FILE

COURT OF APPEAL: 

DIVISION Li

2014 HAY - 6 Ail 8_ 29

STATE OF WASHINGTON

IN THE COURT OF APPEALS OF THE STATE OFBWAS 1 N

UT

DIVISION II

STATE OF WASHINGTON, 

Respondent/ 

Cross - Appellant. 

v. 

CHAD ERNEST CHRISTENSEN, 

Appellant/ 

Cross - Respondent. 

No. 43745 -7 -II

UNPUBLISHED OPINION

LEE, J. — Chad Ernest Christensen appeals his conviction of first degree child

molestation, arguing that he received ineffective assistance of counsel because his attorney failed

to object when the State elicted testimony concerning the victim' s truthfulness and the fact of his

arrest and incarceration. In a pro se statement of additional grounds ( SAG), Christensen argues

that his trial attorney also was ineffective in failing -to investigate the victim' s use of a sleeping

aid and its possible side effects. The State cross appeals, arguing that the trial court erred in

concluding that one of Christensen' s prior convictions " washed" and in failing to include it in his

offender score. Because the State did not elicit inadmissible testimony and because any evidence

concerning the victim' s use of a sleeping aid was irrelevant, Christensen did not receive

ineffective assistance of counsel. And, because the trial court properly concluded that the State

failed to prove that Christensen committed his current offense before the washout period for the
No. 43745 -7 -II

prior conviction expired, it properly calculated his offender score. We affirm the conviction and

sentence. 

FACTS

During the summer and fall of 2010, Christensen began a romantic relationship with

E.C., whom he had known since childhood. At the time, Christensen was living with his infant

daughter in Chehalis, and E.C. and her four children were living in Vancouver. E.C. has two

daughters: I.B., who was then 8 years old, and A.B., who is two years older than I.B. 

Christensen and E.C. married on December 11, 2010, and lived with their children in Onalaska. 

Sometime before the wedding, E.C. and her children stayed with Christensen in his

Chehalis apartment. One evening, I.B. and Christensen were in the living room on the couch, 

watching television, when Christensen took I.B.' s hand by the wrist and placed it in his pants so

that she touched his penis. She took her hand out and eventually went to sleep. 

The next morning, A.B. walked into the bathroom and saw I.B. washing her hands. 

When A.B. asked what she was doing, I.B. told her about the touching and said that she was

washing her hands because she " could still feel it." Report of Proceedings ( RP) ( June ,14, 2012) 

at 178. A.B. told I.B. that she needed to tell their mother, E.C., what had happened. I.B. told her

mother that Christensen had taken her hand and placed it in his pants and on his penis. 

Christensen had left the apartment by that time, but when E.C. confronted him later with I.B.' s

claims, he denied the allegations. E.C. believed Christensen. 

In September 2011, Christensen and E.C. argued over an unrelated issue, and Christensen

left the home. Christensen told I.B. a few days later that it was her fault that he could not return. 

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When I.B. repeated this to her mother, E.C. decided to report the touching incident to Child

Protective Services ( CPS). E.C. and Christensen eventually filed for divorce. 

I.B. was reluctant to speak with the CPS investigator, Keith Sand, at school, so Sand

arranged for her to speak with investigator Ronnei Jensen at the CPS office. This interview was

audiotaped while Sand and Lewis County Sheriff' s Detective Tom Callas watched and listened

through a two -way mirror. When Jensen asked I.B. what she had told her mother, I.B. asked for

a piece of paper so that she could write it down. I.B. wrote that Christensen " went in bed with

me and I was pretending to fall asleep and he grabbed my hand and took out his weiner [ sic] and

made my hand touch it and put it down his pants." Ex. 2. She then talked about the details of

the incident. I.B. gave a consistent description to her counselor, Sandra Ames. Chehalis Police

Detective Rick Silva subsequently interviewed Christensen, who admitted being on the couch

with I.B., but denied that anything inappropriate had occurred. 

The State charged Christensen by amended information with one count of first degree

child molestation and alleged that he used his position of trust to facilitate the commission ofthe

offense. The charging document stated that the molestation took place between September 12, 

2009, and October 12, 2011. 

Following a pretrial hearing, the trial court concluded that Christensen' s statements to

Detective Silva were admissible, that I.B. was competent to testify, and that I.B.' s statements to

her sister, her mother, the two CPS investigators and her mental health counselor were

admissible as long as she testified. 

