IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II

STATE OF WASHINGTON, No. 57999-5-II

Respondent,

v.

UNPUBLISHED OPINION

BRANDON WILLIAM HARM,

Appellant.

PRICE, J. — Brandon W. Harm, when he was around 14 years old, sexually penetrated 

F.M.G., who was alleged to be 11 years old, and continued this behavior multiple times over the 

course of two years. More than 10 years later, when Harm was 25 years old, he was convicted of 

one count of first degree child rape, one count of second degree rape, and one count of third degree 

rape. 

Harm appeals, arguing that (1) there was insufficient evidence to support his convictions, 

(2) the trial court failed to meaningfully consider the mitigating qualities of Harm’s youth at 

sentencing as required by State v. Houston-Sconiers, 188 Wn.2d 1, 391 P.3d 409 (2017), (3) the 

trial court erred in imposing an indeterminate sentence with respect to his first degree child rape 

conviction, and (4) the $500 victim penalty assessment (VPA) must be stricken from his judgment 

and sentence. In addition, Harm brings multiple claims in a statement of additional grounds 

(SAG). 

Filed

Washington State

Court of Appeals

Division Two

October 1, 2024
No. 57999-5-II

2

We affirm Harm’s first degree child rape and second degree rape convictions. However, 

we reverse Harm’s third degree rape conviction because of insufficient evidence. We also hold 

that the trial court erred at sentencing by failing to meaningfully consider the mitigating qualities 

of Harm’s youth and by imposing an indeterminate sentence for his first degree child rape 

conviction. We further conclude that the VPA can no longer be imposed. 

Thus, we reverse Harm’s third degree rape conviction and remand for the trial court to 

dismiss the third degree rape charge with prejudice and for resentencing. 

FACTS

I. BACKGROUND, TRIAL, AND VERDICT 

In 2011, Harm and F.M.G. met when Harm was 14 years old and F.M.G. was 11 years old

(Harm was approximately 33 months older than F.M.G.). Between 2011 and 2013, F.M.G. went 

over to Harm’s house several times a week with her mother. Harm and F.M.G. would go upstairs 

to Harm’s bedroom while Harm’s parents and F.M.G.’s mother would do drugs. While Harm and 

F.M.G. were upstairs during these visits, Harm penetrated F.M.G. with his penis multiple times. 

Many years later, in 2019, F.M.G. reported Harm’s actions to law enforcement. Following 

law enforcement’s investigation, which included F.M.G. participating in a forensic interview, the 

State charged Harm with two counts of first degree child rape, one count of second degree rape, 

and one count of third degree rape. 

In December 2022, the case proceeded to a jury trial. 

The State called F.M.G. as its first witness. According to F.M.G., one day when they were 

together in Harm’s bedroom, Harm showed F.M.G. his penis. Then, the next time that F.M.G. 
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went over to Harm’s house, Harm asked F.M.G. to “perform . . . oral sex.” Verbatim Rep. of Proc. 

(VRP) at 203. F.M.G. testified that she was uncomfortable, but she went through with it. 

F.M.G. initially testified that she was either 11 or 12 years old when Harm first put his 

penis in her mouth and could not remember precise dates of when this occurred. But later during 

her testimony, the State asked F.M.G. to read aloud a portion of her forensic interview transcript

in which she stated that she “was 11 the first time it happened.” VRP at 288. In response to this 

description from her forensic interview, the State asked F.M.G. to clarify to what she was referring 

when she said she was 11 years old “the first time it happened.” VRP at 288. F.M.G. clarified 

that she was referring to when Harm put his penis in her mouth. Shortly thereafter, F.M.G. again 

confirmed that she was 11 years old—F.M.G. testified that she 

knew that it started when [she] was 11. That—[was] the first time. 

VRP at 290. 

After Harm placed his penis in F.M.G.’s mouth for the first time, he continued to do so

every time F.M.G.’s mother brought her over to Harm’s house, which was several times a week. 

F.M.G. testified about one particular occasion when Harm put his penis in her mouth. 

F.M.G. explained that on that occasion she moved her head backwards to convey to Harm that she 

did not want to continue and “wanted out of that situation.” VRP at 221. But instead of stopping, 

Harm responded by moving “his body closer to [F.M.G.] and [moving] [her] head back closer to 

him.” VRP at 221. 

