In re Pers. Restraint of Phelps

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IN CLERKS OFFICE \

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DATE FEB 2 2 ^0^ SUSAN l. carlson

I SUPREME COURT CLERK

GMIB'JUSTKE

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

In the Matter ofthe Personal Restraint of No. 94185-8

TODD DALE PHBLPS, En Banc

Petitioner.

Filed FEB 2 2 20!S

JOHNSON,J.—This case involves the issue of whether a prosecutor's

closing argument asserting a victim was "groomed" by the defendant, where

testimony of grooming was disallowed during trial, constitutes flagrant and ill-

intentioned misconduct requiring reversal. The Court of Appeals, Division Two,

granted Todd Phelps's personal restraint petition(PRP)and reversed his

convictions for third degree rape and sexual misconduct with a minor.^ The Court

of Appeals held that expert testimony is required if the State intends to rely on

grooming to argue and prove its case. Thus, because the prosecutor did not provide

expert testimony, the Court of Appeals found that the prosecutor argued facts not

in evidence during his closing argument. The Court of Appeals held that the

'The jury also found two aggravating factors:(1)Phelps knew or should have known

that A.A., the minor victim, was a particularly vulnerable victim and (2)Phelps used a position

of trust to facilitate commission of the crimes.

In re Pers. Restraint ofPhelps, No. 94185-8

prosecutor's actions constituted flagrant and ill intentioned misconduct and that

Phelps had shown the misconduct caused him actual and substantial prejudice. In

re Pers. Restraint ofPhelps, 197 Wn. App. 653, 389 P.3d 758, review granted, 189

Wn.2d 1001, 403 P.3d 38 (2017).

We reverse the Court of Appeals on both issues and hold that under the facts

and charges involved in this case, expert testimony on grooming was not required

and the use ofthe term "grooming" during closing argument did not amount to

arguing facts not in evidence. The prosecutor also did not commit flagrant and ill-

intentioned misconduct, nor has Phelps shown that if misconduct occurred it

caused him actual and substantial prejudice.

FACTS

Phelps was an assistant coach for the Pe Ell School girls' soflball team.

During the summer of 2010, Phelps took his family and members of the team to

tournaments most weekends. One ofthose team members was A.A., a 16-year-old

who had a strained relationship with her own parents. A.A. was dealing with

several emotional issues: she cut herself, experienced depression, and had

contemplated suicide.

Once Softball season started in February 2011, A.A. told Phelps she had

been cutting herself and had considered suicide. Over the next several months,

Phelps continued to talk with A.A. about her self-harm, her suicidal thoughts, and

In re Pers. Restraint ofPhelps, No. 94185-8

other personal issues. Phelps also told A.A. personal stories involving his sexual

experiences with women. According to A.A., Phelps explained that this was so she

could have dirt on him because he now had dirt on her. Over time, Phelps and A.A.

developed a relationship of in-person conversations, phone calls, and frequent

texts, sometimes late into the night.

Phelps also had A.A. show him where she cut herself at or near the tops of

her thighs, which required her to pull her pants halfway down. This happened

several times. Each time A.A. showed him her cuts, some kind of sexual contact

occurred; the contact escalated each time. During softball team trips, several

instances ofPhelps inappropriately grabbing parts of A.A.'s body occurred. A.A.

eventually told Melody Porter, her youth pastor's wife, that she and Phelps had

kissed. Porter reported the kiss to the school superintendent and Phelps was placed

on administrative leave.

With A.A.'s parents' consent, Phelps was reinstated as softball coach.

Several people, including members of the school board and A.A.'s parents,

instructed Phelps not to text A.A. anymore and to maintain an appropriate

coach/player relationship. Disregarding these warnings, Phelps and A.A. continued

to communicate on a near daily basis. When school officials discovered Phelps and

A.A. were still communicating, Phelps was forced to resign as coach in late April

In re Pers. Restraint ofPhelps, No. 94185-8

2011 and A.A.'s father told him not to have any further contact with A.A.

However,Phelps and A.A. continued to communicate.

Phelps and A.A. met several times in July while A.A. was with a friend. At

some point, Phelps talked with a coworker about how he could control A.A.'s

emotions. Phelps and A.A. eventually met in private at Phelps's brother's house,

where A.A. again showed Phelps her cuts. According to A.A., Phelps then forced

her to have sex with him. Soon after, A.A. went to go live with an aunt in Auburn.

About two months after the alleged rape occurred, A.A. told her parents she had

had sex with Phelps. Her parents called the sheriff and reported the rape.

Phelps was charged with one count ofthird degree rape and one count of

sexual misconduct with a minor. At trial, during voir dire, the prosecutor asked

potential jurors if they had ever heard of grooming and if they knew anything

about it; several jurors responded. No indication exists in the record that the

prosecutor talked about grooming in his opening statement. The focus of the

claimed misconduct arises in the context of closing argument.

The term "grooming" carne up twice during trial testimony. The first time

was during A.A.'s father's testimony. The prosecutor asked him what he thought

Phelps's intentions were. Defense counsel objected as to speculation, but the trial

judge overruled the objection. A.A.'s father responded,"I believe [Phelps's]

intentions were dishonorable. I believe he was grooming her to the end result of

In re Pers. Restraint ofPhelps, No. 94185-8

what he did. He ended up raping her on the 27th." 2 Verbatim Report of

Proceedings(VRP)(Apr. 18, 2012) at 180. Defense counsel did not object to this

response. The second time grooming came up was during the testimony of Yvonne

Keller, the other softball coach. The prosecutor asked her if she believed Phelps

was grooming A.A. Keller said she did just as defense counsel objected as to her

belief. The court sustained the objection. The prosecutor then asked Keller if she

knew anything about grooming. Defense counsel objected to relevance, and the

judge said,"That's an issue that is for expert testimony. She is not an expert. She's

already stated she's not an expert. So I'm sustaining the objection." 2 VRP (Apr.

18, 2012) at 211.

During closing arguments, the prosecutor went through the witnesses'

testimony and explained how the evidence showed A.A.'s isolation and

vulnerability, how A.A. trusted Phelps, Phelps's position of authority, how Phelps

bragged about being able to control A.A.'s emotions, and how Phelps selectively

disclosed A.A.'s secrets to others to keep the spotlight on her. The prosecutor also

discussed the day of the alleged rape in detail, as well as both A.A.'s and Phelps's

credibility.

