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## EPapT3 F IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON- -) DIVISION II STATE OF WASHINGTON,Respondent,

v. JOSE MOISES SEGOVIA - BARRERA, Appellant. No. 44741 -0 -II

UNPUBLISHED OPINION

LEE, J. — Jose M. Segovia - Barrera appeals his conviction for first degree child molestation, arguing that (1) the trial court erred in admitting the victim' s 

### hearsay statements, ( 2) 

### the prosecuting attorney committed misconduct during closing argument, and (3) the trial court
erred in imposing 

### discretionary legal financial obligations. We hold that the trial court properly 

### evaluated the reliability ofthe victim's statements on the basis ofthe evidence introduced during the child hearsay hearing. We also hold thatthe prosecuting attorney did not commit misconduct in responding to defense counsel' s closing argument during her rebuttal argument. We acceptthe State' s concession of error concerning the imposition of a fee for crime lab testing but hold that the trial court did notabuse its discretion in imposing afee for court-appointed counsel. We affirm the conviction and remand for the trial court to strike the crime lab fee from the judgment and
sentence.No. 44741 -0 -II FACTS 

### After Stephanie Hahn and Segovia - Barrera began a romantic relationship in 2006, Hahn gave birth to their daughter, B.S., 1 in 2007. Hahn and Segovia - Barrera married on June 10, 2012, 

### so thathe would not be deported. Segovia - Barrera moved out afew days laterto staywith Hahn' s mother. Hahn took B. S. to see Segovia - Barrera every weekend. 

### After Segovia -

Barrera left,B.S. became angry and started acting out. One day,while Hahn
and B. S. were watching television, Hahn saw B. S. " 

### humping on something." 2 Report of Proceedings ( RP) at 164. 

### When Hahn asked B.S. what she was doing, B.S. pulled a nail polish . bottle away from her crotch. 

### B.S. said she did not want to tell and that " daddy showed her and that [ Hahn will] be mad at her." 

### 2 RP at 164. Hahn told B.S. that the behavior was not okay and dropped the subject because B. S. seemed embarrassed. 

### B.S. told Hahn laterthat daythat Segovia - Barrera had sat on her grandmother's couch with her and "[ 

### s]he did like a humping movement, and she saidthat it hurt and that it puked on her and it looked like milk." 2 RP at 165. Hahn reported these statements to Child Protective Services and the police. 

### Segovia - Barrera was not immediately arrested, and Hahn' s boyfriend, James Griffin, did
not feel that Hahn and her children were being adequately protected. During a confrontation 

### between the two men, Griffin sprayed Segovia - Barrera with pepper spray and cut his throat with

a razor blade. Griffin then fled to California, and Hahn followed. 

### When they returned to Washington, Hahn told the police that she, ratherthan Griffin, had assaulted Segovia - Barrera. She


### 1 Pursuant to General Order 2011 -1, this opinion refers to thejuvenile victim by initials to protect the minor's privacy interests. 2No. 44741 -0 -II



### later admitted that B.S.' s statements about Griffin assaulting Segovia - Barrera,which contradicted Hahn' s statements and implicated Griffin, were correct.

After Segovia-Barrera' s arrest for the alleged abuse of B.S., 

### the State charged him by amended information with first degree child molestation and alleged that he used his position of trust to facilitate the offense. 

### The court held a hearing to determine five-year - old B.S.' s 

### competency to testify, as well as the admissibility of her hearsay statements about the abuse to Hahn and several others. B. S. testified that Segovia - Barrera touched her "[

### w]here we go potty at"
with what " he goes potty at" on her grandmother' s couch. 1 RP at 17. She said that it felt " like
milk and like puke," and that Segovia - Barrera cleaned it up with a towel. 1 RP at 17. She added that even though he told her not to tell her mother, she told Hahn about the incident. 

### Hahn testified about seeing B.S. rubbing herselfagainstthe bottle ofnail polish and about B. S.' s disclosures concerning Segovia - Barrera' s abuse. Hahn added that B.S. never made any contradictory statements. 

### B.S.' s grandmother, two aunts, and a family friend testified that B.S. volunteered statements about the abuse to them. Detective Edward McGowan described a taped 

### forensic interview with B.S. in which she described the touching consistently with what she had told others. 

### The State argued thatthis testimony showed that B.S. was competent to testify andthat her 

### statements were reliable. Defense counsel addressed the reliability issue by responding only that it seemed odd that each witness made " spontaneous" statements that were " almost verbatim." 1 RP at 66. 

### The trial court concluded that B.S. was competent to testify and that her hearsay statements were reliable. The court entered written findings of fact and conclusions of law to 

### support its ruling.

3No. 44741 -0 -II 

### Attrial, B.S. testified aboutthe incident, and herfamily members and friend testified about 

### herstatements describingthe abuse. The State playedthe video ofB.S.' s forensic interviewto the 

### jury,and anurse practitionerwho examined B.S. also described the child's disclosures. She added that her physical examination of B. S.' s condition could be consistent with abuse. Two police officers testified for the defense about interviews with Segovia - Barrera and Hahn concerning Griffin' s assault. 

