COU[; t OF APPEALS

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2015 JUN 23 11 8: 31

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, 

DIVISION II

Respondent, 

v. 

GEORGE THOMAS STRANGE, 

Appellant. 

No. 45607 -9 -II

UNPUBLISHED OPINION

JOHANSON, C. J. — George T. Strange appeals his jury trial convictions for one count of

second degree child molestation and one count of voyeurism. He argues that ( 1) his right to a fair

trial by an impartial jury was violated, (2) his trial counsel was ineffective because counsel failed

to object to the admission of irrelevant and improper opinion testimony, and ( 3) his right to a

unanimous jury verdict on the second degree molestation charge was violated because the trial

court did not give a Petrichl instruction. We hold that Strange received a fair trial because his jury

was impartial, Strange' s trial counsel' s decision to not object to a video of Strange' s police

interview was a legitimate trial tactic, and Strange was not entitled to a Petrich instruction because

the State relied on only one act of molestation. Accordingly, we affirm the convictions. 

1 State v. Petrich, 101 Wn.2d 566, 683 P.2d 173 ( 1984). 
No. 45607 -9 -II

FACTS

From 2011 to 2013, Strange lived with his wife and his wife' s children. J.M. was 12 years

old when, one night, Strange came into her bedroom to tuck her in as he usually did. However, 

according to J.M., Strange " asked to give [ her] a -- a breast exam." 1B Report of Proceedings

RP) at 224. Strange told J.M. that he was trying to help her learn how to detect cancer. Strange

and J. M. had not discussed breast cancer or breast exams before. But Strange lifted J.M.' s shirt

and spent three to five minutes touching both of her breasts. When Strange thought that J.M.' s

mother had returned home, he stopped and told J.M. not to tell her mother what had happened. 

One morning after this event, J.M. woke up to find Strange looking down and into her

shorts. At some point while J.M. was sleeping, Strange had come into her bedroom and used his

hands to lift her shorts and underwear so that he could look into her shorts and at her genitals. J.M. 

pretended to be asleep, rolled over in bed, and Strange left the room. 

In October 2013, the State charged Strange with one count of second degree child

molestation and one count of voyeurism.

3

During voir dire, the court and counsel asked the

prospective jurors, among other things, about their personal experiences with child molestation. 

Although most of the jurors had no personal experience with child molestation, almost one -third

ofthe jurors knew someone who was either a victim or had been charged with child molestation. 

In response to the court' s questioning, juror no. 54 stated, 

JUROR: Um -- what I said before, like, I know people that I know. Like

it' s not an easy accusation to make. Like, it is hard for people (inaudible). It' s like

if accusations were made there' s something behind that. 

2 RCW 9A.44.086. 

3 RCW 9A.44. 115( 2)( a). 

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JUDGE]: Okay. So, let me ask you this, ... I mentioned this earlier that

we talked about the presumption of innocence. That a person that' s charged with

a crime is -- is presumed innocent and that presumption continues throughout the

entire trial. Is that something that you think you could use and implement that -- 

that presumption of innocence throughout the entire trial starting now going

forward? 

JUROR: I don' t -- like, I don' t have a ton of experience but it has just been

my experience people don' t make that accusation, you know, for no reason. Like, 

I feel like if an accusation was made there had to be something that had happened. 

1 A RP at 72. Juror no. 54 was excused for unrelated hardship reasons. 

J.M. testified at trial about Strange' s actions consistently with the above narrative. In

addition, she testified that when Strange would give her massages, he occasionally "touch[ed] [ her] 

butt." 1B RP at 241. 

J.M. worked at the restaurant that her mother owned. J.M.' s mother, her brother, and

Johnathan Layman, who also worked at J.M.' s mother' s restaurant, testified about Strange' s

behavior around J.M. J.M.' s mother testified that Strange spent more time with J.M. and that he

was often aggressive, pulling J.M. into his lap and holding onto her and hugging her. J. M.' s

brother stated that Strange wanted to buy J.M. thong underwear and that he often spent at least 15

to 30 minutes in J.M.' s bedroom at night tucking her in. Layman testified that Strange would

occasionally visit J.M. at work. He explained some of Strange' s behavior, including his

expectation that J.M. would kiss him on the lips when he came in and hugging J.M. from behind

so that he could place his hands under her breasts. 

