IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, Respondent,

v.
THOMAS M. GAUTHIER, Appellant. No. 71631-0-1

DIVISION ONE

UNPUBLISHED OPINION
FILED: June 22, 2015 c-i is. o ^J —1 n-, -< <\T l\>

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Lau, J. — Thomas Gauthier appeals his conviction for rape inthe second degree. 

### He argues (1) the prosecutor committed misconduct inclosing argument, (2) he received ineffective assistance of counsel, and (3) prior convictions included in his offender score "washed out" under RCW 9.94A.525(2)(c). In a pro se statementof 

### additional grounds, Gauthier alleges five othergrounds for review. We conclude the prosecutor's rebuttal closing argumentwas a fairresponse to defense counsel's closing argument, Gauthier received effective assistance ofcounsel, and the trialcourt properly calculated Gauthier's offender score. And because Gauthier's statement ofadditional 

### grounds presents no independentbasis for reversal, we affirm thejudgmentand

sentence.No. 71631-0-1/2
FACTS 

### Evidence attrial shows the following facts: In2001, TAworked twojobs as a medical assistant and a waitress at Rascal's Casino in South Seattle. TA did not own a car, so she walked the few blocks from her apartment to work at the casino. On April 22, 2001, at about 3:00 a.m., TAwas walking home from the casino along Des Moines Memorial Drive. TA said she was suddenly pushed from behind over
a guardrail by an unknown assailant. She tried to dissuade the attackerfrom raping her by telling him she was having her period, and removed her tampon to prove it. She testified that he forced her to remove her pants, grabbed her neck, and demanded she perform oral sex. He threatened to hurt her ifshe resisted. He ejaculated and fled as TAwas "spitting all overthe place." Report of Proceedings (RP) (Nov. 19, 2013) at406- 07. TA knocked on her neighbors' doors for help but no one answered. She got a knife from her apartment and went outside to look for her attacker, intending to kill him. TA received a call from her sister's boyfriend, Donald Brown, whom she knew from childhood. Crying, she asked Brown to come over. When he arrived, she told him she had been raped. Brown saw a scratch mark on TA's neck. They both drove around the area in Brown's car looking for the attacker. TA called 911 the next day. Police collected TA's clothing and examined the scene where the attack occurred. They noticed an area where the foliage was matted down. Detectives also found a tampon lying on the ground. Detectives observed grass stains on TA's right 

### leg, upper right pocket, back pocket, and dirt stains on her lower leg. They also saw bruising on her upper arms and hip.

-2-No. 71631-0-1/3 

### TAworkedwith a sketch artist to create an image of her attacker. Relying on this sketch, police stopped Thomas Gauthier on June 28, 2001. Gauthiertold the detectives 

### about his recent release from jail and gave them his address. Atthe time, he had no further contact with police. 

### InAugust 2001, the crime lab tested a semen sample from thejacketTAwore on the night ofthe attack. Police were unable to match the sample to a known DNA profile. 

### TAmetwithdetectives and identified one person in a photo montage, but the suspect's DNA did not match the profile from TA'sjacket. 

### In2008, the Combined DNAIndex System (CODIS) returned a match between the DNAsample found on TA'sjacket and Gauthier's DNA. Police located Gauthier in Arizona and returned him to Washington for trial on the second degree rape charge. At trial, Gauthier admitted that in 2001 he was addicted to crack cocaine, 

### struggled to keep a job or driver's license, and often sought sex from prostitutes. When he was contacted by detectives in2008, Gauthier said he was surprised and amused that he was suspected of rape. 

### Gauthier initially denied recognizing TA's photograph. Later on, he claimed to remember more details about his interactions with TA. Gauthier testified that he first 

### met TA in a grocery store parking lotwhere he was waiting to buy crack cocaine from a dealer. When his dealerfailed to arrive, he asked TA ifshe could get him the drugs and 

### she agreed. Gauthier said he gave TA $60, but she never returned witheitherthe drugs or money. Gauthier said the next time he saw TA was on Des Moines Memorial Drive between 2:30 or 3:00 a.m. He asked herwhether she had crack, and she said she didNo. 71631-0-1/4
not. She refused when he asked her ifshe would perform oral sex for $20. TA consented when Gauthier offered her $50. They both stepped overthe guardrail and TA performed oral sex. Gauthiertestified that he eventually recognized herfrom their priorencounter and decided not to pay her. Gauthier denied raping TA. Ajury convicted Gauthier of second degree rape and we reversed the conviction. State v. Gauthier. 174 Wn. App. 257, 298 P.3d 126 (2013). On retrial, he was convicted
as charged. He appeals. ANALYSIS Prosecutorial Misconduct in Rebuttal Closing Argument 

### Gauthier alleges thatthe prosecutorcommitted misconduct by appealing to the passions and prejudices ofthejury during closing argument. 

