ir.l C U." WASH!"

2015 APR-6 AH 9-* 50

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION ONE

STATE OF WASHINGTON, ) No. 70799-0-1

)

Respondent, )

)

v. ) UNPUBLISHED OPINION

)

CHARLES V. LEE, )

) Appellant. ) FILED: April 6, 2015

Schindler, J. — The State charged Charles V. Lee with two counts of rape of a

child in the first degree and two counts of child molestation in the first degree. A jury

convicted Lee of the one count of rape of a child in the first degree that the mother

witnessed. Lee seeks reversal, arguing the court erred in admitting child hearsay and

excluding evidence. Lee also argues the jury instruction defining "reasonable doubt"

misstated the law, the prosecutor committed misconduct in closing argument, the

evidence does not establish an element of the crime, and cumulative error requires

reversal. In the alternative, Lee challenges the community custody conditions restricting

his Internet usage and requiring him to submit to plethysmograph testing. We remand

to strike the community custody condition restricting Internet use. In all other respects,

we affirm.
No. 70799-0-1/2

FACTS

M.N. was born in December 2000. In 2007, M.N. and her mother, R.N., lived in

an apartment in Mill Creek. R.N. has two older children, A.N. and C.W. A.N. lived with

his grandmother and C.W. had been in foster care since 1998.

R.N. met Charles V. Lee in 2007 or early 2008. R.N. became pregnant, and A.L.

was born in November 2008. R.N. continued to have a relationship with Lee after A.L.

was born and gave Lee a key to her apartment. Lee often went to the apartment to

spend time with A.L. M.N. and Lee did not always get along. M.N. would get mad when

her mother agreed with Lee. R.N. told Lee that M.N. had previously "made up an

allegation of sexual assault" against another man.

On November 11, 2010, R.N. questioned nine-year-old M.N. about "things [that]

had gone missing" around the house. In response, M.N. told her mother that the day

before, Lee "sexually assaulted her." R.N. testified M.N. told her Lee "fondled her

breasts, that he's played with her breasts and that he had intercourse with her, that

went inside her vagina." M.N. also told R.N. that Lee "did something in her mouth and

she spit it out."

R.N.'s friend Sandy Grant drove M.N. and R.N. to the hospital. M.N. told Grant

that she had been "touched." R.N. told the police what M.N. had reported to her. But

R.N. told the police that M.N. "has accused others of also touching her which turn out to

be unfounded." The examination of M.N. did not reveal evidence of physical trauma.

On November 16, M.N. met with a Child Interview Specialist with the Snohomish

County Sherriffs Office, Amanda Harpell-Franz. Harpell-Franz asked M.N. why she

came to see her. M.N. responded, "My sister's dad. . . . Charles." M.N. told Harpell-
No. 70799-0-1/3

Franz that she did not want to talk about what happened because "I think it's

inappropriate." M.N. said it was "[sjomething that happened . . . [m]ore than one time"

in her bedroom and "in the living room also." M.N. told Harpell-Franz that her mom was

"[c]hecking the mail" when it happened and that she could "tell [Harpell-Franz] the last

word of what it was. . . . Assault." When Harpell-Franz asked her what "assault" meant,

M.N. said it was what she "got told some of it was." M.N. said she was nine-years-old

the last time "something inappropriate happened."

A Washington State Department of Social and Health Services Child Protective

Services (CPS) worker met with R.N. and Lee. R.N. agreed not to leave M.N. alone

with Lee.

On July 2, 2011, R.N., A.L., and 10-year-old M.N. were sleeping together in

R.N.'s bedroom. M.N. was sleeping on the floor next to the bed. Around 8:00 or 9:00

a.m., Lee let himself into the apartment, went into the bedroom, and laid down on the

bed near M.N. M.N. said Lee put his hands inside her sweat pants and began touching

the inside of her vagina. M.N. testified she "didn't know what to do" so she rolled over

onto her side facing away from Lee. R.N. woke up briefly. After R.N. went back to

sleep, Lee told M.N. to change into a dress and go to the living room. M.N. put on a

dress with flowers and went to the living room. Lee made M.N. lean over the couch with

her stomach against the cushions. Lee stood behind M.N., pushed her dress up, and

put his penis in her vagina. When R.N. walked into the living room, Lee stopped. R.N.

