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38 IN THE COURT OF APPEALS OF THE STATE OF W.
1 DIVISION II UT STATE OF WASHINGTON, No. 43573 -0 -II
Respondent,
V.
ROBERT LUCAS WOODWARD, UNPUBLISHED OPINION
ellant.
PENOYAR, J. — Robert Woodward appeals his convictions and sentence for first degree
child molestation and first degree child rape. Woodward argues ( 1) prosecutorial misconduct
denied him a fair trial,, (2) he received ineffective assistance of counsel when his trial counsel
failed to object to the prosecutor' s closing statements, ( 3) he was convicted by a biased jury, (4)
the trial court violated his right to a jury trial by not requiring the jury to make a finding on same
criminal conduct, and ( 5) the trial court should have sentenced him under the sentencing scheme
in effect prior to September 1, 2001. We affirm Woodward' s convictions, but vacate his
sentence and remand for the trial court to sentence him under the sentencing scheme in effect
prior to September 1, 2001.
FACTS
A.G. and H.G. began living with their grandmother, Amanda Woodward, and step-
grandfather, Woodward, in 1999. A.G. was five years old and H.G. was three years old when
they moved in with their grandparents.
In early 2011, A.G. reported to her friend and grandmother that Woodward had molested
her and H. G. The State charged Woodward with first degree child molestation of H.G. between
1, 1999 August 30, 2008 ( I); first degree child molestation of A. G. between January and count 43573 -0 -II
January 1, 1999 and January 31, 2006 ( count II); and first degree rape of a child of A.G. between
January 1, 1999 and January 31, 2006 ( count III). The jury was unable to reach a verdict in the
first trial and the trial court declared a mistrial.
The State retried Woodward in April 2012. During jury selection for the retrial, the trial
court denied Woodward' s motions to excuse jurors 3, 26, and 27 for cause. Woodward used two
of his seven peremptory challenges to excuse jurors 3 and 26, and exhausted his challenges
without removing juror 27.
During individual questioning, juror 3 said that when his wife was 12 years old, she and
her younger sister were forcibly raped by their mother' s boyfriend. He said the boyfriend was
not convicted due to issues with evidence, but that his wife still had problems secondary to the
incident. When he heard what the charged crime was, juror 3 said a " shiver [ went] up [ his]
spine." IV Report of Proceedings ( RP) at 604. He said that " this would be the more disgusting
So in doing they do, this is this is not thing for me. all the possibilities of people whatever not —
really good at all." IV RP at 602. Despite his wife' s experience, juror 3 stated he believed he
could " probably" make a fair determination in the case. IV RP at 602. Juror 3 said he would
base his decision on the evidence and "[ f]rom whatever you give— whatever information you
give me ... and I guess, the Judge would tell me what the law is." IV RP at 606 -07.
During group questioning, juror 26 raised her hand when defense counsel asked if anyone thought they were too sympathetic or empathetic. Juror 26 stated she is pretty sympathetic to
other people' s issues and that she was not sure if she could put her sympathy. aside during
deliberations. When questioned further by the State, juror 26 said she thought she could base her
decision on the evidence and the law, and not let sympathy overcome the evidence or the law.
2 43573 -0 -II
During individual questioning, juror 27, who had been a teacher for 40 years, said he had
A. G. in class one year when he was a substitute teacher. Juror 27 also stated that he knew
several of the children on the witness list, and that he was the IEP manager at high school for one
of the witnesses. The State' s attorney also noted that he grew up with juror 27' s children. Other
than stating it may be. awkward being a juror because he knew some of the witnesses, juror 27
said that having had A.G. in class, knowing some of the witnesses, and his children growing up
with the State' s counsel would not affect his ability to be fair and impartial.
At trial, both Woodward and his wife testified that Woodward suffered from several
medical conditions and had undergone treatment that resulted in Woodward not having any
sexual interest and being unable to engage in sexual activity. During the pretrial investigation,
however, Woodward' s wife told a detective that she and Woodward had a normal, healthy sex
life.