### Thejury found Segovia - Barrera guilty as charged and also found, by special verdict, that he used his position of trust to facilitate the offense. At sentencing, Segovia - Barrera asked the court to impose a standard range sentence and to waive all fines and costs " because he will not

ever be able to pay anything." 2 RP at 289. The trial court accepted the recommendations of the State and the Department of Corrections and imposed an exceptional sentence of 120 months to life. The court also imposed $ 1, 400 in legal financial obligations that included a $ 500 fee for court-appointed counsel and a $ 100 crime lab fee.

Segovia -

Barrera appeals his conviction. He also appeals the trial court' s imposition of court-appointed counsel and crime lab fees. ANALYSIS A. ADMISSIBILITY OF CHILD HEARSAY 

### Segovia - Barrera challenges the trial court's decision that B.S.' s hearsay statements
satisfied the reliability requirement in the child 

### hearsay statute, RCW 9A.44. 120. This statute 

### provides forthe admission ofhearsay statements when the declarants are victims ofsexual abuse
under the age of 10. State v. Woods, 154 Wn.2d 613, 623, 114 P.3d 1174 ( 2005). 

### Hearsay is admissible under the statute if:

4No. 44741 -0 -II 1) The court finds ... that the time, content, and circumstances of the statement 

### provide sufficient indicia ofreliability; and 2) The child either:

a) Testifies at the proceedings; or b) Is unavailable as a witness: PROVIDED, That when the child is 

### unavailable as a witness, such statement may be admitted only ifthere is corroborative evidence ofthe act. 

### RCW 9A.44. 120. Appellate courts will not reverse a finding that statements meet these statutory criteria absent an abuse ofdiscretion. Woods, 154 Wn.2d at 623. Atrial court abuses its discretion
when its decision is manifestly unreasonable or based on untenable reasons or grounds. State v. Borboa, 157 Wn.2d 108, 121, 135 P.3d 469 (2006). 

### To assessthe reliability ofchild hearsaystatements,Washington courts applythe nine Ryan factors. State v. Swan, 114 Wn.2d 613, 647 - 48, 790 P.2d 610 ( 1990) ( citing State v. Ryan, 103 Wn.2d 165, 175 -76, 691 P.2d 197 ( 1984)), cert. denied, 498 U.S. 1046 ( 1991). The nine factors are: ( 1) whether the child had an apparent motive to lie, (2) the child' s general character, ( 3)
whether more than one person heard the statements, ( 4) the spontaneity of the statements, ( 5) 

### whethertrustworthinesswas suggested bythetiming ofthe statementandthe relationship between the child and the witness, (6) whether the statements contained express assertions of past fact, (7)
whether the child' s lack of knowledge could be established 

### by cross - examination, ( 8) the
remoteness of the possibility that the child' s recollection was 

### faulty, and ( 9) whether the 

### surrounding circumstances suggested the child misrepresented the defendant' s involvement. Woods, 154 Wn.2d at 623 ( citing Ryan, 103 Wn.2d at 175 -76). 

### Every factor does not need to be satisfied; it is enough that they are substantially met. Woods, 154 Wn.2d at 623 -24. Segovia -

Barrera argues on appeal that the trial court did not apply all the Ryan factors and disregarded B. S.' s motive to lie 

### by basing its decision to admit the child hearsay " largely" on onlyNo. 44741 -0 -II

four findings, i.e., that B. S. understood her obligation to tell the truth, that she had the mental 

### capacity to receive an accurate impression ofthe alleged abuse, that she had sufficient memory,
and that she presented as bright and articulate. Br. of Appellant at 6. These findings addressed 

### B.S.' s competency ratherthanthe reliability ofherhearsaystatements, however,andtheyreflected the factors to determine competency setforth in Statev.Allen, 70 Wn.2d 690, 692, 424 P.2d 1021 1967).

### The trial court addressed the Ryan factors after finding B.S. competent to testify and after 

### describing her disclosures to 

### family, friends, and law enforcement. The trial court made the 

### following findings offact: 32.

B. S. has no motive to lie about the sexual abuse. 33 

### There is nothing in the general character ofB.S. which indicates a propensity to lie. 34.

More than one person heard B. S.' s statements and B. S.['] s statements 

### remained consistent during her disclosures ... . 35. 

### B. S.' s statements were spontaneous. Therewas nothing leading or suggestive by any ofthe adults to whom B.S. spoke which would suggest the statements were anything other than spontaneous. 36. 

### There is nothing in the relationship between B.S. and the people to whom she disclosed that indicates any sort ofuntrustworthiness concerning the statements.