The prosecutor used the term "groom" or "grooming" 19 times during his

argument and rebuttal. He referenced the jurors' remarks during voir dire about

grooming. He also pointed out the continuous, secretive nature of grooming, telling

In re Pers. Restraint ofPhelps, No. 94185-8

the jury that grooming does not happen out in the open and that it is a constant

process happening all the time. He stated that A.A. was a "prime candidate" to be

groomed because of her low self-esteem and stressed relationship with her family.

8 VRP (Apr. 26, 2012) at 1540. He argued that Phelps was not only grooming A.A.

but also grooming her family and friends around her to make himself appear

concerned about A.A.'s mental health. The prosecutor discussed Phelps's repeated

efforts to desensitize A.A. to sexual contact, arguing that because of grooming,

Phelps knew A.A. was not going to respond to his escalating sexual advances. He

used a similar argument to explain Phelps's sexually explicit remarks to A.A. and

his efforts to isolate her by having her break up with her boyfriend and stop talking

to her counselor. The prosecutor also argued grooming explained some aspects of

A.A.'s behavior, such as her efforts to protect Phelps by deleting their text

messages and her apparent obsession with him. Toward the end of his closing, the

prosecutor told the jury,"We're here because of grooming, we're here because of

deceit, concealment, half-truths, misrepresentations." 8 VRP (Apr. 26, 2012) at

1548.

The prosecutor's closing argument was accompanied by 97 PowerPoint

slides, 8 of which mentioned grooming. The defense attorney did not object to the

prosecutor's use of grooming in his closing argument or to the PowerPoint slides.

Phelps's trial defense apparently was that he did not commit the crimes because he

In re Pers. Restraint ofPhelps, No. 94185-8

was not there, but even if he did have sex with A.A., she consented. The jury found

Phelps guilty on all counts, including the aggravating circumstances.

Phelps filed an initial appeal. The Court of Appeals, Division Two,

affirmed,^ and Phelps filed a petition for review, which we denied. State v. Phelps,

181 Wn.2d 1030, 340 P.3d 228 (2015). Phelps then filed this PRP in the Court of

Appeals, raising the issue of prosecutorial misconduct. The Court of Appeals

granted the PRP and reversed Phelps's convictions. The State filed a motion for

discretionary review, and we granted review.

ISSUES

(1) Whether the State is required to present expert testimony if it intends to use

the concept of grooming to argue its case to a jury.

(2) Whether, by referencing grooming in closing argument, the prosecutor

committed flagrant and ill-intentioned misconduct.

ANALYSIS

The first issue is whether expert testimony is required when the State uses

the concept of grooming to argue its case to a jury. While we have never addressed

when and under what circumstances expert testimony on grooming is admissible,

several jurisdictions have held it is admissible, but not that it is required. See Jones

^ State V. Phelps, No. 43557-8-II(Wash. Ct. App. June 17, 2014)(unpublished),

http://www.courts.wa.gov/opinions/pdf/D2%2043557-8-

II%20%20Unpublished%200pinion.pdf. The issue of prosecutorial misconduct was raised and

rejected by the Court of Appeals in this initial appeal. The State here does not argue that Phelps

should be precluded from bringing this second prosecutorial misconduct claim in his PRP.

In re Pers. Restraint ofPhelps, No. 94185-8

V. United States, 990 A.2d 970,978(D.C. 2010); State v. Berosik, 2009 MT 260,

352 Mont. 16, 23-24, 214 P.3d 776(2009); Morris v. State, 361 S.W.3d 649,669

(Tex. Crim. App. 2011). States are divided on whether expert testimony is required

where the State intends to use grooming to argue its case. Compare State v. Akins,

298 Kan. 592, 315 P.3d 868 (2014), and State v. Sena, 2008-NMSC-053, 144 N.M.

821, 192 P.3d 1198, with Dandass v. State, So. 3d ,2017 WL 1709396,

cert, denied, 230 So. 3d 1023 (Miss. 2017).

Because this is an evidentiary issue, we evaluate it through the lens of our

Rules of Evidence (ER). Washington's rule on expert witnesses provides,"If

scientific, technical, or other specialized knowledge will assist the trier of fact to

understand the evidence or to determine a fact in issue, a witness qualified as an

expert by knowledge, skill, experience, training, or education, may testify thereto

in the form of an opinion or otherwise." ER 702. Our rule allows an expert to

testify about his or her specialized knowledge if it would help the jury understand

the evidence, but the rule does not require expert testimony where it would not be

helpful to the jury. It is within the sound discretion oftrial judges to determine the

admissibility of evidence pursuant to ER 702 and ER 403.

The only published Washington case dealing with expert testimony and

grooming is State v. Braham,67 Wn. App. 930, 841 P.2d 785 (1992). In that case,

the trial judge, over the defense's objection, allowed an expert to testify on the

In re Pers. Restraint ofPhelps, No. 94185-8

general characteristics of grooming. In closing argument, the prosecutor exhorted

the jury to infer the defendant's guilt based on the expert's testimony. The

prosecutor argued the elements of grooming present in that case were substantial

circumstantial evidence supporting '"that in fact'" the defendant had molested the

child. Braham,67 Wn, App. at 934. The Court of Appeals in reversing held that

such profiling evidence implying guilt based on characteristics of known offenders

was inadmissible.

In this case, Phelps argues that Braham establishes that grooming evidence

is per se inadmissible. We disagree. The Braham court expressly did not hold "that

such evidence will always be inadmissible" and described several situations in

which grooming evidence may be appropriate and admissible. Braham,61 Wn.

App. at 939. In reversing the defendant's conviction, the Braham court was

sensitive to the prejudicial effect and weight expert testimony may have for jurors,

potentially leading them to consider expert grooming testimony to be evidence of a

defendant's guilt. We have similarly recognized the concern that jurors may assign

inappropriate weight to expert testimony simply because it comes from someone

the court has deemed an expert. See State v. Black, 109 Wn.2d 336, 348-49, 745

P.2d 12(1987).

In Phelps's trial, expert testimony was not offered or admitted by the State.

