Li 10:Vj; 7o K.i if* '^

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, Respondent,

v. JAMES ALAN DELONG Appellant. NO. 72829-6-

DIVISION ONE

UNPUBLISHED OPINION FILED: May 23, 2016

Lau, J.

— James DeLong appeals his convictions on one count of second degree rape, one count of first degree promoting prostitution, one count of second degree 

### promoting prostitution, and one countofsecond degree theft. He contends the trial court erred when itconcluded that the rape shield statute prohibited evidence ofthe victim's contemporaneous sexual relationship with her boyfriend. DeLong claims this evidence was relevant to show the victim possessed the mental capacity to consentto
sex. He argues excluding this evidence violated his Sixth Amendment right to present a 

### defense. DeLong also claims thatthe prosecutor's statements during closing argument amounted to misconduct and that defense counsel was constitutionally ineffective for 

### failing to objectto these statements. We conclude the trialcourtproperly excludedNo. 72829-6-1/2
evidence ofthe victim's alleged sexual relationship with herboyfriend as more 

### prejudicial than probative and thatthis did not deprive DeLong of his constitutional right to presenta defense. Even ifwe assume, without deciding, thatthe prosecutor's statements were improper, Delong fails to show incurable prejudice. For similar reasons, defense counsel's failure to objectwas not deficient. And DeLong cannot show that the outcome would have been different but for defense counsel's failure. We affirm thejudgment and sentence. FACTS For a four to five month period during 2013-14, Christina Stark lived with James 

### DeLong and P.W. in a FederalWay residence. Starktestified that P.W., age 51, exhibited a diminished mental capacity. For example, Starkexplained that P.W. had 

### many child-liketendencies—she enjoyed watching cartoons, especially Scooby Doo, she had a large collection oftoys and dolls, and she referred to Starkas "mom." Report 

### ofProceedings (RP) (Nov. 12, 2014) at 5-8. Starktried to teach P.W. basic skills like the alphabet, reading, rudimentary math, and how to tell time. She said her attemptto teach P.W. "wasn't going very well." RP (Nov. 12, 2014) at 4. Despite Stark's efforts, P.W. could not tell time and could not recite the alphabet on her own. Starktestified 

### that DeLong also had a close relationship with P.W. She said they did "art stuff"and went to movies. RP (Nov. 12, 2014) 10. She described their relationship as "like daughterand father." RP (Nov. 12, 2014) at 10. 

### Although P.W. usually stayed at the Federal Way residence, she occasionally 

### spentthe night at her boyfriend Tim's house. Throughout February and March of2014, Starknoticed that P.W. was spending more and more time at Tim's house. Eventually,
-2-No. 72829-6-1/3


### Starkasked P.W. why she was spending more time away from the FederalWay house. After this conversation, Starkconfronted DeLong and accused him ofbeing a pedophile: [STATE]: Whatwas [DeLong's] response to you calling him a pedophile? 

### [Stark]: He said, "Withchildren?" And Isaid yes, [P.W.] was a child. And he said, "Idon't mess with children. What Ido with [P.W.] is none ofyour business." RP(Nov. 12, 2014) at 16. 

### Starktook P.W. to the FederalWay Police Departmentfour days later. Starkand P.W. spoke with Detectives Richard Kim and Adrienne Purcella. Detective Kimtestified that P.W. was difficult to understand and that "[s]he wasn'tfunctioning as a normal adult." RP (Nov. 4, 2014) at 56. He explained that P.W. could not perform basic cognitive tasks: [Det. Kim]: A normal adult of her age would be able to read, write, spell, understand, and have a decent conversation with an adult, and [P.W.] did not have that interaction with us. When we asked her questions of herbirthdate, her age, we asked her, her ABC's, we didn't get a response, a quick enough response. And itappeared that she was delayed to some degree. 

### RP (Nov. 4, 2014) at58-59. The investigating detectives were unable to get meaningful information from P.W. After interviewing Stark, Detectives Kim and Purcellawentto the Federal Way residence to interview DeLong. He agreed to return to the police station with them. 