Detective Todd McDaniel also testified and the State played a video of Detective

McDaniel' s interview with Strange prior to his arrest. Strange did not object to playing the video

or admitting it into evidence. In the interview, Detective McDaniel confronted Strange about

J.M.' s accusations of "inappropriate touching of [her] breasts" and " looking like down her pants

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No. 45607 -9 -II

one time while she was sleeping." 1C RP at 362. Strange admitted that he performed the breast

exam on J.M., but insisted that she had asked him to do it. He also denied ever looking down

J. M.' s pants at her genitals. Strange said that because he had gone to nursing school, he

approach[ ed] things in a very medical manner" and his intentions with the breast exam were not

sexual. 1C RP at 364. Detective McDaniel also asked Strange if, when he tucked J.M. in at night, 

he would ever touch her buttocks and " she would roll over," presumably so he would leave. 1C

RP at 371. Strange insisted that this did not happen. 

In trying to get Strange to open up about his relationship with J.M., Detective McDaniel

was at times aggressive in his questioning. After Detective McDaniel asked Strange if he thought

that his " behavior was appropriate," Strange told him that he thought helping his daughter to learn

how to perform a breast exam was "what any father would do." 1C RP at 397. Detective McDaniel

disagreed and responded, saying that "we know better than that and you're -- you' re trying to feed

me a line ... of baloney." 1C RP at 398 -99. Strange conceded that maybe "[ 1] ooking at it back, 

hindsight, yeah, maybe I shouldn' t have done it." 1C RP at 399. Detective McDaniel agreed and

said, "[ S] o I think you' re giving out certain details just to make your story better" and that "usually

the truth]' s a little somewhere in the middle." 1C RP at 399. 

Finally, Karen Joiner, who is Strange' s former nursing school instructor as well as the Dean

of Instruction and Director ofNursing at Lower Columbia College, also testified. Joiner testified

that in the one semester that Strange was in nursing school, he would never have learned how to

do a breast exam and that breast exams are, traditionally, not necessary for children. 

Strange did not call any witnesses nor did he testify. The jurors were instructed that they

are the sole judges of the credibility of each witness. [ They] are also the sole judges ofthe value

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No. 45607 -9 -II

or weight to be given to the testimony of each witness." Clerk' s Papers at 20. Neither party

requested a Petrich instruction and the court did not give one. The jury convicted Strange on both

counts. Strange appeals his convictions. 

ANALYSIS

I. JURORS' COMMENTS DID NOT TAINT THE JURY VENIRE

Strange argues that his right to a fair trial by an impartial jury was violated because of

prospective jurors' statements concerning their own prior experiences with child molestation, 

either in their families or among friends or acquaintances, which tainted the entire jury venire. 

Strange' s sole argument is that this case is factually similar to Mach v. Stewart, 137 F.3d 630 ( 9th

Cir. 1997). We disagree. 

The Washington Constitution guarantees a criminal defendant the right to a fair trial by

unbiased jurors." WASH. CONST., art. I, § 22; State v. Momah, 167 Wn.2d 140, 152, 217 P. 3d

321 ( 2009). The Sixth Amendment to the United States Constitution also guarantees the right to

a fair trial by impartial jurors. Irvin v. Dowd, 366 U.S. 717, 722, 81 S. Ct. 1639, 6 L. Ed. 2d 751

1961). We review constitutional questions de novo. State v. Siers, 174 Wn.2d 269, 273 -74, 274

P.3d 358 ( 2012). 

