### FILED MAR 12,2013 In the Office ofthe ClerkofCourt W A State Court ofAppeals, Division III IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, ) No. 29429-3-III ) Respondent, ) ) 

### v. ) ) UNPUBLISHED OPINION ROBERT RUSSELL TRAINOR, ) ) Appellant. ) KORSMO, C.J.

- Robert Trainor appeals his convictions for three counts ofchild rape and two counts ofchild molestation, arguing thathe was denied a fair trial due to ineffective assistance ofcounsel and prosecutorial misconduct. He also challenges several ofthe trial court's evidentiary rulings as well as the denial ofhis request for a
new trial. Finding no error, we affirm. BACKGROUND Jamie Lynn Sanders has four daughters, including C.M.S., A.N.S., andD.L.S.l She also has a stepdaughter, M.A.S. InJanuary 2010, Ms. Sanders found a suicide note in A.N.S's bedroom. The letter stated that Robert Trainor, who is Ms. Sanders'

1Ms. Sariders' fourth daughter is not involved in this case.No. 29429-3-III State v. Trainor stepfather, had started sexually abusing A.N.S. sometime in early 2006. Atthe time the letter was discovered, C.M.S. was 13, A.N.S was 12, D.L.S. was 10, and M.A.S. was 14. After discussing the note with A.N.S., Ms. Sanders sent a Facebook message to her 20-year old cousin, E.M.W., who lived in Spokane. In the message, Ms. Sanders told herthatA.N.S. was claiming to have been sexually molested by a close family member, and she asked E.M.W. ifanything like this had happened to her. E.M.W. called Ms. Sanders to tell her she was driving toMs. Sanders' home in the Tri-Cities. Within the next several hours, C.M.S., D.L.S., M.A.S., and E.M.W. all reported thatMr. Trainorhad sexually abused them. According to each ofthe girls, none ofthem discussed the alleged abuse with each otherbeforereporting it. Mr. Trainor was arrested the following day and interviewedby DetectiveMathew Clarke. The State charged Mr. Trainor with one count ofrape ofa child in the first degree, two counts ofrape ofa child in the second degree, one count ofchild molestation in the first degree, and one count ofchild molestation in the third degree. There was one count for each ofthe five girls. Each girltestified attriaL A.N.S. testified that Mr. Trainor started to molest her in 2006. She would give himback rubs and then he would place her hand onhis male privatepart. She testified that on multiple occasions Mr. Trainor digitally penetrated her, butthat she never told anyone because she did notthink anyone would believe her. She 

### 2No. 29429-3-II1 State v. Trainor
also testified that in August or September 2009 he digitally penetrated her and performed oral sex on her. Afterwards she told herbest friend, K.H., about the abuse. C.M.S. testified that Mr. Trainor began molesting her when she was 11 years old. He would have her give himbackrubs and he would rub her stomach and chest. She also testified that in November ofher seventh grade year Mr. Trainor touched her vagina. D.LS. testified that when she was seven years old, she was staying at

### Mr. Trainor's house and sleeping in his bed when Mr. Trainor touched her and digitally penetrated her. M.A.S. testified that in December 2009 

### Mr. Trainorrubbed her stomach in a way that made her uncomfortable and puthis hand on her breast underneath herbra. E.M.W. testified that

### Mr. Trainor began abusing her in 2002 whenhe digitally penetrated her. The abuse continued and escalated in 2006 with Mr. Trainorpenetrating her with hispenis. She testified that after she graduated from high school in 2008, she moved away and triedto avoid any further contactwith Mr. Trainor. Thejury on August 16, 2010, found Mr. Trainor guilty on all counts. On September 29, after denying Mr. Trainor's motion to arrestjudgment and grant a new trial, the court sentencedMr. Trainorto a total of280 months. Thejudgment and sentence ordered restitution in the amount of$539.99 to Crime Victims Compensation. Atthe time ofsentencing neithertheprosecutornorthe defense counsel knew whatthis 3No. 29429-3-III State v. Trainor
restitution amount pertained to, but after defense counsel requested a breakdown ofthe restitution charges they discovered that it was for a sexual assault exam. In July 2011, appellate counsel for Mr. Trainor contactedthe prosecutor's officeto inquire aboutthe sexual assault exam. Detective Clarke indicated thathe ordered a sexual assault exam for A.N.S., which occurred on February 2,2010. The exam report
was made available to the prosecutor on October4, 2011, and was promptly given to defense counsel. The report concluded thatthe findings for any abuse were negative, but noted that this finding does notprove or disprove thatthe alleged abuse occurred. Mr. Trainor timely appealed. ANALYSIS This appeal challenges the effectiveness oftrial counsel and also alleges the prosecutor engaged in misconduct. Mr. Trainor also argues thatthe trial court erred in several ofits evidentiary rulings and by denyinghis request for a new trial. Each is addressed in tum. 2 