F.M.G. testified that several months later, Harm suggested that he put his penis in F.M.G.’s 

anus. Although F.M.G. agreed to engage in the activity, she explained that she did not want to do 
No. 57999-5-II

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so. Thereafter, Harm engaged in that activity each time they were together. F.M.G. was 12 years 

old at the time. 

F.M.G. next described what happened on one particular occasion when Harm was anally 

penetrating her. She asked him to stop and tried to turn her body around. However, Harm did not 

stop. Instead, Harm “strengthened his positioning” and leaned his body further into F.M.G. VRP 

at 234. 

Following the conclusion of F.M.G.’s testimony, the State called F.M.G.’s mother, two 

law enforcement officers, a forensic interviewer, and one of F.M.G.’s friends from middle school 

to testify. Thereafter, the State rested. 

After the State rested, Harm moved for a directed verdict on all counts. In response, the 

State conceded that there was insufficient evidence for one of the two first degree child rape counts. 

But the State argued that it had met its initial burden on all of the remaining counts. The trial court 

agreed with the State and dismissed one of the two counts of first degree child rape, but permitted 

all of the remaining counts to proceed. 

The defense then began its case. Harm did not testify, and the defense did not present any 

other witnesses. But Harm offered for admission an exhibit containing a series of social media 

messages between Harm and F.M.G. The trial court admitted the exhibit without objection. 

The jury found Harm guilty of one count each of first degree child rape, second degree 

rape, and third degree rape. 
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II. SENTENCING AND APPEAL 

The case proceeded to sentencing. The sentencing involved two unrelated cases—Harm’s 

rape convictions in this case and a second degree assault with sexual motivation conviction from 

another incident when Harm was much older. 

The parties argued for very different sentences. The State requested that the trial court 

impose a standard range sentence of 288 months based on Harm showing a pattern of sexual 

violence. Defense counsel requested an exceptional downward sentence of 15 to 36 months. 

Defense counsel based their request on Harm’s young age and the theory that F.M.G. was a 

“willing participant.” VRP at 462. 

During defense counsel’s argument, the trial court asked defense counsel about Harm’s 

current age. Defense counsel responded that Harm was 25 years old. The following exchange 

occurred:

[Trial Court]: How old is your client now, is he 26? 

[Defense counsel]: He’s 25. 

[Trial Court]: So, he’s still under the Houston-Sconiers umbrella of not being a 

mature adult. He’s still in their eyes. 

VRP at 462. 

After this exchange, defense counsel continued to argue that Harm’s age justified an 

exceptional sentence downward. Defense counsel contended that Harm’s brain was not fully 

developed when he raped F.M.G. Defense counsel explained that Harm was immature at the time 

of the offenses and that he was “operating on . . . impulses.” VRP at 462. Defense counsel further 
No. 57999-5-II

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argued that due to Harm’s age, he was not able to appreciate any facial expressions or body 

movement from F.M.G. indicating that she wanted to stop having sex. 

Following the arguments, the trial court explained its thoughts about the case. The trial 

court noted that the case was one of the “more difficult cases” that it had presided over. VRP 

at 472. The trial court then commented about how, in its view, the parents’ lack of supervision 

contributed to the crime and the result was horrific. The trial court remarked, 

Probably the root of the problem here is that the parents absolutely abandoned their 

duties to these two kids at the time of all of this was happening. And, the result is 

horrific. 

VRP at 472. In addition, the trial court expressed its belief that F.M.G. was significantly younger 

than Harm at the time of the offenses, stating, 

I have no doubt that she was significantly younger than you. She testified that she 

was 11 when she started. There’s a reason the law makes that a crime. 

VRP at 472-73. 

The trial court then referenced Harm’s youth for the first time, stating, 

I also take into account that this happened as a juvenile. And, he didn’t get caught 

at the time or he would have gone through the juvenile system. 

VRP at 473. 

The trial court noted that the rapes were not isolated incidents and represented a pattern of 

conduct, stating, 

It was an ongoing pattern of conduct that evolved from her being unable to consent 

due to age, to really a predatory relationship. 

I’m really concerned that you don’t understand the concept of consent and you need 

to have sex offender treatment to figure that out. That is one of the things that will 

be a condition of the prison sentence. 
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VRP at 473. 

The trial court imposed a low-end standard range indeterminate sentence of 240 months to 

life on the first degree child rape and second degree rape counts and 96 months on the third degree 

rape count, to be served concurrently. Neither party objected to the trial court’s indeterminate 

sentence on the first degree child rape count. 

