Court of Appeals Division I
State of Washington

Opinion Information Sheet

			

     IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

 STATE OF WASHINGTON,
                                                  )         No. 65776-3-I
                       Respondent,
                                                  )         DIVISION ONE
                v.
                                                  )         UNPUBLISHED OPINION
 DAMION ANTOINE THOMAS,
                                                  )
                       Appellant.                           FILED: March 12, 2012
                                                  )

                                                  )

                                                  )

                                                  )

                                                  )

                                                  )

       Appelwick, J.  --  Thomas was convicted of raping and molesting his eight year 

old stepdaughter and of witness tampering.  The trial court allowed two other children

to testify about Thomas's prior misconduct as evidence of a common plan or scheme.  

Thomas argues that it was an abuse of discretion to allow the additional testimony.  He 

also claims the prosecutor made an impermissible comment on his constitutional right 

to testify, and otherwise engaged in prosecutorial misconduct.  Finding no error, we 

affirm.

                                            FACTS

       Damion Thomas and Sarah Thomas married in 2007.  Thomas took on a role as 

stay-at-home dad for Sarah's daughters, D.G. and A.G.  And, Thomas's daughter from 

a previous relationship, D.T., frequently visited.  When D.T. visited, L.J. usually came  

No. 65667-3-I/2

as well.  L.J. is D.T.'s half-sister.  She is not biologically related to Thomas.  

       Thomas served as the house disciplinarian.  He testified that he got the final 

say, and agreed with the prosecutor's statement that he got the last word.  Thomas

admitted that he whipped the children as part of his role as disciplinarian.  

       In April 2009, there was an altercation at the Thomas household and the police 

were called.  Thomas was arrested for investigation of domestic violence assault.  That 

night, the children and Thomas's sister gathered and began to discuss Thomas.  D.G. 

told everyone either that Thomas "put his peepee in her butt" or that Thomas "would 

put his thing inside of her."  

       Later, the girls went to their grandmother's apartment.  Officer William Shaub 

went to the grandmother's apartment to interview witnesses about the altercation.  D.G. 

approached him and said "something to the effect of . . . 'He raped me.'"  She told 

Officer Adley Sheppard, that Thomas "put his thing in my butt" four times.  She said that 

each time it happened in her bedroom and that the most recent occurrence was four 

days before.  

       Officer Sheppard took D.G.  and Sarah  to the hospital.  D.G. repeated her 

allegations to a social worker and a doctor.  Sarah told the social worker that Thomas 

"'has done things in the past when drinking heavily which he does not remember 

afterward.'"   The doctor observed no physical evidence or symptoms of abuse.  

However, she was not surprised that there was no physical evidence from a penetration 

that occurred several days before, because the elastic structure in the anus heals 

quickly.  The doctor scheduled an appointment for D.G. to see a specialist at the 

hospital's sexual assault clinic the next week.  

                                                   2 

No. 65667-3-I/3

       Frederick Grant, D.G.'s father, came to pick her up the next day.  D.G. told Grant 

that Thomas touched her in her backside.  When Grant asked what that meant, D.G. 

pointed to Grant's genital area and then pointed to her own bottom.  

       Thomas soon began calling D.G. and Sarah from jail.  In one call, Thomas asked 

D.G. why she was lying and asked if L.J. told D.G. to make the allegations.  He 

explained that he would not be able to come home and said, "[Y]ou know damn well I 

didn't try to do nothing like that to your butt."  Eventually, D.G. agreed that L.J. had told 

her to speak.  Sarah reassured Thomas that D.G.'s interview would be different when 

she went back to the sexual assault clinic.  She said she told D.G. to emphasize that 

someone else told her what to say and confirmed that she would talk to D.G. right 

before her appointment to make sure it was fresh in her mind.  

       At the sexual assault clinic on April 27, D.G. told her doctor that nobody had 

ever tried to touch her in an inappropriate way and that L.J. told her to say those things.  

She said that she could not remember what happened during the emergency room visit 

just a little over 24 hours before.  

       Sometime in May, Grant began taking D.G. to counseling with Claudia Kirkland 

at the sexual assault clinic.  Later, Sarah told the clinic she was going to sue if Kirkland 

continued to see D.G.  

       On May 28, Thomas instructed Sarah to have D.G. write a letter to the judge.  

