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In re Personal Restraint Petition of Phelps

Court of Appeals of Washington, Division 2

January 24, 2017

In re the Matter of Personal Restraint Petition of TODD DALE PHELPS, Petitioner.

          Johanson, J.

         In this personal restraint petition (PRP), Todd Dale Phelps seeks collateral review of his June 8, 2012 jury trial convictions for third degree rape and second degree sexual misconduct with a minor. We hold that the prosecutor committed misconduct by introducing and arguing facts not in evidence about sexual grooming and that this misconduct was prejudicial, flagrant, and ill intentioned and that there was no likelihood that this error could have been cured by a proper instruction. We further hold that this error resulted in actual and substantial prejudice. Accordingly, we grant this PRP and reverse his convictions.

         FACTS

         I. Background

         A. 2010: Relationship Starts

         In the summer of 2010, 16-year-old AA[1] was playing on a fast-pitch softball team that Phelps was coaching. AA frequently travelled with Phelps and his family to out-of-town games. Over time, she began to think of Phelps as a "father figure" rather than just a coach. 3 Report of Proceedings (RP) at 444.

         After summer ended, AA became withdrawn and depressed, and her mother learned that AA had been cutting herself. AA started seeing a physician and a counselor. She was diagnosed with depression and was placed on antidepressants. AA seemed to improve once she received this help.

         B. February through March 2011: Increasing Confidences and Contact with Phelps

         In February 2011, AA began playing softball on her high school team; Phelps was one of her coaches. Between February and the end of March, Phelps encouraged AA to confide in him about personal issues including her marijuana use, her cutting, and her relationship with her boyfriend. Phelps and AA met frequently during softball practice and once in Phelps's home. They also once sat and talked in Phelps's car in a church parking lot after AA accompanied him to another team's game.

         As time progressed and AA had confided more in Phelps, Phelps's degree of contact with AA increased. At first, AA just confided in Phelps about her issues. Phelps then shared sexually explicit stories about himself and AA's relatives with AA. And finally, Phelps had AA show him where she cut herself, which required her to pull her pants halfway down.

         Around this same time, Phelps attempted to discuss AA's issues with fellow coach Yvonne Keller; AA's youth pastor Benjamin Porter;[2] and Benjamin Porter's wife, Melody Porter. Melody Porter refused to talk to Phelps about AA. But Phelps told Keller and Benjamin Porter about talking to AA in his truck outside the church, his concern for AA, and the fact that they were communicating. Benjamin Porter told Phelps that he should not be alone with AA. Keller contacted AA's mother[3] and told her that Phelps was texting AA, that they were discussing AA's problems, and that she (Keller) thought AA was getting too attached to Phelps.

         C. April 2, 2011: Sexual Misconduct

         On April 1, 2011, AA broke up with her boyfriend. She did so on Phelps's advice and AA felt that Phelps was trying to help her. Later that day, AA contacted Phelps on Facebook and told him that she had cut herself again. Phelps told her that he needed to see these new cuts.

         The next day, April 2, AA lied to her mother about where she was going and went to Phelps's house to show him her cuts. Phelps had AA pull her pants down and show him her cuts on the tops of her thighs. According to AA, Phelps then had inappropriate sexual contact with her.[4] During this incident, Phelps's daughter returned for a short time, and AA hid next to Phelps's bed.

         On April 3, AA told Melody Porter that Phelps had kissed her and that she had kissed him back. AA became upset when Melody Porter said that she was obligated to report the incident. When AA begged her not to report it, Melody Porter agreed to give AA a chance to report the incident herself. That same day, Phelps told Keller that he had been alone with AA at his home and that he had her put on some shorts and show him her cuts. Believing that Phelps "was crossing the lines as a coach, " Keller reported this to the school counselor. 2 RP at 192.

         The next day, Keller, AA's mother, and the head coach found AA in the gym alone with Phelps. Although it was not against a written policy to be alone with a student athlete, Keller was concerned because it was out of character for Phelps to be alone with players.

         Sometime in early April, [5] Phelps spoke to AA's mother about his concerns about AA's cutting and low self-esteem and how he cared for AA and wanted to help her. AA's mother later testified that she found the conversation "odd" because Phelps also commented that AA had "never been kissed, " which she thought went beyond what a coach should know about a 16-year-old girl. 1 RP at 46.

