### IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OFWASHINGTON, No. 79087-1-I

Respondent, DIVISION ONE V. UNPUBLISHED OPINION EVAN NEIL SMITH,Appellant. FILED: March 9, 2020 APPELWICK, C.J.

— Smith appeals his convictions for indecent liberties by forcible compulsion, attempted second degree rape, and fourth degree assault. He argues that the trial court abused its discretion in failing to instruct thejury on the missingwitnessdoctrine. Hecontendsthatthe prosecutorcommitted incurably prejudicial misconduct during closing arguments. Further, he asserts that he received ineffective assistance ofcounsel dueto his trial counsel’s failureto object to the prosecutor’s misconduct. He also asserts that cumulative error deprived him ofhis rightto afairtrial. Last, he arguesthatthe provision in hisjudgmentand sentence imposing interest on nonrestitution LFOs must be stricken. We affirm Smith’s convictions, but remand to the trial court to strike the provision requiring interest accrual on nonrestitution LFOs. FACTS Late at night on December 12, 2016, and into the early morning hours of December 13, Evan Smith went outwalking in his neighborhood in rural Arlington.No. 79087-1 -1/2

He was carrying and drinking beer. One of Smith’s neighbors, Crystal Chiechi,
was up late on December 12 watching television. At around 11:30 p.m., she was startled to see Smith standing outside her back room window, motioning towards her back door. Chiechi’s boyfriend was friends with Smith’s dad, but she did not know Smith verywell. Assuming herboyfriend would be home soon, Chiechi wentouton herback porch and engaged in small talkwith Smith. However, he quickly started making comments that Chiechi found bizarre. For example, when she asked Smith what he did forfun, he responded that he liked to go to the brewery in town, butthat “all the women around here are eithertaken orthey’re only 13 right now.” Later in the conversation, Smith told Chiechi that she and her boyfriend should start having kids. He then grabbed her right hip and told herthat her“hips need a baby between them.” Chiechi started to panic. Smith then tried to get her to go into herdetached garage with him to lookforsomething an old owner might have left behind. Chiechi responded that they needed to wait until her boyfriend got home. Smith kept insisting thatthey go intothe garage, atwhich point Chiechi
saw herboyfriend’s carcoming down the road. Smith leftsoon after herboyfriend arrived. Shortly after midnight, another neighbor of Smith’s, M.G., heard her dogs barking in an unusual manner. M.G. stuck her head out her door and saw Smith standing about six feet away. He was reaching into a box of beer that she kept outside. Smith had stopped at her home on two previous occasions to talkto her husband, but MG. had not spenttime with him before. Because the roads were
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icy and Smith was on foot, M.G. thoughtthat he might have wrecked his car. Her husband was asleep, so she went outside to see ifshe could help. Once she got outside, Smith told herthat he had just left Chiechi’s house and had noticed her outside. M.G. had taken herdogs outside about 15 minutes prior. Smith initially told M.G. that he was going to get on her roof and fix her chimney, which had a tarp on it. He wanted to get a ladder, and tried pulling her towards hershop to find one. M.G. told Smith that she did notwant him to fix her chimney, and refused to go with him to her shop. At that point, M.G.’s daughter, L.G., came outside. Smith let go of M.G.’s arm, and Smith and L.G. engaged in a snowball fight. At one point during the snowball fight, Smith walked behind M.G. and cupped her buttocks. M.G. reacted byshoving his hand away. Smith did not touch M.G. again while herdaughterwas outside. Once the snowball fight started to wind down, Smith went to the side of M.G.’s garage and urinated in full view of both M.G. and L.G. Around this time, M.G. let one of herdogs outside, and it lunged at Smith. She had neverseen her dog reactthatway, so she put it in the garage. As M.G. retrieved herdog, Smith and L.G. had a conversation about dogs, during which Smith demonstrated how hewould guta dog with a pocket knife. He pulled outa pocket knife and pretended to gut a dog in the air. At that point, M.G. put L.G. inside. She did not wake up her husband because she felt like she could handle the situation. However, she told L.G. to open the door every two minutes. She hoped that if L.G. kept opening the door,

