IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 84970-1-I Respondent, DIVISION ONE v. UNPUBLISHED OPINION NAOMI MARIE ELASTER,
Appellant.
HAZELRIGG, A.C.J. — Naomi Marie Elaster appeals from her convictions for
three counts of rape of a child in the first degree and one count of child molestation
in the first degree, all found to be crimes of domestic violence, after a joint jury trial
with co-defendant, Billy Clyde Miller. She seeks reversal on the grounds that her
constitutional right to an impartial jury was violated, the trial court denied her
motion to admit certain evidence essential to her defense, and she received
ineffective assistance of counsel. Elaster also challenges imposition of certain
community custody conditions. We disagree and affirm. However, remand is
required for the trial court to strike legal financial obligations from Elaster’s
judgment and sentence based on her indigency.
FACTS
Naomi Elaster is the mother of four children: Anthony, 1 A.J.O., A.M.O., and
A.A.O. In 2009, she turned over physical custody of the children to her brother,
1 Anthony was an adult by the time of trial. However, this opinion uses initials to refer to the minor victim and witnesses. No. 84970-1-I/2
Reginald Elaster, and then legal custody in 2010. 2 Reginald and his partner,
Sharon Spears, cared for the children in their home for about two years, after which
he allowed them to live with Elaster and her partner at the time, Frank Anderson. 3
In June 2019, Elaster and co-defendant Billy Miller were accused of sexual
assault by her daughter, A.M.O. In August of that year, Elaster and Miller were
charged as co-defendants based on those allegations. The State presented two
counts of rape of a child in the first degree (ROC1) with special allegations of
domestic violence (DV) against Elaster and two counts of ROC1 against Miller,
one of which carried the DV allegation. Nearly two years later, the State filed a
first amended information that accused both Elaster and Miller of four counts of
ROC1, removed the DV allegation against Miller and included it to each of the
counts as to Elaster. In August 2022, shortly before trial, the State filed a second
amended information that charged Elaster with child molestation in the first degree
(Count 1) and three counts of ROC1 (Counts 2-4), all of which carried the DV
special allegation. The State charged Miller with four counts of ROC1.
Elaster and Miller were tried jointly and engaged in extensive pretrial
litigation on the admissibility of certain evidence. The jury convicted them both as
charged. It also found by special verdict that Counts 1-4 were crimes of domestic
violence. The court imposed indeterminate sentences of 198 months to life in
prison on Count 1 and 300 months to life in prison each on Counts 2 through 4, to
be served concurrently, followed by community custody.
2 Because Reginald and the defendant share the same last name, we use his first name
for clarity. No disrespect is intended. 3 Reginald and Spears testified to slightly differing timeframes that overlapped at
approximately two years.
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Elaster timely appealed. 4
ANALYSIS
I. Claim of Juror Bias
On October 6, 2022, the court swore in the jurors and instructed them on
their duties, emphasizing the importance of relying solely on the evidence
presented during the trial. Before the jury was called into the courtroom on
November 2, juror 11 approached the bailiff with a concern regarding what the
bailiff later characterized as the truthfulness of a witness’ statements under oath.
BAILIFF: When I was leading them back, she asked if she could talk to me aside from the rest of the jurors, so she waited until everyone went into the jury room. Whenever that happens, I always just warn them and say “You have to be very careful about what you tell me. If it’s something related to the trial, I can’t really go into anything about that. But we also have to kind of out [sic] if there’s an issue.” She indicated it had to do with a witness and mentioned something about being truthful under oath. And at that point, I said, “I really can’t talk to you about that any further, but I will let the court know that there’s a concern and an issue.” And then she asked if she would have to come out individually and I said “I don’t know, but I will let the court know that there’s a concern.”
With the parties present, the judge had juror 11 brought to the courtroom
and explained that the court needed to know if anything external to the trial had
occurred regarding that witness. The juror replied that it involved Elaster’s son,
A.J.O.:
JUROR 11: The witness [A.J.O.] in the parking garage, I had noticed he had driven himself yesterday, driven off in a car because I was kind of parked in view where I saw him pull up. And when we came to the courtroom, when he swore in and there was a question asked on his driver’s license or something, he said he wasn’t driving.
4 Elaster’s co-defendant Miller also appealed, No. 86870-4-I, and the two appeals were
administratively linked at this court.
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I’m not sure if this is an important piece of information. I just thought it, I thought that I should bring that to your attention.
COURT: Okay. So just so I’m clear—did you even know who he was when he drove up?
JUROR 11: No, I did not.
COURT: But when he took the stand, you recognized him as someone you saw driving a car?
JUROR 11: In the garage, yes, before we came back in.
COURT: Does anyone want a sidebar on this?
Following the sidebar, juror 11 was excused from the courtroom so that the
parties could present argument on the matter. Counsel for each defendant
separately called for juror 11 to be excused because they claimed A.J.O.’s
testimony and credibility were central to the defense for each case. The court was
hesitant to characterize juror 11’s behavior as misconduct and proposed instead
to instruct juror 11 to disregard what she had seen in the parking garage. The
State agreed with the court that an instruction to disregard would be adequate.