### During closing, defense counsel argued thatthejury should doubtTA's 

### credibility. For instance, he pointed out inconsistencies in her statements to the police. He argued the lack ofdamage to her nylon stockings was reason to doubtthat a 

### struggle occurred. The record shows that Gauthier's defense at trial portrayed TAas a prostitute, a drug user, a liarand thief who agreed to a sex act inexchange formoney 

### and deservedly got ripped off byGauthier because she had previously stolen fromhim. Defense counsel argued in closing, TAwas "really angry because she didn't get paid 

### her money." RP (Nov. 25, 2013) at 582. "You will see nowhere, as Imentioned before, in your instructions that lying to a prostitute, agreeing to pay them money, and not paying them money, is rape." RP (Nov. 25, 2013) at 597. Inrebuttal closing, the prosecutor responded by arguing that "[tjhere is not one 

### iota, one piece, one shred ofevidence, besides the testimony of this man, that [TA]No. 71631-0-1/5 

### worked as a prostitute on April22nd or any otherday ofher life." RP (Nov. 25, 2013) at 605-06. The prosecutor also argued: The defense is almost like a cliche: She is a slut, she is a prostitute, she was outthere, you know what, she had itcoming. That is whatthis 

### man is saying. She looked like a prostitute. Why? What aboutthe way that she dressed injeans, and white tennis shoes, and big puffyjacket makes her look like she is outthere, working the streets? And you can tell 

### it from behind? Three blocks away, inthe dark. She looked like a drug dealer, she looked like a prostitute? That is laughable. 

### She was standing, because she was walking inthe dark by herself? She must have wanted it. She had itcoming. This is why people don't 

### report, because they are called sluts, whores, and prostitutes. And counsel says she had the motivation. Twelve people sitting inthe box are going to decide [are] you 

### looking at a prostitute that night? Well,that'sjustan absurd beliefthat that is what motivated [TA] to get up on this stand and talk aboutthe most 

### humiliating, degrading and violent thing that ever happened to her. You saw those tears. You think that is because she is afraid that 

### somebodythinks she is a prostitute? Shewasn'teven asked that question until she got in this courtroom. You knowthat is true because none ofthe investigators thought she was a prostitute. So, where is her motivation for the lasttwelve and-a-halfyears 

### before she got on that stand, to meetwiththe detectives, to look at the montages, to give up her blood sample, shown montages and more 

### montages, and coming in for the interviews? Where is her motivation to get up on that stand and lie, lieaboutwhat this man did to her, ifit's not true. RP(Nov. 25, 2013) at607-08. 

### He saw his opportunity in [TA] when she was alone, when she was isolated, when she was vulnerable on that street. And he took advantage of her. And he thinks that ifhe calls her a slut and a prostitute, that you 

### are going to be distracted and think, well,maybe she didhave it coming, to be outthere. Maybe there is something else going on. But, there is no evidence ofthat. RP(Nov. 25, 2013) at 609-10. 

### Defense counsel did not objectto any ofthese remarks.No. 71631-0-1/6
Gauthier contends that when the State asserted his defense was a "cliche" and "this is why people don't report," itintroduced evidence outside the record by asking the 

### jury to considerthe problem that women's rape allegations are sometimes not believed. Br. ofAppellant at 7. He argues the prosecutor cast him as the "villain inthe ongoing battle against sexism," thereby encouraging thejury to convict him based on an emotional response ratherthan the evidence. Br. ofAppellant at 8-9. We disagree. 

