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IN THE COURT OFAPPEALS FOR THE STATE OF WASHINGTON STATE OF WASHINGTON, ) ) Respondent, ) ) v. ) ) JEFFREY JOSEPH BAUS, ) ) Appellant. ) No.76962-6-1 DIVISION ONE UNPUBLISHED OPINION

FILED:November 5,2018 ANDRUS,J.— A jury convicted Jeffrey Joseph Baus of rape in the second degree and assault in the second degree. He contends that he was prejudiced by the prosecutor's improper remarks during closing argument. He also challenges the imposition of a condition of community custody prohibiting him from frequenting drug areas, as defined by his community corrections officer. Baus fails to establish prosecutorial misconduct warranting reversal. Because the community custody condition related to drug areas is unconstitutionally vague,we remand to strike the condition. Otherwise,we affirm the judgmentand sentence. FACTS The State charged Jeffrey Baus, by amended information, with second degree assault and second degree rape.' According to the testimony at Baus's trial, R.M. spent the evening of April 22, 2016,at the Quilceda Creek Casino in Marysville. R.M., who was homeless and addicted to heroin, spent a

I The State initially charged Bauswith rape in the third degree.No.76962-6-1/2

considerable amount of time at the casino. Friends were often there and it was open all night,warm,and safe. Thatevening,R.M.'s plansfor the nightfell through and she had "nowhere to go." R.M.was distressed and she was wearing four -inch high heels that were "killing"her. At some point, R.M. noticed Baus,who appeared to be watching her. At around 11 p.m., when R.M.'s friend walked away and she was alone, Baus approached her. Baus commented that she appeared to be having a difficult time. After R.M. explained her situation, Baus said, "today may be your lucky day." Baustold R.M.that he had a house in Granite Falls and invited herthere to "hang out"and "Dlelax." Bausassured herthere were Inio expectations." R.M. and Baus "flirted a little bit" and talked about Alaska. R.M.grew up in Alaska and Baus said he wanted to retire there. This common interest made R.M.feel slightly more inclined to trust Baus. After an hour or so,Baus suddenly announced that he was leaving and that if R.M.wanted to come with him, it was "now or never." R.M.did not have a cell phone and wanted to find herfriend first to tell him where she wasgoing. Baus refused to waitfor her. Although R.M.felt uneasy,she leftwith Baus. As they drove,they passed the home ofone of R.M.'sfriends. R.M.asked Bausto stop so she could quickly talk to herfriend. Again,he refused. During the 30-minute drive to Baus's wooded neighborhood, the conversation turned more overtly sexual. Baustold R.M.thatshe was pretty and

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described sex acts hewanted to engage in. R.M."kind ofblew it off'and vaguely said,"[w]ell, I'm notsure aboutthat." When they arrived at his home,Bausgave R.M.a tour. Baus showed her a survivalist room and told her he had everything necessary for the two of them to "disappear into the woods for a month without anybody knowing where we were." R.M.was afraid,butfelt she could not leave without money,a cell phone, orshoesshe could easily walk in. R.M.ate a tuna fish sandwich and some peanut butter. And because she
was nervous, she also smoked "three or four hits" of heroin, which was just enough to relax her and make her feel "normal." Meanwhile, Baus continued to drink beer and smoked marijuana. Baus offered R.M. beverages, but she declined,fearing thathe mightdrug her. Baus let R.M. use the bathroom,but then continually banged on the door, demanding that she come out. R.M.was increasingly worried. Partly to escape from Baus,she asked to take a shower. The pocketdoor in the master bathroom did not lock properly. A few minutes after R.M. got into the shower, Baus appeared, naked, and tried to enter. R.M. yelled at him to leave. Baus responded, "Oh come on. Don't you see the toys in there? Don't you want to play?" After R.M.continued to yell, he left. R.M. believed she was truly in danger and started to panic. After her shower, she ran to the other bathroom and locked the door. For about 15 minutes,she saton the toiletseatwhile Baus forcefully pounded on the door and badgered her. Finally, because she "had enough" of his yelling and thought heNo.76962-6-1/4

