IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
STATE OF WASHINGTON, Respondent,

v. MATTHEW BRUCH, Appellant No. 69272-1-1 C3 —ic J- —i —i 2? O-r. 

### DIVISION ONE fn-%£}

UNPUBLISHED OPINION FILED: January 21. 2014 Spearman, J. — A jury found Matthew Bruch guilty of two counts of child molestation inthe second degree and two counts ofrape of a child inthe third degree. 

### Bruchappeals his convictions arguing that the prosecutor committed misconduct in 

### closing argument byimproperly commenting on his trial rights, appealing to the jury's 

### passions and prejudices, and disparaging defense counsel. He also contends that the trial court erred in excludingevidence of the victim's reputation fordishonesty and 

### imposed an indefinite term ofcommunity custody. Because none ofthe challenged remarks were improper, the court acted within its discretion in excluding the proffered 

### reputation evidence, and the court imposed a sentence that complieswith the statutory 

### requirement ofconverting earned early release time to community custody, weaffirm.
FACTS 

### From approximately 2001 until 2007, when she was between the ages of six and twelve, J.B. lived in LakeStevens with her father, MatthewBruch, his girlfriend, Tara 

### Osborne (formerly Kerr), herbiological brother, Osborne's children, and occasionally 

### otherfamily members. In 2007, Bruch endedhis relationship with Osborne and entered U3 '' , .--,No. 69272-1-1/2 into a relationship with Julia Mjelde. Bruch, J.B., and her brother moved to Mjelde's residence in Stanwood. Bruch and Mjelde had a tumultuous relationship and on several occasions, Bruch and his children temporarily moved out. InAugust 2010, when J.B. was fifteen years old and herfather's relationship with Mjeldewas ending, J.B. told Mjeldethat herfather had had sexual contact with her in the past. Mjelde informed the police and J.B. was taken into protective custody. J.B. 

### initially described incidents that took place at the Lake Stevens house. She described
an occasion when she and herfather were lying on the couch together and Bruch put his hand down the front ofher pants and touched her vagina. She said that another time, also on the couch, Bruch reached his hand down her pants and grabbed her 

### buttocks. J.B. asked him why he was doing that and he said, '"I made if" and "'it's 

### mine.'" 1Report of Proceedings (RP) at 125. She said there were other times when he 

### took herhand, putit around hispenis, and made hermove her hand back andforth. J.B. was in foster care forapproximately a year. J.B. eventually contacted her aunt in Arizona. Her aunt agreed that J.B. could come and live with her and her partner. A few months after she arrived in Arizona, J.B. told her aunt that herfather had raped her twice when she was fifteen. 

### According toJ.B., thefirst rape occurred when they werestill living at Mjelde's Stanwood house. J.B. said that Mjelde and her kids had leftthe house after her father 

### andMjelde had afight and she waswatching television onMjelde's bedwith herfather. Bruch put his hand over hermouth, flipped over on top of her, pulled down her pants and had sexual intercourse with her. When asked why she did not callthe police afterNo. 69272-1-1/3 this happened, J.B. explained that she was "terrified" of Bruch and she "couldn'tfathom what had just happened" and "didn't wantto accept it." 1RP at 135-36. J.B. described a second incident when Bruch, J.B., and her brotherwere staying
at the home ofJulia de la Cruz, a friend of Bruch's. J.B. said that she and her father had a fight there. Bruch yelled at J.B., told her she was no longer his daughter, and put her in a small bedroom in the house. J.B. said that after Bruch put her in the room, she tried the door but couldn't open it. Eventually, Bruch came back. He apologized and climbed into bed with her. J.B. said that again, Bruch got on top of her, pulled her pants down, and had sex with her. J.B. gave a statement about the rapes to an Arizona detective. 

