IN THE COURT OFAPPEALS FORTHE STATE OF WASHINGTON

In the Matterofthe Personal 

### ) No. 77416-6-I Restraint of 

### ) ) DIVISION ONE CARRI DARLENE WILLIAMS, 

### ) ) UNPUBLISHED OPINION Petitioner. 

### )

) FILED: September 16, 2019 ANDRUS, J.

— Hana Williams, a teenage girl from Ethiopia, died in her adoptive family’s backyard, the victim of physical abuse, inflicted starvation, and hypothermia. A jury convicted Hana’s mother, Carri Williams,1 of homicide by abuse in connection with herdeath and with assault ofa child in thefirst degree in connection with Carri’s abuse of her adopted Ethiopian son, I.W.2 We affirmed Carri’s convictions and sentence in State v. Carri DarleneWilliams, No. 71193-8-I (Wash. Ct. App. Dec. 21, 2015) (unpublished), review denied, 185 Wn.2d 1036 (2016)~ (hereinafterC. Williams). In this personal restraint petition, Carri challenges both the legal and evidentiary basis for her convictions as well as the adequacy of her trial and appellate counsel’s representation. After a thorough consideration of the trial

1 Carri and her husband, Larry, were both charged and were tried together. We referto them bytheirfirst namesforconvenience. We mean no disrespect.

2 We refer to Hana by her given name but refer to the adopted son by the initials lW. because hewas a minoratthetime oftrial.

~ http://www.courts.wa.gov/opinions/pdf/71 1938.pdf.No. 77416-6-1/2

record, the parties’ briefing, and oral argument, we deny her personal restraint petition. FACTS In the early hours of May 12, 2011, Carri telephoned herhusband, Larry, as he drove home from his job at Boeing. Carri told him that she had found their teenage daughter, Hana, lying face down inthe backyard, naked and unconscious. Afterinstructing Carrito call 9-1-1, Larry raced home and helped perform CPR until the medics arrived and transported Hana to Skagit Valley Hospital. Hana was pronounced dead at 1:30 a.m. on May 12, 2011. A subsequent investigation revealed that Carri and Larry routinely physically and psychologically punished Hana, then a young teen, and l.W., a 9-year-old hearing-impaired boy, both ofwhom they had adopted from Ethiopia in 2008. Dr. Daniel Selove, the forensic pathologistwho performed Hana’s autopsy, noticed that Hana had visible injuries on her pelvis, elbows, knees, and calves; bruises on herknees, eyebrowand upperpelvis; and multiple impact marks on her thighs and calves. He determined thatwhen she died, Hana suffered from severe malnutrition, with an abnormallythin bodyand protruding ribs and shoulderblades. Dr. Selove identified Hana’s cause ofdeath as hypothermia, with malnutrition and
a bacterial infection in herstomach, h. pyIor~4as contributingfactors. Dr. Rebecca Wiester, a Board-certified physician in child abuse pediatrics with malnutrition and

~ Helicobacterpylori (commonly known as h. pylon), is a bacterial infection ofthe stomach. https://www.mayoclinic.org/diseases-conditions/h-pylori/symptoms-causeslsyc 20356171. Dr. Selove indicated the bacteriawas presentwhen Hana died butcould notconfirm whether Hanawas activelyexperiencing symptoms atthe time ofherdeath. -2-No. 77416-6-1/3

hypothermia expertise, confirmed that Hana died from hypothermia brought on by inflicted starvation. When Child Protective Services (CPS) interviewed LW. and theWilliamses’
seven biological children on May 24, 2011, the children revealed that Carri and Larry had regularly beaten I.W. and Hana, causing scars, had denied them food, had forced them to eat sandwiches soaked in water or eat frozen, uncooked vegetables while sitting outside on the back porch awayfrom the family, and had forced Hana and I.W. to sleep in a locked closet or shower room. CPS removed all ofthe children from the home in July2011. On September9, 2011, the State charged Carri and Larrywith homicide by abuse under RCW 9A.32.055 and the alternative crime of first degree manslaughter under RCW 9A.32.060 forthe death of Hana, and assault ofa child in the first degree under RCW 9A.36.120 for their mistreatment of I.W. On September9, 2013, following a seven week

### jurytrial, the

### juryfound Carri guilty of all three charges.5 On October29, 2011, thetrial courtvacated Carri’s manslaughterconviction
on double jeopardy grounds, and it sentenced Carri to consecutive sentences of 320 monthsforthe homicide by abuse and 123 months forthe assault of l.W. We affirmed Carri’s convictionsand sentenceon directappeal. C. Williams, No. 71193- 8-I, slip op. at2.6

~ The same jury found Larry guilty offirst degree manslaughter and assault of a child. It could not reach a verdict on Larry’s homicide by abuse charge.

6 This court also affirmed Larry’s convictions and sentence. ~ State v. Larry Paul Williams, No. 71112-1-I (Wash. Ct. App. Dec. 21, 2015) (unpublished), review denied, 185 Wn.2d 1034, 377 P.3d 741 (2016), http://www.courts.wa.gov/opinions/pdf/711121.pdf (hereinafter L Williams). -3-No. 77416-6-1/4 In this personal restraint petition, Carri challenges (1)the sufficiency ofthe evidence to prove either homicide by abuse or manslaughter in the first degree; (2) the constitutionality of the homicide by abuse statute; (3) the prosecutor’s statements during opening and closing argument; and the assistance of counsel she received (4) attrial and (5) on direct appeal.7 ANALYSIS An appellate court maygrant reliefto a petitionerwho is under restraintand who can demonstrate his restraint is unlawful. RAP 16.4; In re Pers. Restraint of Cook, 114 Wn.2d 802, 805, 792 P.2d 506 (1990). Restraint is unlawful when a conviction is obtained in violation ofthe United States Constitution orthe laws of the state ofWashington. RAP 16.4(c)(2). Relief byway of a collateral challenge to a conviction is extraordinary and
a petitioner must meet a high standard before this court will disturb an otherwise settled judgment. In re Pers. Restraint of Coats, 173 Wn.2d 123, 132, 267 P.3d 324 (2011). A petitioner has the burden ofdemonstrating errorand, ifthe error is constitutional, actual and substantial prejudice. In re Pers. Restraint ofSandoval, 189 Wn.2d 811, 821, 408 P.3d 675 (2018). If the error is not constitutional, the petitioner must show that the error represents a ‘fundamental defect

. . . that inherently resulted in a complete miscarriage ofjustice.” kf. (quoting In re Pers. Restraint of Finstad, 177 Wn.2d 501, 506, 301 P.3d 450 (2013)). Furthermore, a petitioner may not renew an issue that was raised and rejected on direct appeal

~‘ Carri also attempts to “join[] in the claims presented by Larry Williams in his parallel [petition].” We decline to address Larry’s claims here. Carri’s petition fails to comply with RAP 16.7(b) to assertclaims alleged by Larry in his personal restraint petition. -4-No. 77416-6-1/5

unless the interests ofjustice require the issue to be reexamined. In re Pers. Restraint of Pirtle, 136 Wn.2d 467, 473, 965 P.2d 593 (1998).

Claim 1: Conviction for Homicide byAbuse Carri raises two challenges to her conviction for homicide by abuse. First, she argues that the State presented insufficient evidence to prove she was extremely indifferentto whether Hana lived ordied orthat she actually knewthere
was a substantial risk Hana could die from hypothermia. Second, she contends thatthe trial court erred in failing to define “extreme indifference to human life” for the

### jury in violation ofarticle IV, section 16 oftheWashington state constitution. (a) Sufficiency ofthe Evidence The due process clauses of both the state and federal constitutions require the Stateto prove each element ofthe crime charged beyond a reasonable doubt. Statev. Mau, 178Wn.2d 308, 312, 308 P.3d 629 (2013). When a partychallenges the sufficiency of the evidence, this court reviews the evidence in the light most favorable to the prosecution. j.~ The evidence is sufficientwhen any rational trier offact could havefound the essential elements beyond a reasonable doubt. State
v. Baeza, 100 Wn.2d 487, 490, 670 P.2d 646 (1983). Under RCW 9A.32.055: A person is guilty of homicide by abuse if, under circumstances manifesting an extreme indifferenceto human life, the person causes the death ofa child orperson undersixteen years ofage.

