In the Matter of the Personal Restraint of TODD DALE PHELPS, Petitioner.
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 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 of Phelps, 197 Wn.App. 653,
389 P.3d 758, review granted, 189 Wn.2d 1001, 403
P.3d 38 (2017).
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 of the
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.
was an assistant coach for the Pe Ell School girls'
softball team. During the summer of 2010, Phelps took his
family and members of the team to tournaments most weekends.
One of those 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.
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 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
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 of Phelps 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.
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 2011 and A.A.'s father told him not to have any
further contact with A. A. However, Phelps and A.A. continued
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.
was charged with one count of third 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
term "grooming" came 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 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.
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
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 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.
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 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
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.
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.
Whether, by referencing grooming in closing argument, the
prosecutor committed flagrant and ill-intentioned misconduct.
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 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).
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
of trial judges to determine the admissibility of evidence
pursuant to ER 702 and ER 403.
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
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
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, 67 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).
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 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.
accept review of a PRP, we review pure questions of law de
novo. In re Pers. Restraint of Coats, 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 error resulting in actual and
substantial prejudice or a fundamental defect resulting in a
complete miscarriage of justice. In re Pers. Restraint of
Lui, 188 Wn.2d 525, 539, 397 P.3d 90 (2017) (citing
In re Pers. Restraint of Cross, 180 Wn.2d 664,
676-77, 327 P.3d 660 (2014)). This principle arises under the
Sixth and Fourteenth Amendments to the United States
Constitution and article I, section 22 of the Washington
State Constitution, which guarantee the right to a fair
trial; prosecutorial misconduct may deprive a defendant of
this right. In re Pers. Restraint of
Glasmann, 175 Wn.2d 696, 703-04, 286 P.3d 673 (2012)
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 In re Pers. Restraint
of Caldellis, 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.
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, 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 of these hurdles in turn.
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 "[s]omething 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 reaching 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.
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,
including evidence respecting the credibility of
witnesses." State v. Thorgerson, 172 Wn.2d 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.
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
the prosecutor was not using grooming in the same manner.
Instead, he used grooming to paint a picture of the 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.
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 of Phelps's and A.A.'s
relationship and is not key to the jury's determination
of Phelps's guilt.
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 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 ...