6No. 44741 -0 -II 37. B. S.' s disclosures contained express assertions ofthe sexual assault. 38. The court finds no evidence that B. S.['] s recollection ofthe events is 

### faulty and hertestimony was not exaggerated or over amplified. Clerk' s Papers ( CP) at 36. These findings show that the trial court properly based its decision 

### concerning the reliability and admissibility of B.S.' s hearsay statements on the Ryan factors. 

### Segovia - Barrera also argues that the trial court failed to consider evidence showing that B. S. had a clear motive to lie. Segovia - Barrera asserts that her motive to lie was apparent from 

### the circumstances surrounding his relationship with Hahn, Hahn's relationship with Griffin, and Hahn' s admission that she coached B.S. to lie. This argument overlooks the fact that this evidence

was not introduced 

### during the child 

### hearsay 

### hearing. This argument also misrepresents the 

### evidence regarding Hahn' s alleged coaching,which unfolded as follows. 

### The defense revealed in atrial brieffiled morethan amonth afterthe child hearsay hearing that Segovia -

Barrera believed Hahn had coached B.S. into accusing him of sexual abuse so that
she could get him out of her life and be with Griffin. However, the record does not support 

### Segovia - Barrera's claim. The only reference in the record with regard to B.S. being coached was 

### made in relation to B.S.' s statements about Griffin's assault on Segovia-Barrera.2 Thus, contrary 

### 2 In anoffer ofproof,an officerexplainedthatthe referenceto coaching camewhen he questioned Hahn about her statement regarding the assault on Segovia - Barrera and how it conflicted with B.S.' s description:

I asked her if she was telling me that [ B. S.] 

### was lying and her reply was thatwhat B. S.] 

### had apparently reported was not true and she believes someone else may have coached [ B. S.] to say that.

7No. 44741 -0 -II



### to Segovia -

Barrera's current assertion that Hahn admitted to coaching B.S. about the sexual abuse 

### disclosures, there was no such admission. Rather, any reference to B.S. being coached was made in the context of Griffin' s assault on Segovia - Barrera. Segovia -

Barrera also complains thatthe trial court failed to considerthe suspicious timing 

### ofB.S.' s disclosures, as shown by the fact the disclosures came only after her parents separated. The trial testimony revealed that Segovia - Barrera and Hahn had a troubled relationship and that they married only to prevent his deportation. 

### When they separated a few days later, Segovia - 

### Barrerawentto staywith B.S.' s grandmother,whichwas where the abuse allegedly occurred. We 

### see nothing suspicious about thetiming ofB.S.' s subsequent disclosures. Based onthe evidence introducedatthe child hearsayhearing,thetrial courtproperlyfound that B.S. had no motiveto lie,thatthere was nothingto suggestthather spontaneous and consistent statements to several adults were not trustworthy, and that no evidence showed that her memory

was 

### faulty or that her testimony was exaggerated. Even ifthe additional evidence introduced at 

### trial is somehow relevant to the trial court' s pretrial ruling, it does not undermine the court' s findings regarding the reliability of B. S.' s statements. We see no abuse of discretion in the trial 

### court's determination that B.S.' s hearsay statements about the sexual abuse were reliable.

I told her that [B. S.] had told us that [Hahn] stayed in the car while Griffin had been the one to go in the yard. Ms. Hahn said that wasn't right, she had already told me what had happened. . . She said that what [ B.S.] described had not happened, someone must have coached herto tell that story. 2 RP at 251, 252 - 53. The trial court declined to admit this explanation or furthertestimony about 

### coaching because it pertained to the assault and not to the alleged sexual abuse:
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B. PROSECUTORIAL MISCONDUCT Segovia -

Barrera next argues that the prosecuting attorney committed prejudicial 

### misconduct during closing argument when she " repeatedly instructed" thejurors to considerwhat they would do if B. S. were their child and urged them to put themselves in her shoes. Br. of Appellant at 4. 

### A defendant who alleges prosecutorial misconduct during closing argument first must establish that the statements were improper. State v. Emery, 174 Wn.2d 741, 759, 278 P.3d 653 2012). Once a defendant establishes that a prosecutor' s statements were improper, we must 

### determine whetherthe defendant was prejudiced. Emery, 174 Wn.2d at 760. Ifthe defendant did not object attrial, he is deemed to have waived any error unless the prosecutor's misconduct was so flagrant and ill intentioned that an instruction could not have cured the resulting prejudice. 

### Emery, 174 Wn.2d at 760 - 61. 

### During closing argument, a prosecuting attorney has wide latitude to argue reasonable inferences from the evidence. State v. Thorgerson, 172 Wn.2d 438, 448, 258 P.3d 43 ( 2011). 