One witness, without objection, opined about Phelps's motivation and testified he

In re Pers. Restraint ofPhelps, No. 94185-8

thought Phelps had groomed A.A. After a relevance objection, the trial court

disallowed a lay witness to express an opinion on whether she believed Phelps was

grooming the victim. Based on this record, this case does not present the issue of

under what circumstances expert testimony may be required or allow us to

determine whether a trial court's decision to admit expert testimony requires

reversal. Instead, we focus on the prosecutor's use of grooming in closing

argument and whether the State committed misconduct by arguing facts not

admitted during trial.

Once we accept review of a PRP, we review pure questions oflaw de novo.

In re Pers. Restraint ofCoats, 173 Wn.2d 123, 133, 267 P.3d 324(2011). Under

this standard of review, we discuss the burden as it rests on Phelps to prevail in his

PRP; the record must establish the underlying claim he brought in his PRP. A

personal restraint petitioner raising a prosecutorial misconduct claim must prove

the misconduct was either a constitutional en'or resulting in actual and substantial

prejudice or a fundamental defect resulting in a complete miscarriage ofjustice. In

re Pers. Restraint ofLui, 188 Wn.2d 525, 539, 397 P.3d 90(2017)(citing/« re

Pers. Restraint ofCross, 180 Wn.2d 664,616-11, 327 P.3d 660(2014)). This

principle arises under the Sixth and Fourteenth Amendments to the United States

Constitution and article 1, section 22 of the Washington State Constitution, which

guarantee the right to a fair trial; prosecutorial misconduct may deprive a

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defendant of this right.^ In re Pers. Restraint ofGlasmann, 175 Wn.2d 696, 703-

04, 286 P.3d 673 (2012)(plurality opinion).

Because Phelps did not object during trial, his prosecutorial misconduct

claim is considered waived unless the misconduct is '""so flagrant and ill-

intentioned that it cause[d] an enduring and resulting prejudice that could not have

been neutralized by a curative instruction.'"" Lui, 188 Wn.2d at 539 (alteration in

original)(quoting re Pers. Restraint ofCaldellis, 187 Wn.2d 127, 143, 385 P.3d

135 (2016)(quoting State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997))).

When evaluating whether misconduct is flagrant and ill intentioned, we "focus less

on whether the prosecutor's misconduct was flagrant or ill intentioned and more on

whether the resulting prejudice could have been cured." State v. Emery, 174 Wn.2d

741, 762, 278 P.3d 653 (2012). In other words, prosecutorial misconduct is flagrant

and ill intentioned only when it crosses the line of denying a defendant a fair trial.

Put simply, to prevail in his PRP,Phelps must overcome three hurdles. First,

he must show the prosecutor committed misconduct. Second, because he did not

object during trial, Phelps must show that misconduct was flagrant and ill-

intentioned and caused him prejudice incurable by a jury instruction. Third,

^ The State argues we should use the term "prosecutorial error" rather than "prosecutorial

misconduct." Mot. for Discr. Review at 12-13. We decline to address this argument.

"Prosecutorial misconduct" is a legal term of art, and we use it as such. Continuity of the use of

this term is also necessary for research purposes in that a case search for "prosecutorial error"

might not locate prosecutorial misconduct cases.

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because he raises this issue in a PRP,Phelps must show the prosecutor's flagrant

and ill-intentioned misconduct caused him actual and substantial prejudice. We

address each ofthese hurdles in turn.

The Court of Appeals held that in arguing grooming to the jury without

presenting expert testimony, the prosecutor argued facts not in evidence, which

constituted flagrant and ill-intentioned misconduct. First, we must determine if the

prosecutor committed misconduct. Because the underlying claim is the prosecutor

argued facts not in evidence, we must discuss in general terms what a fact is. A

"fact" is "[sjomething that actually exists; an aspect of reality." BLACK'S Law

Dictionary 709(10th ed. 2014). A "fact in evidence" is "[a] fact that a tribunal

considers in reaehing a conclusion." Black's,supra, at 710. An "inference," on

the other hand, is "[a] conclusion reached by considering other facts and deducing

a logical consequence from them." BLACK'S,supra, at 897.

Definitions are only marginally helpful; there are no objective criteria to

distinguish between facts, inferences, and facts not in evidence. Facts are the

responses to the "who, what, where" questions prosecutors ask at trial. Witnesses

respond with their versions of the events giving rise to the charges through which

the State establishes the elements of the offense. In contrast, prosecutors have

"wide latitude to argue reasonable inferences from the evidence, ineluding

evidence respecting the credibility of witnesses." State v. Thorgerson, 172 Wn.2d

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438, 448, 258 P.3d 43 (2011). Prosecutors are free to argue their characterization

of the facts presented at trial and what inferences these facts suggest in closing

argument. Jurors are also specifically instructed not to consider closing arguments

as evidence, which further helps draw the line between fact and argument. 11

Washington Practice: Washington Pattern Jury Instructions: Criminal

1.02, at 21 (4th ed. 2016).

Depending on how the concept is used, grooming can be a fact. For

example, the prosecutor in Braham argued that because aspects of grooming were

present in that case, their presence was circumstantial evidence of the defendant's

guilt. Thus,the prosecutor in that case encouraged the jury to consider grooming as

a fact in evidence in reaching its ultimate conclusion about the defendant's guilt,

which the Braham court held was impermissible and reversed.

Here, the prosecutor was not using grooming in the same manner. Instead,

he used grooming to paint a picture ofthe evidence for the jury. Grooming is

descriptive of how Phelps's and A.A.'s relationship began, developed, and

expanded and in reality has or adds little value to what the State needed to prove:

that Phelps committed the crimes. The facts and the way the facts fit together are

two different things. The prosecutor's comments connecting the evidence to

grooming are more akin to permissible inferences drawn from the evidence than

arguing facts not in evidence.

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In re Pers. Restraint ofPhelps, No. 94185-8

The Court of Appeals held the prosecutor had committed misconduct, in

part, because the grooming evidence was intended to rebut Phelps's claims that he

was merely trying to help A.A. deal with her personal issues. Phelps, 197 Wn. ,

App. at 682-83. However, it is not misconduct for a prosecutor to argue the

evidence does not support the defense theory; prosecutors are entitled to respond to

defense counsel's arguments. State v. Russell, 125 Wn.2d 24, 87, 882 P.2d 747

(1994). Whether the defense's theory that Phelps was genuinely concerned about

A.A. and thus maintained contact with her has no bearing on the jury's ultimate

determination of whether Phelps committed the crimes of which he was accused.'^

Likewise, whether Phelps actually groomed A.A., per the prosecutor's theory, is

similarly establishing the background ofPhelps's and A.A.'s relationship and is

not key to the jury's determination ofPhelps's guilt.

