In re Pers. Restraint of Phelps (Majority and Concurrence)
Annotate this CaseThe issue before the Washington Supreme Court centered on whether a prosecutor's closing argument asserting a victim was "groomed" by the defendant, where testimony of grooming was disallowed during trial, constituted flagrant and illintentioned misconduct requiring reversal. The Court of Appeals 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 was required if the State intended 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 Supreme Court reversed on both issues and held 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 illintentioned misconduct, nor did Phelps show that if misconduct occurred it caused him actual and substantial prejudice.
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