called the police, and then took M.N. to the hospital. CPS placed M.N. and A.L. in

foster care.
No. 70799-0-1/4

The State charged Lee with rape of a child in the first degree on July 2, 2011,

Count I; rape of a child in the first degree "on or about the 9th day of November, 2010,"

Count II; and two counts of child molestation in the first degree that occurred between

June 2010 and November 8, 2010, and between June 18, 2011 and July 1, 2011, Count

III and Count IV. Lee entered a plea of not guilty.

Before trial, the court held a hearing to determine whether M.N. was competent

to testify and whether the statements M.N. made to R.N., Grant, and Harpell-Franz were

admissible. M.N., R.N., Grant, and Harpell-Franz testified at the hearing.

During the child competency hearing, M.N. answered general questions and

questions about telling the truth and telling a lie. M.N. admitted that in 2008, she falsely

accused a family friend of "sexual assault" and she "lied in the past." M.N. testified she

used to hear voices "telling me to kill myself but after taking medication, she had not

heard the voices for several months.

M.N. testified she was telling the truth about what Lee did. M.N. said she

sometimes had trouble remembering things but that she remembered Lee sexually

assaulting her and remembered some of the details, stating, "I remember how some of

it happened, but I don't remember how all of it happened."1

The court concluded M.N. was "clearly" competent to testify under the Allen2

factors. The court then held a hearing on whether the out-of-court statements M.N.

made were admissible.

1A Department of Social and Health Services Children's Administration social worker testified

that M.N. "has an Axis One diagnosis of [post-traumatic stress disorder], chronic," and was on a wait list

for a residential treatment placement.

2 State v. Allen. 70 Wn.2d 690, 424 P.2d 1021 (1967).
No. 70799-0-1/5

Harpell-Franz testified that she asked non-leading questions and followed all

protocols during her interview with M.N. on November 16, 2010. The State introduced

into evidence and played portions of the video of the interview. Harpell-Franz testified

that she previously interviewed M.N. in 2008. Harpell-Franz said that during both

interviews, she talked about telling the truth, and M.N. promised to tell the truth.

Grant testified that she met M.N. and R.N. in 2009. Grant said she became

friends with the family and was "becoming like a second parent to [M.N]." Grant testified

that M.N. "seemed like a truthful child" and M.N. was "very truthful in some cases."

Grant said that in late 2010, R.N. said M.N. had made an allegation of sexual abuse.

Grant testified M.N. "said that she was sexually molested by Mr. Charles." Grant said at

the time, she "didn't know who Mr. Charles was."

Grant said that a week or two after the visit to the hospital in November 2010,

she was talking to M.N. "about school and stuff." Grant said that during the

conversation, M.N. told her that "sometimes Mr. Charles would touch her

inappropriately." The prosecutor asked Grant if M.N. brought up the allegations against

Lee "spontaneously." Grant said, "No. Like Isaid, we were having a conversation and

we were talking about school."

R.N. testified that M.N. was sometimes truthful and sometimes not truthful. "[I]f

she likes you, she will be completely honest. If she doesn't like you, she may make

things up and just go from there." R.N. said, "There were days" when M.N. and Lee

"were like best friends," and then "there were days like they hated each other." R.N.

testified Lee "was alwaystelling me howto parent [M.N.], how Ishould discipline her

and this and that," and M.N. "would get really angry and upset." R.N. said there were
No. 70799-0-1/6

also "some jealousy issues regarding the way [Lee] treated [A.L.] and the way he

treated [M.N.]."

R.N. said she was "shocked" by what M.N. told her in November 2010 and she

had no prior suspicion that Lee had sexual contact with M.N. R.N. said M.N. had made

prior allegations of sexual assault against her biological father, her brother A.N., a

neighbor, a family friend, and R.N.'s ex-boyfriend. R.N. testified M.N. made the prior

allegations "over four years ago," before A.L. was born in 2008. R.N. said M.N. later

told her the neighbor and the family friend did not abuse her. R.N. testified that M.N.

never told her the same thing about Lee. R.N. said she told CPS in November 2010

that she did not believe M.N., but that was before she saw Lee sexually assaulting M.N.

on July 2, 2011.

