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# I 1 INTHECOURT OF APPEALS OF THE STATE OF WASHINGTON 

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# I I FILED 

### JULY 23,2015 In the Office ofthe ClerkofCourt WA StateCourt ofAppeals, Division III

STATE OF WASHINGTON, Respondent,
v. TERRYMICHAELHOEFLER, Appellant. DIVISION THREE ) No. 31719-6-111 ) ) ) ) UNPUBLISHED OPINION ) ) ) ) LAWRENCE-BERREY,J.

- Terry Michael Hoefler appeals his conviction for attemptedrape ofa child in the first degree, contending (1) the State failed topresent sufficientevidence to supporthis conviction, (2) the trial courterroneously admitted lay opinion testimony thatwas notbasedonpersonal knowledge in violation ofER602, (3) theprosecutor engaged in misconduct during closing argumentby referencing facts not in evidence and appealingtothepassions andprejudice ofthejury, and (4) defense counselprovided ineffective assistance ofcounselby failing to objecttotheprosecutor's closing argument. Mr. Hoeflerhas also filed a statementofadditional grounds for review inwhichhe asserts (1) insufficientevidence supportsthe conviction, (2) the trial court erred in admitting certainphotographic evidence, and (3)jurormisconduct. We disagreeNO.31719-6-III State 

### v. Hoefler
with his contentions and affinn. FACTS During the early morning ofJuly 22, 2012, Terry Hoefler, Tahti Dilkey, and Kable Gunter were driving to Mesa, Washington. The truck they were in began to smoke, so they stopped to look for oil. Mr. Hoefler and Mr. Gunter left to see ifthey could find oil at a nearby business, while Ms. Dilkey remained in the car. Mr. Hoefler knocked on the door ofa house adjacentto the business. The door opened as he knocked, and he went inside. As he walked through the house, he saw items he could sell and started gathering them. He went into a bedroom and saw three children sleeping in a bed. He carried ll-year-oldL.S. from the bed and placedheron a couch in the living room. He then placed aplastic bag in her mouth and removed her shorts. L.S. removed the bag from hermouth and started toyell. Mr. Hoefler fled. L.so's aunt, Vieny Sanchez, awakened to the sound ofmultiple children screaming. Her boyfriend, Raphael Esparza, opened the door to their bedroom. L.S. came running to the room wearing only her underwear and t-shirt, telling Ms. Sanchez a man was in the house. L.S. appeared scared and kept saying someone was in the house and had tried to touch her. L.S. said that the man had told herto be quiet, he wasjustgoing see something, and it was not going to hurt. It took Ms. Sanchez and Mr. Esparza between 5


### 2No. 31719-6-III State v. Hoefler
and 10 minutes to confirmthe man had left the house and to call the police. When Mr. Hoenerreturned to the truck, he looked upset and told Ms. Dilkey that "a little girl
... 'woke up'" and that'" the police were on their way.'" Report of Proceedings (RP) at 104. According to Ms. Dilkey, Mr. Hoeflermoved the truck and started wiping downthe interiortoremove his fingerprints. Mr. Hoefler then fled. SheriffsDeputy George Rapp received a telephone call about 2:19 a.m. and proceededtowardthe location. Approximately 4.7 miles away from the victim's house, Deputy Rapp observed a man on foot matching the description ofthe suspect. Theman appeared tohave been running. Deputy Rapp stopped the person at 2:27 a.m. and identified him as Mr. Gunter. Atmost, 10 minutes hadpassed between L.S.'s screams and her aunt calling police, and another 8 minutes hadpassed between her 2: 19 a.m. call and Deputy Rapp's 2:27 a.m. stopping ofMr. Gunter. The fact that Mr. Gunter was on foot and 4.7 miles away from the victim's house made it unlikely or impossible that he was the same intruder atthe victim's house 18 minutes earlier. Several hours later, police found Mr. Hoefler. He had been hiding in a canal and
was wearing women's clothing and L.S.'s skirt. Officer Gordon Thomasson arrested Mr. Hoefler and took him to the Sanchez house for a showup. L.S. did notrecognize Mr.
3No. 31719-6-III State v. Hoefler Hoefler, but she did notice thathe was wearingher skirt. Following the showup, Officer Thomasson directed Mr. Hoefler out ofthe patrol car. Based on the small tight skirt Mr. Hoeflerwas wearing, a bulgeunderthe skirt, and the manner in which he moved, Officer Thomassonbelieved Mr. Hoefler had an erection. The State charged Mr. Hoeflerwith residential burglary and attempted rape ofa child in the first degree. As to the attempted rape charge, the informationprovided that Mr. Hoefler "with intent to commit the crime ofRape ofa Child inthe FirstDegree, committed an act, to wit: pushedL.S. (D.O.B.: 03/2012001) down on a co[u]ch andpulled down herunderwear, which was a substantial step toward that crime." Clerk'sPapers (CP) at 128-29. On the first day oftrial, Mr. Hoefler entered a guiltypleato the residential burglary charge. Defense counsel explained to the court, "My client's never from the inception ofthis case said thathewasn't guilty ofresidential burglary. It's the sex charge that he's contested all along." RP at 11. Attrial, L.S.'s aunt, Ms. Sanchez, described the living arrangements in herhome. She identifiedherhousemates as including hertwoyoungboys, F.S. (age 7) and LS. (age 5); her boyfriend, Mr. Esparza; and her sister. In addition shetestified that L.S., her 11­ year-old niece, had lived with the family for several years. She testified aboutbeing
4No. 31719-6-III State v. Hoefler
awakened by her niece's andher children's screams, fearing that the intruderwas still in the house, searching for the intruder, and then callingthepolice. Ms. Sancheztestified that a few hours after calling the police, and while driving to
a nearby business to warn employees about a possible fugitive in the area, she saw Mr. Hoeflerhiding in a canal. She armed herselfwith a stick and called 911 to reporthim. As Mr. Hoefler exited the canal, Ms. Sanchez noticedthat he was wearing one ofher sister's tops and one ofL.S.'s skirts. DetectiveJacinto "Jason"Nuneztestified thathe spoke with Mr. Hoefler afterhis arrest at about 5:15 a.m. He observedthat Mr. Hoeflerwas wearing a skirt andwas covered in dirt. Initially, Mr. Hoefler did not want to talkto the detective. However, as the detective drove Mr. Hoefler to the showup, Mr. Hoeflervolunteered that no one else
was involved in the burglary andthat he did not want anyone else to get in trouble. During the showup, neitherL.S. nor F.S. was able to identifY 