### Atthe police station, Detective Kiminformed DeLong that he was not incustody 

### and that he was free to leave at any time. Detective Purcella read DeLong his Miranda1 rights. Delong stated that he understood his rights and was willing to answerthe 1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L Ed. 2d 694 (1966). -3-No. 72829-6-1/4
detectives' questions. DeLong denied any sexual relationship with P.W. He later admitted digital and genital penetration with P.W. "about40 [or] 50 times." Exhibit (Ex.) 14. DeLong believed the sex with P.W. was consensual despite what he called her "learning disability": "I have notdone anything wrong. [P.W.] is a mature woman when itcomes to sex and I'll say itover and over and over again." Ex. 14. DeLong also admitted to receiving paymentfor transporting P.W. and another
woman to the Gig Harbor home of his friend, Marvin Douglass. He told the detectives that he brought the girls to Douglass to have sex with him, butthe payment he received from Douglass was simply to covertransportation costs: [Det. Purcella]: So Imean you knew they had sex. [DeLong]: Uh huh. [Det. Purcella]: Yeah. Okay. [DeLong]: Yeah. [Det. Kim]: Was the understanding did [P.W.] know that's why she was gonna go outthere? [DeLong]: Uh huh. [Det. Kim]: 

### She did. That she was gonna specifically go there to have sex with Marv [Douglass]? You're nodding your head, yes. [DeLong]: Yeah. [DeLong]: Because of [Douglass's] income orwhat he wants to 

### give and so Ididn't get paid forthe girls, Igot paid for transportation. [Det. Purcella]: But you take the girls down there and then you get paid by him. [DeLong]: Yeah. [Det. Purcella]: And they have sex with him. [DeLong]: Yeah and they have sex. [Det. Purcella]: Okay. [DeLong]: But I'mjust being paid for transportation. 

### Ex. 14. At trial, Douglass testified that DeLong knew he was lonely and that DeLong 

### offered to "bringsomebody overto be companyfor [him]." RP (Nov. 10, 2014) at 23.

-4-No. 72829-6-1/5 DeLong told police that Douglass was "a friend
... and he wanted some female companionship." Ex. 14. Douglass said he occasionally gave the women food and 

### small amounts ofmoney, but he paid DeLong around $100 pervisit to "cover his [travel] expenses." RP (Nov. 10, 2014) at 24, 30. 

### P.W.'s testimony attrial reveals her limited mental capacity. For example, P.W. could not state her correct age, the currenttime ofday, or her address. She also failed to correctly recite the alphabet, omitting about 10 letters. Throughout hertestimony, P.W.'s speech impediment required repeating questions and resulted in many unintelligible responses. Nevertheless, P.W. testified that she knew what "sex" means. RP (Nov. 12, 2014) at 167. She explained that pregnancy could resultfrom sex and she knew that
one could contract certain diseases from having sex. P.W. explained that she had been married inthe past and had three children from that marriage. She said she occasionally had sex with DeLong, butthat she did not like it: [State]:
... Didyou have [vaginal] sex with Jim [DeLong]? [P.W.]: Yep. [State]: Didyou like that? [P.W.]: Uh-uh. [State]: Didyou tell him no? [P.W.]: Isaid no. Ididn'twant (unintelligible.) [State]: What? [P.W.]: (Unintelligible.) [State]: What was that? [P.W.]: Ijust said no. [State]: Whatdid you tell him? [P.W.]: No. [State]: ... Are there times when you said yes to having s< Jim [DeLong]?
-5-No. 72829-6-1/6 

### [P.W.]: Once in a while, but a lot of times (unintelligible). RP (Nov. 12, 2014) at 178-79. P.W. also explained that DeLong wouldtake her to Douglass's residence to have sexwith him inorderto get money: [State]: Did Jim [DeLong] bring you to [Douglass's] place? [P.W.]: Yeah. 

### [State]: Did he tell you why? 

### [P.W.]: To have cash to pay the rent and the phone bill and electric bill. 

### [State]: But you had to what? [P.W.]: Pay the phone bill. 

### [State]: Pay the phone bill. Did [DeLong] tell you what you were suppose to do when you wentto [Douglass's]? [P.W.]: Have sex with him and Idon't like. 

### [State]: Did you wantto? [P.W.]: Uh-uh. RP(Nov. 12, 2014) at 182. 

### P.W. also provided some testimony aboutTim Blakeny2heralleged boyfriend. P.W. stated that she had lived with Blakeny on and off for five years and that she was currently living with him at the time ofthe trial. Throughout her testimony, P.W. referred to Blakeny as her "friend," her "playmate," and her "boyfriend." RP (Nov. 12, 2014) at 151; RP (Nov. 13, 2014) at 25. P.W. also testified that Scooby Doo was her boyfriend. Both DeLong and Starkwere aware of P.W.'s relationship with Blakeny. Detective Purcella testified that she knew P.W. considered Blakeny as herboyfriend, but Detective Purcella made no contact with him. On February 21, 2014, the State charged DeLong on one count of second degree rape, one count of first degree promoting prostitution, and one count of second 2The record contains two different variations ofTim's last name. Some parts of the record referto P.W.'s boyfriend as Tim Blakely, other parts refer to him as Tim Blakeny. Generally, the attorneys and the trial court referred to him as Tim Blakeny, so we use that iteration. -6-No. 72829-6-1/7 

