IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE
THE STATE OF WASHINGTON, No. 77529-4-1
Respondent,
V. UNPUBLISHED OPINION
HACH PHETH,
Appellant. FILED: April 1, 2019
SCHINDLER, J. — Hach Pheth seeks reversal of the jury convictions for domestic
violence assault in the second degree of K.C. and domestic violence rape in the first
degree of K.C. Pheth claims the trial court violated his constitutional right to a fair and
impartial jury by failing to conduct an adequate investigation of juror misconduct and
abused its discretion in deciding that despite misconduct, the juror could deliberate. We
affirm.
FACTS
Hach Pheth and K.C. met in 2015. Pheth and K.C. were in an on-and-off
romantic relationship. Pheth was "very jealous" and would often accuse K.C. of "having
another man" and "a desire for a younger man." K.C. tried to end the relationship a
number of times. No. 77529-4-1/2
On August 25, 2016, the State charged Pheth with domestic violence assault in
the second degree of K.C. on April 15, 2016, count 1; domestic violence rape in the first
degree of K.C. on April 15, 2016, count 2; and domestic violence kidnapping in the first
degree of K.C. between April 15, 2016 and April 17, 2016, count 3. The State filed an
amended information charging Pheth with two additional counts of domestic violence
rape in the first degree of K.C. between April 15, 2016 and April 17, 2016, count 4 and
count 5. Pheth pleaded not guilty.
A number of witnesses testified at trial, including K.C., hospital social worker
Emily McGuire-Wallace, sexual assault nurse Kathryn Clarke, emergency room
physician Dr. Geoffrey Hubbell, King County Sheriff Deputy Brian Taylor, and Detective
Patricia Maley. The court admitted a number of exhibits into evidence, including
photographs showing injuries to K.C. Pheth did not testify.
K.C. testified that on Friday, April 15, 2016, Pheth ‘ called and wanted her to
"come to his house" after work. K.C. told Pheth she "was tired" and planned to stay
home. K.C.'s son and her sister left the house to celebrate the Cambodian New Year
"around 7:30" p.m. After they left, Pheth called K.C. again and said he "wanted to see"
her. K.C. told Pheth her son "'will not allow you to come to this house.'" Pheth told
her, "'I going [to] kill you, bitch. Watch out.'"
Approximately 30 minutes later, K.C. heard Pheth knocking on the sliding glass
door entrance to her bedroom. Pheth "sound[ed] angry" and asked her to "open the
door." K.C. decided to let Pheth come in "so we can talk." Pheth "s[a]t on the bed" and
told K.C. he wanted to have sex. K.C. said no. Pheth pulled off her nightgown, pushed
her down onto the mattress, and forcibly inserted his fingers into her vagina. K.C. told
2 No. 77529-4-1/3
Pheth," 'I don't want to'"and pushed his hand away. Pheth said,"'Why are you saving
this? Why don't you let me fuck you?'" Pheth grabbed nunchakus and hit naked K.C.
on her back, her leg, her foot, the back of her head, and her forehead. Pheth "kept
saying,'Who are you saving this for? You're betraying me. Who are you saving this
for?'"
Pheth stopped hitting K.C. and told her to get dressed. K.C. put on "whatever I
could find at that moment," including a robe and a jacket. Pheth "pushed" K.C. outside
"through the sliding door" and told her to get into her Toyota Highlander. K.C. testified
that she ran next door and "knocked on the door, asking for help," but no one answered.
Pheth "grabbed" K:C., "dragged" her back, and pushed her into the car. K.C. said she
"did not want to go with him." When K.C. told Pheth, "'I want to call the police,'" Pheth
said he would kill her. Pheth "hit [her] more.. . with a fist." K.C. "put [her] hands up
over [her]face" and used her arms "to protect myself."
