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Court of Appeals Division I
State of Washington

Opinion Information Sheet

			

       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                        )
                                            )       DIVISION ONE
                      Respondent,           )
                                            )       No. 65494-2-I
                      v.                    )
                                            )       UNPUBLISHED OPINION
JASON P. KNUTH,                             )
                                            )
                      Appellant.            )       FILED: February 21, 2012
________________________________)

       Dwyer, C.J.  --  Jason Knuth was charged with child molestation in the first 

degree based upon allegations that he molested L.S., a seven-year-old girl for 

whom Knuth baby-sat.  Although she had disclosed the abuse to numerous 

individuals, L.S. recanted her allegation prior to Knuth's first trial.  When the jury 

could not reach a verdict, the trial court declared a mistrial.  During Knuth's 

second trial, however, L.S. testified that her allegation had been truthful -- Knuth 

had molested her.  Knuth was convicted as charged.  He appeals.

                                            I

       In March 2008, Jason Knuth was charged with child molestation in the 

first degree based upon allegations involving L.S.  L.S.'s father, David 

Windhausen, had hired Knuth to baby-sit his children:  L.S. and her nine-year-

old brother L.V.S.  According to L.S., the abuse occurred when Knuth was baby- 

No. 65494-2-I/2

sitting the children.  L.S. disclosed that, while she was sitting on Knuth's lap 

watching television, Knuth "reached under her shorts, under her underwear and 

rubbed his hand on her vagina."  Clerk's Papers (CP) at 2.

       L.S. initially disclosed the abuse to her mother, during one of her mother's 

sporadic visits to the children.  Although L.S.'s mother informed Windhausen of 

L.S.'s disclosure, Windhausen believed that L.S. was lying, and he permitted 

Knuth to continue baby-sitting the children.  Approximately one month later, L.S. 

disclosed the abuse to both her school counselor and her after-school program 

director.  The police were notified.  L.S. thereafter made the same allegation to 

child interview specialist Carolyn Webster.  A dependency proceeding was 

initiated, and L.S. was placed out of her father's custody between March and 

June 2008.  

       Shortly after being placed back into Windhausen's custody, however, L.S. 

recanted her allegation against Knuth.  In August 2008, Vanessa Allen, L.S.'s 

court appointed special advocate (CASA), met with L.S. at the family home.  

Allen spoke with L.S. alone in Allen's car, but Windhausen stood outside the 

trailer where the family lived during the meeting.  When Allen asked L.S. about 

her living situation, L.S. interrupted and told Allen that she had "fibbed" when 

she disclosed that Knuth had touched her inappropriately.  Report of 

Proceedings (RP) (Feb. 25, 2010) at 106, 133.  In an apparent effort to aid 

Knuth's defense, Windhausen thereafter took L.S. and L.V.S. to defense 

                                          - 2 - 

No. 65494-2-I/3

counsel's office, where the children were interviewed.  During the interview, after 

prompting by Windhausen, L.S. again recanted her allegation.  

       At Knuth's first trial, in April 2009, L.S. testified twice -- first at a child 

competency hearing and then before the jury.  Although the State presented 

evidence of L.S.'s disclosures of abuse, L.S. testified consistent with her 

recantation.  The jury was unable to reach a unanimous verdict, and the trial 

court declared a mistrial.  

       L.S. was again removed from Windhausen's custody between May and 

August 2009.  During that time, Allen, L.S.'s CASA, again met with L.S.  The 

purpose of the meeting was to discuss L.S.'s progress in counseling but, during 

the meeting, L.S. started crying and told Allen that her initial allegation against 

Knuth had been truthful.  L.S. also told Allen that she did not want Knuth to get 

in trouble.  L.S. said it was not Knuth's fault because he had been drinking 

alcohol when the molestation occurred.  

