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

v. BRANDON JOSEPH EARL, Appellant. No. 70144-4-1

UNPUBLISHED OPINION FILED: July 14, 2014 Verellen, A.C.J.

—The right to present a defense does not entitle a criminal 

### defendantto present minimallyrelevant evidence ifthe State has a compelling interest 

### thatoutweighs the defendant's need forsuch information,especiallywhere the trial court admits ample evidence pertinentto the defense theory. 

### Brandon Earl was convicted ofrape of a child. His defense theory was thatthe 

### reporting witnesses, the victim's mother and grandmother, were predisposed to assume the worst after he was found alone with the child and the child told her mother that Earl 

### "told me not totell" and told her grandmotherthat Earl"licked my pee-pee."1 Earl presented evidence that the child's mother was molested as a child and argued that this biased the mother and grandmother. The trial court admitted the evidence that the 

### mother was abused 20 years ago, butexcluded evidence thatthe mother's abuser, a 

### relative, was present at the same family gathering where Earl allegedly raped her
1Report ofProceedings (RP) (Jan. 30, 2013) at 284, 360.No. 70144-4-1/2 

### daughter. Earl failed to present afoundation linking the identity and presence ofthe mother's abuserto hisdefense theory. The State's interestin excluding the potentially confusing and speculative evidence was compelling and outweighed Earl's minimal need topresentthe excluded evidence. The parties dispute whetheran appellate court applies a de novo or abuse ofdiscretion standard of review. Under either standard, we 

### affirm. Earl was notdenied his right to present a defense, and the ruling was within the trial court's discretion. 

### Earl also argues that the prosecutor's "we know" references in closing argument
were misconduct. But he failed to object to the arguments, the arguments were not 

### flagrant or ill intentioned, and a curative instruction would have negated any resulting prejudice. We reject Earl's argument that cumulative error deprived him of a fair trial. His statement ofadditional grounds for review also lacks merit. We affirm his judgment and sentence. FACTS On December 24, 2010, Earl returned home from work to a family Christmas party. He went upstairs to his bedroom to rest. Several children, including Earl's son,
were in his bedroom watching cartoons. Earl contends that he gave the children "raspberries," i.e., blew on their stomachs, and sent them downstairs. He latertold officers that M.F., the three-year-old daughter of his wife's cousin, returned to the room. M.F.'s mother testified that she became concerned when she saw most ofthe children downstairs, but not M.F. She decided to look for M.F. When she got to Earl's bedroom door and found itclosed, she opened itquickly. She testified that Earl andNo. 70144-4-1/3 

### M.F. were inclose proximity on Earl's bed, but they separated quicklywhen she opened
the door: When Iopened it, Icould hear a bunch ofcommotion. Ilook around, and I can see Brandon coming from the left side ofthe bed, kind ofreadjusting, sitting up to the right side ofthe bed. The covers were over his bottom 

### half,fully dressed. [M.F.] is more towards the foot ofthe bed on the left sideJ2! She carried M.F. out ofthe room. The mother testified that as she did so, M.F. said that Earl "told me not to tell."3 The mothertook M.F. downstairs and tried to get M.F. to tell herwhat happened, 

### but she would not. She took M.F. to M.F.'s grandmother. The motherfound Earl's wife. The two conversed in a parked car. 

### Whilethegrandmotherwaswatching M.F., M.F. stated, "He licked my pee-pee."4 The grandmother asked whodid, and M.F. answered, "Brandon."5 That night, M.F. went straight to bed and slept in the clothes she had worn that 

### day. M.F. told her mother as she was getting ready for bed that "[h]e made a mess down there."6 

### Two days later, December 26, 2010,the mother tookM.F. to a sexual assault examination in Everett. M.F. made allegations consistentwith her report to her 

### grandmotherthatEarl hadorally raped her. Evidencewas collected, including a

2 \± at 279. 3jd, at 284. 4Id at 360. The mothertestified thatthere may have been confusion about 