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shewould have an excuseto go back inside. She had alreadytold Smith thatshe needed to goto bed, butwas unsure ifhewould trytofollow her ifshewent inside. About two minutes later, L.G. came back outside and asked for a bowl of
snow. M.G. grabbed the bowl and gotsome snowfor L.G. During thistime, Smith yelled at L.G. to get back inthe house. L.G. went back inside. M.G. became angry that Smith had yelled at herdaughter, and told him again that he needed to leave. Smith then urinated a second time on M.G.’s porch. As he was urinating, he asked M.G. fora ride toArlington so that he could meeta bartender. M.G. told him thatshewas notgoing anywhere. Smith then told herthat ifshewas notgoing to take him to Arlington, she needed to perform oral sex on him. M.G. was taken aback and laughed in disbelief. At that point, she handed Smith a beer and grabbed one for herself. Smith had already had several beers. She told Smith that nothing was going to happen between them. M.G. then went to light a cigarette. As she bent down to use her lighter, Smith grabbed herbythe collarand flung her8 to 10feetontothe hood ofhercar. She became very scared and remembered saying, “[Nb, no, no, no.” With her bodyon the carand Smith behind her, Smith tried reaching underherpullovershirt and removing her leggings. He called her a “dirty bitch” and said that she “would like it rough.” M.G. eventually heard her daughter crack the doorknob and was able to spin around. L.G. did notactually come outside. Smith then backed away from M.G., atwhich point she sawthat his penis was fully exposed. M.G. did not
scream for help in part because she did notwant herto daughterto come outside.

4No. 79087-14/5
M.G. again told Smith that he needed to go home, and that nothing was going to happen between them. She tried to calm down and grabbed another cigarette. However, Smith took the cigarette from her, grabbed her hand, and shoved her hand down his pants. He wrapped her hand around his penis and began stroking it as he was talking to her. L.G. then opened the door. M.G. was able to remove her hand from Smith’s pants as L.G. popped her head outside. She did not actuallystep outside, and shutthe doorafter making eye contactwith M.G. Smith alsozipped up his pants and backed away. Hetold M.G. thatshewas right and that he should go. MG. grabbed another beer for Smith, and told him to take it and leave. Smith then pushed her up against a pole about two feet from where she was standing. He grabbed her right leg, pried herthigh open, shoved his hand into her vaginal area, and forcibly rubbed the areathrough her leggings. M.G. was able to shove Smith, who stumbled backwards. Smith then slapped M.G. in the face and pinched both of her cheeks. Afterwards, he finally left. MG. then went inside, woke up her husband, and called 911. The State latercharged Smith with indecent liberties byforcible compulsion, attempted second degree rape, and fourth degree assault. Thejury in Smith’sfirst trial was unable to reach a verdict. As a result, the court declared a mistrial. At his second trial, Smith requested thatthe courtgive a “missing witness instruction” regarding M.G.’s daughter, L.G., whothe State did notcall as awitness. The court denied Smith’s request.

5No. 79087-1 -116

Ajury found Smith guilty as charged. The court imposed a total minimum term of89.25 months ofconfinementto a maximum term of life. It also imposed a $500 victim assessment and a $100 biological sample fee. The judgment and sentence provided that the legal financial obligations (LFOs) imposed “shall bear interestfrom the date ofthejudgment until payment in full.” Smith appeals. DISCUSSION Smith makesfourarguments. First, he arguesthatthetrial courtabused its discretion in failing to give a missing witness instruction regarding L.G. Second, he argues that the prosecutor committed incurably prejudicial misconduct during closing arguments. Third, he argues that he received ineffective assistance of counsel due to his trial counsel’s failure to object to the prosecutor’s misconduct. Fourth, he argues that the provision in his judgment and sentence imposing interest on nonrestitution LFOs must be stricken. I. Failure to Give Missing Witness Instruction Smith argues first that the trial court abused its discretion in denying his request for a missing witness instruction. He asserts that, because the State did not call L.G. as a witness, he was permitted to an instruction that the jury could inferthat L.G.’s testimonywould have been unfavorableto the State. “A missing witness instruction informs the jury that it may infer from a witness’s absence at trial that his or hertestimony would have been unfavorable to the partywhowould logically have called thatwitness.” Statev. Reed, 168Wn. App. 553, 571, 278 P.3d 203 (2012). Such an instruction is properwhen (1) the
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missing witness’s testimony is material and not cumulative, (2) the witness is particularly available to only one of the parties and not equally available to both parties, and (3) the witness’s absence is not satisfactorily explained. State v. Montgomery, 163 Wn.2d 577, 598-99, 183 P.3d 267 (2008). We review a trial court’s refusal to give a requested instruction based on the evidence in the case for abuse of discretion. State v. Walker, 136 Wn.2d 767, 771-72, 966 P.2d 883 (1998).Smith contends L.G. was a material witness. The record does not support this argument. AfterSmith requested a missing witness instruction regarding L.G., thetrial courtstated that itdid notview her potential testimonyas “verysignificant” in relation to the charges. The court asked counsel for Smith what “significant information” in L.G.’s forensic interview she thought should have been testified to thatwas not cumulative. The following exchange then took place:

[COUNSEL]: Well, the

-- THE COURT: Because the onlything that I understood really was perhaps the daughter saw him urinating outside and the issue related to the knife, which to me, frankly, are not significant. I guess the otherthing is, and I don’t know and maybe this is not relevant, really, this inquiry, but what if the child just didn’t observe anything, the child wasjustthere? [COUNSEL]: Well, I think that is the issue, that is why the State didn’t call the child. She came out several times when Mr. Smithwas presentand didn’teversee Mr. Smith closeto hermother. The mothertestified that in the incident up against the pole thatthe door opened, the child stepped out when Mr. Smith was making [M.G.] touch his penis. The child never saw anything. She was a very accurate historian ofwhat she saw. She neversaw

-- THE COURT: Soyou’retelling me, then, thatthe child

--when the child came out, the specifictestimony is thatwhen she observed
7No. 79087-1 -1/8 your client and [M.G.] that they were not in close proximity to each other? [COUNSEL]: She neversawthem do anything

-- THE COURT: That’s not my question. She may not have been in the position where she could have observed it, butyou seem to indicate thatthe child said theywere not in close proximity, and if that’s the case, that may be a material issue in relation to the allegations in this case. But I don’t knowwhatthe interviewsays, so I’m asking you, you made a representation that to me sounded like the child indicated theyweren’t even in close proximity. In response, counsel forSmith did notstatethat L.G. actuallysaid Smith and M.G.
were not in close proximity. Rather, she stated that L.G. was the “only other eyewitness to these events aside from Mr. Smith and [M.G].” Asthe discussion continued, counselforSmith argued that L.G.’stestimony bore on M.G.’s credibility as awitness. She stated, [M.G.] said that there were times where the child was out and that Mr. Smith was grabbing her and that she was shushing him away. [L.G.] did not see anything like that. She did notsee anything of Mr. Smith attempting to kiss [M.G]. She in her interview recounted the evening, said she came out multiple times, she had the snowball fight, she came outto get snow, that her mom smiled at herand told herto come back inside. She said ifI had known whatwas going on, I have a rifle, I would have brought out my rifle. Her recount ofwhat happened is not consistentwith [M.G.]’s recount ofwhat happened. The State disagreed with this characterization, pointing out that L.G. “was inside the residence for most of the time,” and that there was “a lot that she couldn’t actually see.” Thetrial courtdeclined to givethe missing witness instruction. Itexplained, In the WPIC,~1] one ofthe requirements is it says the circumstances must establish as a matter of reasonable probability that the party
111 WASHINGTON PRAcTIcE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL5.20, at 188-89 (4th ed. 2016) (WPIC). 8No. 79087-1 -119 would not knowingly fail to call the witness in question unless the witness’s testimonywould be damaging. I don’tfind underthe facts and circumstances ofthis case what the child observed, as well as the age ofthe child, thatthat prong issatisfied, and therefore, on that basis, I’m not giving the instruction. The trial court’s statements indicate that it did not consider L.G. to be an importantwitness, and that it did notview her potential testimony as material. As established above, thetrial courtasked counsel forSmith whether L.G. stated that she did not see Smith and M.G. in close proximity when she opened the door around thetimethat Smith made M.G. touch his penis. The courtthoughtthatthis statement could be a material issue in relation to the allegations. However, counsel forSmith did not confirm that L.G. actuallysaid thatshe did notsee Smith and M.G. in close proximity. Instead, she responded that L.G. was the “only other eyewitness to these events.” Smith nonetheless argues that L.G. was in a position to observe several actsthat comprised the charged crimes. He states that L.G. was close enough to the doorto workthe latch when “the attempted rape occurred,” butthat she “saw nothing.” He further asserts that L.G. stuck her head out the door during one of the two instances of indecent liberties, butthat, again, she “saw nothing.” And, he statesthat L.G. “noticed nothing amiss”when M.G. gota bowl ofsnowfor her, and that M.G. even smiled at her. After Smith threw M.G. onto her car and tried reaching under hershirt and removing her leggings, M.G. heard the doorknob click. She clarified thatthe door
never opened, and that L.G. never came outside. Smith does not cite evidence that L.G. could have seen whatwas happening through the door. Thus, based on