### IneffectiveAssistance o/Counsel Mr. Trainor challenges his trial counsel's performance, alleging nine instances of ineffective assistance ofcounsel. Since Mr. Trainor fails to establish that actual prejudice

2Mr. Trainor also raises a cumulative error argument, but because we conclude there wereno errors, there is no basis for finding cumulative error. 4No. 29429-3-III State v. Trainor
resulted from any ofthese alleged failures, he has not established that trial counsel provided ineffective assistance. Ineffective assistance ofcounsel claims are adjudged underthe standards of Stricklandv. Washington, 466 U.S. 668,689-91, 104 S. Ct. 2052, 80 

### L. Ed. 2d 674 (1984). Thattest is whether ornot (1) counsel's performance failed to meet a standard of reasonableness, and (2) actual prejudice resulted from counsel's failures. Id. at 690-92. In evaluating ineffectiveness claims, courts must be highly deferential to counsel's decisions. A strategic ortactical decision is not a basis for finding error. 

### Id. at 689-91. Mr. Trainor first attacks trial counsel's failure to file a CrR4.7(e) motion requesting any information or documentation dealing with physical, medical, or mental examinations. erR4.7(e) allows the court to grant a defendant access to information beyond what the prosecutor is specifically obligated to disclose underthe discovery rules. State v. Norby, 122 Wn.2d 258, 266,858 P.2d 210 (1993). Mr. Trainorhas failed to show that trial-counsel's performancewas deficient for failing to file a CrR4.7(e) motion because the prosecutorwas already under a duty to disclose those materials under CrR 4.7(a)(iv). This claim is without merit.



### 5No. 29429-3-III State v. Trainor
Mr. Trainor also argues trial counsel was ineffective for failing to request a bill of particulars seeking more specificity with regards to the dates ofthe alleged abuse in the formal charges.3 A criminal defendant has "aconstitutional right to be informed ofthe nature and
cause ofthe accusation againsthim" to enable him to prepare a defense. State v. Bergeron, 105 Wn.2d 1,18,711 P.2d 1000 (1985) (citing U.S. CONST. amend. VI; CONST. art. I, 

### § 22 (amend. 10». The purpose ofabill ofparticulars is to "amplify or clarify particular matters essential to the defense." State v. Holt, 104 Wn.2d 315, 321, 704 P.2d 1189 (1985). No bill ofparticulars is required ifthe particulars are already in the charging document orifthe information called for has beenprovidedby the government in some other satisfactory form. State v. Noltie, 116 Wn.2d 831, 845, 809 P.2d 190 (1991). Whether ornotto grant a request for a bill ofparticulars is a matter leftto the discretion ofthe trial court. Id. at 844. Discretion is abused when it is exercised on untenable grounds or for untenable reasons. State ex rei. Carroll v. Junker, 79 Wn.2d 12,26,482 P.2d 775 (1971).

3 Additionally, Mr. Trainor argues that the long time frames in the charging document exposed him to doublejeopardy. However, Mr. Trainorwas protected from the threat ofdoublejeopardy because the evidence was sufficiently specific as to the act 

### 6No. 29429-3-II1 State v. Trainor 

### Mr. Trainor has not established that trial counsel was deficient for failing to request a bill ofparticulars orthatthe motion likely would have been granted. The information informed Mr. Trainor that he was being charged with three counts ofrape of

a child and two counts ofchild molestation, with each charge corresponding to one ofthe five girls. The information did not include the specific dates ofeach alleged offense because the girls could notrememberthe specific dates, but instead alleged that each count ofabuse occurred within a specified time frame. Itwas not necessary for the State to give the exact dates for each alleged offense. 

### State v. 

### Carver, 37 Wn. App. 122, 126, 678 P.2d 842 (1984). Mr. Trainorwas informed ofthe nature and cause ofthe accusations against him. Furthermore, the lack ofspecificity did notprejudice Mr. Trainor because an alibi defense would nothave been reasonable in these circumstances and therefore specific dates were not necessary to the defense. Itdoes not appear that there was any additional information to disclose in a bill ofparticulars. Mr. Trainor's third argument is thattrial counsel erred in failing to file a motion to
severthe counts. He claims that defense counsel should have movedto sever all the counts, orat least severthe count ofsecond degree rape ofE.M.W. from the othercounts.

charged for each girl within the charged time frames. 