D.G. wrote the letter, but testified that Sarah told her to write that L.J. told her to lie.  

Grant testified that he thought portions of the letter were not in D.G.'s handwriting.  The 

letter read:

       Dear Judge,

                                                   3 

No. 65667-3-I/4

       The things that I said wasn't true because my stepsister told me a big lie 
       of Damion touching me sometime.  What she told me was a lie.  I'm sorry 
       that she told me a lie and made me tell the police a lie and can you tell 
       the police that I'm sorry for telling them a lie.  I'm sorry what I have done 
       to you and the police officers.  My stepsister [was] wrong for that.

       Thomas was charged with first degree child rape, first degree child molestation, 

witness tampering, and two counts of misdemeanor violation of a sexual assault 

protection order.  He pleaded guilty to the two misdemeanor charges.  

       D.G. testified at trial that Thomas touched her four times.  She claimed he 

touched her over her pajamas twice, and twice the contact was skin to skin.  She said 

that, at least once, his genitals touched her skin and went halfway inside her bottom.  

She also testified that her mother told her to lie and to tell the prosecutor that Thomas 

didn't touch her.  She explained that she would not lie in court because it was wrong.  

       In addition to D.G.'s testimony, the trial court admitted evidence of two prior bad 

acts pursuant to ER 404(b).  L.J. testified that Thomas touched her bottom when she 

was staying at Thomas's father's apartment.  She explained that L.J., Sarah, and 

Thomas were sleeping on the floor in the living room.  The other girls were on a bed in 

the same room.  L.J. woke during the night to the feeling of something touching her 

bottom between her cheeks.  She opened her eyes and saw Thomas move to her side.  

L.J. got up and went into the bed with the other girls.  The next morning, L.J. told her

aunt about the incident.  

       One of A.G.'s friends also testified.  A.L. stayed at the Thomas household for 

A.G.'s birthday in August 2008.  A.L., D.G., A.G., and another cousin slept together on 

two mattresses pushed together in A.G.'s bedroom.  While the girls were sleeping, A.L. 

heard footsteps and felt something press down on the mattress.  She looked up, and 

                                                   4 

No. 65667-3-I/5

saw Thomas with his shirt off and pulling up his shorts.  The pressure on the mattress 

was near D.G.  The next morning, A.L. told A.G. and Sarah about what happened.  

Sarah called Thomas into the room and made A.L. repeat her allegation to Thomas.  

Thomas denied it and called A.L. a liar.  

       Thomas was convicted by a jury of first degree rape of a child, first degree child 

molestation, and witness tampering.  He appeals.

                                        DISCUSSION

   I.  Evidence of Prior Acts

       We review the trial court's decision to admit evidence for an abuse of discretion.  

State v. Foxhoven, 161 Wn.2d 168, 174, 163 P.3d 786 (2007).  The trial court abuses 

its discretion when its decision is manifestly unreasonable or based on untenable 

grounds.  Id.

       Evidence of other crimes, wrongs, or acts is not admissible to show criminal 

propensity.  ER 404(b).  Such evidence may, however, be admitted to show a common 

scheme or plan to repeatedly commit similar crimes.  ER 404(b); State v. DeVincentis, 

150 Wn.2d 11, 20-21, 74 P.3d 119 (2003).  But, the evidence is presumptively 

inadmissible.  State v. Gresham, No. 84148-9, 2012 WL 19664, at *5 (Wash. Jan. 5, 

2012).  The prior acts must be (1) proved by a preponderance of the evidence, (2) 

admitted for the purpose of proving a common scheme or plan, (3) relevant to prove an 

element of the crime charged or to rebut a defense, and (4) more probative than 

prejudicial.  State v. Lough, 125 Wn.2d 847, 852, 889 P.2d 487 (1995).  

       The similarities between the prior acts and the charged crime need to be 

substantial, but the acts do not necessarily need to be identical.  DeVincentis, 150 

                                                   5 

No. 65667-3-I/6

Wn.2d at 21; State v. Kennealy, 151 Wn. App. 861, 888, 214 P.3d 200 (2009).   The 

prior misconduct and the charged crime should share common features such that the 

acts are naturally explained as caused by a general plan of which each act is simply an 

individual manifestation.  Gresham, 2012 WL 19664, at *6.  Mere similarity in results is 

insufficient.  Id.  But, the method of committing the crimes itself need not be unique.  Id.

