson came to her family house and
made her suck his penis more than once. Wilson testified in his own defense. He stated
he learned of Betty's allegations on June 25, 2014. Wilson testified he did not stick his
penis in Betty's mouth or otherwise molest her.
The jury convicted Dale Wilson as charged. At the sentencing hearing, the State
recommended legal financial obligations, and Wilson registered no objection. The trial
court imposed the recommended obligations of a $500.00 victim assessment, $846.10 in
court costs, $500.00 for FCM/MTH, and a DNA collection fee of $100.00. The court
costs included a $200.00 criminal filing fee, $396.10 in witness costs, and a $250.00 jury
demand fee. The court set monthly payments at $25.00.
6 No. 33935-1-III State v. Wilson
In the discussion about the defense's expert witness costs, defense counsel stated:
I'm guessing it's somewhere around 1,500 bucks, somewhere around there, and if the Court wants to assess that along with the rest of the legal financial obligations, Mr. Wilson's presumably going to be incarcerated for quite some time and wouldn't be able to start making payments on any of that until he got out.
RP (Nov. 30, 2015) at 494. The trial court discussed language in the judgment and
sentence that required Wilson to pay the costs of polygraph exams. The court
commented that the legislature will enact a bill to abolish legal financial obligations, and
so the sentencing court did not require payment of the costs of polygraph examinations.
As to payment of assessed financial obligations, the trial court commented:
Obviously while you're in prison if you work, they'll send me a $1.43 or something to that effect, so we won't violate you for not paying while you're in prison. Once you get out of prison, then we'll take a look at your finances at that time.
RP (Nov. 30, 2015) at 503.
Dale Wilson, on his counsel's advice, did not allocute. The court sentenced him
within the standard range to a minimum term of ninety-three months and a maximum of
life.
LAW AND ANALYSIS
Issue 1: Did Dale Wilson receive ineffective assistance of counsel when his trial
counsel did not challenge juror 31 for cause, after the juror disclosed she was molested
7 No. 33935-1-111 State v. Wilson
as a child, could not answer whether her childhood decision would impact her, and
declared that her initial gut feeling about the child rape case was poor?
Answer 1: No.
Dale Wilson contends that his trial counsel was ineffective because counsel failed
to object to the seating of juror 31, who had been molested as a child. The State responds
that Wilson's counsel did not provide ineffective assistance because juror 31 was
rehabilitated and said that she could be impartial. The State emphasizes that trial counsel
removed nine other jurors who indicated that they could not be impartial. We agree with
the State.
The Sixth Amendment to the United States Constitution guarantees defendants the
right to legal counsel in criminal trials. Like the federal constitution, Washington's
Constitution also grants an accused, in a criminal prosecution, the right to appear by
counsel. CONST. art. I, § 22. The right to counsel under the state and federal
constitutions are coextensive. State v. Long, 104 Wn.2d 285, 288, 705 P.2d 245 (1985).
To meaningfully protect an accused's right to counsel, an accused is entitled to
"effective assistance of counsel." Strickland v. Washington, 466 U.S. 668, 104 S. Ct.
2052, 80 L. Ed. 2d 67 4 ( 1984 ). Courts apply a two-pronged test to determine if counsel
provided effective assistance: (1) whether counsel performed deficiently, and (2) whether
the deficient performance prejudiced the defendant. Strickland v. Washington, 466 U.S.
at 690-92. If a defendant fails to establish one prong of the test, this court need not
8 No. 33935-1-III State v. Wilson
address the remaining prong. State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563
(1996). This is a mixed question of law and fact, reviewed de novo. Strickland v.
Washington, 466 U.S. at 698. We address only the first prong.
To satisfy the first prong, the defendant m1:1st show that, after considering all the
circumstances, counsel's performance fell below an objective standard of reasonableness.
State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). The burden is on the
defendant to show deficient performance. State v. Grier, 171 Wn.2d 17, 33, 246 P.3d
1260 (2011). This court gives great deference to trial counsel's performance and begins
the analysis with a strong presumption counsel performed effectively. State v. West, 185
Wn. App. 625, 638, 344 P.3d 1233 (2015). Trial strategy and tactics cannot form the
basis of a finding of deficient performance. State v. Johnston, 143 Wn. App. 1, 16, 177
P.3d 1127 (2007).