### State v. 

### Newman, 63 Wn. App. 841,851,822P.2d 308 (1992). 7No. 29429-3-Ill State v. Trainor
Offenses that are permissiblyjoinedunder CrR4.3(a) may be severed if"the court determines that severance will promote a fair determination ofthe defendant's guilt or innocence ofeach offense." CrR4.4(b). The decision whetherto grant a motion to sever counts is within the trial court's discretion. State v. Bryant, 89 Wn. App. 857, 864,950 P.2d 1004 (1998). When determiningwhetherto grant a request to sever counts, a court considers (1) the strength ofevidence on each count, (2) the clarity ofthe defenses on each count, (3) the court's instructions to considereach charge separately, and (4) the admissibility ofthe evidence ofone charge in a separate trial ofthe othercharge. State v. Russell, 125 Wn.2d 24, 63, 882 P.2d 747 (1994). Toprevail on an ineffective assistance claim based on failure to move to sever counts, the defendant must show deficientperformance by counsel and demonstrate prejudice by showingboth that the motion would likely have been granted and a reasonable probabilitythatthe outcome ofthe proceeding would have been different had the motion been granted. State v. Sutherby, 165 Wn.2d 870, 884, 204 P.3d 916 (2009). Mr. Trainorhas failed to satisfY the Sutherby standard. The State's evidence was equally strong on each count and the defense to each count was general denial, so trying the counts together did not present a problem ofconflicting defenses. The court specifically instructed thejurythat ithadto decide each count separately and that the verdict on one count should not control the verdict on any othercount. It is also likely 8No. 29429-3-III State v. Trainor
that evidence ofthe abuse ofeach girl would have been cross admissible under ER 404(b) as evidence ofa common scheme orplan even ifthe counts were tried separately. Additionally, in denying Mr. Trainor's request for a new trial based on the failure to request severance, the trial court stated, "I didn'thear a matter requesting severance but had I heard it chances were extremely good I wouldn't have granted a severance should that motion have been made." Report ofProceedings (RP) (Sept. 29, 2010) at 3-4. This claim has no merit. Mr. Trainor's fourth claim ofineffective assistance alleges that trial counsel was deficient for failing to seek suppression ofhis statements to the police. When pursuing

an ineffective assistance argument on this basis, the defendant must establish that a motion to suppress likely would have been granted. State v. McFarland, 127 Wn.2d 322, 333-34,899P.2d 1251 (1995). Mr. Trainorcannot meet this standard. He fails to explain why any ofthe statements should have been suppressed, and does not show that it is likely thetrial courtwouldhave granted a motion to suppress. This claim has no merit. Mr. Trainor's fifth argument is that trial counsel erred in failing to objectto the testimony ofseveral ofthe State's witnesses: A.N.S., E.M.W., expert witness Carol Harting, and rebuttal witnesses K.H. and Kimberly Henle. Each is addressed in tum. To establish ineffective assistance ofcounsel based on defense counsel's failure to objectto testimony, the defendant must show (1) the absence ofa legitimate strategic or 9No. 29429-3-III State v. Trainor
tactical reason for not objecting, (2) thatthe trial court would have sustained the objection ifmade, and (3) the result ofthe trial would have differed ifthe evidence had notbeen admitted. 

### State v. 

### Saunders, 91 Wn. App. 575,578,958 P.2d 364 (1998). Mr. Trainor first claims that trial counsel should have objected to testimony by A.N.S. and E.M.W., who both testified about incidences ofabuse takingplace outsidethe chargedtime frames. ER404(b) prohibits the use ofevidence ofother crimes or acts to "prove the character ofa person in orderto show action in conformity therewith." However, evidence ofa defendant's prior sexual acts against the same victim is admissible to show the defendant's lustful disposition toward that victim. 

### State v. 

### Ray, 116 Wn.2d 531,547,806 P.2d 1220 (1991). Evidence ofprior sexual acts may include acts occurring both before and afterthe chargingperiod. 

### State v. 

### Russell, 171 Wn.2d 118,249P.3d 604 (2011). To admit evidence ofother acts or crimes under ER404(b), the trial court must (1) find thattheprior misconduct occurred by a preponderance ofthe evidence, (2) identify the purpose for which the evidence is sought to be introduced, (3) determine whether the evidence is relevantto prove an element ofthe crime charged, and (4) weigh the probative value ofthe evidence against its prejudicial effect. 