### Remarks made in responseto defense arguments are not improperas long asthey do not go beyond what is necessary to respond to the defense. State v. Dykstra, 127 Wn. App. 1, 8, 110 P.3d 758 2005), review denied, 156 Wn.2d 1004 ( 2006). We review allegedly improper remarks in the
context of the entire argument. 

### State v. Gregory, 158 Wn.2d 759, 841, 147 P.3d 1201 ( 2006),
overruled on other grounds, State v. W.R., Jr., P.3d , No. 88341 -6, 2014 WL 5490399 Wash. Oct 30, 2014). The statements at issue occurred 

### during the State' s rebuttal argument. The State was 

### responding to defense counsel' s argument about Griffin's assault and Haim' s decision to join

9No. 44741 -0 -II



### Griffin in California,and howthose facts supportedthe defense theorythat B.S. was coached. The State' s rebuttal included a single reference to what thejurors would do ifB.S. were their child and 

### a single reference to thejurors putting themselves in her shoes. These statements, in context, are as follows: You know the assault on Mr. Segovia is —is unfortunate and it is not 

### something that is condoned underthe lawtotake the law into yourown hands. But what does that tell you? What do most people say if you start talking about 

### what they would do ifsomebody hurt their kid. And why would the mother go to California? Well, you know, she —

### she didn'tnecessarilymakethe bestdecisions here, but the kids were in a safe place. She was worried about whatwas going [to] happen with this other case, and then she went to the police and she made this false confession because she didn't want to see her friend turned boyfriend go to prison 

### for standing up for her daughter... . We are not here to decide whether or not Ms. Hahn made good decisions in 

### this case. That is obviously being dealtwith in another situation. Whatyou're here to decide is do you believe [ B. S.]. And do you believe the things that she has said over and over again. Does that—the child that sat here and testified to you, does she seem coached? Five years old. And you can put yourself in her shoes, how you would feel as adults taking that seat in front ofstrangers and talking about 

### something that personal. Youjudge her credibility. 2 RP at 272 -

73 ( emphasis added). The comments highlighted above were a reasonable response to defense counsel' s argument. These comments neither exceeded what was necessary to make that response nor constituted an improper appeal to the 

### jury' s passions or prejudices. Because there was ' no misconduct, we need not address the issue of prejudice. C. LEGAL FINANCIAL OBLIGATIONS 

### Segovia - Barrera argues that the trial court erred in imposing discretionary legal financial obligations ( LFOs) without considering his ability to pay. The obligations he challenges are the 500 fee for court-appointed counsel and the $100 crime lab fee. We review atrial court' s decision 

### to impose discretionary LFOs underthe clearly erroneous standard. State v. Calvin, 176 Wn.App.
10No. 44741 -0 -II

1, 302 P. 3d 509, 316 P. 3d 496, 508 n. 1 ( 2013). Clear error exists when a review of the record 

### leads to a definite conviction that a mistake was committed. Calvin, 316 P.3d at 508 n.1 ( quoting Schryvers v. Coulee 

### Cmty. Hosp., 

### 138 Wn.App. 648, 654, 158 P.3d 113 ( 2007)).

Under RCW 10. 01. 160( 3), "[ t]he court shall not order a defendant to pay costs unless the defendant is or will be able to pay them. 

### In determining the amount and method of payment of costs, the court shall take account ofthe financial resources ofthe defendant and the nature ofthe burden that payment of costs will impose." Section 2.5 of Segovia - Barrera' s judgment and

sentence cited RCW 10. 01. 160 in stating that "[t]he court has considered thetotal amount owing[,] the defendant' s present and future ability to pay legal financial obligations[,] including the defendant' s financial resources[,] and the likelihood that the defendant' s status will change. "3 CP at 60. The trial court imposed the challenged fees after Segovia - Barrera asked for a waiver of all LFOs because he would never be able to pay them. He provided no support for his assertion, 

### however, and the record shows that he has been employed in the past and has been able to pay

some child support and other court costs. 

### Consequently, the record does not show that the trial 

### court's imposition ofa $500 fee for court-appointed counsel was clearly erroneous.

The trial court also imposed a crime lab fee. See RCW 43. 43. 690( 1) ( when a person has 

### been convicted ofacrime and a state crime laboratory analysis was performed,the court shall levy

3 Segovia -

Barrera contends thatthe trial court failed to checkthe box in hisjudgment and sentence stating that it had considered his ability to pay LFOs, but this contention is not accurate. The 

### unchecked boxes relate to additional specific findings concerning restitution, incarceration costs, and emergency response costs.
11No. 44741 -0 -II

a fee of $100). However, no crime lab analysis was completed. Therefore, we accept the State' s 

### concession oferror regarding the crime lab fee. Accordingly, we affirm the defendant's conviction and the imposition ofthe fee for courtappointed counsel. We remand so thatthe trial court can strike the crime lab fee from thejudgment
and sentence. 

### 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.

We concur:

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