The parties stipulated to the admission of a Mill Creek Police Department

officer's report and agreed the court could consider it as evidence. In the November 11,

2010 report, OfficerTara Hoflack states R.N. told her M.N. had been "acting up lately

and things have been disappearing around the apartment." R.N. told Officer Hoflack

that M.N. "was acting a little strange as if she may be hiding something," and "[d]ue to

her behavior, [R.N.] asked [M.N.] if Lee had done something to her." In response, M.N.

told R.N. that "Lee had sexually assaulted her the night before."

Lee's attorney submitted copies of a 2011 interview with a child interview

specialist concerning M.N.'s accusations against Lee, the 2010 interview with HarpellFranz concerning her accusations against Lee, the 2008 interview with Harpell-Franz,

and a 2007 interview between M.N. and another child interview specialist. Lee's

attorney also submitted a transcript of the 2013 defense interview with M.N., medical
No. 70799-0-1/7

records, a copy of the witness statement R.N. gave police in November 2010, and a

transcript of the defense interview with Grant.

After evaluating the evidence under RCW 9A.44.120 and the nine Ryan3 factors,

the court concluded the statements M.N. made to R.N., Grant, and Harpell-Franz in

November 2010 were admissible.

During the six-day jury trial, a number of witnesses testified, including M.N., R.N.,

Grant, Harpell-Franz, and the nurse who examined M.N. at the hospital in 2010 and

2011. The court admitted into evidence the video of the November 16, 2010 interview

with Harpell-Franz.

M.N. testified that when she first met Lee, she thought he was "a pretty okay

guy." M.N. told the jury the first time Lee raped her was when she was nine-and-a-halfyears-old. M.N. testified that it made her body feel "[g]ross." M.N. said Lee raped her

"almost every day except for Sunday." When the prosecutor asked M.N. what she

meant by "rape," M.N. replied, "Penis in the vagina." M.N. testified that Lee also put his

penis in her mouth and "anus." M.N. said it usually happened in the living room but "[i]t

sometimes happened in other rooms in the house, like, my room and the kitchen and

the bathroom." M.N. said sometimes it happened when R.N. was "checking the mail."

M.N. said that when Lee was abusing her, she was "[s]cared" and in pain.

M.N. testified that the last time Lee raped her was July 2011. M.N. said that

when R.N. walked into the living room and saw Lee hurting her, R.N. told Lee to "get

out," and that Lee said he was "just showing her how it would be if [he] actually was

raping her."

3 State v. Ryan. 103 Wn.2d 165, 691 P.2d 197 (1984).

7
No. 70799-0-1/8

M.N. admitted that she used to "lie a lot." M.N. testified that she lied about the

family friend sexually assaulting her in 2008 because she "wanted him to stay in jail

because of what he did to my friend." M.N. said she did not remember telling anyone

that her father or the neighbor sexually abused her. M.N. testified that her brother, A.N.,

sexually abused her when she was six-years-old. M.N. said that her mother's exboyfriend also sexually abused her. M.N. admitted that she cut herself "[o]n the outside"

of her vagina because she was scared of "[b]eing hurt again." M.N. said that she

stopped cutting herself before she met Lee.

R.N. testified that Lee and M.N. did not get along. R.N. testified that M.N. "made

it known that she didn't like [Lee], and she would pretty much do whatever she could to

undermine anything or anything he said or how anyone else felt pretty much." R.N.

could recall only one time when Lee spent the night at her apartment after A.L. was

born. R.N. testified that after M.N. accused Lee of abusing her in 2010, she never left

M.N. and A.L. alone at the apartment with Lee.