In its final comments explaining its decision, the trial court stated that its sentence “takes 

into account that he was a juvenile when this happened.” VRP at 474 (emphasis added). The trial 

court also reiterated that F.M.G.’s mother failed her and left her to be with a predator who was two 

or three years older at the time. The trial court stated, 

So, 240 months plus all the conditions as requested. A low[-]end sentence is in no 

way diminishing anything [F.M.G.] testified to. I believe that what she said is 

accurate and that essentially her mother failed her in that case and left her to be the 

victim of a predator and the predator[] wasn’t but, you know, two or three years 

older at the time. But, let alone, it is a predatory relationship. So, that will be the 

sentence of the court. 

VRP at 474 (emphasis added). The trial court made no other comments about Harm’s youth or its 

impact on the crimes. 

Harm appeals. 

ANALYSIS

Harm makes four main arguments. First, Harm argues that there was insufficient evidence 

to support his convictions. Second, Harm argues that the trial court failed to meaningfully consider 

the mitigating factors of Harm’s youth at sentencing. Third, Harm argues that the trial court erred 

in imposing an indeterminate sentence with respect to his first degree child rape conviction. And 

fourth, Harm argues that the trial court erroneously imposed the VPA. 
No. 57999-5-II

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In his SAG, Harm raises numerous claims of error, including prosecutorial misconduct, a 

Brady1violation, ineffective assistance of counsel, judicial bias, and vindictive prosecution. 

We address each argument in turn. 

I. SUFFICIENCY OF THE EVIDENCE 

Harm argues that there was insufficient evidence to support his three rape convictions for 

three different reasons. He argues there was insufficient evidence for first degree child rape 

because the State’s evidence about F.M.G.’s age at the time of the first sexual encounter was only 

general and lacked sufficient specificity. Harm argues that there was insufficient evidence for 

second degree rape because the State did not prove that there was forcible compulsion. Finally, 

Harm contends that there was insufficient evidence for third degree rape because the State did not 

prove that F.M.G. withdrew her consent to have Harm’s penis in her mouth. 

A. STANDARD OF REVIEW 

We review challenges to the sufficiency of the evidence de novo. State v. Rich, 184 Wn.2d

897, 903, 365 P.3d 746 (2016). Evidence is sufficient to support a verdict if, after viewing the 

evidence in the light most favorable to the State, any rational trier of fact could find that all of the 

elements of the crime charged were proven beyond a reasonable doubt. State v. Cardenas-Flores, 

189 Wn.2d 243, 265, 401 P.3d 19 (2017). When a defendant challenges the sufficiency of the 

evidence, they admit the truth of the State’s evidence and we draw all reasonable inferences in 

favor of the State. Id. at 265-66. And we defer to the trier of fact on issues of conflicting testimony, 

 

1 Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). 
No. 57999-5-II

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witness credibility, and the persuasiveness of evidence. State v. Ague-Masters, 138 Wn. App. 86,

102, 156 P.3d 265 (2007). 

B. FIRST DEGREE CHILD RAPE

Harm argues that the State introduced only general, nonspecific, testimony about F.M.G.’s 

age at the time that the first sexual encounter occurred, which was insufficient to sustain his first 

degree child rape conviction. We disagree.

“ ‘A person is guilty of rape of a child in the first degree when the person has sexual 

intercourse with another who is less than twelve years old and not married to the perpetrator and 

the perpetrator is at least twenty-four months older than the victim.’ ” State v. T.J.M., 139 Wn. 

App. 845, 849, 162 P.3d 1175 (2007) (quoting former RCW 9A.44.073(1) (1988)), review denied, 

163 Wn.2d 1025 (2008). 

Harm supports his argument by characterizing F.M.G.’s testimony as her being unsure of 

when the first sexual encounter occurred. According to Harm, because F.M.G. did not provide a 

specific date or a sufficient range of when the encounter occurred, the State failed to establish 

beyond a reasonable doubt that she was less than 12 years old at the time of the sexual encounter. 