might break down the door, she opened the door, grabbed her purse, and returned to the master bath. While she tried to calm herself and decide what to do,she took Q-tip cotton swabsfrom her purse and cleaned her ears. Then, with a "dark" and "Ig]lazed over" look on his face, Baus "body bumped"R.M. When she yelled, he snatched the towel she was wearing,picked her up,and threw her on the bed.2 Hejumped on the bed and straddled her. He tied her wrists and one leg with thin ropes that were already secured to the bedposts. R.M. screamed and tried to free herself. Baus hit her in the face. R.M. felt like her face "exploded" and fluid poured from her nose and mouth. R.M.pleaded with Baus to stop. He shoved his erect penis into her mouth three
orfourtimes. She gagged and found itdifficultto breathe. As R.M. continued to plead with him, Baus walked across the room, picked up a knife on his dresser, and "taunted" her with it for about 10 minutes. He held the blade to her skin and moved it over her naked body, touching her legs,vagina,chest, breasts, neck,and arms. R.M. believed he was going to kill her. Then suddenly, using the same knife, Baus cut the restraints. Baus said to R.M., "I don't think this thing is going to work out. Some bitches like this sort of thing." R.M. retrieved her clothes that were scattered throughout the house. Although she was terrified, R.M. tried to pretend that she was still interested in Baus and was not really hurt. She eventually persuaded Baus to drive her to a nearby Walmart. R.M. rode with the window rolled down and her hand on the

2 R.M. is 4feet 11 inches tall and weighs 118 pounds,while Baus is 6feettall and about 100 pounds heavier. 4No.76962-6-1/5

door handle, so that she could jump out if necessary. En route, Baus changed his mind and said he was taking her back to his house and that she could leave later. As Baus slowed the car to enter a roundabout, R.M. jumped out. Baus gave herthefinger and said,"See you,bitch." R.M.walked along the highway for 30 to 40 minutes until she came to an open service station. The store clerk, Grant Jensen, immediately noticed that R.M. was injured. Her face was bruised and bleeding. R.M. was frantic and crying. She told Jensen that a man beat her up after she refused to have sex. Jensen gave R.M. ice for the swelling on her face, lent her his cell phone, and encouraged her to call 911. R.M. declined to call for assistance because there
were warrants for her arrest. A customer later drove R.M.to the Walmartwhere
afriend picked her up. Over the next 24 hours, R.M. arranged to store her vehicle and other personal items. Then,on the morning ofApril 24,2016,a friend drove R.M.back to Baus's home so she could obtain the address and then she called the police.3 Despite the risk of going to jail, R.M. decided to report the crime because "nobody should do thatto anybody." Michael Mansur and Thomas Dalton of the Snohomish County Sheriffs Office met R.M.at the Granite Falls police station that morning. They observed her recent injuries, including black eyes,an apparently broken nose,and one eye that was nearly swollen shut. There were faint ligature marks on her wrists. R.M. was very emotional and shaken. She identified Baus in a photomontage

3 R.M.was familiar with Baus's neighborhood because she had a friend who lived there and had worked in that neighborhood in the past. 5No.76962-6-1/6

and prepared a written statement. The police officers arranged for R.M.to go to the hospital for treatment. Both at the hospital and earlier at the police station, officers took photographs of R.M.'s injuries. Atthe hospital, R.M.declined to talk to theforensic nurse examiner.4 Items recovered in a search of Baus's home and DNA5 testing ofsome of those items corroborated R.M.'s presence in Baus's home and several details of her account. At trial, in addition to R.M., several witnesses testified on behalf of the State, including Jensen, police officers involved in the investigation, and a Washington State Patrolforensicscientist. Bausdid nottestify. Baus did not deny that R.M. had been in his home. The defense argued, however, there was insufficient evidence to establish that the contact between R.M. and Baus occurred on the charging date, "on or about" April 23, 2016. Counsel also pointed out that there was no video surveillance footage from the casino or any other evidence showing that Baus approached R.M., and not the other way around. Considering R.M.'s difficult circumstances atthe time and her acknowledgmentthat she had flirted with Baus,the defense suggested that R.M. may have "prey[ed] on" Baus. The defense also argued that R.M.'s memories and her statement were unreliable because of her drug use and that a sexual assaultexamination would have shown whether R.M.had sexual intercourse with Baus orsomeone else. Thejury convicted Baus as charged.