The court emphasized its conclusion that juror 11’s actions did not amount to
misconduct, such that a mistrial was warranted, and given the dwindling number
of jurors, the court was concerned that excusing juror 11 would be “a de facto grant
of mistrial.” The court, however, agreed that if juror 11 indicated she would not be
able to follow its instructions to disregard the extraneous information, another
solution would be required. Juror 11 was called back into the courtroom and
questioned by the judge.
COURT: Thank you for coming back in. Have a seat. So I want to again thank you. You did exactly, you followed my instructions, and you did exactly the right thing bringing this to our attention.
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I’m going to instruct you now that you have to disregard anything you saw outside the courtroom with respect to this witness and what you reported to me. You’re not to consider that in evaluating the evidence in this case, evaluating any particular testimony, and you’re not to discuss it with the jurors. So that’s my— I’m ordering you to do that, but now I need to ask you, can you follow that instruction?
JUROR 11: Yes, Your Honor.
COURT: Okay. And so you understand this has to be not considered by you at all in making your decision in this case?
COURT: Alright. Thank you. I’m going to send you back.
JUROR 11: Okay.
COURT: And by the way, let me—hold on. Let me bring the juror back. I apologize. I know my bailiff already told you this and you’ve been very good. Obviously, you’re not to discuss this with anyone.
COURT: Thank you.
After this instruction by the court, juror 11 was sent back with the others and the
trial proceeded.
Elaster asserts that the events around juror 11’s communication with the
bailiff to alert the court that A.J.O. was not truthful under oath demonstrated bias
and the court erred when it denied the defense motions to dismiss her. The
defense contends that juror 11 witnessed events involving A.J.O. after he testified
that contradicted his testimony and she was therefore aware of facts outside of
trial that impacted her ability to fairly decide the case. The defense further avers
that curative instructions were insufficient to cure the prejudice and we must apply
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structural error analysis as set out in State v. Winborne, 4 Wn. App. 2d 147, 420
P.3d 707 (2018). The defense reliance on Winborne is misplaced. The State
argues that the trial court acted within its discretion because it assessed juror 11
and found that she was able to deliberate impartially. The State further contends
that this error is reviewed under the harmless error standard. Based on the record
and controlling law, we agree with the State as to the standard of review.
In Winborne, where the juror witnessed the alleged criminal behavior,
Division Three of this court applied structural error analysis, not harmless error.
Id. at 170. Structural error analysis applies when the error “impact[ed] the very
trial process itself” and “prevent[ed] a criminal trial from reliably serving its function
as a vehicle for determination of guilt or innocence, and no criminal punishment
might be regarded as fundamentally fair.” Id. at 171. The panel in Winborne also
noted that Winborne would not be able to cross-examine the juror who saw the
alleged criminal act if they remained on the jury, and then relied on State v. Stentz5
to conclude that because Winborne was deprived of his right to confront a witness
to the crimes, structural error review was warranted. Winborne, 4 Wn. App. 2d at
170.
We consider the trial court’s decision to retain a juror under the abuse of
discretion standard. To determine whether an impaneled juror has demonstrated
actual bias warranting dismissal, the trial judge “‘will act as both an observer and
decision maker.’” State v. Sassen Van Elsloo, 191 Wn.2d 798, 806-07, 425 P.3d
807 (2018) (quoting State v. Jorden, 103 Wn. App. 221, 229, 11 P.3d 866 (2000)).
5 State v. Stentz, 30 Wash. 134, 140-41, 70 P. 241 (1902), abrogated on other grounds by
State v. Fire, 145 Wn.2d 152, 34 P.3d 1218 (2001).
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In doing so, the trial judge must evaluate the credibility of the challenged juror. Id.
“‘A [trial] judge with some experience in observing witnesses under oath becomes
more or less experienced in character analysis, in drawing conclusions from the
conduct of witnesses.’” Id. (alteration in original) (quoting State v. Noltie, 116
Wn.2d 831, 839, 809 P.2d 190 (1991)). Therefore, substantial deference is
granted to the trial court’s determination of whether a juror is biased to an extent
that justifies dismissal. Jorden, 103 Wn. App. at 229.
A defendant has a right to a fair and impartial jury under both the federal
and state constitutions. See State v. Guevara Diaz, 11 Wn. App. 2d 843, 851, 456
P.3d 869, 874 (2020). “This right exists throughout the entire trial process and is
safeguarded in part by statutes and rules that require the trial judge to dismiss
biased jurors.” Sassen Van Elsloo, 191 Wn.2d at 807; see also RCW 4.44.170;
RCW 2.36.110; CrR 6.5. Bias can either be implied or actual. RCW 4.44.170.
Actual bias is defined as “the existence of a state of mind on the part of the juror
in reference to the action, or to either party, which satisfies the court that the
challenged person cannot try the issue impartially and without prejudice to the
substantial rights of the party challenging.” RCW 4.44.170(2).
