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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, Respondent,

v. KELVIN KEON KERVILLE MARSHALL, Appellant. NO. 72036-8-1 DIVISION ONE

UNPUBLISHED OPINION FILED: July 28, 2014 

### Lau, J. —Kelvin Marshall appeals his firstdegree burglary conviction, arguing 

### that (1) the trial court admitted improperopinion testimony recountingstatements made by detectives who interviewed him after his arrest, (2) the prosecutor committed misconduct during closing arguments, (3) the sentencing court erroneously imposed 

### certaincommunity custodyconditions, and (4) the sentencing courtunlawfully ordered him toforfeit property. Because (1) the challenged witness testimonyexpressed no personal beliefs on credibility, (2) the prosecutor committed no closing argument misconduct, and (3) hisforfeiture claim is premature, we affirm his conviction. But 

### because the court imposedunlawful community custody conditionsrelating tocontrolled 

### substances and sexually explicit materials, we remandwith instructions to strike those conditions from thejudgment and sentence. FACTS 

### The trialevidence established the following facts: Twenty-eight-year-old Tasha 

### Churchlived in a small, second-floorapartmentwith herboyfriend, EddieSumlin. On72036-8-1/2
the morning ofSeptember 2, 2011, 10 to 20 minutes after Sumlin left for work, Church answered a knock at the door from a man she did not know. The man said the apartment manager sent him to checkthe water pipes. The man put his hand on the door, entered the apartment, and walked to the bathroom. Church later identified the

man from a photomontage as Marshall. Marshall went into the kitchen. Church got suspicious because the kitchen pipes worked fine. She looked up and saw Marshall staring at her. Marshall walked slowly 

### toward her and began stroking a wrench "suggestively." Report ofProceedings (RP) (Jan. 15, 2013) at 236. Marshall sat on the bed next to Church. He touched her hair, 

### massaged her shoulder, and said, "[Y]ou looktense." RP (Jan. 15, 2013) at 235. Church told Marshall to stop. Marshall asked Church ifshe was happy with her 

### boyfriend and ifshe would call him. Church said she was happy and would not call. Marshall touched Church's feet and told herthey were very nice. 

### Church put her hand in the air and said, "You reallyneed to stop." RP (Jan. 15, 2013) at 238. Marshall got up and walked to the bathroom. Church grabbed some 

### belongings. As shefled the apartment, Church said, "Heasked ifmyboyfriend goes down on me, because he would." RP (Jan. 15, 2013) at 240. Church "made a 

### disgusted noise " RP (Jan. 15,2013) at 240. Marshall asked Church ifshe was leaving. Visibly upset, Church responded, "[0]h yeah, I'm gone." RP (Jan. 15, 2013)

at 240.

### Church sawthe apartment manager and his wife at the bottom of the stairs. She 

### angrily asked the managerabout the man he hired. The managerdenied hiring anyone

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and ran up the stairs. The manager's wife called 911. The manager later identified Marshall in a photomontage. Shannon Glen lived in Church's apartment complex. She saw a man smoking outside the complex the night before the incident. Glen's friend asked the man what he

was doing. The man responded, "I'm with maintenance." RP (Jan. 15, 2013) at 288. Glen described the man as a "[t]all, skinny, young, African American black guy with a red shirt on, short hair." RP (Jan. 15, 2013) at 289. Scott Kidwell lived across the streetfrom Church. On the morning ofthe incident, he saw a "clean cut black kid" park on the street. RP (Jan. 15, 2013) at 301. He said the kid walked behind Church's apartment and then returned to the street. The kid retrieved a "brand new crescentwrench" from his car, made a phone call, and then walked toward Church's apartment. RP (Jan. 15, 2013) at 301. Tacoma Police Officer Pamela Rush responded to a 911 call reporting a burglary at Church's apartment. When Officer Rush arrived, Kidwellpointed out the cardriven 

### bythe man withthe crescentwrench. Officer Rush saw an envelope inside the car 

### indicating Marshallwas in the military. The next day, she arrested Marshall at a nearby military base. Detectives Keith Millerand Brad Graham questioned Marshall at the police 

### station shortly after his arrest. In a tape-recorded interview, whichwas latertranscribed for trial, Marshall acknowledged parking on the street outside Church's apartment but claimed he left on foot after being grabbed by a stranger: This, urn, like a black dude came out and stufflikethat and when I(unintelligible) 

