IN THE COURT OFAPPEALS FORTHE STATE OFWASHINGTON

In the Matterofthe Personal Restraint of 

### ) No. 77460-3-I

LARRY PAULWILLIAMS, 

### ) DIVISION ONE



### ) Petitioner. 

### ) UNPUBLISHED OPINION



### ) ) FILED: September 16, 2019 ANDRUS, J.

— Hana Williams, a teenage girl from Ethiopia, died in her adoptive family’s backyard, the victim of physical abuse, inflicted starvation, and hypothermia. A jury convicted Hana’s father, Larry Williams,1 of first degree manslaughter in connection to her death and first degree assault ofa child of his adopted son, l.W.2 We affirmed Larry’s convictions and sentence in Statev. Larry Paul Williams, No. 71112-1-I (Wash. Ct. App. Dec. 21, 2015) (unpublished),3 reviewdenied, 185Wn.2d 1034, 377 P.3d 741 (2016) (hereinafter L. Williams). In this personal restraint petition, Larry challenges both the legal and evidentiary basis for his convictions as well as the adequacy of his trial and appellate counsel’s representation. After a thorough consideration of the trial

1 Larryand hiswife, carri, were charged and tried together. We referto them bytheirfirst namesforconvenience. We mean nodisrespect.

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

~ http://www.courts.wa.gov/opinions/pdf/711121

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record, the parties’ briefing, and oral argument, we deny his personal restraint petition. FACTS In the early hours of May 12, 2011, Larry received a phone call from his wife, Carri, as he drove home from hisjob at Boeing. Carri told him that she had found their daughter, Hana, lying face down in the backyard, naked and unconscious. Larry instructed Carri to call 9-1-1, raced home, and helped perform CPR until the medics arrived and transported Hana to Skagit Valley Hospital. Hana was pronounced dead at 1:30 a.m. on May 12, 2011. A subsequent investigation revealed that Larry and Carri routinely physically and psychologically punished Hana, then a young teen, and I.W., a 9-year-old hearing-impaired boy, both ofwhom they had adopted from Ethiopia in 2008. Dr. Daniel Selove, the forensic pathologistwho performed Hana’s autopsy, noticed that Hana had visible injuries on her pelvis, elbows, knees, and calves; bruises on her knees, eyebrow, and upper pelvis; and multiple impact marks on her thighs and calves. He determined that when she died, Hana suffered from
severe malnutrition, with an abnormallythin bodyand protruding ribs and shoulder blades. Dr. Selove identified Hana’s cause of death as hypothermia, with malnutrition and a bacterial infection in her stomach, h. pylon,4 as contributing

~ Helicobacterpylori (commonly known as h. pylon), is a bacterial infection ofthestomach. https:llwww.mayoclinic.org/diseases-conditionslh-pylori/symptoms-causes/syc-203561 71. Dr. Selove indicated the bacteria was presentwhen Hana died but could not confirm whether Hana was actively experiencing symptoms atthetime of herdeath.
-2-No. 77460-3-1/3

factors. Dr. RebeccaWiester, a Board-certified physician in child abuse pediatrics with malnutrition and hypothermia expertise, confirmed that Hana died from hypothermia brought on by inflicted starvation. When Child Protective Services (CPS) interviewed l.W. and theWilliamses’
seven biological children on May 24, 2011, the children revealed that Larry and Carri had regularly beaten I.W. and Hana, causing scars; had denied them food; had forced them to eat sandwiches soaked in water or eat frozen, uncooked vegetables while sitting outside on the back porch awayfrom the family; and had forced Hana and l.W. to sleep in a locked closet or shower room. CPS removed all ofthe children from the home in July2011. On September29, 2011, the State charged Larry and Carri with homicide by abuse under RCW 9A.32.055, and the alternative crime of first degree manslaughter under RCW 9A.32.060, for the death of Hana, and first degree assault of a child under RCW 9A.36.120 for their mistreatment of I.W. On September 9, 2013, following a seven week trial, the 

### jury found Larry guilty of manslaughter and assault.5 The jury also found several aggravating factors, including that Larry’s conduct manifested deliberate cruelty, that Larry knew or should have known Hana was particularly vulnerable or incapable of resistance, thatthe crime was an “aggravated domesticviolence offense,”that Larry used his position of trust to facilitate the commission of the crime, and that Larry’s crime involved a destructive and foreseeable impact on persons otherthan Hana.

~Thejurydid not reach averdicton Larry’s homicide by abuse charge. Butthe samejury found Carri guiltyofall three charges. -3-No. 77460-3-1/4 On October29, 2013, thetrial court imposed consecutive sentences of210 months for the first degree manslaughter conviction and 123 months forthe first degree child assault conviction. We affirmed Larry’s convictions and sentence on direct appeal. L. Williams, No. 71112-1-I, slip op. at2. In this personal restraint petition, Larrychallenges: (1) the sufficiencyofthe evidence of manslaughter; (2) the admissibility of evidence related to “torture;” (3) the admissibility of expert testimony that I.W. suffered from post-traumatic stress disorder(PTSD); (4) the admissibilityofexperttestimonythat Hana and l.W. had been “tortured” by their parents; (5) the trial court’s purported decision to permit the State’s experts to define “torture;” (6) the admissibility of testimony relating to a book on child discipline found in the Williams home; and (7) the assistance ofcounsel he received attrial and (8) on direct appeal. ANALYSIS Standard of Review An appellate court maygrant reliefto a petitionerwho is under restraintand who can demonstrate his restraint is unlawful. RAP 16.4; In re Pers. Restraint of Cook, 114 Wn.2d 802, 805, 792 P.2d 506 (1990). Restraint is unlawful when a conviction is obtained in violation ofthe United States Constitution orthe laws of the state ofWashington. RAP 16.4(c)(2). Relief by way of a collateral challenge to a conviction is extraordinary and
a petitioner must meet a high standard before this court will disturb an otherwise settled judgment. In re Pers. Restraint of Coats, 173 Wn.2d 123, 132, 267 P.3d 324 (2011). A petitioner has the burden ofdemonstrating errorand, ifthe error is

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constitutional, actual and substantial prejudice. In re Pers. Restraint ofSandoval, 189 Wn.2d 811, 821, 408 P.3d 675 (2018). Ifthe error is not constitutional, the petitioner must show that the error represents a “fundamental defect

. . . that inherently resulted in a complete miscarriage ofjustice.” j~ (quoting In re Pers. Restraint of Finstad, 177 Wn.2d 501, 506, 301 P.3d 450 (2013)). Furthermore, a petitioner may not renew an issue that was raised and rejected on direct appeal unless the interests ofjustice require the issue to be reexamined. In re Pers. Restraint of Pirtle, 136 Wn.2d 467, 473, 965 P.2d 593 (1998).

Claim 1: Sufficiency ofthe Evidence of Manslaughter Larrycontendsthattherewas insufficientevidenceto support his conviction for first degree manslaughter. Larry acknowledges that he raised a sufficiency challenge on direct appeal. He argues, however, that the issues he raises here
are different. First, he argues thatWashington’s accomplice liability statute does notapplyto unintentional crimes like manslaughter. Second, he contends thatthe State failed to present evidence that he actually knew that Carri was acting recklessly orthat he intended to promote orfacilitate such recklessness. Finally, Larry maintains that there was no evidence that Carri knew of, or disregarded, a substantial risk ofdeath by hypothermia. (a) Accomrlice Liabilityfor Manslaughter Larryfirst argues he cannot be an accomplice to the unintentional crime of manslaughter. The accomplice statute provides: A person is an accomplice ofanother person in the commission ofa crime if: (a) With knowledge that it will promote or facilitate the commission of the crime, he or she: (i) Solicits, commands,

-5-No. 77460-3-1/6

encourages, or requests such other person to commit it; or (ii) Aids oragrees to aid such other person in planning or committing it. RCW 9A.08.020(3)(a). A person is guilty offirst degree manslaughterwhen “He
orshe recklesslycausesthedeath ofanotherperson.” RCW9A.32.060 (emphasis added). “A person is reckless or acts recklessly when he or she knows of and disregards a substantial riskthatawrongful act mayoccurand his or herdisregard ofsuch substantial risk is a gross deviation from conductthata reasonable person would exercise in the same situation.” RCW 9A.08.010(1)(c). For manslaughter, the “wrongful act” is homicide. State v. Gamble, 154 Wn.2d 457, 467, 114 P.3d 646 (2005). OurSupreme Court recentlyconsidered asimilarargumentin In re Personal RestraintofSandoval. In that case, the defendantwas convicted of, among other crimes, firstdegree murderbyextreme indifference6as an accomplice. 189Wn.2d at 815. The mens rea for murder by extreme indifference is “to know of and disregard thefactthat his conduct presents a grave riskofdeath to others.” State
v. Barstad, 93Wn. App. 553, 568, 970 P.2d 324 (1999); 11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 26.06, at 395 (4th ed. 2016) (WPIC). Itis essentiallyan “aggravatedform ofrecklessness.” Statev. Yarbrouqh, 151 Wn. App. 66, 82, 210 P.3d 1029 (2009). Sandoval argued that accomplice liability for murder by extreme indifference is not a cognizable offense. Sandoval, 189 Wn.2d at 825. The Court rejected this argument, citing with approval to 2 Wayne R. LaFave, SUBSTANTIVE

6 A person is guilty of first degree murder when [ujnder circumstances manifesting an extreme indifference to human life, he or she engages in conduct which creates a grave risk of death to any person, and therebycauses the death ofa person.” RCW 9A.32.030. -6-No. 77460-3-1/7

CRIMINAL LAW §13.2(e) at 353 (2d ed. 2003) for the proposition that “giving assistance or encouragement to one it is known will thereby engage in conduct dangerousto lifeshould sufficeforaccomplice liabilityasto crimes defined in terms of recklessness or negligence.” ki. at 826. It held that Sandoval could be held liable as an accomplice “even though the crime is not a specific intent crime.” ki. Sandoval is dispositive of Larry’s legal argument. As long as the State presented evidencesufficienttoestablish that Larryknewhewasfacilitating Carri’s conduct and that conduct placed Hana’s life at risk, accomplice liability is properly available. (b) Sufficiency of Evidence of Larry’s Knowledge He was Facilitating a Homicide Next, Larry argues there was insufficient evidence to prove he had actual knowledge that he was promoting or facilitating the crime of manslaughter. But this argumentwas raised on direct appeal and rejected bythis court. L. Williams, No. 71112-1-I, slip op. at 8-10. We see no reason to revisit this evidentiary challenge when itwas raised on direct appeal. We also reject Larry’s argumentthat he had no actual knowledge ofCarri’s conducton the day Hana died. This argumentwas also raised and rejected bythis court in Larry’s direct appeal. L. Williams, No. 71112-1-I, slip op. at 11 (“Contrary to Larry’s argument, the ‘[o]n or about May 12, 2011’ charging period for the manslaughter charge does not limitthe charge onlyto events when Larrywas not home on May 11 and 12, 2011.