### Adefendant claiming prosecutorial misconduct bears the burden ofestablishing 

### both the impropriety ofthe comments and their prejudicial effect. State v. Russell, 125 Wn.2d 24, 85, 882 P.2d 747 (1994). Even where the defendant proves improper 

### conduct, misconductdoes not constitute prejudicial error unless there is a substantial 

### likelihood itaffected thejury's verdict. State v. Stenson, 132 Wn.2d 668, 718-19, 940 P.2d 1239 (1997). Where, as here, defense counsel fails to object at trial, any error is waived exceptwhere the conduct is so "flagrantand ill-intentioned that itevinces an 

### enduring and resulting prejudice that could nothave been neutralized by an admonition to thejury." Stenson, 132 Wn.2d at 719. Indeed, the absence of an objection strongly suggests thatthe argument did not appear critically prejudicial to the appellant in the context of trial. State v. McKenzie, 157 Wn.2d 44, 53 n.2, 134 P.3d 221 (2006). 

### The prosecutor is entitled to make a fairresponse to the arguments ofdefense counsel. State v. Brown, 132Wn.2d 529, 566, 940 P.2d 546 (1997). Even where the 

### comments are improper, the remarks by the prosecutorare notgrounds for reversal "if 

### they were invited or provoked bydefense counsel and are in reply to his or her acts and statements, unless the remarks are not a pertinent reply or are so prejudicial that a curative instruction would be ineffective." Russell. 125 Wn.2d at 86.No. 71631-0-1/7 

### Viewed in the contextof the evidence at trial and defense counsel's closing remarks, the prosecutor's rebuttal closing remarks constitute a fairresponse to defense counsel's closing arguments. A fair reading ofthe arguments indicate that none of the 

### prosecutor's remarks were calculated or intended to inflamethe passions orprejudices ofthejury. They were properly responsive to defense counsel's summation thatTA
was a prostitute, drug user, liar and a thief. As to the "cliche" and "why people don't report" remarks, these brief, isolated comments were not part of a well developed theme. Gauthier overstates the remarks' impacton thejury when viewed in context. And none ofthe cases he analogizes to support his misconduct claim. For example, unlike inthe present case, State v. Powell, 62 Wn. App. 914, 918-19, 816 P.2d 86 (1991) involved a prosecutor's argument that acquittal would send a message that children who report sexual abuse would not be 

### believed, "thereby declaring open season on children." That court held thatthe argument constituted prejudicial misconduct. But even assuming the remarks were improper, Gauthierfails to establish the statements were so flagrant or ill-intentioned that any prejudice could not have been cured by a timely objection. It is far from certain thatthe trial courtwould have sustained an objection. Even ifdefense counsel had objected, the courtwould have 

### instructed thejury to disregard these remarks. Defense counsel's decision not to object
or request a curative instruction "strongly suggests to a courtthat the argument or event 

### inquestion did not appear critically prejudicial to an appellant inthe context of the trial." State v. Swan, 114 Wn.2d 613, 661, 790 P.2d 610 (1990).

-7-No. 71631-0-1/8 

### Furthermore, the trial court instructed the jurythatthe lawyer's arguments were
not evidence:

### Keep in mind that a charge is only an accusation. The filing of a charge is not evidence thatthe charge is true. Your decisions asjurors must be based solely upon the evidence presented during these proceedings. 

### The lawyers' remarks, statements, and arguments are intended to help you understand the evidence and apply the law. It is important, however, for you to rememberthatthe lawyers' statements are not evidence. The evidence is the testimony and the exhibits. The law is contained in my instructions to you. You must disregard any remark, statement, or argument that is not supported by the evidence or the law in my instructions. Clerk's Papers (CP) at 62-63. The courtfurther instructed thejury that itwas obligated to reach a decision based on the facts and the law, and not on sympathy, prejudice, or personal preference. Thejury is presumed to follow the trial court's instructions. State
v. Stein, 144 Wn.2d 236, 247, 27 P.3d 184 (2001). Gauthierfails to establish thatthe prosecutor's comments were improper. Even 

### assuming the comments were improper, however, he fails to showthat a 

### contemporaneous objection and timely curative instruction would not have neutralized any prejudice. His claim is therefore waived. Ineffective Assistance of Counsel Gauthier argues inthe alternative that his attorney's failure to object or request a 

### mistrial inresponse to the prosecutor's closing remarks constitutes ineffective assistance of counsel. Br. ofAppellant at 14-15. We disagree. We review claims of ineffective assistance ofcounsel de novo. State v. A.N.J., 

### 168 Wn.2d 91, 109, 225 P.3d 956 (2010). To establish ineffective assistance of counsel, a defendant must prove two elements: (1) defense counsel's representation

-8-No. 71631-0-1/9



### was deficient because it fell below an objective standard ofreasonableness, and if established, (2) the deficient performance prejudiced him. State v. McFarland. 127 