### then itw—after, it's like this otherwhite dude came likeshorts, shorts and stuff, 

### and he's like grabbing me and stuff. Iwas like, "Hey let me go, it's not me." And
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that dude go, like, he's, like, still, like, grabbing me and stuffso Ilikewrench away and Iran- ran up to my house and stuffso Icalled my wife. Ex. 23 at 11. He said he returned to the street but leftwhen he saw police officers assembling in the area: So, from there, urn, urn, walk, look around to, like, get my car and when Iwalked back to get my car, it's like there's, uh, police car. So I—I called her back there and say, urn, "I'm, like, walking and, like, there's a cop car," and she was like, "Alright, go home." Ex. 23 at 11. Laterduring the interview, Marshall changed his story. He told detectives that he entered Church's apartment while pretending to be a plumber: So went, Iwas like, Idon't know what to say so Iwas like, urn, oh, I'm the plumber. So she was like, alright go ahead. So, she was like, uh, the bath—it was bathroom and stufflike that, so like they
. . . and, like, and like, what's he doing now so . . . guess we, um, we started talking for a minute. Ex. 23 at 28 (ellipses in original). He said that he and Church talked while sitting on Church's bed. He claimed that the two discussed music and that Church said she liked 

### music. He said he leftthe apartment briefly to retrieve a music CD (compactdisc) from his car. He said he and Church unsuccessfully attempted to play the CD on Church's laptop.

### Marshall acknowledged, "And, like . . . then think, um, think Itouched her, um, like, her, like, uh, here but not on her back, touched her hair and stuffand then she was 

### like, Okay, um, then Isay something about, he's a, um, uh, 'I like my boyfriend so,' um, 'Idon't likecheating on him.'" Ex. 23 at 29. He claimed that he leftthe apartment 

### complex shortly after this exchange. He said Church did not appearfrightened. He denied that he visited the apartment complex the previous night.72036-8-1/5 At trial, Church testified she found an unfamiliar CD in her laptop when she returned to her apartmentfor the first time. She thoughtthe CD might contain a virus, since itwas labeled "Y2K." RP (Jan. 15, 2013) at 244. The court admitted the CD at trial. The parties stipulated that the CD contained Church's fingerprints but that neither the laptop nor the CD contained Marshall's fingerprints. Marshall did not testify at trial. During closing arguments, defense counsel conceded that Marshall unlawfully entered Church's apartment and that, once inside, he assaulted Church. He disputed only that Marshall "entered with the intent at that point intime that he was going to commit a crime inside," and that "he [did] so for purposes of sexual gratification." RP (Jan. 17, 2013) at471. He asked thejury to acquit Marshall of first degree burglary and to convict him instead on the lesser included charges of first degree criminal 

### trespass and fourth degree assault. He also asked thejury to findthat Marshall lacked sexual motivation when he committed these crimes. 

### A jury found Marshall guilty of firstdegree burglary committed withsexual motivation. Marshall appeals. ANALYSIS Opinion Testimony Marshall contends the trial court erroneously admitted testimony that constituted 

### an opinion on his credibility, veracity, or guilt. For the reasons discussed below, we 

### hold that the courtproperly exercised itsdiscretion when admitting thetestimony.1

1Our record does not contain a verbatim transcript ofthe portion of trial during 

### which the deputy prosecutors and Detective Miller read the interviewtranscript into the record. The trial court stated, "Since [the interview has] already been transcribed, [the -5-72036-8-1/6 

### Attrial, the court allowed the State to present portions of the transcript of Marshall's pretrial interview with Detectives Graham and Miller. Prosecutors read the lines spoken by Detective Millerand Detective Graham. Detective Millerread the defendant's statements. As quoted above, Marshall first told the detectives that he drove to Church's 

### street. But he claimed he left on foot after being grabbed by a stranger. He said he returned to retrieve his car but leftwhen he saw police officers gathering in the area. Detective Graham questioned Marshall's story: Um, I—I wantyou to think long and hard. Lots and lots ofpeople come intohere 

### and talk to us. And they say stuff that they think they need to say or they say 

### stuff that we want to hear. Now, neither Detective Milleror Iwant you to say anything that's not true. I'mgonna wantyou to—we don't wanna put words in your mouth. But you also knowthatwe didn'tjust happen upon you. Okay? We 

### knowthatthere was some more things that went on that day. We know that ya went a little bit further than inthe street, and we know that, um, that you did talk to some other people and—and—and so, let me just sayfromthe beginning that one ofthe things that we have to do is kinda sort outthe lies. We kinda know the "whats" already but y—we actually do know where you were, and we do have 

### people who can tell us where you went and people who did see you. So Imean that's not, uh, and—and unfortunately, because you do—you do speakwith a very unique accent, you don't sound likeyou're from Tacoma, um, you're not that hard to identify. Okay? But what we have to look at here is more ofthe "what 