. . . ‘[W]here time is not a material element ofthe charged crime, the language ‘on or about’ is sufficientto admit proofofthe act at anytime within the statute of limitations, so long as there is no defense ofalibi”).

-7-No. 77460-3-118 There is ample evidence in this recordto establish Larryactually knewwhat Carri was doing to Hana. “Knowledge” is statutorily defined in RCW 9A.08.010(1)(b) as: A person knows oracts knowingly orwith knowledge when: (i) he or she is aware ofafact, facts, orcircumstances or resultdescribed by a statute defining an offense; or (ii) he orshe has information which would lead a reasonable person in the same situation to believe that facts existwhich facts are described bya statute defining an offense. A person can be found to have knowledge of an act without knowing that the act is an element ofa crime. See 11 WASHINGTON PRAcTIcE: WPIC 10.02 at 223 (4th ed. 2016), comment (“the defendant must have knowledge of the facts, circumstances, or results that constitute a crime, rather than knowledge that the facts, circumstances, and results are a crime”). See also State v. Dreewes, 192 Wn.2d 812, 825, 432 P.3d 795 (2019) (Washington’s culpability statute provides thata person has “actual knowledge” when he orshe has information which would lead a reasonable person in the same situation to believe he was promoting or facilitating the crime eventually charged). The State presented evidence from which ajury could conclude that Larry had information from which a reasonable person in his situation would have known thatCarriwas starving and physicallyabusing Hanato such a degreethatshewas placing Hana at significant risk ofdeath. l.W., whowas 12 atthe time oftrial, and six of the Williamses’ biological children,7 consistently described their parents’

~ Fourof Larry’s biological sons all have the same initials—J.W. To avoid confusion, we referto thetwo eldestsons bytheirfirst names, Joshua and Jacob, because theywere both over the age of 18 atthe time oftrial. We referto his othertwo sons as his third and fourth biological sons. Larry’s two daughters who testified will be referred to as C.W., who was 14 at the time of trial, and S.W., whowas 13 atthetime oftrial.
-8-No. 77460-3-1/9

treatment of Hana. Jacob testified that both parents had an equal say in whether
a child was “rebelling.” Theirthird biological son testified that both parents were equal disciplinarians, that they always discussed and agreed on their household rules, and thattheyjointly determined what penalties to impose. Moreover, Carri testified that she and Larry discussed how they intended to discipline Hana and always agreed on it. A reasonablejury could conclude that Larry was intimately involved in deciding when and howto punish Hana. Larry admitted that he began physically punishing Hana in the summer of 2010. Larry and Carri both beat Hana with a wooden stick, and spanked Hana with multiple “switches,”8 in addition to a belt. Larry hit Hana on the top of her head, and on the bottoms ofherfeet, treatment herbrother, l.W., also experienced and described as “very painful.” Larry admitted his physical punishments were intended to inflict pain and discomfort. The Williams children and their parents also provided consistent descriptions of Hana’s quotidian living conditions. When Hana first arrived from Ethiopia, she slept in a bedroom with her sisters. When Larry and Carri caught Hana stealing food, they forced herto sleep outside in a barn without electricity. Both parents discussed and agreed on this punishment. Foratwo-week period in the fall of 2010, when Larry and Carri caught Hana stealing food a second time, Larry locked Hana in a shower room at night without access to a toilet. Both parents agreed to this mode of punishment as well.

8TheWilliamses used a plastic plumbing tube and glue stickto strike the children, which the children referred to as “switches.” -9-No. 77460-3-Ill0 For the last six months of Hana’s life, Larry and Carri agreed that Hana should be locked in a small closet every night.9 To facilitate this, Larry installed a lockon the outside ofthe closetdoor. The closet lightswitch was similarly located
on the outside ofthe closet. Thus, Hana remained in the closet until released by herparentswith no abilityto control the closet lighting. Larryadmitted to escorting Hana to, and locking her in, the closet. He also admitted to unlocking the closet doorto deliver meals to her. Larry further admitted that he knew that Carri forced Hana to stay in the closet during the daytime ifshe refused to follow Carri’s instructionsto go outside. Hana spent most ofthe last months of her life outside the house or locked in the closet, sometimesfor up to 24 hours at atime. Given the testimony regarding the amount of consultation the parents engaged in when deciding punishments, the jury could reasonablyconclude Larrywas aware ofthis as well. Larryand Carri alsoagreed to usefood deprivation asaform ofpunishment. Hana and I.W. often missed meals as punishment, with Hana sometimes being denied food fortwo consecutive days. Moreover, when Hana and I.W. received meals, theywere not fed the same food as the otherWilliams children. Instead, the lunch sandwiches that Hana and I.W. received had been soaked in water by either Larry, Carri, or one of the other children at their parents’ direction. Carri testified thatthe children werefed these “wetsandwiches” because Hana and l.W. refused to cooperate atthe meal table. Dinnertimewas no different. Carri usually

~The closet measured 2feetby4feet, 3 inches. Atthetime ofherdeath, Hanawas 5feet tall. -10-No. 77460-3-I/Il

served Hana and l.W. cold leftovers topped with un-defrosted frozen vegetables. Larry admitted he was aware Carri was feeding still-frozen food to Hana and 

### I.W. Larry and Carri also required Hana and l.W. to eat separatelyfrom the rest of the family. Both parents forced Hana and l.W. to eat on the floor, in another room, or outside, when the rest ofthe family ate at the dining room table. In the last few months of Hana’s life, Carri and Larry both forced Hana and l.W. to eat their meals outside forwhat Carri described as “meal time oppositionality.” Larry, who prepared breakfast for all of his children before leaving for work each day, testified that he was aware that Hana ate breakfast outside more often than not in the last six months of her life for being “disagreeable and uncooperative.” Larry also admitted that he was aware that Hana was losing weight before her death. Hana went from a weight of 108 pounds and a base metabolic index (BMI) of 23.46 in April 2009, to 78 pounds, and a BMI of less than 16, which signified severe malnutrition, on the day of her death in May 2011. Ajury could reasonably conclude that Hana’s significantweight loss was due to the mealtime tactics used by both Larry and Carri. Larry knew that Hana was forced outdoors and to do exercises and “boot camp”atCarri’s instruction. “Bootcamp” involved performing extrachores, usually outdoors, and sometimes involved stacking and restacking the same pile of rocks. Larrywas aware that there were times when Hana would not come back indoors
once forced outside. The children testified thattheirdaily routine was similar each day. May 11, 2011, began as a typical dayfortheWilliamses, with Larry managing the children

—11—No. 77460-3-1/12

before departing for work, as he usually did. Larry, with C.W. and S.W.’s assistance, prepared breakfast around 10:00 a.m. Given that Larry admitted that Hana ate breakfast outside “more often than not,” she likely ate her breakfast outside that morning. Afterbreakfast, the children wentoutside to play“Capturethe Flag.” Hana, who was wearing a t-shirt and sweat pants, was outside but did not participate. Larry leftforwork around noon. The evidence attrial established that Hana remained outsidefor hours that day. Carri regularly escorted Hana to and from the outhouse throughout the day, and on the day of her death, Carri did so on three separate occasions, around 3 p.m., again at 6 p.m., and finally at 8:30 p.m. When Hana began to “throw[] herself down” onto the ground, hitting her forehead repeatedly, Carri left Hana outside in the dark. Instead oftending to Hana’s wounds or bringing her inside, Carri instructed three of her sons to go outside, one after the other, to hit Hana with the plastic plumbing tube until she started doing exercises to keep warm. Several hours later, Carri testified thatshe saw Hana sitting “buck naked” from the waistdown. Hana remained outside, bloody, wet, cold, and naked, forat leasttwo
more hours. Larrytestified that he typically called home during his breaks atwork. And Carri generally advised Larry what was going on at home when he called. Larry and Carri exchanged at leasttwo phone calls in the late hours of May 11 and the early hours of May 12, 2011. Around midnight, Larry called Carri to let her know that his vanpool had dropped him off at the park and ride and that he was on his

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way home. When Carri told Larry about Hana’s behavior, Jacob overheard them discussing whether Hana was really falling down on purpose. But Larry testified he was not surprised by Carri’s description of Hana’s behavior, from which ajury could inferthat it had happened previously. Carri called Larry a second time about ten minutes later. This time, Carri alerted Larry that she had found Hana, lying face-down and unconscious, in the backyard and that Hana was cold to the touch. She also told him that neithershe
norJoshua could detect Hana’s pulse. Larry arrived home shortlythereafter and
was there when medics arrived and transported Hana to SkagitValley Hospital. Dr. Janette Tomlinson pronounced Hana dead at 1:30 a.m. on May 12, 2011. Dr. Tomlinson noted contusions on Hana’sforehead, bruises and abrasions
on her hips, knees, and shins, and red streaks on her thighs. Carri told Dr. Tomlinson that Hana had been “face planting” outside that night. Dr. Tomlinson found this version of events odd because it was inconsistent with the normal human reflexive response to a fall. She testified that “ifyou try to fall down and hityour nose, ifyou are standing on flatground and youjusttryto fall to the ground, your hands usually protectyou from falling.” The State’s experts testified that Hana’s behavior before and on May 11, 2011, can be explained by the fact that she was so severely malnourished. Dr. Wiestertestified that starvation causes distress and anxiety in a child, leading the child to steal food, exhibit abnormal behaviors around food, and engage in defiant behaviors in general. Dr. Frances Chalmers, a pediatricmedical consultant forthe State, testified thatwhen a body lacks adequatefuel in the form ofcalories,

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and it starts using stored body tissue, the result can be irritability, behavioral changes, fatigue, and serious cardiac arrhythmia. Dr. Wiestertestified that using food deprivation as punishmentand isolating Hana during mealtimes, either by making hereat outside or by making her eat in the closet, were actions consistentwith the “intentional infliction ofstarvation.” She testified: [C]hildren who have inflicted starvation begin with having restricted food or having bad food or no food orfood differentfrom the rest of the family or bread and water or something like that, and then the pattern ofthe behaviorwhich isverycommonlyseen isthat kids start to steal food, they start to lie about food, they start to hoard food, theystarttotake otherpeople’sfood, and then the problem becomes that [it] is seen as bad behaviorwhich then sort ofspirals into more disciplinary approaches and more restriction and more treatmentfor bad behavior and being disagreeable and disobedient. So then there’s even more restriction and then it sort of becomes a selffulfilling prophecy.