### The Snohomish County Prosecutor's Officecharged Bruch with two counts of 

### second degree child molestation and two counts of rape of a child in the thirddegree 

### and designated all counts as involving domestic violence.1 Following atrial, thejury convicted Bruch as charged. Bruch appeals. Prosecutorial Misconduct Bruch claims that the prosecutor made several improper comments during 

### closing argument that rose to the level ofprosecutorial misconduct. We review a 

### prosecutor's commentsduring closing argumentin the context ofthe totalargument, the issues inthe case, the evidence addressed inthe argument, and thejury instructions. State v. Dhaliwal, 150 Wn.2d 559, 578, 79 P.3d 432 (2003); State v. Brown. 132 Wn.2d 

### 529, 561, 940 P.2d 546 (1997). Aprosecutor has wide latitude in closing argument to
1The State also chargedBruch with one countofbailjumping butfiled a motion todismiss this count before trial.No. 69272-1-1/4 

### draw reasonable inferences from the evidence. State v. Hoffman. 116 Wn.2d 51, 94-95, 804 P.2d 577 (1991). Aprosecutor may not, however, make statements that are unsupported by the evidence or invite thejurors to decide a case based on emotional 

### appeals to their passions and prejudices. In re Pet, of Gaff. 90 Wn. App. 834, 841, 954 P.2d 943 (1998); State v. Jones. 71 Wn. App. 798, 808, 863 P.2d 85 (1993). To prevail on a claim ofprosecutorial misconduct, a defendant must establish that the prosecutor's comments were improper and that the comments were prejudicial. State v. Warren. 165 Wn.2d 17, 26, 195 P.3d 940 (2008). First, Bruch contends that the prosecutor improperly focused on J.B.'s difficulty in testifying and thereby invitedthejury to penalize him for exercising his right to confront witnesses at trial. Several witnesses described J.B.'s emotional difficulty in talking about the abuse. Both counsel also referred to the obvious distress she displayed on the witness stand. Bruch's counsel suggested that J.B.'s emotion during her testimony stemmed from the fact that she had falsely accused her father. The prosecutor contended that J.B.'s testimony was credible, in part, because of her demeanor. He also argued that J.B.

was reluctant to disclose the abuse for a variety of complex reasons, including the fact that she still loved her father and because she anticipated many ofthe negative consequences that would follow. The prosecutor argued: You could see that she knew what she was getting herselfinto. And itwas horrible for her; horrible for her to answer my questions about what happened to her; horrible for her to answer defense counsel's questions about what she might or might not have said in a transcript;
. . . 4RP at 653. Bruch did not object.No. 69272-1-1/5 During rebuttal argument, the State responded to the defense contention that J.B. fabricated the allegations against herfather in order to further her own objectives. The State pointed out that, far from benefitting from her disclosures, J.B. suffered

numerous serious adverse consequences, including the emotional cost of her testimony. The prosecutor stated: "It's an incredibly regrettable part of our legal process" that essentially "victimized" J.B. again, by requiring her testimony. 4RP at 699. The court overruled Bruch's objection to this comment. The appellant claims that the prosecutor "directly faulted Mr. Bruch [sic] for 

### exercising his constitutional right to a trial" and causing harm to J.B. Appellant's Briefat 14. We disagree. 

### While the State may not draw adverse inferences from a defendant's exercise of his constitutional rights, not all arguments that touch upon those rights are 

### impermissible. State v. Gregory. 158 Wn.2d 759, 806, 147 P.3d 1201 (2006). The relevantquestions are whether the prosecutor manifestly intends the remark to be a comment on the defendant's trial rights and whetherthe exercise of constitutional rights is the focus ofthe argument. Gregory. 158 Wn.2d at 807. General discussion ofthe emotional toll of a victim's testimony offered to support 

### the victim's credibility does not amount to an improper comment on the defendant's right to confrontation. See Gregory. 158 Wn.2d at 808 (argument focused on the credibility 

### of the victim, not on the defendant's exercise of his constitutional right to confrontation). The cases Bruch relies upon are not analogous. See e^, State v. Jones. 71 Wn. App. 798, 805-06, 863 P.2d 85 (1993) (prosecutor expressly criticized the defendant's 