### M.F.'s exactwords, whether she said "pee-pee," or "peep," or "pee." She explained that 

### "Pee" or "peep"was theword that she and M.F. used to refer to a vagina, id. at 294. 5Id, at 362. 6 Id. at 296.No. 70144-4-1/4 

### physical examination, DNA7 swabs ofM.F.'s body, and the clothesM.F. worethenight before. Police were given two pairs of underwear that M.F. had been wearing around thattime. Male DNAwas found on one ofthe pairs in an amount "more consistentwith 

### a bodyfluid deposit compared to a briefcontacttouch."8 The DNA analysis disclosed a profile identical with Earl's, found inless than 1 in 5,200 males. Amylase, an enzyme found in saliva and other body fluids, was found on the inside ofthe crotch area ofthe
same pair of M.F.'s underwear. Earl admitted to police that he was alone with M.F. on his bed, that he placed his mouth on herexposed lowertorso when "blowing raspberries," and emphasized that his 

### face likelytouched her vaginal area for "thirty seconds."9 He gave conflicting statements about whether the contactwith her vaginal area was over or under M.F.'s clothing. Earl was charged with first degree rape of a child and tried by jury. M.F. was not competent to testify. Her mother, grandmother, and Earl's then ex-wife alltestified at trial, along with forensic scientists and police officers. Earl's statementto police was admitted. Thejury convicted Earl as charged. The court imposed an indeterminate sentence with a standard range minimum of 113 months and a maximum term of life. Earl appeals.

7Deoxyribonucleic acid. 8RP(Feb. 1,2013) at 696. 9 Exhibit 58 at 27.No. 70144-4-1/5
DISCUSSION Right to Present a Defense Earl argues thatthe trial court violated his right to present a defense by excluding evidence potentially relevantto thejury's assessment ofthe reliability ofthe perceptions ofM.F.'s mother and grandmother. "The right of an accused in a criminal trial to due process is, inessence, the right 

### to a fairopportunity to defend againstthe State's accusations."10 Defendants have the right to present relevant evidence; however, defendants have no constitutional right to 

### present irrelevant evidence.11 Relevance depends on "the circumstances ofeach case 

### and the relationship ofthe facts to the ultimate issue."12 Evidence of high probative value cannot be restricted, regardless of how compelling the State's interest may be, if 

### doing so deprives a defendant of the ability to testify to their version of the incident.13 Evidence of "minimal relevance
. . . 'may be excluded ifthe State's interest... is 

### compelling innature.'"14 Such evidence "may be deemed inadmissible ifthe State can

10 Chambers v. Mississippi, 410 U.S. 284, 294, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973).11 State v. Gregory, 158 Wn.2d 759, 786 n.6, 147 P.3d 1201 (2006). Testimony must be relevant to be admissible. ER 402. Evidence is relevant if ittends to prove or 

### disprove the existence of a fact and thatfact is ofconsequence to the outcome ofthe case. ER 401; Davidson v. Municipality of Metro. Seattle, 43 Wn. App. 569, 573, 719 P.2d 569 (1986). 12 State v. Rice, 48 Wn. App. 7, 12, 737 P.2d 726 (1987). Evidence offered to 

### impeach a witness is relevant if ittends to cast doubt on the credibility of the person being impeached and the credibility ofthe person being impeached is a fact of consequence to the action. State v. Allen S., 98 Wn. App. 452, 459-60, 989 P.2d 1222 (1999).13 State v. Jones, 168 Wn.2d 713, 720-21, 230 P.3d 576 (2010). 

### 14 Id, at 723 (quoting State v. Hudlow, 99 Wn.2d 1,16, 659 P.2d 514 (1983)).No. 70144-4-1/6 

### show a compelling interest to exclude prejudicial or inflammatoryevidence."15 The State's interest "is to preclude evidence that may interfere with the fairness ofthe 

### trial."16 "The State's interest in excluding prejudicial evidence must also 'be balanced againstthe defendant's need for the information sought,' and relevant information can 

### be withheld only 'if the State's interest outweighs the defendant's need.'"17 

### Earl argues the court should review hisclaim de novo, citing State v. Jones.18 The State argues thatthe trial court's decision whetherto admit evidence, even when a constitutional challenge is raised, is reviewed for an abuse ofdiscretion, citing our 