       Prior to his second trial, Knuth informed the trial court that he wanted to re-

interview L.S.  The trial court ruled that "[a]ny request for re-interviewing [L.S.] 

must first have the input of . . . Vanessa Allen.  The court will then consider the 

request for a second interview."  CP at 102. Nevertheless, defense counsel 

scheduled a second interview of L.S. without first seeking Allen's input.  When 

defense counsel informed Allen that an interview had been scheduled, Allen 

replied that she did not "agree to the need for such a meeting," as L.S. had 

                                          - 3 - 

No. 65494-2-I/4

already been interviewed.  CP at 118. Allen stated that L.S. was "continuing in 

mental health counseling" and was "fragile" and that it was not "in [her] best 

interests to have to attend yet another interview with defense counsel."  CP at 

118-19.

       Knuth thereafter sought an order from the trial court granting his request 

to re-interview L.S.  A hearing was held on November 30, 2009.  When the trial 

court asked defense counsel why he wanted to re-interview L.S., defense 

counsel stated that he "would like to know what she is going to say at trial."  RP 

(Nov. 30, 2009) at 5. Knuth admitted, however, that he had interviewed L.S. 

prior to the first trial and that L.S. had testified at that trial.  Following the 

hearing, the trial court denied Knuth's request for an order permitting a second 
interview of L.S.1  

       At Knuth's second trial, L.S. testified that her allegation had been 

truthful -- that Knuth had molested her. When asked why she had previously told 

Allen that the sexual abuse had not occurred, L.S. testified that she "wanted it 

over with."  RP (March 3, 2010) at 15. Knuth was convicted as charged.  

       Knuth appeals.

                                           II

       Knuth first contends that he was denied a fair trial when the trial court 

       1 The trial court did, however, authorize Allen, to whom L.S. had disclosed that her initial 
allegation was truthful, to be interviewed by defense counsel prior to Knuth's second trial.  The 
trial court informed Knuth that the court might reconsider its ruling with regard to a second 
interview of L.S. if additional information was uncovered during defense counsel's interview of 
Allen.  

                                          - 4 - 

No. 65494-2-I/5

declined to grant his request to re-interview L.S.  Knuth asserts that he met the 

requirements of Criminal Rule (CrR) 4.7(e) and, thus, that the trial court should 

have granted his motion for a second interview.  We disagree.

       The scope of discovery is within the sound discretion of the trial court.

State v. Pawlyk, 115 Wn.2d 457, 470-71, 800 P.2d 338 (1990) (citing State v. 

Yates, 111 Wn.2d 793, 797, 765 P.2d 291 (1988)).  Thus, a trial court's 

discovery decision will not be disturbed on appeal absent a manifest abuse of 

that discretion.  State v. Blackwell, 120 Wn.2d 822, 826, 845 P.2d 1017 (1993).  

An abuse of discretion occurs when a trial court's decision is manifestly 

unreasonable or based upon untenable grounds or reasons.  State v. Powell, 

126 Wn.2d 244, 258, 893 P.2d 615 (1995).

       CrR 4.7 governs the scope of discovery in criminal proceedings.  Yates, 

111 Wn.2d at 797.  CrR 4.7(a) sets forth the prosecution's disclosure 

obligations.  Blackwell, 120 Wn.2d at 828.  However, when a defendant requests 

the disclosure of information beyond that which the prosecutor is obligated to 

disclose, the defendant's discovery request must comply with CrR 4.7(e)(1).  

State v. Norby, 122 Wn.2d 258, 266, 858 P.2d 210 (1993) (citing Blackwell, 120 

Wn.2d at 828). Pursuant to that rule, the trial court has the discretion to grant 

the defendant's discovery request when the defendant demonstrates that the 

information sought is material and that the discovery request is reasonable:

              Upon a showing of materiality to the preparation of the 
       defense, and if the request is reasonable, the court in its discretion 
       may require disclosure to the defendant of the relevant material 

                                          - 5 - 

No. 65494-2-I/6

       and information not covered by [other sections of the rule].

CrR 4.7(e)(1).  Thus, two threshold requirements must be met before the trial 

court may exercise its discretion in granting the discovery request.  Norby, 122 

Wn.2d at 266.  The burden is on the defendant to demonstrate the materiality of 

the requested information and the reasonableness of the discovery request.