4 R.M. felt she did not need a sexual assault exam because she was not vaginally assaulted.

5 Deoxyribonucleicacid. 6No.76962-6-1/7 Prosecutorial Misconduct Baus alleges several instances of prosecutorial misconductduring closing and rebuttal argument. We reject this argument as a basis for overturning the conviction. Prosecutorial misconduct may deprive a defendant of his right to a fair trial. See State v. Jones, 144 Wn. App. 284, 290, 183 P.3d 307 (2008). The appellant bears the burden ofdemonstrating prosecutorial misconduct on appeal and must establish that the conduct was both improper and prejudicial. State v. Stenson, 132 Wn.2d 668, 718, 940 P.2d 1239 (1997). "Allegedly improper arguments should be reviewed in the context ofthe total argument,the issues in the case, the evidence addressed in the argument, and the instructions given." State v. Russell, 125 Wn.2d 24, 85-86, 882 P.2d 747 (1994). Prosecuting attorneys have wide latitude during closing arguments to argue facts and reasonable inferences from the evidence. State v. Thorgerson, 172 Wn.2d 438, 453,258 P.3d 43(2011). This latitude allows a prosecutor to "freely commenton witness credibility based on the evidence." State v. Lewis, 156 Wn.App. 230, 240,233P.3d 891 (2010). To establish prejudice sufficient to require reversal, a defendant who timely objected to the challenged conduct in the trial court must "show a substantial likelihood that the misconduct affected the jury verdict." In re Glasmann, 175 Wn.2d 696,704,286 P.3d 673(2012). Reversal is not required where the alleged error could have been obviated by a curative instruction. State
v. Gentry, 125 Wn.2d 570,596,888 P.2d 1105 (1995). The "failure to object to
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an improper remark constitutes a waiver oferror unless the remark is so flagrant and ill intentioned that it causes an enduring and resulting prejudice that could not have been neutralized by an admonition to the jury."Thorgerson, 172Wn.2d at443(quoting Russell, 125Wn.2d at 86). Presumption of Innocence Baus contends that the prosecutor committed flagrant misconduct by undermining the presumption of innocence. Defense counsel stated in closing argumentthatthe presumption ofinnocence "continues throughoutthe entire trial unless,during your deliberations,you find it has been overcome by the evidence beyond a reasonable doubt." Counselfurther elaborated,"it's the end ofthe trial and the law says he sits here right now innocent." The prosecutor argued in rebuttal, Defense counsel started with kind of a discussion of the presumption of innocence. What I heard her say was you're not allowed to come to any other conclusion. Well, that's really not what it says. The defendant is presumed innocent until you're convinced otherwise. It doesn't mean a plea of not guilty means end of story and you just dismiss what anyone else has to say to the contrary. That's notwhat it means. You evaluate the evidence and you determine whether or not— I mean,why are we here if the presumption ofinnocence means he's innocent. During the same argumentthe prosecutor also described the phrase "an abiding belief"as "something thatyou believe yesterday,today,tomorrow." The "presumption of innocence continues 'throughout the entire trial' and may be overcome, if at all, only during the jury's deliberations." State v. Veneqas, 155 Wn.App. 507,524,228 P.3d 813(2010)(quoting 11 WASHINGTON PRACTICE:WASHINGTON PATTERN JURY INSTRUCTIONS:CRIMINAL 4.01,at 85(3d ed.
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2008)). The prosecutor's argument did not suggest otherwise. The argument was consistent with the jury's instructions.6 Unlike the argument at issue in Venegas, the prosecutor did not indicate that the presumption of innocence erodes as the State presents evidence of the defendant's guilt during the trial. Nor did the prosecutor imply that Baus was guilty merely because the State filed charges against him. Rather,the prosecutor emphasized thatthe presumption of innocence may ultimately be overcome by evidence that meets the State's burden of proof. And to the extent that the prosecutor's explanation of the meaning of abiding belief was inartful in that it included "yesterday," it was not flagrant misconduct.7 Burden ofProof Baus also contends that the prosecutor improperly shifted the burden of proof to the defense in discussing the reasonable doubt instruction. The prosecutor argued, Now,the reasonable doubtinstruction talks aboutreasonable doubt being based on evidence or lack of evidence, but it talks about evidence based — I mean reasonable doubt that's based on something;right? So you can'tjust come here and throw out here's a man's name,here's a man's name. Maybe it's him or maybe she met the defendant three days earlier. Well, where's that come from? Is that, is that the way it works? You can just throw out a possibility over here and a possibility over here and come up with a hypothetical and that's enough reasonable doubt even though it's based on nothing? No. No. The law contemplates that it's based