During closing argument, the State commented on the lack of medical evidence to
support Woodward' s and his wife' s testimony that Woodward suffered from illnesses that made
him incapable of committing the charged crimes. The State said:
S] omehow those treatments or illnesses starting in 1999 prevented him from having either the opportunity or the sexual interest to have committed the crimes that he' s alleged to have committed.
And yet both parties are entitled to the —you know, your verdict is to be based upon the evidence and lack of evidence.... And your instructions tell you that both sides have —are entitled to the benefit of the evidence, regardless of who introduced evidence. I would submit to you that that extends implicitly, if not explicitly in the instructions, to the lack of evidence.
And when the claim is made that the defendant has some sort of medical issue that prevents him from even being capable of committing the crime that he' s accused to have committed, and when any reasonable person with a medical claim that would have prevented them from some medical condition having the ability to commit the crimes with which he was committed would come forward with
3 43573 -0 -II
some sort of medical evidence that here' s— here' s the evidence, here' s the doctor the nurse, here' s the medical records, something that documents that I have this condition and that it — has it resulted in these effects.... Those things would be presented to byyou a reasonable person. And —and you don' t have any evidence along those lines in this case.
VI RP at 1133 -34. Woodward did not object to the State' s arguments in closing.
The jury returned guilty verdicts on all three counts. The trial court sentenced Woodward
to indeterminate sentencing pursuant to RCW 9. 94A.507. The trial court determined Woodward
had an offender score of 6 and sentenced him to life in prison, with a minimum term of 130
months on counts I and II and 216 months on count III. Woodward timely appeals.
ANALYSIS
I. PROSECUTORIAL MISCONDUCT
Woodward argues that prosecutorial misconduct denied him a fair trial. Specifically, he
argues the State improperly shifted the burden of proof in closing argument by commenting on
the lack of medical evidence to support Woodward' s defense that he was incapable of
committing the charged crimes due to his medical conditions. Woodward also argues his trial
counsel was ineffective for failing to object to the prosecutor' s statements. Because the
prosecutor' s statements were not improper, the prosecutor did not commit misconduct and
Woodward was not denied effective assistance of counsel.
A. STANDARD OF REVIEW
A defendant who alleges prosecutorial misconduct bears the burden of proving that, in
the context of the record and circumstances of the trial, the prosecutor' s conduct was both
improper and prejudicial. In re Pers. Restraint of Glasmann, 175 Wn.2d 696, 704, 286 P. 3d 673
2012). A defendant can establish prejudice by showing a substantial likelihood that the
misconduct affected the jury verdict. Glasmann, 175 Wn.2d at 704. Where the defendant fails
M 43573 -0 -II
to object to the prosecutor' s improper statements at trial, such failure constitutes a waiver of
claims of prosecutorial misconduct unless the prosecutor' s statements are so flagrant and ill-
intentioned that an instruction would not have cured the prejudice. Glasmann, 175 Wn.2d at
704. The focus of this inquiry is more on whether the resulting prejudice could have been cured,
rather than the flagrant or ill-intentioned nature of the remarks. State v. Emery, 174 Wn.2d 741,
762, 278 P. 3d 653 ( 2012).
In determining whether the misconduct warrants reversal, we consider its prejudicial
nature and cumulative effect. State v. Boehning, 127 Wn. App. 511, 518, 111 P. 3d 899 ( 2005).
We review a prosecutor' s remarks during closing argument in the context of the total argument,
the issues in the case, the evidence addressed in the argument, and the jury instructions. State v.
Dhaliwal, 150 Wn.2d 559, 578, 79 P. 3d 432 ( 2003). 1
B. IMPROPER STATEMENTS
We first consider whether the prosecutor' s statements were improper. Glasmann, 175
Wn.2d at 704. Here, the State commented on the lack of medical evidence to support
Woodward' s defense and argued that a reasonable person would have presented such medical
evidence. Woodward did not object to these closing statements.