       Because determining whether the trial court abused its discretion by finding a 

common plan or scheme is a fact-intensive inquiry, it is helpful to consider other cases 

in which ER 404(b) was properly admitted.  In Gresham, Scherner was charged after he 

molested his 7 or 8 year old granddaughter while they were on a trip to Bellevue to visit 

the defendant's sister.  2012 WL 19664, at *1.  On three different nights, the defendant 

asked his granddaughter to come lie down with him.  Id.  When she did, he fondled her 

vagina.  Id. The third time, he also took off her night gown and placed her hand on his 

genitals.  Id.  The trial court admitted the testimony of four prior victims as evidence of a 

common scheme or plan.  Id. at *2.  Much of the abuse occurred decades before the 

charged crimes.  Id.  Two of the prior victims were the defendant's nieces.  Id.          When 

the nieces visited his home, he fondled them and performed oral sex on them.  Id.            He 

abused one niece for fifteen years, beginning when she was four or five.  Id.   He 

abused the second niece when she was 13.  Id.  The third victim was the then 13 year 

old daughter of a close friend.  Id.    While they were on a trip together, the defendant 

waited until the other adults had gone to bed.  Id.  Then, he approached her, began 

rubbing her back, and fondled her vagina.  Id.  The fourth victim was another of the 

defendant's granddaughters.  Id.  On two trips to Disneyland, the defendant went to her 

bed at night and performed oral sex on her.  Id.   The Washington Supreme Court 

                                                   6 

No. 65667-3-I/7

reasoned that the abuse of two of the prior victims was markedly similar to the charged 

crime.  Id. at *6.  The defendant went on a trip with the girls, and at night, while other 

adults were asleep, approached the girls and fondled their genitals.  Id.                 Small 

differences, such as the presence of oral sex, were not significant enough for the court 

to determine the acts were not part of a common scheme or plan.  Id.  The court also 

determined that the nieces testified to sufficiently similar acts, even though the abuse 

occurred in the defendant's home.  Id.

       In State v. Sexsmith, the defendant molested his girlfriend's daughter from the 

time she was 11 until she was 18.  138 Wn. App. 497, 502, 157 P.3d 901 (2007).  The 

trial court admitted evidence of prior acts committed against Sexsmith's 13 year old 

daughter.  Id. at 503.  The evidence was admissible because Sexsmith was in a 

position of authority over both girls, and the girls were about the same age when they 

were molested.     Id. at 505.  Further, he isolated the girls when he molested them, 

forced them to take nude photographs and watch pornography, and fondled both of 

them.  Id.

       In Kennealy, the defendant raped and molested three children between the ages 

of five and seven who all lived in the same apartment complex.  151 Wn. App. at 868.  

The trial court admitted evidence of prior bad acts involving the defendant's daughter 

and three of his nieces.  Id. at 875.  The girls were all between the ages of 7 and 13.  

Id. at 876.  The defendant told one of the victims from the charged crimes and some of 

the previous victims not to tell anyone about what happened, and he committed the 

acts out of view of others or alone with the children.  Id.  The children were related to 

him or lived and played close to him, and he committed the acts only after the children 

                                                   7 

No. 65667-3-I/8

trusted him.  Id. at 889.  He touched the girls under and outside of their clothing on their 

vaginas, and committed sexual acts more than once with most of the girls.  Id.              The

Kennealy court  recognized that the defendant's behavior was not identical in each 

case,  but determined that the prior acts demonstrated a design to molest young 

children.  Id. at 888.

       In this case, the trial court admitted the evidence after it went through the 

appropriate four-step process.  It  determined the prior acts were established by a 

preponderance of evidence and held that the evidence was highly relevant to the 

presented issues.  In regards to a common scheme or plan, the trial court cited that the 

acts were relatively close in time, that the girls were members of the defendant's 

extended family, and that the girls were of similar age.     It reasoned that the fact that the 

case revolved around D.G.'s testimony made evidence of prior acts particularly 

relevant.  It found that the allegations of witness tampering and Thomas's guilty plea on 

the misdemeanor charges made the evidence              even   more relevant.  Ultimately, it 

determined that the evidence was more probative than prejudicial.  