State v. Boyd, 160 Wn.2d 424, 432, 158 P.3d 54 (2007).

       Evidence is material if there is a reasonable probability that it would 

impact the outcome of the trial.  State v. Gregory, 158 Wn.2d 759, 791, 147 P.3d 

1201 (2006). "The mere possibility that an item of undisclosed evidence might

have helped the defense or might have affected the outcome of the trial . . . does 

not establish 'materiality' in the constitutional sense." State v. Mak, 105 Wn.2d 

692, 704-05, 718 P.2d 407 (1986). Rather, in order to demonstrate that the 

information sought is material, "[a] defendant must advance some factual 

predicate which makes it reasonably likely the [discovery request will produce] 

information material to his or her defense. A bare assertion that [the requested 

information] 'might' bear such fruit is insufficient."  Blackwell, 120 Wn.2d at 830. 

       Here, Knuth sought to re-interview L.S., an emotionally fragile child whom 

he had allegedly sexually abused, in order to determine "what she is going to 
say at trial."2  RP (Nov. 30, 2009) at 5. Knuth sought "to find out what [her] 

       2 Knuth additionally asserted that a second interview was necessary because he had 
recently learned that L.S. and L.V.S. had engaged in sexual contact with one another around the 
time of the allegation against Knuth and that, in May 2009, L.V.S. had allegedly molested a two-
year-old girl in L.S.'s presence.  However, the trial court ruled that Knuth failed to demonstrate 
how these allegations were relevant to the charges against him.

                                          - 6 - 

No. 65494-2-I/7

expected testimony [would] be" because L.S., after recanting her allegation 

against Knuth, had subsequently told Allen that the allegation had been truthful.  

CP at 106.  

       Pursuant to CrR 4.7(e), before the trial court could exercise its discretion 

to grant Knuth's request, Knuth was required to demonstrate that the information 

that he sought through a second interview of L.S. was material to the preparation 

of his defense.  Blackwell, 120 Wn.2d at 828.  Knuth asserts that a second 

interview of L.S. "would have provided material information because L.S.'s 

testimony and out-of-court statements formed the sole basis for the criminal 

charge against [him]."  Appellant's Br. at 16.  He contends that a second 

interview would have allowed him "both to discern [L.S.'s] likely testimony at trial 

and also to evaluate [her] credibility."  Appellant's Br. at 17.  However, Knuth 

fails to demonstrate what particular information material to his defense would 

have been obtained through a second interview.

       As Knuth conceded in the trial court, he had already interviewed L.S. prior 

to his first trial -- indeed, it was at this interview that L.S. recanted her allegation 

against Knuth.  Through Windhausen, defense counsel had access to L.S. that 

even the State did not have.  Moreover, Knuth had access to the transcript of 

L.S.'s interview with the child interview specialist, during which L.S. alleged that 

Knuth had abused her; the interview was recorded and provided to Knuth in 

discovery prior to his first trial.  Similarly, Knuth had been provided with

                                          - 7 - 

No. 65494-2-I/8

information concerning L.S.'s disclosures of the abuse to each person to whom 

she had so disclosed -- each disclosure was put in writing and, again, provided to

Knuth during discovery.  Moreover, each of these persons testified at Knuth's 

first trial.  

       Thus, Knuth had access to all of the information regarding L.S.'s 

allegation of sexual abuse -- the recorded interview of L.S. herself, the 

disclosures she made to other persons, and the testimony at Knuth's first trial of 

those persons.  Knuth also had access to all of the information regarding L.S.'s

later recantation, including the interview with defense counsel during which she 

recanted and her testimony at the first trial.  Because he knew the content both 

of L.S.'s allegation and of her recantation, an additional interview would not have 
provided any information beyond that which Knuth already possessed.3  Knuth 

failed to demonstrate that his request for a second interview was reasonably 

likely to produce information material to his defense.  See, e.g., Blackwell, 120 

Wn.2d at 830. Because Knuth failed to meet the materiality requirement of CrR

4.7(e), the trial court did not err by denying his request for a second interview of 
L.S.4