### went on." We got one side ofthe story from her, and we don'tthink it's fair to go much further without getting the other side ofthe story from you. Ifsomething went on by force or if—ifyou just—ifsomething was d—designed to hurt somebody, then that's a problem. But ifsomething happened and itwasn't designed to hurt somebody and itwas being—you know, misunderstanding or an accident or something along those lines, then we need to know that as well. And, again, neither one of us wants you to say anything that's nottrue, but also understand that when you're done in this room, you're done talking to us. And if you tell us that all you did was stay out out [sic] here on the street and you didn't go and talk to anybody, you didn't go into any building, and then later on we can prove, and we willprove, that that's not true, then you're gonna come out looking like a real bad guy. And you mighta had a good reason for going in and it might
court report] will not be making anothertranscription, so she is going to exit when you startthe reading." RP (Jan. 16, 2013) at 365.72036-8-1/7
have been a—an innocent reason for going in. But when you stand up and you give that reason, and you talk to a lawyer and the lawyer says, "Hey, you gotta tell 'em what really happened, and that y—nothing bad went on," or the other person was okay or, or s—whatever itwas, you're gonna say that and people are probably gonna believe you because you come across as a—a pretty honest

### looking guy. Butthe problem is that he and Igot to come in and go, "Yeah, but on September 2nd at 3:30 inthe afternoon, we asked Kelvin that, and he said he didn't do any of that. So is he lyingthen or is he lying now?" You know what I mean? So, Iwant you to think back. We haven't written any reports yet so it's not too late to—to kinda fix things up here. But Idon't think you're [sic] been 

### telling us the—the complete truth, have you? There's—there was a little more to it, wasn't there? Trying to help you—we're trying to help you help yourself. 

### We've got one side ofthe story, Kelvin, and it's not fairthatwe only have one 

### side. Okay? And one of the things we're gonna get asked when we leave this room is, "Did he try to hurt somebody?" And I—I wanna be able to answer 

### honestly. Iwanna be able to say, "Wait, hey listen, this is what he said 

### happened. This is maybe how it got out of hand and got out of control real quick." You know what Imean? IfIjust go out there and say, "Well, Imean, you 

### know, basically we finished talking to him and he said he never leftthe street," and then we look at all ofthe otherevidence we have including, you know, the 

### witness and everything else, then that it—itkinda makes you look bad. And I—I don'tthink you need to look bad. Ithink you need to lookhonest here. So 

### Kelvin, something more went on and the problem is you need to help yourself and the only way to help yourself is to kinda be honestwith us. Ican see that 

### you're scared. You look scared, and Itotally get that. Imean, hell, you're in a police station, cops are asking you questions. Yougot—you got, Iunderstand that. You got a good reason to—tofeel nervous and scared. But—butI—I'm 

### telling youthat—I'mtell[sic] youtha—that—that not being honestwith us is not the way out of this thing. Okay? Don't—don't—it'slike you're pushing a giant 

### rock up a hill. You don't wanna be doin' itthat way. You want to be in front of the rock not behind the rock. So, kinda, um, maybe you should start over again 

### and you haven't been completely honest, have you? Ex. 23 at 17-19. After a short break, Detective Graham resumed: 

### Det. Graham: So when we left offItold you that Idon't—neither one of us thinks 

### that you were beingtotally honest with us in the first go-around. Is thattrue? Do you wantto tell us what really happened? 

### Marshall: Okay. So you, uh, already had the first part. You gonna, like, start over? Det. Graham: Yeah, we can. Yeah. 

### Ex. 23 at 25. As quoted above, Marshall responded and acknowledged that he entered Church's apartmentwhile pretending to be a plumber.72036-8-1/8


### Detective Millertold Marshall, "I think you wanted to go inthere and have sex with somebody." Ex. 23 at 53. Marshall said, "That's not true." Ex. 23 at 53. Detective Millerconfronted Marshall on this point: Det. Miller: Kelvin, ifItold you this story that you've told us about randomly picking this apartment and knocking on the door, happen to have a b—a tool bag and saying that you're the plumber, what would you think? Marshall: I'd say something—something crazy with that story but.
. . Det. Miller: Itdoes sound crazy. Marshall:
. . . that's why ithappened, though. That's how ithappened. Like, I was, uh, be honest, that's what happened. Det. Miller: Kelvin, I—I—you know I—I appreciate that you told us, for the most part, Ithink you've told us the truth and Ithink you're—you're avoiding the reason why you were knocking on the door. Ex. 23 at 54. Marshall continued to deny a sexual motivation. Detective Miller persisted: 

### Det. Miller: Well, Kelvin, again, I—I appreciate your honesty with us, but Istill think you're—you're going around the issue of why you knocked on that door. You—you and Iknow, Detective Graham and Iknow and you know what your intent was. Kelvin, this is your only opportunity to tell us the truth. Neither of us are going to come and talk to you again aboutthis. This is it right here. And like Detective Graham told you earlier, you change your story later.
. . Marshall: I'm not. . . Det. Miller:
. . . an—and that's not gonna look good. Ex. 23 at 59-61. Marshall contends the above-quoted statements by Detectives Graham and Millerconstituted inadmissible opinion testimony on his credibility. "We review a trial court's decision to admit or exclude a law enforcement officer's 

### statements during an interrogation for an abuse of discretion." State v. Notaro. 161 Wn. App. 654, 661, 255 P.3d 774 (2011).