. . and the person has previously engaged in a pattern or practice of assault or torture ofsaid child [or] person undersixteen years ofage. Thejurywas instructed that in orderto convict Carri of homicide by abuse, it had to find beyond a reasonable doubtthat: (1) on orabout May 12, 2011, Carri

-5-No. 77416-6-116

or heraccomplice acted undercircumstances manifesting an extreme indifference to human life; (2) that Hanadied asa resultofheracts orthe actsofan accomplice; (3) that Hanawas under 16years ofage; (4) thatCarri orheraccomplice previously engaged in a pattern or practice of assault ortorture of Hana; and (5) any ofthe acts occurred in Washington. 1. Circumstances Manifesting an Extreme Indifference to Human Life Extreme indifference to human life may be proved by evidence of “an aggravated form of recklessness” falling below a specific intent to kill. State v. Adams, 138 Wn. App. 36, 50, 155 P.3d 989 (2007) (quoting State v. Dunbar, 117 Wn.2d 587, 593, 817 P.2d 1360 (1991)). The State may prove this element by demonstrating that a defendant has engaged “in extremely reckless conduct that creates a grave risk of death.” jç~, at 50. The 

### mens rea of homicide by abuse requires evidencethatthedefendantdemonstrated indifferencetoward a particular victim, ratherthan to human life in general. State v. Edwards, 92 Wn. App. 156, 163, 961 P.2d 969 (1998). Evidence that a defendant engaged in a pattern or practice of assaulting a child is sufficient to demonstrate an extreme indifference to that child’s life. ki. at 165. We conclude that the State established that Carri acted under circumstances manifesting an extreme indifferencetowhether Hana lived ordied, both in the months leading up to, and on the day of her death. At trial, l.W., who
was 12 atthe time oftrial, and six ofthe Williamses’ biological children, spanning in ages from 13 to over 18, described the circumstances underwhich Carri acted toward Hana preceding her death, from which a reasonable jury could conclude

-6-No. 77416-6-1/7

Carri placed Hana at risk of death and simply did not care whether she lived or died.8 TheWilliams children described theirparents’ chosen methods ofpunishing Hana physically and psychologically for what they called her “disobedient” behavior. Jacob saw Carri spank Hanawith “switches”9 at least once everyday in the last six months of her life. Carri, who home-schooled all nine children, also instructed her eldest sons to beat Hana when she deemed Hana to be “defiant.” This physical punishmentattimes included beating Hana on the bottom ofherfeet, treatment her brother, I.W., experienced and described as “very painful.” Hana’s elderbrotherJacobtestified thatthe intentofthis corporal punishmentwasto inflict pain. The Williams children and their parents provided consistent descriptions of Hana’s quotidian living conditions. When Hana first arrived from Ethiopia, she slept in a bedroom with her sisters. When Carri and Larry caught Hana stealing food, theyforced herto sleep outside in a barn. For a two week period in the fall of2010, they locked Hana in a shower room at nightwithoutaccessto atoilet. For the last six months of Hana’s life, Carri and Larry locked her into a small closet every night.1° Hana had to remain in this closet until either Larry or Carri let her

8 FourofCarri’s Sons all have the same initials—J.W. To avoid confusion, we referto the two eldest sons by their given first names, Joshua and Jacob, because they were both over the age of 18 at trial. We will referto her othertwo sons as the third and fourth biological sons. The two daughters who testified will be referred to as C.W., age 14 attrial, and SW., age 13 attrial.

~TheWilliamses used a plastic plumbing tube and glue stickto strikethe children, referred to bythe children as “switches.”

10The closet measured 2 feet by4 feet, 3 inches. Hana was 5 feettall. -7-No. 77416-6-118

out, and she had no abilityto turn on the lightwhile inside because the switch was on the outside ofthis closet. Moreover, Carri forced Hana to stay in the closet all day if she refused to follow Carri’s instructions to go outside. One of Carri’s younger sons testified that Hana was locked in the closet for up to 24 hours at a time. When Carri locked Hana inside the closet during the daytime, she played an audiobook ofthe Bible because, asone oftheWilliams children put it, Carri ‘wastrying to get Hana’s brain to think differently.” Larry and Carri also made Hana use an outhouse behind the barn, and wash her hands and shower outside in the backyard, and would not permit herto
use any of the three indoor bathrooms in the home. Carri began imposing this punishment in the summer of 2010 because Hana suffered from a “blood-borne disease,”11 had started menstruating, and, Carri suspected, was deliberately smearing blood on the bathroom walls and door. Carri regularly escorted Hanato and from the backyard outhouse, which Hana was the only child forced to use. l.W. was unsure why Larry and Carri would hose Hana off in the backyard with cold water, but he could see that “she wasn’t comfortable” when being hosed down. Carri also decided at one point to cut off all of Hana’s hair in punishment for having cutthe grass too short. The Williamses also used food deprivation as a form of punishment. Carri and Larryforced Hana and I.W. to miss meals, with Hana sometimes being denied

~ Hanacontracted Hepatitis B inAfrica and received treatmentforitaftershewas adopted bytheWilliamses. The entireWilliamsfamily received the Hepatitis Bvaccine before Hanaarrived in 2008. -8-No. 77416-6-1/9

any food for two consecutive days. When they did provide food to eat, they required Hana and I.W. to eat separatelyfrom the rest ofthe family. The parents forced both Hana and I.W. to eat on the floor, in another room, or outside, when the rest ofthefamilyate atthe dining room table. Carri often required Hana to eat her meals in the locked closet. In the last few months of Hana’s life, Carri and Larryforced both Hana and l.W. to eattheirmeals outsideforwhatCarri described
as “meal time oppositionality.” Carri testified that as time went on, Hana ate most meals outside on the back patio. Moreover, when Hana and l.W. received meals, theywere notfed the same food as the otherWilliams children. Instead, the lunch sandwichesthat Hana and I.W. received had been soaked in water by either Larry, Carri, or one ofthe other children at their parents’ direction. Carri testified thatthe children were fed these “wet sandwiches” because Hana and I.W. refused to cooperate atthe meal table. Dinnertime was no different. Carri usually served Hana and l.W. cold leftovers topped with un-defrosted frozen vegetables. Hana went from a weight of 108 pounds and a base metabolic index (BMI) of 23.46 in April 2009, to 78 pounds, and a BMI of less than 16, signifying severe malnutrition, on the day of her death in May2011. Carri’s physical punishment followed Hana to the backyard. Carri forced Hanato engage in punishmentsshe and the children called “walk[ing] the line” and “bootcamp.” “Walk[ing] the line” involved forcing Hana towalkthe perimeterofan outdoor pickle ball court in the backyard. “Boot camp” involved extra chores, usually outdoors, and sometimes involved stacking and restacking the same pile

-9-No. 77416-6-1/10

of rocks. Hana underwent ‘bootcamp” at least once ortwice aweek in the lastsix months of her life. May 11, 2011, began as atypical dayfortheWilliamses. Whilethe children emerged from theirbedrooms, Carri let Hana outofthe locked closet. Then Larry, with C.W. and S.W.’s assistance, prepared breakfast around 10:00 a.m. Given that Larryadmitted that Hana ate breakfastoutside “more often than not,”she likely ate her breakfast outside that morning. After breakfast, the children cleaned up the kitchen, did their chores, and went outside to play. The children recalled playing “Capture the Flag” that morning. Hana, who was wearing a t-shirt and sweat pants, was outside but did not participate. Larry leftforwork around noon. The children typically ate lunch between 2:00 or 3:00 p.m. Carri escorted Hana tothe outhouse before lunch. She then gave Hana her lunch, presumablya wet sandwich, around 3:00 p.m. Although Carri initially denied forcing Hana to remain outside as punishment that day, she admitted she forced Hana to eat outside “fordisobedience, being oppositional.” And one of Carri’s sons confirmed that Hana was required to stay outside all day as punishment. There was also testimony that Carri refused to let Hana remain indoors when she was menstruating, and that Hana got herhands bloodybecause shewas “spotting”that day. Carri testified that around 4:00 or 4:30 p.m., she told Hana to come back inside, presumably to do her schoolwork, but that Hana would not comply. Carri