While it was not cited by any of the parties on appeal, the controlling case
on this question is Sassen Van Elsloo. There, the court held that the “dismissal of
an impaneled juror for bias requires the same findings as dismissal of a potential
juror for bias—proof that the juror has formed a biased opinion and, as a result,
cannot try the case impartially.” 191 Wn.2d at 808. The Supreme Court adopted
the definition of actual bias for application to impaneled jurors: “the challenging
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party must prove (1) that the impaneled juror has formed or expressed a biased
opinion and (2) that ‘from all the circumstances, that the juror cannot disregard
such opinion and try the issue impartially.’” Id. at 810 (quoting RCW 4.44.190). A
jury is also presumed to follow the court’s instructions and this presumption will
prevail until it is overcome by a contrary showing. See State v. Stein, 144 Wn.2d
236, 247, 27 P.3d 184 (2001); State v. Keend, 140 Wn. App. 858, 868, 166 P.3d
1268 (2007).
Here, we conclude that the trial court did not err when it declined to dismiss
the impaneled juror. While Elaster contends that juror 11 “was herself witness to
events” and the trial court’s failure to dismiss her constitutes structural error, the
“events” that juror 11 witnessed were not related to the criminal behavior before
the jury. Winborne is not sufficiently similar, so the result should not be the same.
Elaster and Miller’s rights to confront adverse witnesses were not implicated the
way Winborne’s was. The defense attempt to stretch the application of Winborne
fails.
Juror 11 only witnessed an incident that could have suggested A.J.O. was
not being truthful under oath. However, careful reading of both A.J.O.’s testimony
and juror 11’s characterization of the event in the parking garage suggests the
matter was not as straightforward as portrayed in briefing from the appellants.
During the State’s cross-examination of A.J.O., the following exchange occurred:
[State]: And you don’t currently have a driver’s license. Is that right?
[A.J.O]: I’m getting my restricted permit right now.
[State]: But if you need to go somewhere, people need to give you rides. Is that right?
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[A.J.O]: Yeah.
While A.J.O. admitted that he was in the process of applying for a driving permit,
he did not affirmatively state that he never drove himself places. The State did not
directly ask A.J.O. whether he ever drove a car, irrespective of whether he had a
permit. While the bailiff did assert that juror 11 had “indicated [the issue] had to do
with a witness and mentioned something about being truthful under oath,” juror 11
herself did not frame the issue that way when questioned by the court. After
describing what she had seen, she simply said, “I’m not sure if this is an important
piece of information. I just thought it, I thought that I should bring that to your
attention.” The court consulted with counsel at sidebar and, after juror 11 was no
longer in the courtroom, heard from the parties before recalling juror 11 for further
inquiry and to give curative instructions. The judge then took further argument
from the parties before ruling and ultimately noted,
She was quite adamant—because that may not have come through—that she could disregard this information. She’s followed the court’s instructions. Frankly, she brought this to the court’s attention. Some jurors may not have, to be honest. I’m convinced based on her demeanor and how quickly she answered that she will put this aside.
As such, the court’s ruling to deny the motions of counsel for both defendants to
dismiss juror 11 was based in part on this express finding that she was credible.
The defense argues that the prejudice here stems from the fact that juror
11 observed an occurrence that caused her to believe that A.J.O. was not a
credible witness and the manner by which the issue was framed when alerting the
bailiff is evidence of that prejudice. The State misses the crux of the defense
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assignment of error by focusing on the fact that a misdemeanor driving offense is
not an impeachable offense, particularly where there is no conviction. But that is
not what appellants assert here. Their contention is that despite the fact that the
record is clear A.J.O. never stated in his testimony that he never drove a car, juror
11 interpreted or recalled that testimony in such a way that she believed that she
had caught him lying under oath and felt it was a sufficiently significant issue such
that she needed to alert the judge that a witness may have lied on the stand.
While this court must presume that jurors follow the instructions of the court,
the defense contends that the mere fact that juror 11 notified the court rebuts that
presumption. This is incorrect. Juror 11’s action demonstrates that she adhered
to the court’s initial jury instructions that specifically directed the jurors to notify the
bailiff if they were uncertain about outside information. Among the instructions
provided to the jury at the start of trial, the judge expressly commanded the
following with regard to outside information:
It is your duty as a juror to decide the facts in this case based upon the evidence presented to you in this trial. Evidence is a legal term. It includes testimony of witnesses, documents, and physical objects. .... It’s essential to a fair trial that everything you learn about this case comes to you in this courtroom and only this courtroom. You must not allow yourself to be exposed to outside information about this case. .... You need to keep your mind free of outside influences, so that your decision will be based entirely on the evidence presented during the trial, and on my instructions to you about the law. .... If you become aware that you or another juror has been exposed to outside information, please privately notify [the bailiff]. Don’t discuss the matter with other jurors.
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After a probing inquiry by the court, juror 11 received additional curative
instructions from the judge and unequivocally stated that she could follow them.