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Under an abuse ofdiscretion standard, the reviewing courtwill find error only when the trial court's decision (1) adopts a view that no reasonable person would take and is thus "manifestly unreasonable," (2) rests on facts unsupported inthe record and is thus based on "untenable grounds," or (3) was reached by applying the wrong legal standard and is thus made "foruntenable reasons . . . ." State v. Sisouvanh. 175 Wn.2d 607, 623, 290 P.3d 942 (2012) (internal quotation marks omitted) (quoting State v. Rohrich. 149 Wn.2d 647, 654, 71 P.3d 638 (2003)). 

### "Generally, no witness may offertestimony inthe form of an opinion regarding 

### the guilt or veracity ofthe defendant; such testimony is unfairly prejudicial to the defendant 'because itinvad[es] the exclusive province ofthe [jury].'" State v. Demerv, 144 Wn.2d 753, 759, 30 P.3d 1278 (2001) (plurality opinion) (alterations in original) 

### (internal quotation marks omitted) (quotingCity ofSeattle v. Heatlev, 70 Wn. App. 573, 577, 854 P.2d 658 (1993)). "Because issues of credibilityare reserved strictly forthe 

### trier of fact, testimony regarding the credibility of a keywitness may also be improper." Heatlev, 70 Wn. App. at 577. 

### "In determining whether a statement constitutes improper opinion testimony, we 

### consider the type ofwitnessinvolved, the specific nature ofthetestimony, the nature of the charges, the type ofdefense, and the other evidence before the trier offact." Notaro. 161 Wn.App. at 661-62. "Testimonyfrom a law enforcement officer regarding 

### the veracity of another witness may be especiallyprejudicial because an officer's 

### testimony often carries a special aura ofreliability." State v. Kirkman, 159Wn.2d 918, 928, 155 P.3d 125 (2007). But"'[t]estimonythat is not a directcomment on the 

### defendant'sguilt or on theveracity of a witness, isotherwise helpful to thejury, and is based on inferences from the evidence is not improper opinion testimony.'" Notaro. 161 

### Wn. App. at 662 (alteration in original) (quoting Heatlev, 70Wn. App. at578).

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In Notaro. detectives interviewed the defendant before trial. At trial, one ofthe 

### detectives described the interview to thejury. He testified thatthe defendant initially blamed his motherfor the victim's murder. The prosecutor asked the detective what he 

### said to "'have [the defendant] change his story.'" Notaro. 161 Wn. App. at 665. The detective testified, '"I leaned forward, and Itold [the defendant] Ididn't believe him.'" 

### Notaro. 161 Wn. App. at 665. Over the defendant's objection, the detective explained: Itold him Ididn't believe him. Isaid, Idon't believe your mother was able to put 

### [the victim's] body in a freezer by herselfif [the defendant] had such a difficult time pulling it out and taking itupstairs to bury it. Itold him Ididn't believe that that's what mothers did when they have a problem 

### such as the problems [sic] they were having. They called their sons, and sons dealt withthe problems. Mothers didn't shoot people. 

### Notaro. 161 Wn. App. at 665 (alteration inoriginal). The detective also testified, "I told 

### [thedefendant] totell me thetruth. Tell me the story of what happened." Notaro. 161 Wn. App. at 665. According to the detective, the defendant confessed to the murder. 

### On appeal, the defendant argued that thetrial courtadmitted improperopinion testimony. In rejecting thisargument, Division Two ofthis courtdistinguished between 

### improperopinion testimony andtestimony regarding whatitcalled "tactical interrogation statements." Notaro, 161 Wn. App. at 669. The latter, itexplained, provided no 

### evidence ofthe interrogating detective's personalbeliefs on the defendant'sveracity. Rather, it merely provided an "account" ofthe interrogator's efforts "to challengethe defendant's initial story and elicitresponses that are capable ofbeing refuted or 

### corroborated by otherevidence oraccounts ofthe eventdiscussed." Notaro. 161 Wn. 

### App. at669. This account, thecourtsaid, "describedthepolice interrogation strategy 

## and helped explaintothejurywhy [thedefendant] changed some parts ofhis story—but

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### not others—halfway through the interview." Notaro. 161 Wn. App. at 669. The court concluded, "[T]aken in context, [the detective] did not testify at trial about his personal 