- 10-No. 77416-6-I/Il

saw Hana remove her shoes and stand at the back door. Carri shut the door on Hana. Carri testified that initially she checked on Hana every five to ten minutes after Hana refused to come inside after lunch. She saw Hana put hershoes back
on but had no recollection of what Hana did between 4:30 and 6:00 p.m., when Carri again walked Hana to the outhouse. Carri claimed she again told Hana to
come insideand Hana again refused. Bythattime, it had started to drizzle outside. At some point before it got dark, Carri went outside and spanked Hana with a switch.Carri escorted Hana to the outhouse a third time around 8:30 p.m. Butthis time, Carri saw Hana “throw herselfdown” on the ground. Carri testified that Hana tookafewsteps and lunged forward, landing on her hands and knees. Shefurther testified that Hana did this repeatedly before and after using the outhouse. Carri took no steps to help Hana get up afterfalling because “I didn’t need to. She got right back up herself.” Carri also saw Hana repeatedly hit her forehead on the back patio. Atthat point, Carri choseto leave Hana outside because she “couldn’t watch it anymore.” AfterCarri returned inside, shesaw Hana continueto “throw herself” around foranother20to 30 minutes. One ofCarri’ssonstestified that he observed Hana’s odd behavioraswell. Carri noticed bythis timethat Hana had skinned herelbows and knees and had a “knot” on herforehead. Carri claims she sent heroldestson, Joshua, outside to bring Hana inside, but she also instructed Joshua to spank Hana with the plastic switch and to force

-II

-No. 77416-6-1/12

Hanato do exercises, likejumpingjacks orsit-squats, to keepwarm. Hana began exercising as Joshua instructed, butwhen she stopped, Carri sent her next eldest son, Jacob, to do the same thing. Jacob testified that he spanked Hana with the plasticswitch and ordered herto do sit-squats. Again, Hana complied forabout a minute, then stopped. Finally, Carri sent herthird oldest son outside to repeatthe beatings. Carri admitted that she wanted Hana to do exercises “to keep warm.” Dr. Selove testified that when he conducted Hana’s autopsy, he observed marks on Hana’s left thigh where she had been struck by a long, narrow object, such as a strap orswitch at leastfourtimeswith sufficientforceto cause herblood vessels to burst. He found ten similar patterned bruises on Hana’s lowercalves. Carri claimed that she then took Hana herdinner outside. Carri said Hana did noteatthefood; Hana broughttheforkto hermouth as ifshewas going totake
a bite and then put the fork back. In a written statement to police, one of Carri’s
sons said that Hana was leaning overthe table and was unable to eat. Afterfive minutes, Carri took Hana’s dinner plate away and moved it into the house. Carri said atsome point, she attempted to carry Hana inside but Hana “went limp.” She then ordered Jacob and Joshua to carry Hana inside. Carri told the boystofirstdon latexgloves and to remove Hana’s shoes and socks becausethey
were soggyfrom dripping waterand Hana’s blood. Carri said Hanawas so bloody and herclothes sowetfrom walking in the rain, that“[t]hewaterdripping down had madethe blood drip down all over hersoft-centered shoes,” and shewanted them removed before Hana came inside. Joshua complied, removing Hana’s shoes and socks and throwing them in the garbage. Jacob testified that when Joshua

- 12-No. 77416-6-1/13

returned tothe back porch, Hana started taking off herclothes. Carri wentoutside and saw Hana sitting “buck naked from the waist down.” Carri told hersons to go back inside and to “forget it” because “modesty is important in ourfamily.” Carri took a set of dry clothes to Hana, told herto get out of herwet clothes, returned back inside, and turned the patio light off, leaving Hana in the dark. Carri testified that she checked on Hana twice, turning on and offthe patio light each time. At
some point, she thought Hana had begun changing her clothes. But Carriwas “busy”with herotherchildren, soshe instructed C.W. to check
on Hana. C.W. testified that she checked on Hana every 10 to 15 minutes and
sawthat Hana continued to remove more clothing, until shewas completely naked. Like Carri, C.W. turned on and offthe light everytime she checked on Hana. Hana apparently remained outside in the dark, bloody, wet, cold, and naked forat leasttwo hours. Around midnight, Larry called Carri to let her knowthat his vanpool had dropped him off at the park and ride, and that he was on his way home. When Carri told Larry about her perception of Hana’s behavior, Jacob overheard them arguing aboutwhether Hana was reallyfalling down on purpose. Larrywas not at all surprised by Carri’s description of Hana’s behavior. C.W. next saw Hana face down on the back patio. C.W. told Carri, who went outside, to find Hana with herface halfway on the concrete and half on the grass, and her mouth full of dirt from having herface fall onto a mole hill just off the patio. Hanawas cold to hertouch. Carri rolled heroverand “could see that it wasn’t good.” She ran inside to grab a sheetfrom the linen closet to cover Hana “for modesty,” and then tried to carry her inside with C.W.’s help. When Carri

-13-No. 77416-6-1114

realized they could not carry Hana, Carri enlisted Joshua’s help. Joshua came outside and carried Hana inside. Once Hana was inside, neither Carri norJoshua could find a pulse. Carri called Larrywhotold herto call 9-1-1. The 9-1-1 operatordirected Carri to perform CPR. When Larry arrived home shortly thereafter, he and Carri took turns administering CPR until medics arrived. When Skagit County Sheriff Deputy Chad Clark arrived, he saw a large lump on Hana’s forehead. Pictures taken of Hana’s bodyshowed her contusions, abrasions, and dirt above Hana’s right eye and in her right nostril. Hana was transported to SkagitValley Hospital where Dr. JanetteTomlinson pronounced her dead at 1:30 a.m. on May 12, 2011. Dr. Tomlinson did afull examination of Hana’s bodyand alsosawcontusions on herforehead, bruises and abrasions on herhips, knees, and shins, and red streaks on her thighs. Carri told Dr. Tomlinson that Hana had been “face planting” outside that night. Shefound thisversion ofevents odd, given that itwould be inconsistentwith the normal human reflexive response to a fall. “[l]f you try to fall down and hit your nose, if you are standing on flat ground and you just try to fall to the ground, your hands usually protect you from falling.” Had the police and CPS notalready been involved, Dr. Tomlinson testified she would have notified CPS. The State’s experts testified that Hana’s behavior before and on May 11, 2011, can be explained by the fact that she was so severely malnourished. Dr. Wiestertestified that starvation causes distress and anxiety in a child, leading the child to steal food, to exhibit abnormal behaviors around food, and to engage

- 14

-No. 77416-6-1/15

in defiant behaviors in general. Dr. Frances Chalmers, a pediatric medical consultantforthe State, testified thatwhen a body lacks adequate fuel in the form of calories, and it starts using stored body tissue, the result can be irritability, behavioral changes, fatigue, and serious cardiac arrhythmia. Both Dr. Chalmers and Dr. Wiester testified that a child as emaciated as Hana would be more susceptible to hypothermia because she would have insufficient insulating fat under the skin to keep the body warm in a cool environment. And Dr. Wiester noted that people suffering from hypothermia exhibit erratic physical movements, such as stumbling or having difficulty walking, and irrational behavior from an altered mental status. Dr. Selove noted hypothermia victims often have a false sensation that they are warm and engage in “paradoxical undressing,” meaning they remove their clothing even though one would expect them not to in that situation. Ultimately, an individual suffering from severe hypothermia will lapse into a coma. Carri argues this evidence does not establish she acted with extreme indifference to whether Hana lived or died and that her testimony indicated that she “did everything she could thinkofto get [Hana] to come outofthe rain and into the house.” But there was substantial testimony indicating otherwise. The jury
was not obligated to accept Carri’s testimony. When a defendant alleges insufficiency ofthe evidence, we view the evidence in the light most favorable to the State. Statev. Green, 94 Wn.2d 216, 221, 616 P.3d 628 (1980). Here, a reasonablejury could conclude from the evidence that Carri did not
care that she was starving Hana to death. Carri complained to her knitting club

- 15-No. 77416-6-1/16

friends that if Hana would not eatwhatwas put in front of her, then she would not eat at all. Carri denied Hana food or made the food unpalatableto eat and forced her to eat it away from the rest of the family. Carri testified Hana then began stealing food about a year before her death. And Carri said Hana lied about stealing when confronted. Carri told friends that Hana was a “liar” who “rifled through everyone’s belongings and stole from them.” Carri locked Hana in the shower room and then the closet to keep her from “hoarding” or “gorging on sweets.” When one of her friends suggested she return Hana to the adoption agency, her response was “I don’twish heron anyone.” Moreover, Carri admitted she never sought advice from any medical or psychological professional for what she deemed to be Hana’s “revealed rebelliousness.” She simply saw no causeforconcern for Hana’s health. In fact, the Williams family doctor, Harold Clark, testified the last time he had seen Hana
was in April 2009, overtwo years before herdeath. Dr. Wiester testified that this pattern of restricting Hana’s food intake, punishing herfor“bad behavior” by notallowing herto eat, confining hertoa locked closet, isolating her from her family, and forcing her to be punished by other members ofthe family, are all actions consistent with the “intentional infliction of starvation.” She testified: [C]hildren who have inflicted starvation begin with having restricted food or having bad food or no food orfood differentfrom the rest of the family or bread and water or something like that, and then the pattern ofthe behaviorwhich is very commonly seen is thatthe kids starttosteal food, theystartto lie aboutfood, theystartto hoard food, theystarttotake otherpeople’sfood, and then the problem becomes that is seen as bad behavior which then sort of spirals into more disciplinary approaches and more restriction and more treatmentfor

- 16-No. 77416-6-1117 bad behavior and being disagreeable and disobedient. So then there’s even more restriction and then it sort of becomes a selffulfilling prophecy.