       3 This is evidenced by the fact that, as defense counsel conceded at oral argument, no 
new information was, in fact, disclosed during L.S.'s testimony at Knuth's second trial -- L.S. had 
previously disclosed everything about which she testified at that trial.
       4 Knuth additionally asserts that the trial court erred in failing to exercise its discretion at 
all.  According to Knuth, the trial court deferred to the opinion of Allen, L.S.'s CASA, regarding 
the propriety of a second interview, rather than exercising its own discretion in ruling on his 
discovery request.  This argument is unwarranted.  The trial court did, indeed, seek Allen's input 
prior to ruling on Knuth's motion to re-interview L.S.  However, the trial court thereafter held a 
hearing at which it heard from both parties regarding Knuth's request.  Only then did the trial 
court rule that Knuth would not be permitted to re-interview L.S.

                                          - 8 - 

No. 65494-2-I/9

       Nevertheless, Knuth attempts to transform this discovery issue into one of 

constitutional magnitude, contending that he was denied his right to a fair trial 

when the trial court declined to grant his request to re-interview L.S.  However, 

Knuth cites to no authority for the proposition that a defendant has a 

constitutional right to repeatedly interview a witness.  Indeed, such a right does 

not exist.

       Finally, even were the trial court's ruling erroneous, an error in a 

discovery request ruling must be prejudicial to a substantial right of the 

defendant in order to warrant reversal.  State v. Grenning, 142 Wn. App. 518, 

539, 174 P.3d 706 (2008), aff'd, 169 Wn.2d 47, 234 P.3d 169 (2010).  A 

prejudicial error is one which affected the final result of the case.  State v. Smith, 

72 Wn.2d 479, 484, 434 P.2d 5 (1967). Knuth has not shown that the denial of 
his request for a second interview of L.S. changed the final result of his trial.5  

Thus, even had the trial court abused its discretion in refusing to permit a 

       5 Knuth cites to our Supreme Court's decision in State v. Burri, 87 Wn.2d 175, 550 P.2d 
507 (1976) in support of his contention that the denial of a pretrial interview is presumed to be 
prejudicial.  
       Burri is inapposite.  There, the prosecutor unlawfully held a special inquiry hearing with 
the defense's alibi witnesses, precluded the defense from attending the hearing, and then 
instructed the alibi witnesses not to discuss their hearing testimony with the defense.  Burri, 87 
Wn.2d at 176.  The court determined that providing the defense with a copy of the illegally 
obtained testimony was insufficient to vindicate the defendant's right to a fair trial:  "The 
availability of a copy of their testimony without benefit of personal interview of the witnesses 
concerning the testimony given by them is not necessarily an adequate substitute."  Burri, 87 
Wn.2d at 179.  
       Unlike in Burri, the defense here was neither precluded from any hearing nor deprived of 
any information available to the prosecution.  Moreover, as noted above, Knuth had already 
interviewed L.S. and had access to her disclosures of the abuse and her testimony from his first 
trial.  Burri does not stand for the proposition that a defendant charged with molesting a seven-
year-old girl is denied his right to a fair trial where he is not permitted to re-interview that 
emotionally troubled child.

                                          - 9 - 

No. 65494-2-I/10

second interview of L.S., reversal would not be warranted.

                                           III

       Knuth next contends that prosecutorial misconduct requires the reversal 

of his conviction.  He asserts that the prosecutor improperly (1) told jurors that it 

was their job to "decide what happened" and (2) urged a verdict based upon 

sympathy by describing Windhausen's poor parenting and L.S.'s deplorable 

living conditions.  However, because Knuth failed to object at trial to these 

allegedly improper comments, in order to prevail on this claim, he must 

demonstrate that the comments were so flagrant and ill-intentioned that a 

curative instruction could not have cured the resulting prejudice.  This he fails to 

do.