Pheth started driving south toward Aberdeen. When K.C. tried to use her cell
phone, Pheth "grabbed the phone from my hand" and "threw the phone" out the car
window. K.C. said Pheth stopped at a gas station. K.C. did not try to "get out of the
car" because "I could not move I was in so much pain." K.C. was bleeding "[f]rom my
back" and the top of her head.
Pheth parked the car "behind the house" where his relatives lived in Aberdeen.
Pheth "folded the back seat" down and made a bed with a sleeping bag. Pheth asked
K.C. to have sex with him. K.C. said,"'No, I cannot sleep with you because I'm in so
much pain.'" Pheth took off K.C.'s clothes. K.C. said she tried to make Pheth stop "but
he did not stop." K.C. testified that Pheth went to sleep after forcibly having sex with
3 No. 77529-4-1/4
her. K.C. did not try to run away because "[m]y body was in pain" and "I thought I would
die."
The next morning, Pheth took K.C. inside the house to use the bathroom. Pheth
stood by the door while K.C. took a shower. K.C. testified that Pheth threw away some
of the clothes "stained with blood." Pheth "took [K.C.] back to the car" and drove to his
sister's house. K.C. was scared Pheth "would beat me up again." K.C. "didn't dare to
ask" Pheth's sister for help because he "watched me as I was his prisoner." K.C.
testified that Pheth "washed my coat" because there "was a lot of blood."
Pheth drove K.C."back to the other house" where he parked the night before.
Pheth accused K.C. of "wanting another man." Pheth asked K.C. to "have sex with him
again." K.C. told Pheth "no" but said she "was not strong enough to stop him" because
she was in such "pain." K.C. "begged" Pheth to take her home.
K.C. testified that Pheth drove her back to her house Sunday evening. Before he
left, Pheth asked K.C. for money. K.C. said, "I was trying just to get away from him."
K.C. and Pheth drove to a nearby ATM.1 After K.C. gave Pheth money, he left.
K.C. did not tell any of her family members "what had happened." K.C. testified,
"I wanted them to know, but not at that time. And I was so tired, 1 was very depressed,
and I did not want to tell them at that time."
K.C. went to work the next day. K.C."was in pain" and "felt dizzy." Her
supervisor told her to leave and go to a doctor. K.C. went to the Highline Medical
Center emergency room.
1 Automated teller machine.
4 No. 77529-4-1/5
Highline Medical Center social worker Emily McGuire-Wallace interviewed K.C.
McGuire-Wallace called the police and referred K.C. to sexual assault nurse Kathryn
Clarke. Clarke performed a forensic sexual assault examination and took photographs
of K.C.'s injuries. Clarke testified there was "bruising to the very back of the opening of
[K.C.'s] vagina" and "evidence that the outer layer of skin was damaged."
During her testimony, Clarke used a diagram to identify the "quite extensive"
injuries to K.C. The court admitted the diagram and the photographs of K.C.'s injuries
into evidence. Clarke "document[ed] 20 separate injuries from lacerations and bruising"
and "20 different spots on [K.C.'s] body." K.C. had two black eyes, a "laceration in
between her eyes," an "injury to the left side of her head radiating from the hairline
towards the left eye," an "open wound" on "the back of her head," and "a cut to her
shin." K.C. had multiple and overlapping bruises and swelling in her back, "inner arm,"
"the right hand.. . up the wrist," "all along" the left hand that "radiated to the wrist," the
"lower left arm . . . front to back," "extensive bruising" to the left and right thighs that
"wrapped all the way from below her buttocks . . . to the front of her thigh," her left knee
and calf, the right knee, and "her foot radiating towards the inner portion of her ankle."2
Emergency room physician Dr. Geoffrey Hubbell examined K.C. K.C. told Dr.