### degree promoting prostitution. The State later added one count ofsecond degree theft. To supportthe second degree rape charge, the State alleged that DeLong "did engage insexual intercourse with another person [who] was incapable ofconsenting to sexual intercourse by reason of being mentally incapacitated," a violation of RCW 

### 9A.44.050(1)(b) and (f)(i). Accordingly, the to-convict instruction required as an element "thatthe sexual intercourse [with DeLong] occurred when P.W.... was incapable of consent by reason ofbeing mentally incapacitated." Clerk's Papers (CP) at 50. The jury instructions defined mental incapacity as "a condition existing at the time ofthe offense thatprevents a person from understanding the nature orconsequences ofthe act ofsexual intercourse whetherthat condition is produced by illness, defect, the influence of a substance, or by some othercause." CP at 52. Before trial, DeLong sought to introduce evidence of P.W.'s consensual sexual relationship with her boyfriend to rebutthe State's allegation that P.W. lacked the mental capacityto consent. Consistentwith RCW 9A.4A.020—the "rape shield" statute—DeLong requested a hearing outside the presence ofthejury to examine P.W. regarding her relationship with Blakeny. The trial court denied DeLong's motion and excluded any evidence of P.W.'s sexual relationship with Blakeny. The trial court concluded that DeLong's offer of proofwas insufficientto justify a hearing on the issue and thatthe rape shield statute prohibited the evidence because itwas not probative of P.W.'s mental capacity to consent. A jury convicted DeLong on all counts. DeLong appeals.

-7-No. 72829-6-1/8

ANALYSIS Standard of Review This court reviews a trial court's decision to admit or exclude evidence for an 

### abuse of discretion. State v. McDonald. 138 Wn.2d 680, 693, 981 P.2d 443 (1999). A court abuses its discretion when itmakes a manifestly unreasonable decision or bases its decision on untenable grounds or reasons. In re Pet, of Duncan. 167 Wn.2d 398, 402, 219 P.3d 666 (2009). 

### A defendant's claim that the trial court violated his Sixth Amendment right to present a defense is reviewed de novo. State v. Jones. 168 Wn.2d 713, 719, 230 P.3d 578(2010). Evidence of P.W.'s Sexual Behavior 

### DeLong argues the trialcourterred when itconcluded thatthe rape shield statute 

### prohibited evidence ofP.W.'s sexual activity withher boyfriend, Tim Blakeny. We disagree. 

### The rape shield statute requires a defendantto submit "[a] written pretrial motion



### ... stating thatthe defense has an offer of proof ofthe relevancy ofevidence ofthe past sexual behaviorofthe victim " RCW 9A.44.020(3)(a). "Ifthe courtfinds thatthe 

### offer of proof is sufficient, the court shall ordera hearing outofthe presence ofthejury" to determine whetherthe proffered evidence is admissible. RCW 9A.44.020(3)(c). Before a trial court holds a hearing to determine whetherthe evidence is admissible, the defendant must show relevance. DeLong's initialofferof proofcontained a single sentence: "Inthis case, defense represents that [P.W.] has had and continues to engage in sexual activities with her 'boyfriend' Tim Blakeny." CP at 16. The trial court
-8-No. 72829-6-1/9
denied DeLong's motion for a hearing underthe rape shield statute. Itconcluded this offerof proofwas insufficient because P.W.'s capacity to consentto sex was irrelevant. We conclude the trial court properly determined that DeLong failed to meet his burden to show relevance. In State v. Summers. 70 Wn. App. 424, 853 P.2d 953 (1993), we held that evidence ofthe victim's prior sexual acts was irrelevantto show 

### thatthe victim had the mental capacity to consentto sex. Summers. 70 Wn. App. at 434-35. The facts in Summers are nearly identical to this case. In Summers, the State 

### alleged the defendant committed second degree rape when he had sexual intercourse with a woman who lacked the mental capacity to consent. Summers. 70Wn. App. at 430-31. The defendant soughtto introduce evidence ofthe victim's prior sexual acts to demonstrate that she possessed the mental capacity to consentto sexual acts. 

### Summers. 70 Wn. App. at432. The trialcourt excluded this evidence and we affirmed. We reasoned that evidence of prior sexual acts was irrelevantto demonstrate the victim's capacity to understand those sexual acts: Evidence ofpast sexual encounters does not necessarily show 

### understanding ofthe nature and, even more clearly, the consequences of sexual intercourse, such as pregnancy or disease. The court's statement thatthe evidence was not probative is, ofcourse a different way of saying thatthe evidence was not relevant. The best evidence of [the victim's] 

### capacityto understand is hertestimony. Whether she gained knowledge from priorsexual experience or otherwise is unimportant, the issue is her capacityto understand. 