She affirmed that she would not consider her observations of A.J.O. driving the car
in her assessment of the testimony, or the case broadly, and repeatedly committed
to following the judge’s instruction on the matter. The court found her to be credible
throughout her entire examination on the issue. However, the defense asserts that
the fact that juror 11 appeared to have already made a conclusion about A.J.O.’s
truthfulness, based on consideration of information obtained outside the
courtroom, establishes that she did not follow the court’s preliminary instructions
on that precise topic from the start of trial.
The record, however, does not demonstrate that juror 11 failed to follow
either the trial court’s general jury instructions or specific curative instructions. The
question then becomes whether the inquiry and rehabilitation by the court was
sufficient under the circumstances, particularly in light of its finding that juror 11
was credible on this subject. Under Sassen Van Elsloo, the required standard
dismissal of a juror is that the juror expressed or formed a biased opinion and
cannot try the issue impartially. 191 Wn.2d at 808. Here, the defense has not
established that juror 11 could not have disregarded her biased opinion about
A.J.O.’s truthfulness and try the case impartially. In briefing, all parties argue at
length about the significance of A.J.O.’s testimony and its potential effect on juror
11. Elaster and Miller imply that the court retained juror 11 primarily to avoid having
to declare a mistrial due to insufficient jurors, suggesting that dismissing juror 11
was otherwise necessary. The record does show that the judge had concerns
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about the ability to proceed because juror 9 had been excused for a medical
reason, leaving the court without any alternate jurors. However, the trial judge has
discretion in deciding whether to retain or dismiss a juror and, here, did not
necessarily have to decide between retaining juror 11 so that the trial could
proceed and A.J.O.’s impact as an important defense witness.
In Sassen Van Elsloo, the court held that “[t]he importance of a witness
alone is not a proper basis on which to dismiss an impaneled juror . . . if the record
does not indicate that the juror displayed actual bias.” Id. at 810. A.J.O. was
indeed a significant defense witness who testified that he slept in the living room
and did not observe Miller entering the home during the night, or entering the
bedroom with Elaster and A.M.O. where she alleged the abuse occurred.
Nonetheless, Elaster and Miller do not demonstrate that juror 11 displayed actual
bias that affected her views on the merits of A.J.O.’s testimony, particularly after
being directly instructed to do just that. A mere possibility of bias is not enough.
Id. at 810. It is reasonable in light of the court’s finding on her credibility to presume
that juror 11’s initial concern about the truthfulness of A.J.O.’s testimony did not
make a difference in her determination of his credibility as a witness after the court
told her plainly, “You’re not to consider this in evaluating the evidence in this case,
evaluating any particular testimony, and you’re not to discuss it with the jurors. So
that’s my—I’m ordering you to do that, but now I need to ask you, can you follow
that instruction?” After juror 11 responded, “Yes, Your Honor,” the court continued,
“Okay. And so you understand this has to be not considered by you at all in making
your decision in this case?” Juror 11 again responded, “Yes, Your Honor.” Further,
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while A.J.O. was an important defense witness, he acknowledged during his
testimony that it was possible he may not have noticed people entering the house
when he was asleep and another witness testified that she did enter and exit the
house when A.J.O. was sleeping in the living room which suggested it was possible
for Miller to have done so as well. As such, there was evidence independent of
juror 11’s observation of A.J.O. driving that called his credibility into question
regarding his observations in the home. The trial court did not abuse its discretion
when it denied the defense motions to dismiss juror 11.
II. Right To Present a Defense
Elaster assigns error to the trial court’s ruling to exclude evidence that
A.M.O. had made allegations against other people besides Miller and Elaster and
other children with whom A.M.O. resided also made allegations of abuse against
others. She specifically claims that the exclusion of this evidence violated her right
to present a defense as it showed that Spears had created “an environment of
constant disclosure” of purported sexual abuse. We apply a two-part analysis to
determine if a defendant’s right to present a defense has been violated. State v.
Jennings, 199 Wn.2d 53, 58, 502 P.3d 1255 (2022). First, any evidentiary ruling
is analyzed for abuse of discretion. State v. Arndt, 194 Wn.2d 784, 797-98, 453
P.3d 696 (2019). “‘A trial court abuses its discretion when its decision is manifestly
unreasonable or exercised on untenable grounds or for untenable reasons.’” State
v. Bartch, 28 Wn. App. 2d 564, 590-91, 537 P.3d 1091 (2023) (quoting State v.
Lord, 161 Wn.2d 276, 283-84, 165 P.3d 1251 (2007)), review denied, 2 Wn.3d
1026 (2024). If the reviewing court concludes that the evidentiary ruling was not
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an abuse of discretion, the analysis proceeds to the second step: de novo review
to determine whether the defendant’s rights under the Sixth Amendment to the
United States Constitution were violated. Jennings, 199 Wn.2d at 58; see also
Arndt, 194 Wn.2d at 797-814. Here, the trial court considered proffered defense
evidence under ER 403 which “allow[s] exclusion of relevant evidence if, inter alia,
‘its probative value is substantially outweighed by the danger of unfair prejudice,
confusion of the issue or misleading the jury.’” State v. Orn, 197 Wn.2d 343, 353,
482 P.3d 913 (2021) (quoting ER 403).
A.M.O. and her siblings had resided with their maternal uncle Reginald and
Spears for a few years before the abuse at issue here occurred. Elaster’s three
younger children, A.J.O, A.M.O., and A.A.O., returned to Spears’ home in June
2018 after living with Elaster at Anderson’s home. Spears had cared for A.M.O.
and her siblings, along with her own children and others, when they were in her
home. A.M.O. disclosed the abuse to Spears, who then informed Reginald.