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the record before this court, testimony by L.G. that she saw nothing during this eventwould be of little material value. Itwould not contradict M.G.’s explanation ofwhat happened or undermine M.G.’s credibility. Next, after Smith shoved M.G.’s hand down his pants and forced her to touch his penis, M.G. saw the door open. She clarified that L.G. then stuck her head outside. As this happened, Smith immediatelystepped backfrom M.G., and M.G. was able to remove her hand from Smith’s pants. M.G. was not sure how close she and Smith were at the time L.G. stuck her head outside. She thought thatSmith might have been “stepping back.” Therefore, testimony by L.G. thatshe
saw nothing during this eventwould again be of little material value. Itwould not contradict M.G.’s explanation ofwhat happened or undermine M.G.’s credibility. And, M.G. did nottestifythatany ofthe acts comprising the charged crimes occurred while she got herdaughtera bowl ofsnow. Thus, testimony by L.G. that she noticed nothing amiss at the time, and that M.G. smiled at her, would not be material. It would not contradict M.G.’s description of the events. The circumstances here do not establish that L.G.’s testimony would have been material and unfavorable to the State. Moreover, the State had a reasonable explanation forits decision notto call L.G. totestifyattrial. In L.G.’sforensic interview, she did notsayanything thatthe State deemed to have evidentiaryvalue. Specifically, the State explained that her forensic interview did not contain any evidence “really relevant to this case other than some information about her seeing Mr. Smith use a pocket knife to indicate that he was gutting a dog.” And, given L.G.’s age, the State did notwantto call a
10No. 79087-1-I/Il

child witness unless itwas absolutely necessaryto do so. Therefore, Smith failed toestablish thatthe Statewould have called L.G. asawitness butforherdamaging testimony. Accordingly, the trial court did not abuse its discretion in declining to give a missing witness instruction regarding L.G. II. Prosecutorial Misconduct Smith argues next that the prosecutor committed incurably prejudicial misconduct attrial. He contends thatthis misconductdenied him his rightto afair trial on all counts. During the rebuttal closing argument, the prosecutor made the following statement regarding L.G.’s absence as a witness: [Defense counsel] said, you know, we didn’t hear from [M.G.’s] daughter. And I’ll leave you to consider why a prosecutorwouldn’t want to call a ten-year-old to testify in front of a bunch of strangers about her mother being assaulted when that’s not necessary because we have a victim who wentthrough it all. Smith asserts that, “[i]n making this argument, the prosecutor improperly argued facts not in evidence, suggesting that L.[G.] had seen hermotherbeing assaulted.” He further asserts that this argument “improperly claimed L.[G.] would have corroborated M.G.’s testimonythat Smith assaulted M.G.” Smith failed to object to this statement at trial. As a result, our review is limited to determiningwhetherthe prosecutor’s alleged misconductwas soflagrant and ill intentioned that an instruction could not have cured the resulting prejudice. State v. Sakellis, 164 Wn. App. 170, 184, 269 P.3d 1029 (2011). “This standard requires the defendant to establish that (1) the misconduct resulted in prejudice that ‘had a substantial likelihood of affecting the jury verdict,’ and (2) no curative
11No. 79087-1 -1/12

instructionwould haveobviated the prejudicial effecton thejury.” j~ (quoting State
v. Thorgerson, 172 Wn.2d 438, 455, 258 P.3d 43 (2011)). Smith contends that, even with a curative instruction, “[t]he jury was likely to acceptthe State’sversion ofthe facts.” He cites State v. Thierrv, 190Wn. App. 680, 694, 360 P.3d 940 (2015), forthe general proposition that, because thejury normally places great confidence in the faithful execution of a prosecuting attorney’s obligations, a prosecutor’s improper insinuations orsuggestions are apt to carry moreweight against a defendant. We agree thatthe State’s comment could have been interpreted to suggest that L.G. witnessed the assaulton hermotherand the State simply did notwantto put a young child through the ordeal of a sexual assault trial. But, Smith fails to explainwhyan admonishmentto counsel and a curative instruction could not have alleviated any prejudice. In Thorcierson, the State Supreme Courtdetermined that
even ill intentioned remarks by a prosecutor in closing argument did not warrant reversal ofa conviction, because thevictim’stestimonywas consistentthroughout thetrial and consistentwith whatshe had told otherwitnesses beforethetrial. 172 Wn.2d at452. Here, M.G.’s testimony was similarly consistent throughout the trial and consistentwith what she reported to police before the trial. There was evidence to corroborate M.G.’s testimony, including the neighbor who had similar contact with Smith before he made hiswayto M.G.’s home, witnesseswhosawherinjuries that night, and physical evidence consistentwith M.G.’s version ofevents. Given this evidence, the single, inappropriate comment in the State’s rebuttal closing
12No. 79087-1-1113