### Where the lackofcapacity is based on a permanent, organic condition, it 

### logicallyfollowsthatprioracts ofintercourse cannotdemonstrate that the victim understands the nature and consequences because the prioracts 

### may have occurred due to the same lack ofcapacity. The risk ofundue 

### prejudice from the admission ofsuch evidence is high, while the benefit to the defense is insubstantial.

-9-No. 72829-6-1/10


### Summers. 70Wn. App. at434-35. The same reasoning applies here. Evidence of P.W.'s other sexual encounters is not probative on capacity to consent. As in Summers, the best evidence of P.W.'s capacity to consentwas herown testimony to show her knowledge of sexual matters and her ability to make decisions. That she may have had other sexual encounters does not demonstrate a capacity to consent. The 

### trialcourt reasonably concluded thatthe evidence of P.W.'s alleged sexual relationship 

### withBlakeny was more prejudicial than probative. This is particularly true given the trial court's broad discretion in balancing the probative value ofevidence against its potential 

### prejudicial impact. See^e^, State v. Rice. 48 Wn. App. 7, 11, 737 P.2d 726 (1987). DeLong contends thatSummers is distinguishable because P.W. exhibited a
more "sophisticated" understanding ofsexthan the victim inSummers. Br. of Appellant 

### at 30. Although P.W. showed some understanding of the nature and consequences of sexual activity, her capacity was not markedly betterthan the victim's inSummers. For example, like P.W., the victim inSummers had a basic understanding of the mechanics ofsex, she knew about AIDS, and she knew that pregnancy could resultfrom sex: 

### [The victim's] only knowledge of AIDS was that "fw]hen a man puts 

### a wiener in you and you get itfrom them." She knew that "[w]hen a man 

### puts a wiener in you and the sperm comes inside of you and you have the baby," and thoughtthat a baby "[c]omes out oflike your stomach or something like that." She defined intercourse as "[w]hen a man holds you down and puts a wienerin you, and iftheyforce it in you, ifyou want it or don'twant it" and defined sex as "[w]hen a man does something or something. 

### Summers. 70 Wn. App. at 431. This is similar to P.W., who also testified that one could contract AIDS and get pregnantfrom having sex. P.W. testified that she had three 

### children in a previous marriage. She also was aware that she was no longercapable of

-10-No. 72829-6-1/11 becoming pregnant. Incontrast, the Summers court noted thatthe victim "showed no 

### understanding that she and Summers engaged inintercourse
... orthat she could have 

### become pregnant or contracted a disease as a result." Summers. 70 Wn.App. at 432. Like P.W., the victim in Summers showed "confusion as to such fundamental and 

### elementary facts" like her ownage and what time itwas. Summers. 70 Wn.App. at 432. Anydifference between P.W.'s mental capacity and the Summers victim is negligible. Excluding evidence of P.W.'s sexual encounters under Summers did not amount to an abuse of discretion.3 DeLong also argues that the evidence was relevant to show that various 

### individuals, including the investigating detectives, knew about P.W.'s relationship with Blakeny but did nothing to stop it. First, we note that nothing inDeLong's offer of proof contains any facts supporting this assertion. This evidence is not probative ofP.W.'s 

### capacityto consent. The detectives could have chosen not to investigate Blakeny for


### 3DeLong also argues that the rape shieldstatute did not apply here, because the evidence he soughtto admit involved contemporaneous sexual acts and not "past" sexual acts. RCW 9A.44.020(2). We note that it is questionable whetherthe rape shield statute would apply to the evidence of P.W.'s allegedly contemporaneous sexual 

### activity with Blakeny. See State v. Jones. 117 Wn. App. 221, 722-23, 70 P.3d 171 (2003) ("A quick reading ofthe rape shield statute, however, shows that itapplies only to past sexual behavior... Any reading ofthe statute that conflates 'past' with 'present' 

### sexual conduct is tortured."). However, DeLong did not presentthis argument below, and we therefore decline to address the issue here. RAP 2.5(a); State v. McFarland. 127 Wn.2d 322, 332-33, 899 P.2d 1251 (1995) ("As a general rule, appellate courts will not consider issues raised for the first time on appeal."). But even ifthe rape shield statute did not apply here, for the same reasons discussed above, the trial court properly concluded undertraditional evidentiary principles thatthe evidence was inadmissible as more prejudicial than probative. See State v. Carver. 37 Wn. App. 122, 124, 678 P.2d 842 (1984) (When proffered evidence falls outside the scope ofthe rape shield statute, the court "must apply general evidentiary principles of relevance, probative value and prejudice.").