. Moreover, Dr. Chalmers and Dr. Wiestertestified that a child as emaciated
as Hana, as a result of this “inflicted starvation,” would be more susceptible to hypothermia because they lack sufficient insulating fat underthe skin to keep the bodywarm in a cool environment. And Dr. Wiesternoted thatthose suffering from hypothermia exhibit erratic physical movements, such as stumbling, difficulty walking, and irrational behavior from an altered mental status. Dr. Selove noted that hypothermia victims often have a false sensation that they are warm and engage in “paradoxical undressing,” meaning they remove their clothing even though one would expect them not to do so. Ultimately, an individual suffering from severe hypothermia will lapse into a coma.

- 14-No. 77460-3-1/15 Furthermore, the jury was instructed that “[a] parent of a dependent child has a dutyto provideto the child the basic necessities of life. The parentalso has the dutyto provide medical care.” NeitherCarri nor Larryeversought advice from any medical or behavioral professional for what they considered to be Hana’s “rebelliousness.” Neithersawany causeforconcern for Hana’s health. Larrytold the police he thought Hana was the healthiest ofthe family. The family’s doctor, Harold Clark, however, testified that he lastsaw Hana in April 2009, overtwoyears before herdeath. Larry argues that the evidence did not establish that he knew what Carri
was doing until they spoke around midnight, after Hana had collapsed. Butthere
was substantial evidence from which thejury could conclude that Carri’s actions
on the day of Hana’s death were no differentthan heractions on any otherday in Hana’s life. And there is significant evidence that Larry knew how Carri was abusing Hana on adaily basis because hewas engaging in thesame actsofabuse when he was home. Thejurywas not obligated to accept either Larry’s or Carri’s testimony that they did not realize that theirfood deprivation, physical discipline, and emotional abuse would lead to Hana’s death. Thus, a reasonablejury could conclude from the evidence that Larry knew that Carri was starving Hana, supported and encouraged her conduct, and directly participated himself in the conductthat ultimately led Hana to succumb to hypothermia. Our conclusion is bolstered by thejury’s specificfindings regarding Larry’s conduct in connection with his manslaughter conviction. The jury found several aggravating factors: deliberate cruelty, victim vulnerability, abuse of trust, and a

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destructive and foreseeable impact on persons otherthan the victim. L. Williams, No. 71112-1 -I, slip op. at 18. This court held thatthese factors were not based on Carri’s conduct but had to be based on Larry’s own misconduct and knowledge. j~çj~ at 19. “The plain language ofthe special verdict form ties Larry’s own conduct directly to the aggravating factors.” Id. This court concluded that Larry’s manslaughter conviction was based on his own conduct or “his knowledge ofthe principal’s conduct.” ~ The evidence was sufficientforthejurorsto conclude that Larry had actual knowledge that Carri was engaging in extremely reckless conduct on the day of Hana’s death and had actual knowledge that he was promoting orfacilitating this recklessness. (c) Evidence ofCarri’s Knowledge ofand Disregard for Substantial Risk of Death Larryalso contendsthatthere is insufficientevidence to establish that Carri knewofand disregarded a substantial riskofdeath of hypothermia. We disagree. Due process requires the State to prove each element ofthe crime beyond
a reasonable doubt. State v. Mau, 178 Wn.2d 308, 312, 308 P.3d 629 (2013). When a party challenges the sufficiency of the evidence, this court reviews the evidence in the light most favorable to the prosecution. j~ The evidence is sufficient when any rational trier offact could have found the essential elements beyond a reasonable doubt. State v. Baeza, 100 Wn.2d 487, 490, 670 P.2d 646 (1983).On the day of Hana’s death, Carri removed Hana from a locked closet, forced her outside, probably forced her to “walk the line” or do “boot camp,”

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physically beat her, and despite Hana’s erratic behavior, ordered herthree eldest Sons to beat her and force herto dojumping jacks and squats. Moreover, Carri offered cold food to Hana for dinner but then promptly took it away when Hana lacked sufficient bodycoordination to actuallygettheforkto hermouth. Carri later
saw Hana fall to the ground’and Sustain multiple injuries, including a large, visible “knot” on Hana’s forehead, signaling significanttrauma to her head. Yet Carri did nothing to stop what may have been intentionally self-harming behavior or to determine what may have been the cause of her erratic physical movements or her inabilityto eat. And even after learning that Hanawas naked, bloody, possibly concussed, cold, and wet, Carri left Hana sitting on the back porch for hours. Finally, when Carri discovered Hana, unconscious and without a detectable pulse, she called Larry instead ofcalling 9-1-1. Thejury could reasonablyfind that Carri passively stood by while Hana Slipped into unconsciousness from starvation and exposure because Carri simply did not care whether Hana lived or died. We therefore reject Larry’s Claim 1. Claims 2, 4 and 5: Definition ofand Evidence Relatinc~ to “Torture” Larry makes three separate arguments related to evidence that l.W. was a victim of “torture.” First, he contends that the trial court erroneously admitted evidence ofl.W.’s mental and emotional abuse, arguingthattheterm “torture” used in the child abuse statute applies onlyto physical, and notto psychological, harm. Second, he argues thatthe trial court erroneously permitted the State’s experts to opine that LW. had been tortured. Finally, he maintainsthatthe trial courterred in

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failing to providethejurywith a definition oftorture, in violation ofarticle 

### IV, section 16 oftheWashington State Constitution. We reject all three arguments. (a) Definition of“Torture” RCW 9A.36.120 provides: (1) A person eighteen years of age or older is guilty ofthe crime of assault of a child in the first degree if the child is underthe age of thirteen and the person: (a) Commits the crime of assault in the first degree, as defined in RCW 9A.36.01 1, againstthe child; or (b) Intentionallyassaults the child and either: (i) Recklessly inflicts great bodily harm; or (ii) Causes substantial bodily harm, and the person has previously engaged in a pattern or practice either of (A) assaulting the child which has resulted in bodily harm that is greater than transient physical pain or minor temporary marks, or (B) causing the childphysicalpain oragonythat is equivalentto thatproduced bytorture. Larryand Carri moved to exclude evidencethattheirdisciplinarytechniques caused mental anguish without physical pain, arguing that the undefined term “torture” was ambiguous and should be limited to the infliction of physical pain. The trial court rejected this argument: [W]hat the courts are requiring us to do is use common sense and the common sense definition ofthe word torture. I think all we have to do is think about the treatment of POWs and the affect [sic] of isolation and solitary confinement and darkness on someone. It doesn’t have to involve physical harm or pain at all.

-18-No. 77460-3-1119 As a result, the State presented evidence ofthe range ofabusive discipline that Larryand Carri inflicted on l.W.,1° including techniques thatdid not involve the infliction of physical pain, such as spraying l.W. with cold waterwith the outdoor hose or using cold shower water when he wet his pants, punishing l.W. by withholding his food or byfeeding him unpalatable food, forcing lW. to eat meals outside awayfrom the family dining table, locking l.W. in a shower room to sleep when he wet the bed, and isolating l.W. from the rest ofthe family during holiday and birthday celebrations. The State also presented evidence that Larry physically abused l.W. l.W. testified that Larry hit him all over his body with the switches as punishment and thatthese punishments increased overtime. Hetestified that Larry and Carri both hit the bottoms of his feet, causing him pain when he tried to get up and walk. Jacob corroborated l.W.’s testimony. l.W. also testified that Larry once hit him on the head, causing him to bleed, and instead oftending to him, he pushed l.W. out the front door and threw him a towel to wipe up the blood. lW. also showed his
scarstothejury, and hetestified that he received them from beatings by Larryand Carri. And Heidi Kennedy, a CPS investigator, testified about the physical scars she saw and photographed on l.W.’s body after CPS removed l.W. from the Williams home. Larry contends thatthe trial court erred in interpreting “torture” expansively to include actions causing mental anguish. The child assaultstatute requires proof

10 Becausethe assaultchargewas limited to conductagainst lW. and because Larrywas notconvicted of homicide by abuse, we do notaddress theWilliamses’ assaultive conducttoward Hana, which was similar in nature, if not identical, tothatagainst heryoungerbrother.

- 19-No. 77460-3-1/20

of “a pattern or practice

. . . causing the child physical pain or agony that is equivalent to that produced by torture.” RCW 9A.36.120(1)(b)(ii). Larry argues that the adjective “physical” modifies both “pain” and “agony” which in turn limits the meaning ofthe phrase “equivalent to that produced by torture.” We disagree with this interpretation of RCW 9A.36.120(1)(b)(ii). We reviewatrial court’s interpretation ofa statute de novo. Statev. Bunker, 169 Wn.2d 571, 577-78, 238 P.3d 487 (2010). The purpose of statutory interpretation isto give effectto the intentofthe legislature. State v. Sweany, 174 Wn.2d 909, 914, 281 P.3d 305 (2012). To derive legislative intent, we lookto the plain language ofthe statute, considering the text ofthe provision, the context of the statute in which the provision is found, related provisions, and the statutory scheme as a whole. State v. Evans, 177 Wn.2d 186, 192, 298 P.3d 724 (2013). Ifthe statute is unambiguous, then the plain meaning governs. State v. Bostrom, 127Wn.2d 580, 586-87, 902 P.2d 157 (1995). If, however, more than one interpretation of the plain language is reasonable, we then rely on rules ofstatutory construction, legislative history, and relevant case lawto discern legislative intent. Statev. Ervin, 169Wn.2d 815, 820, 239 P.3d 354 (2010); Statev. Barbee, 187 Wn.2d 375, 383, 386 P.3d 729 (2017). Only if the statute remains ambiguous after we apply the traditional canons of construction do we applythe rule of lenity and resolve any ambiguity in a criminal statute in favorofthe defendant. In re Pers. Restraint of Hojkins, 137Wn.2d 897, 901, 976 P.2d 616 (1999); ANTONIN SCALIA& BRIAN A. GARNER, READING L.Aw: THE INTERPRETATION OF LEGALTEXTS 197 (2012).