Especially in this case, which involved the aggravators of abuse of trust and

vulnerability, the prosecutor understandably explained the evidence in the context

of Phelps's relationship with A.A. to establish a basis for these aggravating

circumstances. Even if prohibited from using the term "grooming" without expert

testimony, the prosecutor could have explained the evidence using grooming-

related concepts, such as developing trust, isolation, and manipulation. We have

Defense counsel also referenced grooming several times in his closing argument, which

somewhat weakens Phelps's claim that the prosecutor's use of grooming denied him a fair trial.

See Russell, 125 Wn.2d at 89.

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In re Pers. Restraint ofFhelps, No. 94185-8

never held that jurors need expert testimony to establish that a defendant

manipulated or controlled someone;jurors can understand these concepts based on

common sense and experience. We have trouble envisioning a world in which

experts must be called into court to explain trusting relationships to jurors. Indeed,

expert testimony may have lent inappropriate weight to the issue of grooming,

which did not go to the ultimate determination of Phelps's guilt.

The State argues the prosecutor could have replaced "groomed" with the

word "manipulated" for the same effect in closing argument. We agree. The State

did, in fact, use those words interchangeably during its closing argument. See 8

VRP (Apr. 26, 2012) at 1540 (describing A.A. as "a prime candidate for grooming,

to be manipulated"). Little meaningful difference exists between the prosecutor's

comments and arguing Phelps had developed a "trusting relationship" with A.A. or

manipulated her. Various witnesses testified about Phelps's interactions with A.A.

and her family, her vulnerability as a troubled teenager, and the evolution of

Phelps's relationship with her.^ The prosecutor summarized this extensive

testimony, alluding to grooming only in that it was relevant to the context of

Phelps's and A.A.'s relationship. We find no support for Phelps's claim the

prosecutor presented his own invented definition of grooming to the jury, and even

^ The value of A.A.'s father's comment that he believed Phelps had groomed her is

debatable, but it is undisputed that that testimony was admitted.

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In re Pers. Restraint ofPhelps, No. 94185-8

if this were the case, prosecutors are free to characterize the evidence to tell their

story in closing argument. Furthermore, the jury was instructed closing arguments

were not evidence and it could consider only the testimony and exhibits in reaching

its verdict.

We also find no suggestion the prosecutor used grooming as profiling

evidence or to argue Phelps was guilty because he had engaged in grooming.^ The

prosecutor thoroughly discussed the date of the rape itself, and any credibility

arguments he made centered on the differences between Phelps's and A.A.'s

accounts of what happened that day. We hold the prosecutor in this case did not

commit misconduct. He did not argue facts not in evidence, and his comments in

closing argument were not central to the verdict reached by the jury.^

It is the responsibility of trial courts to apply the standards for

admissibility of expert testimony under ER 702 and the Rules ofEvidence. Unlike

closing arguments, which jurors are specifically instructed are not evidence, there

is no similar instruction offering jurors guidance on how to interpret expert

testimony, which is offered to them as evidence or to assist in understanding

® While the State argued that Phelps "was grooming everybody else," 8 VRP (Apr. 26,

2012) at 1591, in context it was referring to Phelps's manipulation of the people surrounding

A.A., not Phelps's grooming of other girls or propensity to groom. Propensity evidence is

generally inadmissible under ER 404.

^ Because we hold the prosecutor did not commit misconduct, Phelps's ineffective

assistance of counsel claims of both trial and appellate counsel necessarily fail.

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evidence. As alluded to earlier, cases express concern about the weightjurors

might give to an expert opinion, so trial courts should be hesitant to admit expert

testimony on grooming. We reverse the Court of Appeals and hold the concept of

grooming, as used in this case, is within the common knowledge ofjurors and the

State was not required to present expert testimony to argue grooming to the jury.

Our holding is consistent with Braham, which discourages the use of expert

testimony on grooming except in certain limited circumstances. That is not to say

that expert testimony may never be offered; there may be instances where expert

testimony could be admissible and appropriate. Nor does our holding allow

grooming evidence to be offered for any purpose; under Braham, grooming

evidence may not be introduced as profiling evidence, or as circumstantial

evidence of a defendant's guilt. Phelps fails to overcome the first hurdle to prevail

on his PRP.

Even if we were to hold that the prosecutor argued facts in evidence

through his use of the term "grooming," Phelps cannot overcome the second hurdle

of proving any misconduct was flagrant and ill intentioned. We have found

prosecutorial misconduct to be flagrant and ill intentioned in a narrow set of cases

where we were concerned about the jury drawing improper inferences from the

evidence, such as those comments alluding to race or a defendant's membership in

a particular group, or where the prosecutor otherwise comments on the evidence in

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In re Pers. Restraint ofPhelps, No. 94185-8

an inflammatory manner. See State v. Monday, 171 Wn.2d 667, 257 P.3d 551

(2011); State v. Belgarde, 110 Wn.2d 504, 508, 755 P.2d 174(1988)(holding a

prosecutor committed flagrant and ill-intentioned misconduct by telling the jury

the defendant in a murder trial was '"strong"' with the American Indian Movement

(AIM)and calling AIM a "'deadly group of madmen'" and "'butchers that kill

indiscriminately'"); Glasmann, 175 Wn.2d at 701-02(holding it was flagrant and

ill-intentioned misconduct for a prosecutor to present slides of the defendant's

booking photograph with words like "'GUILTY'" and "'WHY SHOULD YOU

BELIEVE ANYTHING HE SAYS ABOUT THE ASSAULT?"' superimposed

over the photograph in bold red letters).

For example, in Monday,the prosecutor called attention to the fact that some

of the witnesses were African-American by imitating their pronunciation of words

during direct examination and arguing a "'code'" that said "'black folk don't

testify against black folk'" explained why certain witnesses were reluctant to

testify against the defendant. Monday, 171 Wn.2d at 674. The defendant appealed

based on prosecutorial misconduct because the prosecutor had made an appeal to

racial prejudice to undermine the credibility of witnesses based on their race. The

State argued the evidence against the defendant was overwhelming. However, we

reversed the defendant's conviction, holding the misconduct was flagrant and ill

intentioned because "[t]he notion that [a prosecutor] should seek to achieve a

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In re Pers. Restraint ofFhelps, No. 94185-8

conviction by resorting to racist arguments is so fundamentally opposed to our

founding principles, values, and fabric of our justice system that it should not need

to be explained." Monday, 171 Wn.2d at 680. The cases establish in what settings

misconduct amounts to inexcusable behavior that compromises the fairness of a

defendant's trial.