The decision of whether to keep a prospective juror on the jury panel or whether to
dismiss a juror often is based on the trial counsel's experience, intuition, strategy, and
discretion. State v. Lawler, 194 Wn. App. 275,285,374 P.3d 278, review denied, 186
Wn.2d 1020, 383 P.3d 1027 (2016). A jury pool is determined at random and represents
a cross-section of the various demographics contained within an area. Therefore, while
one aspect of a juror might suggest exercising a preemptory challenge or challenge for
cause, another aspect might counter or override this aspect. On appeal, the court can only
look at the words on the record. Nevertheless, a lawyer may keep someone on the jury
9 No. 33935-1-III State v. Wilson
panel despite his voir dire responses because of his background, other personal
characteristics, mannerisms, or nonverbal communication. State v. Lawler, 194 Wn.
App. at 290. Another tactical consideration that does not appear on the record is who the
next juror in line would be should the lawyer remove the juror in question. State v.
Lawler, 194 Wn. App. at 290.
A juror's equivocal answers during voir dire does not mean that she should be
challenged for cause. The appropriate question is whether a juror with preconceived
ideas can set them aside and decide the case on an impartial basis. State v. Grenning, 142
Wn. App. 518, 540, 174 P.3d 706 (2008), aff'd, 169 Wn.2d 47, 234 P.3d 169 (2010). In
this appeal, juror 31 stated that she believed she could be fair and impartial when
questioned by defense counsel. In further discussion with defense counsel, the juror at
issue acknowledged that first impressions were not always correct.
Dale Wilson suggests ongoing bias by juror 31 because jury deliberations took an
hour. Nevertheless, as illustrated by defense counsel's other challenges for cause,
counsel aggressively sought removal of potential jurors who exhibited emotional
reactions or other biases. The trial court similarly had the duty to excuse a juror on its
own motion if it deemed a potential juror biased. RCW 2.36.110. Both defense counsel
and the trial court, who were in the position of this reviewing court to determine if juror
31 spoke honestly, concluded that juror 31 would be fair and impartial.
10 No. 33935-1-111 State v. Wilson
Dale Wilson may complain about counsel's performance when rehabilitating juror
31 rather than immediately moving for her dismissal as a juror. Nevertheless, Wilson
fails to establish that rehabilitating the juror rather than removing her possessed no
conceivable tactical purpose, such as preventing other less suitable jurors from being
seated. The rehabilitation also may have encouraged others to keep an open mind and to
recognize the need to thoughtfully decide after hearing all the evidence. Therefore, the
first prong of Strickland fails.
Issue 2: Whether the State's evidence was sufficient to support the conviction.
Answer 2: Yes.
Dale Wilson contends the State failed to submit sufficient evidence to support his
conviction for first degree rape of a child. He argues that the jury employed guess,
speculation, and conjecture to conclude that he, rather than another, molested Betty
Lewis. The State responds that the testimony of Betty Lewis and her family suffices to
convict Wilson and the jury held the prerogative to consider Betty and other witnesses
credible. We agree with the State.
Evidence is sufficient if a rational trier of fact could find each element of the crime
beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 221-22, 616 P.2d 628 (1980).
Both direct and indirect evidence may support the jury's verdict. State v. Brooks, 45 Wn.
App. 824, 826, 727 P.2d 988 (1986). In claiming insufficient evidence, the defendant
necessarily admits the truth of the State's evidence and all reasonable inferences that can
11 No. 33935-1-111 State v. Wilson
be drawn from it. State v. Salinas, 119 Wn.2d 192,201, 829 P.2d 1068 (1992). Only the
trier of fact weighs the evidence and judges the credibility of witnesses. State v. Homan,
181 Wn.2d 102,106,330 P.3d 182 (2014).
Under RCW 9A.44.073: "A person is guilty of rape of a child in the first degree
when the person has sexual intercourse with another who is less than twelve years old
and not married to the perpetrator and the perpetrator is at least twenty-four months older
than the victim." In our appeal, Betty Lewis, a seven-year-old at the time of the
allegations, testified that Dale Wilson placed his penis in her mouth. Wilson's age
substantially exceeded Betty's age by more than twenty-four months. During trial,
Wilson did not dispute any elements of first degree child rape except whether Wilson
committed the crime. As in many sexual offense cases, only the victim and the
perpetrator know the truth of what occurred. Resolution depends on whom the jury
believes. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).
