# COU[;tOFAPPEALS Df ! VIJM It 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UNPUBLISHED OPINION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 hisjury trial convictions for one count of second degree child molestation and one count ofvoyeurism. 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 

## courtdid notgive aPetrichl instruction. We holdthat Strange received afairtrial because hisjury was impartial, Strange' s trial counsel' s decision to not object to a video of Strange' s police interviewwas a legitimate trial tactic, and Strange was not entitled to a Petrich instruction because 

### the State relied on only one act ofmolestation. 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 howto 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. 

### pretendedto be asleep, rolled over in bed, and Strange leftthe 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 ofthe 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 

### ifaccusations were made there' s something behind that. 2 RCW 9A.44.086. 3 RCW 9A.44.115(2)( a). 2No. 45607 - 9 -II JUDGE]: 

### Okay. So, let me ask you this, ... I mentioned this earlier that we talked about the presumption ofinnocence. 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 hasjust been 

### my experience people don't make that accusation, you know,for no reason. Like, I feel like ifan accusation was madethere had to be somethingthat had happened. 

### 1A 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 statedthat Strange wantedto buy J.M.thong underwearand thathe 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 priorto 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 3No. 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 avery 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 attimes aggressive in his questioning. After Detective McDaniel asked Strange ifhethought that his " behavior was appropriate," 

### Strange told him that he thought helping his daughterto learn howto 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 thinkyou' re giving outcertain detailsjustto makeyourstory better" andthat "usually the truth]' s a little somewhere in the middle." 1C RP at 399. 

### Finally,Karen Joiner,who is Strange' sformernursing school instructor aswell asthe Dean ofInstruction and Director ofNursing at Lower Columbia College, also testified. Joinertestified 

### that in the one semesterthat Strange was in nursing school, he would never have learned howto do a breast exam and that breast exams are, traditionally, not necessary for children. 

### Strange did not call any witnesses nor did he testify. Thejurors were instructed thatthey

are the sole judges of the credibility of each witness. [ 

### They] are also the solejudges ofthe value 4No. 45607 - 9 -II

or weight to be given to the 

### testimony of each witness." Clerk' s Papers at 20. 

### Neither party 

### requested aPetrich instruction andthe courtdid notgive one. Thejury convicted Strange on both
counts. Strange appeals his convictions. ANALYSIS 

### I. JURORS' COMMENTS DID NOTTAINTTHE JURYVENIRE 

### 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 thatthis case is factually similarto 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 fairtrial by impartialjurors. 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 aprospectivejurorwho was a social workerhad tainted 

## the entirejury 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 ofan Arizona offense in Arizona state courts. The Ninth Circuit' s review was ofthe 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 prospectivejuror statedthat she " would have a difficulttime 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 prospectivejuror 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 onejurorwas tainted" by the prospectivejuror's statements. Mach, 137 F.3d at 633.

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

### prospectivejurorprofessed any expertise aboutthese cases, and (2) none ofthe prospectivejurors 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, 6No. 45607 - 9 -II 

### First, unlike the social worker in Mach, here there were no jurors claiming expertise. Although at least two ofthe prospective jurors were teachers and one was an elementary school 

### principal, and each ofthese prospectivejurors admitted thattheyfeel more instinctivelyprotective 

### ofchildren, none ofthem claimed to speak authoritatively about whether a child is being truthful when she alleges that she is a victim ofmolestation. Therefore, the Ninth Circuit' s concern about 

### a prospectivejuror with more credible, authoritative knowledge tainting the rest ofthe venire is not present here. 

## Secondly, none ofthe prospective jurors stated multiple times that, in their experience, child molestation victims never lie about 

### being molested. 

### Mostjurors 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 abouttheir 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 of molestation "for no reason." 1A RP at 72. Butjuror 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 of experience." 

### 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 ofthe prospective jurors' statements might have compromised thejury's abilityto be impartial. 7No. 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 fairtrial by an impartialjury. 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 ofcounsel, 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 probabilitythat, except forcounsel' 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). " Ifdefense counsel' s trial conduct can 8No. 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 significantdecisions in the exercise ofreasonablyprofessionaljudgment" 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 whetherto object 

### is a classic example oftrial 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 theywere offered to encouragethejuryto relyon the detective' s opinion that Strange was 

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

### Strange mustprove that his trial counsel' s failureto objectwas nota 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 himselfand 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 ofcounsel. 146 Wn.App. at 796 -

97, 801 -02. We heldthatthefailureto objectwas not deficientrepresentation because trial counsel relied on the expert's testimonyto explainthe defendant's mental health and the defendant explicitlytoldthe court he agreedto 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 withouthaving to testify 

### at trial,without,being subjected to cross - examination bythe prosecution, and thejurors saw how he reactedtotough questioning. Like in Kolesnik,Strange' strial counsel here relied onthe 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 thejury 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 ofthe interview, could 

### have reasonably decided to allow thejury to see Detective McDaniel testing Strange' s story and 

### his credibility. Strange' s trial counsel may have determined thatthe version ofStrange's defense from the interview was sufficiently convincing and, thus, preferred the interview to the 

### unpredictable results ofquestioning fromthe prosecutor attrial.

10No. 45607 - 9 -II 

### Although Strange never suggests redacting the video, the State is also correctthat, even if Strange' s trial counsel had objected and requested that the video be redacted, some ofthe context of Strange' s responses would be lost. There is also a risk that significant redactions might force 

### the Stateto forego thevideo completely, requiring Strangetotestify in orderto presenthis defense
at trial. 

### It is Strange' s burden to demonstrate that his trial counsel' s failure to object to the admission ofDetective McDaniel' s statements " fell below an objective standard ofreasonableness based on consideration of all 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 ofthe 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.

11No. 45607 - 9 -II A. STANDARD OF REVIEW AND RULES OF LAW 

## We reviewthe adequacy ofjury instructions de novo. State v. Pirtle, 127 Wn.2d 628, 656, 904 P.2d 245 ( 1995). Underthe 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 ofthe acts it relied on or (2) the court must give a Petrich 

### instruction to thejury 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 underthe age ofeighteen to have, sexual contact with another who is at leasttwelve 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 " anytouching ofthe sexual orother intimate parts ofaperson done forthe purpose ofgratifying 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 12No. 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 ofher breasts with his 

### hands forthreeto five minutes after pulling up her shirt. J.M.testified that it did not hurt butthat it felt "[

### n]ot right" andthat Strange stoppedtouching herbreastswhen shetold himthatshethought 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 bytelling 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 forthe purposes ofsexual gratification? 

### 1C RP at448. The State continuedto explainthe elements ofeach 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 behaviorto support the conclusion that the ultimate act of child molestation—

### touching J. M.' s breasts —

### wasforthe purpose ofgratifying sexual desire: l]ook at everything together with that idea and with all those seven things in mind and goto 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 ofthe molestation charge.

13No. 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 forthe nightwhen Strange offered to give her a breast

exam. 

### 1C RP at476. 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 ofhis interviewwith 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 thatthe State alleges. Br. ofAppellant at 28. Butthese 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 ofthe 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 ofthe breasts to supportthe sexual contact element of the child molestation charge. Thus, no Petrich instruction was necessary.

14No. 45607 - 9 -II Affirm. 

## A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, butwill be filed forpublic record in accordance with RCW 2.06.040, it is so ordered.

We concur:
B7 

# 7 SUTTON, J.

15