### Supreme Court's decisions in State v. Darden19 and State v. Hudlow.20 Under either standard, we affirm.21 

### The trial court permitted Earl to elicitevidence that M.F.'s motherwas molested
as a child, but precluded questioning concerning the fact that her molesterwas a

15 State v. Darden, 145 Wn.2d 612, 622, 41 P.3d 1189 (2002) (citing State v. Hudlow, 99 Wn.2d 1,16, 659 P.2d 514 (1983) ("We believe the 'compelling state 

### interest' requirement is the proper method ofbalancing the defendant's right to produce relevant evidence versus the state's interest in limitingthe prejudicial effects ofthat evidence.")). 16 id, 17 Jones, 168 Wn.2d at 720 (quoting jdj. 18 168 Wn.2d 713, 230 P.3d 576 (2010). 19 145 Wn.2d 612,41 P.3d 1189(2002). 20 99 Wn.2d 1, 659 P.2d 514 (1983). 

### 21 Recently, in Statev. Franklin, Wn.2d , 325 P.3d 159, 162 n.2 (2014), 

### our Supreme Court stated that an appellate courtreviews a trial court's decision to exclude evidence for abuse ofdiscretion, even though that case considered an 

### evidentiary ruling implicating constitutional rights to present a defense. Thecourt noted thepresumption ofprejudice ifanevidentiary ruling denies a constitutional right, and makes no reference to the de novo standard ofreview.No. 70144-4-1/7 

### relative who was at the same party where Earl allegedly raped M.F.22 Earlcontends that this evidence "wouldhave corroborated the defense theory thatthe mother's accusation was the result ofoverreaction based on her own experience," and thatthe 

### trial court violated his constitutional right to present a defense by excluding it.23 The State argued to the trial courtthatthe evidence was minimallyrelevant and invited speculation: Basically, the argument here is that there is very little probative value and the prejudicial value is very high. Jurors have a hard time accepting or understanding that sexual abuse like this occurs at all. For evidence to come inthat 20 years ago [the mother] was sexually abused by someone who ultimately pleaded guilty and served time, and after serving time incommunity custody was welcomed back into the family, I really don't see how that is very probative in anything but a speculative way to the relevant factors ofthis case.

... Ithink it's an invitation for thejury to engage in improper speculation and to inject their inherently conflicted feelings about sexual abuse and sexual abuse victims into a case where they should really be concentrating on what happened between Brandon Earl and [M.F.] inthat bedroom.[24]

mind: Earl's counsel argued that the evidence was probative to the mother's state of
[The mother] even said itwas something more likely to make her be hypervigilant and more sensitive to these issues. Itgoes to her state of 

### mind and can help the juryunderstand that kind ofbehavior.[25] The trial court and Earl's counsel engaged inthe following colloquy:

22 It is not disputed thatthe relative who abused M.F.'s motherwas present at the Christmas Eve gathering. After having served his sentence, the uncle was forgiven by the family and welcomed at family gatherings. 23 Appellant's Br. at 1. 

### 24RP(Jan. 28, 2013) at 183-84. 25 Id. at 185.No. 70144-4-1/8 

### COURT: Well, Iwill agree with you part way. Ithink it is probative that [the mother] was sexually abused as a child. Idon't see who the defendant was at thattime has any probative value. COUNSEL: He was presentthat night with children inthe house. COURT: So what? There is no evidence that he was a suspect or 

### likely a perpetrator ofsexual abuse on [M.F.]. COUNSEL: Iwould never suggest that. Iinsist itgoes to [the mother's] emotionality that night and her paranoia. 

### COURT: That's speculation. There is nothing to supportthat. The fact that she was a victim of sexual abuse Ithink explains 

### her hypervigilance on the part of[M.F.]. Ithink you are 

### entitled to let the jury know that. Ithink ithas no probative 

### value that [themother's abuser] was the perpetratorof that sexual abuse and that he was presentthat night.[26] 

### Thetrial court granted the State's motion in part, limiting Earl'scross-examination of the mother to the fact of her own prior sexual abuse, but excluding details, including 

### that the mother's abuser was present at the Christmas partywhereEarl allegedly abused M.F: 

### COURT: I'm not going to go down that road. The fact that [the mother] was sexuallyabused previously has probative value. 