R.N. testified about what she saw when she walked into her living room on July

2, 2011. R.N. testified that M.N. was "on her hands and knees bent over the green

couch. [Lee is] behind her, his hand down his pants playing with himself." M.N.'s "head

was in the couch" and she looked like "she was crying or getting ready to cry." R.N.

said she went back to her bedroom and Lee followed her, telling her that "it's not what it

looks like and this and that." R.N. testified that when she asked Lee what he was doing,

Lee said, "Well, she needs to know — she asked me how they do it." R.N. testified that

she was "shocked, numb," and that she did not call the police right away because she
No. 70799-0-1/9

"wanted to have my composure together before I could do it because it wasn't going to

be easy because he's the father of [A.L.]"

On cross-examination, R.N. testified that M.N. "has a history of dishonesty and

theft" and that she likes attention. R.N. also acknowledged that M.N. had made

previous accusations of sexual abuse that she later admitted were not true. R.N.

testified that in 2005 when M.N. was five-years-old, M.N. said her father sexually

abused her. R.N. testified that in 2008, seven-year-old M.N. was present when R.N.

was sexually assaulted by an acquaintance in her apartment. R.N. said she took M.N.

with her to the hospital for a sexual assault examination.

Nurse Practitioner Paula Newman-Skomski examined M.N. on November 11,

2010 and on July 2, 2011. Newman-Skomski testified that she did not observe any

indications of physical trauma to M.N.'s vaginal area in 2010, but said that she was

unable to fully examine M.N. because she "retracted up the table." Without objection,

Newman-Skomski testified that in 2010, M.N. told her, "My sister's dad had sex with

me." When Newman-Skomski asked what M.N. meant by that, M.N. said, "[Ojral and

anal."

Newman-Skomski testified that during the July 2, 2011 examination, M.N. told

her that Lee "put his private parts in my privates. . . . Both front and back." M.N. said,

"When I tried to tell him it hurt, he said it wouldn't in a couple minutes. He does it every

Saturday." M.N. told Newman-Skomski the last time it had happened was that morning

when she was laying on the floor in her mom's room and Lee "reached down and tried

to get in my pants. Iturned away. Then we went out to the living room."
No. 70799-0-1/10

Newman-Skomski testified that M.N.'s injuries in 2011 were consistent with

sexual trauma. Newman-Skomski said that M.N. had two "genital injuries with abrasion

of the labia minora at 10:00, fossa laceration at 6:00," and a "possible hymenal injury at

3:00." Newman-Skomski testified that M.N. indicated the abrasions were painful when

touched with a Q-tip cotton swab. Newman-Skomski testified M.N.'s rectum had an

"increased area of redness" and tenderness, and M.N. reported having diarrhea and

rectal bleeding, both of which were consistent with anal penetration. Newman-Skomski

said that M.N. told her she had not taken a shower after the assault and that she was

still wearing the same underwear she had on at the time of the assault. NewmanSkomski took swabs from M.N. and collected M.N.'s underwear.

The defense called several witnesses, including the nurse who examined M.N. in

2007 for sexual assault and a shelter case manager who testified Lee was a resident at

the shelter from 2010 to the summer of 2011. The principal of the elementary school

M.N. attended in fourth grade and a social worker at the same elementary school

testified that M.N. "had a reputation for not being honest." Washington State Patrol

Crime Laboratory analyst Mariah Lowtestified that she tested the swabs and underwear

collected from M.N. in 2011 and did not find any male DNA4 or detect any semen or

saliva on the samples tested.

The jury found Lee not guilty of the charges of rape of a child in the first degree,

alleged to have occurred "on or about" November 9, 2010, Count II; and not guilty of

both counts of child molestation in the first degree alleged to have occurred in 2010 and

2011, Count III and Count IV. The jury found Lee guilty of the charge of rape of a child

in the first degree on July 2, 2011, Count I.

4 Deoxyribonucleic acid.

10
No. 70799-0-1/11

The court imposed an indeterminate sentence of 114 months to life and imposed

a number of community custody conditions.

Lee appeals.

ANALYSIS

Child Hearsay

Lee contends the court erred in ruling M.N.'s hearsay statements to R.N., Grant,

and Harpell-Franz in November 2010 were admissible under RCW 9A.44.120 and State

v. Ryan, 103 Wn.2d 165, 691 P.2d 197 (1984).