### Mr. Hoefler as the perpetrator. Detective Nunez testified that after the showup, Mr. Hoeflerrequested an interview. The detective advised Mr. Hoeflerofhis Miranda l rights. Mr. Hoeflertold the detective that his pickup truck ran out ofoil while driving with Ms. Dilkey and Mr.

1Miranda v. Arizona, 384 U.S. 436,86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). 5No. 31719-6-III State 

### v. Hoefler
Gunter. He told the detective that he walked across the street to a business to look for oil. Next to the business, Mr. Hoefler saw the Sanchezresidence with several carsparked around it. Mr. Hoefler thoughthemight find oil there. According to Mr. Hoefler, as he knocked on the door ofthe residence, the door opened, and he entered the residence with the intent to take things he could sell. The detective testified: [Mr. Hoefler] said he entered a room. That he turned the light on, and it surprised him that there was three kids in a bed, and
... initially he said the girl woke up becauseheturned the light on. Then he said that he was in a-somewhere else whenthe girl woke up and that the little girl approached him and that he was tellingherto go away. Go back to sleep. And that she kept coming at him. So, then he told herto go to the couch and to be quiet, and he said the little girl kept wanting to come toward him, and then she became hysterical and
... startedto scream. RP at 153. Mr. Hoefler denied touching L.S. When the detective asked him why L.S. screamed, Mr. Hoefler attributed it to a communication problem. He said he ordered L.S. to sit on the couch, but L.S. kept coming toward him. Mr.Hoefler also told the detective that Mr. Gunter and Ms. Dilkey stayed at thepickup and did not enter the house with him. According to Detective Nunez, Mr. Hoefler denied trying to rape L.S. but stated, "'IfI had wantedto have I could have done it.'" RP at 155. L.S. testified that she was sleeping in hercousins' room when "the guy grabbed