       Thomas claims that the trial court abused its discretion by permitting A.L. and 

L.J. to testify about Thomas' prior acts.  He argues that the instances were not 

sufficiently similar.  Specifically, he argues that the age spread was too large, that the 

extent of the abuse was entirely different, and that the court made a factual error by 

stating that all the victims were part of the extended family.  Thomas also argues the 

evidence was more prejudicial than probative.  

       Thomas's reliance on the girls' age differences is not persuasive.  In Gresham, 

the victim was 7 or 8.  2012 WL 19664, at *1.  The additional witnesses were between 5 

                                                   8 

No. 65667-3-I/9

and 13 when the abuse began.  Id. at *2.  In Sexsmith, the victim was 11 when the 

abuse began, and the witness was abused starting when she was 13.  138 Wn. App. at 

502-03.  In Kennealy, the children were between 5 and 13.  151 Wn. App. at 868, 876.  

Here, D.G. was 8 when the abuse occurred.  It appears that L.J. was about 11 when 

she was abused.  A.L. testified to an event that happened when she was 13.  The age 

gap of 8 to 13 is well within the age range in Gresham,  Sexsmith, and Kennealy.  

Further, A.L. did not testify that she herself was the victim.  Rather, she testified that 

she saw Thomas with his pants down near D.G.  Thus, A.L.'s age at the time of the 

event is not particularly important.

       Thomas also contends that the trial court erroneously relied on the assertion that 

A.L. was part of the extended family, when, in fact, she was just a school friend of 

D.G.'s older sister.  But, A.L. testified to a prior incident in which Thomas was near 

D.G. and pulling up his pants.  Thus, A.L. was not the victim in that incident and while 

the trial court may have mischaracterized her relationship to the family this fact would 

not be dispositive as to the conclusion.

       Thomas is correct that the extent of the abuse is different in the charged crimes 

and the prior acts.  While D.G. testified Thomas put his genitals in her bottom, Thomas 

only touched L.J.'s bottom between the cheeks. L.J. woke up and the act went no 

further.  And, A.L. did not testify that Thomas touched her at all.  Rather, she testified 

that Thomas was near D.G.  Despite these differences, the remaining details are 

sufficiently similar that we cannot say the trial court abused its discretion.

       As in Gresham, Sexsmith, and Kennealy, the prior acts in this case were not 

identical to the charged crime.  However, as in each of those cases, the acts were 

                                                   9 

No. 65667-3-I/10

markedly similar to the charged crime.  They were not sufficiently different so that we 

may say the trial court abused its discretion.  The acts occurred in a relatively close 

timeframe, the girls were of similar age, and the acts all occurred while the girls were 

sleeping and Thomas was acting as an authority figure.  

       We also reject Thomas's argument that the evidence was unduly prejudicial.  

Substantial probative value is needed to outweigh the prejudicial effect of ER 404(b) 

evidence.  DeVincentis, 150 Wn.2d at 23.  Legitimate factors to consider include the 

need for the evidence, the secrecy surrounding sex abuse offenses, the vulnerability of 

the victims, the absence of physical proof, and the lack of confidence in the ability of a 

jury to assess the credibility of child witnesses.  Id.  In this case, these factors weigh 

heavily in favor of admitting the evidence.

       The trial court did not abuse its discretion.

   II. Constitutional Right Not to Testify

       Drawing an adverse inference from a defendant's failure to testify is an 

unconstitutional infringement on the defendant's Fifth Amendment right to silence.  

Griffin v. California, 380 U.S. 609, 614, 85 S. Ct. 1229, 14 L. Ed. 23 106 (1965).  The 

defendant's right to testify on his own behalf is as protected as the right to silence.  

Rock v. Arkansas, 483 U.S. 44, 49-53, 107 S. Ct. 2704, 97 L. Ed. 2d 37 (1987).  Thus, 

the prosecutor may not draw an adverse inference from the defendant's decision to 

testify.  A comment is impermissible when the prosecutor invites the jury to infer that a 

defendant is guilty based on the fact that the defendant exercised a constitutional right.  

State v. Burke, 163 Wn2d 204, 222, 181 P.3d 1 (2008).  If the comment was so subtle 

and brief that it does not naturally and necessarily emphasize the defendant's 

                                                  10 

No. 65667-3-I/11

constitutional rights, then it is a mere reference that is only reversible with a showing of 

prejudice.  Id. at 216.  The prosecutor is entitled to make reasonable inferences from 

the evidence.  State v. Brett, 126 Wn2d 136, 175, 892 P.2d 29 (1995).