Dale Wilson must accept the credibility of Betty. Betty testified that Wilson
visited her house. She testified that Wilson stuck his penis in her mouth more than once.
According to Betty, Wilson spoke to her graphically about sex acts. Wilson showed her
videos depicting naked people. Betty confidently identified Wilson as the perpetrator.
Issue 3: Whether the sentencing court erred by failing to adequately address the
Blazina factors before imposing LFOs?
Answer 3: Yes.
12 No. 33935-1-111 State v. Wilson
On appeal, Dale Wilson contends that the trial court did not adequately inquire
into his current and future ability to pay before imposing discretionary legal financial
obligations. Nevertheless, Wilson did not object to the imposition of any legal financial
obligations during sentencing. Thus, this reviewing court must determine whether to
address an assignment of error not raised below.
RAP 2.5(a) provides, in relevant part: "The appellate court may refuse to review
any claim of error which was not raised in the trial court." With regard to unpreserved
challenges to legal financial obligations, the state Supreme Court declared: "A defendant
who makes no objection to the imposition of discretionary LFOs at sentencing is not
automatically entitled to review." State v. Blazina, 182 Wn.2d 827, 832, 344 P.3d 680
(2015). Each appellate court must render its own decision to accept discretionary review
of claimed financial obligations not appealed as a matter of right. State v. Blazina, 182
Wn.2d at 835. The Blazina court, however, clarified that a challenge to the trial court's
entry of a legal financial obligation order under RCW 10.01.160(3) is ripe for judicial
determination despite the State having taken no steps to enforce the obligation. State v.
Blazina, 182 Wn.2d at 832 n.1. A majority of this panel exercises its discretion and
accepts review of the imposition of discretionary legal financial obligations because of
the amount imposed.
13 No. 33935-1-III State v. Wilson
By statute, the sentencing court may not order a convicted defendant to pay
discretionary fees unless the defendant possesses or will possess the financial ability to
pay. RCW 10.01.160(3) reads:
The court shall not order a defendant to pay costs unless the defendant is or will be able to pay them. In determining the amount and method of payment of costs, the court shall take account of the financial resources of the defendant and the nature of the burden that payment of cost~ will impose.
In State v. Blazina, 182 Wn.2d at 838 (2015), our Supreme Court clarified that
RCW 10.01.160(3) requires the trial court "do more than sign a judgment and sentence
with boilerplate language stating that it engaged in the required inquiry." Rather, the
"record must reflect that the trial court made an individualized inquiry into the
defendant's current and future ability to pay." State v. Blazina, 182 Wn.2d at 838. This
inquiry should address a defendant's incarceration, job status, debts, or other indicators of
ability to pay. State v. Malone, 193 Wn. App. 762, 766, 376 P.3d 443 (2016).
The sentencing court conducted no inquiry into the financial condition or future
earning capacity of Dale Wilson except to comment that Wilson would remain in prison
for seven years and not be able to meet the $25 required monthly payment during the
imprisonment. This limited inquiry supported the declination, not the imposition, of legal
financial obligations. Therefore, this court remands for a new sentencing hearing to
consider the imposition of discretionary legal financial obligations.
14 No. 33935-1-III State v. Wilson
STATEMENT OF ADDITIONAL GROUNDS
Issue 4: Whether the trial court violated Dale Wilson's right to a fair trial by
allowing Wilson's conviction solely on speculation after two eye witnesses testified in
court that Wilson was not the person who produced the physical nexus to the alleged
crime and the prosecution neglected to investigate three alternate male suspects before
trial?
Answer 4: No.
