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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
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