Harm mischaracterizes the testimony. It is true that, at first, F.M.G. testified that she was 

either 11 or 12 years old when Harm first put his penis in her mouth. But she later clarified that 

she was actually 11 years old when the sexual encounters began. And while F.M.G. could not 

remember precise dates when Harm first put his penis in her mouth, she testified she “knew that it 

started when [she] was 11. That—[was] the first time.” VRP at 290. And it is uncontested that 

Harm was approximately 33 months older than F.M.G. 
No. 57999-5-II

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Viewing all the evidence in the light most favorable to the State, a rational trier of fact 

could have found beyond a reasonable doubt that F.M.G. was under 12 years old when Harm first 

put his penis in F.M.G.’s mouth and that Harm was at least 24 months older than her at the time. 

Thus, Harm’s argument that there was insufficient evidence to support his first degree child rape 

conviction fails. 

C. SECOND DEGREE RAPE

Harm next argues that there was insufficient evidence to support his second degree rape 

conviction because the State did not prove that Harm used forceable compulsion to overcome 

F.M.G.’s resistance. Harm characterizes F.M.G.’s behavior and Harm’s response as “nothing 

more than movement by two kids having sex.” Appellant’s Opening Br. at 32. We disagree. 

A person is guilty of second degree rape when the person engages in sexual intercourse 

with another person by forcible compulsion. Former RCW 9A.44.050(1)(a) (2007). Forcible 

compulsion includes physical force which overcomes resistance. Former RCW 9A.44.010(6) 

(2007). The required physical force must have been force that was “ ‘directed at overcoming the 

victim’s resistance and was more than that which is normally required to achieve penetration.’ ” 

State v. Gene, 20 Wn. App. 2d 211, 224, 499 P.3d 214 (2021) (quoting State v. McKnight, 54 Wn. 

App. 521, 528, 774 P.2d 532 (1989)). “The resistance that forcible compulsion overcomes need 

not be physical resistance, but it must be reasonable resistance under the circumstances.” Id. 

Here, there was sufficient evidence of forceable compulsion. F.M.G. testified that on one 

of the occasions that Harm was anally penetrating her, she asked him to stop and tried to turn her 

body around. Not only did Harm not stop, he “strengthened his positioning” and leaned his body 

further into hers. VRP at 234. Viewing this evidence in the light most favorable to the State, the 
No. 57999-5-II

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reasonable inference is that Harm overcame F.M.G.’s resistance and used greater force than that 

which is normally required to achieve penetration by strengthening his positioning and leaning his 

body further into hers. Harm’s argument fails. 

D. THIRD DEGREE RAPE 

As for Harm’s third degree rape conviction, Harm argues that there is insufficient evidence 

to support this count because F.M.G. did not clearly express her lack of consent to Harm putting

his penis in her mouth. 

A person is guilty of third degree rape when the victim did not consent to sexual intercourse 

and such lack of consent was clearly expressed by the victim. Former RCW 9A.44.060(1)(a) 

(1999). The statute defines third degree rape as when 

such person engages in sexual intercourse with another person, not married to the 

perpetrator . . . [w]here the victim did not consent as defined in [former] RCW

9A.44.010(7) [1993], to sexual intercourse with the perpetrator and such lack of 

consent was clearly expressed by the victim’s words or conduct. 

Id. (emphasis added). 

“ ‘Consent’ means that at the time of the act of sexual intercourse or sexual contact there 

are actual words or conduct indicating freely given agreement to have sexual intercourse or sexual 

contact.” Former RCW 9A.44.010(7) (2007). “ ‘Clearly expressed’ is not defined by the statute, 

but ‘clearly’ ordinarily means something asserted or observed leaving no doubt or question and 

‘expressed’ ordinarily means to make known an emotion or feeling.” State v. Higgins, 168 Wn. 

App. 845, 854, 278 P.3d 693 (2012) (citing Webster’s Third New International Dictionary 420, 

803 (1993)), review denied, 176 Wn.2d 1012 (2013). In determining whether there was consent, 
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we focus on the victim’s words and actions, not the defendant’s subjective assessment of what is 

being communicated. Id. 

Here, according to Harm, there is insufficient evidence to find lack of consent because 

F.M.G. only testified that she moved “her head backwards,” and that she did not say “no” or 

otherwise provide any indication she was not a willing participant. Appellant’s Opening Br. at 43. 

Because the act of moving her head backwards did not “clearly express[]” a lack of consent, Harm 

argues we should reverse his conviction for third degree rape. Appellant’s Opening Br. at 43. 

We agree with Harm. Even when viewed in light most favorable to the State, the subtle 

movements described by F.M.G., without more, fail to rise to the level necessary to convey that 

she “clearly expressed” her lack of consent. Thus, there was insufficient evidence to support

Harm’s third degree rape conviction. 