         D. April 7 Kiss and Ongoing Physical Contact

         On April 6, AA stayed overnight at the Phelpses' home and she slept on the couch with Phelps's daughter. The next morning, Phelps kissed AA. According to AA, his daughter witnessed this kiss, and Phelps told his daughter that he had just kissed AA on the forehead. Although Phelps's daughter later denied having witnessed the kiss, she told a friend and a friend's mother that she had witnessed Phelps "pulling away from kissing [AA]" one morning when AA had spent the night and that Phelps had explained to her that he was just trying to be like a father to AA. 8 RP at 1458.

         Also in early April, Phelps talked to Benjamin Porter about the allegations that he (Phelps) had kissed AA. Phelps said that he had just kissed AA like a daughter on the forehead and that "he believed that [AA] was a storyteller and that she was living in a fantasy world."[6] 2 RP at 247.

         On April 11 or 12, AA was injured during an away game. Phelps helped AA to and from the bus by giving her a piggyback ride. Keller observed this. According to AA, at one point while carrying her, Phelps turned around so the people behind him could not see his hands and grabbed her between her legs. He also touched her thigh and kept trying to hold her hand as they sat together on the bus. AA later testified that she trusted Phelps and thought he was just being playful.

         E. Initial Reports, Restrictions, and Termination

         On April 13, Melody Porter contacted AA by phone at school and told her that she needed to report the incident that AA had previously reported to her. AA left school, went to Melody Porter's workplace, and begged her not to tell because it would ruin her and Phelps's lives. But Melody Porter had AA return to school and reported to school officials that AA had told her that Phelps had kissed her on the cheek. The school contacted AA's mother, and her mother came to the school.

         AA told the adults that Phelps had kissed her on only the forehead and the nose and that Melody Porter was making too much out of it. AA then locked herself in a bathroom stall and deleted all of the texts on her iPod before her mother could take it from her. AA later testified that she lied about the kiss being on the forehead because Phelps was her friend, she was mad at everyone, and she thought only Phelps could understand and help her.

         During this time, AA and Phelps continued to have daily electronic contact. In one of their conversations, Phelps suggested that they lie and say the kiss his daughter had witnessed was just a kiss on the head. AA suggested that they say the kiss his daughter had witnessed was the one she had reported to Melody Porter.

         On April 18, Phelps met with the school superintendent, Kyle MacDonald. Phelps admitted that he had been texting AA and that he had been alone in the gym with AA because he wanted to talk to her. He also told MacDonald that he was afraid he would go to jail because he failed to report AA's self-harming behavior to Child Protective Services (CPS). In an earlier informal meeting, Phelps had already admitted he had kissed AA on the forehead when she had spent the night with Phelps's daughter, held AA's hand on the bus, and sat in the church parking lot with AA. Phelps asserted, however, that he was just trying to help AA, and "it had been blown out of proportion." 3 RP at 304-05. At this point, MacDonald planned to recommend that the school board suspend or terminate Phelps.

         Phelps and his wife met with AA's parents on April 18. Phelps told them that he was concerned about losing his coaching job and admitted to having kissed AA on the forehead. He also told AA's parents all of the "secrets"[7] AA had told him. 1 RP at 51. In addition, Phelps told AA's father that he "didn't have to worry that she was not a virgin." 2 RP at 146. AA's father thought that it was surprising that a coach would bring this up.

         Following this meeting, and with AA's parents' approval, the school board allowed Phelps to continue coaching on the condition that he stop texting students, not make personal phone calls to students, avoid sitting with students on the bus, and not be alone with students in isolated areas. Phelps was also required to receive additional training on staff/student boundaries.

         After this, Phelps continued to have contact with AA during the games, telling her that he had never loved anyone as much as he loved her, advising her to stop going to counseling because the counselor was trying to keep them from having contact, [8] and grabbing her crotch area as others were getting off the bus during an away game. He also continued to text AA.

         On April 26, one of AA's instructors discovered that AA had been texting Phelps on her iPod and reported this to MacDonald. Phelps resigned following this discovery.