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No. 43745 -7 -II

I.B. was the State' s first witness, and her testimony about the incident was consistent

with what she told her sister, mother, Jensen, and Ames. During her direct testimony, the

following exchange occurred: 

Q. When you talked to your sister and mom that morning, did you tell them the

truth about what happened? 

A. Yes. 

Q. The things you told your counselor Sandra, were those things you told the

truth? 

A. Yes. 

Q. Were these things you told Ronnei the truth? 

A. Yes. 

RP ( June 14, 2012) at 180 -81, 187. I.B. denied telling anyone that she had lied about

Christensen, and during cross - examination, she denied telling her aunt and sister that her

allegations were not true. During I.B.' s redirect examination, this exchange occurred: 

Q. Has anyone ever told you what to say about [ Christensen]? 

A. No. They just say tell the truth. 

Q. Who told you that? 

A. My grandma, my mom and so— 

Q. So you understand when the judge had you raise your right hand, you were

promising to tell the truth? 

A. Yes. 

Q. You understand that? 

A. Yes. 

Q. Is everything you told us here today the truth? 

A. Yes. 

RP ( June 14, 2012) at 211, 213. 

The CPS investigators also testified for the State, as did A.B., E.C., Ames, and Detective

Silva. After questioning Silva about his interview with Christensen, the prosecutor asked about

Christensen' s arrest: 

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Q. Direct your attention to December 7, 2011: Did you make an arrest of the

defendant on that day? 

A. Yes, I did. He was taken into custody and booked into the Lewis County jail. 

RP ( June 15, 2012) at 353 -54. Silva' s interview with Christensen was published for the jury, as

was Jensen' s interview with I.B. 

E.C.' s sister testified for the defense that I.B., A.B., and E.C. had told her that I.B.' s

allegations were false. Detective Callas testified that E.C. did not initially believe I.B.' s

allegations, and Christensen' s sister testified that E.C. had told her that Christensen was " going

to pay" for leaving her and her children. RP ( June 15, 2012) at 363. Christensen testified that

E.C. confronted him about I.B.' s allegations a few weeks before the couple married. He denied

any inappropriate touching. 

The trial court instructed the jury that to find Christensen guilty, it had to find that he

committed the offense between September 12, 2009, and October 12, 2011. The jury found

Christensen guilty and also found that he had used his position of trust or confidence to facilitate

the commission ofthe offense. 

At sentencing, the State noted that there was an issue concerning Christensen' s offender

score. Christensen had four prior offenses. RP 505. The parties agreed that the first three

convictions counted for a total of 6 points, but they disagreed about adding 1 point for the fourth

conviction of second degree unlawful possession of a firearm. Christensen was released from

confinement for this class C felony on July 20, 2006. The applicable washout period expired on

July 20, 2011, which fell within the charging period for Christensen' s current offense included in

the information and the " to convict" instruction. The State argued that the evidence showed that

the molestation occurred before Christensen and E.C. married in 2010 and before the firearm. 
No. 43745 -7 -II

conviction washed, but Christensen argued that because the jury did not find that he committed

his current offense on a specific date before the washout period expired, his firearm conviction

should not count. The trial court agreed that the firearm conviction washed. Based on an

offender score of 6, the trial court imposed an underlying sentence of 114 months, plus 18

months for the aggravator, for a total sentence of 132 months to life. 1

Christensen appeals his conviction, arguing that he received ineffective assistance of

counsel. The State cross appeals Christensen' s sentence, arguing that the trial court erred in

calculating Christensen' s offender score. 

ANALYSIS

A. INEFFECTIVE ASSISTANCE OF COUNSEL

Christensen contends that he received ineffective assistance of counsel because • his

attorney failed to object when the State elicited testimony from I.B. about her truthfulness as

well as testimony from Detective Silva about Christensen' s arrest and incarceration. Christensen

adds in his SAG that his attorney was ineffective because he failed to investigate I.B.' s use of

melatonin and offer expert testimony about its side effects. 

Whether a defendant received ineffective assistance of counsel is a mixed question of law

and fact that we review de novo. State v. McLean, 178 Wn. App. 236, 246, 313 P. 3d 1181, 1186

2013), review denied, 179 Wn.2d 1026 ( 2014). To prove ineffective assistance of counsel, a

defendant must show ( 1) that his counsel' s performance was deficient and (2) that the deficient

1 With an offender score of 6, the standard range was 98 -130 months; with a score of 7, the range

would be 108 -144 months. RCW 9. 94A.510. 