Elaster avers that evidence of A.M.O.’s allegations of abuse against a
number of other people, and Spears’ concerns after a report of a “bad dream” by
another child in Spears’ care, was essential to the defense theory that Spears
created “an environment of constant disclosure” in her home. The defense sought
to introduce evidence of additional allegations of sexual abuse made by A.M.O.
that named a maternal “uncle” Clifton Elaster, 6 two men who had lived on the same
property as A.M.O. and Elaster, Brian Moses and Curtis Carbaugh, and “Frank,”7
6 As with Reginald, we use Clifton’s first name for clarity. 7 This “Frank” is a different person than Frank Anderson Jr., Elaster’s former partner, and
Frank Anderson Sr., the owner of the home where the charged incidents of abuse occurred.
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a friend of A.M.O.’s older brother, Anthony. The defense also sought to present a
report from another child in Spears’ care, M.R., that “a monster used to come and
touch her at night” as an example of disclosure that Spears interpreted as sexual
abuse. Defense counsel for both Miller and Elaster offered this evidence to “round
out how this child’s story grew and evolved and shed light on her state of mind
while in the custody of Reginald and Spears.” The defense intended to have
Carbaugh and Moses testify and anticipated that they would each deny the
allegations.
The trial court ruled that the evidence of these other allegations was
inadmissible. First, ruling on the admission of the allegations against Clifton and
the teenager Frank, the trial court said,
To the extent when one can try to make an argument that they are admissible somehow to show the circumstances of where [A.M.O.] was living, I have to apply a 403 and say, you know, at some point there is—the probative value of this evidence where it can’t even be—there is no evidence they’re false is relatively low. And the injecting additional claims, I think, [t]he [c]ourts have recognized about sexual assault, alleged sexual assault on the victim. The probative value is relatively low. And the prejudice in getting into these other areas is high.
Then, ruling on the admissibility of the allegations against Carbaugh and Moses,
the court emphasized that there was little probative value in having two uncharged
alleged perpetrators of sexual assault come and testify that A.M.O.’s accusations
against them were false, because all they could offer was testimony as to the falsity
of those allegations without any corroborating evidence. The court further noted
that “the probative value of this evidence is low and the prejudicial impact is
relatively high, in terms of both confusing the juror, extending the trial into issues
that aren’t directly relevant”.
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In making this determination, the court referred to the reasoning set out in
State v. Lee. 188 Wn.2d 473, 396 P.3d 316 (2017). There, our Supreme Court
ruled that the trial court did not abuse its discretion when it prohibited Lee from
questioning the victim about a prior accusation of rape that she later admitted was
false. Id. at 486. Lee was allowed to cross-examine the victim about a false report
she had made to police but was barred from mentioning that it was a rape
allegation. Id. at 487. Further, the Supreme Court noted that the victim’s “prior
false rape accusation had minimal probative value because it did not directly relate
to an issue in the case. Rather than demonstrate a specific bias or motive to lie,
which would be highly probative, the evidence invited the jury to infer that [the
victim] is lying because she has lied in the past.” Id. at 488.
The trial court here also referred to State v. Demos, 94 Wn.2d 733, 619
P.2d 968 (1980). In Demos, the defendant challenged the decision of the trial court
to exclude “two prior rape complaints by the victim, reports which the defendant
characterize[d] as arguably false.” Id. at 733. The trial court in Demos grounded
this ruling in the “rape shield law” 8 and its finding that “apart from the statute, the
remoteness of time and the prejudicial effect of this evidence outweighed any
logical connection to her credibility about the current charge.” Id. at 736. Our
Supreme Court upheld the exclusion, explaining that the “trial court did not abuse
its discretion in denying admission of evidence which had no tendency to prove
anything in the dispute and which would have been highly prejudicial.” Id. at 737.
8 RCW 9A.44.020
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Here, the trial court was well within its discretion when it excluded evidence
relating to other allegations made by A.M.O. By their own admission, the defense
attorneys sought admission of this evidence as a gambit to imply that Spears
created what Elaster’s trial counsel characterized as “an environment of constant
disclosure.” The decision to exclude the other allegations was entirely reasonable
because, as in Lee and Demos, these particular allegations against people other
than the co-defendants would have been highly prejudicial, of minimal probative
value, and risked confusing the issue; all proper grounds for exclusion under ER
403. As the case against Elaster and Miller depended heavily on testimony from
the victim herself, the defense sought the admission of this evidence in order to
more clearly illustrate the circumstances in which A.M.O.’s allegations arose.