- 20

-No. 77460-3-1/21

When discerning the plain language ofastatute, we employtraditional rules of grammar. Bunker, 169 Wn.2d at 578. One such rule is the series-qualifier canon, in which an adjective at the beginning of a conjunctive phrase applies equally to each objectwithin that phrase. SCALIA& GARNER, supra, at 147. Ifwe were to apply this syntactic canon, the adjective “physical” would modify both “pain” and “agony.” However, “[p]erhaps morethan most ofthe othercanons, this
one is highly sensitive to context.” j4~ at 150. The contextual “surplusage” canon provides that when possible, we must give every word or phrase effect and not reach an interpretation that renders that word or phrase superfluous. State v. Dennis, 191 Wn.2d 169, 173, 421 P.3d 944 (2018); SCALIA & GARNER, supra, at 174. Ifwe were to construe RCW 9A.36.120(1)(b)(ii)(B) to mean “physical pain or physical agony,” that latter phrase would become redundant ofthe former. There would be no reason to use the word “agony” ifthe Legislature intended to limitthe element ofthe crime in this fashion. When a statutory term is undefined, we must give the words of a statute their ordinary meaning and may look to a dictionary for such meaning. State v. Gonzalez, 168 Wn.2d 256, 263, 226 P.3d 131 (2010). “Agony” has a commonly understood meaning broader than physical pain: “intense pain of mind or spirit: extreme distress: anguish.” WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY OF THE ENGLISH LANGUAGE 43 (2002). “Torture” is also not statutorily defined, but in State v. Peterson, 133 Wn.2d 885, 890-91, 948 P.2d 381 (1997), our Supreme Court cited, with approval, to the dictionary definition in WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY OFTHE ENGLISH LANGUAGE2414 (1969):

- 21

-No. 77460-3-1/22

The infliction of intense pain (as from burning, crushing, wounding) to punish or coerce someone

. . . anguish of body or mind: excruciating agony: extremityofsuffering.

. . an extreme annoyance or severe irritation: an intense strain: something pernicious or baneful

. . . extreme strain orabuse

. Given the context in which the words “physical pain or agony” appear, in connection with the phrase “equivalent to that produced by torture,” and the ordinary definitions ofagony and torture, we conclude the statute covers conduct broaderthan the infliction ofphysical pain. Becausethetrial court’s interpretation was correct, the trial courtdid not err in concluding that evidence of psychological abuse was relevant to the charge of first degree assault of a child. Larry contends the trial court failed to conduct an ER 403 analysis of any ofthe challenged evidence.11 But Larry did not raise this non-constitutional issue on direct appeal and thus must establish by a preponderance of evidence that there was a fundamental defect resulting in a complete miscarriage ofjustice. In re Pers. Restraint ofYates, 177 Wn.2d 1, 17- 18, 296 P.3d 872 (2013). It is difficult for a petitioner to meet this burden for evidentiary errors. ~ Pirtle, 136 Wn.2d at 489 (“[E]ven if there was an evidentiary error with 

## [] opinion testimony, such an error does not constitute a ‘fundamental defect’ amounting to a ‘miscarriage ofjustice’.”) Given the highly probative nature of Larry’s and Carri’s pattern of abuse of 

### I.W. under RCW

~ Carri raised an ER403 challenge in her motion to exclude the evidence. Larryjoined in that motion. From the transcript of the trial, however, it appears that the parties focused their argumenton the relevanceoftheevidence, notits prejudicial effect. The only referenceto ER403 arose in the contextofan argumentto exclude evidence that Larrytouched I.W,’s penis, evidence thetrial courtexcluded as unfairly prejudicial. 

### -22-No. 77460-3-1/23

9A.36.120, Larry has not demonstrated that the admission of this evidence resulted in a complete miscarriage ofjustice. (b) Expert Testimony Regarding Torture Larry next argues thatthe trial court erred in permitting the State’s experts to testifythat Larrytortured 

### l.W. The State presented two expertwitnesses on the topic oftorture: John Hutson, a former Navy Judge Advocate General (JAG) and formerdean of Franklin Pierce School of Lawatthe University of New Hampshire, and Dr. Katherine Porterfield, a clinical psychologistatthe Bellevue/NYU Program for Survivors ofTorture. John Hutson Hutson had expertise in the international norms relating to torture, specifically those set out in the Geneva Conventions,12 the United Nations Convention againstTorture,13theWarCrimesAct,14 and theArmy Field Manual.15

12 See Geneva Convention forthe Amelioration ofthe Condition ofthe Wounded and Sick in Armed Forces in the Field (Geneva Convention No. I), Aug. 12, 1949, 6 U.S.T. 3114, 75 U.N.T.S. 31; Geneva Convention for the Amelioration of the Condition of the Wounded, Sick, and Shipwrecked Members of Armed Forces at Sea (Geneva Convention No. II), Aug. 12, 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85; Geneva Convention Relative to the Treatment of Prisoners ofWar (Geneva Convention No. III), Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135; Geneva Convention Relativetothe Protection ofCivilian Persons in Time ofWar (Geneva Convention No. IV), Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287. The Geneva Conventions have been signed and ratified by every country in the world, including the United States, and thus havethe force of law in the United States under article VI, cI. 2 of the United States Constitution. United States v. Hamidullin, 888 F.3d 62, 66 (4th Cir. 2018).

13 United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatmentor Punishment, Dec. 10, 1984, 23 I.L.M. 1027, 1465 U.N.T.S. 85. President Reagan signed the Convention on April 18, 1988. Zhenp v. Ashcroft, 332 F.3d 1186, 1192 (9th Cir. 2003). The Senate adopted its resolution of advice and consentto ratification on October27, 1990. 136 Cong. Rec. 36,198 (1990). On October 21, 1994, President Clinton deposited the instrumentof ratification with the United Nations, and the Convention AgainstTorture was entered into force forthe United States thirty days later. Zheng, 332 F.3d at 1193.

14 18 U.S.C. §2441. 15 ~ Dep’t of the Army Field Manual: The Law of Land Warfare, FM 27-10 (1956), https://usacac.army.mil/sites/defauIt/files/misc/doctrine/CDG/cdg_resources/manuals/fm/fm27_1 0 .pdf. -23-No. 77460-3-1/24

He testified thatthe Geneva Conventions setthe “gold standard” in defining “those things that are generally considered to be torture.” Defense counsel objected to Hutson’s testimony on several grounds, challenging Hutson’s qualifications, the relevance of his testimony, and the appropriateness ofanytestimony defining torture. The trial court ruled: [W]ith respect to this witness’s expert testimony on the topic of torture, I wanted to put on the record the basis forthe ruling that he can testify. As I understand the arguments from [c]ounsel, the first is thatthewitness’[s] expression ofan opinion on whetheror notthis conductconstituted torturewould invadethe province ofthejury, and that it’s for the jury to decide whether or not this is torture, and therefore, no expert should be allowed to testify on that subject. I’ve considered that argument, and I think that under these circumstances the testimony is appropriate. Experts often testify on topics that are assigned for decision by the jury. Causation is an examplethat probablyappears in at least75 percentofthe caseswe dealwith, and experts alwaystestifyorquite often testifyon the issue ofcausation even though thejury is ultimately assigned to determine whetheror notthere is a causal connection. Itseemsto methatthis is somewhat analogous. It’s notthe ultimate question beforethejury; it is one ofthose preliminarydeterminations that’s part ofthe analysis, and it seems to me that it’s appropriate to have an expert testify at that level of analysis. It doesn’t go to the ultimate question ofwhether or not the defendants are guilty ofthe charges, but merelywhether certain conduct constitutes torture. So I don’tthink it invades the province ofthejury inappropriately. The next argument, as I understand it, is thatthe experttestimony is unnecessary because the analysis of whether something is torture or not is within the ken of an average lay juror. Certainly some conductwould fall in thatcategory

—thumb screws, the rack, burning matches underthe fingernails, that kind ofthing. Butthat’s notwhat we have here. Whatwe have here is a more subtle combination ofthings involving children from anothercountry in an environment offamily, and that’s probably not the sort of thing that’s going to be within the understanding of an ordinary juror, at least not completely. Most people’s exposure to torture is in fiction or movies, maybe reading

- 24

-No. 77460-3-1/25

the newspaper, but certainly not any kind of real understanding or exposure to the topic at all. And so I think it is testimonythat can be helpful to thejury in analyzing this factor. The last issue is

— challenge, as I understand it, is to the qualifications ofthis expert, specifically. And I’vetaken a lookatthat very carefully. I looked at his curriculum vitae yesterday. I read his reportthis morning. I listened to his testimonyyesterday. It appears thatthis individual has been studying this subject forthe lasttwelve years, and although he doesn’t have a degree in the topic, has not done any research on thetopic, itappears that he has been involved in analyzing and exposing himself to the topic for the last twelve years, and had some exposure before that as part of his work in the militaryand as a military attorney and dean ofa law school. So I think he does have the qualifications to assist the jury in analyzing this particularaspect ofthe case, and soforthose reasons I allow his testimony. Hutson testified that the international standard against torture prohibits “cruel, inhumane, and degrading treatment,” including humiliation and violations of personal dignity. He stated thatmanypeople havethe misconception that“torture” is exclusively physical, and thatwhile beatings and pain may be torture, “some of the most insidious and the most painful torture is sensory deprivation, isolation threats of torture

. . . [and] watching somebody else for whom you care be tortured

. . . .“ He testified that torture includes both mental and psychological anguish. Hutson explained that the factors to consider when deciding whether conduct is torture include the duration and frequency of the conduct, the combination of various types of mistreatment, the physical and emotional well being ofthevictim, and the motivation ofthe alleged perpetrator. Hutson testified that “classic examples” oftorture include beating a victim
on the bottom ofthe feet, requiring them to take cold outdoor showers, confining them in small spaces, such as a shower room, denying them the abilityto control

- 25

-No. 77460-3-1/26

lighting conditions in the place of confinement, serving inedible or unpalatable food, and requiring them to eat in isolation. Hutson discussed his understanding ofthe conditions 

### l.W. experienced in the Williams home and testified that, in his opinion, the Williamses’ beatings and isolation of I.W. were extreme. At the end of his direct testimony, Hutson was asked: Q: Doyou have an opinion whether HanaWilliams and [I.W.J, through the courseoftimethattheywere living attheWilliams house, were subjected to torture, and ifyou do have such an opinion, what is.