Here, even assuming the prosecutor had committed misconduct, the

misconduct did not cross the line into areas of conduct that would have threatened

the fundamental fairness of his trial. The grooming comments did not rise to the

level of being inflammatory, nor did they come close to the level of severity our

precedent suggests is necessary to meet the "flagrant and ill intentioned" standard.

Also, in some cases we have factored in an inquiry whether a jury

instruction could have cured the alleged misconduct. See Emery, 174 Wn.2d at

762-65; State v. Warren, 165 Wn.2d 17, 29-30, 195 P.3d 940(2008). Here,Phelps

has not shown any prejudice incurable by a jury instruction. Closing arguments are

not evidence, and the jury here was given an instruction to that effect. 8 VRP (Apr.

26, 2012) at 1476. Jurors are presumed to follow the court's instructions. State v.

Hopson, 113 Wn.2d 273, 287, 778 P.2d 1014(1989).

Finally, even if we were to find flagrant and ill-intentioned misconduct,

Phelps does not overcome the third hurdle of actual and substantial prejudice

required for him to prevail on his PRP. The Court of Appeals was concerned about

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In re Pers. Restraint ofPhelps, No. 94185-8

the sufficiency ofthe evidence, but that is not the analysis we engage in to

establish prejudice in the context of a PRP. Glasmann, 175 Wn.2d at 711

("deciding whether reversal is required is not a matter of whether there is sufficient

evidence to justify upholding the verdicts"). The proper inquiry is whether there is

a substantial likelihood the misconduct affected the jury's verdict. Glasmann, 175

Wn.2d at 711 (citing State v. Dhaliwal, 150 Wn.2d 559, 578, 79 P.3d 432(2003)).

Phelps does not point out where in closing argument the prosecutor's use of

grooming affected the jury's determination ofPhelps's guilt regarding the

substantive crimes. As we have discussed, the prosecutor's use of the term

"grooming" was similar to arguing Phelps had manipulated, controlled, or

influenced A.A. Grooming was not central to proving the elements of the crime.

Instead, the prosecutor used grooming to describe the context ofPhelps's and

A.A.'s relationship and how it evolved leading up to the incident.^ Phelps does not

establish actual and substantial prejudice as a result of the prosecutor's use of

grooming in closing argument.

^ The evidence of how the relationship developed and evolved tended to be more specific

to the aggravating circumstances found by the jury of abuse of trust and particular vulnerability.

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In re Pers. Restraint ofPhelps, No. 94185-8

We reverse the Court of Appeals and dismiss Phelps's PRP.

WE CONCUR:

^IQV\7.<^

21

In re Pers. Restraint ofPhelps, No. 94185-8

Fairhurst, C.J., concurring

No. 94185-8

FAIRHURST, C.J.(concurring)—I disagree with the majority on three issues. I

would hold that(1)expert testimony is necessary to introduce grooming evidence,(2)

the prosecutor engaged in misconduct by arguing facts not in evidence, and (3) under

these facts "grooming evidence" constitutes inadmissible profiling evidence because

the prosecutor's arguments implicitly invited the jury to infer guilt based on the

characteristics of known offenders. See State v. Braham, 67 Wn. App. 930, 937, 841

P.2d 785 (1992). Despite my disagreement, I respectfully concur with the majority's

conclusion that reversal is not warranted because Todd Dale Phelps cannot establish a

substantial likelihood that the prosecutor's misconduct affected the jury's verdict.In re

Pers. Restraint of Glasmann, 175 Wn.2d 696, 711, 286 P.3d 673 (2012) (plurality

opinion).

I. ANALYSIS

This court has never addressed the admissibility of expert testimony on

grooming. Prior to this case, only two Court of Appeals opinions addressed this issue.

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In re Pers. Restraint ofPhelps, No. 94185-8

Fairhurst, C.J., concurring

State V. Quigg, 72 Wn. App. 828, 866 P.2d 655 (1994); Braham,61 Wn. App. at 937.

In Quigg, the court held that the prosecutor's witness was qualified as an expert to

testify on grooming because she had over a decade ofrelevant professional experience.

72 Wn. App. at 837. The court declined to address any other issues relating to the

admissibility of expert grooming testimony because the defendant failed to object to

those issues at trial. Id. at 836-37.

In Braham, the Court of Appeals held that expert grooming testimony used as

circumstantial evidence of guilt was improper profiling evidence. 67 Wn. App. at 937.

In that case, Howard Braham was charged with first degree child molestation after

allegedly touching a child who was, along with her mother, living with Braham for

three weeks. Id. at 931. The State indicated during pretrial motions that it intended to

call the director ofresearch for the Harborview Sexual Assault Center to present expert

testimony regarding the '"grooming process.'" Id. at 932. Braham's attorney objected

to this evidence on the grounds that it would be irrelevant and misleading to the jury.

Id. The judge allowed the expert to testify after the prosecutor assured the judge that

the testimony was "'highly relevant'" because Braham and the victim had a "'close

relationship.'" M at 932.

The expert testified generally about the process ofgrooming but did not mention

anything specific about Braham or the victim:

In re Pers. Restraint ofPhelps, No. 94185-8

Fairhurst, C.J., concurring

"[T]hat . . , clinical term ... has been applied to what we would call a

process of victimization. . . . [W]hat is basically meant by that is that in

most cases where sexual abuse happens, it isn't something that just

happens suddenly out ofthe blue. Generally there is a period oftime where

the person who intends to abuse the child gradually gets the child to feel

more comfortable and may gradually sexualize the relationship or form a

bond with the child so that the child will either not understand that what's

happening to them is wrong or the child will not tell anyone about it after

it happens."

Id. at 933 (alterations in original). The prosecutor referenced the expert testimony

during closing arguments, concluding that the elements of grooming were present

because the evidence showed that Braham had a close relationship with the victim and

that the victim fit the profile of a '"[yjoung, articulate, engaging young girl, needy,

wanting a father figure.'" Id. at 934. The prosecutor went on to assert that Braham's

grooming behavior was circumstantial evidence of his guilt. "'[T]he elements or

characteristics of... grooming ... are substantial circumstantial evidence supporting

the fact that in fact the defendant did sexually touch her on her vagina in that

bedroom.'"Id. at 937(alterations in original). Braham was found guilty offirst degree

child molestation and appealed.