### beliefs; instead, he recounted the full version ofeach participant's statements during [the defendant's] interrogations." Notaro. 161 Wn. App. at 669. The statements here are similar to those in Notaro.2 Detective Graham challenged Marshall's initial story, telling Marshall that he and Detective Millerknew "there was some more things that went on that day." Ex. 23 at 17. He explained to Marshall, "We got one side ofthe story from [Church], and we don't think it's fair to go much further without getting the other side ofthe story from you." Ex. 23 at 18. As in Notaro and read inthe context ofthe 73-page interview, these statements and the statements quoted above constitute a legitimate interrogation tactic, not a direct personal opinion on credibility. The detectives' statements during interrogation were calculated to see whether Marshall would change his story. The statements thus permissibly "described the police interrogation strategy" and helped explain to thejury why Marshall "changed some parts of his story—but not others—halfway through the interview." Notaro. 161 Wn. App. at 669. When Marshall maintained that he had no sexual interest in Church, Detective Millerused a similartactical strategy. He told Marshall, "I appreciate that you told us, 

### for the most part, Ithinkyou've told us the truth and Ithinkyou're—you're avoiding the


### reason why you were knocking on the door." Ex. 23 at 54. Like the priorstatement, this statement was also calculated to see whether Marshall would change his story. Viewed

2Marshall fails to mention Notaro in his opening appellate brief. Marshall filed no reply brief. -11-72036-8-1/12 

### in context, itconveyed no personal opinions regarding Marshall's credibility, veracity, or guilt. We conclude thatthe trial court properly exercised its discretion to admit the challenged interview statements. But as discussed below, even ifwe assume thatthe court erred, we conclude the errorwas harmless beyond a reasonable doubt. Marshall argues, and the State does not dispute, thatthe constitutional harmless

error standard applies. "Aconstitutional error is harmless ifthe appellate court is assured beyond a reasonable doubt that thejury verdict cannot be attributed to the error." State v. Lui. 179 Wn.2d 457, 495, 315 P.3d 493 (2014). "Under our 'overwhelming untainted evidence' test, we look to the untainted evidence to determine if itwas so overwhelming that itnecessarily leads to a finding of guilt." Lui, 179 Wn.2d at 495 (quoting State v. Gulov. 104 Wn.2d 412, 426, 705 P.2d 1182 (1985)). Because the State fails to argue that a less stringent standard applies, we assume without deciding that the overwhelming untainted evidence test governs our inquiry. Overwhelming untainted evidence necessarily leads to a finding that 

### Marshall committed firstdegree burglary withsexual motivation.3 During closing arguments,4 defense counsel acknowledged that Marshall "admitted" entering Church's

3The trial court instructed thejury that "[a] person commits the crime of burglary inthe first degree when he enters or remains unlawfully in a building with intentto 

### commit a crime against a person or property therein, and if, inentering or while inthe building or inimmediate flighttherefrom, that person or an accomplice in the crime 

### assaults any person." It also instructed the jurythat "[s]exual motivationmeans that one 

### of the purposes for which the defendant committed the crimewas for the purpose of his sexual gratification." 

### 4We note that counsel's argument is not evidence. But he conceded the elements constituting criminal trespass and fourth degree assault. -12-72036-8-1/13 apartment, sitting on her bed, touching herfeet, and stroking her hair. RP (Jan. 17, 2013) at 464. He told thejury, "While in there, there is no question that he touched her. He admitted that. That's an assault, so that's kind ofgiven. He entered there by telling herthat he was a plumber. Shouldn't have done that. Unlawful entry." RP (Jan. 17, 2013) at 470. He said the only disputed issues were whether Marshall "entered with the intent atthat point intime that he was going to commit a crime inside," and whether "he [did] so for purposes of sexual gratification." RP (Jan. 17, 2013) at471. Our record contains overwhelming untainted evidence that Marshall entered Church's apartment with intent to commit a crime and that he committed first degree burglary with sexual motivation. Marshall drove to Church's street after having an 

### argumentwith his wife. Church testified that Marshall knocked on her door 10 to 20 minutes after her boyfriend leftthe apartment. Church heard Marshall say he was the "maintenance man." RP (Jan. 15, 2013) at 229. Shannon Glen testified that on the 

### previous day, an unfamiliar man used the same ruse, claiming he was "with maintenance" when his presence was questioned. RP (Jan. 15, 2013) at 288. Marshall admitted that he knocked on Church's door and that he pretended to be 

### a plumber. He acknowledged that he found Church "attractive." Ex. 23 at 36. Church testified that Marshall "put his hand on the door and walked through." 

### RP (Jan. 15, 2013) at 229. She said Marshall initiated a conversation. She testified, "I remember at one point feeling uncomfortable and bringing up my boyfriend." 