### exercise of his right to confrontation bycommenting on the effect of the defendant's 5No. 69272-1-1/6 behavior in court on the victim). In the context ofthe argument about credibility, itwas not improperfor the prosecutor to discuss J.B.'s obvious difficulty when she testified. The prosecutor did not criticize the defendant for subjecting J.B. to cross examination,
nor suggest or imply that Bruch should have pleaded guilty to spare the victim from having to testify. The argument did not infringe upon Bruch's right to confrontation. Next, Bruch also argues that the prosecutor unfairly appealed to thejury members' passions and prejudices. Bruch points to the prosecutor's comment that J.B.'s life was "no fairytale," his reference to the "absolute devastation" caused by rape perpetrated by a parent, and argument in rebuttal that, far from having an agenda to 

### destroy her father, J.B. would do "anything to have a dad who just took herfishing." 4RP 651, 663, 697. Bruch fails to demonstrate that any ofthese remarks, when viewed 

### in context, were unwarranted by the evidence or incurablyprejudicial. Cf., State v. 

### Clafiin. 38Wn. App. 847, 850-51, 690 P.2d 1186 (1984) (prosecutor's reading of a 

### poem"utilizing vivid and highly inflammatory imagery" describing rape's emotional effect was "so prejudicial that no curativeinstruction would have sufficed to erase the 

### prejudice itwas bound to engender in the minds ofthejurors"). Bruch cannot show that any arguableprejudice could not have been addressed by a timely objection and
curative instruction. 

### Finally, Bruch contends that the State committed misconduct bybelittling the defense's argument as a "fairytale" and predicting that defense counselwould arguefor
a "long while" about J.B.'s credibility. 4RP at 652; 663. 

### It isimproperfor the prosecutortodisparagingly comment on defense counsel's role orimpugn counsel's integrity. State v. Thorgerson. 172Wn.2d 438, 451, 258 P.3dNo. 69272-1-1/7 43 (2011). InThorgerson. for example, the court agreed that the State committed misconduct when itaccused the defense ofengaging in "sleight of hand" and used disparaging terms such as "'bogus'" and "'desperation.'" Thorgerson. 172 Wn.2d at 451-55. However, the court concluded that this misconduct was not prejudicial because itwas not likely to have altered the outcome ofthe case. Thorgerson. 172 Wn.2d at 452. In contrast, here, the State did not accuse defense counsel of deceiving thejury 

### nor maligncounsel's integrity in any manner. Defense counsel's cross examination of

some witnesses focused on the timing ofJ.B.'s disclosures and her missed 

### opportunities to fully disclose what happened to her. The questioning suggested that the defense would argue extensively about J.B.'s credibility and would suggest that the 

### timing andevolving nature of her disclosureswere reasons to doubtthe truth of her testimony. In response to this anticipated argument, the State argued in favor of a different interpretation of the evidence, contending that the way J.B. reluctantly disclosed the abuse over time lent authenticity to her account. Here again, Bruch failed 

### toobjectto the comments ofwhich he now complains. And in anyevent, the State's comments were a fairresponse to the defense's theory of the case, not misconduct. Reputation Evidence Bruch contends that the trial court abused its discretion by refusing to admit 

### evidence of J.B.'s reputation for dishonesty in her former school community. Bruch 

### sought to present thetestimony of Jordan Kerr, the son of hisformer girlfriend, who attended Arlington High Schoolfor a yearwith J.B. before she moved toArizona.No. 69272-1-1/8 During voir dire, Kerr said that J.B. had a reputation for dishonesty based on the opinion ofone ofJ.B.'s former boyfriends and some of his friends, and the opinion of Kerr's uncle's girlfriend, and three or four of herfriends who Kerr met once or twice, but did not really know. Kerr said that his uncle's girlfriendand her friends did not like J.B. because she would sometimes "cry for no reason" and do "weird things." 4RP at 607. Kerr said that J.B.'s former boyfriend thought J.B. was dishonest because of an incident 

### when she apparently thought she was pregnant and told another boy, but did nottell her 

### boyfriend. Kerr also told a couple of the people he mentioned that J.B. had falsely accused him ofmolesting her when they livedtogether. ER 608 allows the admission of evidence of a witness's reputation for 