Hubbell that her "'now ex-boyfriend . . . hit her in the head with his fists and possibly'"
nunchakus. K.C. told Dr. Hubbell she "'was with this man for the entire weekend,
during which time, he repeatedly raped her.'" Dr. Hubbell testified that K.C. had
difficulty walking and had "'pain and bruising to her head, extremities, and throughout
her torso.'" Dr. Hubbell ordered X-rays and a CT3 scan.
and labial swabs""indicated the presence of semen." 2 The "vaginal
3 Computed tomography.
5 No. 77529-4-1/6
X-rays showed K.C."had a broken finger." The CT scan showed a subdural
hematoma and "areas of bleeding inside the skull." Dr. Hubbell testified that "[t]raumatic
injury" to the head could cause a subdural hematoma.
If you have any kind of trauma to the head, that can cause the brain to shift around inside of the skull and disrupt some of the blood vessels in there and cause you to leak blood into. . . the dura matter, which was the outermost layer of tissue surrounding the brain that I mentioned.
Dr. Hubbell said that "being hit over the head" with nunchakus could cause a subdural
hematoma. Dr. Hubbell admitted K.C. to the hospital for three days to monitor her brain
injuries because of his "concern that this might be a potentially worsening and
potentially life-threatening condition." K.C. did not return to work for three months.
King County Sheriff Deputy Brian Taylor took photographs of K.C.'s injuries at
the Highline emergency room. The court admitted the photographs into evidence. The
photographs show "injuries to her face," "bruising around the top of her head" and
"along the hairline," a cut on her nose, bruising and swelling on her left hand, and
"bruising all along" the left arm.
Detective Patricia Maley testified she did not interview K.C. on Monday, April 18,
because K.C."was in pretty bad shape." "She had bruises all over her arms. Her face
was bruised. She had cuts on her face. She had a cut over her nose." Detective Maley
interviewed K.C. after she returned home from the hospital and took photographs of the
injuries. The court admitted the photographs into evidence. The photographs show
bruising on K.C.'s right arm, right "shoulder area," and inner left arm, an injury and
bruising on her right hand,"huge swelling" and bruising on her left leg from her knee to
her thigh, and bruising to the right leg and knee.
6 No. 77529-4-1/7
Detective Maley searched K.C.'s bedroom on Tuesday, April 19. Detective
Maley found "blood on the pillowcases," "a large stain on the bedding," and "several
other smaller stains. . . and what appears to be blood" on the sheets. Detective Maley
seized "clear nunchucks [sic]" near the bed. The court admitted the photographs into
evidence.
During the search of K.C.'s Toyota Highlander, Detective Maley seized "a
sleeping bag and a blanket" from the back of the car. Detective Maley testified there
were "some areas of discoloration that appeared to be blood" inside the sleeping bag.
The court admitted photographs of K.C.'s car and items found inside the car into
evidence. The photographs show "staining" that "appears to be blood" on the
passenger seat and headrest. A photograph of the passenger seatbelt "appears to
have [a] significant amount of blood on it." Detective Maley also found what appeared
to be bloodstains on the passenger-side carpet and visor.
Detective Maley testified that Pheth admitted being in a "dating relationship" with
K.C. but said he "hasn't seen her in a long time." When asked "about assaulting [K.C.]
and beating her," Pheth "gave a little chuckle." Pheth said, "Mt wasn't true, he didn't do
it." Pheth said K.C. "fell through the sliding glass door" because "she was drunk."
Pheth said he "was drunk too." Pheth said he and K.C. "stayed in the car in a driveway
of a friend's house." Pheth told Detective Maley, "'If I had beat and raped her, why did
she give me money from the ATM.'"
The jury deliberations began on August 21, 2017. At 11:15 a.m. on August 22,
the "Presiding Juror," "Juror 8," submitted a written inquiry to the court. The written
4 There was no evidence of damage to the sliding glass door to K.C.'s bedroom.
7 No. 77529-4-1/8
inquiry states, "While discussing time of day, a juror mentioned that they looked up the
sunset time of day in regards to timeline in April, 2016." The court contacted the parties
and scheduled a 1:45 p.m. hearing on the written inquiry. The State submitted a
"Memorandum Regarding Juror Misconduct."