On appeal, Braham argued that the trial court improperly admitted expert

testimony about the grooming process because it was,in fact, profile testimony. "As a

general rule, profile testimony that does nothing more than identify a person as a

member of a group more likely to commit the charged crime is inadmissible owing to

its relative lack of probative value compared to the danger of its unfair prejudice." Id.

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In re Pers. Restraint ofPhelps, No. 94185-8

Fairhurst, C.J., concurring

at 936. The Court of Appeals argued and concluded that the grooming testimony should

have been excluded because it had "virtually no probative value under ER 401" and

was unfairly prejudicial.^ Id. at 938-39. The court explained that grooming testimony

had little probative value because, contrary to what the prosecutor told the trial court,

it was not needed to show that Braham had a greater opportunity to commit the crime:

Indeed, we are unable to conceive of any basis for [the] admission [of

grooming testimony] in this case. Surely, expert opinion is not necessary

to explain that an adult in a "close relationship" with a child will have

greater opportunity to engage in the alleged sexual misconduct. Under the

facts presented here, we see no other value to this evidence.

Id. at 937-38. The court held that the "prosecutor exhorted the jury to infer guilt based

on [the expert's] testimony," id. at 937, and that the testimony was particularly

prejudicial because it establishes the profile ofa typical perpetrator rather than a typical

victim:

The unwarranted implication of guilt is particularly prejudicial

where, as here, the expert testimony establishes a profile of the typical

perpetrator rather than the typical victim. Perpetrator profile testimony

clearly carries with it the implied opinion that the defendant is the sort of

person who would engage in the alleged act, and therefore did it in this

case too.

'The court refrained from holding that such evidence will always be inadmissible, explaining

that expert testimony on grooming may be more probative under different circumstances. For

example, grooming evidence may be admissible if offered as rebuttal evidence after the defense

claims a perpetrator's conduct is inconsistent with those who commit abuse or rape. Braham,67 Wn.

App. at 938. It may also be admissible to explain a victim's behavior, such as delayed reporting. Id.

at 938 n.5.

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Fairhurst, C.J., concurring

Id. at 939 n.6. The court held that the erroneous admission of grooming evidence could

have affected jury deliberations and reversed and remanded for a new trial. Id. at 940.

In the instant case, the prosecutor used the term "grooming" or "groomed" in

front of the jury more than 30 times without introducing lay or expert testimony.

During voir dire, the prosecutor explicitly introduced the concept of grooming in the

context of rape and child molestation and discussed grooming at length with nine

potential jurors:

[PROSECUTOR]: Now, has anyone here heard in the realm of

sexual assault, rape, child molestation, anything like that, has anyone

heard of the word grooming? Raise your hand, please.

Number 10, grooming, what does that mean to you?

JUROR NO. 10: Grooming,the context I'm thinking ofis grooming

of a victim to be assaulted.

[PROSECUTOR]: Okay. Can you elaborate a little bit for me?

JUROR NO. 10: Well, yeah. Spending time with the child or with

the ~ you know, with the victim, gaining trust of the victim, basically

preparing the victim to make the next move.

[PROSECUTOR]: Okay. Did eveiybody hear that? Anybody not

hear it?

[PROSECUTOR]: Right. Okay. So is that part of the process, the

perpetrator when they're grooming not just the victim but other folks

around the victim maybe? Just what you said ~

JUROR NO.9: Well, I suppose it could be. I don't know.

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In re Pers. Restraint ofPhelps, No. 94185-8

Fairhurst, C.J., concurring

[PROSECUTOR]: Okay. Now,but what about isolating them from

their other friends? Is that something that. .. I'm just throwing these out

here, I mean, if you're not familiar with any ofthese. But please speak up

if you are.

Number 21, is that a ~ if you're grooming someone and you're

trying to gain a trust relationship to groom them, is it possible that you're

going to try to isolate that victim from the other people that victim trusts

in their life?

JUROR NO.21: Yeah.

1 Verbatim Report of Proceedings (VRP) Voir Dire (Apr. 17, 2012) at 113-16

(emphasis added)(last alteration in original).

During the State's redirect of a witness, the prosecutor asked the witness if she

"kn[e]w anything about grooming." 2 VRP (Apr. 18, 2012) at 211. Phelps objected,

arguing relevance. The trial court sustained the objection, stating,"That's an issue that

is for expert testimony. She is not an expert. She's already stated she's not an expert.

So I'm sustaining the objection." Id. Despite this declaration from the judge, the State

proceeded to discuss grooming without introducing any expert testimony on the

grooming process.

In closing, the prosecutor discussed different ways that a perpetrator can groom

a victim and those around a victim. He referenced the discussion in voir dire:

Then we talked about grooming. We talked about the process of

grooming. And some people came up with examples ofhow someone who

is g'ooming is going to be nice. They are going to try to get the trust of

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In re Pers. Restraint ofPhelps, No. 94185-8

Fairhurst, C.J., concurring

someone. They are going to try and isolate that person so that they can do

an act against this person who is being groomed. And it's not just the

person who is being groomed, but it's other people that are around as well

that are being groomed.

8 VRP (Apr. 26, 2012) at 1493 (emphasis added). The prosecutor then proceeded to

tell the jury that Phelps' behavior was "called grooming." Id. at 1549."The iPod texts

deleted, again, by[A.A.]to protect him. So where are we at? So now we're in a position

where [A.A.] has to pay because she tried to protect him. Do you know what this is

called? It's called grooming. And she was groomed well." Id. (emphasis added).^ In

summing up his argument, the prosecutor implied that the case is actually about

grooming:

So why are we here? We're here because ofgrooming, we're here

because of deceit, concealment, half-truths, misrepresentations. And

there's only one adult in this entire case who had control over everything

that happened in this case. One person who had the control and the

authority to control the flow ofinformation and the people involved. And

that's that guy right there.