### untruthfulness in the community to attack the credibility of a witness. Gregory. 158 Wn.2d at 804. Awitness's reputation is deemed reliablewhere the witness is well 

### known in a substantialcommunity. State v. Land. 121 Wn.2d 494, 499, 851 P.2d 678 

### (1993). To establish avalid community, theparty seeking toadmitthereputation evidence must show that the community is both neutral and general. Gregory. 158 Wn.2d at 804. Factors relevant to this showing may include "the frequency ofcontact 

### between members of the community, the amount of time a person is known in the 

### community, therole aperson plays in thecommunity, and thenumberofpeople in the community." Land. 121 Wn.2d at500. Whether a party has established theproper foundation for reputation testimony is a matterwithin the trial court's discretion. Gregory. 158 Wn.2d at 804-05. A trial court abuses its discretion when itacts in a 

### manner that is manifestly unreasonable or based on untenable grounds or reasons. Land. 121 Wn.2d at 500. 8No. 69272-1-1/9 As the trial court noted, the testimony offered by Kerr described J.B.'s reputation only among two small circles ofpeople within the school community. According to Kerr,
one ofthese groups thought J.B. was "weird" and did not like her. The other group included several people who had reason to be biased against her. Under these circumstances, the trial court acted well within its discretion in concluding that the 

### community was not sufficientlygeneral or neutral and in excluding the evidence.
Sentence 

### The court imposed a standard range term of confinement of 116 months. The 

### court also imposedcommunity custody of four months "plusall accrued earned early release time at the time ofrelease." Clerk's Papers (CP) at 7. Bruch challenges his 

### sentence, arguing that the sentencing courtimposed an indefinite term ofcommunity 

### custody, in violation ofRCW 9.94A.701, which requires fixed community custodyterms. Child molestation inthe second degree is a class B felony with a statutory 

### maximum sentence often years. RCW 9A.44.086(2); RCW9A.20.021(l)(b). Felony


### sex offenders are also subject to community custody, supervised bythe Departmentof Corrections. RCW 9.94A.701; RCW 9.94A.501(4). While RCW9.94A.701 authorizes a 

### 36-month term ofcommunity custodyfor Bruch's offense, the trial courtproperly reduced the term to four months so as not to exceed the statutory maximum sentence. 

### See RCW 9.94A.701(9). BecauseBruch is a sex offender, anyearly releasetime he earns on the confinement portion of hissentence must be converted to community 

### custody. RCW 9.94A.729(5)(a) ("A person who is eligible forearned early release as provided in this section and who will besupervised bythedepartment... shall be transferred to community custody status in lieu ofearned release time.") 9No. 69272-1-1/10
Bruch relies on cases in which the trial court failed to reduce the term of community custody so as not to exceed the statutory maximum. State v. Boyd. 174 Wn.2d 470, 275, P.3d 321 (2012); State v. Land. 172 Wn. App. 593, 295 P.3d 593, rev. denied. 177Wn.2d 1016, 304 P.3d 114(2013); State v. Winterborne. 167 Wn. App. 320, 273 P.3d 454. rev, denied. 174 Wn.2d 1019, 282 P.3d 96 (2012). Ineach ofthose cases, the trial court merely added a notation that the defendant could not serve a 

### sentence inexcess of the statutory maximum. But here, the sentencing court reduced the term of communitycustody to four months to avoid exceeding the 120-month maximum. As we have previously determined, the conversion ofearned early release 

### tocommunity custody isrequired by statute and the fact that the amount ofearned early release that will be converted is unknown does not render the sentence indefinite. State


### v. Winkle. 159Wn. App. 323, 331, 245 P.3d 249 (2011). rev, denied. 173Wn.2d 1007, 

### 268P.3d 942 (2012) ("The SRA specifically states that a sentence isnot rendered indeterminate bythefact that a defendant may earnearly releasecredits.").
We affirm. 

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WE CONCUR: 

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