II. YOUTH AS A MITIGATING FACTOR 

Harm next argues that resentencing is required because the trial court did not meaningfully 

consider the mitigating qualities of Harm’s youth at sentencing as required by Houston-Sconiers. 

We agree. 

“[C]hildren are different from adults” for sentencing purposes. Houston-Sconiers,

188 Wn.2d at 18. Although the trial court has broad discretion to impose an appropriate sentence, 

it also must ensure that proper consideration is given to mitigating qualities of youth. Id. at 21;

see also In re Pers. Restraint of Forcha-Williams, 200 Wn.2d 581, 596, 520 P.3d 939 (2022) (trial 

courts may exercise discretion to sentence below adult standard range based on juvenile’s 

diminished culpability). 
No. 57999-5-II

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In Houston-Sconiers, our Supreme Court required trial courts to consider specific factors 

when sentencing any juvenile in adult court, including: (1) the mitigating circumstances of youth, 

including the juvenile’s “ ‘immaturity, impetuosity, and failure to appreciate risks and 

consequences,’ ” (2) the juvenile’s environment and family circumstances, (3) the juvenile’s 

participation in the crime and the possible effects of familial and peer pressure, (4) “how youth 

impacted any legal defense,” and (5) “any factors suggesting that the child might be successfully 

rehabilitated.” Houston-Sconiers, 188 Wn.2d at 23 (quoting Miller v. Alabama, 567 U.S. 460, 

477, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012)). 

Meaningful consideration of the Houston-Sconiers’ five factors requires trial courts to do 

more than merely recite the differences between juveniles and adults. State v. Delbosque,

195 Wn.2d 106, 121, 456 P.3d 806 (2020). The trial court must meaningfully consider the 

differences between juveniles and adults, including “ ‘how those differences apply to the facts of 

the case.’ ” Id. (quoting State v. Ramos, 187 Wn.2d 420, 434-35, 387 P.3d 650 (2017)). 

Youth does not automatically entitle every juvenile defendant to an exceptional downward 

sentence. State v. Anderson, 200 Wn.2d 266, 285, 516 P.3d 1213 (2022). A trial court is not 

required to impose an exceptional sentence below the standard range if it considers the qualities 

of youth at sentencing and determines that a standard range is appropriate. See Houston-Sconiers,

188 Wn.2d at 21. Nonetheless, when the trial court fails to meaningfully consider the mitigating

qualities of youth, we remand for resentencing. Id. at 34. We review sentencing decisions for an 

abuse of discretion. Delbosque, 195 Wn.2d at 116. 
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Here, because Harm was a juvenile when he committed his crimes, the trial court was 

obligated to meaningfully consider the mitigating qualities of his youth in imposing its sentence. 

The record fails to show that the trial court undertook this obligation. 

The trial court said very little about Harm’s youth in its sentencing decision; it only made 

brief references to the lack of parental supervision and the juvenile justice system. The trial court 

opined that the parents’ lack of supervision was the “root” of what created the conditions that 

allowed Harm to commit the rapes. VRP at 472. And the trial court referenced Harm’s youth in 

the context of the juvenile justice system, stating that, if he had been charged when the crimes 

occurred, he would have gone through the juvenile system. The trial court stated, 

I also take into account that this happened as a juvenile. And, he didn’t get caught 

at the time or he would have gone through the juvenile system. 

VRP at 473. The trial court also characterized Harm as a “predator” even though he was only “two 

or three years older [than F.M.G.] at the time.” VRP at 474.

And finally, the trial court concluded its sentencing decision by declaring that it was taking 

his youth “into account”: 

[T]he sentence that I’m imposing . . . . takes into account that he was a juvenile 

when this happened. 

VRP at 474 (emphasis added). These were the trial court’s only references to Harm’s youth when 

he committed the crimes against F.M.G.

2

 

The State acknowledges that the trial court did not explicitly address the Houston-Sconiers

factors. But it contends that the trial court nonetheless meaningfully considered the mitigating 

 

2 The trial court’s only mention of Houston-Sconiers was when it asked about Harm’s current age 

at the time of sentencing. 
No. 57999-5-II

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qualities of his youth. As support, the State points to the mitigation evidence presented by the 

defense, the trial court’s comments about the facts of the case, Harm’s youth at the time of the 

offense, and his family circumstances. By considering these things together, the State contends 

that the trial court properly exercised its discretion in imposing a standard-range sentence. 