. . youropinion? A:

. . . Yes, I do have an opinion with regard to each ofthem. And in my judgment, it’s not a close case. They both were, unquestionably, tortured. Dr. Porterfield Dr. Porterfield had expertise in the treatment of victims ofwar or refugee trauma and torture. As director of her clinic, Dr. Porterfield established intake criteria, using a definition of torture adopted by the United Nations, to assess individuals seekingtreatment. Shealso createdtreatment plans, providedtherapy, and supervised the therapies provided by others on herstaff, fortorture victims. When Dr. Porterfield was asked to define “torture,” defense counsel objected. The trial court sustained the objection, permitting Dr. Porterfield to describe the criteria she used when deciding whetherto admit someone into her program and to opine whether Larry’s and Carri’s actions metthese criteria. The trial court disallowed herfrom defining torture “because it’s going to be confusing to thejury how manydefinitions are outthere and who’s using what.”

- 26

-No. 77460-3-1127 Consistentwith thetrial court’s ruling, Dr. Porterfield testified thatthe criteria she used in assessing torture victims included evaluating for PTSD ordepression and comparing the patients’ reports of what had happened to them against the standards laid out in the Tokyo Declaration16 and the United Nations Convention Against Torture. These criteria include determining whether the person experienced acts involving severe psychological or physical pain orsuffering. Dr. Porterfield testified that in this case, she was asked to determine whetherthe treatment of l.W. was “consistentwith torture,” as thatterm is defined by medical professionals, and whether the kind of treatment 

### l.W. and Hana experienced would cause severe suffering, pain, and anguish. Dr. Porterfield then testified thatafter reviewing witness statements and the testimonyoftheWilliams children, interviewing therapists and social workers, and interviewing and evaluating l.W. in person,17 she concluded that the treatment of l.W. was consistentwith physical and mental “systematic” torture. Dr. Porterfield pointed totwo overarching aspects ofl.W.’streatmentto supportthis conclusion— first, the systemic, planned, and deliberate nature of the abusive and coercive treatment; and second, the combination of psychological and physical abuse that would have been particularlydamaging to children.

16 World Medical Association Declaration of Tokyo

— Guidelines for Medical Doctors Concerning Torture and OtherCruel, Inhuman or Degrading Treatmentor Punishment in Relation to Detention and Imprisonment, adopted by the 29th World Medical Assembly, Tokyo, Japan, October 1975, available at http://www.cirp.org/Iibrary/ethics/tokyo/.

17 Before Dr. Porterfield offered any specific opinions, the court instructed the jury that Dr. Porterfield’s recounting of events in the Williams home could be considered only in deciding whatweightthejuryshould giveto heropinions and thatthejurycould notconsiderthe recounting ofthese events astrue orassume from hertestimonythatthe events described actuallyoccurred. -27-No. 77460-3-1/28

As tothe systemic nature ofthetreatment, Dr. Porterfield noted that Larry’s and Carri’s treatment of l.W. was not impulsive but explicitly planned to “curb

. rebelliousness.” She discussed the severity and frequencyofthe punishment, the duration ofthe most severetreatment, and the planned use ofspecific items used to hitthe children as indications ofa systemic pattern ofabuse. As to the combined impact of psychological punishment and physical discipline, Dr. Porterfield testified thatthe withholding offood and isolation during meal times was a type of isolation thatwould be “quite distressing and damaging to a child.” She testified that restricting food repeatedlyoraltering food to make it unpalatable or unappealing while the rest of the family could be seen eating a regular meal was consistent with a kind of psychological and physical treatment designedto make a person feel humiliated. Dr. Porterfield furthertestified that l.W. suffered from both psychological humiliation and degradation and physical discomfort when Larry and Carri hosed him off outside with cold water when he wet his pants. Dr. Porterfield described the isolation of 

### I.W. when he was locked in the shower room overnight after wetting the bed or separated from the family for stealing food or lying, and the physical mistreatment of I.W. when he was doused with cold water as punishment for wetting himself, and beaten repeatedly. I.W. described his parents’ handling of his toileting problems as particularly humiliating and degrading because hissiblingswere instructed to checkthe inside ofhis pants to determine if he had wet himself. Dr. Porterfield furthertestified that when she

- 

### 28

-No. 77460-3-1/29

spoke to 

### l.W. directly about his experiences, he became very agitated and distressed. Dr. Porterfield concluded thatthe combination of isolation, physical abuse, and humiliating treatment LW. experienced was consistent with torture underthe criteria she used to evaluate patients. Larry argues that Hutson’s and Dr. Porterfield’s testimony constituted an impermissible opinion ofguilt. Whilewhetherto admitexpertopinions, and towhat extent, is within the sound discretion ofthe trial court, State v. Swan, 114 Wn.2d 613, 655, 790 P.2d 610 (1990), an expert witness may not testify as to their personal belief of a defendant’s guilt, the intent ofthe accused, orthe veracity of witnesses, whether by direct statement or inference, State v. Black, 109 Wn.2d 336, 348, 745 P.2d 12 (1987); State v. Montgomery, 163 Wn.2d 577, 591, 183 P.3d 267 (2008). To determine whethera statement constitutes an impermissible opinion on guilt, we consider (1) the type of witness involved; (2) the specific nature of the testimony; (3) the specific nature ofthe charges; (4) the type of defense; and (5) the other evidence before the jury. State v. Kirkman, 159 Wn.2d 918, 928, 155 P.3d 125 (2007). Courts need not exclude experttestimonyjust because itcovers an ultimate issuethatthejury mustdecide. j~ at929. And thefactthatan expert’s opinion on an ultimate factual issue supports the conclusion that a defendant is guiltydoes not make the testimony an improper opinion on guilt. City ofSeattle v. Heatley, 70 Wn. App. 573, 579, 854 P.2d 658 (1993).

-29-No. 77460-3-1/30

Applying the Kirkman test, the admissibility of Hutson’s testimony was a closer call than that of Dr. Porterfield because of the difference in the nature of theirexpertiseand personal involvementinthe case. With the exception ofasingle statement by Hutson, however, we conclude admitting the expert testimony fell within the trial court’s discretion. First, Hutson was an expert on international standards relating to torture. He had no personal involvement in the case itself. Generally, experts are not permitted to offer opinions of law in the guise ofexpert testimony. Tortes v. King County, 119 Wn. App. 1, 12, 84 P.3d 252 (2003). But Hutson explained howthe international standards prohibiting torture developed historically. He also identified specific acts—both physical and psychological—that have been condemned by the international community. This testimony was relevant to Larry’s “lawful discipline” defense. Instruction 27 told thejurythat itwas a defense to assault of
a child to use lawfulforce and that“[t]he physical discipline ofa child is lawfulwhen it is reasonable and moderate, and is inflicted by a parent for purposes of restraining or correcting the child.” Although one can argue thatthe international standardssetout in the Geneva Conventions constitutestatements ofinternational law, they are more than that. The standards represent a global recognition that certain conduct in the use offorce against humans—whether adults or children— is neither reasonable nor moderate. Dr. Porterfield is a clinical psychologistwho personally evaluated l.W. Her expertise as a medical providerand herdirectinvolvementin assessing how l.W.’s treatment affected him put her in a position to determine if l.W. had suffered “pain

- 30

-No. 77460-3-1/31

oragony” equivalenttothattypicallyseen in torturevictims. Herexpertisewasjust
as relevant as Hutson’swas, butfordifferent reasons. Second, the focus of Hutson’s testimonywas the historical development of international standards forthe prohibition on torture, where he explained “classic” methods of discipline or treatment deemed impermissible because of the pain, mental anguish, humiliation and loss ofpersonal dignitythetreatment caused and compared those classic methods oftorture with the alleged treatment of l.W. As this court stated in Carri’s direct appeal, this testimony was helpful to the jury to understand more subtleforms oftorture. C. Williams, No. 71193-8, slip. op. at 19. Hutson’s testimony did cross the line in one instance. Hutson’s last statement on direct examination was that, in his opinion, l.W. and Hana had been tortured while living in the Williams home. We conclude that this testimony was analogous to the impermissible opinion of guilt given by a forensic chemist and detective in Montgomery. In that case, a detective and forensic chemist testified that the two defendants possessed pseudoephedrine “with the intent” to manufacture methamphetamine, the charged crime. 163 Wn.2d at 588-89. The Supreme Court determined that the testimony of the defendant’s intent was impermissible. The Supreme Court noted, however, that itwould have been permissible to askthe witnesses ifthe evidence was “consistent” or “inconsistent” with an intent to manufacture methamphetamine, for the witness to respond in the affirmative, and then forthe witness to explain why this consistency existed. ki. at 594, n.8. In the present case, had the State’s last question and Hutson’s answer been

- 31

-No. 77460-3-1132

couched inthe“consistency rubric” as recommended in Montgomery, itwould have been permissible. However, the testimony came out as Hutson’s personal belief of Larry and Carri’s guilt. We agree with Larry that this portion of Hutson’s testimonywas improper. But, as in Montgomery, neither Carri’s nor Larry’s counsel objected to this specific question, despite the trial court’s statement that it would need to assess Hutson’stestimonyon a question-by-question basis. Nordid defense counsel ask to strike Hutson’s answeroraskfora curative instruction. In contrastto Hutson’s impermissible statement, Dr. Porterfield’s testimony did not cross the line. She testified about the criteria that medical professionals
use to make psychological assessments. At no point did Dr. Porterfield state that, in her opinion, Larry tortured his children. Instead, she stayed within the trial court’s limitation oftestifying that Larry’s conductwas “consistentwith torture,” as that term is understood by medical professionals. Dr. Porterfield’s testimony fell squarely in the Montgomery rubric. Third, Larry’s defenses to the child assault charge were a general denial and the statutory defense of reasonable parental discipline set out in RCW 9A.16.100.18 Larry’s focus attrial was on the lack ofevidence ofany “substantial bodily harm” under RCW9A.36.120.19 He argued therewas no evidence that l.W.