However, it had limited probative value for that proposition and the trial court did
not err when it excluded it.
Having determined that the initial evidentiary ruling was not an abuse of
discretion, we move to the second step of the Jennings test. We consider
violations of a defendant’s constitutional right to present a defense de novo.
Jennings, 199 Wn.2d at 58; Bartch, 28 Wn. App. 2d at 590. Here, Elaster and
Miller’s rights to present a defense were not unduly burdened because they were
able to develop the desired theme during their cross-examination of Spears.
Elaster states that they sought to admit the evidence of other allegations to paint
a picture of the Spears household environment as one that “produced accusations
from A.M.O. against a large number of men” and turned the story of another child
in the home, M.R., about a “monster” into another disclosure of sexual abuse.
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During defense cross-examination of Spears, counsel for Miller asked a
number of questions to develop the shared defense theory that Spears was
soliciting allegations from the children in her care. For example, Spears testified
that after she had questioned A.M.O. about an allegedly graphic story A.M.O. had
written, Spears was not satisfied with answer she received from the child. Spears
also testified that she took a phone away from A.A.O. for communicating with
someone “older than her age at that time.” Spears testified she would routinely
check in with the children to see how they were fairing; the defense’s line of
questioning seems intended to suggest that Spears could not leave an issue alone
when she had a feeling something was wrong. Counsel also questioned Spears
about the “birds and the bees” discussion she had with all the children. Defense
inquired about Spears’ household rule that women should bend at the knees,
rather than bending over at the waist, and concluded with questions about Spears
feeling that there was inappropriate stuff happening between the children. The
record demonstrates that the defense had ample opportunity to develop its theme
regarding Spears’ alleged preoccupations. Elaster’s right to present a defense
was not violated.
III. Ineffective Assistance of Counsel
Elaster next argues that her trial counsel rendered constitutionally
ineffective assistance by failing to object to what she characterizes as the State’s
generic tailoring assertion when cross-examining Miller. We disagree.
The Sixth Amendment and article I, section 22 of the Washington
Constitution guarantee the right to effective assistance of counsel. U.S. CONST.
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amend. VI; W ASH. CONST. art. I, § 22. We review ineffective assistance of counsel
(IAC) claims de novo. State v. Jones, 183 Wn.2d 327, 338-39, 352 P.3d 776
(2015).
The United States Supreme Court set out a two-pronged test for
evaluating whether a defendant had constitutionally sufficient representation in
Strickland v. Washington. 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984); see also State v. Cienfuegos, 144 Wn.2d 222, 226, 25 P.3d 1011 (2001).
Under Strickland, the defendant must show both deficient performance and
resulting prejudice to prevail on an ineffective assistance claim. 466 U.S. at 687.
In order to prevail on an IAC claim based on failure to object as presented here,
the defendant must demonstrate that the objection would have been sustained.
In re Det. of Monroe, 198 Wn. App. 196, 205, 392 P.3d 1088 (2017). Because
Elaster’s IAC challenge is premised on a claim of failure to object to a generic
tailoring assertion by the State, we first consider whether such an allegation was
present.
A. State’s Assertion of Tailoring
“The right to ‘appear and defend in person,’ to testify on [their] own behalf,
and to confront witnesses against [them]” are guaranteed by the Sixth Amendment
and article I, section 22. State v. Berube, 171 Wn. App. 103, 114, 286 P.3d 402
(2012) (quoting W ASH. CONST. art. I, § 22). We review alleged constitutional
violations de novo. State v. Wallin, 166 Wn. App. 364, 367, 269 P.3d 1072 (2012).
A claim of “tailoring” suggests that the defendant adjusted their testimony to match
the evidence they heard during trial. State v. Carte, 27 Wn. App. 2d 861, 871, 534
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P.3d 378 (2023), review denied, 2 Wn.3d 1017 (2024). Tailoring arguments can
be “specific” or “generic.” Id.; see also Berube, 171 Wn. App. at 115-17. The
tailoring arguments are “specific” if “derived from the defendant’s actual testimony”
and “generic” “if based solely on the defendant’s presence at the proceeding and
not based on the defendant’s direct examination or cross-examination.” Carte, 27
Wn. App. 2d at 871.
In Carte, this court noted that a majority of the U.S. Supreme Court held in
Portuondo v. Agard, 529 U.S. 61, 73, 120 S. Ct. 1119, 146 L. Ed. 2d 47 (2000) that
tailoring arguments do not violate the Sixth Amendment right to be present at trial
and confront witnesses, but Justice Ginsburg dissented and argued that tailoring
allegations should only be raised during cross-examination, rather than in closing
arguments, in order to avoid constitutional violation. Id. at 871-72; see also State
v. Holmes, 31 Wn. App. 2d 269, 289, 548 P.3d 570, review denied, 3 Wn.3d 1024
(2024). Carte further explained that, in State v. Martin, 9 our state Supreme Court
expressly adopted Justice Ginsburg’s dissent in Portuondo and held that a specific
tailoring argument is appropriate during cross-examination, but “‘a comment in
closing argument “tied only to the defendant’s presence in the courtroom and not
to his actual testimony”’ violates the right to be present at the trial and confront
witnesses.” Carte, 27 Wn. App. 2d at 872 (quoting Martin, 171 Wn.2d at 535
(quoting Portuondo, 529 U.S. at 77 (Ginsburg, J., dissenting))).