### State v. 

### Pirtle, 127 Wn.2d 628, 648-49, 904 P.2d 245 (1995).



### 10No. 29429-3-II1 State v. Trainor
The information charged Mr. Trainorwith second degree rape ofA.N.S. between May 30, 2009 and December 31,2009, and second degree rape ofE.M.W. between November 18,2001 andNovember 17,2003. A.N.S. testified that Mr. Trainorbegan touchingher inappropriately in 2006, and E.M.W. testified that Mr. Trainor abusedher during the charged time period, but that he also raped her in 2006 and continued to molest her on various occasions until she left town in 2008. The defense did not objectto this testimony. During closing arguments, the State explained to thejurythat although both girls testified to incidents outside the charging time frames, thejury could only find 

### Mr. Trainor guilty ifthey found him guilty ofthe alleged conduct and found that the alleged conduct occurred during the charged time frame. Generally, the decision ofwhen or whether to object is a classic example oftrial tactiCs, and the failure to object only constitutes deficientperformance in egregious circumstances. State v. Madison, 53 Wn. App. 754, 763, 770 P.2d 662 (1989). However, defense counsel may be deficient for failing to object to lustful disposition testimony. State v. Dawkins, 71 Wn. App. 902,863 P.2d 124 (1993). Even iftrial counsel's performance was deficient, Mr. Trainorhas not shown ineffective assistance because he has not established that the trial court would have likely sustained the objection to the testimony. Both A.N.S. and E.M.W. testified in specific detail about the abuse they suffered at the hands ofMr. Trainor, during and outside the 

### 11No. 29429-3-III State v. Trainor charged time periods. The State introduced this evidence to show that Mr. Trainor abused both girls on multiple occasions, and it was relevant to showthatMr. Trainor felt sexual desire for both A.N.S. and E.M.W. Considering the record as a whole, including the testimony ofall five girls, the prejudicial effect ofthe testimony did not outweigh its probative value. Mr. Trainor also alleges that defense counsel committed errorwhenhe conceded that Ms. Hartingwas qualified as an expertwitness and when he failed to object to her testimony regarding delayed reporting. A witness may qualify as an expert by knowledge, skill, experience, training, or education. ER702. The determination ofwhether a witness is qualified to testify as an expert is within the sound discretion ofthe trial court. 

### State v. 

### Nelson, 152 Wn. App. 755, 765,219 P.3d 100 (2009). Ms. Hartingtestified that she was a licensed mental health counselorwith 23 years ofexperience, had a master's degree in clinical psychology, worked as director ofthe Sexual Assault Center for four years, and that about halfofher clientele are survivors ofabuse. Given herexperience, education, and knowledge, Mr. Trainorhas not shown that defense counsel was deficient for failing to object to Ms. Harting as a witness. There was no basis to challenge her expertise. Trial counsel was also not deficient for failing to objectto Ms. Harting's testimony regarding delayed reporting. When the credibility ofthe victim has beenput in issue, an 12No. 29429-3-III State v. Trainor expert's opinionthat it is notuncommon for a sexual abuse victim to delay reporting the abuse is appropriate. State v. Holland, 77 Wn. App. 420, 427,891 P.2d 49 (1995). While cross-examining A.N.S., defense counsel indirectly raised the issue ofcredibility by asking A.N.S. whether somethinghappened that caused her to be angry with Mr. Trainor and report him, whether anyone helped her write her suicide letter or discussed the abuse with her before she reported it, and discussed whether she had ever lied about things in the past. The credibility ofthe five girls was put in issue, and itwas appropriate for Ms. Harting to express her opinion that it is not uncommon for sexual abuse victims to delay reporting abuse. Mr. Trainor next argues thattrial counsel erred in failing to object to the testimony ofrebuttal witnesses, K.H. and Kimberly Henle. He contends that the testimony constituted inadmissible hearsay, and that it was not properly offered as rebuttal testimony. Hearsay is any out-of-court statement offered to prove the truth ofthe matter asserted. ER 801(c). Generally, hearsay is not admissible. ER 802. However, a witness's prior consistent statement may be admissible as nonhearsay ifoffered to rebut

an express or implied charge againstthe declarant ofrecent fabrication orimproper motive. ER 801 (d)(1 )(ii). Ifoffered to rebut impeachment, the statements musthave been made priorto the events which gave rise to the inference offabrication. State 

### v. 13No. 29429-3-III State v. Trainor Stark, 48 Wn. App. 245, 249, 738 P.2d 684 (1987). A trial court's decision to admit evidence under one ofthe hearsay exceptions is discretionary. State v. Strauss, 119 Wn.2d 401,417,832P.2d 78 (1992). K.H. and Ms. Henlewereproperly called as rebuttal witnesses. Duringtrial, the defense suggested that A.N.S. falsely reported the abuse because she was angry at Mr. Trainor for reprimanding her about her grades and she was upset that he was spending less time with her. After the defense rested, the State called K.H. and Ms. Henle both who testified that A.N.S. told K.H. about the abuse as early as October 2009, before A.N.S. allegedly became angry with Mr. Trainor. Since Mr. Trainor's testimony implied that A.N.S. had improper motive and fabricated the charge ofabuse, the testimony was admissible under ER 801(d)(1 )(ii) as a prior consistent statement. Trial counsel was not deficient for failing to object and it is not likely thatthe trial court would have sustained
an objection. Mr. Trainor's sixth ineffective assistance argumentrelates to trial counsel's failure to include Joseph Lee on the witness list. At trial, E.M.W. testified that she tried to avoid 