### 6No. 31719-6-III State v. Hoefler [her)" and carried herto the couch in the living room. RP at 381, 383-84. She stated that, at first, shethoughtMr. Esparza hadpicked her up and moved hertothe couch, but she realized it was notMr. Esparza when she heardthe intruder's voice. According to L.S., the male stood in front ofher, put a bag in her mouth, and removedher shorts. L.S. removedthe bag from her mouth, yelled, andran to her aunt's bedroom door. L.S. was able to identifY the attacker as a white male, but it was dark and she did not get a good look athis face. L.S. was not able to identifY Mr. Hoefler at the showup. During crossexamination, L.S. recalled previously identifYing Mr. Gunter from a showup as the person who enteredthe house. Seven-year-old F.S. testifiedthatL.S.'s screams woke him up and thathe saw the "back of[the intruder's] head." RP at 404. He described the person as baldwith tattoos
on his arm. F.S. saw the intruderrun out ofthe house, and he startedto scream. At a showup, F.S. identified Mr. Gunter as the intruder. During cross-examination, defense counsel showed F.S. a photograph ofMr. Gunter. F.S. identified Mr. Gunter as the man whohad entered the house based on his baldness and tattoos. He didnot identifY Mr. Hoefler as the intruder when shown a photograph ofMr. Hoefler. Duringtrial, defense counsel objected to OfficerThomassontestifYing that Mr. Hoeflerhad an erection afterthe showup, arguing thatthe opinion was "pure conjecture."
7No. 31719-6-III State v. Hoefler
RP at 270. The prosecuting attorney argued that the opinion was admissible as a lay opinion because "thewayan erection looks is within the commonknowledge ofany man and woman." RP at 273. The court agreed, finding, "This is similarto giving an opinion regarding speed, but it requires foundation testimony that the personhas sufficient experience to be able tojudge the speed ofthe vehicle, and ifwe have similar foundational testimony here,
...whether the defendant did or did not have an erection at that time, I think irs] relevant and shouldbe presented to thejury." RP at 274-75. The prosecutor then proceededto lay a foundation for OfficerThomasson's opinion testimony. OfficerThomasson testified that he was familiar with male anatomy and the appearance ofan erection under clothing, and described the skirt worn by Mr. Hoefler as very short and tight. He testified that he saw a bulge in the skirt as Mr. Hoeflerwas taken from the police car. The prosecutorquestioned OfficerThomasson as follows: Q. [ProsecutingAttorney] Is there any way his hands orlegs or knees or anything couldhave caused this bulge? A. [OfficerThomasson] No. Not [in] my opinion. There was nothing else that could explain that. Q. [Prosecuting Attorney] In your opinion, then, what were you looking at there? A. [OfficerThomasson] An erection. RP at 279. During cross-examination, OfficerThomasson admittedthat he did not lift the
8No. 31719-6-111 

### State v. 

### Hoefler
skirt or examine Mr. Hoefler to confirm that he had an erection. Thejury found Mr. Hoefler guilty ofattempted first degree rape ofa child. The court imposed a sentence oflife without the possibility ofparole under the Persistent OffenderAccountability Act ofthe Sentencing Reform Act of 1981, chapter 9.94A.RCW. ANALYSIS 

### 1. Whether sufficientevidence supportsMr. Hoefler's convictionfor attemptedrape of a child in thefirst degree Mr. Hoeflerpresents two arguments contending that insufficient evidence supports his conviction for attempted rape ofa child in the first degree. First, he argues that the evidence is insufficientbecause the State failed to prove the acts alleged in the information, specifically, thatMr. Hoeflerpulled down L.S.'s underwear and pushed her onto a couch. Second, he contends that the State failed to prove that L.S. was not married to Mr. Hoefler. Both arguments fail. Evidence is sufficient if, when viewed in the light most favorable to the State, any reasonable trier offact could find guiltbeyond a reasonable doubt. 

### State v. 

### Green, 94 Wn.2d 216,221-22,616 P.2d 628 (1980). When a criminal defendant challenges the sufficiency ofthe evidence, he admits the truth ofthe State's evidence and all reasonable inferences therefrom are drawn in favor ofthe State. 

### State v. 

### Goodman, 150 Wn.2d 774, 781,83 P.3d 410 (2004). 9No. 31719-6-111 State 

### v. Hoefler
Toprove attemptedrape ofa child in the first degree, the State must establish that with intent to have sexual intercourse, the defendant took a substantial step toward having sexual intercourse with another who was less than 12 years old and not married to the defendant and the defendant was at least 24 months older than the victim. RCW 9A.44.073(1); RCW 9A.28.020(1); State v. Chhom, 128 Wn.2d 739, 743, 911 P.2d 1014 (1996). The intent required for attempted rape ofachild is the intent to have sexual intercourse with a child. State v. Johnson, 173 Wn.2d 895,907,270P.3d 591 (2012). Mere preparation to commit a crime is not an attempt, but conduct that is strongly corroborative ofthe actor's criminal purpose may constitute a substantial step. State v. Workman, 90 Wn.2d 443, 449-52, 584 P.2d 382 (1978). Criminal intent may be inferred from conduct, and circumstantial evidence is as reliable as direct evidence. State v. Varga, 151 Wn.2d 179,201,86P.3d 139 (2004). Thepurpose ofthe information is to give the defendant sufficientnotice to prepare
a defense. State v. Benitez, 175 Wn. App. 116, 124-25,302 P.3d 877 (2013). The Sixth Amendmentprovides, "In all criminal prosecutions, the accused shall enjoythe right to