. On the dayof Hana’s death, Carri removed herfrom a locked closet, forced her outside, either because Hana was rebellious or because she was menstruating, probably forced herto ‘walk the line” or stack rocks while outside, then physically beat her, ordered herthree eldestsons to beat her, and forced her to dojumpingjacks orsquats. Carri then saw Hanafall to the ground and sustain multiple injuries, including a significanttrauma to her head. Yet, Carri did nothing either to stop what may have been intentionally self-harming behavior or to determinewhatmayhave beenthe causeofhererratic physical movements. Carri offered cold food to Hana for dinner but then promptly took it away when Hana lacked sufficient body coordination to actually getthe forkto her mouth. And after learning that Hanawas naked, bloody, possibly concussed, cold and wet, Carri left Hana sitting on the back porch. The jury could reasonably find Carri passively stood by while Hana slipped into unconsciousness from starvation and exposure because she simplydid not care whether Hana lived ordied. 2. Sufficiencyof Evidence ofCarri’s Knowledcie ofthe Risk of Death Carri next argues that under State v. Dunbar, 117 Wn.2d 587, 817 P.2d 1360 (1991), the State had to prove she had actual knowledge that her conduct presented asubstantial riskofdeath byhypothermia, ratherthan proving she acted recklessly and caused a death. In Dunbar, the Supreme Court analyzed whether
one could be charged with attempted first degree murder under RCW 9A.32.030(b), the elements ofwhich are:

- 17-No. 77416-6-1/18 Under circumstances manifesting an extreme indifference to human life, he orshe engages in conductwhich creates a grave riskofdeath to any person, and thereby causes the death ofa person

. The Supreme Court held that this crime is “an aggravated form of recklessness which falls below a specific intent to kill.” 117 Wn.2d at 593. “[T]he phrase ‘extreme indifference’ appears to contemplate a lesser mental state” than intent. jçj~And ifthe crime does not require proofofa specific intentto kill, the court held thatthe defendant could not be convicted of attempting to committhat crime. ki. at 594-95. Carri contends Division Three extended Dunbar’s construction of the first degree homicide “extreme indifference” statuteto a homicide byabuse case, State
v. Adams, 138 Wn. App. 36, 155 P.3d 989 (2007). In that case, the court, in evaluating the sufficiency of evidence, cited Dunbar for the proposition that extreme indifference to human life “may be proved where the defendant engages in extremely reckless conductthat creates a grave risk ofdeath.” k~. at 50. Carri argues that because recklessness is statutorily defined in RCW 9A.08.010(1)(c)
as requiring proofthat a defendant “knew of and disregarded a substantial risk;” andAdams and Dunbar require proofofa grave riskofdeath, the State must prove that Carri had actual knowledge that herconduct put Hana at a risk ofdeath. She contrasts Adams with Division Two’s decision in State v. Madarash, 116 Wn. App. 500, 512, 66 P.3d 682 (2003), in which that court rejected the argumentthatthe definition of“extreme indifference”from the first degree murder statute applies to the homicide by abuse statute. The Madarash court noted that the homicide by abuse statute did not incorporate the language “conduct which

-18-No. 77416-6-1119

creates a grave risk ofdeath” from the first degree murderstatute. 116 Wn. App. at512. Itheld that“Madarash did nothaveto knoworunderstand the physiological response, or any other results, that [the child] might endure from drinking a 48-
ounce Diet Pepsi and ingesting great quantities ofwater in the bathtub. Rather, in orderto have acted with extreme indifference to [the child’s] life, Madarash simply had to not care whether [the child] lived ordied.” kL Carri asks this court to adopt the higher “actual knowledge” 

### mens rea of Adams and to reject what Carri characterizes as a lower 

### mens rea standard of Madarash. We do not need to resolvethis legal issue here, however, becausewe conclude the evidence is sufficient to prove that Carri knew that intentionally starving Hana and exposing her to inclement weather for hours in inadequate clothing created a substantial risk ofdeath. First, Carri had full knowledge shewas mistreating Hana. She testified she knew itwas wrong to lock Hana in a closet orshower room. She admitted itwas a mistake to force Hana to sleep in the barn, to force herto shower outside, and to force herto use an outhouse. And she knew that law enforcement would be asking questions about her role in Hana’s death, so she told her children to lie to the police and to child protective services as to where Hana slept at night. Second, while Carri insisted she had never been trained in or had any knowledge of the symptoms of hypothermia, Carri admitted that “as a common sense kind of thing, as a mother,” she knew “being outside in the cold rain is problematic.” She knew itwas harmful forchildren to be outsidewhen it iswetand cold. She testified that around 8:30 p.m., she became afraid that Hana was too

-19-No. 77416-6-1/20

cold and wet so she reached under Hana’s shirt at one point and confirmed her bodyfeltwarm. Her conduct appears to conflict with her statement that she had
no clue that hypothermia was a risk. And Carri also told Skagit County Sheriff Detective Ben Hagglund that Hana’s bodywas cool—notwarm—to the touch and this fact scared her. Finally, Carri’s third eldest son testified he knew what hypothermiawas because he had watched a movie about itduring a hunting safety class. He was aware that people, when suffering from hypothermia, may begin to feel very hot and remove their clothing. On the night of Hana’s death, he was watching Hana from the windows in the house, along with Joshua and Jacob and his sister, 

### C.W. And hethought Hanawas cold. From this evidence, thejurycould have reasonably concluded that Carri was aware Hana was descending into hypothermia that night. Third, thejurycould have reasonablyconcluded thatCarri’stestimonyabout regularly feeding Hana was untrue. Carolyn Roesler, an Australian doctor who provided medical careto Hanawhile she was in the Ethiopian orphanage, testified Hana was healthy with no evidence of malnutrition before leaving for the United States. Carri knew Hana was losing weight but claimed it was “gradual.” Dr. Chalmers testified Hana’s weight loss was “precipitous.” She described the pictures of Hana at death as “quite emaciated.” Dr. Selove testified her ribs were visible and her shoulder blades protruded. Dr. Wiestertestified the photographs of Hana afterdeath showed visiblesigns oftemporal wasting, which she described
as the loss offat around the eyes making her look like an older person.

- 20

-No. 77416-6-1/21 Carri testified that when Hana first joined their family, she gained weight rapidly and “grew out of her clothing.” Joseph denied evertelling a foster mother, TrudyWise, thatthefamilytookfood awayfrom Hana because she had gotten fat, butWise confirmed his statementto her. Joseph was certainly aware Hana was losing weight. Several family members, including Carri, repeatedly stated that Hana had been stealing food, a psychological effect of starvation. Carri freely admiffed she locked Hana in the shower room and closet to prevent her from stealing food. The jury could conclude from this evidence that Carri was intentionallystarving Hana and that she knewshe was creating a risk ofdeath by doing so. The record here is sufficientto prove beyond a reasonable doubtthat Carri knew of and disregarded a substantial risk of death by intentionally starving her child and forcing herto remain outside in inadequate clothing, and then naked, in the rain foran extended period oftime. (b) Lack of Instruction Defining “Extreme Indifferenceto Human Life” Carri next claims that her homicide by abuse conviction must be reversed because the trial court failed to define the term “extreme indifference to human life,” in violation of State v. Allen, 101 Wn.2d 355, 678 P.2d (1984) and article IV, section 16 ofthe Washington State Constitution. We disagree. At trial, Carri proposed an instruction defining “extreme indifference to human life.” The proposed instruction, based on Madarash and Statev. Edwards, 92 Wn. App. 156, 961 P.2d 969 (1998), read: “Extreme indifferenceto human life’
meansto not carewhetherthe deceased lived ordied.” The trial court declined to

-21

-No. 77416-6-1122

give this particular instruction, reasoning that the definition was not as simple as counsel had reduced itto in the proposed instruction based on the court’s reading of Madarash. It concluded that an ordinary person could figure outwhat “extreme indifference to human life” means. On directappeal, this courtaddressedthe definition of“extreme indifference to human life” when it rejected Carri’s argument that the phrase was unconstitutionally vague. C. Williams, No. 71193-8-I, slip op. at 16. We recognized that the homicide by abuse statute does not define “extreme indifference.” But, citing the dictionary definitions of these terms and the court’s adoption of the dictionary definitions in Madarash, we concluded that the plain meaning ofthe term set an ascertainable standard ofguiltthatwas not inherently subjective as applied to Carri’s conduct. j~ç[~ at 17-18. In her petition, Carri argues that because “extreme indifference to human life” is a technical term for the applicable 

### mens rea, she was entitled to an instruction defining thatterm forthejury. Due process requires that, when read as a whole, jury instructions in a criminal case must correctly tell the jury the applicable law, must not be misleading, and must permitthe defendantto present hertheoryofthe case. Statev. O’Hara, 167 Wn.2d 91, 105, 217 P.3d 756 (2009). Whilethe constitution requires thatthejury be instructed asto each elementofthe offense charged, the failure to further define one ofthose elements is not within the ambit of the constitutional rule. ki. Thus, the trial court’s refusal to define “extreme indifference to human life” would not rise to a due process violation.