         F. Continued Contact and Rape

         After his resignation, Phelps contacted AA's family and asked to see AA, and he continued to contact AA through her own e-mail account and other people's phones. Phelps and AA also arranged to meet in person twice at or near the school in mid-to-late July.

         Around July 14, Phelps contacted AA through her friend, MM, and arranged for them to meet behind the school in an area where Phelps knew there were no cameras. Phelps told AA and MM that people at work "were saying he was a pervert" and talked to them about his resignation and how he wanted to be able to continue to coach. 3 RP at 350. MM observed Phelps give AA a long hug when they were leaving. According to MM, although AA stopped using MM's phone to contact Phelps after this meeting, Phelps continued to contact her (MM) twice a week or more between July 14 and the end of August.

         On July 21, AA and her friend KC met Phelps at the school, which was next door to Phelps's house. Phelps asked KC what she knew about his relationship with AA, and KC told him that she knew Phelps had kissed AA on the nose. Phelps told KC that he had been trying to help AA but her parents would not let them talk, that he would never hurt AA, and that AA was like a daughter to him. KC saw him hug AA tightly for about 10 seconds. Phelps told KC not to tell anyone about them meeting, but KC told her parents.

         On July 27, AA lied to her parents about where she was going and met Phelps at his brother's house. According to AA, Phelps forced her to have sex with him on the floor of his brother's bedroom.

         While AA was gone, KC's mother contacted AA's mother and told her that KC and AA had met with and talked to Phelps at the school. When AA returned, her parents confronted her about seeing Phelps, and AA ran to Melody Porter's house and locked herself in. Melody Porter was eventually able to get AA to come outside, and AA returned home with her parents. AA's parents again took away her electronics and grounded her. AA did not disclose the rape at this time.

         G. August and September 2011: AA's Disclosures

         In mid-August, AA told MM about the rape. Following this disclosure, Phelps initiated an instant-messaging (IM) conversation with MM on Facebook. MM asked him why he would "'do that to [AA], '" referring to the rape, and he responded that if MM or AA told anyone, "his life is over and he'll be dead." 3 RP at 353. Phelps sent an IM to MM late that same day and asked if they had or were going to tell anyone else; MM tried to ignore these messages.

         AA's parents agreed to send AA to live with her aunt, Lisa Parente, in another town in order to keep her away from Phelps. AA agreed and moved in with her aunt on August 29. Phelps continued to ask MM about AA into September. In late September, AA called Melody Porter and told her something had happened on July 27. Melody Porter told AA to talk to Parente immediately. AA disclosed the July 27 rape to Parente. Parente took AA home, and AA told her parents that she had had "sexual contact" with Phelps. 2 RP at 158. AA's father called the sheriff.

         II. Procedure

         The State charged Phelps with third degree rape and second degree sexual misconduct with a minor. State v. Phelps, noted at 181 Wn.App. 1034, 2014 WL 2795966, at *2, review denied, 181 Wn.2d 1030 (2015). The case proceeded to a jury trial.

         A. Voir Dire

         During voir dire, the State, without objection, introduced the concept of grooming and discussed the concept at length with nine of the 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 of is 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 everybody hear that? Anybody not hear it?
Okay. Number 8, you raised your hand. You want to add something to that?
JUROR NO. 8: Not really. I think it's a trust issue. You know, the victim trusts the person. That's how they get started.
[PROSECUTOR]: So it's a trust relationship.
JUROR NO. 8: Right.
[PROSECUTOR]: Until what point?
JUROR NO. 8: Until something happens that they distrust them. Something would have to happen to make -- essentially with a child, you know, because children, they pretty much trust everybody.
[PROSECUTOR]: Okay. Well, how's the trust built? Raise your hand. Number 9?
JUROR NO. 9: Well, could establish a relationship with the family, doesn't have to be just the victim, be the victim's family, just get everybody to trust in you. Said something about a six-year-old before. If a six-year-old said they did this, number 3, nobody would believe them. This perpetrator has gained the trust of the people around the victim.
[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.
[PROSECUTOR]: Well, how else is trust gained? There were quite a few of you back there raised your hand. Way in the back, 46?
JUROR NO. 46: Taking the child out to activities and doing fun things with them, and hanging out with the ...

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