Id. at 1548 (emphasis added). During rebuttal, the prosecutor argued that grooming

explains why Phelps did not call Child Protective Services(CPS):

As concerned as the defendant was for [A.A.], not one time, we

haven't heard any information that he ever called CPS,that he ever called

law enforcement, nothing. That's how concerned he was. He was

grooming everybody else. Remember, he was the one that was putting out

the severe information that she was going to commit suicide. Everybody

^The prosecutor even claimed,repeatedly,that Phelps was grooming the other adults in A.A.'s

life—hut there is no support in the expert testimony provided in other published cases in Washington

that the concept of grooming applies to anyone other than the victim. See Quigg,72 Wn. App. 828.

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In re Pers. Restraint ofPhelps, No. 94185-8

Fairhurst, C.J., concurring

else was familiar with it. And he was the one telling his family, hey, this

is a real big deal. Think it was played up quite a bit.

Id. at 1591. During closing argument and rebuttal, the prosecutor used the term

"grooming" or "groomed" a total of 26 times and displayed the word "grooming" or

"groomed" on 8 different PowerPoint slides. Id. at 1493-1553, 1580-91 (closing and

rebuttal); Pers. Restraint Pet., App. 1.

The majority suggests that grooming is a concept within the common knowledge

of jurors and argues that grooming evidence need not be introduced through expert

testimony.^ I respectfully disagree. The dictionary defines the verb "groom" as

a : to attend to the cleaning of(as an animal); esp : to maintain the

health and condition of the coat of(as a horse) by brushing, combing,

currying, or similar attention . . . b : to bring about or increase the

acceptability or attractiveness of(as one's physical appearance)esp. by

carefully attending to details of cleanliness and neatness ; freshen up :

spruce up . . . make neat... d : to get into readiness for some specific

objective.

Webster's Third New International Dictionary 1001 (2002).

"Grooming," in the sexual assault context, refers to a calculated pattern of

psychological behaviors used by sex offenders to gain the trust of potential victims

before assaulting them. Marjorie A. Shields, Annotation, Admissibility of Expert

^The majority does not explain what the definition of"grooming" is or whether that definition

is within the common knowledge ofjurors. The majority simply says that "[w]e have never held that

jurors need expert testimony to establish that a defendant manipulated or controlled someone;jurors

can understand these concepts based on common sense and experience." Majority at 15. The majority

goes on to say that "grooming" can he used interchangeably with "manipulating" and suggests that

the concept of"grooming" is related to the concepts of"developing trust" and "isolation." Id.

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In re Pers. Restraint ofPhelps, No. 94185-8

Fairhurst, C.J., concurring

Testimony on Grooming Behavior Involving Sexual Conduct with Child, 13 A.L.R.7th,

Art. 9, §§ 1-2 (2016). The court in Quigg explained that grooming was "a process by

which child molesters gradually introduce their victims to more and more explicit

sexual conduct." Quigg, 72 Wn. App. at 833. The fact that the prosecutor specifically

said that he was interested in discussing grooming'"in the realm ofsexual assault,rape,

[and] child molestation'" strongly suggests that the prosecutor intended to invoke the

psychological, rather than the ordinary, definition of"grooming."In re Pers. Restraint

ofPhelps, 197 Wn. App. 653, 663, 389 P.3d 758 (2017)(quoting 1 VRP Voir Dire at

113).

The majority concludes that the prosecutor did not need to introduce grooming

evidence through an expert witness here because the prosecutor did not use grooming

as a fact in evidence."[The prosecutor] used grooming to paint a picture ofthe evidence

for the jury. Grooming is descriptive of how Phelps's and A.A.'s relationship began,

developed, and expanded and in reality has or adds little value to what the State needed

to prove: that Phelps committed the crimes." Majority at 13. The record suggests that

the prosecutor provided the jury with his own definition of"grooming" and told the

jury that Phelps met that definition. In closing argument he presented the jury with

PowerPoint slides that said, "GROOMING - NICE, TRUST, ISOLATE" and

"GROOMING - NEVER IN THE OPEN," then showed a list of Phelps' behaviors

with the word "GROOMING" in bold at the top. Pers. Restraint Pet., App. 1, at 14,

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In re Pers. Restraint ofPhelps, No. 94185-8

Fairhurst, C.J., concurring

34,81. The prosecutor then proceeded to tell the jury, repeatedly, that Phelps' behavior

constituted grooming:

What is all this stuff that's going on? What is all this physical

contact between a coach and a student athlete? It's grooming', it's okay,

every time I touch you, it's okay, it's okay. Eventually, it becomes the

norm. The grooming isn't in the open, folks. When people groom, they

don't do it so everybody can see. That's not the way it works. It wouldn't

be called grooming. It would be called a crime because he'd be caught all

the time.

8 VRP at 1506-07(emphasis added). "He leans into the seat, and it's dark out, and he

takes his hand and puts it between her legs. Again, grooming. He already knows she's

not going to respond." /J. at 1513(emphasis added)."What I am suggesting is he was

grooming her just like he was grooming everybody else, that these issues are [A.A.'s],

and he's not a bad guy." Id. at 1517-18 (emphasis added). "These are the things that

are going on that she's being told and groomed with throughout their contacts." Id. at

1522 (emphasis added). "She's a prime candidate for grooming, to be manipulated.

And that's exactly what happened in this case." Id. at 1540 (emphasis added). "She

says [A.A.'s] obsessed with her dad. Maybe that might be true. Maybe she was. But

she's being groomed." Id. at 1542(emphasis added).

When the prosecutor gave the jury his own definition of"grooming behavior"

and asserted that Phelps' behavior falls within that definition, the prosecutor was, in

essence, saying that Phelps' behavior is consistent with a specific set of calculated

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In re Pers. Restraint ofPhelps, No. 94185-8

Fairhurst, C.J., concurring

psychological behaviors. The prosecutor does not get to provide, through argument,

facts not in evidence.