-22-No. 77416-6-1/23 Carri relies onAllen forherclaim thatadefinition is constitutionally required. In Allen, the defendant sought an instruction defining theword “intent,” an element of the charged crime of attempted second degree burglary. 101 Wn.2d at 358. Our Supreme Court stated thatwhen the Legislature passed RCW 9A.080.010 to establish a hierarchy of mental states for crimes of increasing culpability, it intended to give these mental states technical meanings, as opposed to their commonly understood meanings. ~ at359. Becausethe crime ofsecond degree burglary included the specific mental state of an intent to commit a crime, it concluded thatthe trial court erred in rejecting the defendant’s proposed statutory definition ofintent. jçj. “Although thejurors may be ableto hammerouta definition for intent and knowledge among themselves, it cannot be assumed that these definitions would match those established bythe Legislature foruse attrial.” j.ç~at 362. But Allen did not rest on due process principles; it instead relied on a determination thatthe statutoryterm “intent”was atechnical term ofart. Unlike in Allen, there is no statutory definition of “extreme indifference to human life,” and the court in Madrash and this court in C. Williams determined the statutory phrase is not in fact a technical term ofart. Moreover, in State v. Barstad, 93 Wn. App. 553, 970 P.2d 324 (1999), the court rejected the defendant’s argument that the trial court should have defined “extreme indifferenceto human life” as used in the murderstatute. ki. at566. The court recognized that as a general rule, the trial court must define technical terms and expressions, but it need not define words or expressions that are of ordinary

- 23

-No. 77416-6-1/24

understanding or self-explanatory. ki. at 567 (internal quotation marks omitted) (quoting State v. Brown, 132 Wn.2d 529, 611-12, 940 P.2d 546 (1997)). It reasoned that: [T]he Legislature substituted the term ‘extreme indifference’ for the antiquated ‘evincing a depraved mind’ terminology of the prior law forthe purpose of updating the code with modern language.

. . . the courts have not attempted to further define ‘extreme indifference’; rather, the particular facts of each case are what illustrate its meaning. There is no need forfurtherdefinition. j~. We held in Carri’s directappeal thatthe phrase “extreme indifferenceto human life” was a phrase of ordinary understanding. Thus, Carri was not entitled to a definitional instruction as a matterof law underAllen.12 Carri separatelyarguesthetrial courtviolated article IV, section 16 byfailing to give her proposed definitional instruction. Article IV, section 16, entitled “Charging Juries,” provides “Judges shall not chargejuries with respectto matters of fact, nor comment thereon, but shall declare the law.” The purpose of this provision is to preventthejuryfrom being influenced bythejudge’s opinion ofthe evidencethat has been presented. Cityof Kirkland v. O’Connor, 40Wn. App. 521, 523, 698 P.2d 1128 (1985). Our Supreme Court has construed the latter requirement for judges to “declare the law” in a very general way. Hiscock v. Phinney, 81 Wash. 117, 123, 142 Pac. 461 (1914). This constitutional provision merely requires that the court, and not a jury decide questions of law arising at trial. Pepperall v. City Park Transit Co., 15 Wash. 176, 183, 45 Pac. 743 (1896).

12 Becausewe conclude Carri was notentitled tothe definitional instruction she proposed, we need not address hercontention that herappellate counsel provided ineffective assistance of counsel in failing to raisethis argument on Carri’s directappeal.

- 24

-No. 77416-6-1/25

It does not provide an independent ground for chaHenging a conviction ifthe trial court’sjury instructions otherwise metthe requirements ofdue process. Because Carri was not legally entitled to an instruction defining “extreme indifferenceto human life,” she has notdemonstrated thatthetrial court’s rejection of her proposed instruction requires a reversal of her homicide by abuse conviction. We thus reject Carri’s Claim 1.

Claim 2: Constitutionality ofthe Homicide byAbuse Statute Carri contends the homicide by abuse statute is unconstitutionally vague because itfailsto give notice ofwhattypes ofparental discipline are prohibited. In herdirectappeal, Carri raised a nearly identical argument, where she claimed that the terms “torture” and “extreme indifference to human life” in the homicide by abuse statutewere unconstitutionallyvague as applied to her. This court rejected hervagueness argument.13 In this petition, Carri characterizes her current vagueness challenge as a facial, ratherthan an as-applied, challenge to the statute. To succeed on a facial challenge, the complaining party must demonstrate that the law is impermissibly vague in all ofits applications. Hoffman Estatesv. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 497, 102 5. Ct. 1186, 71 L. Ed. 2d 362 (1982); Statev. Worrell, 111 Wn.2d 537, 541, 761 P.2d 56 (1988). Afacial challenge must be rejected ifthere
are any circumstances where the statute can constitutionally be applied. Washington State Rejublican Partyv. Washington State Pub. Disclosure Comm’n,

13Thiscourtfollowed the reasoning in Statev. Brown, 60 Wn. App. 60, 802 P.2d 803 (1990) and State v. Russell, 69 Wn. App. 237, 848 P.2d 743 (1993) to conclude that neither the term torture,” northe phrase “pattern or practice of assault ortorture” in the homicide by abuse statute was unconstitutionallyvague. C. Williams, No. 71193-8-I, slip op. at 16. -25-No. 77416-6-1/26

141 Wn.2d 245, 282 n.14, 4 P.3d 808 (2000). Carri does not argue that the homicide by abuse statute is impermissibly vague in all of its applications. She instead challenges the statute only in the context of parental discipline. This is in
essence an as-applied challenge.14 A petitioner may not renew an issue thatwas raised and rejected on direct appeal unless the interests ofjustice require the issue to be reexamined. Pirtle, 136 Wn.2d at 473. Because Carri raised, and this court rejected, her as-applied challenge tothe homicide byabuse statute, and she advances no reasonsforwhy the interests ofjustice require us to revisit the decision, we will not address this constitutional argument anew.15 We thus reject Carri’s Claim 2.

Claim 3: Prosecutorial Misconduct Carri claims that she was deprived of her constitutional right to a fair trial after the prosecutor committed two instances of misconduct: once during closing argument and once during the rebuttal closing argument. “The right to a fair trial is a fundamental liberty secured by the Sixth and Fourteenth Amendments to the United States Constitution and article I, section 22 oftheWashington State Constitution.” In re Glasmann, 175Wn.2d 696, 703, 286 P.3d 673 (2012). Prosecutorial misconduct may deprive a defendant of her right

14Carri arguesthatfacial challenges in non-FirstAmendmentcases are permissible under Chicagov. Morales, 527 U.S. 41, 119 S. Ct. 1849, 144 L. Ed. 2d 67(1999), and thatthe contrary holding in Seattle v. Montana, 129 Wn.2d 583, 919 P.2d 1218 (1996) is no longergood law. We do not need to address this contention because we conclude that Carri’s challenge, although designated as afacial one, does notfit into thatanalytical framework.