In Mach, the Ninth Circuit held that a prospective juror who was a social worker had tainted

the entire jury venire with her responses to questions from counsel and the court.4 137 F.3d at

631 -33. The defendant was charged with sexual misconduct with a minor and, in response to

4 Mach' s conviction was of an Arizona offense in Arizona state courts. The Ninth Circuit' s review

was of the district court' s denial of a habeas corpus petition and its decision was based on federal

Sixth Amendment law. 
No. 45607 -9 -II

questions, the prospective juror stated that she " would have a difficult time being impartial given

her line of work, and that sexual assault had been confirmed in every case in which one of her

clients reported such an assault." Mach, 137 F. 3d at 632. Addressing further questions from the

court, the prospective juror confirmed this opinion three additional times and also stated that she

had taken courses in psychology and had worked " extensively" with psychologists and

psychiatrists on these issues. Mach, 137 F.3d at 632. 

The Ninth Circuit relied in particular on the fact that the prospective juror

a) . . . had a certain amount of expertise in this area ( she had taken child

psychology courses and worked with psychologists and psychiatrists; she worked

with children as a social worker for the state for at least three years); and (b) [ made] 

four separate statements that she had never been involved in a case in which a child

accused an adult of sexual abuse where that child' s statements had not been borne

out. 

Mach, 137 F.3d at 632 -33. Relying on these considerations, the Ninth Circuit concluded that "[ a]t

a minimum," when the defendant moved twice for a mistrial, the trial court should have at least

conducted further voir dire and because the court did not conduct further voir dire, the court

presumed that " at least one juror was tainted" by the prospective juror' s statements. Mach, 137

F.3d at 633. 

Here, the facts are distinguishable from Mach for at least two reasons because ( 1) no

prospective juror professed any expertise about these cases, and (2) none ofthe prospective jurors

in this case stated multiple times that, in their experience, children who are sexually abused never

lie about their abuse. 5

5 Another significant difference between Mach and this case is that in Mach the defendant moved

for a mistrial twice explaining its concerns about " the effect [the social worker' s] statements had

on the other panel members" to the court. 137 F.3d at 632. Here, because there was no objection, 

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No. 45607 -9 -II

First, unlike the social worker in Mach, here there were no jurors claiming expertise. 

Although at least two of the prospective jurors were teachers and one was an elementary school

principal, and each ofthese prospective jurors admitted that they feel more instinctively protective

of children, none of them claimed to speak authoritatively about whether a child is being truthful

when she alleges that she is a victim of molestation. Therefore, the Ninth Circuit' s concern about

a prospective juror with more credible, authoritative knowledge tainting the rest of the venire is

not present here. 

Secondly, none of the prospective jurors stated multiple times that, in their experience, 

child molestation victims never lie about being molested. Most jurors were merely questioned

about their experiences with child molestation and asked if they could remain impartial. Some

jurors admitted to a potential bias, most said that they thought that they could apply the court' s

instructions impartially, and two prospective jurors asked for individual voir dire, preferring not

to talk about their experiences in front ofthe rest ofthe venire. Evenjuror no. 54the prospective

juror whose statements Strange identifies particularly —said only that he thinks child molestation

is " not an easy accusation to make" and that, in his limited experience, people do not make

accusations ofmolestation "for no reason." 1A RP at 72. But juror no. 54' s statement is different

from the social worker' s in Mach because he qualified his statement, prefacing it by saying, " I

don' t have a ton ofexperience." 1A RP at 72. In contrast, the social worker in Mach relied on her

experience and her credentials to add weight to her much more unequivocal claim that victims of

the trial court had no opportunity to consider whether any of the prospective jurors' statements

might have compromised the jury' s ability to be impartial. 

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No. 45607 -9 -II

child molestation never lie. 137 F. 3d at 632- 33. Because Mach is factually distinguishable, we

conclude that Mach does not control the outcome here. 

We agree with the State and hold that Strange received a fair trial by an impartial jury. 