At the hearing to address the jury inquiry, the prosecutor suggested first
questioning the Presiding Juror.
I think it may, given the fact that the presiding juror sent this out, obviously there was some concern about it, would be to start with the presiding juror, bring that individual out, find out what, if any, information was actually disclosed. !think we then would need to question all of the other jurors to confirm that that is their understanding. We must do this in a manner so as not to ask them about their deliberations or where they're at in their deliberations or anything that inheres in the verdict to determine what, if any impact this might have going forward on a verdict.
The defense attorney agreed "we need to get some more information" and the
court should avoid questioning the jurors about the jury deliberations. The defense
attorney asked the court to question "every juror" and ask each juror the following
questions:
(A) What did the juror say? (B) Did what the juror say affect their ability to be fair? (C) Do they see any reason that they would not be able to disregard what the juror said and base their decision on the testimony and evidence that they heard during the course of the trial?
The court concluded, "[1]t's really undisputed that there was misconduct, that
there — you pointed out to me that it's unclear whether the actual extrinsic evidence
was shared or not, and I think it would be useful to clarify that." The court decided to
initially question only the Presiding Juror and the juror who "looked up the sunset time of
day ... in April, 2016."
My concern about pulling all 12 of them in and asking these questions is that it overemphasizes the issue. My inclination is gather
8 No. 77529-4-1/9
some more information either from the juror in question or the presiding juror, or both, and then discuss, should we learn something — you know, I think there are really two possibilities. There's the possibility that someone said,"You can't tell us that. We haven't even heard it," or there's the possibility that the juror shared that, you know, it got dark at 5:45 or whatever time in April. I suppose we could learn something more than that that would change the direction. Frankly, if either of those two were the case, my inclination would be to admonish the juror to do no further research, to not discuss the issue any further with anyone else, and then direct the jury as a whole to continue their deliberations. I feel like we draw more attention to it than is warranted if we interview all 12 of them.
The court first questioned Presiding Juror 8.
COURT: . . . . [L]et me just say this before we go further. It's very important in the questions I ask you and in the questions I may ask any other jurors that you not disclose anything about the deliberations, about where they are in the process. And so really, I'm going to ask you some fairly pointed questions. I need you to, to the extent you're able, give me fairly specific answers. So as I understood it, what[the juror] said is that she looked up sunset in April of 2016. JUROR 8: Yes. COURT: And the question that we're really trying to get at is did someone go "Whoa, whoa, whoa, you can't talk about that; this is outside information" before she then said, "And it was 5:15" or "It was 6:45" — JUROR 8: Correct. COURT: Or did she actually give the information? JUROR 8: No. The fact that she researched something led us all to a halt. COURT: All right. JUROR 8: And that's where we stopped and agreed that we should send out a question. COURT: All right. And I will also need to have you tell me who • the juror was who did that. Do you know what juror number it is? JUROR 8: Nine.
Presiding Juror 8 told the judge that she could follow the instructions "not to consider
any evidence that comes from outside of what was presented" and would not "discuss
anything that has been discussed here" with the other jurors.
9 No. 77529-4-1/10
The court questioned Juror 9. The court told Juror 9 it is "very important that we
not hear... anything about. the progress of deliberations." Juror 9 testified that
when she mentioned that she "looked up the sunset time of day" in April 2016 during the
jury deliberation, "[e]veryone said, 'Stop, we're going to get thrown out.'" Juror 9 said
she told the other jurors, "'I haven't looked up anything else.'" Juror 9 testified there
was no "further discussion" about what she reported. Juror 9 testified she could
"disregard that information" she looked up and follow the court's instructions.