15 Carri also challenges the sufficiencyofthe evidence supporting thejury’sfinding ofguilt on manslaughterin thefirstdegree. Becauseweaffirmthe homicide byabuse conviction, we need not reach any issues relating tothe vacated manslaughterconviction here. -26-No. 77416-6-1/27

to afairtrial. Id. at703-04. This court reviews constitutional issues de novo. State
v. Enguist, 163 Wn. App. 41, 45, 256 P.3d 1277 (2011). To prevail on a claim of prosecutorial misconduct, “the defendant must establish both improperconduct bythe prosecutorand prejudicial effect.” Statev. Pirtle, 127 Wn.2d at 672. “Prejudice is established only if there is a substantial likelihood the instances ofmisconductaffectedthejury’sverdict.” ki. Furthermore, unless the statements are “flagrant and ill-intentioned,” and the prejudice resulting could not be cured byinstructions oradmonitions, failureto make atimelyobjection waives any objection to such statements. State v. Swan, 114 Wn.2d 613, 661, 790 P.2d 610 (1990). Comments are prejudicial ifthere is a “substantial likelihood the misconduct affected the jury’s verdict.” Brown, 132 Wn.2d at 561. “A prosecuting attorney’s allegedly improper remarks must be reviewed in the context of the total argument, the issues in the case, the evidence addressed in the argument, and the instructions given to the jury.” j~çj~ A prosecutor “has wide latitude to argue reasonable inferences from the evidence.” State v. Thorgerson, 172 Wn.2d 438, 448, 258 P.3d 43(2011). (a) Closing Argument First, Carri asserts the prosecutor misstated the evidence by arguing that it took“10to 15 minutes”forCarrito bring Hana intothe house and call 9-1-1. During closing argument, the prosecutorsaid: 16 [Carri] goes out there, turns [Hana] over, sees she’s not breathing, or breathing very little. So what’s the first thing [Carri] thinks about

16Carri characterized thisstatementas asserting thatCarri waited 10to 15 minutes before bringing Hana insidethe house. Wedo notbelievethis isafaircharacterization ofthe prosecutor’s argument. We understand the argumentto reflectthe time lapse between C.W. reporting Hana’s collapse and Carri’stelephone call to 9-1-1. -27-No. 77416-6-1/28 doing? Call 911? Get her in where it’swarm? I gotto run in and get a sheetso I can cover her up. When I get hercovered up, then I will call for the boys, and they can help me. Now, boys, if this sheet happens to fall offwhen we’re trying to take her in the house, don’t you look. Doesn’t matter howsickyoursister is. Then she gets in the house, theyfinally get her into the house, they finally call 911, probably ten, fifteen minutes after it’s reported, because of the modesty, because they should have had her in before, and so she dies at the hospital, they pronounce her dead.

. Although Carri’s counsel did not objecttothese statements, during Carri’s closing, she responded to this factual argument: The prosecutor talked about, well, that Ms. Williams was just so concerned about modesty that she, you know, waited ten to fifteen minutes before calling 911 because she had to cover Hana up with a sheet. That is notthe evidence. The evidence is that she went in the house quickly, she gota sheetthatwas located nearby, shewent outside and she covered Hana up. There’s no testimony that took any ten to fifteen minutes. There’s no way that it could take ten to fifteen minutes. It doesn’t indicate an extreme indifference [to] human life because shewanted to cover herdaughter’s naked body. Here, the prosecutor stated that “probably” ten to fifteen minutes passed from the time C.W. first alerted Carri to Hana’s condition on the back patio to the time Carri summoned medical aid by calling 9-1-1. This argument was a reasonable inference from the evidence. C.W. testified, and Carri confirmed, that C.W. told Carri about Hana having collapsed, the two ofthem went outside, Carri turned Hana overto check on hercondition, enlisted C.W.’s help to tryto lift Hana and move her inside, then ran to find a sheet to cover Hana’s naked body, and called to Joshua and Jacob to help carry Hana intothe kitchen. Once inside, Carri and Joshua both tried tofind a pulse. Carri then called Larryto alert him to Hana’s condition. Only afterthese events did Carri hang up and call 9-1-1. While it may

- 28

-No. 77416-6-1129

have taken Carri only a few seconds to find a sheet and return with it to cover Hana’s body, thejury could reasonably inferfrom the testimonythat Carri allowed precious minutes to lapse before actually calling 9-1-1 because she was more worried that herteenage sonswould see the naked body ofa girl than shewas for Hana’swell-being. Carri relies on Statev. Rose, 62Wn.2d 309, 382 P.2d 513 (1963), and State
v. Reeder, 46 Wn.2d 888, 285 P.2d 884 (1955), to support her claim that the statement was unsupported in the evidence and unduly inflammatory. Neither
case is analogous. In Rose, the prosecutor called the defendant a “drunken homosexual” even though there was no evidence that the defendant was drunk. 62 Wn.2d at 313-14. While there was evidence that the defendant was homosexual, the prosecutor’s use ofthe phrase “drunken homosexual”was notto
sum up the evidence but was instead intended as a degrading description ofthe defendant. Id. The prosecutor’s comment aboutthe duration oftime Carri waited to summon medical aid is not analogous to the degrading, and unsupported, description ofthe defendant in Rose. In Reeder, the prosecutor made repeated statements that the defendant threatened hiswife with a gun. 46Wn.2d at891-92. Butthere was “not oneword oftestimony in the record thatthe defendant threatened his firstwife with a gun.”

~ at 892. Again, while there was no direct evidence as to the amount oftime it took Carri to call 9-1-1, there was sufficient circumstantial evidence to supportthe prosecutor’s inference.

- 29

-No. 77416-6-1/30 Carri argues that the reference to the passage oftime during closing was extremely prejudicial because the duration ofthis trial made it unlikely the jurors would be able to recall all the testimony. But the trial court provided each juror with a notepad and a pen and it encouraged them to take notes during the witnesses’ testimony. They were also instructed to ignore any arguments bythe lawyers that were not supported by the evidence. We assume jurors follow this instruction and disregard unsupported arguments. State v. Russell, 125 Wn.2d 24, 84-85, 882 P.2d 747 (1994). Even ifthe prosecutor’s statements could not be characterized as a reasonable inference from the evidence, Carri cannot demonstrate prejudicefrom this comment, particularly given that herown counsel disputed the factual basis for it in closing argument. (b) Rebuttal Closinci Second, Carri argues thatthe prosecutor misstated the law during rebuttal by arguing that thejury could find she acted with extreme indifference to Hana’s life based on her mistreatment of Hana over a several year period, rather than limiting the “extreme indifference” period to Carri’s actions on May 11 and 12, 2011. We rejectthis argument as well. During the State’s rebuttal argument, the prosecutorstated: Now, let’s talk for a minute about extreme indifference, because that’s what the state needs to prove beyond a reasonable doubtfor the homicide charge. Extreme indifference means you just don’t care. Howdoyou decide ifMr. and Mrs. Williamsjustdidn’t care? And the way you decide is the same way you decide what other people are thinking. You lookat howthey’re acting. Notjustthe daythat Hana died, but throughout the entire time frame that Hana Williams was being starved and deprived offood and the basic necessities of life.

- 30

-No. 77416-6-1/31

Carri did not objectto this statement. Instruction 8, the “to convict” instruction forhomicide byabuse, provided, as thefirst element, that “on orabout May 12, 2011, the defendant, Carri Williams, or her accomplice, acted under circumstances manifesting an extreme indifference to human life
“ Carri argues that because the State charged this crime as having occurred “on or about May 12, 2011,” the State had to establish a manifestation of extreme indifference on that specific date. She contends the prosecutor misstated the law by suggesting that it was sufficient to base a conviction for homicide on manifestations of indifference toward Hana before the charging period began. Carri relies on State v. Davenport, 100 Wn.2d 757, 675 P.2d 1213 (1984), for the proposition that the prosecutor’s argument misled the jury and conflicted with the court’s to-convict instruction. But Carri’s reliance on Daveniort is misplaced. There, the prosecutor, in closing argument, presented an alternate theory of liability, namely accomplice liability, that the State had not charged and forwhich thejury had not been instructed. j~ at 763. This case is distinguishable. First, although the charging period was “on or about May 12, 2011,” the statute and the first element in the to-convict instruction required evidence that Carri “acted under circumstances manifesting an indifferenceto human life.” A“circumstance” is “a specific part, phase, orattribute of the surroundings or background of an event, fact, orthing or ofthe prevailing conditions in which it exists or takes place.” WEBSTER’S NEW INTERNATIONAL DICTIONARY 410 (2002). To manifest means “to show plainly: make palpably

- 31

-No. 77416-6-1132

evident or certain by showing or displaying.” WEBSTER’S NEW INTERNATIONAL DICTIONARY 1375 (2002). The background details ofCarri’s mistreatment of Hana before herdeath on May 12, 2011, are “circumstances” probative ofCarri’s attitude toward and treatment of Hana on the day of herdeath. Second, the Legislature indicated a clear intent to make a person’s pre death conduct relevant by explicitly requiring the State to prove “a pattern or practice” of past torture or abuse. As the Russell court noted, in a homicide by abuse case, the statute’s reference to a “pattern or practice” requires proof of “a series of assaultive acts—a continuing course of conduct—not a single incident.” 69 Wn. App. at 249. We see nothing unfairfor a prosecutorto argue that Carri’s mistreatment of Hana on May 11 or 12, 2011—mistreatment that was consistent with her pattern or practice of past torture or abuse—demonstrated her extreme indifferenceto Hana’s life. The prosecutor’sargumentthatCarri exhibited extreme indifference to Hana for an extended period of time before Hana died was a reasonable one based on the language of these elements in the “to-convict” instruction. Unlike in Davenport, the prosecutor did not insert a new theory of liability into the case. Moreover, in Larry’s directappeal, the court rejected the argumentthatonly the conduct on May 12, 2011 was relevant: Contrary to Larry’s argument, the “[o]n or about May 12, 2011” charging period for the manslaughter charge does not limit the charge onlyto events when Larrywas not home on May 11 and 12, 2011.