### Wn.2d 322, 334-35, 899 P.2d 1251 (1995). Failure to establish either prong ends the inquiry. State v. Hendrickson. 129Wn.2d61. 78. 917P.2d 563(1996). To prevail on
an ineffective assistance ofcounsel claim, a defendant must overcome a strong presumption that counsel's performance was reasonable. State v. Grier, 171 Wn.2d 17, 33, 246P.3d 1260(2011). Forthe reasons discussed above, Gauthierfails to establish prejudicial deficient performance by his trial counsel. Offender Score Gauthier contends that the trial court improperly calculated his offender score by 

### failing to recognize that his prior convictions "washed out" pursuantto RCW 9.94A.525(2)(c). 

### Under the "washout" provision, RCW9.94A.535(2)(c),1 class C prior felony convictions are excluded in a defendant's offender score if since the last date of release 

### from confinement pursuantto a felony conviction or entry ofthejudgment and sentence, the offender spentfive consecutive years "inthe community" without committing any 

### crime that subsequently results in a conviction. Gauthier has five priorclass C felony convictions listed below.2 His last release date happened inJune 2007. Inotherwords,



### 1The parties agree thatthe material language ofthe statute, currently codified at 

### RCW 9.94A.525(2)(c), is identical tothe statute in effect in2001. Seeformer RCW 9.94A.360(2)(2001). 

### 2The five priorclass C felony convictions included inGauthier's offenderscore are as follows: 

### (1) Possession ofCocaine (Sentencing on 12/20/1996) 

### (2) Taking Motor Vehicle withoutPermission (Sentencing on 6/15/2001)No. 71631-0-1/10 

### ifGauthier had remained inthe community for fiveyears afterJune 2007 and remained crime free forthose fiveyears, his priorclass C felony convictions would notcount in his offender score after June 2012. 

### But he did not remain crime free for fiveyears. He was charged withthe rape of 

### TA on March 13, 2009, and taken intocustodyto the King County Correctional Facility on July 23, 2010. There he remained through his first trial on May2011 which resulted in a conviction on June 2. He was subsequently sentenced on July 8, 2011. The sentencing court calculated his offender score as a five based on his five prior class C felony convictions. The first conviction was reversed on appeal and he was transported back to the King County Correctional Facility from prison. Thejury convicted Gauthieron retrial on November 26, 2013. At sentencing on February 14, 2014, Gauthier asserted that his 

### five prior class C felonies should not be included in his offender score because he spent 43 months incustody before he was convicted again on the present offense. He claimed that under the "washout" statute, the "inthe community" phrase includes the 43 months he spent in custody on this offense, thus his offender score is zero not five. The sentencing court rejected this argument, calculated his offender score as five, and sentenced him to 120 months with creditfor all time served backto July 2010, the date he was first arrested.



### (3) Taking MotorVehicle without Permission 2 (Sentencing 3/17/2006) (4) Taking MotorVehicle without Permission 2 (Sentencing 3/17/2006) 

### (5) Taking MotorVehicle without Permission 2 (Sentencing 4/13/2007) CP at 84. -10-No. 71631-0-1/11 Gauthier relies on State v. En/in, 169 Wn.2d 815, 239 P.3d 354 (2010). There, 

### the parties disagreed on whetherthe 17 days Ervin spent incustody during a 6 year, 3 month period interrupted the 5 yearwashout period. The State argued the 17 days Ervin spent in jail for a misdemeanor probation violation interrupted the 5 yearwashout period. Our Supreme Court concluded, "we hold thattime spent in jail pursuant to violation of probation stemming from a misdemeanor does not interruptthe washout." Ervin, 169 Wn.2d at 826. The court relied on In re Personal Restraint of Nichols, 120 Wn. App. 425, 85 P.3d 955 (2004). In Nichols, the court addressed whether 20 days spent in custody on a misdemeanor interrupted the washout period that began in 1989 and would have continued until 1999. The court held that the 20 days did not "interrupt" the five yearwashout period. We are not persuaded by Gauthier's attempt to extend Ervin's holding to the circumstances here. We have found no case, and Gauthier cites to none, where Ervin's limited holding was applied to time spent in confinementwhile awaiting resolution of a felony charge. That is the precise circumstance present here. As the State correctly points out, Gauthier's interpretation creates an absurd scenario—a defendant's offender
score will actually go down while he is in custody pending trial or pending sentencing. Indeed, that is an absurd result and a result we are confidentthe legislature did not intend.3



