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By Sharyn L. Decker
Lewis County Sirens news reporter
CHEHALIS – He’s already served his prison time, but Pe Ell resident Todd Phelps got good news in the form of the Washington Court of Appeals reversing his convictions for third-degree rape and second-degree sexual misconduct.
The jury trial stretched over nearly two weeks in the spring of 2012 and the former Pe Ell High School softball coach and log truck driver was given a sentence two days shy of six years.
The attorney for the 52-year-old painted a picture of a coach who became close to a 16-year-old team member because he was worried she was cutting on herself and might commit suicide. The prosecution told jurors of a man who gradually seduced a girl already troubled with low self esteem and depression.
Phelps lost an appeal in 2014, but filed a personal restraint petition. In its decision published last week, the appeals court said the prosecutor committed misconduct by introducing and arguing facts not in evidence about sexual grooming.
“… (T)his misconduct was prejudicial, flagrant, and ill intentioned and that there was no likelihood that this error could have been cured by a proper instruction,” the three-member panel wrote.
The panel held the error resulted in prejudice.
“You cannot get back the six years in prison, but he corrected what he found in error,” Seattle-based attorney Suzanne Lee Elliott said of her client.
Exactly how much time Phelps actually served isn’t clear, as he would have gotten early release with credit for “good time.”
Elliott said the issues that led to this decision for her client have been an ongoing topic in the appeals court and the state Supreme Court and led to some high profile cases being overturned because of overreach on the part of prosecutors.
Lewis County Prosecutor Jonathan Meyer said his office plans to ask the appeals court to reconsider its decision.
“Let’s not forget, the appeals court originally upheld the conviction,” Meyer said yesterday. “And if we have to retry it, we will.”
Phelps was represented by Centralia defense attorney Don Blair in the 2012 case in Lewis County Superior Court. The state’s case was presented by Lewis County Deputy Prosecutor Debra Eurich and Deputy Prosecutor Will Halstead. Judge Nelson Hunt presided.
In its more than 30-page opinion, the appeals court notes that the state contended its argument about grooming was based on reasonable inferences from the record. The appeals court however held that expert testimony is required if the state intended to rely upon “grooming” to argue and prove its case.
While the issue of grooming was discussed during jury selection and at length during closing arguments, by the deputy prosecutor, there were only two instances during the trial when the term grooming was mentioned in witness testimony, Justice Jill Johanson wrote.
The opinion issued on Jan. 24 was authored by Johanson, with Justices Thomas R. Bjorgen and Linda Cj Lee concurring.
Prosecutor Meyer said yesterday if he doesn’t get the hoped for result in the request for reconsideration, he’ll have to make a decision about asking the state Supreme Court to look at the case.
“If necessary, we’ll retry it, we’ll work with the victim on retrial,” Meyer said.
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For background, read “News brief: Appeals judges reject each of Pe Ell man’s claims on rape conviction” from Wednesday June 18, 2014, here
Tags: By Sharyn L. Decker, news reporter
funny that female correction officer @ green hill, raping little boys got almost no time in jail. I think the sentencing should be gender in ambiguous. Same crime same time.
@bo Ted Bundy seemed like a nice, innocent man too. What exactly does a rapist look like??
“If the misconduct was “flagrant” and “intentional” why didnt the judge stop the trial.”
Well, how about because the judge was Nelson Hunt, arguably the worst judge Lewis County ever suffered under. Remember when the supposed child rapist committed suicide after good ole Nelson would not allow any reconsideration after the girl recanted? Remember the Toledo Pharmacy robbery? Remember the real truth as to why he resigned as Lewis County Prosecutor?
I do not CARE how she behaved , he was a adult and a teacher of a minor , he was wrong and all the rest pales in the light of that. Even if she was 18 he is still in the wrong as he was in a position of power and I imagine any school would frown on that and fire him . Shame on people for supporting a rapist. Guess we get to support all kinds of scum now right ? I have lived in a small town for over 60 years and this type of behavior has always been around but the people who support it are coming out of the woodwork now more and more. It is dismaying but informative to know.
He’s still a coach who had sex with a student under the age of 18.
Well, with such a stalwart judge of character as b.o. perturb in his corner – how can he go wrong?
This current appeal decision can in no way be considered exculpable . It’s based on interpretation of a procedural technicality. In no way what so ever does it exonerate him of his actions.
His first try at appeal in 2014 was based on a juror – who because they admitted during jury selection they knew all parties involved – was dismissed. This would have disqualified them anyway.
In his unsuccessful appeal he held this some how showed that there were witnesses who were not on the record. A baffling and suspect example of circular logic.
It’s not surprising all his appeals are based on procedural technicalities – none of which, it seems to me, mitigate the facts and testimony, that were presented to a jury who unanimously convicted him of all counts.
If the misconduct was “flagrant” and “intentional” why didnt the judge stop the trial.
I know both the so called victim and the alleged rapist and let me tell you the so called victim after the supposed “rape” was still in contact with her alleged rapist when she was told not too, and for someone who has been “raped” I never want to be around that person. Her actions after this supposed rape was very odd. Congratulations Todd, I’m glad to see the truth is setting you free.
I always believed that this guy was innocent. I talked to him quite a few times over the years. He did not strike me as the type to rape and harm a young girl like this. Hopefully this case becomes the multi million dollar lawsuit Lewis County has needed to have filed against it for awhile. If Jonathan Meyer appeals and loses again, I hope Todd Phelps cleans out the prosecutor’s office, the sheriff’s office, and anyone else who put him away innocently. It’s time that someone makes an example out of Lewis County.
Let the retrial begin, I am sure the girl victim is a lot stronger and will not be afraid to testify on the stand again against this convicted rapist, and if I remember correctly, at least the girl had the guts to take the stand in her own defense, and Mr. Rapist did not take the stand in his own defense. I can probably understand why his attorney did not want him to take the stand, he would of self incriminated himself. Usually when your guilty, it is best not to take the stand-no?