State Of Washington v. Jeffrey M. Cover, 48732-2

Background

Victim S.M. (born Oct. 1991) testified that between 2006–2007 Cover (born 1975) repeatedly had sexual intercourse and other sexual acts with her beginning when she was 14–15; one incident involved third party Julie Barnett.
Initial reports were made in 2007; S.M. later married Cover as a teenager; charges were filed again in 2015 and trial occurred in 2016.
The State tried Cover on three counts of third-degree rape of a child (RCW 9A.44.079) alleging offenses occurred between April 1, 2006 and April 14, 2007.
At trial Cover made admissions to police including that the last intercourse was April 14, 2007; prior consistent statements by S.M. to family and officers were admitted to rehabilitate after impeachment.
A jury convicted on all three counts and found two aggravators (ongoing pattern of sexual abuse and egregious lack of remorse); Cover’s offender score was 6 and he received an upward exceptional sentence of 180 months.
On appeal Cover raised corpus delicti, sufficiency, evidentiary rulings, prosecutorial misconduct, jury instruction and special verdict form challenges, sentence challenges, ineffective-assistance claims, cumulative error, and additional grounds in a SAG; the court affirmed.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Cover)	Held
Corpus delicti for date-specific admission	Independent evidence corroborates the crime of intercourse with a minor, so defendant’s confession may be used; date is not essential to corpus delicti.	The corpus delicti rule requires independent corroboration of the specific date (April 14, 2007) tied to Cover’s confession, so the confession should be excluded.	Court: corpus delicti concerns the described crime (intercourse with under-16); independent evidence corroborated intercourse before age 16, so confession admissible.
Sufficiency of evidence for Count 3 (April 14, 2007)	Even without the date-specific confession, testimony and physical-act descriptions support three separate units of sexual intercourse.	There was no independent evidence tying intercourse to April 14, 2007 aside from Cover’s confession; insufficient evidence for third count.	Court: admission of the confession was proper; even if excluded, other testimony (multiple penetrations, oral acts, repeated intercourse) sufficed to support three convictions.
Admission of prior consistent statements (ER 613)	Prior consistent statements were admissible to rehabilitate S.M. after impeachment with a recantation letter; defense agreed at trial.	Admission improper because there was no allegation of recent fabrication under ER 801(d)(1)(ii).	Court: defendant failed to preserve the claim (defense consented at trial); appellate review declined.
Prosecutorial misconduct — arguing facts not in evidence	Closing drew reasonable inferences from evidence and confessions; no improper inflammatory or extraneous facts.	Prosecutor argued facts (e.g., hiding victim in California) not in evidence and that created prejudice.	Waived for failure to object; appellant did not show the conduct was flagrant and incurable.
Prosecutorial misconduct — burden of proof / rebuttal argument	Rebuttal argued defense theory required rejecting multiple consistent statements/confessions; this was a permissible inference in context and did not shift burden.	Rebuttal mischaracterized the burden by implying acquittal requires finding witnesses lied.	Court distinguished Fleming and Johnson; held the prosecutor’s remarks were not improper in context, and jurors were instructed on burden.
Prosecutorial misconduct — disclosure of incarceration	Questioning that calls were recorded was reasonable impeachment and not an intentional attempt to prejudice.	Question revealed Cover’s custody status and deprived him of fair trial.	Waived (no objection); appellant didn’t show a curative instruction would have been ineffective or that there was substantial likelihood of prejudice.
Ongoing-pattern aggravator instruction / special verdict form	Instruction and form limited jury to considering only evidence presented; State did not rely on post-marriage or post-age-16 conduct.	Language could allow verdict based on lawful post-marriage or post-16 conduct.	Not preserved; no actual prejudice shown because State’s proofs concerned pre-marriage, under-16 conduct.
Exceptional upward sentence (basis and excessiveness)	Sentence supported by jury findings of aggravators, evidence of repeated rape of a young teenager, and sentencing factors; defendant’s counsel conceded appropriateness of an upward sentence.	Court relied in part on Cover’s lawful acts (marriage, living with victim) and imposed an excessive/maximum sentence.	Invited-error/waiver: Cover requested above-range sentence so cannot challenge on appeal; sentence not clearly excessive given facts and discretion.
Ineffective assistance for failure to object (confession, instruction, incarceration reference)	Counsel’s omissions were either tactical, nonprejudicial, or objections would have failed; strong presumption of reasonable strategy.	Failure to object to these matters was deficient and prejudicial.	Court: performance not deficient or not shown to be prejudicial; ineffective-assistance claims fail.

Key Cases Cited

State v. Aten, 130 Wn.2d 640 (1996) (corpus delicti rule requires independent prima facie corroboration of the crime described in a confession)
State v. Brockob, 159 Wn.2d 311 (2006) (corpus delicti analysis focuses on whether independent evidence corroborates the crime described in the incriminating statement)
State v. Salinas, 119 Wn.2d 192 (1992) (standard for sufficiency of the evidence review)
State v. Tili, 139 Wn.2d 107 (1999) (unit-of-prosecution for rape: each penetration, however slight, can be a separate offense)
Strickland v. Washington, 466 U.S. 668 (1984) (two-prong test for ineffective assistance of counsel)
State v. McFarland, 127 Wn.2d 322 (1995) (defendant bears burden to show deficient performance and prejudice)
State v. Emery, 174 Wn.2d 741 (2012) (standard for reviewing unpreserved prosecutorial-misconduct claims: flagrant and ill-intentioned or incurable)
State v. Thorgerson, 172 Wn.2d 438 (2011) (prejudice standard when prosecutorial misconduct is unobjected-to)
State v. Fleming, 83 Wn. App. 209 (1996) (prosecutor may not argue that acquittal requires jury to find victim lied; that improperly shifts burden)