1 Woodward improperly states that we should apply the constitutional harmless error standard. Our Supreme Court declined to adopt the constitutional harmless error - standard in a prosecutorial misconduct case where the appellants contended that it was the appropriate standard because the prosecutor' s remarks violated their right to the presumption of innocence and shifted the burden of proof. Emery, 174 Wn.2d at 756 -58. Here, Woodward argues only that the prosecutor' s closing arguments shifted the burden of proof. Accordingly, as the Supreme Court did in Emery, we decline to adopt the constitutional harmless error standard here. 5 43573 -0 -II
A prosecutor has wide latitude to argue reasonable inferences from the evidence; but it is
improper for the prosecutor to argue that the burden of proof rests with the defendant. State v.
Thorgerson, 172 Wn.2d 438, 453, 258 P. 3d 43 ( 2011). A prosecutor may commit misconduct if
he mentions in closing argument that the defense failed to present witnesses or if he states that
the jury should find the defendant guilty based simply on the defendant's failure to present
evidence to support his defense theory. State v. Sells, 166 Wn. App. 918, 930, 271 P. 3d 952
2012) ( citing State v. Jackson, 150 Wn. App. 877, 885, 209 P. 3d 553 ( 2009)), review denied,
176 Wn.2d 1001 ( 2013). However, "` [ t] he mere mention that defense evidence is lacking does
not constitute prosecutorial misconduct or shift the burden of proof to the defense.' A prosecutor
is entitled to point out a lack of evidentiary support for the defendant' s theory of the case." Sells,
166 Wn. App. at 930 ( alteration in original) ( quoting Jackson, 150 Wn. App. at 885 -86).
In Jackson, during closing argument, the prosecutor stated " there was not a single shred
of testimony in this case to corroborate [ the defendant' s girl friend' s] story and .. '. the jury
should compare Jackson' s evidence with the State' s evidence." Jackson, 150 Wn. App. at 885.
Because the mere mention that evidence is lacking does not constitute prosecutorial misconduct
and because the prosecutor in Jackson clearly explained to the jury that the State had the burden
of proof, this court held the prosecutor did not commit misconduct. Jackson, 150 Wn. App. at
885 -86. Similarly, in Sells, the defendant was charged with second degree identity theft, and
during closing argument the prosecutor commented on the lack of evidence to show that the
North Beach School District superintendant' s name was not on the visa card the defendant
stole from the school district. Sells, 166 Wn. App. at 929 -30. Division One of this allegedly
court held the prosecutor' s statement was not improper and did not constitute misconduct. Sells,
166 Wn. App. at 929 -30.
C 43573 -0 -II
The prosecutor in this case clearly explained to the jury that the State had the burden of
proof: " I represent the prosecution. And the prosecution carries the ... must meet the burden of
2 proof. We have. the burden [ of proof.] , VI RP at 1135. The prosecutor did not imply that
Woodward was required to present evidence or that the jury should find Woodward guilty based
on his decision to present only his and his wife' s testimony on his medical conditions. The
prosecutor merely commented on the lack of medical evidence to support Woodward' s defense
theory that he was unable to commit the charged crimes due to his medical conditions and stated
that a reasonable person would have presented evidence. The mere mention that defense
evidence is lacking does not constitute prosecutorial misconduct or shift the burden of proof to
the defense. Jackson, 150 Wn. App. at 885 -86.
Woodward relies on State v. Toth, 152 Wn. App. 610, 217 P. 3d 377 ( 2009), to argue that
a prosecutor' s comment on the defendant' s failure to put forward evidence in support of his
defense constitutes prosecutorial misconduct. The defendant in Toth was convicted with felony
driving under the influence. Toth, 152 Wn. App. at 612. The prosecutor stated in closing
argument that the defendant failed to present any witness or evidence to corroborate his defense
that he was at his brother' s house before driving where he claimed he drank only two beers and a
sip of whiskey. Toth, 152 Wn. App. at 615. The court held the prosecutor committed
misconduct because he implied the defendant " had a duty to present evidence by stating that [ the
defendant] did not produce corroborating evidence by calling specific witnesses to testify" and
2 The jury instructions also clearly stated that the State had the burden of proof. VI RP at 1115 The State is the plaintiff and has the burden of proving each element of each crime beyond a reasonable doubt. The defendant has no burden of proving that a reasonable doubt exists as to these elements. "). 7 43573 -0 -II
that the jury could then improperly infer that the defendant had the burden to prove he was not
intoxicated. Toth, 152 Wn. App. at 615.