### Mr. Trainor after moving out oftown in 2008. Mr. Trainor wanted Mr. Lee, his half brother, to testify that in Septemberof2008 he had lunch with E.M.W. who told him she hadbeen at Mr. Trainor's house andthat Mr. Leehad the impression that E.M.W. had spent the previous nightthere. However, Mr. Lee was left offofthe witness list and he 14No. 29429-3-II1 State v. Trainor

was present in the courtroom during most ofthe trial, including during E.M.W.'s testimony. The trial court did not allow Mr. Lee to testify. The decision whetherto call a witness is generally presumed to be a matteroftrial strategy ortactics but this presumption may be overcome by showing that the witness
was not presented because counsel failed to conduct appropriate investigations. State v. Thomas, 109 Wn.2d 222,230, 743 P.2d 816 (1987). Failing to conduct a reasonable investigation is considered especially egregious when the uncovered evidence is exculpatory. In re Pers. Restraintof Davis, 152 Wn.2d 647, 721, 101 PJd 1(2004). Although the failure to include Mr. Lee on the witness list may have been a deficient performance, Mr. Trainorhas not shown thathe was prejudicedby this error. Mr. Lee'stestimony would not have directly impeachedE.M.W.'s testimony that she tried to avoid Mr. Trainor after she moved away. It is not likely that Mr. Lee'stestimony would have affected E.M.W.'s credibility such thatthejurywould have found the rest of hertestimony suspect. This claim is without merit. Mr. Trainor's final ineffective assistance argument is that trial counsel erred by failing to seek a newtrial based on the newly discovered evidence that A.N.S. had undergone a sexual assault exam. Mr. Trainor acknowledges that trial counsel filed a motion for a new trial on the grounds that heprovided ineffective assistance ofcounsel,

15No. 29429·3·III State v. Trainor
buthe contends thattrial counsel should have amended the motion ormade an oral application for a new trial on the basis ofthe new evidence. The record shows that defense counsel did not find out aboutthe sexual assault

exam until the time ofsentencing, afterthe courthad denied the motion to arrest judgment or grant a new trial. Under CrR7.5(e), a motion for a new trial "shall be disposed ofbeforejudgment and sentence ororderdeferring sentence." Here, the court had already ruled on the motion and moved on to sentencingwhen defense counsel was alerted to the fact that a sexual assault exam may havebeen conducted onA.N.S. He could not amendhis motion for a new trial because the court had already disposed ofthat motion and moved onto sentencing. The claims ofineffective assistance ofcounsel are without merit. ProsecutorialMisconduct Mr. Trainor next alleges there were two instances ofprosecut oria

### I error: (1) a Brady4 violation, and (2) several impropercomments during closing arguments. Each is addressed in tum below.s

4 Bradyv. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). SMr. Trainor also alleges that the prosecutor committed misconduct by calling K.H. and Ms. Henle as rebuttal witnesses. As discussed already, K.H. and Ms. Henle wereproperly called under ER 801 (d)(1)(ii), and trial counsel did not object to this testimony. This argument is without merit. 16No. 29429-3-111 State v. Trainor
The appellant bears the burden ofdemonstrating prosecutorial misconduct on appeal. State v. Stenson, 132 Wn.2d 668, 718, 940 P.2d 1239 (1997). The appellant must establish that the conduct was both improper andprejudicial. 

### Id. Prejudice occurs where there is a substantial likelihood that the misconduct affected thejury's verdict. 

### Id. at 718­ 19. Reversal is notrequired where the alleged error could have been obviated by a curative instruction. State 

### v. Gentry, 125 Wn.2d 570, 596, 888 P.2d 1105 (1995). Moreover, the failure to object constitutes a waiver unless the remark was so flagrant and ill-intentioned that it evinced an enduring and resulting prejudice that could not have been neutralizedby an admonition to thejury. 