COURT: And I'm going to ask you, and you're under oath, have you looked up anything other than that? JUROR 9: Nothing. COURT: All right. JUROR 9: Absolutely nothing. COURT: If I were to instruct to disregard that information that you looked up, do you believe that you would be able to follow that instruction? JUROR 9: Yes, 1 do. COURT: All right. So I'm now going to direct you not to have any discussion about what we've discussed in here or this matter with other members of the jury.
Juror 9 told the judge:
I can swear that I have not seeked any other information at all regarding this case. I haven't even been watching the news because I think you referenced national or local news. So I was just wondering w[h]at time does the sun set, you know, in April, when is it dark out? So that is what I was questioning.
The court rejected the defense request to question the other 10 jurors. The court
denied the defense motion to excuse Juror 9. The court responded to the jury inquiry in
writing. The court instructed the jury as follows:
It is essential to a fair trial that everything you learn about this case comes to you in this courtroom, and only in this courtroom. You must not allow yourself to be exposed to any outside information about this case.
10 No. 77529-4-1/11
It is your duty to decide the facts in this case based upon the evidence presented to you during this trial.
Please continue deliberating and follow your instructions.
On August 23, the jury returned a verdict. The jury found Pheth not guilty of rape
in the first degree of K.C. on April 15, 2016, count 2, and not guilty of rape in the first
degree of K.C. between April 15 and April 17, 2016, count 5.5 The jury found Pheth
guilty of assault in the second degree of K.C. on April 15, 2016, count 1; kidnapping in
the first degree of K.C. between April 15, 2016 and April 17, 2016, count 3; and rape in
the first degree of K.C. between April 15, 2016, and April 17, 2016, count 4. By special
verdict form, the jury found Pheth and K.C. were members of the same family or
household prior to or at the time the crimes of assault in the second degree, kidnapping
in the first degree, and rape in the first degree were committed.
At sentencing, the court vacated the kidnapping in the first degree of K.C.
conviction "for the sole reason that conviction for both Count 3 and Count 4," rape in the
first degree,"would violate double jeopardy principles." The court imposed a high-end
standard-range sentence.
ANALYSIS
Pheth seeks reversal of the jury convictions, arguing the court violated his
constitutional right to a fair and impartial jury by failing to adequately investigate juror
misconduct. The Sixth Amendment to the United States Constitution and article I,
section 22 of the Washington Constitution guarantee a defendant the right to trial by a
fair and an impartial jury. State v. Siert, 186 Wn.2d 869, 874-75, 383 P.3d 466 (2016).
5 The jury also found Pheth not guilty of the lesser included crimes of rape in the second degree and rape in the third degree as to count 2 and count 5.
11 No. 77529-4-1/12
The trial court has an obligation to investigate allegations of juror unfitness and "to
excuse jurors who are found to be unfit, even if they are already deliberating." State v.
Elmore, 155 Wn.2d 758, 773, 123 P.3d 72(2005).
RCW 2.36.110 governs investigation of juror misconduct and dismissal of an unfit
juror:
It shall be the duty of a judge to excuse from further jury service any juror, who in the opinion of the judge, has manifested unfitness as a juror by reason of bias, prejudice, indifference, inattention or any physical or mental defect or by reason of conduct or practices incompatible with proper and efficient jury service.
Pheth contends the court abused its discretion in deciding not to dismiss Juror 9
or interview the other 10 jurors. A trial court has broad discretion "in conducting an
investigation of jury problems." Elmore, 155 Wn.2d at 773. A trial court abuses its
discretion when the decision is manifestly unreasonable or based on untenable
grounds. State v. Depaz, 165 Wn.2d 842, 858, 204 P.3d 217(2009).
"Generally, questions of juror bias or incompetence focus on '"some event, or
. . . relationship between a juror and a party, that is both easily identifiable and subject
to investigation and findings without intrusion into the deliberative process."'" Elmore,
155 Wn.2d at 7696 (quoting United States v. Symington, 195 F.3d 1080, 1087 n.6 (9th
Cir. 1999)(quoting United States v. Thomas, 116 F. 3d 606, 621 (2d Cir. 1997))). One
such example is where "a deliberating juror has discussed or considered extrinsic
evidence." Elmore, 155 Wn.2d at 770. Here, there is no dispute Juror 9 committed
misconduct by looking up the time of sunset. State v. Balisok, 123 Wn.2d 114, 118, 866
P.2d 631 (1994)(consideration of extrinsic evidence by a juror is misconduct).