Dale Wilson asserts additional grounds for possible reversal of his conviction in a
separate filing. He first contends his conviction rests on insufficient evidence, and he
emphasizes that two eye witnesses testified that he did not produce the physical nexus to
the crime and law enforcement refused to investigate other suspects. We encounter some
confusion as to what Wilson characterizes as the production of a physical nexus to a
crime. We are uncertain as to how two eye witnesses could verify that Wilson did not
rape Betty Lewis, when the rape occurred when Wilson was alone with Betty and Wilson
presented no alibi witness to testify he was always present somewhere else when the
sexual contact occurred. Also, Wilson cites no authority supporting an obligation on law
enforcement to investigate other potential perpetrators under these circumstances.
Regardless, we previously concluded that substantial evidence supports Wilson's
conviction.
15 No. 33935-1-III State v. Wilson
Issue 5: Whether the hearsay used to convict Dale Wilson was unreliable and
therefore unlawfully submitted as evidence in court?
Answer 5: No.
In raising this fifth issue, Dale Wilson concedes that he may have agreed to the
admissibility of Betty Lewis' hearsay testimony for trial purposes. Nevertheless, he
argues that he did so only because of a prediction of an admissibility ruling in favor of
the State by the trial court and he never stipulated to the use of the evidence to convict
him. We disagree. A stipulation to admissibility of evidence permits the use of the
evidence to convict. Wilson cites no authority to the contrary. Wilson received benefit
by reason of the stipulation because the State recommended a sentence in the low end of
the sentencing range.
Issue 6: Whether the trial court erred when permitting Detective Darrin Darnell to
testify at trial?
Answer 6: We refuse to address this issue because Dale Wilson did not object to
Darnell's testimony at trial.
On appeal, Dale Wilson contends that the trial court abused its discretion when it
allowed the testimony of Detective Darnell as a witness. He emphasizes that Laurie
Lund and Detective Darnell met before in an earlier case. Nevertheless, Wilson never
objected to Darnell's testimony before the trial court.
RAP 2.5(a) formalizes a fundamental principle of appellate review. The first
16 No. 33935-1-111 State v. Wilson
sentence of RAP 2.5 (a) reads:
Errors Raised for First Time on Review. The appellate court may refuse to review any claim of error which was not raised in the trial court.
No procedural principle is more familiar than that a constitutional right, or a right of any
other sort, may be forfeited in criminal cases by the failure to make timely assertion of
the right before a tribunal having jurisdiction to determine it. United States v. Olano, 507
U.S. 725, 731, 113 S. Ct. 1770, 123 L. Ed. 2d 508 (1993); Yakus v. United States, 321
U.S. 414,444, 64 S. Ct. 660, 88 L. Ed. 834 (1944).
Countervailing policies support allowing an argument to be raised for the first time
on appeal. For this reason, RAP 2.5(a) contains a number of exceptions. RAP 2.5(a)
allows an appellant to raise for the first time "manifest error affecting a constitutional
right," an exception upon which a criminal appellant commonly relies. Constitutional
errors are treated specially under RAP 2.5(a) because they often result in serious injustice
to the accused and may adversely affect public perceptions of the fairness and integrity of
judicial proceedings. State v. Scott, 110 Wn.2d 682, 686-87, 757 P.2d 492 (1988).
Prohibiting all constitutional errors from being raised for the first time on appeal would
result in unjust imprisonment. 2A KARL B. TEGLAND, WASHINGTON PRACTICE: RULES
PRACTICE RAP 2.5 author's cmt. 6, at 218 (8th ed. 2014). On the other hand, "permitting
every possible constitutional error to be raised for the first time on appeal undermines the
trial process, generates unnecessary appeals, creates undesirable retrials and is wasteful
17 No. 33935-1-III State v. Wilson
of the limited resources of prosecutors, public defenders and courts." State v. Lynn, 67
Wn. App. 339,344,835 P.2d 251 (1992).
Washington courts and even decisions internally have announced differing
formulations for "manifest error." First, a manifest error is one "truly of constitutional
magnitude." State v. Scott, 110 Wn.2d at 688. Second, perhaps perverting the term
"manifest," some decisions emphasize prejudice, not obviousness. The defendant must
identify a constitutional error and show how, in the context of the trial, the alleged error
actually affected the defendant's rights. It is this showing of actual prejudice that makes
the error "manifest," allowing appellate review. State v. O'Hara, 167 Wn.2d 91, 99,217
P.3d 756 (2009); State v. Scott, 110 Wn.2d at 688; State v. Lynn, 67 Wn. App. at 346. A
third and important formulation for purposes of this appeal is the facts necessary to
adjudicate the claimed error must be in the record on appeal. State v. McFarland, 127
Wn.2d at 333 (1995); State v. Riley, 121 Wn.2d 22, 31, 846 P.2d 1365 (1993).