II. INEFFECTIVE ASSISTANCE OF COUNSEL

Strange argues that his trial counsel was ineffective because he failed to object to the

admission of a video recording of Detective McDaniel' s interview of Strange. Because trial

counsel' s failure to object was a legitimate trial tactic, it cannot be said that Strange' s trial

counsel' s performance was deficient. Therefore, his claim for ineffective assistance of counsel

fails. 

A. STANDARD OF REVIEW

In order to prove ineffective assistance of counsel, Strange bears the burden to prove that

1) defense counsel' s representation was deficient, i.e., it fell below an objective

standard ofreasonableness based on consideration of all the circumstances; and (2) 

defense counsel' s deficient representation prejudiced the defendant, i.e., there is a

reasonable probability that, except for counsel' s unprofessional errors, the result of

the proceeding would have been different. 

State v. McFarland, 127 Wn.2d 322, 334 -35, 899 P.2d 1251 ( 1995). We need not consider both

prongs of this test if the defendant fails to prove either one. Strickland v. Washington, 466 U.S. 

668, 697, 104 S. Ct. 2052, 80 L. Ed. 2d 674 ( 1984). We apply a strong presumption that trial

counsel was not deficient and we do not consider matters outside the record. McFarland, 127

Wn.2d at 335. 

Where a defendant claims ineffective assistance of counsel for his trial counsel' s failure to

object, he must also prove that the decision not to object was not a legitimate trial tactic. State v. 

Hendrickson, 129 Wn.2d 61, 79 -80, 917 P.2d 563 ( 1996). " If defense counsel' s trial conduct can

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No. 45607 -9 -II

be characterized as legitimate trial strategy or tactics, then it cannot serve as a basis for a claim

that the defendant did not receive effective assistance of counsel." State v. Lord, 117 Wn.2d 829, 

883, 822 P. 2d 177 ( 1991). We apply a strong presumption that trial counsel rendered adequate

assistance and " made all significant decisions in the exercise ofreasonably professional judgment" 

and the reasonableness of counsel' s performance must be performed in view of all ofthe facts and

circumstances ofthe case. Lord, 117 Wn.2d at 883. In particular, "[t]he decision whether to object

is a classic example of trial tactics, and only in egregious circumstances will the failure to object

constitute ineffective assistance of counsel." State v. Kolesnik, 146 Wn. App. 790, 801, 192 P. 3d

937 (2008). 

B. NOT OBJECTING TO THE VIDEO WAS A TRIAL TACTIC, NOT DEFICIENT REPRESENTATION

Strange argues that Detective McDaniel' s statements were improper opinion testimony

because they were offered to encourage the jury to rely on the detective' s opinion that Strange was

lying. Even assuming that Detective McDaniel' s statements were improper opinion testimony, 

Strange must prove that his trial counsel' s failure to object was not a legitimate trial strategy. The

State argues that trial counsel' s failure to object was a legitimate trial tactic because it permitted

Strange to put on his defense without having to testify at trial. Specifically, the State argues that

Detective McDaniel asked Strange " every reasonable question," that Strange defended himself and

maintained his innocence despite Detective McDaniel' s " disbelief," and that the jury saw how

Strange reacted to tough questions. Br. of Resp' t at 25. We agree with the State and hold that, 

even assuming that Detective McDaniel' s statements were irrelevant or improper opinion

testimony, Strange' s trial counsel' s decision not to object was a legitimate trial tactic. 
No. 45607 -9 -II

In Kolesnik, the defendant was charged with first degree assault, and we held that trial

counsel' s failure to object to an expert witness' s testimony that the defendant had anti- social

personality disorder and feels no remorse for his actions was not ineffective assistance of counsel. 

146 Wn. App. at 796 -97, 801 -02. We held that the failure to object was not deficient representation

because trial counsel relied on the expert' s testimony to explain the defendant' s mental health and

the defendant explicitly told the court he agreed to the expert' s proposed testimony. Kolesnik, 146

Wn. App. at 801 -02. 

