410 P.3d 1142
Wash.2018Background
- Phelps, a high-school assistant softball coach, was convicted of third-degree rape and sexual misconduct with a minor based on testimony by a 16‑year‑old player (A.A.) describing escalating sexual contact and an alleged forced sexual encounter.
- Witnesses described Phelps developing a private, trust-based relationship with A.A., her vulnerability (self‑harm, depression), and instances of secretive contact; the jury found two aggravators: abuse of trust and victim vulnerability.
- During trial, a lay witness (A.A.’s father) testified without objection that he believed Phelps had “groomed” A.A.; the court sustained an objection when the prosecutor sought to elicit a non‑expert coach’s opinion on grooming. No expert testimony on grooming was offered.
- In closing, the prosecutor repeatedly used the term “grooming” (multiple slides and 19–26 oral references across argument and rebuttal) to characterize the relationship and explain behavior such as isolation, manipulation, deleted texts, and credibility issues; defense did not object to the closing.
- The Court of Appeals granted Phelps’s personal restraint petition (PRP), holding expert testimony is required to rely on grooming and that the prosecutor’s closing constituted flagrant, ill‑intentioned misconduct causing prejudice. The Washington Supreme Court reversed: it held expert testimony was not required here, the prosecutor did not argue facts not in evidence, and Phelps failed to show flagrant misconduct or actual and substantial prejudice.
Issues
| Issue | Plaintiff's Argument (Phelps) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Whether expert testimony is required to use "grooming" at trial | Grooming is a specialized psychological concept; expert evidence is needed to explain it and lay testimony or argument without an expert is improper | Grooming describes common concepts (manipulation, trust, isolation) well within jurors’ common understanding; expert testimony is not required here | Expert testimony not required under ER 702 for the way grooming was used; grooming here was descriptive/contextual, not a profiling or specialized-cause issue requiring expert aid |
| Whether prosecutor committed misconduct by arguing "grooming" in closing | Repeated grooming references without expert foundation equated to arguing facts not in evidence and impermissible profiling, so misconduct requiring reversal | Prosecutor argued reasonable inferences from admitted testimony (manipulation, isolation, trust); closing argument is not evidence and characterizing evidence is allowed | No prosecutorial misconduct: prosecutor’s statements were permissible inferences/characterizations of the testimony and not central to the verdict |
| Whether any misconduct (if found) was flagrant and caused prejudice warranting relief on PRP | Even if misconduct occurred, it was flagrant and ill‑intentioned and affected the verdict; reversal required | No flagrant, ill‑intentioned conduct; any issue was curable by jury instruction; Phelps cannot show actual and substantial prejudice required in a PRP | Not flagrant/ill‑intentioned; jury instruction would cure; and Phelps failed to show a substantial likelihood the comments affected the verdict — PRP dismissed |
Key Cases Cited
- State v. Braham, 67 Wash. App. 930, 841 P.2d 785 (Wash. Ct. App.) (expert grooming testimony can be prejudicial profiling if used to imply guilt)
- State v. Thorgerson, 172 Wash.2d 438, 258 P.3d 43 (Wash. 2011) (prosecutor has wide latitude to argue reasonable inferences)
- In re Personal Restraint of Glasmann, 175 Wash.2d 696, 286 P.3d 673 (Wash. 2012) (standard for PRP prejudice; flagrant misconduct inquiry)
- State v. Monday, 171 Wash.2d 667, 257 P.3d 551 (Wash. 2011) (examples of flagrant, racially inflammatory prosecutorial misconduct)
- State v. Black, 109 Wash.2d 336, 745 P.2d 12 (Wash. 1987) (jurors may give undue weight to expert testimony)
- State v. Quigg, 72 Wash. App. 828, 866 P.2d 655 (Wash. Ct. App.) (expert qualified to testify about grooming in prior case)