argument did not have a substantial likelihood of having altered the outcome of this case. Also, the court gave thejurythe following instruction: The lawyers’ remarks, statements, and arguments are intended to help you understand the evidence and applythe law. It is important, however, foryou to remember that the lawyers’ statements are not evidence. The evidence is the testimony and the exhibits. The law is contained in my instructions to you. You must disregard any remark, statement, orargumentthat is notsupported bytheevidence orthe law in my instructions. We presumethatthejuryfollowsthe court’s instructions. Statev. Stein, 144Wn.2d 236, 247, 27 P.3d 184 (2001). Smith has failed to establish that the alleged misconduct resulted in prejudicethat had a substantial likelihood ofaffecting thejuryverdict. Accordingly, his prosecutorial misconduct claim fails. Ill. IneffectiveAssistance ofCounsel In the alternative, Smith argues that his attorney provided ineffective assistance of counsel by not objecting to the prosecutor’s remark during closing arguments. To prevail on a claim of ineffective assistance ofcounsel, a defendant must show that counsel’s performance fell below an objective standard of reasonableness based on consideration of all the circumstances, and that the deficient performance prejudiced thetrial. Stricklandv. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Nichols, 161 Wn.2d 1, 8, 162 P.3d 1122 (2007). Ifone ofthe two prongs ofthe test is absent, we need not inquire further. Strickland, 466 U.S. at 697; State v. Foster, 140 Wn. App. 266,
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273, 166 P.3d 726 (2007). The reasonableness inquiry presumes effective representation and requires the defendant to show the absence of legitimate strategic ortactical reasons forthe challenged conduct. State v. McFarland, 127 Wn.2d 322, 336, 899 P.2d 1251 (1995). Prejudice is present if there is a reasonable probability that, but for counsel’s error, the result would have been different. ki. at 334-35. We review ineffective assistance of counsel claims de
novo. State v. Sutherby, 165 Wn.2d 870, 883, 204 P.3d 916 (2009). The comment was brief and there was significant evidence corroborating M.G.’s version of events. Even if we were to conclude that defense counsel’s failure to object was deficient performance, Smith fails to establish that, but for counsel’s failure to object, there is a reasonable probability that the result ofthis trial would have been any different. Smith did not receive ineffective assistance ofcounsel.2 

### IV. Legal Financial Obligations Smith argues lastthatthe provision in hisjudgment and sentence imposing interest on nonrestitution LFOs must be stricken. He relies on House Bill 1783~ and State v. Ramirez, 191 Wn.2d 732, 426 P.3d 714 (2018).

2 Smith also argues that cumulative error deprived him of his right to a fair trial. The cumulative error doctrine applies “when a combination of trial errors denies the accused a fairtrial, even when any one ofthe errors taken individually would be harmless.” Statev. Salas, 1 Wn. App. 2d 931, 952, 408 P.3d 383, review denied, 190 Wn.2d 1016, 415 P.3d 1200 (2018). Because Smith has not shown any error, the cumulative errordoctrine does not apply.

~ ENGROSSED SEcoND SUBSTITUTE H.B. 1783, 65th Leg., Reg. Sess. (Wash. 2018) (House Bill 1783).
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In Ramirez, the State Supreme Court held that House Bill 1783 applies prospectively to cases on appeal. 191 Wn.2d at 747. House Bill 1783 amends RCW 10.82.090, providing that “no interest shall accrue on nonrestitution legal financial obligations.” LAWS OF 2018, ch. 269, 

### § 1(1). The State concedes that remand is appropriate to strike the provision requiring interest accrual on nonrestitution LFOs. We accept the State’s concession and remand to the trial courtto strike the provision. We affirm Smith’s convictions, but remand to the trial court to strike the provision requiring interest accrual on nonrestitution LFOs.

WE CONCUR:

15