6 Instruction No. 4 provides, in relevant part: "A defendant is presumed innocent. This presumption continues throughout the entire trial unless during your deliberations you find it has been overcome by the evidence beyond a reasonable doubt." The same instruction also states thatjurorsare "satisfied beyond a reasonable doubt,"ifafterfairly and carefully considering all the evidence,they have an "abiding beliefin the truth ofthe charge."

7 Dictionary definitions of "abiding" include "continuing or persisting in the same state without changing or diminishing" and "enduring." WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 3(2002). 9No.76962-6-1/10

on something. The doubt is based on something, not on the fact there is a possibility that this potential hypothetical might happen and there's other men who she had contactwith thatweek. The court overruled the defendant's objection, stating, "[I]t's argument. The law has been given and is clear." Baus argues that the prosecutor's argument is comparable to impermissible "fill-in-the-blank"remarks like those at issue in State v. Emery, 174 Wn.2d 741 (2012). In Emery, the prosecutor argued, [l]n order for you to find the defendant not guilty, you have to ask yourselves or you'd have to say, quote, I doubt the defendant is guilty, and my reason is blank.A doubtfor which a reason exists. If you think thatyou have a doubt,you mustfill in that blank.
174 Wn.2d at 750-51. The "fill-in-the-blank" argument was improper because it "subtly shifts the burden to the defense" by requiring the jury to articulate a reason to doubt. Emery, 174Wn.2d at 760. But here,the prosecutordid nottell the jury it had to be able to articulate a specific reason for doubting Baus's guilt before it could acquit. The prosecutor instead argued that based on the evidence before it, there was no reason to doubt his guilt. The instructions and the State's argument properly informed the jury that the State bore the burden of proof. The State's argument did not impermissibly shiftthe burden ofproof. Denigration of Defense Counsel Bausarguesthatthe prosecutorengaged in misconduct by denigrating his counsel and defense counsel's role. The prosecutor began closing argument by reminding the jury that, regardless of R.M.'s personal circumstances and poor
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choices, she was entitled to personal security. The prosecutor then recounted some of the obstacles and indignities that R.M. endured in order to pursue justice, including being questioned by the police and an investigator, being photographed, and being treated unsympathetically at the hospital because of her addiction. The prosecutorthen discussed how the trial itselfsubjected R.M.tofurther humiliation because she was questioned by both counsel,challenged by defense counsel,and "put under a microscope:" She has to sit there (indicating) and she has to tell a room full of strangers about her weaknesses, about her life, about her mistakes, aboutthe mostterrifying thing that has ever happened to her, something that none of us could ever imagine in front of the guy that did it to her. I put her up there and I asked her to tell me all these things, to explain why she did what she did, to tell me about her bad decisions, and then when she breaks down describing how she was pleading for her life, begging to have a chance to see her child again, I coldly make her keep going: What happened next? But that's not the end. Then the defendant's lawyer starts asking herquestions insinuating her bad choices,saying things like do you expect us to believe that? See,in ordinary polite society,we don't talk to each other like that. If you were telling somebody something, something humiliating, horrible and terrifying and they said to you,do you expectusto believe that-- 18] The trial court sustained defense counsel's objection, and instructed the prosecutorto "move on." Defense counseldid not requesta curative instruction. "It is improper for the prosecutor to disparagingly comment on defense counsel's role or impugn the defense lawyer's integrity." Thomerson, 172Wn.2d at 451 (prosecutor engaged in misconduct by referring to defense counsel's