Here, Strange argues that his trial counsel was ineffective because he failed to object to

Detective McDaniel' s statements during his interview with Strange. But playing the entire video

at trial had legitimate, strategic purposes: Strange presented his defense without having to testify

at trial, without,being subjected to cross - examination by the prosecution, and the jurors saw how

he reacted to tough questioning. Like in Kolesnik, Strange' s trial counsel here relied on the defense

that Strange put forth in his interview with Detective McDaniel, arguing that the sexual contact

element was not met because J.M. asked Strange to show her how to do a breast exam. Not

objecting to the additional, more aggressive questioning during his interview with McDaniel

permits the jury to see how Strange responded to tough questions about his behavior. Instead of

calling Strange to testify at trial, his trial counsel, presented with a tape of the interview, could

have reasonably decided to allow the jury to see Detective McDaniel testing Strange' s story and

his credibility. Strange' s trial counsel may have determined that the version of Strange' s defense

from the interview was sufficiently convincing and, thus, preferred the interview to the

unpredictable results of questioning from the prosecutor at trial. 

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No. 45607 -9 -II

Although Strange never suggests redacting the video, the State is also correct that, even if

Strange' s trial counsel had objected and requested that the video be redacted, some of the context

of Strange' s responses would be lost. There is also a risk that significant redactions might force

the State to forego the video completely, requiring Strange to testify in order to present his defense

at trial. It is Strange' s burden to demonstrate that his trial counsel' s failure to object to the

admission of Detective McDaniel' s statements " fell below an objective standard ofreasonableness

based on consideration ofall the circumstances." McFarland, 127 Wn.2d at 334 -35. His argument

that " there was no possible tactical reason for the defense attorney to sit mute and fail to object" 

is insufficient to meet that burden in light of the State' s arguments that playing the video, 

unredacted, allows the jury to see and to weigh Strange' s defense, in context, without requiring

him to testify in court. Br. ofAppellant at 24. 

Because allowing the admission of the video interview was a legitimate trial tactic, trial

counsel' s performance was not deficient. Because failure to prove either prong defeats an

ineffective assistance of counsel claim, we hold that Strange' s claim for ineffective assistance of

counsel fails. 

III. No PETRICH INSTRUCTION REQUIRED

Strange argues that the trial court violated his right to a unanimous jury verdict on the

second degree child molestation charge. He asserts that the court erred when it failed to give a

Petrich instruction after the State argued that he molested J.M. both when he " showed her how to

perform a breast exam" and when he touched her buttocks. Br. ofAppellant at 27. We disagree. 

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No. 45607 -9 -II

A. STANDARD OF REVIEW AND RULES OF LAW

We review the adequacy ofjury instructions de novo. State v. Pirtle, 127 Wn.2d 628, 656, 

904 P. 2d 245 ( 1995). Under the Washington and United States Constitutions, a criminal defendant

is entitled to a unanimous jury verdict rendered by an impartial jury. WASH. CONST. art. I, § 21; 

U.S. CONST. amend. VI; State v. Beasley, 126 Wn. App. 670, 682, 109 P. 3d 849 ( 2005). Where

the State offers evidence of multiple acts that could each form the basis for one charged crime, 

either ( 1) the State must choose which of the acts it relied on or (2) the court must give a Petrich

instruction to the jury requiring them to agree on a specific criminal act. State v. Bobenhouse, 166

Wn.2d 881, 893, 214 P. 3d 907 (2009). 

A violation of a defendant' s right to a unanimous verdict is constitutional error. 

Bobenhouse, 166 Wn.2d at 893. Where the error is constitutional, the State bears the burden to

prove the error was harmless beyond a reasonable doubt. State v. Vander Houwen, 163 Wn.2d 25, 

39, 177 P. 3d 93 ( 2008). 