In Toth, the prosecutor commented on the defendant' s failure to produce evidence
regarding a fact question — where the defendant was and how much he drank before driving —
and a specific element of the crime —intoxication. Here, the prosecutor merely commented on
the lack of evidence to corroborate Woodward' s general defense that his medical conditions
prevented him from committing the charged crimes. Because the prosecutor' s comments during
closing argument did not address specific fact questions or elements of the charged crimes in Woodward' s case, Toth is not controlling and does not support Woodward' s prosecutorial
misconduct argument.
Further, under the missing witness doctrine, " the defendant' s theory of the case is subject 3 to the same scrutiny as the State' s. " State v. Montgomery, 163 Wn.2d 577, 598, 183 P. 3d 267
2008). " The prosecutor may comment on the defendant' s failure to call a witness so long as it is
clear the defendant was able to produce the witness and the defendant' s testimony unequivocally
implies the uncalled witness' s ability to corroborate his theory of the case." State v. Contreras,
57 Wn. App. 471, 476, 788 P. 2d 1114 ( 1990). The defendant is able to produce a witness if " the
witness is peculiarly available to the parry, i. e., peculiarly within the [ defendant' s] power to
produce." State v. Cheatam, 150 Wn.2d 626, 652, 81 P. 3d 830 ( 2003).
3 As argued by counsel at oral argument, the missing witness doctrine is not directly at issue here because it must have been " raised early enough in the [ trial] proceedings to provide an opportunity for rebuttal or explanation" of why the witness was not called. State v. Montgomery, 163 Wn.2d 577, 599, 183 P. 3d 267 ( 2008). But the doctrine provides a relevant and useful
analogy to the prosecutor' s comments here. 8 43573 -0 -II
At trial, Woodward' s wife testified that Woodward had seen a doctor regarding his
medical conditions that Woodward and his wife claimed prevented Woodward from being able
to commit the charged crimes. Any doctor Woodward had seen would have been peculiarly
available to Woodward and within his power to produce and likely would have corroborated
Woodward' s defense. Accordingly, the prosecutor' s statements were not improper, especially as
a response to the defense Woodward raised, and the prosecutor did not commit misconduct.
Because the prosecutor' s statements were not improper, Woodward was not denied effective
assistance of counsel when his trial counsel failed to object to the prosecutor' s statements.
II. IMPARTIAL JURY
Woodward next argues the trial court violated his right to due process and his right to an
impartial jury when it improperly denied his challenges to excuse jurors 3, 26, and 27 for cause.
Woodward used two of his seven peremptory challenges to excuse jurors 3 and 26, but did not
excuse juror 27, who ultimately sat on the jury that convicted him. Thus, Woodward contends
that a partial jury convicted him. Because juror 27 was not biased and Woodward used
peremptory challenges to excuse jurors 3 and 26, Woodward was not denied his right to an
impartial jury.
A. RIGHT TO A FAIR AND UNBIASED JURY
The right to a jury trial includes the right to a fair and impartial jury. U. S. CONST. amend.
VI; WASH. CONST. art. I, § 22; City of Cheney v. Grunewald, 55 Wn. App. 807, 810, 780 P. 2d
1332 ( 1989). The Washington Constitution provides no greater protection than the federal right
to an impartial jury. State v. Fire, 145 Wn. 2d 152, 163, 34 P. 3d 1218 ( 2001). A prospective
juror must be excused for cause if the trial court determines the juror is actually or impliedly
biased. RCW 4. 44. 170, . 1.80, . 190. Here, Woodward alleges juror 27 was actually biased,
0 43573 -0 -II
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).