...be informed ofthe nature and cause ofthe accusation. H U.S. CONST. amend.VI
. Article I, section 22 ofthe Washington Constitution provides that "[i]n criminal prosecutions the accused shall have the right to ... demand the nature and cause ofthe
10No, 31719-6-III State v, Hoefler
accusation against him, [and] to have a copy thereof," A charging document is sufficient ifit includes all the essential elements ofthe crime. State 

### v. Kjorsvik, 117 Wn.2d 93, 101-02, 812 P,2d 86 (1991), The essential elements ofa crime depend on the criminal statute, State 

### v. Eaton, 164 Wn,2d 461,468, 191 P.3d 1270 (2008), 

### It is well settled that when the State provides additional details in the informationbeyond the statutory elements, those details are regarded as mere surplusage, State v. Tvedt, 153 Wn,2d 705, 718, 107 P.3d 728 (2005), In Tvedt, the Washington Supreme Court held that "where unnecessary language is included in an information, the surplus language is not an element ofthe crime that must be provedunless it is repeated in thejuryinstructions." 

### ld. State v. Miller, 71 Wn,2d 143,426P.2d 986 (1967) illustrates this principle, In that case, the State charged the defendant with assault with a deadly weapon and specifically alleged that the deadly weapon was a '".38 calibrepistoL'" 

### ld. at 144 n,2, On appeal, the defendant argued that the State failed to provehis conviction because it did not prove that the pistol was a .38 caliberrevolver as alleged in the information, 

### ld. at 145, The court rejected the argument, holding, "The description ofthe gun in the information as a .38 caliberrevolver is surplusage, and the caliber ofthe gun does not need to be established," 

### ld. at 146, The courtreasoned that the type ofgun was a surplus fact, not an essential element ofthe crime that hadto be proved, and that all the State was
11

### No. 31719-6-II1 State v, Hoefler 

### required to prove was that the defendant had a gun. 

### Id. Similarly here, the State was not required to prove the specific means of committing the crime alleged in the information. The information stated all the essential statutory elements ofattempted rape ofa child in the first degree. The specific facts provided in the information were surplusage and notrepeated in thejuryinstructions. Thejurywas instructed that to convict Mr. Hoefler ofattempted rape ofa child in the first degree, the State had to prove that he took a substantial step toward the commission of that act and acted with the intentto rape L.S. And instruction 9 stated, "Aperson commits the crime ofRape ofa Child in the First Degree when the person has sexual intercourse with a child who is less than twelve years old, who is not married to the person, and who is at least twenty-four months younger than the person." CP at 63. The Stateproved the statutory elements outlined in thejuryinstructions. Whether Mr. Hoeflerpushed L.S. onto the couch orwhetherhe carried hermakes no difference. Whether Mr. Hoeflerremoved herunderwear orwhetherhe removed her shorts similarly makes no difference. As the State notes, "[T]he distinction drawn between the testimony and such details is one ofdegree, not ofdirect opposition." Br. ofResp'tat 14. L.S. testified that Mr. Hoeflertookher from the room where she was sleeping, carriedher to a couch, placed abag in hermouth, and removed her shorts. Viewingthe inferences from
12No. 31719-6-111 State v. Hoefler
these facts in the State's favor, sufficient evidence supports the conviction. See, e.g., State v. Jackson, 62 Wn. App. 53, 55-58,813 P.2d 156 (1991) (sufficient evidence of substantial step to support conviction for attempted rape where defendant convinced victim to enter a room, followed her into room, and then approached and ordered herto 

### lift her skirt). Mr. Hoefler also argues that the State failed to prove the nonmarriage element because it failed to ask L.S. whether she was married to Mr. Hoefler. However, during oral argument, defense counsel conceded that sufficient circumstantial evidence exists on this element. We agree. The State canprove the nonmarriage ofa sexual offender and the victim, like other elements ofthe crime, by circumstantial evidence. State v. Rhoads, 101 Wn.2d 529, 532, 681 P.2d 841 (1984); State 

### v. Bailey, 52 Wn. App. 42, 50-51, 757 P.2d 541 (1988), ajJ'd, 114 Wn.2d 340, 787 P.2d 1378 (1990). InBailey, the defendant challenged the sufficiency ofthe evidence wherethe State presented no direct evidence thathe was not married to the victim. Bailey, 52 Wn. App. at 50-51. Circumstantial evidence presented at trial included testimony by the three-yearold victim and the victim's motherthat the defendanthad lived with the family for a short time and had been the victim's babysitter on several occasions. 