18 Instruction 27 provided that itwas a defense to the child assault charge that any force used was “lawful.” The jury was instructed that to be lawful, the physical discipline must be “reasonable and moderate, and is inflicted bya parentforpurposesofrestraining orcorrecting the child.” 19 Instruction 22defined “substantial bodilyharm”as“bodily injurythatinvolvesatemporary butsubstantial disfigurement, orthatcauses atemporary butsubstantial loss or impairmentofthe function ofany bodily partororgan, orthatcauses afracture ofany bodily part. The State argued

- 32

-No. 77460-3-1/33

had sustained a “substantial disfigurement,” or“substantial loss or impairment” of any bodily 

### part, or “fracture of any bodily part.” Larry also challenged l.W.’s credibility, calling him a “self-professed liar,” and argued that he was “highly suggestible,” remembering events that simply did not occur. Larry contended that he never hit l.W. on the head causing him to bleed. And Larry argued that l.W.’s
scars preexisted his immigration to the United States. Neither Hutson’s nor Dr. Porterfield’s testimony undermined Larry’s contention that he did not cause substantial bodily harm to l.W. Thejury remained free to accept Larry’s or l.W.’s version ofevents as to the severity of Larry’s physical discipline. Finally, astothe otherevidence beforethejury, Larrydid notdenyengaging in most of the conduct Hutson and Dr. Porterfield focused on in their testimony. Several of Larry’s children witnessed the events on which Hutson’s and Dr. Porterfield’s opinions were based. Although Larry argued that “torture” does not include mental anguish, we disagree. There was nothing in Hutson’s or Dr. Porterfield’s testimonythat conflicted with state law.2° Underthe Kirkman factors, we conclude thatthe trial courtdid notabuse its discretion in allowing Hutson’s and Dr. Porterfield’s testimony. Even though one ofHutson’s statementswas impermissible, wedo notdeem itto be reversible error.

that Larry hit l.W., causing scars, and hit LW. on the bottom of his feet so hard that he could not move, both ofwhich constituted substantial bodily harm.

20 Larry asks this court to follow the Pennsylvania Supreme Court’s reasoning in Commonwealth v. Crawley, 526 A.2d 334 (Pa. 1987), where the Pennsylvania Supreme Court reversed a conviction for aggravated murder after the jury was erroneously instructed on the definition oftheterm“torture.” The StateallegedthatCrawleyhad committedthe murder bymeans of torture,” and it called an expert to define the term “torture.” Id. at 562. But that case is distinguishable because the expert not only explicitly defined the term “torture,” he did so in a manner inconsistent with Pennsylvania law. Here, there was no conflict between the expert testimonyand Washington law.

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-No. 77460-3-1/34

Important to the determination of whether opinion testimony prejudices a defendant is whetherthejurywas properly instructed. Montgomery, 163Wn.2d at 595. In Kirkman, our Supreme Court concluded there was no prejudice in large part because, despite the improper opinion testimony on witness credibility, the jury was properly instructed thatjurors were the sole judges of the credibility of witnesses and thatjurors are not bound by expertwitness opinions. 159Wn.2d at 937. It also found such instructions sufficient to eliminate any prejudice in Montgomery, 163 Wn.2d at 596. In this case, thejurorsweresimilarlyinstructed thattheywerethe solejudge ofthe credibility of any witness, and that they could accept or reject any opinion testimonyfrom expertwitnesses. During the testimony of Dr. Porterfield, Dr. Julia Petersen, and Dr. Wiester, the trial court instructed the 

### jury that it could not consideranyexpert’s recounting ofevents astrue oracceptastruethatthe events the experts described actually occurred. Although the trial court did not give this limiting instruction during Hutson’s testimony, the jury was repeatedly instructed during trial and in the written instructions that it was to weigh the credibility and opinions of experts on its own. Jurors are presumed to follow these instructions. Kirkman, 159Wn.2d at 937. Wefind no actual prejudicefrom this single, isolated statement by Hutson. (c) The Lack of“Torture” Definitional Instructions Larry nextarguesthatthatthetrial courtviolated article IV, section 16 ofthe Washington Constitution because itdid notprovide an instruction definingtheword

- 34

-No. 77460-3-1135

“torture”forthejuryand invited the expertsto do so. We rejectthis claim because it is unsupported bythe record and case law. Article IV, section 16 provides: “Judges shall not chargejuries with respect to matters offact, norcommentthereon, but shall declarethe law.” Generally, an expert may not express an opinion on the meaning of a legal term when the definition ofthatterm is in dispute. Statev. Hag, 166Wn. App. 221, 269, 268 P.3d 997 (2012). And an expert’s incorrectstatement ofthe law, particularlyone critical to a defense, may warrant the reversal of a conviction. State v. Clausing, 147 Wn.2d 620, 629, 56 P.3d 550 (2002). Here, the trial court did not “invite” either Hutson or Dr. Porterfield to define the word “torture” underWashington law. In fact, when Dr. Porterfield was asked to define “torture,”defense counsel objected becausethetrial court had previously ruled that Hutson could not define the term forthejury:

[W]e would object to Dr. Porterfield providing an actual definition of torture because, first of all,

. . . she indicated that this wasn’t based on Washington law. So we believe that it’s improper forawitness to give an opinion as to whatthe law says. So she could state that in her clinical opinion, certain things constitute torture. But for her to actually give a definition of what torture is

. . . invad[es] the province ofthe Court in instructing the

### jury as to whatthe law is. And when John Hutson testified a couple ofweeks ago, he was not allowed to actuallygive an outright definition, and I believe it was for that basis. He was allowed to talk about what things constituted torture, and a little bit about the history of international law on torture, but not to give actual definitions. So we would ask thatthe ruling be consistent between these two experts. (Emphasis added). The trial court permitted Dr. Porterfield to testify about the criteria she considered in deciding whether to admit someone into hertreatment

- 35

-No. 77460-3-1/36

program, to discuss whether those criteria are generally accepted in the international medical and psychological community, and whetherthe actions she reviewed and observed in the Williams children metthese criteria. The trial court sustained the defense objection and prohibited Dr. Porter-field from defining torture “because it’s going to be confusing to thejury how many definitions are out there and who’s using what.” Additionally, neither Carri nor Larry requested a jury instruction defining torture. And neithertook exception to the lack ofany such definitional instruction. CrR 6.15(c) requires counsel to make a timely and well-stated objection to instructions given or refused in orderthat a trial court may have the opportunityto correct any error. State v. Scott, 110 Wn.2d 682, 686, 757 P.2d 492 (1988). No
errorcan be predicated on afailure ofthetrial courtto give an instruction when no requestforsuch an instruction was ever made. Id. Although article IV, section 16 requires the court to declare the applicable law, Larry cites no authority for the proposition that there is a constitutional requirementto define aterm used in an instruction. Although due process requires the trial court to inform thejury of all elements ofthe crime, Scott, 110 Wn.2d at 690; State v. Smith, 131 Wn.2d 258, 263, 930 P.2d 917 (1997), the “failure to give
a definitional instruction is not failure to instruct on an essential element.” Scott, 110 Wn.2d at 690 (quoting State v. Tarancio, 105 N.M. 592,599, 734 P.2d 1275 (Ct. App. 1987)). As our Supreme Court said in Scott, “we find nothing in the constitution

. . . requiring that the meanings of particular terms used in an instruction be specifically defined.” j~ at 691. Because the issue is not one of

- 36

-No. 77460-3-1/37

constitutional magnitude, wewill reverse a conviction only ifwefind afundamental defect resulting in a complete miscarriage ofjustice. Larry has not made such a showing here. Forthese reasons, we deny Larry’s Claims 2, 4, and 5.

Claim 3: TestimonyAbout l.W.’s PTSD Larry next claims thatthe trial court abused its discretion when it admitted experttestimonythat

### l.W. suffered from PTSD, arguing thatthis testimonywas an impermissible opinion of his guilt. We rejectthis claim as weN. Larry moved to exclude evidence of l.W.’s PTSD as irrelevant. The trial courtdenied the motion, reasoning thatthetestimony had “atendencyto makethe existence offacts regarding whatwent on in the Williams’ household more likely.” In this collateral attack, Larryarguesthattestimonythat l.W. experienced traumatic events while living with the Williamses was essentially testimony that Larry had assaulted l.W. The testimony came from Dr. Petersen, a psychiatrist at Seattle Children’s Hospital, who started treating LW. in 2011, and from Dr. Porterfield. Dr. Petersen testified when she first met with lW., she took a history from him, conducted a mental status exam, developed a diagnosis, and then made recommendations for therapy based on the trauma he had expressed in herfirst session. Dr. Petersen recounted that l.W. told herthat he felt scared, fearful, and confused. He did not want to return to his adoptive home and wanted some explanation for why his adoptive parents “hurt me physically,” and caused Hana to experience “pain physically.” l.W. described experiencing nightmares, becoming obstinate and oppositional, and having tantrums. He expressed worry at making mistakes, and

- 37

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the fearof being punished forspeaking out orsharing experiences he had had in his adopted home. LW. also reported being physically harmed. He was able to identifywho in the family harmed him and what exactlytheydid to him. He told Dr. Petersen that Larry and Carri both hit him with a rod on his feet and that Larry struck him with a belt. When Dr. Petersen asked about Hana, I.W. became tearful and said he was scared to tell her “any secrets.” l.W. described Hana as his protectorwho spoke outfor him. He knew Hana was experiencing harm in the home. Based on her assessment of l.W., Dr. Petersen diagnosed PTSD, a condition thatarises outoftrauma that impacts a person’s dailyfunctioning, social abilities, thinking, and emotional regulation. She based her diagnosis on criteria set out in the DSM-IV.21 One ofthe DSM-IV criteria is having been exposed to a traumatic event. Dr. Petersen testified that lW. shared that he had witnessed traumaticevents, of Hana being hurt, and offeeling helpless and not being ableto
save or protect her. Other traumatic events l.W. disclosed involved the fear he developed from being physically harmed and the helplessness hefelt because he could not escape. Dr. Petersen described the symptoms l.W. developed, including recurrent thoughts, nightmares, bed wetting, the fear of talking about feelings and of interacting with his foster family, an inability to recall important details of the

21 AM. PSYCHIATRICAss’N, DIAGNOSTICAND STATISTICAL MANUAL OF MENTAL DISORDERS: DSM-IV-TR (4th rev. ed. 2000).

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trauma, social withdrawal, difficultly sleeping, hypervigilance, and a high level of anxiety. Dr. Porterfield testified that she too diagnosed l.W. with PTSD and depression based on information collected from l.W. and his two therapists. Like Dr. Petersen, she testified that l.W. reported having flashbacks, an inability to sleep, irritability, self-blaming thoughts, and a fear of death and of being harmed by the Williamses. She testified that her examination found that the content of I.W.’s fears and anxieties stemmed from his experiences in theWilliams home. Larry contends that because one of the diagnostic criteria for PTSD is exposure to a traumatic event, Dr. Petersen’s and Dr. Porterfield’s diagnosis implicated Larry in the charged crime ofassault. He relies on Black, in which our Supreme Court held thatthetrial courtabused its discretion in admitting testimony from a rape counselor that the victim had been diagnosed with “rape trauma syndrome,” evidence on which the State relied to prove that the defendant had raped the victim. 109 Wn.2d at 338. The issue in Black, however, was whether the presence of certain symptoms was a scientifically reliable method of proving rape. Canton v. VancouverCare, LLC, 155Wn.App. 151,163,231 P.3d 1241 (2010). The holding in Black rested on the conclusion that under 

### Frye,22 a diagnosis of rape trauma syndrome was not generally established as a scientifically reliable means of proving that a rape had occurred. 109 Wn.2d at 348. Larry does not challenge Dr. Petersen’s or Dr. Porterfield’s testimony under Frye. Unlike in Black, the State

22 Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).