### Beyond that, I'm notgoing toallowthe defense to getinto that area. Ijust don'tseethe probative value. Itinvitesthe juryto speculate.'271 Earl's counsel renewed the argument the following day, proposing limits on the 

### cross-examination, agreeing not to use the evidence as other suspectevidence, and 

### suggesting alimiting instruction to ensure againstjuryconfusion. The court declined to revisit its earlier ruling to exclude the evidence, explaining: COURT: Ithinkthe defense can adequately argue itsfacts and theory 

### to thejury in that theCourtisallowing the defense tobring 26 id, at 185-86. 27 Id. at 187.No. 70144-4-1/9


### out that [the mother] was sexually molested as a child. You can bring out the age that she was at that time.

. . . But beyond that, getting into the facts of it.
.. does invite 

### thejury to speculate.
... Itfurther leads thejury to start confusing the evidence, the facts in this case with facts in 

### the case years ago with [the mother].1281 The critical inquiry is whether Earl's need forthe information outweighed the State's interest in excluding the evidence. We conclude it did not. The evidence Earl soughtto admit was, at most, minimally relevant. Earl contends that the excluded evidence was relevant to his theory that the mother and grandmotherwere predisposed to believe the worst andjump to conclusions because of the abuse the mother suffered as a child and the grandmother's discovery ofthat abuse. But Earl did not offer expert opinion testimony or other evidence that the presence of the mother's abuser influenced the mother's or grandmother's perceptions at the time of Earl's offense. The impact ofthe presence ofthe mother's abuser on the mother's or grandmother's perception is not obvious. The abuse happened 20 years earlier. The mother long ago forgave the abuser, who is now a welcomed member ofthe family. Earl failed to persuasively linkthe identity and presence ofthe mother's abuser to his defense. Earl's need for this evidence was minimal. Unlike Jones, the trial court here did not exclude all evidence related to the defense theory. The trial court admitted evidence that the motherwas sexually abused 20 years earlier. The mother admitted that the prior abuse made her hypervigilant about her daughter and that she was


### 28 RP (Jan. 29, 2013) at 206-07.No. 70144-4-1/10 

### potentially overlyparanoid about Earl being alone with her daughteron a previous occasion. These facts allowed Earl to argue his defense thatthe mother and 

### grandmotherwere biased bythe mother's earlier abuse trauma. Especially where the defense offers no foundation establishing the significance ofthe excluded evidence, the need for such minimally relevant evidence is marginal. Evidence of minimal relevance "'may be excluded ifthe State's interest... is 

### compelling innature.'"29 The State's interest in excluding the evidence was based on
concerns that the admission ofthe evidence would invite thejurors to speculate and would lead them to confuse the evidence. These are valid considerations regarding the fairness ofthe fact-finding process. Inthe circumstances here, the reasons for exclusion outweigh Earl's minimal need for the evidence regarding the mother's past abuser. Under either the de novo standard ofreview or the abuse ofdiscretion standard,
we conclude thatthere was no denial ofthe constitutional right to present a defense and that the evidence was properly excluded. Prosecutorial Misconduct Earl contends that the prosecutor committed misconduct in closing argument by "improperly aligning himselfwith thejury, placing the prestige of his office inthe balance, and expressing a personal opinion on the complainant's credibility and Earl's 

### guilt."30 Particularly, Earl argues the prosecutor used "we"statements to suggesteither

29 Jones, 168 Wn.2d at 723 (quoting Hudlow, 99 Wn.2d at 16). 

### 30 Appellant's Br. at 22.

10No. 70144-4-1/11 

### that the prosecutor and his office had determined certain facts to be established, or that 

### the prosecutor and the jurors were on the same "side," with Earl on the other. Although he did not object at trial, he argues that reversal is required because the misconduct
was incurable by instruction and substantially likely to affectthe verdict. 

