IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

STATE OF WASHINGTON,

Respondent,

v.

MATTHEW BRUCH,

Appellant

No. 69272-1-1 C3 —ic

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DIVISION ONE fn-%£}

UNPUBLISHED OPINION

FILED: January 21. 2014

Spearman, J. — A jury found Matthew Bruch guilty of two counts of child

molestation in the second degree and two counts of rape of a child in the third degree.

Bruch appeals his convictions arguing that the prosecutor committed misconduct in

closing argument by improperly 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 excluding evidence of the victim's reputation for dishonesty and

imposed an indefinite term of community 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 complies with the statutory

requirement of converting earned early release time to community custody, we affirm.

FACTS

From approximately 2001 until 2007, when she was between the ages of six and

twelve, J.B. lived in Lake Stevens with her father, Matthew Bruch, his girlfriend, Tara

Osborne (formerly Kerr), her biological brother, Osborne's children, and occasionally

otherfamily members. In 2007, Bruch ended his relationship with Osborne and entered

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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.

In August 2010, when J.B. was fifteen years old and her father's relationship with

Mjelde was ending, J.B. told Mjelde that her father 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 her father were lying on the couch together and Bruch put

his hand down the front of her 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 her hand, put it around his penis, and made her move her hand back and forth.

J.B. was in foster care for approximately 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 her father had raped

her twice when she was fifteen.

According to J.B., the first rape occurred when they were still living at Mjelde's

Stanwood house. J.B. said that Mjelde and her kids had left the house after her father

and Mjelde had a fight and she was watching television on Mjelde's bed with herfather.

Bruch put his hand over her mouth, flipped over on top of her, pulled down her pants

and had sexual intercourse with her. When asked why she did not call the police after

No. 69272-1-1/3

this happened, J.B. explained that she was "terrified" of Bruch and she "couldn't fathom

what had just happened" and "didn't want to accept it." 1RP at 135-36.

J.B. described a second incident when Bruch, J.B., and her brother were staying

at the home of Julia 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 Office charged Bruch with two counts of

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

and designated all counts as involving domestic violence.1 Following a trial, the jury

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 of prosecutorial misconduct. We review a

prosecutor's comments during closing argument in the context ofthe total argument, the

issues in the case, the evidence addressed in the argument, and the jury 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). A prosecutor has wide latitude in closing argument to

1The State also charged Bruch with one countof bail jumping butfiled a motion to dismiss 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). A prosecutor may not, however, make statements that are

unsupported by the evidence or invite the jurors 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 of prosecutorial 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 invited the jury 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 of the negative

consequences that would follow. The prosecutor argued:

You could see that she knew what she was getting herself into.

And it was 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.

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During rebuttal argument, the State responded to the defense contention that

J.B. fabricated the allegations against her father 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 Brief at

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

relevant questions are whether the prosecutor manifestly intends the remark to be a

comment on the defendant's trial rights and whether the exercise of constitutional rights

is the focus of the argument. Gregory. 158 Wn.2d at 807.

General discussion of the 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 by commenting on the effect of the defendant's

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No. 69272-1-1/6

behavior in court on the victim). In the context of the argument about credibility, it was

not improper for 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 the jury

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 her fishing."

4RP 651, 663, 697. Bruch fails to demonstrate that any of these remarks, when viewed

in context, were unwarranted by the evidence or incurably prejudicial. Cf., State v.

Clafiin. 38 Wn. 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 curative instruction would have sufficed to erase the

prejudice it was bound to engender in the minds ofthe jurors"). Bruch cannot show that

any arguable prejudice could not have been addressed by a timely objection and

curative instruction.

Finally, Bruch contends that the State committed misconduct by belittling the

defense's argument as a "fairytale" and predicting that defense counsel would argue for

a "long while" about J.B.'s credibility. 4RP at 652; 663.

It is improper for the prosecutorto disparagingly comment on defense counsel's

role or impugn counsel's integrity. State v. Thorgerson. 172Wn.2d 438, 451, 258 P.3d

No. 69272-1-1/7

43 (2011). In Thorgerson. for example, the court agreed that the State committed

misconduct when it accused the defense of engaging 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

it was not likely to have altered the outcome of the case. Thorgerson. 172 Wn.2d at

452.

In contrast, here, the State did not accuse defense counsel of deceiving the jury

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

some witnesses focused on the timing of J.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 and evolving 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

to object to the comments ofwhich he now complains. And in any event, the State's

comments were a fair response 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 the testimony of Jordan Kerr, the son of hisformer girlfriend, who

attended Arlington High Schoolfor a year with J.B. before she moved to Arizona.

No. 69272-1-1/8

During voir dire, Kerr said that J.B. had a reputation for dishonesty based on the

opinion of one of J.B.'s former boyfriends and some of his friends, and the opinion of

Kerr's uncle's girlfriend, and three or four of her friends who Kerr met once or twice, but

did not really know. Kerr said that his uncle's girlfriend and 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 not tell her

boyfriend. Kerr also told a couple of the people he mentioned that J.B. had falsely

accused him of molesting her when they lived together.

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. A witness's reputation is deemed reliable where the witness is well

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

(1993). To establish a valid community, the party seeking to admit the reputation

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 of contact

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

community, the role a person plays in the community, and the number of people in the

community." Land. 121 Wn.2d at 500. Whether a party has established the proper

foundation for reputation testimony is a matter within the trial court's discretion.

Gregory. 158 Wn.2d at 804-05. A trial court abuses its discretion when it acts in a

manner that is manifestly unreasonable or based on untenable grounds or reasons.

Land. 121 Wn.2d at 500.

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No. 69272-1-1/9

As the trial court noted, the testimony offered by Kerr described J.B.'s reputation

only among two small circles of people within the school community. According to Kerr,

one of these 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 sufficiently general or neutral and in excluding the evidence.

Sentence

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

court also imposed community custody of four months "plus all accrued earned early

release time at the time of release." Clerk's Papers (CP) at 7. Bruch challenges his

sentence, arguing that the sentencing courtimposed an indefinite term of community

custody, in violation ofRCW 9.94A.701, which requires fixed community custody terms.

Child molestation in the 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 Department of

Corrections. RCW 9.94A.701; RCW 9.94A.501(4). While RCW 9.94A.701 authorizes a

36-month term of community custody for Bruch's offense, the trial court properly

reduced the term to four months so as not to exceed the statutory maximum sentence.

See RCW 9.94A.701(9). Because Bruch is a sex offender, any early release time 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 for earned early release as

provided in this section and who will be supervised by the department... shall be

transferred to community custody status in lieu ofearned release time.")

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No. 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). In each of those

cases, the trial court merely added a notation that the defendant could not serve a

sentence in excess of the statutory maximum. But here, the sentencing court reduced

the term of community custody to four months to avoid exceeding the 120-month

maximum. As we have previously determined, the conversion of earned early release

to community custody is required 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,

268 P.3d 942 (2012) ("The SRA specifically states that a sentence is not rendered

indeterminate by the fact that a defendant may earn early release credits.").

We affirm.

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WE CONCUR:

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