. . . “[W]here time is not a material element of the charged crime, the language ‘on or about’ is sufficient to admit proof of the act at anytime within the statute of limitations, so long as there is no defense of alibi.” Time is not a material element of first degree manslaughter. The conduct here also falls well within the statute of

- 32

-No. 77416-6-1/33 limitations period, and Larry did not rely on a true alibi defense. The jury was not limited in determining Larry’s guilt to the events that occurred while he was not home on May 11 and 12, 2011. Statev. Larry Paul Williams, No. 71112-1-I, slip op. at 11 (Wash. Ct. App. Dec. 21, 2015) (unpublished), review denied, 185 Wn.2d 1034, 377 P.3d 741 (2016).17 Carri has not demonstrated that the prosecutor’s rebuttal statement regarding the duration of Carri’s abuse of Hana was a misstatement ofthe law or “flagrant and ill-intentioned.” We reject her prosecutorial misconductclaims.

Claim 4: IneffectiveAssistance of Counsel Carri makesfour newclaims of ineffective assistance ofcounsel attrial and
on direct appeal: that her trial counsel was ineffective (1) for failing to ask for a severance ofthe counts related to Hana from the count related to l.W. and (2) for failing to object to testimony related to a parenting book found in the Williamses’ home; and that herappellate counsel was ineffective (3) forfailing to assign error tothe admission oftestimonyaboutthe parenting bookand (4) forfailing to assign
errorto the trial court’s failure to define “extreme indifference to human life.” We address each claim in turn. “To demonstrate ineffective assistance ofcounsel, a defendant must make two showings: (1) defense counsel’s representation was deficient, i.e., itfell below
an objective standard of reasonableness 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.”

17 http://www.courts.wa.gov/opinions/pdf/71 1121 .pdf.

- 33

-No. 77416-6-1/34

Statev. McFarland, 127Wn.2d 322, 334-35, 899 P.2d 1251, 1256 (1995). Aclaim of ineffective assistance of counsel presents a mixed question of law and fact which we review de novo. In re Pers. Restraint of Fleming, 142 Wn.2d 853, 865, 16 P.3d 610 (2001). (a) Trial Counsel’s Failure to File Pretrial Severance Motion Carri argues trial counsel should have moved to sever the homicide by abuse and manslaughter charges relating to Hana’s death from the first degree assault ofa child charge related to 

### lW. Counsel submitted declarations in which theytestified that they did not seek a severance because it did not occurto them to do so. Separate trials are not favored in Washington. State v. Dent, 123 Wn.2d 467, 484, 869 P.2d 392 (1994). To demonstrate deficient performance, a defendant mustshow in the record the absence ofa legitimate strategicortactical
reason supporting the challenged conduct bycounsel. Statev. Emery, 174Wn.2d 741, 755, 278 P.3d 653 (2012). To establish prejudice based on an improperjoint trial, a defendant must show that a competent attorney would have moved for severance, that the motion likely would have been granted, and that there is a reasonable probabilitythatthe defendantwould have been acquitted ata separate trial. j~ The failure to show either deficient performance or prejudice defeats a defendant’s claim. k~. We do not need to evaluate whetherthefailuretofile a motion to severwas deficient becausewe conclude Carri cannotestablish prejudice. UnderCrR4.3(a), the trial court has broad discretion tojoin offenses in one trial where the charged

- 34

-No. 77416-6-1/35

offenses “(1) [a]re of the same or similar character, even if not part of a single scheme or plan; or (2) [a]re based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan.” State v. Bluford, 188 Wn.2d 298, 310, 393 P.3d 1219 (2017). The defendant has the “burden ofdemonstrating that a trial involving both counts would be so manifestly prejudicial asto outweigh the concern forjudicial economy.” Statev. Bythrow, 114 Wn.2d 713, 718, 790 P.2d 154 (1990). To determine whether joinder may be prejudicial, a court must consider“(1) the strength ofthe State’s evidence on each count; (2) the clarityofdefenses as to each count; (3) court instructions to thejury to considereach countseparately; and (4)the admissibilityofevidence ofthe other charges even if notjoined for trial.” State v. Sutherby, 165 Wn.2d 870, 884-85, 204 P.3d 916 (2009) (quoting Russell, 125 Wn.2d at 63). Carri relies on Sutherbyto arguethatthetrial courtwould have had to grant
a severance motion. That reliance is misplaced. In that case, the defendantwas charged with firstdegree child rape and firstdegree child molestation involving the
same child, and multiple counts of possession of child pornography. Sutherby, 165 Wn.2d at 874. The court held that the defendant’s counsel was deficient in failing to move for a severance of the child rape/molestation charges from the pornography charges because there was no strategic or tactical advantage in having these charges tried together. j~ at 884. The court also found prejudice because while the State’s evidence related to the child pornography charges was strong, the evidence related to the molestation chargeswasweaker, as it relied on thetestimony ofasix-year-old girl.

- 35

-No. 77416-6-1/36

j~. at 885. The defendant offered separate defenses for each charge and while the jury was instructed to consider each count separately, the State consistently argued that defendant’s possession ofchild pornography proved he molested the child. j.ç~ at 885. The court noted that in cases involving sex crimes, joinder can be “particularly prejudicial” despite properjury instructions. jçj~ at 884. Unlike in Sutherby, Carri has not demonstrated that the trial court would have granted a motion to sever the counts. First, we do not see a significant difference in the strength ofthe State’s evidence relating to Hana’s death and the strength of the evidence relating to the assault of l.W. The State’s evidence relating to the abuse of 

### l.W., unlike in Sutherby, was not based solely on l.W.’s testimony. There was objective, photographicevidence of l.W.’s scars, as well as the testimony from the Williamses’ children attesting to the beatings, food deprivation, and social isolation that lW. endured. Carri admitted using corporal punishment on lW., including spanking him with switches, sometimes on the bottoms of l.W.’s feet, rendering it painful to walk. She admitted having directed hersonsto spank l.W. aswell. The evidencewas consistentthat l.W. wastreated the same as Hana was—from having to eatwet sandwiches, to being beaten with
a switch, to being locked overnight in a damp shower room. Second, while Carri claims she had separate defenses related to each charge, the defenseswere not inconsistent. Thetrial court gave Carri’s requested jury instruction on lawful use offorce by a parent. It instructed that “[t]he physical discipline of a child is lawful when it is reasonable and moderate, and is inflicted

- 36

-No. 77416-6-1/37

bya parentforpurposes of restraining orcorrecting the child.” The defense ofthe lawful use offorcethus applied to both counts. In closing, as to the homicide by abuse charge, Carri argued the evidence demonstrated she did carewhat happened to Hana and was concerned about her well-being on May 11, 2012, that she did not cause Hana to die of hypothermia because she had not forced Hana to remain outside, and that the State had not proven that Hana was underthe age of 16. As to the manslaughtercharge, Carri argued that she had no reason to suspect Hana was at risk of dying from hypothermia and she did notdisregard any risk ofdeath because she urged Hana repeatedlyto come indoors. Astothe assaultcharge, Carri contended that herphysical discipline ofl.W. did not cause him substantial bodily harm and any scars he had were there when he arrived from Ethiopia. Severance is required only ifa defendant “makes a convincing showing that she has important testimony to give concerning one count and a strong need to refrain from testifying aboutanother.” Statev. Watkins, 53Wn. App. 264, 270, 766 P.2d 484 (1989). None of Carri’s defenses required herto admit an allegation as to I.W. that would have undermined a defense as to Hana, or vice versa. Carri actuallyadmitted tothejury in closing thatshewas “guiltyofmanyoffenses forthe abuse that she inflicted on these children,” but she was not guilty ofthe charges the State chose to bring. Carri’s defenses to the homicide counts and the assault charge were simply not antagonistic.