       "A defendant claiming prosecutorial misconduct must show that the 

prosecutor's conduct was both improper and prejudicial in the context of the 

entire record and circumstances at trial."  State v. Miles, 139 Wn. App. 879, 885, 

162 P.3d 1169 (2007).  A claim of prosecutorial misconduct is reviewed in the 

context of the total argument, the issues in the case, the evidence addressed in 

the argument, and the court's instructions to the jury.  State v. Russell, 125 

Wn.2d 24, 85-86, 882 P.2d 747 (1994). Improper prosecutorial conduct is 

prejudicial only where "'there is a substantial likelihood [that] the instances of 

misconduct affected the jury's verdict.'"  State v. Magers, 164 Wn.2d 174, 191, 

189 P.3d 126 (2008) (alteration in original) (quoting State v. Pirtle, 127 Wn.2d 

                                         - 10 - 

No. 65494-2-I/11

628, 672, 904 P.2d 245 (1995)).  Moreover, where a defendant does not object 

and request a curative instruction at trial, reversal is warranted only where the 

improper remark "'is so flagrant and ill-intentioned that it causes an enduring and 

resulting prejudice that could not have been neutralized by a curative instruction 

to the jury.'"  State v. McKenzie, 157 Wn.2d 44, 52, 134 P.3d 221 (2006) 

(quoting State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997)).

       Knuth first asserts that his conviction must be reversed because the 

prosecutor told the jurors during closing argument that it was "[their] job . . . to 

decide what happened."  RP (March 4, 2010) at 44. The prosecutor stated:

       I will again ask you to keep in mind a couple things.  You are not 
       sitting in judgment of Jason Knuth.  You are not deciding whether 
       he is a good person or a bad person.  Your job is to decide what 
       happened.  That is your job.  And he made a choice whether he 
       had beers or not[;] he made a choice when he put his hand in her 
       pants.  Does he think consequences flow from that choice?  Your 
       job is to decide what happened and what happened here is that 
       Jason Knuth committed the crime of child molestation in the first 
       degree and I will ask that you find him guilty.

RP (March 4, 2010) at 43-44.  Knuth contends that this comment prejudiced his 

right to a fair trial because it diminished the State's burden of proof, implying that 

the State's version of "what happened" must be true if Knuth failed to present an 

alternative story.  

       A prosecutor may commit misconduct in closing argument by misstating 

the burden of proof if the prosecutor mentions that the defense did not present 

witnesses or suggests that the jury should find the defendant guilty simply 

                                         - 11 - 

No. 65494-2-I/12

because the defendant did not present evidence to support a defense theory.  

State v. Anderson, 153 Wn. App. 417, 428, 220 P.3d 1273 (2009), review 

denied, 170 Wn.2d 1002 (2010).  In Anderson, the prosecutor repeatedly 

suggested in closing argument that the jury's job was to "declare the truth" in the 

case.  153 Wn. App. at 424-25. We determined that the prosecutor's repeated 

request that the jury "declare the truth" was improper:  "A jury's job is not to 

'solve' a case.  It is not, as the State claims, to 'declare what happened on the 

day in question.'  Rather, the jury's duty is to determine whether the State has 

proved its allegations against a defendant beyond a reasonable doubt."  

Anderson, 153 Wn. App. at 429 (internal citation omitted). Nevertheless, we 

declined to reverse the defendant's conviction based upon the improper 

comments because the defendant failed to demonstrate a substantial likelihood 
that such comments affected the jury's verdict.  Anderson, 153 Wn. App. at 429.6

       Similarly, here, Knuth has failed to demonstrate a substantial likelihood 

that the prosecutor's comment affected the jury's verdict.  Absent such a 

showing of prejudice, reversal of Knuth's conviction based upon the purportedly 
improper comment is unwarranted.7  See, e.g., Miles, 139 Wn. App. at 885.  