       Thomas testified that he enforced the rules in the house, that he was the 

disciplinarian, and that he had the final say.  He acknowledged that he whipped the 

children, and agreed with the prosecutor's statement that he gets the last word in the 

house.  In closing, the prosecutor discussed how emotionally difficult it was for D.G. to 

testify and repeatedly referred to the fact that Thomas gets the last word.  The 

prosecutor said that D.G. "listened to him as he opined yesterday.  He got the last word 

in, of course."  The prosecutor concluded by stating that, although Thomas got the last 

word with the girls and with his wife, and that he attempted to tamper with the evidence, 

the jury gets the last word on deciding his fate.  

       Thomas argues that these remarks asked the jury to draw a negative inference 

about his decision to testify on his own behalf.  Specifically, Thomas argues that the 

prosecutor connected D.G.'s trauma to Thomas's decision to testify, and thereby 

implied that Thomas had done something wrong simply by exercising his right to testify.  

He further claims that the prosecutor was trying to portray Thomas's testimony as 

another attempt to bully the child and thus encourage the jury to punish Thomas for 

exercising his right to testify.  

       We    disagree.  References to Thomas getting the last word were mere 

references to his position in the household.  They were directed at Thomas's own 

testimony that in his household he gets the final say.  Particularly in a case where 

witness tampering was at issue, those statements reflected on Thomas's credibility, not 

                                                  11 

No. 65667-3-I/12

his decision to testify.

       Further, Thomas's interpretation of the statement, "She listened to him as he 

opined yesterday," is incorrect.  Witnesses were excluded at trial.  There is no 

evidence that D.G. was in the courtroom when Thomas testified.  Therefore, the only 

reasonable interpretation is, "She listened to him[,] as he opined yesterday."  The 

prosecutor was referring to Thomas's prior testimony about his role in the household.  

The statement did not refer to D.G. being forced to watch Thomas's testimony.  It was a 

permissible inference about the pressure D.G. was under prior to the trial to recant her 

allegations.

       Alternatively, Thomas claims that reversal is required because his attorney was 

ineffective in failing to object to a violation of his constitutional rights.  But, an appellant 

only has a claim for ineffective assistance of counsel when the attorney's performance 

was both unreasonably deficient, and the deficiency prejudiced the defendant.  State v. 

Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987).  If either part of the test is not 

satisfied, the inquiry need go no further.  State v. Hendrickson, 129 Wn.2d 61, 78, 917 

P.2d 563 (1996).  Prejudice is only shown when there is a reasonable probability that, 

but for counsel's errors, the result of the trial would have been different.  Id.      Thomas 

cannot make that showing here.  The prosecutor's statements were permissible.  

Objecting would not have changed the result of the trial.

   III. Prosecutorial Misconduct

       Prosecutorial misconduct is only grounds for reversal if the prosecutor's conduct 

was both improper and prejudicial.  State v. Monday, 171 Wn.2d 667, 675, 257 P.3d 

551 (2011).  We evaluate a prosecutor's conduct in the full trial context, including the 

                                                  12 

No. 65667-3-I/13

evidence presented, the total argument, the issues in the case, the evidence addressed 

in argument, and the jury instructions.  Id.     A prosecutor has wide latitude in closing 

argument to draw reasonable inferences from the evidence and to express such 

inferences to the jury.  State v. Boehning, 127 Wn. App. 511, 519, 111 P.3d 899 

(2005).

       Absent a timely objection, reversal is only required if the conduct is so flagrant 

and ill-intentioned that it causes an enduring and resulting prejudice that could not 

have been neutralized by a curative instruction to the jury.  State v. Warren, 165 Wn.2d 

17, 43, 195 P.3d 940 (2008).

       Thomas asserts that the prosecutor engaged in misconduct by arguing facts not 

in evidence, arguing propensity, appealing to the passions of the jury, and espousing 

personal opinions.

       A. Arguing Facts Not in Evidence

       A prosecutor may not make statements that are unsupported by the record and 

prejudice the defendant.  State v. Ray, 116 Wn.2d 531, 550, 806 P.2d 1220 (1991).  