We review a court's admission of child hearsay statements under RCW

9A.44.120 for abuse of discretion. State v. Beadle. 173Wn.2d97, 111-12, 265 P.3d

863 (2011). Because only the trial court has the opportunity to see and evaluate the

child and the other witnesses, it is in the best position to determine the reliability of child

hearsay statements. State v. Pham. 75 Wn. App. 626, 631, 879 P.2d 321 (1994).

Accordingly, "[t]he trial court is necessarily vested with considerable discretion in

evaluating the indicia of reliability." State v. C.J., 148 Wn.2d 672, 686, 63 P.3d 765

(2003). The court abuses its discretion when it bases its decision on unreasonable or

untenable grounds. C.J.. 148 Wn.2d at 686. We review the factual findings supporting

the admission for substantial evidence. State v. Halstien, 122 Wn.2d 109, 128, 857

P.2d 270 (1993). Substantial evidence is evidence sufficient to persuade a fair-minded

rational person of the truth of the premise asserted. Halstien, 122 Wn.2d at 129.

Under RCW 9A.44.120(1), a statement by a child under the age of 10-years-old

describing sexual contact is admissible ifthe "time, content, and circumstances of the

statement provide sufficient indicia of reliability." In Ryan, the court identified nine

11
No. 70799-0-1/12

factors to determine reliability: (1) whether there is an apparent motive to lie, (2) the

declarant's general character, (3) whether more than one person heard the statements,

(4) whether the statements were spontaneous, (5) the timing of the declaration and the

relationship between the declarant and the witness, (6) whether the statement contains

express assertions about past facts, (7) whether cross-examination could show the

declarant's lack of knowledge, (8) whether the possibility that the declarant's

recollection is faulty is remote, and (9) whether the circumstances surrounding the

statement are such that there is no reason to suppose the declarant misrepresented the

defendant's involvement. Ryan, 103 Wn.2d at 175-76; see also State v. Swan. 114

Wn.2d 613, 647-48, 790 P.2d 610 (1990).

We consider the Ryan factors as a whole; no single factor is decisive. State v.

Young, 62 Wn. App. 895, 902, 802 P.2d 829, 817 P.2d 412 (1991). The statements

need to only substantially meet these factors. State v. Woods. 154 Wn.2d 613, 623-24,

114P.3d 1174(2005).

Here, the trial court engaged in an extensive analysis of each of the Ryan factors

in determining the hearsay statements M.N. made in November 2010 were admissible.

The court found factor one, an apparent motive to lie; factor two, general character; and

factor nine, no reason to suppose misrepresentation, did not support finding M.N.'s

statements were reliable.

The first of the so-called Ryan factors is whether the child has a motive to

lie. And as I think was noted, this factor is at least somewhat related to

also the last factor, whether the circumstances surrounding the statement

are such that there is no reason to suppose the declarant misrepresented

the defendant's involvement. They are slightly different, but also related.

Both of these factors the Court sees as generally favoring the

defense's position. . . .

12
No. 70799-0-1/13

. . . [I]t does appear that the child did have issues with the

defendant which arguably are separate from any allegations of child

abuse. And Ithink the record has been developed in that regard. And I

think the mother herself talked of kind of a love-hate relationship. There

were apparent reasons, regardless of their merit, for why the child disliked

Mr. Lee and arguably had then a motive to lie against him.

And also in specifically the context of these statements themselves,

as ultimately was reflected in evidence admitted at the close of this

hearing by stipulation as to what one of the officers reported, the mother

apparently told the officer that [M.N.] had been acting up lately, and things

had been disappearing from around the house. And she then asked ifthe

defendant had done something. That Ithink was the gist of what the

officer had reported.

The fact that [M.N.] had been acting up and things were missing

suggest that [M.N.] may have had a motive to divert attention from those

issues and raise allegations of a different and very serious nature

regarding Mr. Lee.

Without, again, elaborating in great detail on this point, the Court

does see that as to factors one and nine regarding the child's motives, on

balance those factors do tend to support the defense position.

As does factor number two. Again, without describing this point in

great detail, suffice itto say, the child has issues about truthfulness and

otherwise, and this is a factor which supports the defense position as well.

