In re the Matter of Personal Restraint Petition of TODD DALE PHELPS, Petitioner.
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.
2010: Relationship Starts
summer of 2010, 16-year-old AA 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.
summer ended, AA became withdrawn and depressed, and her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.
February through March 2011: Increasing Confidences and
Contact with Phelps
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
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
this same time, Phelps attempted to discuss AA's issues
with fellow coach Yvonne Keller; AA's youth pastor
Benjamin Porter; 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 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.
April 2, 2011: Sexual Misconduct
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.
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. During this
incident, Phelps's daughter returned for a short time,
and AA hid next to Phelps's bed.
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.
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.
in early April,  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.
April 7 Kiss and Ongoing Physical Contact
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
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." 2 RP at 247.
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.
Initial Reports, Restrictions, and Termination
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
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.
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
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.
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" 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.
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
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,  and grabbing her crotch area as others
were getting off the bus during an away game. He also
continued to text AA.
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.
Continued Contact and Rape
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.
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.
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.
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
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.
August and September 2011: AA's Disclosures
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.
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.
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
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,
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
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
[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
[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
[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
JUROR NO. 46: Taking the child out to activities and doing
fun things with them, and hanging out with the ...