It is true that the trial court concluded its sentence by stating it took “into account” that 

Harm was a juvenile. VRP at 474. And it is true that the trial court alluded to the role that Harm 

and F.M.G.’s parents lack of supervision played in allowing the offenses to occur. 

But that was it. Looking at the trial court’s sentencing as a whole, it cannot be said that 

the record demonstrates that the trial court meaningfully considered any of Houston-Sconiers’ five 

factors. The trial court merely mentioned Harm’s youth without offering any explanation of how

the mitigating circumstances of Harm’s youth, including his immaturity, impetuosity, and failure 

to appreciate risks and consequences may have contributed to his crimes (factor 1). HoustonSconiers, 188 Wn.2d at 23. While the trial court referenced a lack of parental supervision, it did 

not otherwise appear to consider Harm’s environment or family circumstances or the possible 

effects of familial and peer pressure (factors 2 and 3). Id. Nor did the trial court address the impact 

of youth on Harm’s legal defense or his capacity for rehabilitation (factors 4 and 5). Id. 

While the level of detail necessary to be included in the record of the trial court’s 

consideration of each of these factors will certainly vary depending on the particular case, the trial 

court needed to do more here. See In re Pers. Restraint of Domingo-Cornelio, 196 Wn.2d 255, 

268, 474 P.3d 524 (2020) (explaining that the trial court’s failure to say anything about whether 

the defendant’s youth mitigated his culpability does not constitute meaningful consideration of the 

mitigating qualities of youth). Because the record does not demonstrate a meaningful 
No. 57999-5-II

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consideration of the mitigating factors of Harm’s youth by the trial court as required by HoustonSconiers, we remand for resentencing. 

III. INDETERMINATE SENTENCE

Harm argues that the trial court exceeded its statutory authority by imposing an 

indeterminate sentence with respect to his first degree child rape conviction. Harm argues the law 

does not permit an indeterminate sentence for juvenile offenders. The State concedes the error. 

The sentences of certain sex offenders are subject to RCW 9.94A.507. Offenders subject 

to RCW 9.94A.507 are sentenced to indeterminate sentences within the mandatory minimum 

sentence and the statutory maximum sentence for the crime. RCW 9.94A.507(3)(a), (b). 

Convictions for first degree child rape are subject to indeterminate sentences. RCW 

9.94A.507(1)(a)(i). 

However, the statute does not apply to first degree child rape offenders who were 17 years 

of age or younger at the time of the crime. RCW 9.94A.507(2). The relevant subsection of the 

statute provides,

An offender convicted of rape of a child in the first or second degree or child 

molestation in the first degree who was seventeen years of age or younger at the 

time of the offense shall not be sentenced under this section.

RCW 9.94A.507(2) (emphasis added). 

Here, Harm committed the offense of first degree child rape when he was around 14 years 

old. Consequently, Harm’s first degree rape conviction was not subject to an indeterminate 

sentence. RCW 9.94A.507(2). Neither party raised the issue at sentencing, and the trial court 

imposed an indeterminate sentence on this rape conviction. We accept the State’s concession that 
No. 57999-5-II

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this was error. Upon resentencing, the trial court must impose a determinate sentence on this 

count.3

IV. VPA 

Harm argues that the VPA should be stricken because the VPA is no longer authorized by 

statute. The State concedes that the VPA should be stricken. We accept the State’s concession 

that the VPA should not be imposed. 

Effective July 1, 2023, the VPA is no longer authorized for indigent defendants. LAWS OF

2023, ch. 449 § 1; RCW 7.68.035(4). This change applies to Harm because the trial court found 

him indigent and his case is still on direct appeal. State v. Matamua, 28 Wn. App. 2d 859,

878-79, 539 P.3d 28 (2023), review denied, 2 Wn.3d 1033 (2024). Accordingly, on remand, the 

trial court shall not impose the VPA. 

V. SAG CLAIMS

In his SAG, Harm makes numerous claims, including that the State committed 

prosecutorial misconduct and committed a Brady violation, that he received ineffective assistance 

of counsel, that the judge was biased, and that he was a victim of vindictive prosecution. We either 

reject or are unable to review each SAG claim.