-11-No. 72829-6-1/12


### several reasons, including, as the State notes, that Blakenywas also developmental^ disabled. The record also shows that DeLong had a fair opportunityto cross-examine the witnesses regarding their opinions on P.W.'s mental capacity. Evidence that the detectives or anyone else did nothing in response to P.W.'s alleged relationship with Blakeny was also more prejudicial than probative. For the same reasons discussed below, ifthe trial courterred, any errorwas harmless. Sixth Amendment Right to Present a Defense DeLong also contends thatthe trial court's decision to exclude this evidence violated his Sixth Amendment right to present a defense. Because the evidence was irrelevant, no Sixth Amendment violation occurred here. Even ifthe trial court erred, that error was harmless. Both the federal and state constitutions protect a defendant's right to present a defense. State v. Hudlow. 99 Wn.2d 1,14, 676 P.2d 553 (1984). In Hudlow. the court articulated a two parttest to determine whetherthe exclusion ofevidence violated this 

### right. Hudlow. 99 Wn.2d at 15. First, the evidence must be relevant; a criminal defendant has no constitutional right to the admission of irrelevantevidence. Hudlow. 99 Wn.2d at 15. Second, ifthe evidence is relevant, the court considers whetherthe 

### State has demonstrated a compelling interestthatoutweighs the defendant's interest in admitting the evidence. Ifthe evidence is not relevant, the court need not reach the 

### "compelling interest" question. State v. Jones. 117 Wn. App. 221, 234 n.2, 70 P.3d 171 (2003).

-12-No. 72829-6-1/13
As discussed above, the evidence DeLong soughtto introduce lacked relevance. DeLong contends that any prejudicial impactfrom evidence of P.W.'s sexual encounters is substantially outweighed by its highly probative value and thatthe trial courtthus deprived him of his right to present a defense by excluding it. But, in Summers, the defendant made the same argument as DeLong under nearly identical circumstances, and we rejected it: [E]ven ifthe evidence here in question has some minimal relevance, it is not necessarily errorto exclude it. Summers merely quotes general language from [Hudlow] and ignores the fact that the court acknowledged the state's interest in using the rape shield statute to barevidence even if it is of arguably probative value which may distract and inflamejurors and its interest in encouraging rape victims to step forward and prosecute. "[T]rialjudges retain wide latitude to limitreasonably a criminal defendant's right to cross-examine a witness based on concerns about, among otherthings, harassment, prejudice, confusion ofthe issues, the witness' safety, or interrogation that is repetitive or only marginally relevant." 

### Summers. 70 Wn. App. at435-36 (quoting Michigan v. Lucas. 500 U.S. 145,149, 111 S. Ct. 1743, 114 L Ed. 2d 205 (1991)). As in Summers, given the evidence's 

### questionable relevance and the State's legitimate prejudice concerns, the trial courtdid not infringe DeLong's constitutional right to present a defense. But even ifthe trial court erred when it excluded this evidence, that error was harmless. Because the alleged error implicates DeLong's constitutional right to present
a defense, it is harmless only ifwe are "convinced beyond a reasonable doubtthat any 

### reasonablejury would have reached the same result without the error." State v. Smith. 148 Wn.2d 122, 139, 59 P.3d 74 (2002).

-13-No. 72829-6-1/14 

### Althoughconstitutional harmlessness is a demanding standard, the record here 

### contains overwhelmingevidence of P.W.'s diminishedcapacityto consentto sexual 

### interaction. First, P.W.'s exhaustive testimony shows her diminished mental capacity. Asdiscussed above, P.W. could not tell time oraccurately recite the alphabet. She also 

### did notknow her address or her correct age. Throughout her testimony, P.W.typically responded with simple, one-word answers. She also demonstrated an unusual 

### obsession with toys, dolls, and Scooby Doo, who she at one point referred to as her "boyfriend." RP (Nov. 13, 2014) at 25. 

### Second, there was substantial evidence of P.W.'s understanding ofsexual matters and previous relationships. Despite this evidence, the juryconcluded that P.W. lacked the capacityto consentto sex.4 For example, P.W. understood the difference 

### between a "handjob," a "blowjob," and vaginal intercourse. RP (Nov. 12, 2014) at 173- 74; RP (Nov. 13, 2014) at 13. Duringone exchange, defense counsel asked P.W., "You're actually good at handjobs; is that right?" and P.W. responded, "(Laughing.) Yeah." RP (Nov. 13, 2014) at 13. Although P.W. did not testify directly about sexual encounters withindividuals otherthan DeLong and Douglass, she did testify to previous relationships. She testified about at leastthree boyfriends inthe past. She also stated that, at one point intime, she considered DeLong as her boyfriend. She also said that 