We review the trial court's decision to dismiss a juror to determine if its decision is
manifestly unreasonable or based on untenable grounds or reasons. State v. Grenning, 142 Wn.
App. 518, 540, 174 P. 3d 706 ( 2008); State v. Rohrich, 149 Wn:2d 647, 654, 71 P. 3d 638 ( 2003).
Because the trial court is able to observe a juror, the trial court is in the best position to evaluate
a juror's candor and the juror' s ability to deliberate. State v. Elmore, 155 Wn.2d 758, 769 n.3,
123 P. 3d 72 ( 2005). We must accept the trial court' s decision regarding the credibility of the
prospective juror and any other persons involved, as well as the trial court' s choice of reasonable
inferences. Ottis v. Stevenson -Carson Sch. Dist. No. 303, 61 Wn. App. 747, 756, 812 P. 2d 133
1991).
Applying these principles to the present case, we hold that the trial court did not err by
denying Woodward' s challenge for actual bias —in other words, we defer to the trial court' s
factual determination that juror 27' s state of mind was such that he could fairly and impartially
try the case. Juror 27' s acting as A.G.' s substitute teacher one year during his 40 year teaching
career, being acquainted with one of the State' s witnesses, and his children having grown up
with the prosecutor was sufficient to support a reasonable inference that his state of mind was
such that he could not try the case fairly and impartially. On the other hand, juror 27' s responses
to various questions, including his testimony that he could set aside his prior associations and
render a fair decision, supported a reasonable and competing inference that he could. deliberate
fairly and impartially. See RCW 4. 44. 190. Because the evidence supporting each inference was
10 43573 -0 -II
such that a reasonable person could adopt either one, the choice of inferences was for the trial
court, and it acted within its discretion by finding that juror 27' s state of mind did not constitute
actual bias. We do not disturb the trial court' s decision on appeal. Because juror 27 was not
biased, Woodward was not convicted by a partial jury.
B. WOODWARD' S FOR -CAUSE CHALLENGES
Woodward argues that the trial court violated his due process rights by forcing him to
exhaust peremptory challenges to remove biased jurors who should have been excused for cause.
The right to peremptory challenges, however, is a statutory right, not a constitutional
right. Fire, 145 Wn.2d at 167 -68 ( Alexander, J., concurring); see also Ross v. Oklahoma, 487
U.S. 81, 88, 108 S. Ct. 2273, 101 L. Ed. 2d 80 ( 1988) ( Although the right to a jury trial is
constitutional, peremptory challenges are statutory in nature.). If a defendant corrects a trial
court' s error of not excusing a juror for cause by using a peremptory challenge, and he " exhausts
his peremptory challenges before the completion of jury selection, and is subsequently convicted
by a jury on which no biased juror sat, he has not demonstrated prejudice, and reversal of his conviction is not warranted." Fire, 145 Wn.2d at 165. Accordingly, the forced use of a
peremptory challenge is merely an exercise of a challenge, not its deprivation or loss. Fire, 145
Wn.2d at 162 -63. Thus, using a peremptory challenge to create an impartial jury does not violate
a defendant' s due process rights. Fire, 145 Wn.2d at 162 ( quoting State v. Roberts, 142 Wn.2d
471, 518, 14 P. 3d 717 ( 2000)).
The trial court denied Woodward' s challenges for cause to jurors 3 and 26, which
resulted in Woodward using two of his seven peremptory challenges to excuse jurors 3 and 26.
Even if Woodward could establish that the trial court erroneously denied his motions to excuse
the two jurors, he would still be unable to establish a constitutional violation. Because
11 43573 -0 -II
peremptory challenges are a statutory right and Woodward has failed to show he was prejudiced
where no biased juror sat on his panel, the trial court did not violate Woodward' s right to an
III. SENTENCING
A. SAME CRIMINAL CONDUCT
Woodward argues the trial court violated his constitutional right to a jury trial by not 4 submitting the issue of same criminal conduct to the jury. Because the sentencing court may
properly decide the issue of same criminal conduct, the trial court did not err by not submitting
the same criminal conduct issue to the jury.