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No. 43745 -7 -II

performance was prejudicial to defendant' s case. State v. Hendrickson, 129 Wn.2d 61, 77 -78, 

917 P.2d 563 ( 1996). A failure to satisfy either prong is fatal to a claim of ineffective assistance

of counsel. McLean, 178 Wn. App. at 246. 

When determining whether counsel' s performance was deficient, we begin with a strong

presumption of counsel' s effectiveness. State v. McFarland, 127 Wn.2d 322, 335, 899 P. 2d

1251 ( 1995). Counsel' s performance is deficient if it falls below an objective standard of

reasonableness and cannot be characterized as legitimate trial strategy or tactics. State v. Kyllo, 

166 Wn.2d 856, 863, 215 P.3d 177 ( 2009). Prejudice occurs when there is a reasonable

probability that the trial' s result would have differed had the deficient performance not occurred. 

Hendrickson, 129 Wn.2d at 78. 

We now apply these standards to Christensen' s three claims of ineffective assistance of

counsel. 

1. I.B.' s Truthfulness

Christensen argues that his attorney should have objected when the State elicited I.B.' s

testimony that she was telling the truth. He contends that because I.B.' s credibility was the main

issue at trial, defense counsel was ineffective in failing to object to the prejudicial and

inadmissible testimony that the State introduced to bolster her credibility. 

To support his claim of error, Christensen cites to cases holding that it is improper for a

prosecutor to ask a witness to testify about the credibility of another witness. See, e. g, State v. 

Jerrels, 83 Wn. App. 503, 507, 925 P.2d 209 ( 1996) ( misconduct occurs when prosecutor' s

cross examination seeks to compel a witness' s opinion as to whether another witness is telling

the truth); State v. Suarez - Bravo, 72 Wn. App. 359, 366, 864 P.2d 426 ( 1994) ( misconduct

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No. 43745 -7 -II

occurred when prosecutor repeatedly attempted to get defendant to call the police witnesses

liars). Weighing the credibility of the witnesses is the jury' s province; witnesses may not

express their opinions on whether another witness is telling the truth. State v. Casteneda - Perez, 

61 Wn. App. 354, 360, 810 P.2d 74, review denied, 118 Wn.2d 1007 ( 1991). 

In asserting that a witness may not testify about her own credibility, Christensen cites

State v. Reed, 102 Wn.2d 140, 684 P. 2d 699 ( 1984). This case does not support Christensen' s

assertion. Instead, it stands for the proposition that an attorney may not assert his personal belief

in the credibility of the witnesses or the accused' s guilt. Reed, 102 Wn.2d at 145 -46. 

Christensen cites no authority that directly supports his claim of error, perhaps because it

is unassailable that a witness may be asked and may testify as to whether her testimony is

truthful. Indeed, such a statement is made every time a witness takes the stand and declares

under oath or affirmation that she will testify truthfully, as required under ER 603. 

Christensen is correct that this case turned on the victim' s credibility. Consequently, 

both parties questioned I.B. about her veracity. In addition, defense counsel called witnesses

who testified that I.B. had recanted her allegations, that E.C. did not initially believe her

daughter' s accusation, and that E.C. wanted Christensen to " pay" for leaving her. Instead of

calling attention to I.B.' s assertions of truthfulness by objecting, defense counsel sought to

undermine those assertions with substantive evidence. Thus, defense counsel' s failure to object

to the State' s questioning of I.B. can be characterized as a legitimate trial strategy that defeats a

claim of deficient performance. 

Christensen has failed to cite any authority that establishes I.B .' s testimony about her

truthfulness was inadmissible. Counsel' s failure to object to evidence cannot prejudice the

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defendant unless the trial court would have ruled the evidence inadmissible. McLean, 178 Wn. 

App. at 248. Here, Christensen has failed to show that I.B.' s testimony about her own veracity

was inadmissible. Accordingly, Christensen' s claim fails. 

2. Christensen' s Arrest and Incarceration

Christensen next argues that Detective Silva' s testimony about arresting him and taking

him to jail constituted improper opinion testimony as to Christensen' s guilt. Christensen cites to

no authority supporting his contention that the fact of arrest is categorically inadmissible. 