8 During cross-examination, defense counsel questioned R.M. about her written statement in which she indicated that at a point during the attack she "start[ed]to calm down a bit"and asked,"Soare we supposed to believe that?" 11No.76962-6-1/12

presentation of his case as "bogus" and involving "sleight of hand," but the misconduct did not likely affect the verdict). A prosecutor's statements that malign defense counsel are impermissible because they can damage a defendant's opportunity to present his or her case. State v. Lindsay, 180 Wn.2d 423,432, 326 P.3d 125 (2014). But comments that "can fairly be said to focus
on the evidence"do notconstitute misconduct. Thorcierson, 172Wn.2d at451. The prosecutor's comment suggesting that defense counsel challenged the victim's testimony in a manner that was offensive to "polite society" was disparaging to defense counsel. See Thoraerson, 172 Wn.2d at 452. However, the larger context ofthe argumentwas nota personal attack on defense counsel
or counsel's strategy. Rather, the prosecutor was reminding the jury that R.M. faced significant challenges in coming forward with her allegations. Counsel highlighted the fact that all participants in the process—including the prosecutor, the defense, and law enforcement—subjected R.M. to uncomfortable and unwanted scrutiny. The prosecutor encouraged the jury to consider these facts in evaluating R.M.'s credibility. The trial court sustained defense counsel's timely objection and specifically instructed the prosecutor to abandon her line of argument. To the extent there was any residual prejudice, it could have been neutralized by an instruction to disregard the argument. In State v. Lindsay, the prosecutor characterized the defense's argument a "crock" and engaged in numerous other instances of misconduct. Lindsay, 180 Wn.2d at 442-43. Our Supreme Court determined that the cumulative effect ofthe repeated and prejudicial misconduct
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could not have been cured by any instruction or series of instructions. Lindsay, 180Wn.2d at443. But here,the misconductwas neither repeated nor pervasive. Considering the larger context of the argument, the limited nature of the inappropriate remarks,and the weight ofthe evidence against Baus,there is not a substantial likelihood that the prosecutor's comments about the manner in which defense counsel questioned the victim affected the jury's verdict. We conclude Baus has not established prosecutorial misconduct warranting a reversal ofhis conviction. Condition ofCommunity Custody At sentencing, the trial court imposed a condition of community custody requiring Baus to avoid "drug areas, as defined in writing by the supervising Community Corrections Officer" (CCO). Baus contends this condition is unconstitutionally vague. We agree. The guarantee of due process requires that laws, including sentencing conditions,not be vague. U.S.CONST.amend.XIV,§ 1;WASH.CONST.art. 1,§3; State v. Irwin, 191 Wn. App. 644, 652, 364 P.3d 830 (2015). To withstand a vagueness challenge, a condition of sentence must (1)provide ordinary people fair warning of proscribed conduct, and (2) have standards that are sufficiently definite enough to protect against arbitrary enforcement. State v. Bahl, 164 Wn.2d 739,752-53,193P.3d 678(2008); Irwin, 191 Wn.App.at652-53. Failure to satisfy either prong renders the condition unconstitutional. Irwin, 191 Wn.App. at653.

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In Irwin, this court held that a similar community custody condition requiring further definition by a CCO was unconstitutionally vague. Irwin, 191 Wn.App.652. A condition ofsentence barred Irwin from places where "children
are known to congregate," as defined by his CCO. Irwin, 191 Wn.App. 655. This court concluded that "Mithoutsome clarifying language or an illustrative list of prohibited locations . . . the condition does not give ordinary people sufficient notice to 'understand what conduct is proscribed." Irwin, 191 Wn. App. 655. Moreover, the authority given to the CCO to interpret the condition allowed for unconstitutionally arbitrary enforcement. Irwin, 191 Wn.App.655. Likewise here, leaving the definition of "drug areas" subject to the CCO's discretion deprives Baus offair warning ofthe proscribed conduct. And while it is true that he may have notice of prohibited conduct once the CCO sets forth a definition of"drug areas"in writing,the condition still fails underthe second prong of vagueness analysis because it is vulnerable to arbitrary enforcement. See Irwin, 191 Wn. App. at 655. For these reasons, the condition of community custody related to "drug areas"is unconstitutionally vague. Accordingly, we affirm Baus's convictions, but remand to strike the challenged condition ofcommunity custody.

WE CONCUR:

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