Here, Elaster argues that her attorney was ineffective when he failed to
object to the State’s generic tailoring claim during its cross-examination of Miller.
9 171 Wn.2d 521, 252 P.3d 872 (2011).
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On appeal, Elaster cites Carte, but frames the issue as one of generic tailoring.
Review of the actual interaction at trial, through the framework of the definitions
set out in case law, demonstrates that this is incorrect. The following exchange
occurred during Miller’s cross-examination:
[State]: You’ve had a lot of time to think about what you’re going to say today, haven’t you, Mr. Miller?
[Miller]: Yeah. I’m telling you the truth.
[State]: And you’ve had a lot of time to look over the police reports like you talked about earlier?
[Miller]: The discovery when it was given to me, yes.
[State]: And you’ve had a lot of time to look back at your own statements, haven’t you?
[Miller]: Some of them.
[State]: When you were interviewed by Detective Rossmeier of the Kent Police Department, he asked you were you and [Elaster] together in a bedroom with A.M.O, and you told him no. Isn’t that right?
[Miller]: I can’t recall exactly what my testimony was.
[Elaster’s counsel]: Which page and line?
[State]: The page number is 32, and the lines are 6 through 8. If I could have this marked.
CLERK: Exhibit 37 is marked.
[State]: Mr. Miller, I’m handing you what’s been marked as State’s Exhibit 37 entitled “Transcript of Billy Miller Interview.” I’d ask that you look at page 32 and read to yourself lines 6 through 8.
[Miller]: May I please get my glasses?
[State]: Yes.
[Miller]: Page 32?
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[State]: Yes. Lines 6 through 8. Does that refresh your memory about what Detective Rossmeier asked you and what your answer was?
[Miller]: Yes.
[State]: What did he ask you?
[Miller]: He asked me if me, [Elaster], and [A.M.O.] was ever in bed together.
[State]: Alone in a bedroom together. Is that right?
[State]: And what was your answer?
[Miller]: No.
The State’s tailoring argument stems from Miller’s statement to the detective and
directly relates to the discrepancies between that earlier narrative and his trial
testimony, making it specific tailoring rather than generic. Miller opened the door
to the State’s line of questioning on tailoring when he admitted that he reviewed
the police report containing his prior statement to Rossmeier. During direct
examination, Miller twice volunteered that he had read the police reports during
the pendency of the case:
[Stimmel, Miller’s defense counsel]: Do you know—you’ve heard about this story that [A.M.O.] wrote, correct?
[Miller]: I’ve heard about it. I’ve never seen it.
[Stimmel]: This story that—is that the story that started this case as far as you know?
[Miller]: From what I’ve read in the police reports and everything, that story is what caused everything.
[State]: Your Honor, objection.
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COURT: Sustained.
[Stimmel]: But you’ve never seen this story?
[Stimmel]: Do you know anybody who’s seen it except [A.M.O.]?
[Miller]: From what I was told in the police report and what I know from this case, there’s been five people that know about this story.
[State]: Your Honor, objection, hearsay. Move to strike.
COURT: Sustained. I’ll strike the last statement.
Unsolicited, Miller included in his answers during direct examination references to
evidence he learned about through his review of the discovery prior to trial. The
prosecutor’s questioning about this, and insinuation that Miller had tailored his
testimony based on the discovery he had read, is consistent with the rule
articulated in Martin and relied upon in Carte. As Elaster pointed out in her opening
brief, the State did not present any physical evidence in support of the charges it
brought, and the jury’s verdicts hinged on the credibility of both Miller and Elaster.
As such, it was reasonable and fair for the prosecutor to ask questions that would
help the jury to understand whether Miller was honestly recounting what happened
or had tailored his testimony at trial.
B. Failure To Object
Again, to demonstrate IAC based on a failure to object, a defendant must
show that the objection would have been sustained in order to meet the prejudice
standard under Strickland. See Monroe, 198 Wn. App. at 205; State v. Fortun-
Cebada, 158 Wn. App. 158, 172, 241 P.3d 800 (2010). Given the facts of Miller’s
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testimony, it was reasonable for the prosecution to ask questions designed to
clarify for the jury whether Miller was truthful and the specific tailoring assertion
here was proper under Martin. Accordingly, Elaster is unable to establish that any
objection by her attorney to the State’s tailoring argument against Miller would
have been sustained. Elaster’s trial counsel was not deficient for failing to object
to a permissible claim of tailoring. Under Strickland, both deficient performance
and prejudice must be proven, and without one, the ineffective assistance
challenge fails. 466 U.S. at 687. Accordingly, Elaster does not carry her burden
on her claim of IAC for failure to object.
