Washington Court Says “Grooming” Testimony Requires Expert Witness

In re the Matter of Personal Restraint Petition of Todd Dale Phelps (2017)

by David S. Marshall

The Washington State Court of Appeals, Division II, has reversed a sex abuse conviction for improper reliance on a contention that the defendant “groomed” his victim.

Prosecutorial misconduct regarding “grooming”

The court held that the Lewis County prosecutor’s arguments at trial were improper because they powerfully suggested defendant Todd Phelps had “groomed” the young athlete he allegedly assaulted without proper evidentiary support for this conclusion. This misconduct resulted in a violation of the Sixth Amendment right to a fair trial.

Mr. Phelps, a high school softball coach, was convicted at trial of second degree sexual misconduct with a minor and third degree rape. The charges against Mr. Phelps arose from suspicions regarding the nature of his relationship with a young woman on the softball team. Mr. Phelps had taken a special interest in her after she reached out for his help in her struggles with depression.

No “grooming” evidence presented

At trial, the prosecutor argued that Mr. Phelps’s attempts to help this young athlete and warn other adults around her about her mental health issues were actually part of a strategy to “groom” both the athlete and the people around her to think his relationship with her was normal, not sexual. The prosecutor presented no expert testimony to define what the concept of “grooming” meant. He also provided no evidence that grooming had taken place other than testimony by the athlete’s father that he believed his daughter’s coach had been grooming her to accept his sexual advances.

Court of Appeals reverses conviction

On appeal, the court found that expert testimony is required if the State intends to rely on grooming to prove its case. Mr. Phelps’s defense team pointed to several previous cases where courts found expert testimony about grooming to be extremely helpful to juries. These cases also showed it was unlikely a jury would could understanding grooming well without expert testimony. Though many jurors might have heard of the concept, it is not likely all jurors would understand the concept well enough to apply it to the facts of a particular case.

The appellate court then went a step further. It found that the lack of this expert testimony, coupled with the prosecutor’s heavy reliance on the grooming theory in his closing argument, amounted to prosecutorial misconduct. The credibility of Mr. Phelps versus the credibility of the student athlete was the core of the case; there was no other evidence that any crimes had occurred. The court determined that the prosecutor’s grooming argument, without evidentiary support, had a harmful effect on the fairness of Mr. Phelps’s trial. The prosecutor’s repeated references to grooming throughout his closing argument (emphasized with eight slides) could not help but affect the jury’s credibility determinations and influence their ultimate decision to find Mr. Phelps guilty.