       6 In Anderson, the defendant also challenged various statements of the prosecutor 
regarding the standard for conviction.  In explaining the meaning of "beyond a reasonable 
doubt," the prosecutor told the jurors that they applied this standard in their everyday lives, 
including when deciding whether to have elective surgery or change lanes on the freeway.  
Anderson, 153 Wn. App. at 425. We determined that such statements were improper "because 
they minimized the importance of the reasonable doubt standard and of the jury's role in 
determining whether the State has met its burden."  Anderson, 153 Wn. App. at 431. However, 
the defendant had not objected at trial to these comments, and we determined that the 
comments were not so flagrant and ill-intentioned so as to mandate reversal notwithstanding the 
absence of an objection.  Anderson, 153 Wn. App. at 432.
       7 Because we hold that Knuth has not demonstrated the prejudice necessary to warrant 

                                         - 12 - 

No. 65494-2-I/13

Perhaps more importantly, Knuth failed to object to the prosecutor's comment at 

trial.  Absent an objection at trial and request for a curative instruction, reversal 

is warranted due to prosecutorial misconduct only where the defendant 

demonstrates that the purportedly improper comment was so flagrant and ill-

intentioned that a curative instruction could not have obviated the resulting 

prejudice. See, e.g., Anderson, 153 Wn. App. at 430.  Even were the 

prosecutor's comment improper, a simple curative instruction reinforcing the 

jury's proper role would have cured any prejudice resulting from the prosecutor's 
statement that the jury's role was to "decide what happened."8 Thus, because 

Knuth failed to object to this comment at trial, he cannot now prevail on his claim 

of prosecutorial misconduct.  

       Knuth also contends that prosecutorial misconduct requiring reversal of 

his conviction occurred when the prosecutor discussed evidence regarding 

Windhausen's poor parenting and the deplorable living conditions in which L.S. 

was raised.  He asserts that, in doing so, the prosecutor improperly relied upon 

inflammatory evidence, urging a jury verdict based upon sympathy for L.S. and 

"inspiring the jury to punish Knuth because Windhausen is a bad father."  

Appellant's Br. at 36.

reversal of his conviction, we need not address whether the prosecutor's comment was, indeed, 
improper.  See Miles, 139 Wn. App. at 885 (recognizing that a defendant claiming prosecutorial 
misconduct must demonstrate both the impropriety of the comments and prejudice resulting 
therefrom).  
       8 Moreover, we note that the jury was properly instructed regarding the State's burden of 
proof in the trial court's instructions to the jury.  Jurors are presumed to follow the court's 
instructions.  State v. Stein, 144 Wn.2d 236, 247, 27 P.3d 184 (2001).

                                         - 13 - 

No. 65494-2-I/14

       In support of his contention that the prosecutor urged a verdict on 

impermissible grounds, Knuth cites to State v. Belgarde, 110 Wn.2d 504, 755 

P.2d 174 (1988), and State v. Reed, 102 Wn.2d 140, 684 P.2d 699 (1984).  In 

Reed, our Supreme Court held improper the prosecutor's suggestion that "the 

defense witnesses should not be believed because they were from out of town 

and drove fancy cars."  102 Wn.2d at 146. The court determined that the 

statement was "calculated to align the jury with the prosecutor and against the 

petitioner."  Reed, 102 Wn.2d at 147.  In Belgarde, the prosecutor argued 

extensively during closing argument that the defendant was affiliated with the 

American Indian Movement, which the prosecutor described as a terrorist 

organization whose members were "militant butchers."  110 Wn.2d at 506-07.  

The court determined that the argument was not only highly inflammatory and 

prejudicial, but also improper testimony by the prosecutor in the guise of 

argument.  Belgarde, 110 Wn.2d at 507-08.  

       Here, however, as Knuth concedes, the evidence regarding 

Windhausen's parenting and L.S.'s living conditions was relevant to the 

prosecution's theory of the case -- that L.S. recanted her allegation against Knuth 

due to pressure from her father.  Unlike in Reed and Belgarde, the prosecutor's 

remarks were not calculated to align the jury with the prosecution or to prejudice 

the jury against Knuth -- the remarks were intended to explain why L.S., after 
disclosing that Knuth had molested her, thereafter recanted her allegation.9  In 

       9 Moreover, Knuth does not convincingly articulate why the jury, based upon a negative 

                                         - 14 - 

No. 65494-2-I/15

any event, Knuth did not object to these purportedly improper remarks at trial; 

nor has he demonstrated that a curative instruction could not have eliminated 

any prejudiced caused thereby.  See Belgarde, 110 Wn.2d at 507.  Thus, Knuth 

cannot prevail on this claim on appeal.