### Id at 51. Division Two ofthis courtheld that this evidence was sufficient for ajury to conclude that the victim
13No. 31719-6-II1 State v. Hoefler

was not married to the defendant, noting that "[a] conviction may be based wholly on circumstantial evidence even ifthe evidence is not inconsistent with the hypothesis of innocence." Id. Similarly, Division One held that sufficient evidence supported the element of nonmarriage where one victim was in ninth grade, had known the defendant for one month, had a boyfriend, and had never stayed at the defendant's home. State v. Shuck, 34 Wn. App. 456,458,661 P.2d 1020 (1983). Andthe Washington Supreme Court affirmed
a conviction where the State supported the nonmarriage element with evidence that the victim in one case did not know the defendant and that the victim in another case "was under the age offourteen years, ... was living at home with her father and mother, [bore] her maiden name[, and]
... was a mere school girl, and there [was] nothing in the record to indicate that she was married." State v. May, 59 Wash. 414, 415, 109 P. 1026 (1910);
seeRhoads, 101 Wn.2d at 531-32 (testimony of"several witnesses" that the victim did not know the defendant constituted "sufficient evidence ofnonmarriage"). Here, both L.S. and her aunt testified that L.S. was 11 years old. L.S. testified that the household she lived in consisted ofher aunt anduncle, herthree cousins, and her uncle's mother. She did not mention a husband orany other member ofthe household. Furthermore, her inability to identifY Mr. Hoefler at the showup is consistent withnot
14No. 31719-6-111 

### State 

### v. Hoefler being married to him. Nothing in the record indicates that Mr. Hoefler and L.S. were married. Thus, although there is no direct evidencethat L.S. and Mr. Hoeflerwere not married at the time ofthe incident, sufficient circumstantial evidence supports a finding ofnonmarriage. 

### 2. Whether the trial court erredin allowing apolice officer to offer lay opinion testimony Mr. Hoeflernext contends that the trial court erred in allowing OfficerThomasson to testify to his opinion that Mr. Hoeflerhad an erection after the showup. He argues this testimony violated ER 602 because the officer did not have personal knowledge ofthe matter. He maintains that in the absence ofevidence that OfficerThomasson actually examined Mr. Hoefler, the officer's opinion was speCUlative and, therefore, also in violation ofER701. UnderER602, "[a] witness may not testify to a matter unless evidence is introduced sufficient to support a finding thatthe witness has personal knowledge ofthe matter." Evidence to prove personal knowledge may, but need not, consist ofthe witness's own testimony. ER602. The decision whether to admit a witness's testimony is an evidentiary matter addressed to the sound discretion ofthe trial court. 

### State v. 

### Atsbeha, 142 Wn.2d 904, 913-14,16 P.3d 626 (2001). "[T]estimony should be excluded only if, as a matter oflaw, 15

### No. 31719-6-III 

### State v. 

### Hoefler

no trier offact could reasonably find that the witness had firsthand knowledge." 

### State v. 

### Vaughn, 101 Wn.2d 604, 611-12, 682 P.2d 878 (1984). 

### It is the province ofthejuryto detennine whatweight shouldbe given to the testimony. 

### State v. 

### Linares, 98 Wn. App. 397,403,989 P.2d 591 (1999). Generally, "[e]vidence is not improper when the testimony is not a direct comment onthe defendant's guilt, is helpful to thejury, and based on inferences from the evidence." 

### State v. 

### Olmedo, 112 Wn. App. 525,531,49 P.3d 960 (2002). Lay witnesses may testifY to opinions or inferences that are "(a) rationally based on theperception ofthe witness, (b) helpful to a clear understanding ofthe witness' testimony orthe detennination ofa fact in issue, and (c) not based on scientific, technical,
or other specializedknowledge within the scope ofrule 702." ER 

### 701. The rulepennits the witness to resort to inferences and opinions when such testimony will be helpful to the jury. 

### Ashleyv. Hall, 138 Wn.2d 151,156,978 P.2d 1055 (1999). For example, a lay witness may draw on his orher own observations to express an opinion on another person's intoxication. 

### City a/Seattle v. 

### Heatley, 70 Wn. App. 573, 580,854P.2d 658 (1993). In 

### Heatley, the court reasoned that "the effects ofalcohol 'are commonly known and all persons can be presumedto draw reasonable inferences therefrom.'" 