### To prevail on a claim ofprosecutorial misconduct, a defendant is required to show thatthe prosecutor's conductwas both improper and prejudicial.31 To establish prejudice, the defendant must show a substantial likelihood that the misconduct affected 

### the verdict.32 Where the defendantfails to object attrial, any errors are waived unless the misconduct was so flagrant and ill intentioned that an instruction would not have 

### cured the prejudice.33 We considerthe prosecutor's alleged improper conduct in the context ofthe total argument, the issues inthe case, the evidence addressed inthe 

### argument, and the juryinstructions.34 Earl challenges the following statements by the prosecutor: Iknow it's hard to wrap your mind around the fact that how could someone be so bold and so stupid to do this during a Christmas party. That does boggle the mind, but so does the fact that these crimes happened at all. 

### We know it did. Ithappened to [M.F.].!351 He said he had never been alone with [M.F.] ever before this incident. It's on the tape. You can hear it for yourself. We know that's not true because ofwhat we learned aboutthat birthday party in the garage that happened a few weeks before all this in which we have multiple witnesses 

### saying that [Earl] was alone with [M.F.] during thattime.[36]
31 In re Glasmann, 175 Wn.2d 696, 717, 286 P.3d 673 (2012). 32 id, 33 id, 34 State v. Anderson, 153 Wn. App. 417, 430, 220 P.3d 1273 (2009). 35 RP (Feb. 4, 2013) at 976-77. 36 Id. at 981.

11No. 70144-4-1/12 

### The defendant said that there werejeans or slacks on that child. We know that's not the case.'371 The defendant said that there would be no reason—no reason—for his 

### saliva, for his DNA, to be on the inside ofthat little girl's underwear. What 

### have we just found out through a meticulous, rigorous course of testimony over the pastweek? We found out that, in fact, the defendantwas wrong about that.'381 

### Nothing in the prosecutor's arguments was sufficiently inflammatory as to be beyond reach of an appropriate curative instruction. Courts have discouraged the frequent use ofthe phrase "we know" and related formulations during jury arguments because the identity ofthe referenced group "we" may be ambiguous.39 But the use of such phrases is generally improper only "when itsuggests thatthe government has 

### special knowledge ofevidence not presented to thejury, carries an implied guarantee of 

### truthfulness, or expresses a personal opinion about credibility."40 Here, the prosecutor did not offer personal assurances aboutthe credibility ofthe State's witnesses or imply 

### the existence ofcorroborative evidence not admitted.41 A prompt objection and curative instruction could have negated any potential prejudice. No objection was interposed



### 37id, at 989. 38 id, at 992. 

### 39 United States v. Younger, 398 F.3d 1179, 1191 (2005). 40 United States v. Bentley. 561 F.3d 803, 812 (8th Cir. 2009). 41 See Younger, 398 F.3d at 1191 (no misconduct where prosecutors used the phrase "we know" to "marshal evidence actually admitted at trial and reasonable inferences from that evidence, not to vouch for witness veracity or suggestthat evidence not produced would support a witness's statements"; Bentley, 561 F.3d at 812 (prosecutor's frequent use of "we know" during closing argument was proper reference to evidence presented to thejury and reasonable inferences that could be drawn from the evidence); United States v. Ruiz, 710 F.3d 1077, 1086 (9th Cir. 2013) (prosecutor's use of "we know" properly summarized evidence admitted at trial and reasonable inferences and did not suggestthat evidence not admitted would support a witness's statement).

12No. 70144-4-1/13 

### and no curative instruction was requested. Accordingly, the issue was waived by Earl's failure to object inthe trial court. Other Issues Because we determine there was no error in the exclusion of evidence and the issue of prosecutorial misconduct is waived, there was no cumulative error. In his statement of additional grounds, Earl contends that M.F.'s mother and his ex-wife smoked marijuana the night ofthe alleged rape and that this was relevant to their ability to perceive events. Butthe record on appeal does not contain any ofthese alleged facts. On this record, no reliefis warranted.
Affirmed.

WE CONCUR: 

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