       Knuth has failed to demonstrate that any prejudice resulting from the 

allegedly improper prosecutorial comments could not have been obviated by 

curative instructions.  Given that Knuth failed to object to the purportedly 

improper remarks at trial, his burden is to demonstrate that the misconduct was 

so flagrant and ill-intentioned that such instructions could not have cured the 

resulting prejudice.  Because he has not met this burden, Knuth's contention that 

his conviction must be reversed on this basis is unavailing.

                                           IV

       Knuth further contends that reversal of his conviction is warranted due to 

ineffective assistance of counsel.  He asserts that his attorney was ineffective 

both in failing to request a deposition of L.S. after the trial court denied his 

request for a second interview and in failing to object to the purportedly improper 

prosecutorial comments to which Knuth assigns error on appeal.  We disagree.

       In order to prevail on a claim of ineffective assistance of counsel, a 

defendant must show both that counsel's performance was deficient and that the 

defense was thereby prejudiced.  Strickland v. Washington, 466 U.S. 668, 687, 

104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). "Failure to make the required showing 

impression of Windhausen, would be prejudiced against Knuth.

                                         - 15 - 

No. 65494-2-I/16

of either deficient performance or sufficient prejudice defeats the ineffectiveness 

claim."  Strickland, 466 U.S. at 700.  Counsel's performance is deficient only 

where it falls below an objective standard of reasonableness.  Strickland, 466 

U.S. at 687-88; see also State v. Stenson, 132 Wn.2d 668, 705, 940 P.2d 1239 

(1997).  "Judicial scrutiny of counsel's performance must be highly deferential."  

Strickland, 466 U.S. at 689.  "[T]o demonstrate ineffective assistance of counsel, 

a defendant must overcome a strong presumption that counsel's performance 

was reasonable."  State v. Breitung, No. 84580-8, 2011 WL 6824965, at *2 

(Wash. Dec. 29, 2011) (citing State v. Grier, 171 Wn.2d 17, 33, 246 P.3d 1260 

(2011)).

       Even where the defendant demonstrates that counsel's performance was 

deficient, the deficiency "must be prejudicial to the defense in order to constitute

ineffective assistance."  Strickland, 466 U.S. at 692.  It is not sufficient for the 

defendant to show that the deficiency had "some conceivable effect" on the 

outcome of the trial.  Strickland, 466 U.S. at 693.  Rather, "[t]he defendant must 

show that there is a reasonable probability that, but for counsel's unprofessional 

errors, the result of the proceeding would have been different.  A reasonable 

probability is a probability sufficient to undermine confidence in the outcome."  

Strickland, 466 U.S. at 694.  "When a defendant challenges a conviction, the 

question is whether there is a reasonable probability that, absent the errors, the 

factfinder would have had a reasonable doubt respecting guilt."  Strickland, 466 

                                         - 16 - 

No. 65494-2-I/17

U.S. at 695.  

       Knuth first contends that he was denied effective assistance of counsel 

because his attorney did not request a deposition of L.S. after the trial court 

denied his request to re-interview her.  However, Knuth cannot demonstrate, as 

required in order to prevail on such a claim, that his defense was prejudiced by 

defense counsel not requesting such a deposition.  See Strickland, 466 U.S. at 

687.  In order to demonstrate that the outcome of his trial likely would have been 

different had defense counsel sought permission to depose L.S., Knuth must 

show that the deposition would have provided additional information material to 

his defense.  However, just as Knuth could not show that a second interview of 

L.S. would have provided such information, he similarly cannot demonstrate that 

material information would likely have been obtained by deposition.  Absent 

such a showing, Knuth cannot demonstrate that deposing L.S. would likely have 

affected the outcome of his trial and, thus, he cannot demonstrate that he 

received ineffective assistance of counsel when defense counsel did not request 
a deposition.1 See Strickland, 466 U.S. at 694.