### Id. The first argument involves the sexual assault exam that A.N.S. underwent in February 2010. Mr. Trainor claims that the prosecutor committed a Brady violation and violated CrR4.7 when she failed to notify 

### Mr. Trainor ofthe sexual assault exam orto provide him a copy ofthe exam results. A Bradyviolation occurs when: (1) the evidence at issue is favorable to the accused, either because it is exculpatory or impeaching; (2) the evidence was suppressed by the State, either willfully or inadvertently; and (3) the evidence is material in the sense that ifit had been disclosed to the defense, there is a reasonable probability that the result ofthe proceeding would have been different. Strickler 

### v. Greene, 527 U.S. 263, 281-82, 119 S. Ct. 1936, 144 

### L. Ed. 2d 286 (1999). 17No. 29429-3-III State v. Trainor
Mr. Trainorhas failed to establish aBrady violation because the evidence is not exculpatory or impeaching, and there is not a reasonable probability thatthe result ofthe trial would have been different had the evidence been disclosed to the defense. Mr. Trainorhas also failed to establish a CrR4.7(a) violation. Although the prosecutor is obligated to disclose the results ofany physical exams within her possession orcontrol, the record shows that the prosecutor had no knowledge ofthe exam until the sentencing hearing. Sincethe prosecutorwas not in control orpossession ofthe examresults, there

was no CrR4.7(a) violation. Mr. Trainor also claims thatthe prosecutor made several impropercomments during closing argument. We address each ofthe challenged comments in turn. During closing arguments, alleged misconduct is considered in the context ofthe total argument, the evidence addressed therein,jury instructions, andthe issues ofthe

case. State v. Turner, 167 Wn. App. 871, 882, 275 P.3d 356 (2012). A prosecutor is allowed to draw and express reasonable inferences from the evidence produced attrial. State v. Hale, 26 Wn. App. 211, 216, 611 P.2d 1370 (1980). Mr. Trainor first takes exception to the prosecutor's comment asking the men on thejuryto think about the impropriety ofgrown men hanging out with teenage girls. The prosecutor stated: "Now, I want you all to think about something. Especially, you men. When was the last time you actively made a decision to hang out with a fourteen-year-old 18

### No. 29429-3-III State v. Trainor girl?" RP at 605. After defense counsel objected, the prosecutor continuedwith, "He is a forty-six year old single man. Itmakes zero sense. But it makes complete sense when you look at the evidence ofthis case. He was grooming her." RP at 606-07. Thetrial court issued a curative instruction telling thejuryto disregard any argument asking them to place themselves in theposition ofthe defendant. Theprosecutor made this commentin the context ofarguing that Mr. Trainor groomed the victims. Several ofthe girls testified that Mr. Trainor spenttime with them doing things like watching movies and taking trips, and that the inappropriate touching began with him asking themto give him back rubs orrubbing their stomachs. Ms. Hartingtestified thatthis type oftouching was typical touching associated with the concept ofgrooming. The prosecutor argued the grooming conceptby stating thatMr. Trainor spent all this time with the girls in order to groom them and that there was no other explanation for why he would choose to spend so much time with young female relatives. Given the context ofthe entire argument, the issues in the case, the evidence addressed in the argument, and the curative instruction given by the court, Mr. Trainor has not established that the prosecutor erred, let alone that this comment deprived him of
a fair trial.



### 19No. 29429-3-III State v. Trainor
Mr. Trainor also alleges thatthe prosecutor inappropriately offeredher own opinions about how an innocent person would react to the allegations and asked thejury to think about its emotions as opposed to how Mr. Trainor reacted.6 During closing argument, the prosecutor showed thejurypart ofthe taped police interview ofMr. Trainor. Theprosecutor first asked thejuryhow it thought it would react during the interview ifit was informed it was brought in for allegations ofrape ofa child. Defense counsel objected and a side bar followed, where defense counsel requested a mistrial. He also accusedthe prosecutor ofmaking facial gestures for the jury. The trial court advisedthe prosecutorto make it less personal and tone down the dramatics. Theprosecutorwent on to showpart ofthe interview, prefacing it by saying, "When you watch this interview, generally, think about how one would act when they have been advised about allegations ofRape ofa Child. How would one act? Would they talk about where they went to high school? Wouldthey talk about what name their dog is?
... Orwould they say, why the heck am I here? Who is making these allegations against me? I haven't raped anybody." RP at 612.

6 Mr. Trainor also claims that during the side bar to discuss this improper comment, theprosecutor made inappropriate facial gestures for thejury. However, the only evidence ofthis is defense counsel's statement that "she is making sure that thejury sees her looking a certain way," and the trial court's admonition tothe prosecutorto "tone it down a little bit, the dramatics." RP at 610-11. Mr. Trainorhas not satisfiedhis burden ofshowing the impropriety ofthe prosecutor's facial gestures or theirprejudicial effect. 