### RP (Jan. 15, 2013) at 233. She recalled that Marshall stared at her and walked towards her slowly. She said Marshall stroked hiscrescentwrench "[suggestively," pushed

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away her hair, and massaged her shoulder. RP (Jan. 15, 2013) at 236. Church believed she was "going to get raped." RP (Jan. 15, 2013) at 238. Marshall admitted that he thought he "touched [Church's] hair and stuff Ex. 23 at 29. He also admitted, "[A]ndthen Iguess Icommented on herfeet and stuff and the, like, her feet was like here." RP (Jan. 15, 2013) at 35. He explained: She was like sitting like right here. So Iwas like, um, "You have ni—nice toes," likew—with a pedicure and stuff. So Iwas like, "Let me see it," so then I, like, what Itell you about w—when she let me see it. She didn't say no. So, like, I reach and then itwas like re—rested right here for a minute. Ex. 23 at 39. He said, "I like touched the toes and was looking at her." Ex. 23 at40. Church testified that Marshall continued to make sexual comments even as she 

### leftthe apartment. She said Marshall "asked if my boyfriend goes down on me, because he would." RP (Jan. 15, 2013) at 240. She said she believed the comment related to "[o]ral sex." RP (Jan. 15, 2013) at 251. Officer Rush testified that when she arrived on scene, Church "seemed very 

### upset" and "lookedlike maybe she had been crying or was insomewhat of a panic orin shock." RP (Jan. 15, 2013) at 326. She said Church told her a man "had come into her apartment and had pretended to be the plumber and had started to touch her and to say 

### things that were unacceptable, inappropriate to her, and that she had panicked and escaped from him." RP (Jan. 15, 2013) at 327. When Detective Millerasked Marshall why he chose Church's apartment, 

### Marshall had no clear answer. He explained, "I didn't—I didn't like picked it, like, you 

### don—you don't understand. Ididn—I didn'tpick it." Ex. 23 at 34. When Detective Graham asked Marshall what he planned to do inside, he again answered vaguely:

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### Huh? Iwas, um, like, Iwasn—like Isaid, Ididn'tknow—whatto s—sayor nothing
... so like that was the first thing that came to my mind and then that's why Iwent to the bathroom, and then the door was open so then, like , as we started talking and stuff, like, like, we just like talking and stuff. Ex. 23 at 34-35. Marshall said he did not want to have sex with Church and claimed he 

### "wasn'ttrying to rape ornothing." Ex. 23 at 35. But he offered no explanation for his presence at Church's door otherthan his vague claim that he was confused, that he did not know what to say, and that the detectives would not understand.5 

### The untainted evidence overwhelmingly shows that Marshall used subterfuge to 

### gain access to a woman he did not know and who was alone in her apartment. During the encounter, Marshall stroked a wrench suggestively, massaged Church, and made a comment referring to oral sex. Church believed she would be raped and fled her apartment in a panicked state. On this record, we are persuaded beyond a reasonable 

### doubt that thejury verdict cannot be attributed to the error, if any, arising from the admission ofthe challenged statements discussed above. Any errorwas harmless.6



### 5During closing arguments, defense counsel told the jury, "Mr. Marshall's statement. Well, itprobably—what he explained he did doesn't make sense. He acknowledged it's crazy. He has no explanation for why he did that, otherthan he was having a fight with his wife, arguing with her." RP (Jan. 17, 2013) at469. 

### 6Marshall argues that defense counsel was ineffective infailing to have the court redactfrom exhibit 23 Detective Graham's statement on pages 17-19 and Detective Miller's "forthe most part" statement on page 54. "Adefendant claiming ineffective assistance of counsel must show that counsel's performance was objectively deficient and resulted in prejudice." State v. Emery. 174 Wn.2d 741, 754-55, 278 P.3d 653 (2012). Even ifwe assume that Marshall can overcome the strong presumption that counsel performed effectively, we conclude that Marshall cannot show prejudice. To show prejudice, Marshall has the burden to establish "'a reasonable probability that, but for counsel's unprofessional errors, the result ofthe proceeding would have been different.'" State v. Thomas. 109 Wn.2d 222, 226, 743 P.2d 816 (1987) (quoting Strickland v. Washington. 466 U.S. 668, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). As discussed above, our record contains overwhelming untainted evidence of guilt. -15-72036-8-1/16

Prosecutorial Misconduct Marshall contends the prosecutor committed misconduct during closing arguments by arguing that either he or Church lied about why Marshall's CD ended up in Church's laptop. Marshall claimed during his pretrial interview that he and Church talked about music and that Church said she liked music. He also claimed that he left the apartment to retrieve a music CD from his car and that he and Church 

### unsuccessfully attempted to play the CD on Church's laptop. During trial, Church denied talking to Marshall about music. She also claimed she discovered the CD when she returned to her apartment for the first time. The prosecutortold thejury that Marshall's version ofthe facts made no sense: And then we have the CD. The Defendant in his statement says, well, I have this CD, and Iwent back down to the car, and we liked music, and she 

### didn't know how to get it in, and that's why Iwas trying to show her. That doesn't make any sense. Tasha Church isthe one that broughtthat CD to law enforcement's attention. She is the one who when she went back upstairs said, 

### my laptop was open, and the bay was open, and the CDwas inthere, and itsays Y2K. Didn't know what itwas. Hadn't seen itbefore, brought itdown to Officer Rush. Itwas Tasha Church who took that CD and said get this out of my apartment. 