We recently rejected a similar claim after observing that the defendant had cited no

authority stating that the fact of an arrest is categorically inadmissible. McLean, 178 Wn. App. 

at 249. We also distinguished the same two cases on which Christensen relies to support his

claim of error. McLean, 178 Wn. App. at 249 ( citing Warren v. Hart, 71 Wn.2d 512, 429 P.2d

873 ( 1967); State v. Carlin, 40 Wn. App. 698, 703, 700 P.2d 323 ( 1985)). 

In Carlin, a police officer testified that a police dog followed a " fresh guilt scent" from

the scene of a burglary to the defendant. 40 Wn. App. at 703. We observed in McLean that

stating that a defendant emitted an objectively ascertainable " guilt scent" was not comparable to

stating the fact of an arrest. 178 Wn. App. at 249. 

In Warren, defense counsel argued that the jury should find that a driver was not

negligent because police officers decided not to issue a traffic citation at the scene of a car

accident. 71 Wn.2d at 517. As we observed in McLean, the Warren case says nothing about

admitting evidence showing the fact of a criminal defendant' s arrest. 178 Wn. App. at 249. 

The fact that Detective Silva added that he took Christensen to jail following his arrest

does not alter our conclusion that Carlin and Warren do not support a claim of deficient. 

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No. 43745 -7 -II

performance. Nor does the timing of this testimony influence our decision. Christensen argues

that the question concerning his arrest deliberately came at the culmination of the detective' s

testimony, but this argument overlooks the fact that the prosecutor recalled the detective for

additional questions that had nothing to do with the fact of arrest or incarceration. 

Here, as in McLean, withholding an objection can be characterized as a legitimate trial

tactic that sought to avoid emphasizing the fact of Christensen' s arrest and incarceration. 

Furthermore, having failed to establish that this evidence was inadmissible, Christensen again

cannot show prejudice. Christensen' s claim of ineffective assistance of counsel fails. 

3. Failure to Investigate and Hire Expert

Finally, Christensen argues in his SAG that he received ineffective assistance of counsel

when his attorney failed to interview the State' s witnesses about the melatonin that I.B. was

taking as a sleeping aid at the time of the incident and failed to hire a medical expert to testify

about its side effects. 

During E.C.' s cross - examination, defense counsel asked about I.B.' s sleeping habits and

whether E.C. had found it necessary to give I.B. any type of pill. After the State objected, the

trial court excused the jury, and defense counsel explained that he was referring to E.C. giving

her daughters melatonin for sleep issues, which might have some bearing on the possibility of

dreams or nightmares. Defense counsel had no medical testimony about the side effects of

melatonin to offer, but he planned to have Christensen' s mother testify that melatonin gives her

nightmares. The trial court explained that any evidence that witnesses take melatonin and have

nightmares would not be admissible absent expert testimony explaining that melatonin causes

nightmares, but it permitted an offer of proof on the issue. 

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No. 43745 -7 -II

Defense counsel then asked E.C. about giving I.B. melatonin. She replied that she

occasionally gives her children melatonin without it having any adverse effect on them. E.C. 

could not remember giving I.B. melatonin the night before I.B. made her allegations against

Christensen. Following this offer of proof, the trial court excluded the melatonin evidence as

irrelevant because there was no evidence that I.B. took melatonin the night before the alleged

incident, no evidence that she was asleep at the time of the incident, and no expert testimony

about melatonin' s side effects. Our record does not disclose the scope of defense counsel' s

pretrial investigation into I.B.' s melatonin use. Because our review is limited to the appellate

record, we decline to consider the issue of whether counsel was ineffective in failing to interview

the State' s witnesses about I.B.' s melatonin use. State v. Crane, 116 Wn.2d 315, 335, 804 P. 2d

10, cent. denied, 501 U.S. 1237 ( 1991). Furthermore, given the lack of evidence that I.B. used

melatonin the night before she made her allegations, the failure to introduce expert testimony on

the side effects of melatonin was neither deficient nor prejudicial. Accordingly, Christensen' s

claim fails. 