### 20No. 29429-3-111 State v. Trainor
Ajury may considerwhether conduct on the part ofan accusedperson is not likely to be the conduct ofapersonwho was conscious ofhis innocence ortends to show an indirect admission ofguilt. State v. McGhee, 57 Wn. App. 457, 461,788 P.2d 603 (1990). It is improper for a prosecutor to express a personal opinion about the credibility ofawitness during closing argument. State v. Reed, 102 Wn.2d 140, 145,684 P.2d 699 (1984). Testimony regarding a defendant's statements and demeanor is not opinion and therefore is admissible ifrelevant. State v. Day, 51 Wn. App. 544, 552, 754 P.2d 1021 (1988). At trial, the Stateplayed Mr. Trainor's entire police interview for thejury. The prosecutor could properly ask thejury to consider whether Mr. Trainor's conductwas the conduct ofa person who was conscious ofhis innocence. Thetrial court issued a curative instruction for thejury to ignore any argument made bythe prosecutorthat asked jury members toplacethemselves in the position ofMr. Trainor. Given the evidence addressed in this argument and the court's curative instruction, Mr. Trainor has not established thatthis comment constitutedprosecutorial misconduct. Mr. Trainor's final argument regarding the prosecutor's closingremarks is that the prosecutor distorted the testimony given by Mr. Trainor and suggested to thejury that in order to acquitMr. Trainor, ithad to believe thatthe girls were lying. A prosecutor engages inmisconduct by arguing that thejurymust conclude that the State's witnesses 21No. 29429-3-II1 State v. Trainor

are either lying or mistaken to return a not guilty verdict. State v. Fleming, 83 Wn. App. 209,213,921 P.2d 1076 (1996). The record shows that the prosecutortold thejurythat the girls had no motive to lie butthat Mr. Trainorhad every motive not to be honest. However, the prosecutor nevertold thejury it had to find the girls were lying in order to acquitMr. Trainor. The claims ofprosecutorial misconduct are without merit. Evidentiary Rulings Mr. Trainor contends thatthe trial court committed error in four ofits evidentiary rulings. Evidentiary rulings are reviewed for abuse ofdiscretion. State v. DeVincentis, 150 Wn.2d 11, 17,74 P.3d 119 (2003). Mr. Trainor first takes issue with the trial court for restricting the number of photographs the defense could offer into evidence duringthe cross-examination of E.M.W. She testified that after leaving town in 2008 she tried to avoid all contact with Mr. Trainor. Oncross-examination, the defense soughtto prove that E.M.W. actually stayed in contact with Mr. Trainor, e-mailing him and sendinghimphotographs. Defense counsel marked a dozen photographs it planned to admit that E.M.W. had allegedly sent to Mr. Trainor. Theprosecutor objected to the relevance ofthephotographs and the court ordered defense counsel to limit the number ofphotographs because they were

22No. 29429-3-II1 State v. Trainor duplicative. Six photos were submitted to thejury, and defense counsel was allowed to cross-examine E.M.W. using all ofthe photographs.7 ER403 provides that relevant evidence "may be excluded ifits probative value is substantially outweighed by the danger ofunfairprejudice, confusion ofthe issues, or misleading thejury, orby considerations ofundue delay, waste oftime, or needless presentation ofcumulative evidence." Here, all ofthe pictures were being admitted to prove the same thing and several ofthem were duplicative. The trial court's decision to admit only some ofthe pictures was aproper evidentiary ruling pursuantto ER403. There was no abuse ofdiscretion. Mr. Trainor also contends that the trial court erred with respect to several rulings relating to the defense witnesses. His initial claim is thatthe trial court erred in restricting the number ofcharacterwitnesses Mr. Trainor could call. A defendant may introduce evidence ofhis characterifitis pertinent to the crime charged. 

### State 

### v. Kelly, 102 Wn.2d 188, 193-95,685 P.2d 564 (1984). Sexual morality is considered a pertinent character trait in sexual offense cases. 

### State 

### v. Woods, 117 Wn. App. 278,280, 70 P.3d 976 (2003). Proofofsexual morality may be made through

7 Counsel did not designate any ofthe photographs for the purpose ofthis appeal and therefore those exhibits are notpart ofthe record before this court. RAP 9.1(a); 

### State 

### v. Jackson, 36 Wn. App. 510,516,676 P.2d 517 (1984). However, the substance ofthe photographs is apparent from therecord. The photographs were all pictures ofE.M.W. which were purportedly sent to Mr. Trainor by E.M.W. herself. 23No. 29429-3-111 State v. Trainor testimony ofa character witness who is knowledgeable about the defendant's reputation in the community for sexual morality. State v. Callahan, 87 Wn. App. 925, 934, 943 P.2d 676 (1997). A party seeking to admit reputation testimony must lay a foundation establishing thatthewitness is familiar with the person's reputation and that his or her testimony is based on the community'sperception ofthatperson in regards to the pertinent character trait. 