### So do you think that Tasha Church is lying aboutthat CD, or do you think thatthe Defendantwho has come with this preconceived plan about being a 

### plumber is prepared for, well, maybe ifIput this CD in and Iget caught, later on I will have a good cover story that we were talkingabout music. Either way, it doesn't matter, because Tasha Church is not lyingaboutthat CD. At no point did 

### they ever sit down and have this discussion that he claims they had about a music CD such that he would go back to his car and get a CD. 

### RP (Jan. 17, 2013) at 446-47. Defense counsel suggested that neither story was 

### completely true. Hetold the jury the evidence was open to interpretation: 

### So that really has us boiled down to Ms. Church and Mr. Marshall. That's the heartof the case. The reality of what happened in that apartmentthat day 

### mightbe somewherein between whatMr. Marshall said and whatMs. Church said, and that doesn't necessarily mean anybody is lying. You show two people
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### the same event and they will interpret itdifferently. Theywill remember it differently. They see things differently. 

### RP (Jan. 17,2013)at 463. In rebuttal, the prosecutormaintained thatonly Church's story was supported by the evidence: 

### [Defense counsel] suggested that, well, it's not necessarily that Tasha [Church] or the Defendant is lying, maybe it's a misinterpretation ofevents. No, one of them is lying. And the question that you need to answer is which one. Is itthe 

### innocent victim who is accosted in an apartment by a stranger, or is it the 

### Defendantwho lies to get in, flees from the scene, lies to hiswife, changes his clothes, cuts his hair and then lies to detectives? 

### RP (Jan. 17, 2013) at 479-80. Marshall contends the prosecutorcommitted misconduct 

### in"telling the jurors they were required to figure out who was lying inorderto decide the

case .. . ." Br. ofAppellant at 25. 

### Marshall concedes that defense counsel failed to objectto the prosecutor's argument below. It is well established that "failure to objectto 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 thejury." State v. Russell. 125 Wn.2d 24, 86, 882 P.2d 747 (1994). "In otherwords, a conviction must be reversed only ifthere is a substantial likelihood that the alleged prosecutorial misconduct affected the verdict." Russell. 125 Wn.2d at 86. Marshall has the burden to establish misconduct and resulting prejudice. State v. Anderson. 153 Wn. App. 417, 427, 220 P.3d 1273 (2009). To establish misconduct, he relies primarily on State v. Fleming. 83 Wn. App. 209, 921 P.2d 1076 (1996). In Fleming, the prosecutor implicitly argued that because the defendants submitted no evidence contrary to the victim's account of an alleged rape, thejury would have to

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### disbelieve the victim's story to acquit the defendants.7 The court concluded the argument was misconduct, reasoning that it"misstated the law and misrepresented both the role ofthejury and the burden of proof." Fleming. 83 Wn. App. at 213. Here, unlike in Fleming, the prosecutor neither argued nor implied that thejury had to disbelieve Church to acquit Marshall. We are not persuaded that the prosecutor committed flagrant and ill-intentioned misconduct. See State v. Lewis, 156 Wn. App. 230, 241, 233 P.3d 891 (2010) ("Merely asking questions ofthejury does not rise to the level of misstating the law or misrepresenting the role ofthejury and the burden ofproofas in Fleming."): see also State v. Stenson. 132 Wn.2d 668, 727, 940 P.2d 1239 (1997) ("The prosecutor has wide latitude in closing argument to draw reasonable inferences from the evidence and to express such inferences to thejury."). 

### Marshall argues, "It is highly unlikely a curative instruction could have cured the 

### flagrant, ill-intentionedand prejudicial misconduct in this case." Br. of Appellant at 28. We are not persuaded by this unsupported assertion. We note thatthe trial court instructed the jury, "Youare the solejudges ofthe credibility ofeach witness. You are 

### also the solejudges of the value or weight to be given to the testimony ofeach 

### witness. . . . [T]he lawyers' statements are not evidence." We presumethe juryfollowed

7The prosecutor in Flemingargued, "'Ladies and gentlemen of the jury, for you to findthe defendants, Derek Lee and Dwight Fleming, not guilty ofthe crime ofrape in 