6 Alteration in original.
12 No. 77529-4-1113
The court denied the defense request to question the other jury members
because the other jurors did not consider extrinsic evidence. The court ruled:
I believe that the way the jury has handled this reflects that they very clearly understand the instructions I gave them multiple times about the fact that their deliberations needed to be based solely on the evidence before them and they themselves have essentially enforced the court's order by the way they handled the situation. I think, in a sense it would be almost insulting to them to bring them out and tell them that again. Given the information that we've gleaned, I am not inclined to do that. I don't have any reason to believe that they're disregarding my order. In fact, I have every reason to believe that they're adhering very closely to what I directed them to do, with the exception of Juror No. 9, who we've now brought out and have made it very clear to her, and who has also I think credibly indicated that that was the sole area in which she sought out external information.
After the jury returned a verdict, the court entered findings on the determination
that the other jurors did not consider extrinsic evidence.
The [jury] question indicated that a juror had looked up the time of the sunset in April, 2016. We learned in questioning the presiding juror that it was Juror No. 9. We learned from both the presiding juror and Juror No. 9 that the other jurors had stopped her as soon as she said she had looked it up and that she had in fact not shared that information.
I further find credible the testimony of the presiding juror and of Juror No. 9 that the other members did not receive what would have been extrinsic evidence in terms of the time of the sunset. I find that the other members of the jury did exactly what we hope jurors will do, and that is that they followed the court's instructions. They immediately told Juror No. 9 that they were not permitted to consider outside evidence, and immediately brought the issue to the attention of the court. I find that the extrinsic evidence was not shared with the rest of the jury.
We review findings of fact to determine whether they are supported by
substantial evidence. State v. Boyer, 200 Wn. App. 7, 13, 401 P.3d 396 (2017).
Credibility determinations are not subject to review. State v. Camarillo, 115 Wn.2d 60,
71, 794 P.2d 850 (1990).
13 No. 77529-4-1/14
The court found the testimony of the Presiding Juror and Juror 9 credible that
Juror 9 did not disclose the extrinsic evidence. The Presiding Juror testified that the
jurors stopped Juror 9 from disclosing extrinsic evidence. The record supports the
decision not to excuse Juror 9 and the finding that the extrinsic evidence was "not
shared with the rest of the jury." The court found Juror 9 engaged in misconduct. "I do
find that. . . was misconduct on her part to have looked that up." But the court found
"her testimony credible that that was the only information she looked up" and "found
credible Juror No. 9's testimony that she believed that she could disregard, follow my
instructions to disregard the information." Substantial evidence supports the courts
findings. Juror 9 admitted she looked up the time of sunset in April 2016. Juror 9
testified under oath she looked up "[a]bsolutely nothing" else and would "not look up or
seek out any extraneous information." Juror 9 testified that she was able to "disregard
that information that [she] looked up." The court did not abuse its discretion by not
interviewing the other 10 jurors.
Pheth also asserts the court used an incorrect legal standard to determine
whether to excuse Juror 9. State v. Gaines, 194 Wn. App. 892, 380 P.3d 540 (2016),
does not support the argument that the court erred in deciding not to interview each
juror.
In Gaines, a juror told eight other jurors during deliberation that "'he read in the
newspaper 2 years ago, the "defendant has 2 priors."'" Gaines, 194 Wn. App. at 895.