### Id. (quoting 

### State v. 

### Smissaert, 41 Wn. App. 813,815,706 P.2d 647
16No. 31719-6-III State 

### v. Hoefler (1985». Laywitnesses have also been allowedto give their opinions regardingthe speed ofa vehicle. See, e.g., Clevenger v. Fonesca, 55 Wn.2d 25,345 P.2d 1098 (1959) over ruledinparton othergrounds byDanley v. Cooper, 62 Wn.2d 179, 381 P.2d 747 (1963). Mr. Hoefler argues that OfficerThomasson's observations were not extensive enough to support his opinion. Butthis alleged shortcoming goes to the weight ofthe evidence, not its admissibility. Karl B. Tegland notes: In many situations it maybe questionable whetherthe witness's opportunity to observe the events in question was sufficientto satisfY the requirement.
... In situations like this, where reasonable persons could differ on whetherthe witness had sufficient opportunity to observe, the testimony should normally be admitted, allowing thejurorsthemselves tojudgethe weight ofthe evidence. 5AKARLB. TEGLAND, WASHINGTON PRACTICE: EVIDENCELAWAND PRACTICE § 602.2, at 340 (5th ed. 2007). Here, OfficerThomasson's testimony was based on his direct and specific observations. He testified thatMr. Hoeflerwore L.S. 's skirt, which was short andtight
on him. He observed the way Mr. Hoeflermoved andthe apparentbulge underthe skirt. Based on his firsthand observations, OfficerThomasson's testimony thatMr. Hoefler had
an erection was a permissible inference from the evidence. In the end, it was uptothe juryto evaluate what weight shouldbe given tothe officer's testimony.
17

### No. 31719-6-III 

### State v. Hoefler
3. Whether theprosecutor engagedin misconductduring closingarguments Mr. Hoefler argues thatthe prosecutor engaged in misconduct by referencing facts not in evidence and appealing to the passions and prejudice ofthejury. To prevail on a claim ofprosecutorial misconduct, the defendant must show the impropriety ofthe remark and the prejudicial effect. 

### State v. Brown, 132 Wn.2d 529,561,940 P.2d 546 (1997). Making closing arguments that are unsupported by the admitted evidence is improper. 

### In re Pers. Restraintof Yates, 177 Wn.2d 1,58,296P.3d 872 (2013). Prosecutors should not use arguments calculatedto inflame the passions or prejudices of thejury. 

### In re Pers. Restraint ofGlasmann, 175 Wn.2d 696, 704,286P.3d 673 (2012). Improper comments are considered in the context ofthe entirety ofthe argument, the issues in the case, the evidence, and the court's instructions. 

### State v. Russell, 125 Wn.2d 24,85-86,882 P.2d 747 (1994). In closing argument, the prosecutor is afforded wide latitude in drawing and expressingreasonable inferences from the evidence. 

### State V. 

### Hoffman, 116 Wn.2d 51, 94-95,804 P.2d 577 (1991). To demonstrate prejudice, the defendant must show a "substantial likelihood" that the misconduct affected the trial's outcome. 

### Brown, 132 Wn.2d at 561. However, ifthe defense fails to properly object and request a curative instruction, the issue ofmisconduct is waived unless the commentwas so flagrant or ill 

### intentionedthat an instruction could
18

### No. 31719-6-111 State 

### v. Hoefler



### not have cured the prejudice. State 

### v. Charlton, 

### 90 Wn.2d 657,661,585 P.2d 142 (1978). Here, Mr. Hoefler did not objectto the prosecutor's closing argument. Thus, he must show that the remarks at issue were so flagrant and ill intentioned that an instruction could not have cured the prejudice. Mr. Hoefler first argues that itwas improper for the prosecutor to inform thejury ofhis guilty plea to residential burglary because this "invitedthejuryto draw an inference ofguilt from the unadmitted evidence." Br. of Appellant at 16. He identifies the following statements as improperreferences to unadmitted evidence: Let's look at the evidence we went over .... The defendant admits to the burglary, okay? We're not on trial today for burglary. The defendant in his statement to Detective Nunez and Deputy Conner said very clearly, "I 

### burglarized that house."
· .. Thatburglary is irrevocably intertwined with thatrape-withthat attemptedrape. Thosetwo things connect together, and there is no doubt that the personthat committed one committed the other.

· ..We also see that this burglary includes numerous items of women's and little girl's clothing.

· .. So, the burglary itselfvery much is consistent with the act of attempted rape, and as we see what was stolen from the house and whatwas done to those items maybe begin to kind ofunfold and unveil this motive behind what [L.S.] said happened to her that night. RP 

### at 484-85.All these circumstantial pieces ofevidence really give you insight into whatwas going on inthe mind ofthe defendant. Because keep in mind 19

### No. 31719-6-III State v. Hoefler


### the defendant is not gonna confess to any more than he has to when he makes his statements. He's not gonna confess to arape. He's gonna confess to the burglary because he has all the items on him. He has to, but he's not gonnatell you what's going on in his head. RP at 491-92.You never heard any testimony about [clothing] evidence leading anywhere else. It's not going north or south ofGlade Road right there. It's not leading toward Mr. Gunter. It's not leading towards Ms. Dilkey. It's leading squarely towards the defendant. There's only one reasonable conclusion in this case. RP at 498. It