A defendant commits second degree child molestation when he " has, or knowingly causes

another person under the age of eighteen to have, sexual contact with another who is at least twelve

years old but less than fourteen years old and not married to the perpetrator and the perpetrator is

at least thirty -six months older than the victim." RCW 9A.44.086( 1). " Sexual contact" is defined

as " any touching ofthe sexual or other intimate parts of a person done for the purpose of gratifying

sexual desire of either party or a third party." RCW 9A.44.010(2). 

B. THE STATE CHOSE To RELY ON ONE ACT OF MOLESTATION

Here, the State solely argued that touching J.M.' s breasts amounted to an act of child

molestation. In its opening statement, the State claimed that Strange " is charged with child

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No. 45607 -9 -II

molestation in the second degree for touching [ J.M]' s breasts when she was twelve years old." 1B

RP at 202. J.M.' s testimony was also focused on Strange' s offer to perform a breast exam. She

testified that he offered to give her a breast exam and that he touched both of her breasts with his

hands for three to five minutes after pulling up her shirt. J.M. testified that it did not hurt but that

it felt "[n]ot right" and that Strange stopped touching her breasts when she told him that she thought

her mother was home. 1B RP 228. J.M. also confirmed that she and Strange had not discussed

cancer prior to his offer to do an exam and that Strange' s concern about breast cancer and, thus, 

the need to do an exam was unexpected. 

The State also argued in its closing that the breast touching was the act of sexual

molestation. It began its closing argument by summarizing the case: 

I started yesterday by telling you this was a simple and straightforward case. And, 

it has been. All you need in this case is your common sense. The State presented

evidence that the Defendant touched [ J.M.]' s breasts .... The only question you

have before you is, was this done for the purposes of sexual gratification? 

1C RP at 448. The State continued to explain the elements of each charge and concentrated heavily

on the definition of "gratifying sexual desire." 1C RP at 450; RCW 9A.44.086( 1), . 010(2). The

State emphasized seven examples of Strange' s behavior to support the conclusion that the ultimate

act ofchild molestation— touching J.M.' s breasts —was for the purpose of gratifying sexual desire: 

l]ook at everything together with that idea and with all those seven things in mind and go to the

night that she was talking about the breast exam." 1C RP at 453. The State did not suggest that

any contact, other than the breast touching, was the basis for the sexual contact element of the

molestation charge. 

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No. 45607 -9 -II

In its rebuttal, the State again referred to the seven other instances ofinappropriate behavior

with J.M. as "[ g] rooming" in preparation for the night when Strange offered to give her a breast

exam. 1C RP at 476. The State did not mention Strange touching J. M.' s buttocks. 

The State mentioned Strange touching J.M.' s buttocks only a couple of times. It elicited

testimony from J.M. directly only once in reference to the fact that Strange " touch[ ed] [ her] butt

when he massaged" her. 1B RP at 241. In the recording of his interview with Strange, Detective

McDaniel asked whether, when Strange tucked J.M. into bed at night, he would " touch her rear

end and she would roll over." 1C RP at 371. Strange points to these two comments alone to

support his argument that " it was well within the province of some of the jury members" to

conclude that either the breast touching or the buttocks touching could establish the child

molestation that the State alleges. Br. of Appellant at 28. But these stray comments were offered

as evidence that Strange touched J.M.' s breasts for the purpose of sexual gratification and not as

evidence of the sexual contact. Finally, the State also mentioned J. M.' s buttocks during its

explanation ofthe " sexual contact" element of child molestation when it offered a list of "intimate

parts" that included "[ b] utt, lower torso, upper chest, places that swimsuits would cover." 1C RP

at 450. This, likewise, does not overcome the fact that the only " intimate part" the State argued

that Strange touched was her breasts. 

In the context of the State' s opening statement, the testimony it elicited at trial, and its

closing and rebuttal, it is clear the State chose to rely on the touching of the breasts to support the

sexual contact element of the child molestation charge. Thus, no Petrich instruction was

necessary. 

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No. 45607 -9 -II

Affirm. 

A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040, 

it is so ordered. 

We concur: 

B7

7

SUTTON, J. 

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