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did notoffertestimonyfrom Dr. Porterfield and Dr. Petersen to establish that Larry had assaulted I.W. In fact, the trial court explicitly instructed the

### jurythat it could not rely on the testimony of these experts to conclude that the assault had occurred. The Court in Black said “[wje do not imply, of course, that evidence of emotional orpsychological trauma suffered bya complainantafteran alleged rape is inadmissible in a rape prosecution.” 

### j~ at349. It is nowgenerallyaccepted that mental disorders, and specifically PTSD, are beyond the ordinary understanding of laypersons. State v. Green, 182 Wn. App. 133, 146, 328 P.3d 988 (2014). In State v. Ciskie, 110 Wn.2d 263, 280, 751 P.2d 1165 (1988), for example, the Supreme Court held that admitting testimony from a psychological expert that an alleged rape victim had been diagnosed with PTSD was not an impermissible comment on the credibility of the victim where the trial court limited the expert’s testimony to the fact of the diagnosis without allowing the expert to indicate her assessment ofthe victim’s credibility. Similarly, in Statev. Florczak, this courtconcluded thatthetrial courtdid not
err when it admitted an expert’s testimony that the child victim of alleged molestation suffered from PTSD. 76 Wn. App. 55, 74, 882 P.2d 199 (1994). The court found error only because that same expert testified the child’s PTSD was “secondary.

. . to sexual abuse.” 

### j~ By stating herdiagnosis was “secondaryto

-40-No. 77460-3-1/41

sexual abuse,”the court concluded the expert had rendered an opinion of ultimate factthatthe child had in fact been sexually abused. ~23 Here, this case is analogous to Ciskie and distinguishable from Florcsak. Unlike Florczak, neitherexpertexpressed an opinion that Larryassaulted l.W. The providers merely recounted statements 

### l.W. made to them. But their diagnoses
were not based solely on their assessment of l.W.’s credibility. They interviewed others involved in l.W.’s life, such as l.W.’sfosterfamily, teachers, social workers, and other medical providers. Dr. Petersen observed l.W. in his classroom. Dr. Porterfield reviewed police reports; viewed photographs of Hana, I.W. and the other members ofthe Williams family; read the autopsy and toxicology report on Hana; read handwritten notes between the Williams children; and reviewed medical records, adoption agency records, transcripts of interviews with the Williamses children, and testimony from a shelter care hearing afterthe Williams children were removed from theirparents’ home. Underthese circumstances, the trial court did not abuse its discretion in admitting expert testimony that lW. had been diagnosed with PTSD. Forthese reasons, we deny Larry’s Claim 3. Claim 6: Testimony Relating to the Book, “To Train Up a Child” Larry next contends that the trial court erroneously admitted testimony related to a “controversial” parenting book, To Train Up a Child,24 a book law enforcement officers seized from the Williams home. Although Larry argues this

23We notethatthe court in Florczakdid not reverse the defendant’s conviction, concluding thattheerrorwas harmless becausethe untainted evidencewasso overwhelming asto necessarily supportthe guiltyverdict. 76 Wn. App. at75.

24 MICHAEL& DEBI PEARL, To TRAIN UPACHILD (1994). -41-No. 77460-3-1/42

evidence infringed on his FirstAmendment rights, he cites to no cases in which a court treated this type of evidentiary challenge as an error of constitutional magnitude. Although on direct appeal we review a trial court’s evidentiary rulings forabuse ofdiscretion, In re Pers. Restraint of Duncan, 167 Wn.2d 398, 402, 219 P.3d 666 (2009), on collateral review, we must determine if the petitioner has established a fundamental defect resulting in a complete miscarriage ofjustice, Pirtle, 136 Wn.2d at489. We conclude no such defect occurred here. During trial, the State marked the book as Exhibit 436 but did not offer it into evidence. One of Larry’s sons testified that he was familiarwith this book and that his mother had indicated the book guided her discipline techniques. When Carri took the stand, she testified that she had read the book and that she had pulled ideas from the book for disciplining her children, including using a plumbing line to spank herchildren and using a garden hose to “rinse off” children as a part of their potty training. Carri admitted thatthe family had the quote “to train up a child” on a sign affixed to the wall in their home. Carri further admitted that the book informs readers that spanking should cause pain. Jacob, whowas recruited by his parentsto discipline the other children, testified that punishment should involve the infliction of pain. Larry also testified he wanted to inflict pain or discomfort when spanking the children. The evidence was probative of whether the physical discipline Larry and Carri chose was “reasonable and moderate” and “inflicted by a parent

. . . for purposes of restraining or correcting”the children, the defense Larry raised under

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RCW 9A.16.100. A reasonablejury could conclude that the book recommended methods of discipline that Larry and Carri incorporated into their daily parenting practice and thatthe purpose ofa chosen disciplinary practice was to cause pain and fear in the child being punished, ratherthan to correct misbehavior. The fact thatthey chose disciplinary procedures laid out in that book, told the children that theywere following the book as a guide, and had the title ofthe booktaped on a poster on the wall oftheir home, made it highly probable thattheywere following the book’s recommended practices for a purpose otherthan to restrain or correct theirchildren. Norwas the limited testimony aboutthe book’s contents prejudicial. Larry citesto Statev. Coe, 101 Wn.2d 772, 684 P.2d 668 (1984), and to Statev. Hanson, 46 Wn. App. 656, 731 P.2d 1140 (1987), to support his claim that the book was more prejudicial than probative. Butthose cases are distinguishable becausethey both involved the admission ofthe defendant’s own writings as characterevidence to showa propensityforcommitting the charged crimes. In this case, neither Larry
nor Carri authored To Train Up a Child. The State was not offering the evidence to establish their propensityto commit child abuse. Instead, it soughtto establish that Larry and Carri intentionally chose punishments intended to inflict pain and humiliation on Hana and l.W., notto correct misbehavior.25

25 Larry also relies on State v. Waters, 627 F.3ci 345 (9th Cir. 2010). But Waters is inapplicable. There, the defendant was charged with arson after setting fire to buildings on the University ofWashington campus to protest genetic engineering. j~ at 348. The Ninth Circuit concludedthatthedistrictcourterroneouslyadmitted “anarchistliterature” becausethedistrictcourt failed to read the literature in advance to determinewhether itwas more prejudicial than probative. ki. at357. Here, the trial courtdid notadmitthe book into evidence. -43-No. 77460-3-1/44 Finally, Larry argues thatthe bookwas ‘known to be controversial,” but he cites nothing in the record to support this proposition. Nor is there any indication in the record that any ofthejurors were familiarwith the book, its authors, or any controversy surrounding its contents. Because the trial court did not admit the book into evidence, and the jury’s exposure to its teachings was limited to the testimony elicited from Carri and from their third eldest son, Larry has failed to establish that admitting testimony about Carri’s or Larry’s use of, or reliance on, recommendations contained in To Train Up a Child constituted a fundamental defect amounting to a miscarriage ofjustice. We deny Larry’s Claim 6.

Claims 7 & 8: IneffectiveAssistance ofCounsel Finally, Larry asserts that his counsel, both at trial and on appeal, was deficient in violation of his Sixth Amendment rightto counsel. First, he claims that his trial counsel’s failure to requestseverance ofthe counts relating to Hana from the count relating to l.W. was deficient. Second, he argues that his trial counsel’s failure to objectto the testimony aboutTo Train Up a Child was deficient. Finally, he contends that his appellate counsel was deficient forfailing to raise on direct appeal many ofthe issues raised in this personal restraint petition. A criminal defendant has a right to effective assistance of counsel at trial and on his first appeal of right. Strickland v. Washinciton, 466 U.S. 668, 698, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); In re Pers. Restraint of Dalluqe, 152 Wn.2d 772, 787, 100 P.3d 279 (2004). A claim of ineffective assistance of counsel presents a mixed question of law and fact. In re Pers. Restraint of Fleming, 142

- 44

-No. 77460-3-1/45

Wn.2d 853, 865, 16 P.3d 610 (2001). Because ofthat, this court reviews claims of ineffective assistance de novo. To prevail on a claim of ineffective assistance oftrial counsel, a petitioner mustdemonstratethatcounsel’s performancewas deficient and thatthis deficient performance prejudiced the defense. j.~ The first prong requires a showing that counsel’s representationfell belowan objective standard ofreasonableness based
on consideration of all the circumstances. jç~ at 865-66. The second prong requires the defendant to show there is a “reasonable probability” that, but for counsel’s errors, the results ofthe proceeding would have been different. k~. A reasonable probability is a probability sufficient to undermine confidence in the outcome. jçj~ (quoting Strickland, 466 U.S. at694). To prevail on a claim of ineffective assistance of appellate counsel, the petitioner must demonstrate the merit ofthe legal issues appellate counsel either raised inadequately orfailed to raise at all, and to show how he was prejudiced by this deficient performance. In re Pers. Restraint of Netherton, 177 Wn.2d 798, 801, 306 P.3d 918 (2013). Failure to raise all possible non-frivolous issues on appeal is not ineffective assistance of appellate counsel, and the exercise of independentjudgment in deciding what issues may lead to success isthe heart of the appellate attorney’s role. Dallupe, 152 Wn.2d at 787. (a) Trial Counsel’s Failure to Movefora Severance Larryfirst asserts that his trial counsel’s failure to request severance ofthe counts related to Hana from the count related to l.W. constituted deficient performance. One of Larry’strial attorneys, Rachel Forde, submitted adeclaration