 

3 Although the parties agree that the trial court erred, they disagree about the appropriate remedy. 

Harm suggests that he is entitled to resentencing; the State suggests merely correcting the judgment 

and sentence is the appropriate remedy. But because Harm will be resentenced in any event for 

the trial court to meaningfully consider the mitigating qualities of Harm’s youth, we do not further 

address this issue. 
No. 57999-5-II

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A. SAG CLAIMS 1 AND 8: PROSECUTORIAL MISCONDUCT

In SAG claim 1, Harm claims that the State committed prosecutorial misconduct by 

appealing to the jury’s passions and prejudices when it referred to F.M.G. as “a little girl with 

pigtails” in closing argument. SAG at 1. In SAG claim 8, Harm also claims that the State 

committed prosecutorial misconduct by scheduling the trial in close proximity to the December 

holidays. Neither claim has merit. 

Prosecutors have wide latitude to argue reasonable inferences from the evidence in closing 

argument. State v. Thorgerson, 172 Wn.2d 438, 448, 258 P.3d 43 (2011); see also In re Pers. 

Restraint of Phelps, 190 Wn.2d 155, 167, 410 P.3d 1142 (2018) (“Prosecutors are free to argue 

their characterization of the facts presented at trial and what inferences these facts suggest in 

closing argument.”). 

Here, with respect to Harm’s first SAG claim, F.M.G.’s mother described F.M.G. as “a 

little girl with pigtails” in response to a question asking her to describe F.M.G.’s physical 

appearance at the time of the rapes. VRP at 321. There was no objection to this testimony. In 

closing argument, the State referred to the testimony of F.M.G.’s mother to highlight the age 

difference between Harm and F.M.G. The State argued: 

Three years when you’re a child, when you’re young, can be a gulf in development 

and in experience. Her mom—her mom told you that when—when they first 

started going over to [Harm’s] apartment, she was a little kid with pigtails. And 

again, he was a high school boy who knew about sex and knew what he wanted. 

He took advantage of the situation. He took advantage of her. He took what he 

wanted and those few times where she managed to say no or express with her body 

that she wanted him to stop, he didn’t. 

VRP at 392 (emphasis added). 
No. 57999-5-II

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Harm fails to show that these remarks were an improper appeal to the passions and 

prejudices of the jury. The State was merely repeating the descriptive phrase used by F.M.G.’s 

mother in her testimony. Without more, referencing admitted testimony is not improper.

4

 

And as for Harm’s SAG claim 8, regarding the scheduling of the trial in close proximity to 

the December holidays, Harm fails to explain how the State’s actions, to the extent they contributed 

to this scheduling, were improper. This prosecutorial misconduct claim fails.5 

B. SAG CLAIMS 2, 3, 7: EVIDENCE OUTSIDE THE RECORD (BRADY VIOLATION AND INEFFECTIVE 

ASSISTANCE OF COUNSEL)

In SAG claim 2, Harm claims that the State committed a Brady violation during F.M.G.’s 

cross-examination when the State objected to a question from defense counsel. During F.M.G.’s 

cross-examination, defense counsel asked F.M.G. whether she thought a counselor was a 

mandatory reporter. The State objected and the trial court sustained the objection. According to 

Harm, the State’s objection “suppressed material evidence to the defense.” SAG at 3. 

Because the objection was sustained, it is unclear how any response would have created 

exculpatory evidence, especially given the irrelevance of F.M.G.’s testimony on issues of 

mandatory reporting. Indeed, Harm fails to inform us how any possible response would have 

supported a claim of error. Therefore, we will not consider it. RAP 10.10(c) (explaining that we 

 

4 As part of this SAG claim, Harm also claims that the testimony of F.M.G.’s mother (describing 

F.M.G. as a little girl with pigtails) was not credible. But as discussed above, we defer to the trier 

of fact on issues of witness credibility. Ague-Masters, 138 Wn. App. at 102. 

5

In Harm’s SAG claim 8, Harm, like his appellate counsel, also appears to challenge the 

sufficiency of the evidence with respect to his second degree and third degree rape convictions. 

To the extent that Harm is doing so, we have addressed these claims above. 
No. 57999-5-II

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will not consider SAG claims that fail to inform us of the nature and occurrence of the alleged 

error). 

In SAG claim 3, Harm claims that an individual who did not testify at trial could have 

proved that F.M.G. consented to Harm’s conduct. Similarly, in SAG claim 7, Harm claims that 

he received ineffective assistance of counsel because his trial counsel did not pursue evidence of 

Harm’s apartment lease agreement, which he claims would have undermined F.M.G.’s credibility. 