### 3Adoption ofGauthier's interpretation means that a defendant could strategically lower his offender score while in custody by delaying his trial or sentencing. We decline to adopt a rule that produces such an absurd result. -11-No. 71631-0-1/12
Statement ofAdditional Grounds 

### Gauthierfiled a pro se statementof additional grounds (SAG) alleging five additional grounds for review. Gauthierfirst asserts that the trial court violated his right to a public trial by 

### dismissingjuror 5 afterdefense counsel observed himsleeping during trial. RP (Nov. 19, 2013) at 393. Acourtroom closure occurs onlywhen the courtroom is "completely 

### and purposefullyclosed to spectators so that no one may enterand no one may leave." State v. Lormor, 172 Wn.2d 85, 93, 257 P.3d 624 (2011). Our review shows the court 

### dismissedjuror 5 on the record. RP (Nov. 19, 2013) at 430. No closure occurred. Gauthier argues that the trial court erred byrequiring him to prove the defense of consentby a preponderance of the evidence, citing State v.W.R.,Jr., 181 Wn.2d 757, 765, 336 P.3d 1134 (2014). Despite Gauthier's claim, however, the court properly 

### instructed the jury that the State had to proveeach element of rape in the second degree beyond a reasonable doubt. Gauthier contends thatthe State committed misconduct by intentionally 

### appealing to the passion and prejudice of thejury. He makes a number of claims including the improperreferences to the "sexual assaultunit" instead of the "special assault unit," mention ofearlier "testimony," use ofthe word "attack," and isolated use of 

### the word "rape" or "raped." SAG8-9.4 Some of hisarguments involvefacts, evidence, or rulingsfrom his firsttrial which are not includedin our record. Those claims are



### 4Some of Gauthier's arguments suggestthe State violated motionsin liminefrom Gauthier's first trial. Those are not included in our record for review. -12-No. 71631-0-1/13 properly raised through a personal restraint petition, not a statement ofadditional grounds. State v. Alvarado. 164 Wn.2d 556, 569, 192 P.3d 345 (2008). In regards to Gauthier's other claims ofprosecutorial misconduct, Gauthier must 

### articulate how the alleged misconductwas substantially likely to affectthejury's verdict. Inre Pers. Restraint ofGlassman. 175 Wn.2d 696, 704, 286 P.3d 673 (2012). Beyond the conclusory assertion that the errors appealed to the "passion and prejudice" ofthe jury he has not done so. SAG at 11. Gauthier argues that his attorney's failure to object to improper statements constitutes ineffective assistance ofcounsel. But Gauthierfails to provide sufficient 

### detail in his SAG to allow for review.5 Although reference to the record and citation to authorities are not necessary or required, the appellate courtwill not consider an 

### appellant's SAG if itdoes not inform the court ofthe nature and occurrence ofalleged
errors. RAP 10.10(c); Alvarado, 164 Wn.2d at 569. Gauthier claims his counsel was ineffective for failing to objectto the admission 

### of old booking photos. He is mistaken. Defense counsel did object. 

### Finally, Gauthier argues thatthe trial court abused itsdiscretion when itdenied defense counsel's motion for a mistrial or, inthe alternative, excusal ofjuror 59 for
cause. Counsel's motion was based on a deputy sheriff's report that one ofthejurors 

### spoke to him during a lunch break, telling him"I can't believe how much you remember." RP (Nov. 18, 2013) at 208. The trial court interviewedjuror 59, who stated that she had

5Gauthierclaims that he can "listover 50 places in 13 RP; 14 RP; 15 RP; 16 RP 

### that shows failure to object on central testimony and the prejudicial statements before the Jury, and no reasonable persons mind could forget such prejudicial statements, even had objections been raised properly." SAG at 15. -13-No. 71631-0-1/14


### not formed any opinions aboutthe case and could remain fair and impartial. Because the trial court is best situated to determine ajuror's ability to serve impartially, we review the court's denial of a for-causejurorchallenge for abuse ofdiscretion. State v. Rupe, 108 Wn.2d 734, 749, 743 P.2d 210 (1987). We cannot say on this record thatthe trial court abused its discretion in concluding thatjuror 59 could remain impartial. CONCLUSION For the foregoing reasons, we affirm Gauthier'sjudgment and sentence.



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# J WE CONCUR: 

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