### she had been married, and she had three children from that marriage. When defense counsel asked P.W. ifshe "didn't like to have sex with Jim," P.W. responded, "not every day." RP (Nov. 13, 2014) at 13. Despite all ofthis evidence of P.W.'s knowledge of 

### 4As discussed above, during his interview withdetectives, DeLong admitted to having repeated sexual contactwith P.W., so the main issue attrial was whether P.W. had the mental capacity to consent. -14-No. 72829-6-1/15
sexual matters and previous relationships, thejury stillconcluded that she lacked the 

### capacity to consentto sex. Evidence ofsexual activity with herthen-current "boyfriend" would not have changed the outcome. Any errorwas harmless beyond a reasonable doubt. Prosecutorial Misconduct 

### DeLong contends the prosecutor made impropercomments during closing 

### argument amounting to prosecutorial misconduct. This argumentfails. Even ifthe prosecutor's comments were improper, DeLong has failed to showthe comments are incurably prejudicial. 

### Adefendantclaiming prosecutorial misconducton appeal mustdemonstrate that the prosecutor's conduct at trialwas both improperand prejudicial. State v. Fisher. 165 Wn.2d 727, 747, 202 P.3d 937 (2009). "Once a defendant has demonstrated thatthe 

### prosecutor's conductwas improper, we evaluate the defendant's claim of prejudice on the merits undertwo different standards ofreview depending on whetherthe defendant 

### objected attrial." State v. Sakellis. 164 Wn. App. 170, 183, 269 P.3d 1029 (2011). "If the defendantobjected to the misconduct, we mustdetermine whetherthe misconduct 

### resulted in prejudice that had a substantial likelihood of affecting the verdict." State v. Anderson. 153 Wn. App. 417, 427, 220 P.3d 1273 (2009). Ifthe defendantfailed to 

### object, the court must ascertain whetherthe prosecutor's misconduct was so flagrant and ill-intentioned that itcaused an "enduring and resulting prejudice" incurable by a 

### jury instruction. State v. Stenson. 132 Wn.2d668, 719, 940 P.2d 1239(1997). "This standard requires the defendantto establish that (1) the misconduct resulted in 

### prejudicethat 'had a substantiallikelihood ofaffecting thejuryverdict,' and (2) no -15-No. 72829-6-1/16
curative instruction would have obviated the prejudicial effect on thejury." Sakellis. 164 Wn. App. at 184 (quoting State v. Thoroerson 172Wn.2d 438, 455, 258 P.3d 43 (2011)). DeLong highlights two portions ofthe prosecutor's closing argument. First, DeLong claims the prosecutor improperly compared P.W. to a child: Children cannot and are not expected to understand the nature and consequences of sex. It is therefore illegal to have sex with them. And 

### sadly, for some adults, they are mentally atthe same level as children. And the law, this law, makes it illegal to have sex with them, too. There is too much danger, too much manipulation, too much abuse ofpower inherent in that. [P.W.] is like a sweetchild. She doesn't appearto even realize that 

### she could say no, that she could limitwhen and where and what in anything she would do. She doesn't quite understand that she has that poweror that she should have that power. And because ofthat, she needs the protection ofthis law. She needs it. She is in many ways the epitome ofwho we wantthis law to protect. Considerthat portion at the end of [DeLong's] interview with the detectives. Detective Kim, Detective Purcella were clearly getting 

### frustrated with him. They were confronting him aboutthe nature of [P.W.'s] disability and how he could possibly believe that itwas okayto have sex with her and this is what he said. 

### (Audio recording played) He tells them she has never said no. She's a child. She shouldn't 

### have to say no. And the Defendanttook gross and disgusting advantage ofthat. And now the trial's over and it's up to you. What are you going to do about it? 

### RP (Nov. 17, 2014) at 22-24. DeLongcontends the prosecutorcontinued with this theme and then ended with a "call to arms": 

### And yet the Defendant saw [P.W.], and itmust have been, a ha, here's a woman Ican take advantage of, here's a woman Ican make 

### some money off of. And he kept doing it foryears continuously. That's what this case is about. The Defendanttold you how he did 

### it. You have allthe evidence. Now it's all up to you. You decide what's 

### going to happen next. What are you going to do about it?

-16-No. 72829-6-1/17
The law is clear, this man is guilty of everything he is charged with. Thankyou. RP(Nov. 17, 2014) at 54. DeLong contends these comments were improper because they urged thejury to resolve the case on grounds otherthan the facts ofthe case and the applicable law. But this mischaracterizes the prosecutor's comments. Although it is improperfor a 

### prosecutorto "exhort[] thejury to send a message to society" during closing argument, 

### nothing inthe prosecutor's statements here arises to an improperemotional appeal. State v. Bautista-Caldera. 56 Wn. App. 186, 195, 783 P.2d 116 (1989); see ajso State v. 