The court excused the juror and interviewed "each of the eight affected jurors
individually." Gaines, 194 Wn. App. at 895. The court found those jurors "'could follow
14 No. 77529-4-1/15
[the instructions] that they would be impartial.'" Gaines, 194 Wn. App. at 895.7 The
defendant argued the trial court erred by asking "questions of the jurors' subjective
ability to disregard extrinsic information before there is a verdict." Gaines, 194 Wn. App.
at 898.
The defendant in Gaines cited cases that address a motion for a new trial to
argue the court must "objectively inquir[e] into whether any prejudice could result" from
the extrinsic evidence. Gaines, 194 Wn. App. at 897. The court drew a distinction
between the inquiry for juror misconduct in a motion for a new trial and juror misconduct
before there is a verdict. Gaines, 194 Wn. App. at 897-98. "When a jury hears extrinsic
information and where that information inheres in the verdict, the trial court must make
an objective inquiry, asking whether the evidence could have affected the jury's verdict."
Gaines, 194 Wn. App. at 8988 (citing Breckenridge v. Valley Gen. Hosp., 150 Wn.2d
197, 204, 75 P.3d 944 (2003)). But where, as here, a court considers juror
consideration of extrinsic evidence during deliberations, instead of an objective inquiry,
the court "may ask questions of the jurors' subjective ability to disregard extrinsic
information." Gaines, 194 Wn. App. at 898.
In Depaz, the Washington Supreme Court states the court should determine
whether any misconduct committed by the juror has affected the juror's ability to deliberate before deciding to excuse the juror under RCW 2.36.110. If the court decides that the juror can still deliberate fairly despite the misconduct, the court should not excuse the juror. Only if the misconduct reasonably would have altered the juror's formulated opinion of the case can the court disturb the deliberations that led the juror to reach such a decision.
Depaz, 165 Wn.2d at 857.
in original. 7 Alteration
8 Emphasis in original.
15 No. 77529-4-1/16
Here, the uncontroverted record establishes Juror 9 did not tell the other jurors
what she learned after looking up extrinsic evidence, and the court properly questioned
Juror 9 about her subjective ability to disregard the extrinsic evidence and follow the
instructions of the court. The record establishes the court used the correct legal
standard to determine whether Juror 9 had the subjective ability to disregard the
extrinsic evidence.9
In a statement of additional grounds, Pheth contends sufficient evidence does
not support the convictions for domestic violence assault in the second degree and rape
in the first degree. Evidence is sufficient to support a conviction if, viewing the evidence
in the light most favorable to the State, any rational trier of fact can find the essential
elements of the crime beyond a reasonable doubt. State v. Houston-Sconiers, 188
Wn.2d. 1, 15, 391 P.3d 409(2017). The trier of fact is entitled to make credibility
determinations and believe or disbelieve witnesses. Camarillo, 115 Wn.2d at 71.
Viewing the evidence in the light most favorable to the State, overwhelming evidence
supports the convictions.
Pheth contends his attorney failed to object to hearsay. There is a "strong
presumption counsel's representative was effective." State v. McFarland, 127 Wn.2d
322, 335, 899 P.2d 1251 (1995). The decision of when or whether to object is strategic
and a "classic example of trial tactics." State v. Madison, 53 Wn. App. 754, 763, 770
9 However, the record also shows the court relied on the State's incorrect statement of the law and engaged in an unrelated and inconsistent objective analysis of whether extrinsic evidence could have "impacted the verdict" and prejudiced the defendant.
16 No. 77529-4-1/17
P.2d 662(1989); see McFarland, 127 Wn.2d at 335-36. Pheth cannot show ineffective
assistance of counse1.1°
We affirm the jury convictions for domestic violence assault in the second degree
of K.C. and domestic violence rape in the first degree of K.C.
, WE CONCUR:
04.1A
••
10 Pheth also claims the prosecutor committed misconduct and the court violated his due process rights. Because his assertions rely on "matters outside the record," we cannot review these arguments on direct appeal. McFarland, 127 Wn.2d at 337-38; RAP 10.10(c).