### ld. at 935. The witness's personal opinion is not competent testimony. Kelly, 102 Wn.2d at 195. The trial court's decision regarding the adequacy of the foundation necessary to admit reputation evidence is reviewed for an abuse of discretion. 

### ld. Mr. Trainor sought to admitthe testimony ofsix character witnesses. The court ruled that there was insufficient foundation for three ofthe witnesses to testifY regarding Mr. Trainor's reputation for sexual morality. The trial court did not abuse its discretion in concludingthat there was an insufficient foundation for these three witnesses. Two of them lived in Richland and only occasionally had contacts with people from Benton City; Mr. Trainor failed to show why either ofthem would be familiar with his reputation for sexual morality in Benton City. The trial court also correctly excludedthe other characterwitness because she was not familiar with Mr. Trainor's reputation for sexual morality in the community.

24No. 29429-3-II1 State v. Trainor
Mr. Trainor also claims thatthe trial court erredbecause it restricted the number of defense witnesses, improperlypreventing him from calling 16 witnesses. However, the record shows that defense counsel voluntarily chose to call only eight witnesses, and that the trial court did not restrict the number ofdefense witnesses. This claim has no merit. Additionally, Mr. Trainor contends that the trialjudge erred in excluding Mr. Lee
as a defense witness. The decision to allow an unlisted witness to testifY lies within the sound discretion ofthe trial court and will not be overturned except for a manifest abuse ofdiscretion. State v. Funches, 5 Wn. App. 491, 494, 487 P.2d 793 (1971). Here, where Mr. Lee was not included on the witness list, he was in the courtroom during all of E.M.W.'stestimony, and his testimony did not directly impeachE.M.W., the trial court did not abuse its discretion in denying the requestto letMr. Lee testifY. The trial court properly limited the photographic evidence and defense witnesses. Motion/orNew Trial Mr. Trainor attacks the trial court's denial ofhis posttrial motion to set aside the verdict and grant a new trial. Thetrial court correctly deniedthe request. There was sufficient evidence to supportthe verdict and therefore Mr. Trainor did not demonstrate a ground for arrest of judgmentunder erR7.4. He also did not establish any grounds for a
new trial. Thetrial court did not abuse its discretion.



### 25No. 29429-3-III State v. Trainor
Statement of Additional Grounds Mr. Trainor also filed a Statement ofAdditional Grounds (SAG) in which he argues five grounds for reversal. The majority ofthe issues Mr. Trainor raises are issues that were adequately addressed by counsel and therefore notreviewed again. See RAP 10.l0(a). Mr. Trainor also contends that part ofD.L.S.'stestimony should have been stricken from the record and that Detective Clarkeknowingly committedperjury and his false testimony prejudiced Mr. Trainor. We will briefly address each ofthese claims. UnderER 611(c), leading questions should not be used on the direct examination ofa witness except as may be necessary to develop the witness's testimony. Mr. Trainor contends that the prosecutorused leading questions and harassed D.L.S. until she said what she was supposed to say in response to the question ofhow Mr. Trainor had touched her. However, a review ofthe record shows that D.L.S., who was 11 years old at the time oftrial, did not understand what theprosecutorwas asking and the prosecutor rephrased the same question several times in an attempt to answer the question ofwhether

### Mr. Trainor digitally penetrated D.L.S., which was a necessary elementthe Statehad to prove. Mr. Trainorhas failed to show prosecutorial error, ineffective assistance, or trial court error based on this line ofquestioning. Mr. Trainor also claims thatDetective Clarke falseJy testified that E.M.W. and the other alleged victims never had an opportunity to discuss the case among themselves, and 26No. 29429-3-III State v. Trainor
that as soon as E.M.W. contactedhim, she drove directly to his office from her home in Spokane. However, contrary to those assertions, Detective Clarke never testified as to whether the victims had a chance to discuss the case prior to talking to him, nor did he testify that E.M.W. came straight to his office from Spokane. He testified thatMs. Sanders told him that E.M.W. was en route to the Tri-Cities and wantedto talkto him, and that E.M.W. showed up at his office at 4:00 that afternoon. Mr. Trainor has not established that Detective Clarke committed perjury orthat the testimony prejudiced him. The arguments presented in the SAG are without merit. Affirmed. A majority ofthe panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public recordpursuant to RCW 2.06.040.

, Korsmo, C.J. WE CONCUR:

Brown, 1.



### 27