### Curtiss. 161 Wn. App. 673, 701, 250 P.3d 496 ("Urgingthejury to render ajustverdict that is supported by evidence is not misconduct."). Ineach ofthe cases cited by 

### DeLong, the prosecutor asked the jury to "send a message" to society with their verdict

or base their conclusion on facts or issues unrelated to the case. In Bautista-Caldera. 

### forinstance, the prosecutortoldthejury, "do not tellthatchildthatthis type oftouching 

### is okay, that this is just something she will have to learn to live with. Let her and 

### children know that you're ready to believe them and [e]nforce the law on their behalf." Bautista-Caldera. 56Wn. App. at 195 (emphasis added). At no point during closing 

### argument here did the prosecutorsimilarly askthe jury to send a message toother victims like P.W. that they would "believe them" and "enforce the law on their behalf." InState v. Neal. 361 N.J. Super. 522, 826 A.2d 723 (App. Div. 2003), a perjury 

### prosecution of a school board member, the prosecutorasked thejuryto convictthe defendantnot just for the crime ofperjury, but also for betraying his oath as a school board member and for betraying the children of the community he served. Neal. 826

-17-No. 72829-6-1/18


### A.2d at734. The courtfound these statements improper because they distracted the 

### juryfromthe facts of the case. Neal. 826 A.2d at 734. Nothing in the prosecutor's closing argument here is comparable to Neal. He never suggested thejuryconvict DeLong for any reason otherthan the charged offenses. Nor did the prosecutor argue thatthejury hold DeLong accountable for betraying anyone otherthan P.W., the sole victim inthe case. Compare Neal. 826 A.2d at 734 ("'I'm asking you to hold him accountable forthe betrayal ofthe children [of]Asbury Park.'" (emphasis omitted) (alteration in original)). Further, the prosecutor's comparison of P.W. to a child did not introduce "facts not inevidence." Br. ofAppellant at 35. The prosecutor's statements undoubtedly referto the three separate witnesses inthe case—Stark, Detective Kim, and Detective Purcella—who testified that P.W. behaved like a child. 

### But even ifthe prosecutor's comments were improper, DeLong has failed to show that they substantially affected the verdict. As explained above, the record shows overwhelming evidence of guilt. DeLong admitted sexual intercourse with P.W., and the 

### State presented substantial evidence of P.W.'s diminished mental capacity. It is unlikely the prosecutor's benign comments affected the outcome. DeLong did not object, and he has failed to show that "no curative instruction would have obviated the prejudicial effect on thejury." Thoroerson 172Wn.2d at 455. DeLong cites State v. Walker. 164Wn. App. 724, 265 P.3d 191 (2011). Walker is distinguishable. InWalker, the prosecutor substantially mischaracterized the law by telling thejury that determining the defendant's culpability depended on whetherthey "would have done the exact same thing [he did] if[they] had the same decision to make." Walker. 164Wn. App. at 735. The prosecutor also had a powerpoint slide
-18-No. 72829-6-1/19 

### instructing thejurythatthe entire case turned on whether "I would do it too, ifIknew what he knew." Walker. 164Wn. App. at736. The court held the statements were 

### improperbecause they "misstatedthe law ofdefense of others." Walker. 164Wn. App. at 736. DeLong fails to show the prosecutor's statements amountto similar misconduct. 

### DeLong never alleges thatthe prosecutormisstated the applicable law. Unlike this case, defense counsel objected in Walker. Walker. 164Wn. App. at 735. None ofthe 

### prosecutor's comments here were so egregious that they could nothave been cured by

an instruction. 

### Even inBautista-Caldera. where the prosecutorasked thejury to show "children" generally that they were "ready to believe them and enforce the law on their behalf," the 

### court held that "the impropercomments are not nearly so extensive or egregious as those found to constitute reversible misconduct... We do not find any prejudice such

as could not have been neutralized with a curative instruction." Bautista-Caldera. 56 Wn. App. at 195. The prosecutor's comments here are far less harmful than those in 