IV. Community Custody Conditions
Next, Elaster challenges two community custody conditions imposed by the
trial court and set out in appendix H to her judgment and sentence (J&S) as one
of several “special conditions” for sex offenses: condition 5, which restricts dating
relationships and requires her to disclose her status as a sex offender to potential
intimate partners, and condition 8, which requires she consent to random searches
by the Department of Corrections (DOC). The State asserts that condition 5 is
crime-related and not unconstitutional and that condition 8 is not yet ripe for review.
We agree with the State on both points.
A. Condition 5
Elaster contends that the requirement to disclose her sex offender status
prior to any sexual contact with others is not crime-related and violates her
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constitutional right to free speech, which includes the right to refrain from speaking.
We disagree.
Condition 5 reads as follows:
Inform the supervising [community custody officer] and sexual deviancy treatment provider of any dating relationship. Disclose sex offender status prior to any sexual contact. Sexual contact in a relationship is prohibited until the treatment provider approves of such.
Both Divisions One and Three of this court have held in several published opinions
that an identical condition was both crime-related and constitutional. See State v.
Lee, 12 Wn. App. 2d 378, 402, 460 P.3d 701 (2020); State v. Gantt, 29 Wn. App.
2d 427, 456-57, 540 P.3d 845, review denied, 3 Wn.3d 1002 (2024); In re Pers.
Restraint of Sickels, 14 Wn. App. 2d 51, 60-61, 469 P.3d 322 (2020); State v.
Autrey, 136 Wn. App. 460, 468, 150 P.3d 580 (2006). In Lee, this court noted that
the “right not to speak is protected both by the First Amendment to the United
States Constitution and by article I, section 5 of the Washington Constitution.
However, ‘[a]n offender’s usual constitutional rights during community placement
are subject to SRA[10]-authorized infringements.’” 12 Wn. App. 2d at 401-02
(quoting State v. Hearn, 131 Wn. App. 601, 607, 128 P.3d 139 (2006)). The panel
in Sickels concluded that only the third sentence of the challenged condition was
subject to the “crime-relatedness” standard under RCW 9.94A.703(3)(f), and
further held that it is reasonably related to the safety of the community and narrowly
tailored to prevent future harm. 14 Wn. App. 2d at 60-61.
10 Sentencing Reform Act of 1981. Ch. 9.94A RCW.
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Elaster’s freedom is restricted under community placement as it is during
incarceration. See State v. Ross, 129 Wn.2d 279, 287, 916 P.2d 405 (1996). This
condition has been repeatedly examined in response to similar arguments and
held to be constitutional. We reject Elaster’s challenges to condition 5.
B. Condition 8
Elaster also brings a preenforcement challenge to another community
custody condition, but it is not yet ripe for appellate review. Condition 8 states as
follows:
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.
Our Supreme Court considered whether a similar community custody condition
was ripe for review in State v. Cates. 183 Wn.2d 531, 533-34, 354 P.3d 832 (2015)
(“You must 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.” (Alteration in original.)). It
relied on a number of cases defining an issue as 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). In
rejecting Cates’ challenge as not yet ripe, the court explained that “[s]ome future
misapplication of the community custody condition might violate article I, section 7
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[of our state constitution], but that ‘depends on the particular circumstances of the
attempted enforcement.’ Further factual development is therefore needed—the
State must attempt to enforce the condition by requesting and conducting a home
visit after [the defendant] is released from total confinement.” Id. at 535 (citation
omitted) (quoting Sanchez Valencia, 169 Wn.2d at 789).
Elaster cites two unpublished cases, State v. Franck11 and State v.
Daniels, 12 in support of her position on this issue, but avoids Cates entirely.
However, neither of these cases is controlling on the issue of ripeness. Further,
this court recently rejected Franck as authority on this same sort of challenge in
Holmes. 31 Wn. App. 2d at 293 (“Franck is not controlling or persuasive on the
issue of ripeness.”). More critically, Elaster fails to explain why this court should
follow unpublished intermediate appellate opinions over controlling case law from
our Supreme Court. We follow Cates and conclude that this condition is not ripe
for review.
V. Legal Financial Obligations
Finally, Elaster asserts and the State concedes that this court should
remand for the trial court to strike both the victim penalty assessment and DNA
collection fee from her J&S based on its finding of indigency at sentencing and
amendments to the relevant statutes that became effective while her appeal was
pending. We accept the State’s concession and remand for correction of the J&S
11 No. 51994-1-II (Wash. Ct. App. Feb. 4, 2020) (unpublished), https://www.courts.wa.gov/
opinions/pdf/D2%2051994-1-II%20Unpublished%20Opinion.pdf. 12 No. 54094-1-II (Wash. Ct. App. Aug. 3, 2021) (unpublished), https://www.courts.wa.gov/
opinions/pdf/D2%2054094-1-II%20Unpublished%20Opinion.pdf, review denied, 198 Wn.2d 1035 (2022).
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to reflect the current law regarding the imposition of legal financial obligations on
indigent defendants.
Affirmed in part, reversed in part, and remanded for the trial court to strike
the legal financial obligations.
WE CONCUR:
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