### is improper for a prosecutorto present evidence that has not been admitted at trial. State v. Pete, 

### 152 Wn.2d 546, 553-55, 98 P.3d 803 (2004); Glasmann, 

### 175 Wn.2d at 704-05. The "long-standingrule" is that'" consideration ofany material by ajurynot properly admitted as evidence vitiates a verdict when there is a reasonable ground to believe that the defendant may have beenprejudiced.'" Pete, 

### 152 Wn.2d at 555 n.4 (emphasis omitted) (quoting State v. Rinkes, 

### 70 Wn.2d 854, 862,425 P.2d 658 (1967)). However, contrary to Mr. Hoefler's claim, the statements at issue here were based
on evidence that had beenpreviously testified to by witnesses at trial. DetectiveNunez and Deputy Marcus Conner both testified that Mr. Hoefler admitted to burglarizingthe Sanchezhousehold. In fact, Mr. Hoefler's defense rested in part on his admission that he burglarizedthe house but that he was not the person who attempted torape L.S. 20No. 31719-6-II1 State v. Hoefler Ultimately, this case rested on whetherthe State could prove that Mr. Hoefler, not Mr. Gunter, was the man who entered the home and attempted the rape. Contrary to Mr. Hoefler's assertion, the State did not use evidence ofthe burglary as a priorbad act or crime ofdishonesty against Mr. Hoefler; rather, it used the evidence to establish that Mr. Hoefler entered Ms. Sanchez'shome on the morning in question, to establish the element ofintent by connecting the items ofclothing taken from the house and Mr. Hoefler's intent with L.S., and to rebut the defense's theory that someone otherthan Mr. Hoefler
was guilty ofthe attempted rape. Mr. Hoefler also alleges that the prosecutor committed misconduct by focusing on the screaming and crying ofthe children rather than the evidence ofattempted rape ofa child. He argues that the remarks appealed to thepassion and prejudice ofthejuryby "encourag[ing] thejuryto find Mr. Hoefler guilty because the children were terrorized by someone." Br. ofAppellant at 19. This argument fails. During closing, the prosecutor argued: We see the child, we see the testimony, we see the aftermath. We heard Vieny and Raphael describe that there was terror in these children, this screaming and yelling. The way a child would react in those circumstances. We sawthe tears in [L.S.]'s eyes when she said whatthat man tried to do to her. RP at 482-83. 21

### No. 31719-6-III 

### State v. 

### Hoefler
A prosecutor has a duty to seek verdicts free from appeals to passion and prejudice. 

### State v. 

### Belgarde, 110 Wn.2d 504,507,755 P.2d 174 (1988). However, "[aJrguments which may evoke an emotional response are appropriate ifthe prosecutor restricts his argument to the circumstances ofthe crime." 

### State v. 

### Brett, 126 Wn.2d 136, 214,892 P.2d 29 (1995). Theprosecutormay properly comment on the evidence presented at trial. 

### State v. 

### Fleming, 83 Wn. App. 209, 216 n.3, 921 P.2d 1076 (1996). The evidence at trial established that L.S. and F.S. were crying and upset when they saw the intruder 

### in the house. Ms. Sanchez testified that the crying and screaming ofthe children awakened her. F.S. testified that L.S.'s screaming awakened him. And Mr. Hoefler himselftold DetectiveNunez that L.S. began screamingwhen she saw him. The prosecutor's argument was based on this evidence and was not overemphasized. His argument did not cross the line into passion and prejudice. 

### 4. Whether defense counselwas ineffective We review ineffective assistance ofcounsel claims de novo. 

### State v. 

### Binh Thach, 126 Wn. App. 297, 319,106P.3d 782 (2005). A criminal defendant has the right to effective assistanceby his or her counsel. 

### State v. 

### Grier, 171 Wn.2d 17, 32, 246 P.3d 1260 (2011). We begin with "astrong presumption that counsel'sperformancewas reasonable." 

### State v. 

### Kyllo, 166 Wn.2d 856, 862, 215 P.3d 177 (2009). To overcomethis
22

### No. 3l7l9-6-II1 State v. Hoefler 

### presumption, the defendant must show that counsel performed deficiently and that this deficient performanceprejudiced him orher. Grier, 

### 171 Wn.2d at 32-33. To show deficientperformance, the defendant must show the absence ofany legitimate strategic or tactical reason supporting defense counsel's actions. Id. 