B. OFFENDER SCORE

The State argues on cross appeal that the trial court erred in concluding that Christensen' s

prior conviction for unlawful possession of a firearm washed for the purpose of calculating his

offender score and standard sentencing range and that resentencing is required. When a direct

appeal shows that an incorrect offender score was used to calculate the standard range, 

resentencing is required even where the trial court imposed an exceptional sentence, unless the

record clearly indicates that the sentencing court would have imposed the same sentence anyway. 
No. 43745 -7 -II

State v. Ford, 137 Wn.2d 472, 485, 973 P.2d 452 ( 1999); State v. Parker, 132 Wn.2d 182, 189, 

937 P.2d 575 ( 1997). 

Christensen' s prior conviction for second degree unlawful possession of a firearm is a

class C felony. RCW 9.41. 040( 2)( b). Under the Sentencing Reform Act ( SRA), this prior

conviction " shall not be included in the offender score if, since the last date of release from

confinement . . . the offender ha[ s] spent five consecutive years in the community without

committing any crime that subsequently results in a conviction." RCW 9. 94A.525( 2)( c). 

Christensen was released from confinement for the firearm conviction on July 20, 2006. 

Consequently, the five -year washout period expired on July 20, 2011. Christensen was charged

with committing his current offense between September 12, 2009, and October 12, 2011. 

The State argued below, as it does on appeal, that the testimony showed that the touching

incident occurred before E.C. and Christensen married on December 11, 2010, which was before

the five -year washout period expired. Defense counsel responded that the State never sought, 

and the jury never made, any finding that the offense occurred on a specific date before the

washout period expired, and that the firearm conviction had washed. The trial court ruled

without explanation that the offense washed. 

In addressing the State' s argument, we find guidance in Parker, 132 Wn.2d 182. 2 In

Parker, the defendant was charged with committing two different crimes within a five -year

2

Christensen asserts that the State is equitably estopped from raising this argument. We reject

this assertion, particularly where the State has clearly preserved its claim of error. See State v. 

Yates, 161 Wn.2d 714, 738, 168 P. 3d 359 ( 2007) ( declining to apply equitable estoppel after

observing that no Washington case has extended it to criminal prosecutions), cert. denied, 554

U.S. 922 ( 2008). Equitable estoppel requires a statement inconsistent with the claim later

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No. 43745 -7 -II

period. 132 Wn.2d at 185. During the fourth year of the charging period, the legislature

amended the SRA to significantly increase the standard ranges for the charged crimes. Parker, 

132 Wn.2d at 185. At trial, evidence was presented that the defendant committed the acts

throughout the charging period. Parker, 132 Wn.2d at 185. During closing, the prosecutor

urged the jury to consider the entire charging period; the jury was not asked to specify whether

the defendant committed the acts after the effective date of the penalty increase. Parker, 132

Wn.2d at 185. The Supreme Court agreed with the defendant that the trial court erred by using

the increased penalties without requiring the State to prove that the crimes occurred after those

penalties became effective. Parker, 132 Wn.2d at 191. "[ W]hen the crime was committed is a

factual question which must be put to the jury." Parker, 132 Wn.2d at 192, n.14. 

Christensen' s jury was not asked to specify whether he molested I.B. before the five -year

washout period expired. Rather, the " to convict" instruction required the jury to find that he

committed the offense within a timeframe that straddled the washout date. During closing, the

prosecutor discussed the other elements of the crime and then urged the jury to consider the

entire charging period: " that leaves element number 1, that on or about and between September

12, 2009 and October 12, 2011 —big time net — basically from when she turned eight up to the

time it got reported, so we know we' re in that time, the defendant had sexual contact with [I.B.]." 

RP ( June 18, 2012) at 475. 

asserted, action by the other party in reliance on that statement, and an injury to that other party

resulting from allowing the first party to repudiate that statement. Yates, 161 Wn.2d at 737 -38. 

The application of equitable estoppel against the government is disfavored. Yates, 161 Wn.2d at

738. 

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In determining a defendant' s sentence, the trial court may consider information that has

been admitted, acknowledged or proved in a trial. RCW 9. 94A.530( 2). The State points out that

uncontroverted evidence shows that Christensen committed the molestation before the washout

period for his prior firearm conviction expired. Given the absence of a jury finding on this issue, 

however, we see no proof that Christensen committed his current offense before his firearm

conviction washed out. Consequently, we affirm the trial court' s calculation of the offender

score and the resulting standard range. 

We affirm. 

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

Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040, it is so

ordered. 

We concur: 

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