However, both of these claims rely on evidence outside of our record, so the record is insufficient 

to consider them. State v. Alvarado, 164 Wn.2d 556, 569, 192 P.3d 345 (2008). 

C. SAG CLAIMS 4 AND 5:JUDICIAL BIAS 

In SAG claims 4 and 5, Harm essentially claims he was prejudiced by judicial bias. In 

SAG claim 4, Harm claims that the trial court violated the Code of Judicial Conduct by making

inappropriate and biased assessments of Harm’s character during a pretrial Knapstad6hearing. We 

do not have a sufficient record to consider this claim.

Several months before trial, Harm filed a Knapstad motion to dismiss the two first degree 

child rape counts. Although Harm’s Knapstad motion and the State’s response are in our record, 

our record does not contain the transcript from any hearing on the Knapstad motion or any written 

ruling on the motion from the trial court. The appellant bears the burden of providing the reviewing

court with a record adequate for review. State v. Wade, 138 Wn.2d 460, 464, 979 P.2d 850 (1999). 

We may decline to consider an alleged error if the appellant does not provide a complete record

 

6

State v. Knapstad, 107 Wn.2d 346, 729 P.2d 48 (1986). 
No. 57999-5-II

21

on a material issue. Id. at 465-66. Because Harm failed to provide the transcript of any hearing 

that occurred on his pretrial Knapstad motion, we decline to further consider this claim. 

In SAG claim 5, Harm claims that the trial court made inappropriate assessments of Harm’s 

character by summarizing Harm’s actions as a “continued pattern of conduct” that was predatory. 

SAG at 5. To support this claim, Harm asserts that his relationship with F.M.G. was consensual 

and there is nothing in the record that shows that his relationship with F.M.G. was predatory. We 

disagree that the trial court’s comments were error. 

Contrary to Harm’s assertions, the nature of their relationship was a component of the 

factual questions resolved by the jury as it weighed the evidence of F.M.G.’s allegations and 

Harm’s defense that the relationship was consensual. The trial court’s comments were rooted in a 

reasonable inference from the evidence at trial and the jury’s verdict and, as such, were not 

indicative of bias. Harm’s claim that the trial court’s comments were improper lacks merit.7 

D. SAG CLAIM 6: VINDICTIVE PROSECUTION

In SAG claim 6, Harm claims that his convictions were the result of vindictive prosecution. 

Prosecutorial vindictiveness occurs when the government acts against a defendant in 

response to the defendant’s prior exercise of constitutional or statutory rights. State v. Korum,

157 Wn.2d 614, 627, 141 P.3d 13 (2006). A prosecution is “vindictive” only if it is designed to 

 

7 As part of this SAG claim, Harm also appears to claim that it was inappropriate for the trial court 

to sentence him for his rape convictions and his assault conviction from an unrelated case at the 

same time because doing so “sabotaged the truth and fairness for the defendant.” SAG at 5. But 

Harm fails to provide any explanation as to why it was improper for the trial court to sentence him 

for both cases at the same sentencing hearing. RAP 10.10(c) (explaining that we will not consider 

SAG claims that fail to inform us of the nature and occurrence of the alleged error). Accordingly, 

this aspect of his claim is without merit. 
No. 57999-5-II

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penalize a defendant for invoking legally protected rights. Id. A defendant bears the burden of 

showing (1) actual vindictiveness, or (2) realistic likelihood of vindictiveness. State v. Numrich, 

197 Wn.2d 1, 24, 480 P.3d 376 (2021). 

Harm does not show vindictiveness, and we see nothing in our own review of the record 

that establishes any improper motive. We reject Harm’s vindictive prosecution claim. 

CONCLUSION

We affirm Harm’s convictions for first degree child rape and second degree rape, but we 

reverse Harm’s conviction for third degree rape. We also remand to the trial court to dismiss the 

third degree rape charge with prejudice and for resentencing. At resentencing, the trial court must 

meaningfully consider on the record the mitigating qualities of Harm’s youth, impose a 

determinate sentence for his first degree child rape conviction, and not impose the VPA. 

A majority of the panel having determined that this opinion will not be printed in the 

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040, 

it is so ordered.

PRICE, J.

We concur:

MAXA, P.J.

LEE, J.