### Bautista-Caldera. Acurative instruction would have neutralized any prejudicial effecton thejury. Ineffective Assistance of Counsel DeLong also argues that his attorney's failure to objectto the prosecutor's closing statements, quoted above, violated his right to effective assistance of counsel. We review claims for ineffective assistance of counsel de novo. State v. Sutherbv. 165 Wn.2d 870, 883, 204 P.3d 916 (2009). "To prevail on a claim of ineffective assistance of counsel, counsel's representation must have been deficient, and the deficient representation must have prejudiced the defendant." State v. Aho.
-19-No. 72829-6-1/20
137 Wn.2d 736, 745, 975 P.2d 512 (1999); Strickland v. Washington. 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). "To establish ineffective representation, the defendant must show that counsel's performance fell below an objective standard of reasonableness. To establish prejudice, a defendant must show that butfor counsel's performance, the result would have been different." State v. McNeal. 145 Wn.2d 352, 

### 362, 37 P.3d 280 (2002) (citation omitted). Failure to establish either prong ofthe test is fatal to an ineffective assistance of counsel claim. Strickland. 466 U.S. at 700. We are reluctant to find ineffective assistance of counsel except in the most 

### extreme cases. "[Scrutiny ofcounsel's performance is highly deferential and courts will 

### indulge in a strong presumption ofreasonableness." State v. Thomas. 109 Wn.2d 222, 226, 743 P.2d 816 (1987). This is particularlytrue where, as here, the alleged deficient performance consists ofan attorney's failure to object. "The decision ofwhen or whetherto object is a classic example of trial tactics. Only inegregious circumstances,


### on testimony central to the State's case, will the failure to objectconstitute 

### incompetence ofcounseljustifyingreversal." State v. Madison. 53 Wn. App. 754, 763, 770 P.2d 662 (1989). 

### Delong has failed to show eitherdeficientperformance or prejudice. DeLong contends defense counsel was deficientfor failing to objectto the prosecutor's remarks. 

### But, as discussed above, the prosecutor's remarks were not improper. It is reasonable to inferthatcounsel did not objectbecause she believed the prosecutor's remarks were 

### within appropriate legalboundaries and supported by the facts. The record here is insufficientto overcome the strong presumption that defense counsel acted reasonably when she declined to objectto the prosecutor's statements. DeLong has failed to cite
-20-No. 72829-6-1/21


### any analogous cases demonstrating thatdefense counsel's performance here fell below
an objective standard of reasonableness. 

### DeLong also failed to show prejudice. As discussed above, there was overwhelming evidence of guilt. It is unlikely the outcome would have been different had defense counsel objected to the prosecutor's statements. See McNeal. 145 Wn.2d at 362 ("To establish prejudice, a defendant must show that butfor counsel's 

### performance, the result would have been different."). Statements of Additional Grounds DeLong submitted two additional grounds for review. Both are meritless. First, 

### Delong contends that his first attorney was ineffective. He complains this attorney would not discuss strategy with him and did not care whetheror not he was innocent. 

### But DeLong concedes thatthis attorney transferred to a different departmentearly on in his case and did not represent him attrial. Adifferent attorney represented DeLong for 

### the majority ofthe case, including pretrial motions and thejury trial. Therefore, even if
we assume, without deciding, that DeLong's first attorney was deficient, DeLong cannot show prejudice because his second attorney handled the overwhelming majority of DeLong's defense. DeLong's second claim also fails. He contends that his second attorney was also ineffective, citing several disagreements he had with defense counsel's strategic decisions before and during trial. For example, he alleges that no doctor examined P.W. to determine her mental capacity. He also claims defense counsel did not meet with him to discuss his case and failed to thoroughly investigate his claim of innocence and discredit Stark as a "conspirator." DeLong's claim contains no citation to the
-21-No. 72829-6-1/22 record, nor does he cite any relevant case law otherthan the cases outlining the legal
test for an ineffective assistance of counsel claim. See, e.g.. Strickland v. Washington. 466 U.S. at 687. Our review ofthe record revealed nothing supporting DeLong's 

### claims. See State v. O'Connor. 155 Wn. App. 282, 293, 229 P.3d 880 (2010) ("[A]n appellate court is not obligated to search the record insupportofclaims made in a defendant/appellant's statementofadditional grounds for review."). We need not 

### consider DeLong's claims to the extentthey rely on facts orevidence not in the record. See State v. Calvin. 176 Wn. App. 1, 316 P.3d 496 (2013). Further, DeLong's 

### complaints are based on defense counsel's strategic decisions. These decisions enjoy
a strong presumption ofreasonableness, and usually "deficient performance is not 

### shown bymatters that go totrial strategyor tactics." State v. Studd. 137Wn.2d 533, 551, 973 P.2d 1049 (1999). DeLong has failed to overcome that presumption. But
even ifcounsel's performance was deficient, for the same reasons discussed above, 

### DeLong cannot show that the outcome would have been different but fordefense counsel's alleged errors. CONCLUSION 

### For the foregoing reasons, we affirm thejudgmentand sentence.

WE CONCUR: 

# TV^y T 

# Acj

-22-