### the second degree, with which each of them have been charged, based on the 

### unequivocal testimony of[D.S.] as to what occurred to her backin her bedroom that 

### night, you would have tofind either that[D.S.] has lied about whatoccurred in that bedroom or that she was confused; essentially that she fantasized what occurred back in that bedroom.'" Fleming. 83 Wn. App. at 213 (emphasis omitted) (alterations in original). -18-72036-8-1/19
these instructions. Anderson, 153 Wn. App. at428. We reject Marshall's misconduct claim.8Community Custody Conditions Marshall contends the sentencing court lacked statutory authority to impose community custody conditions 13 and 21. We review this challenge de novo. State v. Armendariz, 160Wn.2d 106, 110, 156P.3d201 (2007). Condition 13 states, "You shall not possess or consume any controlled substances without a valid prescription from a licensed physician." A statute provides, "Unless waived by the court, as part ofany term ofcommunity custody, the court shall order an offender to . . . (c) Refrain from possessing or consuming controlled 

### substances except pursuantto lawfully issued prescriptions." RCW 9.94A.703(2)(c). Butas Marshall argues, nothing in the statute authorized the court to limit potential 

### providers oflawfully-issued prescriptions to licensedphysicians.9 Accordingly, we remand with instructions to strike condition 13 from thejudgment and sentence. 

### Condition 21 states, "Do not possess or peruse any sexually explicit materials in 

### any medium. Your sexual deviancy treatment providerwill define sexuallyexplicit material. Do not patronize prostitutes orestablishments that promote the commercialization of sex." The State correctly concedes that the sentencing court 

### 8We also reject Marshall's alternative contention that defense counsel was 

### ineffective in failing to object to the prosecutor's rebuttal argument. Asdiscussed 

### above, the argument was notmisconduct. Further, Marshall fails toexplain howthe argument resulted inprejudice. 

### 9RCW69.41.030 confers prescription-writing authority on several health care 

### providers thatmay not meet thedefinition of"licensed physician." Forinstance, the statute confers prescription-writing authority on dentists.

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### lacked statutory authority to bar Marshall from possessing or perusing sexually explicit materials, since the record contains no evidence that Marshall's crime involved sexually 

### explicitmaterials.10 It also correctly concedes that the court lacked statutory authority to bar Marshall from "patronizing
. . . establishments that promote the commercialization of sex." The record again contains no evidence that Marshall's crime involved any establishments that promoted the commercialization of sex. We remand with directions to strike condition 21 from thejudgment and sentence except condition 21's unchallenged ban on patronizing prostitutes. Forfeiture of Property in Evidence Marshall challenges the portion of his sentence requiring him to forfeit "[a]ll property" taken into custody in conjunction with the case. He requests that we remand with directions to strike the forfeiture provision from his judgment and sentence. "'[A] court may refuse to return seized property no longer needed for evidence 

### only if (1) the defendant is not the rightful owner; (2) the property is contraband; or 

### (3)the property is subjectto forfeiture pursuantto statute.'" City of Walla Walla v. $401.333.44. 164 Wn. App. 236, 244, 262 P.3d 1239 (2011) (alteration in original) 

### (internal quotation marks omitted) (quotingCity of Walla Walla v. $401.333.44, 150Wn. App. 360, 367, 208 P.3d 574 (2009)). In Washington, CrR 2.3(e) governs motions for

10 Under RCW 9.94A.703(3)(f), the court may order an offenderto "[cjomplywith 

### any crime-relatedprohibitions." RCW9.94A.030(10) provides in part, "'Crime-related prohibition' means an order of a courtprohibiting conduct that directly relates to the circumstances ofthe crime for which the offender has been convicted, and shall not be 

### construed to mean orders directing an offender affirmatively to participate in 

### rehabilitative programs or to otherwise perform affirmative conduct." -20-72036-8-1/21
the return of lawfully seized property that is no longer needed for evidentiary 

### purposes.11 State v. Alawav. 64 Wn. App. 796, 798, 828 P.2d 591 (1992). Marshall failed to move below for the return of any seized property. And he fails

on appeal to specify what property, ifany, he believes should be returned. The State asserts, and Marshall does not dispute, that the only record of property in evidence is the list ofexhibits received by the trial court. We decline to speculate as to which items 

### on this list, if any, belong to Marshall and which, ifany, are subjectto return. IfMarshall believes he has a claim to any ofthe items, he may move in superior courtfor a hearing to determine that issue. CrR 2.3(e). His forfeiture claim is not properly before us on appeal. CONCLUSION Forthe reasons discussed above, we affirm Marshall's conviction. We remand 

### withdirections to strike community custody conditions 13 and 21 from the judgmentand sentence exceptfor condition 21's ban on patronizing prostitutes.

WE CONCUR: 

# 6at,T.

11 CrR 2.3(e) provides in part, "Motion for Return of Property. A person 

### aggrieved by anunlawful search and seizuremay move thecourtforthereturn ofthe property on theground that thepropertywasillegally seized and that theperson is lawfully entitled to possession thereof." (Boldface omitted.) -21-