83245-0
Wash. Ct. App.Jul 24, 2023Background
- Kevin Best responded to an undercover "Net Nanny" Craigslist ad and was arrested in a Washington State Patrol sting; he was charged with attempted first-degree child molestation and attempted second-degree rape of a child.
- Best asserted an entrapment defense at trial (for which he bore the burden) and requested surrebuttal closing argument after the State's rebuttal; the trial court denied the request citing CrR 6.15(d).
- The jury convicted Best; he appealed raising multiple claims: denial of surrebuttal, ineffective assistance of counsel, denial of a downward exceptional sentence under RCW 9.94A.535(1)(d) and (1)(a), prosecutorial misconduct (and request for mistrial), timeliness of a GR 37(c) juror challenge, sufficiency of evidence, and collateral estoppel.
- The trial court sustained an objection and struck part of a witness’s answer that included the statement "people don't always get caught," gave a curative instruction directing the jury to disregard the answer, and denied a mistrial.
- The trial court declined to grant a downward departure after reviewing texts and calls and concluding Best had become committed to the scenario; it also found that very young (8- and 12-year-old) victims could not be considered initiators or willing participants for purposes of RCW 9.94A.535(1)(a).
- The Court of Appeals affirmed, rejecting each of Best’s appellate claims as without reversible error.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Best) | Held |
|---|---|---|---|
| Denial of surrebuttal closing argument | CrR 6.15(d) governs closings; prosecution may rebut and rule does not provide for surrebuttal | Trial court abused discretion by denying surrebuttal and civil rules/CR51(g) should guide when criminal rules silent | Denial not an abuse of discretion; CrR 6.15(d) controls and was followed |
| Ineffective assistance for not citing authority to permit surrebuttal | No prejudice because denial was consistent with CrR 6.15(d) and controlling precedent | Counsel deficient for failing to research and cite authority; prejudice follows | Although performance might be deficient under Tsai, Best cannot show prejudice, so claim fails |
| Downward exceptional sentence under RCW 9.94A.535(1)(d) (inducement) | Court should exercise discretion to depart below range where defendant was induced with no predisposition | Trial court refused to consider entrapment as basis for departure | Trial court considered evidence, exercised discretion, and reasonably declined departure |
| Downward exceptional sentence under RCW 9.94A.535(1)(a) (victim as initiator) | Victims here (online personas) were willing participants/initiators | Even fictitious victims could be treated as initiators; court erred to refuse | Court did not abuse discretion; no authority supports that 8- or 12-year-old victims can be deemed initiators |
| Prosecutorial misconduct / mistrial (witness: "people don't always get caught") | Prosecutor’s question improperly shifted burden and prejudiced jury; mistrial required | Prosecutor's questions were fair response to defense questioning; curative instruction sufficed | No reversible misconduct: question responded to defense, court struck nonresponsive portion, gave curative instruction, prosecutor avoided burden-shifting in closing |
| Timeliness of GR 37(c) juror challenge | Challenge untimely under GR 37(c) because made after juror excused | Trial court erred in finding challenge untimely | Court correctly applied GR 37(c); challenge untimely absent newly discovered information |
| Sufficiency of evidence for intent / substantial step | Evidence (calls, texts, arrival at agreed time) supports intent and substantial step | Insufficient evidence that Best intended sex or took substantial step | Evidence sufficient when viewed in State's favor; convictions supported |
| Collateral estoppel (double jeopardy) after dismissal of a related charge | No collateral estoppel because there was a single prosecution with multiple charges | Dismissal of one charge prevents relitigation of same factual issue | Collateral estoppel inapplicable; prior dismissal occurred within the single litigation, not a prior final judgment |
Key Cases Cited
- L.M. by & through Dussault v. Hamilton, 193 Wn.2d 113, 436 P.3d 803 (2019) (abuse-of-discretion standard).
- State v. Thomas, 138 Wn.2d 630, 980 P.2d 1275 (1999) (CrR 6.15(d) takes precedence over CR 51 for closings).
- State v. Cayetano-Jaimes, 190 Wn. App. 286, 359 P.3d 919 (2015) (civil rules may be instructive when criminal rules are silent).
- State v. Vazquez, 198 Wn.2d 239, 494 P.3d 424 (2021) (two-prong ineffective assistance test).
- In re Yung-Cheng Tsai, 183 Wn.2d 91, 351 P.3d 138 (2015) (failure to research/apply statutes can be constitutionally deficient).
- State v. Garcia-Martinez, 88 Wn. App. 322, 944 P.2d 1104 (1997) (trial court that considers facts and denies departure has exercised discretion).
- State v. Brown, 132 Wn.2d 529, 940 P.2d 546 (1997) (prosecutor may fairly respond to defense arguments).
- State v. Allen, 182 Wn.2d 364, 341 P.3d 268 (2015) (presumption that juries follow curative instructions).
- State v. Monday, 171 Wn.2d 667, 257 P.3d 551 (2011) (prosecutor’s duty to protect defendant’s right to fair trial).
- State v. Jungers, 125 Wn. App. 895, 106 P.3d 827 (2005) (repeated elicitation/closing reliance on stricken testimony can require new trial).
- State v. Williams, 132 Wn.2d 248, 937 P.2d 1052 (1997) (elements and limits of collateral estoppel/double jeopardy).
- State v. Salinas, 119 Wn.2d 192, 829 P.2d 1068 (1992) (sufficiency review standard).
- State v. Logan, 102 Wn. App. 907, 10 P.3d 504 (2000) (failure to cite authority permits court to assume none exists).