Thomas argues that the prosecutor made an unsupported statement when discussing 

A.L.'s testimony by referring to "that pressure of pinning her to the mattress before he 

realizes someone's awake and looking at [him]."  But, a corrected report of proceedings 

indicates that the prosecutor actually said: "that pressure on the corner of the mattress 

before he realizes someone's awake and looking at him."  That statement is supported 

by L.J.'s testimony.

       B. Arguing Propensity

       Thomas argues that the prosecutor urged a verdict on propensity grounds in 

                                                  13 

No. 65667-3-I/14

violation of law and prohibited by the court's in limine ruling.  He argues that the 

prosecutor's comments about prior acts were improper, including "that show [of] sexual 

desire for children," "quit picking on little kids," and "he's either the most unlucky guy in 

King County when it comes to little girls under the age of 12, or he's guilty."  

       Thomas relies on a molestation case in which the trial court ruled that evidence 

of the defendant's history of physically abusing children could only be used to explain 

the victim's delay in reporting, not to show common plan or scheme.  See State v. 

Fisher, 165 Wn.2d 727, 734, 202 P.3d 937 (2009).  Despite the ruling, the prosecutor

argued throughout trial that the defendant's charged sexual abuse was consistent with 

his history of committing physical abuse.  Id. at 734-38, 747-48.  But, in a child sexual 

assault case where the issue is whether the crime occurred, a pattern of past behavior 

is probative of a plan to fulfill sexual compulsions.  DeVincentis, 150 Wn.2d at 17-18.  

Thus,  in this case the evidence was properly  admitted  and could properly be 

commented on.  Thomas does not provide any citation to or further explanation of the in 

limine ruling he claims the prosecutor violated.

       The prosecutor repeatedly clarified in closing that the evidence could only be 

used to show a common scheme or plan, and that Thomas had a plan to satisfy his 

sexual desire.  The court gave a limiting instruction to inform the jury that the 

allegations could not be used to show that Thomas acted in conformity with the prior 

allegations, but could be used to determine whether the prior acts demonstrate a 

common scheme or plan.  The prosecutor did not improperly argue for a verdict on 

propensity grounds.

       C. Appealing to the Passions of the Jury

                                                  14 

No. 65667-3-I/15

       The prosecutor has a duty to seek verdicts free from passion and prejudice.  

State v. Perez-Mejia, 134 Wn. App. 907, 915-16, 143 P.3d 838 (2006).  A prosecutor 

may not, for example, appeal to the juror's fear of criminal groups or invoke racial, 

ethnic, or religious prejudice as a reason to convict.  Id. at 916.  But, arguments that 

are reasonable inferences from the facts are proper.  Id.

       Thomas argues that the prosecutor improperly appealed to the jury's passion 

and prejudice and tried to align herself with the jury against the defendant.  The 

prosecutor said, "'[P]ick on someone your own size.' Quit picking on little kids . . . He's 

picking on little girls who are not going to stand up for themselves. . . . [W]hat he needs 

to do is . . . 'Man up.'" She argued, "And for those of us who have the great pleasure of 

being a big sister, or having a big sister, we get it.  Or maybe being a little brother or 

having a little brother, we get it."  When discussing a police officer's testimony, the 

prosecutor stated, "He said (inaudible) what each and every one of us likely felt when 

Sarah Thomas took the witness stand."  When discussing the jail calls, the prosecutor 

argued, "Did your mouth not drop open when he said, 'Kids don't matter'?"           "[I]t's got to 

make you a little mad. . . . [I]t makes you just want to reach out and do something."  

However, she then explicitly instructed the jury that it had to push aside any anger and 

look at the facts.  

       Thomas testified and defense counsel argued that the girls were liars.  The 

prosecutor's statements are       properly characterized as a valid response to that 

assertion.  Further, the prosecutor explicitly stated in closing that the jury had to make 

their decision based on the facts, and not on prejudice.  The prosecutor did not 

improperly appeal to the jury's passions and prejudice.

                                                  15 

No. 65667-3-I/16

       D. Personal Opinion

       It is misconduct for a prosecutor to state a personal belief as to the credibility of 

a witness.  Warren, 165 Wn.2d at 30.  But, a statement is only misconduct if it is a clear 

and unmistakable expression of a personal opinion.  Brett, 126 Wn.2d  at 175.  