       Knuth also asserts that he received ineffective assistance of counsel 

because his attorney did not object to the allegedly improper prosecutorial 

comments that Knuth now challenges for the first time on appeal.  Knuth cannot 

demonstrate, however, that his defense was prejudiced by any such allegedly 

       1 Moreover, we note that defense counsel had no reason to believe that the trial court 
would grant such a request.  In denying Knuth's request to re-interview L.S., the trial court 
explicitly stated that it was "deny[ing] a further interview or deposition of the complainant."  RP 
(Nov. 30, 2009) at 11 (emphasis added).

                                         - 17 - 

No. 65494-2-I/18

deficient performance.11

              In making the determination whether the specified errors 
       resulted in the required prejudice, a court should presume, absent 
       challenge to the judgment on grounds of evidentiary insufficiency, 
       that the judge or jury acted according to the law.  An assessment of 
       the likelihood of a result more favorable to the defendant must 
       exclude the possibility of arbitrariness, whimsy, caprice, 
       "nullification," and the like.  

Strickland, 466 U.S. at 694.  The jury that convicted Knuth was instructed to 

"disregard any remark, statement, or argument [by the lawyers] that is not 

supported by the evidence or the law in [the court's] instructions."  CP at 34.  

The jury was further instructed that "the lawyers' statements are not evidence."  

CP at 34. Thus, because, in assessing a claim of ineffective assistance, this 

court presumes that the jury acted according to the law, Knuth cannot 

demonstrate that he was improperly convicted due to the prosecutor's comments 

that, according to Knuth, urged a jury verdict on an improper basis.  Similarly, 

because the jury was extensively instructed regarding the State's burden of 

proof, Knuth cannot demonstrate prejudice resulting from the absence of a 

defense counsel objection to the prosecutor's remarks that the jury's role was to 

"decide what happened."

       11 Because we determine that Knuth cannot demonstrate the prejudice required in order 
to prevail on his ineffective assistance claim, we need not address whether counsel's 
performance was, indeed, deficient.  
       [T]here is no reason for a court deciding an ineffective assistance claim to . . . 
       address both components of the inquiry if the defendant makes an insufficient 
       showing on one. . . . If it is easier to dispose of [such a] claim on the ground of 
       lack of sufficient prejudice, which we expect will often be so, that course should 
       be followed.  
Strickland, 466 U.S. at 697.

                                         - 18 - 

No. 65494-2-I/19

       "The benchmark for judging any claim of ineffectiveness must be whether 

counsel's conduct so undermined the proper functioning of the adversarial 

process that the trial cannot be relied on as having produced a just result."  

Strickland, 466 U.S. at 686.  No such thing occurred here.  Because Knuth 

cannot demonstrate that his defense was prejudiced by the allegedly deficient 
performance of his counsel, Knuth's ineffective assistance claim is unavailing.12

       Affirmed.

We concur:

       12 Knuth additionally contends that he was denied his right to a fair trial due to 
cumulative error -- specifically, he asserts that the prosecutor's misstatement of the jury's role 
was compounded by the prosecutor's improper reliance upon inflammatory evidence in urging a 
jury verdict on an improper basis.  As we determined to be true of the prosecutor's individual 
remarks, cumulatively, these allegedly improper comments were not so flagrant and ill-
intentioned that any resulting prejudice could not have been obviated through a curative 
instruction.  Thus, we decline to hold that the accumulation of these purportedly improper 
remarks resulted in the denial of Knuth's right to a fair trial.
       Similarly, we reject Knuth's contention in his statement of additional grounds that his 
right to a fair trial was denied when the trial court denied his motion to admit allegations of 
sexual conduct between L.S. and her brother L.V.S. and between L.V.S. and another child.  The 
trial court did not err in ruling that whether L.S. had been involved in sexual conduct with her 
brother or witnessed her brother involved in such conduct with another child was not relevant to 
the allegation against Knuth.

                                         - 19 - 

No. 65494-2-I/20

                                         - 20 -