Dale Wilson cites no authority that disqualifies a witness because of earlier contact
with another witness at trial. Wilson never sought to impeach Detective Darrin Darnell's
credibility as an investigator at trial. He cites to no facts within the record to support his
claim of bias beyond the general fact that Laurie Lund and Detective Darnell earlier met.
We discern no manifest constitutional error.
Issue 7: Whether the trial court erred when precluding Dale Wilson from
presenting character evidence ofBetty Lew is?
18 No. 33935-1-III State v. Wilson
Answer 7: We refuse to address this issue because Dale Wilson did not question
the constitutionality of the statute at trial.
Dale Wilson contends that the rape shield law, RCW 9A.44.020 prevented him
from presenting a complete defense under the Sixth Amendment to the United States
Constitution when the statute precluded him from presenting defense witness testimony
attacking the credibility of Betty Lewis but allowed hearsay from the victim. This court
has previously held the statute constitutional. State v. Summers, 70 Wn. App. 424, 436,
853 P.2d 953 (1993). Dale Wilson cites no decision to the contrary, and he fails to
provide a reasoned analysis for overruling precedent. Thus, his claimed error is not
manifest constitutional error.
Issue 8: Whether the State committed misconduct when asking Laurie Lund if she
believed Betty Lewis' allegations against Dale Wilson?
Answer 8: We refuse to address this issue because Dale Wilson did not object to
Lund's testimony at trial.
Dale Wilson next contends that the prosecutor committed misconduct by asking
Laurie Lund if she believed Betty Lewis' allegations. The defendant's counsel did not
register an objection to this question. Witnesses are not generally allowed to vouch for
the credibility of other witnesses, as this veers into the jury's arena. State v. Chavez, 76
Wn. App. 293,299, 884 P.2d 624 (1994). A prosecutor commits misconduct when
asking a witness to vouch for another witness's credibility. State v. Chavez, 76 Wn. App.
19 No. 33935-1-III State v. Wilson
at 299. Nevertheless, Wilson placed the credibility of Betty Lewis at issue when his
counsel questioned Laurie Lund as to Betty's history of telling the truth. Therefore,
Wilson establishes no manifest constitutional error.
Issue 9: Whether the trial court issued an illegally constructed search warrant,
which resulted in the seizure ofproperty belonging to an uninvolved citizen with zero
probable cause?
Answer 9: We refuse to address this issue because Dale Wilson provides no law to
support his argument.
Dale Wilson contends that the search warrant that seized his and his sister's
computers from their residence was illegally "constructed" because it did not state with
particularity the objects to be seized. He may complain that, because law enforcement
also seized the property of another resident of his house, the warrant lacked specificity.
Wilson cites none of the trial record concerning the background of the issuance of the
warrant, and Wilson cites no legal precedent that guides the court to consider that a
computer belonging to his sister but situated within Wilson's home would not be within
the scope of a search warrant.
RAP 10.3(a)(6) directs each party to supply, in its brief, "argument in support of
the issues presented for review, together with citations to legal authority and references to
relevant parts of the record." We do not consider conclusory arguments that are
unsupported by citation to authority. Joy v. Department ofLabor & Industries, 170 Wn.
20 I l I No. 33935-1-III State v. Wilson I App. 614, 629, 285 P .3 d 187 (2012). Passing treatment of an issue or lack of reasoned
argument is insufficient to merit judicial consideration. West v. Thurston County, 168
Wn. App. 162, 187, 275 P.3d 1200 (2012). Therefore, this court should decline to
address this unsupported assignment of error.
CONCLUSION
We affirm Dale Wilson's conviction for rape of a child. We remand the case for
the trial court to reconsider the imposition of legal financial obligations consistent with
the directions in this opinion.
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.
\ ~ Fearini,ci
WE CONCUR:
Korsmf1.
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