-45-No. 77460-3-1/46

that she did notfile a motion to sever because it simply did not occurto herto do
so. Even ifwe assumethattrial counsel’sfailuretofile this motion as “inadequate trial preparation, inadequatefactual investigation or inadequate legal research,”as Larry argues, we must still determine if such a motion would likely have been granted and, if so, whetherthere is a reasonable probability that the outcome of the trial (ortrials as the case may be) would have been different. UnderCrR 4.3(a), joining offenses in onetrial is allowed where the charged offenses “(1) [a]re of the same or similar character, even if not part of a single scheme or plan; or (2) [a]re based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan.” State v. Bluford, 188Wn.2d 298, 310, 393 P.3d 1219 (2017). When determining whether to sever charges, a trial court must consider “(1) the strength ofthe State’s evidence on each count; (2) the clarity ofdefenses
as to each count; (3) court instructions to the 

### jury to consider each count separately; and (4) the admissibility of evidence of the other charges even if not joined fortrial.” State v. Sutherby, 165 Wn.2d 870, 884-85, 204 P.3d 916 (2009) (quoting State v. Russell, 125 Wn.2d 24, 63, 882 P.2d 747 (1994)). In addition, any residual prejudice must be weighed against the need forjudicial economy. Russell, 125 Wn.2d at63. Larry relies on Sutherby to support his argument that the trial court would have granted a severance. 165 Wn.2d at 885. But that case is too factually distinguishablefrom this case to lead to such a conclusion. In thatcase, Sutherby
was charged with firstdegree rape and firstdegree molestation involving the same

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child, and multiple counts of possession of child pornography. j~ at 874. The Supreme Court held that Sutherby’s trial counsel was deficient in failing to move to sever the child rape/molestation charges from the pornography charges. It deemed the State’s evidence of the pornography charges to be strong but the evidence of the molestation charges to be weak because the State was relying exclusively on the testimony ofthe six-year-old victim. j.~.. at 885. Itfurtherfound the fact that the State consistently argued that Sutherby’s possession of child pornography proved that he molested the child to be prejudicial. j..ç~ at 885. The charges in Sutherby clearlydid not meetthe CrR 4.3(a) testofbeing of “the same or similar character” or “based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan.” Unlike Sutherby, Larry’s charges of homicide by abuse, manslaughter, and child assault
were the same orsimilar and were based on a series of acts constituting parts of
a single scheme or plan. In the charge of homicide by abuse, the State had to prove a pattern or practice of assault or torture of Hana. In the charge of child assault, the State had to prove a pattern or practice ofassaulting l.W. or causing him pain or agony thatwas equivalent to that produced by torture. The Williams children testified that Larry and Carri disciplined both Hana and LW. in the same mannerforthe same perceived rule infractions. These children and l.W. were key witnesses and would have been called to testify about the conduct the State contended constituted this pattern or practice toward both children. Sutherby is simply not analogousto this case.

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Under the first severance factor, the trial court would have evaluated the State’s evidence against Larry on the Hana-related charges and the l.W.-related charge. Multiple counts may be severed if one case is remarkably strongerthan the other. State v. MacDonald, 122 Wn. App. 804, 815, 95 P.3d 1248 (2004). Unlike in Sutherby, we do not see a significant or remarkable disparity in the strength ofthe evidence. The charge relating to 

### I.W. was not based solely on his testimony. The State had physical evidence of mistreatment, including photographic evidence of his scars, to corroborate I.W.’s testimony. And several oftheWilliams children corroborated l.W.’s version ofevents. Moreover, courts are concerned thatjoining multiple charges in the same trial may invite a jury to cumulate evidence to find guilt or to infer a criminal disposition. Russell, 125Wn.2d at62-63. Here, thejurycould not reach unanimity
on the homicide by abuse charge against Larry. This fact demonstrates that the jury was not influenced by the evidence on the child assault charge in its assessment ofthe charges relating to Hana’s death. The second factor, the clarity of defenses, requires a review of whether Larry’s defenses to each countwere prejudiced byjoinder. Russell, 125Wn.2d at 63. A defendant may be prejudiced byjoinder if it affects his ability to make his defenses clearto thejury. State v. Cotten, 75 Wn. App. 669, 687, 879 P.2d 971 (1994). Ifthejurywas capable of understanding a defendant’s various defenses, then thisfactorsupportsjoinder. Statev. Craven, 69Wn. App. 581, 587, 849 P.2d 681 (1993). Mutuallyantagonisticdefenses mayalsoform the basisforseverance ifa defendant can prove prejudice. Statev. Grisby, 97 Wn.2d 493, 508, 647 P.2d

-48-No. 77460-3-1/49

6 (1982). The existence of mutually antagonistic defenses is not alone sufficient to compel separate trials. State v. Hoffman, 116 Wn.2d 51, 74, 804 P.2d 577 (1991). Adefendant must provethatthe conflict is so prejudicial thatdefenses are irreconcilable, and the jury will unjustifiably infer that this conflict alone demonstrates thata defendant is guilty of both charges. ~ Larry’s defenses relating to each child were not the same. As to the homicide charges, Larry argued he was not present, was unaware of Carri’s actions, and should not be held responsible for Carri’s conduct outside of his presence. Asto the assault charge, Larry argued his discipline did not cause 

### I.W. to suffersubstantial bodily harm. These defenseswere clearand capable ofbeing understood by the jury. While Larry contends these defenses conflict with each other, we see no irreconcilable inconsistency between them. He could credibly challenge I.W.’s recollection of events due to his history offabricating stories, his young age, and his suggestibility without undermining Larry’s testimony that he had no idea what Carri was doing to Hana on the night of herdeath. Buteven if Larry’s defenseswere “mutuallyantagonistic,”thatfactalonewill notsupporta motionforseverance “unlessthe defendantdemonstrates prejudice.” Statev. Watkins, 53Wn. App. 264, 270, 766 P.2d 484 (1989). Prejudice mayarise if a defendant “makes a convincing showing that [he] has important testimony to give concerning one count and a strong need to refrain from testifying about another.” ki. But Larrydoes notarguethathad the counts been severed, hewould havetestified atthetrial ofthe child assaultcharge butexercised his rightto remain

-49-No. 77460-3-1/50

silent in thetrial on the homicide charges. We simplydo notseethe prejudicethat Larry contends is so “obvious.” Third, thejurywas instructed to consider each count separately. Ajury is presumed to followthese instructions. State v. Loucih, 125 Wn.2d 847, 864, 889 P.2d 487 (1995). The fact that Larrywas not convicted of homicide by abuse is strong evidence thatthejury understood and followed this instruction. Finally, we consider whether the evidence would have been cross admissible even ifthe charges were notjoined fortrial. Joinder is not generally deemed prejudicial when evidence of one crime is admissible to prove the elementsofanother. Statev.Weddel, 29Wn.App. 461,465,629 P.2d 912 (1981). Although not addressed by Larry, had the assault count been severed from the homicide by abuse and manslaughter counts, the evidence that Larry had assaulted I.W. would likely have been admissible in the homicide trial under ER 404(b) as evidence of a common scheme or plan. In conjunction with the manslaughter charge, the State alleged a domestic violence aggravator, contending that the offense involved domestic violence that was a part of “an ongoing pattern of psychological [and] physical

. . . abuse of a victim or multiple victims.” l.W.’s testimony ofthe abuse he suffered was critical to this aggravator, which thejury found present for both Larry and Carri. The cross admissibility of the evidence weighs in favor ofjoinderand against anyfinding of prejudice. We also feel compelled to point outthat this trial lasted seven weeks, and involved 53 lay and expert witnesses, many of whom came from out-of-state to testify. The court had to coordinateAmerican Sign Language interpretersfor l.W.,

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for his therapist, Dr. Petersen, and for several other hearing impaired witnesses. If this complexity were insufficient to deny severance, a trial court would have considered that two trials would have required l.W. and the Williams children to testify not once, but twice—always a factorto considerwhen evaluating whether any prejudice to a defendant is outweighed bythe need forjudicial economy. Allthefactorsweigh againstseverance. Thus, we cannotconcludethat had defense counsel moved to severthe charges, the trial court would have granted that motion. We thus reject Larry’s claim for ineffective assistance oftrial counsel in failing to request a severance ofcharges. (b) Trial Counsel’s Failure to Obiectto TestimonyAbout “To Train U~ a Child” Larry next contendsthat his trial counsel’s failure to objectto the testimony related to To Train U~ a Child was deficient because the book was known to be controversial. This claim lacks merit. To prevail on this claim, Larry must demonstrate that his trial counsel’s failure to object to testimony about the book
was unreasonable, withoutany legitimatetrial strategyortactic. Matterof Lui, 188 Wn.2d 525, 559, 397 P.3d 90 (2017). A decision not to object to evidence falls within the wide range of professional norms. In re Pers. Restraint of Davis, 152 Wn.2d 647, 714, 101 P.3d 1(2004). Given that the State was not offering the book into evidence, that Larry elicited testimony from Carri that the book did not in fact recommend that spankings should cause pain, and that Larrywas never asked about this book, it is conceivable that defense counsel did not object because theywere reticentto draw more attention to it. In light of our determination that there was no error in

-51

-No. 77460-3-1/52

allowing witnesses to be questioned about the book, Larry has not demonstrated that his trial counsel was deficient in failing to objectto it. (c) Ar~ellate Counsel’s Failure to Raise the Issues in this Petition Finally, Larry contends that his appellate counsel should have raised the claims raised in his personal restraint petition.26 Because we have rejected each of these claims, Larry’s ineffective assistance claim on appeal lacks merit. We therefore reject Larry’s Claims 7 and 8. CONCLUSION Based on our review of Larry’s personal restraint petition and the trial record, we conclude there were no constitutional errors giving rise to any actual prejudice and no fundamental defects resulting in a complete miscarriage of justice. Larry received afairtrial. We thus deny his personal restraint petition.

WE CONCUR:



# ~ ~cQ~

# r

26 Larry alleged fourerrors in his direct appeal: (1) thatthere was insufficientevidence to supporta manslaughterconviction; (2) that Larry’strial counsel was deficientin failing to requesta proximate cause instruction for the manslaughter conviction; (3) that the trial court erroneously refused to instructthejuryon intervening and superseding causes; and (4) that Larry’s exceptional sentencewaserroneous. L.Williams, No. 71112-1-I, slipop. at7, 12, 14,17. Thiscourtdisagreed with all of Larry’s claims and affirmed his convictions and sentence. j~ at20.

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