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-No. 77416-6-1/38 Third, the jury instructions properly told the jury to consider each count separately. Instruction 6 provided that a separate crime was charged in each count, that the jury had to decide each count separately, and a “verdict on one countas to one defendantshould not control yourverdict on any othercountoras to the otherdefendant.” We have evidence thejury understood and followed this instruction because itfound Carri guilty of homicide by abuse but could not reach unanimity on that charge as to Larry. Finally, Carri cannot demonstrate thatthe prejudice from ajoint trial would have outweighed the concern for judicial economy.18 “Defendants seeking
severance must not only establish that prejudicial effects ofjoinder have been produced, butthey must also demonstrate that ajointtrial would be so prejudicial
as to outweigh concern forjudicial economy.” Bythrow, 114 Wn.2d at 722. Our Supreme Court has held that severance is not required “in every case where the evidence of one count would not be admissible in a separate trial of the other counts.” ~ (quoting State v. Gatalski, 40 Wn. App. 601, 609 n.6, 699 P.2d 804 (1985)). Asignificantamountofevidencethe State presentedtoestablish the crimes against Hana was cross-admissible to establish the crime against l.W. The trial court instructed thejuryon the manslaughteraggravatorthatthe offense “was part ofan ongoing pattern of psychological or physical orsexual abuse ofthe victim or multiple victims manifested by multiple incidents overa prolonged period oftime.”

18Judicial economy is defined as “Efficiency in the operation ofthe courts and thejudicial system; esp., the efficient managementof litigation so as to minimize duplication of effort and to avoid wasting thejudiciary’s time and resources.” BLAcK’s LAW DICTIONARY 1012 (11th ed. 2019).

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All of the evidence of the pattern of physical abuse of 

### I.W., the details of which
were quite similartothatwhich Hana experienced, would have been admissible in anytrial ofthe manslaughter charge to establish this aggravating factor. Similarly, the assault of a child charge required evidence of a “pattern or practice” ofeitherassaulting LW. and “causing bodily harm thatwas greaterthan transient physical pain or minortemporary marks,” or causing lW. “physical pain
oragonythatwas equivalentto that produced bytorture.” Carri’s mistreatmentof Hana—both the physical abuse and the food deprivation—would have been probative of Carri’s disciplinary practices that went to the heart of the State’s assault case. The concerns forjudicial economy would have been significant. The trial lasted seven weeks, and involved the testimony of 54 witnesses, most ofwhom would have had to testify in both trials, had the trials been severed. The sheer length and complexity of the trial would have weighed against severance. In addition, LW., who is deaf, requiredthe assistanceoftwoAmerican Sign Language interpreterstotestify. And he and fourofthe children whotestified were minors at the time. Requiring these witnesses to provide the same evidence twice would also have given the trial court significant reason notto severthe charges. We conclude Carri has not established that the trial court would have granted a defense motion to severthe charges in this case. Forthis reason, she has not proven she was prejudiced by her counsel’s failure to make this motion.’9

19 Because we conclude that there is a strong probability that the trial court would have denied any severance motion, we similarly deny carri’s requestfora reference hearing related to the issue ofseverance.

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(b) Trial Counsel’s Failure to Obiect to Testimony aboutthe Book, To Train Up a Child and Appellate Counsel’s Failure to Raise the Issue on Appeal Carri contends trial counsel provided ineffective assistance of counsel by failing to objectto questions regarding disciplinary practices recommended in the book, To Train Up a Child.2° Carri asserts this book is a “controversial” parenting book and that introduction of testimony about it violated her First Amendment rights. We disagree that trial counsel’s failure to object to testimony about this bookwas deficient performance orthat its admission prejudiced Carri. While executing a search warrant on the Williamses home on August 24, 2011, law enforcement seized a parenting book entitled To Train Up a Child. During the direct examination ofCarri’s third eldestson, the prosecutorasked ifhe
was familiarwith this book. He testified he understood that the book was about “howto raise up children.” When Carri tookthe stand, the State questioned heraboutthe bookaswell. The State had good reason to do so. Carri had the phrase “train up a child” on a poster affixed to the wall in her home. She admitted she read the book and followed some of its advice. For example, she got the idea of using a plumbing rod as a switch for spanking from the book. Carri also admitted that the book advocated “rinsing off” children for pottytraining and that influenced theirdecision to hose down I.W. outside when he wet his pants. Carri further admitted thatthe book informs readersthatspanking should cause pain and fear. Carri insisted she disagreed with this passage in the book, butJacobtestified he understood thatthe

20 MICHAELAND DEBI PEARL, ToTRAIN UPA CHILD (1994). -40-No. 77416-6-1141

punishment his parents and he inflicted was intended to inflict pain. The State marked the book as Exhibit436 butdid not offer it into evidence. First, Carri’s adherencetotechniques recommended byToTrain Ur a Child
was highlyprobativeofwhetherCarri’s disciplinary practiceswere “reasonableand moderate,” as Carri asserted, orwhether her conduct rose to the level oftorture,
an element of both homicide by abuse and assault of a child. A reasonable jury could conclude that Carri and Larryselected unreasonable disciplinarytechniques recommended in this book and believed they needed to exact pain for the discipline to be effective. Second, Carri’s reliance on United States v. Waters, 627 F.3d 345 (9th Cir. 2010) is misplaced. In thatcase, thedefendantwas convicted ofarson aftersetting fire to buildings on the University of Washington campus to protest genetic engineering. jçj~ at 348. The Ninth Circuit reversed, concluding the district court erroneously admitted “anarchist literature” attrial without reading the literature to determine if itwas probative. ki. at 357. In this case, the State did not offer and the trial court did not admit the book into evidence. Additionally, the probative value ofthe limited questions the State posed about the contents of the book is evidentfrom the crimes charged, the defenses raised, and the instructions given. Waters is distinguishable on these bases. Similarly, State v. Coe, 101 Wn.2d 772, 684 P.2d 668 (1984), and State v. Hanson, 46 Wn. App. 656, 731 P.2d 1140 (1987), are inapplicable. Coe involved the defendant’s own writings about masturbation, writings the court held to have
no probativevalue and to be inflammatory in the defendant’s rapetrial. 101 Wn.2d

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at 779-80. Hanson involved evidence ofthe defendant’s crime fiction introduced during his trial for assault. 46 Wn. App. at 662-63. The court held that the evidence, which involved stories of violence, was offered solely to show the defendant’s propensity for violence, was inadmissible for that purpose, and was highly prejudicial. j~ Coe and Hanson are distinguishable because in both cases, the State soughtto introduce something the defendant had written as characterevidence to show a propensity for committing the charged crimes. In this case, neither Larry
nor Carri authored To Train Ui a Child. The State was not offering the evidence to establish their propensityto commitchild abuse ortorture. Instead, it soughtto establish that they intentionally chose disciplinary techniques for the purpose of inflicting pain on Hana and l.W. The fact that they adopted techniques recommended to cause such pain made their reading ofthis book highly probative oftheir intentwhen disciplining Hana and l.W. Furthermore, on cross-examination, Carri was asked minimal questions aboutthe book. She repeatedlystated thatshe did notfollowthe book“as though itwas the Bible” and had not read it in 10-15 years. Larrywas neverasked about the bookor its contents; he testified thatthe idea of using the switch came from “a book” but did not specifywhich book. Because the State did not offer, and the trial court did not admit, the book itself into evidence and because the testimony aboutthe bookwas probative as to the purpose behind Carri’s chosen disciplinarytechniques for Hana and l.W., trial

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counsel was notdeficient in failing to objecttothis evidence and appellate counsel
was not ineffective forfailing to assign errorto the admission ofthis evidence. (c) Appellate Counsel’s Failure to Assign Errorto Lack of Definition of “Extreme Indifference to Human Life” Finally, Carri contends that herappellate counsel was ineffective forfailing to assign error to the trial court’s rejection of the defense’s proposed instruction defining “extreme indifferenceto human life.” As previouslystated, thetrial court’s rejection ofCarri’s proposed instruction was not error under both State v. Barstad and this court’s decision in Carri’s direct appeal. Thus, Carri’s appellate counsel
was not ineffective. Because neither Carri’s trial counsel nor her appellate counsel were ineffective, we reject Carri’s Claim 4. CONCLUSION Based on ourreviewofCarri’s personal restraintpetition and thetrial record,
we conclude there were no constitutional errors giving rise to any actual prejudice and no fundamental defects resulting in a complete miscarriage ofjustice. Carri received afairtrial. We thus deny her personal restraint petition.

WE CONCUR: 

# (,) ~o_Q

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