The Court of Appeals correctly determined that "[t]he psychological

complexities in understanding and evaluating the grooming process demand expert

testimony to aid the jury." Phelps, 197 Wn. App at 619.^ Courts in other states and

federal circuits recognize that grooming testimony requires specialized knowledge and

falls within the scope ofER 702, governing the admissibility of expert testimony. See,

e.g.. State v. Berosik,2009 MT 260,352 Mont. 16,23,214 P.3d 776;State v. Sorabella,

111 Conn. 155, 211-14, 891 A.2d 897 (2006); Morris v. State, 361 S.W.3d 649, 659-

62(Tex. Crim. App. 2011);State v. Akins,298 Kan. 592,315 P.3d 868(2014); Shields,

supra, 13 A.L.R.7th, § 4(explaining that expert testimony on grooming has been ruled

admissible by the Third, Fifth, Seventh, Ninth, and Tenth United States Circuit Courts

of Appeals and the courts of 15 different states plus the District of Columbia). Because

grooming testimony requires specialized knowledge and falls within the scope of ER

702,it necessarily falls outside the scope ofER 701,precluding its introduction through

■♦Whether grooming evidence requires expert testimony is an issue of first impression in

Washington, but our case law strongly suggests that evidence of a specific psychological profile is

properly introduced through expert testimony. See, e.g., Quigg, 72 Wn. App. at 837 (holding that an

expert was qualified to testify about the grooming process); State v. Allery, 101 Wn.2d 591, 682 P.2d

312 (1984) (evidence of battered women's syndrome introduced through expert testimony); State v.

Ciskie, 110 Wn.2d 263, 751 P.2d 1165 (1988) (same); State v. Janes, 121 Wn.2d 220, 850 P.2d 495

(1993) (evidence of battered child syndrome introduced through expert testimony).

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In re Pers. Restraint ofPhelps, No. 94185-8

Fairhurst, C.J., concurring

lay testimony. See ER 701. Thus, grooming testimony, if admissible under ER 403,

may only be introduced through an expert witness. See ER 701, 702.

Even when grooming evidence is introduced through expert testimony, the trial

court must be careful to ensure it does not constitute improper profiling evidence. The

majority holds that the State's use of grooming here does not constitute improper

profiling evidence because Braham is factually distinguishable. Specifically, the

majority distinguishes Braham on the grounds that the prosecutor in this case did not

use grooming behavior as circumstantial evidence of the defendant's guilt. I

respectfully disagree. Just like in this case, the prosecutor in Braham charged the

defendant with child molestation—a crime that does not require proof of grooming

behavior. RCW 9A.44.083. And just like in this case, the prosecutor's closing

arguments in Braham focused on characterizing the defendant's actions as grooming:

"[The expert] told you that it is typical in grooming, the offender is

going to have a relationship of some kind with the victim. In this case it

was almost a father-daughter relationship....[A.H.] likes Uncle Craigie.

He is her daddy at a time when she doesn't have her own dad there.. ..

"[T]he elements or characteristics of... grooming that [the expert]

explained to you this morning [are here]."

67 Wn. App. at 934(some alterations in original).

The court in Braham held that the State's grooming arguments were unduly

prejudicial because they implied guilt based on the characteristics ofknown offenders.

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Fairhurst, C.J., concurring

"Expert testimony implying guilt based on the characteristics ofknown offenders is the

sort of testimony deemed unduly prejudicial and therefore inadmissible. This was

exactly how the State used Ms. Berliner's testimony in this case." Id. at 937 (citations

omitted). I think the prosecutor's grooming arguments in this case are just as prejudicial

as the arguments in Braham. By referencing grooming behavior 30 times over the

course of the trial, the prosecutor implicitly invited the jury to associate the defendant

with a group ofpeople more likely to commit the crime.See id. at 939 n.6("Perpetrator

profile testimony clearly carries with it the implied opinion that the defendant is the

sort of person who would engage in the alleged act, and therefore did it in this case

too."). Under these facts, the risk of unfair prejudice associated with the concept of

grooming is substantially outweighed by the probative value of the evidence.^ Thus,

even if the prosecutor had attempted to introduce expert testimony on grooming, that

testimony would be inadmissible under BR 403.

The main difference between this case and Braham is that the prosecutor in this

case did not introduce any expert testimony to establish a foundation for his grooming

arguments. In my view, this error compounds the seriousness of his misconduct—^not

^Grooming evidence is no more probative here than it was in Braham. The eourt in Braham

explained that grooming evidence is irrelevant because it is not necessary to explain that an adult in

a close relationship with a child will have a greater opportunity to engage in sexual misconduet. 67

Wn. App. at 937-38. The same reasoning applies here—grooming evidenee is not necessary to explain

that a Softball coach with a close relationship to a young player will have a greater opportunity for

misconduct. Furthermore, arguing that Phelps was grooming others around A.A. is certainly not

necessary to prove that Phelps was guilty of molesting A.A.

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In re Pers. Restraint ofPhelps, No. 94185-8

Fairhurst, C.J., concurring

only did the prosecutor introduce improper profiling testimony but the prosecutor

introduced it himself without an expert witness. However, because Phelps failed to

object at trial, these errors are waived unless he establishes that the misconduct was so

flagrant and ill intentioned that no instruction could have cured the resulting prejudice.

See Glasmann, 175 Wn.2d at 704. Repeated references to inadmissible and

inflammatory evidence constitute serious misconduct, but in my view, the resulting

prejudice could have been neutralized by a curative instruction. Reluctantly, I agree

with the majority that reversal is unwarranted because Phelps cannot establish a

substantial likelihood that the misconduct affected the jury's verdict. Majority at 20;

Glasmann, 175 Wn.2d at 711.

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In re Pers. Restraint ofPhelps, No. 94185-8

Fairhurst, C.J., concurring

hMM\ , Ci

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In re Pers. Restraint ofPhelps

No. 94185-8

GonzAlez, J.(concurring)—I fully join the majority but write separately to

discuss the term of art "prosecutorial misconduct." The State makes a convincing

argument for us to stop using "misconduct" to describe mistakes made by

prosecutors because of how harsh the label is and because ofthe consequences for

individual prosecutors who commit error. Mot. for Discr. Review at 13("When

courts use the word 'misconduct' ... it perpetuates a confusion to the general

public that every instance of'prosecutorial misconduct' is the equivalent of

professional misconduct.").

The same observation applies to similarly harsh labels describing the

erroneous conduct ofjudges and criminal defense lawyers. We use equally

unforgiving labels to describe trial judge errors as an "abuse of discretion" and

mistakes by criminal defense lawyers as "ineffective assistance of counsel." We

do not find easily, or take lightly, misconduct, abuses of discretion, or

ineffectiveness.

My worry is that if we replace these terms of art with softer labels, we may

make the findings more often. The labels themselves should give us pause before

reaching such conclusions. While I am open to reconsidering this view, I am not

there yet.

In re Pers. Restraint ofPhelps, No. 94185-8 (Gonzalez, J., concurring)

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