Otherwise, the prosecutor remains free to argue an inference from the evidence.  Id.  

       Thomas cites a number of statements by the prosecutor as improper.   For 

instance, the prosecutor said there's nothing wrong with L.J. encouraging D.G. to 

disclose the molestation and praised D.G.'s courage by saying, "Good for her."  These 

statements are not improper personal opinions.

       The prosecutor argued that that, unlike Thomas, D.G.'s father put his faith in the 

court system, and further argued that "[t]he funny little thing about the truth [is] there's 

no hemming and hawing, there's no talking out of both sides of your mouth like Sarah 

Thomas did yesterday and the Defendant did."  These statements were comments on 

the credibility of defense witnesses.  Further, a comment about putting faith in the 

system is not improper where witness tampering was an issue being tried.  They were 

not improper personal opinions. 

       The prosecutor argued that "he admitted to you, much to my surprise, [L.J.] 

didn't put [A.L.] up to it."  This was a comment about Thomas's testimony, not a clear 

and unmistakable expression of a personal opinion.

       The prosecutor attributed D.G.'s confidence in testifying to Kirkland, stating 

"don't you think that had anything to do with the good work that Claudia Kirkland was 

doing with her?"  "It might have struck you as it did me, what kid wouldn't open up to 

her?"  Regarding a doctor who treated D.G., the prosecutor stated it "makes you kind of 

                                                  16 

No. 65667-3-I/17

breathe a sigh of relief knowing she's dedicated her life to kids who need it, who need 

her help."  These were comments drawing the jury's attention to                  the witness's 

credibility, not improper personal opinions.

       Even if we had instead concluded the prosecutor made improper statements, 

Thomas did not object below.  The prosecutor's statements were not so flagrant and ill-

intentioned that they caused an enduring and resulting prejudice that could not have 

been neutralized by a curative jury instruction.

   IV. Statement Of Additional Grounds 

       We only consider issues raised          in a statement of additional grounds that 

adequately inform us of the nature and occurrence of the alleged errors.  State v. 

Alvarado, 164 Wn.2d 556, 569, 192 P.3d 345 (2008).  Further, we only consider 

arguments that are not repetitive of briefing.  RAP 10.10(a).  Finally, issues that involve 

facts or evidence not in the record are properly raised through a personal restraint 

petition, not a statement of additional grounds.  Alvarado, 164 Wn.2d at 569.  

       Thomas submitted a statement of additional grounds with an extensive list of 

alleged errors.  Many of his assertions rely on facts outside the record, or were 

adequately dealt with in briefing.  Of those that remain, most do not articulate any legal 

error.  In short, Thomas argues that he did not have an impartial judge, that there was 

prosecutorial misconduct, and that he received ineffective assistance of counsel.  

       Most of Thomas's arguments regarding the judge refer to the judge's time 

management practices.  These complaints do not articulate any legitimate legal errors.  

Thomas also claims the judge showed prejudice by telling Thomas to be quiet after 

Thomas interrupted, and telling Thomas at sentencing that the case had been appalling 

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No. 65667-3-I/18

from the beginning.  Those comments do not indicate prejudice, and they were made 

outside the presence of the jury.

       Thomas claims prosecutorial misconduct, because the prosecutor contacted 

child protective services to remove D.G. from Thomas's home.  That allegation does 

not state any legal error.  Thomas also argues that the prosecutor did not properly edit 

tapes that were played for the jury, and that the prosecutor made misstatements of law 

in closing.  But, both of those errors were addressed below.

       Thomas argues that it was prosecutorial misconduct for the prosecutor to ask 

child witnesses leading questions, and that it was ineffective assistance of counsel to 

not object.  But, the use of leading questions with child witnesses is an issue within the 

discretion of the trial court.  State v. Allen, 70 Wn.2d 690, 692, 424 P.2d 1021 (1967).  

The questioning was not prosecutorial misconduct.  There is no indication that, but for 

counsel's failure to object, there is a reasonable probability that the outcome of the trial 

would have been different.

       Finally, Thomas  claims ineffective assistance of counsel against his former 

counsel, and against trial counsel for not obtaining certain expert witnesses.  There is 

no evidence in the record about either of these issues.

       Thomas does not identify any legal errors that justify reversal.

       We affirm.

WE CONCUR:

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No. 65667-3-I/19

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