### at 33. IfMr. Hoefler fails to establish eitherprong ofthis test, our inquiry ends and we need not considerthe other prong. State v. Hendrickson, 

### 129 Wn.2d 61, 78, 917 P.2d 563 (1996). Mr. Hoefler argues that defense counsel was deficient for failing to object and
move for a mistrial whenthe prosecutor mentioned Mr. Hoefler's guilty plea to residential burglary during closing argument. He also argues that defense counsel was deficient for drawing attention to the guilty plea by emphasizing during the defense's closing argument that Mr. Hoeflerhad admitted to the residential burglary. As previously discussed in the prosecutorial misconduct section above, the prosecutor's references to Mr. Hoefler's admission ofguilt relating to the residential burglary were not improper. Therefore, defense counsel cannot be deemed deficient for failing to object to the remarks. Moreover, defense counsel's statements during closing argument evidence a tactical decision to shore up Mr. Hoefler's defense and impugn Mr. Gunter's credibility. During closing argument, defense counsel argued:
23No.31719-6-III State v. Hoefler
Mr. Gunter wants you to believe that he never went in the house. Tahti said they did. They both headed in that direction
.... I don'tknow. We don'tknow. There was no evidence presented whetherthey went in together, whether they went in separately, whether they both knew one another is there or not. That we do not know. The children only see one individual, and they see him (indicating [Mr. Gunter

### D. Mr. Hoefler admits to the residential burglary. He admits to it. He's admittedto it. Taken responsibility. RP at 504 (emphasis added). Mr. Hoefler claims this italicized portion ofclosing argument was prejudicial because "it invited thejury to consider evidence that [he] was guilty ofa crime that was not before thejurybut that was committed at the same time as the crime at issue." Br. of Appellant at 22. His argument ignores defense counsel's trial strategy. By telling thejury that Mr. Hoeflerhad "[t]akenresponsibility" for the burglary, defense counsel hoped to show that Mr. Hoeflerhad accepted responsibility for his limited part ofthe crime but that Mr. Gunter, not Mr. Hoefler, was responsible for the attempted rape. During closing argument, defense counsel emphasized, "Thereason to doubt this
case is because you have two individuals, the only two who saw who was in that house that day, tell you that this [Mr. Gunter] was the man that was in that house that day." RP at 502. Because a legitimate tactical reason supported defense counsel's discussion of his client's guilty pleato residential burglary, Mr. Hoefler's ineffective assistance of counsel argument fails. 24No. 31719-6-111 

### State v. Hoefler
STATEMENT OF ADDITIONAL GROUNDS FORREVIEW (SAG) Mr. Hoefler filed a SAG raising five additional grounds for review. In grounds 1, 2, and 5, he argues that the evidencepoints to Mr. Gunter as the perpetrator ofthe attempted rape. In support ofhis argument, Mr. Hoeflerpoints to the evidence thatF.S. and L.S. identified Mr. Gunter as the intruder in the house and the fact that Mr. Gunter
was found running from the Sanchezhouse. Without explicitly stating so, Mr. Hoefler is challengingthe sufficiency ofthe evidence. However, the weight, credibility, and persuasiveness ofthe evidence are matters for thetrier offact. 

### State v. Walton, 64 Wn. App. 410, 415-16,824 P.2d 533 (1992), 

### abrogatedon othergrounds byIn re Pers. RestraintojCross, 180 Wn.2d 664, 327 P.3d 660 (2014). Thejuryheard the children identifY Mr. Gunter as the person who entered the house. 

### It was free to decide the weight to be given theirtestimony. Mr. Hoefler also contends that the court erred in "allow[ing] some photos to be admitted as evidence in the middle ofthe trial that were not givento the defense before trial." SAG at 2. He claims that "thephotos showed nothing, butthe new line of questioning that they allowed
...was damaging to my case." SAG at 2. Unfortunately, Mr. Hoeflerdoes not identifY the pages in therecord wherethis "damaging" questioning occurred or cite to authority to support his position. Without more, we are unable to
25No. 31719-6-111 State v. Hoefler
address the issue. An appellate court will not consider a defendant's/appellant's statement ofadditional grounds for review ifit does not inform the court ofthe nature and
occurrence ofalleged error. RAP 1O.1O(c). Finally, Mr. Hoefler argues that one ofthejurors was making "funny faces" during "the morning trial session." SAG at 3. He also contends that ajurorwas improperly allowed to stay on thejury despite hearing "feedback" from a microphone close to a sidebar conversation. SAG at 3. Again, Mr. Hoefler fails to cite to the record orpertinent authority. Accordingly, we are unable to consider the issue. Affirm. A majority ofthe panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.

WE CONCUR:
Brown, A.C.J.

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