Crimes constitute the "[ s] ame criminal conduct" for sentencing purposes when they
require the same criminal intent, are committed at the same time and place, and involve the
same victim." RCW 9. 94A.589( 1)( a). A defendant has the right to have any fact that increases
the penalty for a crime beyond the prescribed statutory maximum submitted to the jury and
proved beyond a reasonable doubt. Blakely v. Washington, 542 U.S. 296, 301, 124 S. Ct. 2531,
159 L. Ed. 2d 403 ( 2004) ( quoting Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348,
147 L. Ed. 2d 435 ( 2000)). Because the " same criminal conduct" rule is an exception to the rule
that all convictions count separately for purposes of computing the offender score, a finding of
same criminal conduct can operate only to decrease the offender score and the otherwise
applicable sentencing range. RCW 9. 94A. 525( 5)( a); In re Pers. Restraint ofMarkel, 154 Wn.2d
4 Woodward further argues that the trial court erred when it failed to find that counts II and III constituted the same criminal conduct. Woodward, however, did not raise this issue at the trial
court and thus has waived Jackson, 150 Wn. App. at 892 ( quoting In re the right to appeal it. Pers. Restraint of Shale, 160 Wn.2d 489, 496, 158 P. 3d 588 ( 2007) ( " holdingthat issue waived when the defendant ` failed to ask the court to make a discretionary call of any factual dispute regarding the issue of same criminal conduct and he did not contest the issue at the trial level "')). 12 43573 -0 -II
262, 274, 111 . P. 3d 249 ( 2005). Therefore, a trial court does not violate Blakely when it
addresses the same criminal conduct rule because that finding can only serve to decrease the
defendant' s possible sentence. See Markel, 154 Wn.2d at 274. Accordingly, the trial court did
not err by not submitting the issue of same criminal conduct to the jury.
B. SENTENCING SCHEME
Woodward contends that the trial court should have sentenced him under RCW
9. 94A. 120, the sentencing scheme in effect prior to September 1, 2001. The State concedes this
argument. We agree.
The State charged Woodward with crimes occurring between January 1, 1999 through
January 31, 2006 and August 30, 2008. The legislature amended the sentencing scheme under 5 which Woodward was sentenced on September 1, 2001. The State presented evidence that
Woodward committed the charged crimes throughout the charging period, including before the
sentencing statute amendments in 2001. A jury convicted Woodward on all three counts without
specifying whether Woodward committed the acts before or after the effective date of the
sentencing statute amendments; nor was the jury required to specify when the charged crimes
occurred.
When the sentence for a crime is increased during the period within which the crime was
allegedly committed, and the evidence presented at trial indicates the crime was committed
5 The legislature amended the sex offender sentencing scheme on September 1, 2001 to require the trial court to impose the statutory maximum for a sex offense and set a minimum release date within the standard range. LAWS of 2001, 2nd sp. session, ch. 12, § 303. Under the former sex
offender sentencing scheme, the trial court determined sentences within a standard range in accordance with the general sentencing scheme. Former RCW 9. 94A. 120( 1) ( 2000). The trial
court could also determine whether treatment and community custody were an appropriate option for the defendant. Former RCW 9. 94A. 120( 8). 13 43573 -0 -II
before the increase went into effect, the lesser sentence must be imposed. State v. Parker, 132
Wn.2d 182, 191 -92, 937 P. 2d 575 ( 1997).
We affirm Woodward' s convictions, but vacate his sentence and remand for resentencing
under the sentencing scheme in effect prior to September 1, 2001.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2. 06. 040, it is so ordered.
Yenoyar,
We concur:
1 Maxa, J.
Lee, J.