As the court correctly noted, the sixth factor, whether the statement contains an

expressed assertion of past fact, is now "usually viewed as a non-factor" under the case

law because "statements virtually always include assertions of fact." See Swan, 114

Wn.2d at 650-51 (child hearsay statements about sexual abuse typically contain

statements about past fact). As to factor seven, whether the child's lack of knowledge

could be established through cross-examination, the court also noted that in Woods, the

Supreme Court "indicate[d] that this is largely a non-factor where the child testifies."

See Woods. 154 Wn.2d at 624 (stating, "Factor seven applies in cases where the child

declarant is unavailable to testify").

Lee challenges the court's determination that factor three, whether more than

one person heard the statements; factor four, spontaneity; factor five, timing; and factor

13
No. 70799-0-1/14

eight, the possibility of faulty recollection, supported finding the statements were reliable

and admissible at trial. The court found factor three, whether more than one person

heard the child's statements, significant.

I think it is particularly significant here in that independently with the

interviews of Amanda Harpell[-Franz] and Sandy Grant that the child used

the term inappropriate. These interviews occurred days apart. The fact

that both witnesses heard the child use that same term is at least of some

significance.

Now, [defense counsel] raised as a threshold issue the vagueness

of these statements in an argument that they should not be considered at

all. Ultimately the Court might agree in some other context. But given the

context here where allegedly the child had already made a more specific

disclosure to her mother, one can reasonably infer and conclude that the

reference to inappropriate contact was, given the context here, describing

acts of sexual contact, albeit in a rather general manner.

The record supports the finding that M.N. independently told three people, her

mother, Grant, and Harpell-Franz, that Lee had sexual or "inappropriate" contact with

her. Lee seems to suggest that this factor should be discounted because M.N. had

previously made false allegations of abuse that she later retracted. But the record

shows that M.N. made consistent statements to multiple people that Lee abused her

and never retracted her allegations. "[W]hen more than one person hears a similar

story of abuse from a child, the hearsay statement is more reliable." State v. Kennealy,

151 Wn. App. 861, 883, 214 P.3d 200 (2009).

The court concluded the fourth factor, whether the child's statements were made

spontaneously, was "very important here," and also weighed in favor of admissibility.

The key is to whether the response of the child is elicited by means of

leading or suggestive questions and answers.

The key here with all these statements is the first person allegedly

to hear the disclosure, the mother. And as reflected by the stipulated

statement through the officer, the mother apparently did pose a question

to the child as to whether the defendant had done something. But this

was posed in a very general and open-ended way. The mother herself

14
No. 70799-0-1/15

could not provide today on the witness stand much about the

circumstances of the disclosure, and that is of concern to the Court.

But the overall picture that is painted here is one where the mother

would not have been seeking to pose leading or suggestive questions to

the child. As she did testify, the mother had no prior suspicions of the

defendant doing any such alleged sexual abuse. She testified that she

was surprised by her daughter's disclosure. Indeed, she went on to testify

that at that time or around this time, thinking back to November 2010, she,

in fact, did not believe her child's statements about Mr. Lee. That may

have significance for other purposes. But on this issue, it would

circumstantially indicate that she was not seeking by means of leading or

suggesting to the child that she make sexual abuse disclosures about Mr.

Lee.

Likewise, the other statements to Sandy Grant and Amanda

Harpell[-Franz] are of such a nature that this factor serves to support the

State's position regarding them. Here, too, the circumstances that Ms.

Grant described about the disclosure at the hospital are not crystal clear.

But the evidence does indicate that this is not a situation where Sandy

Grant sought to put words in the child's mouth, but, instead, that term

inappropriately was one that apparently the child offered.

As to the interview with Amanda Harpell-Franz, Exhibit 3 describes

obviously the interview at length. It is fair to say that as an experienced

child interviewer, Ms. Harpell-Franz did seek to ask open-ended

questions. And the disclosures, to the extent that they were made, were

made spontaneously as that term has been interpreted regarding this

fourth Ryan factor.

The record supports the court's finding that M.N.'s statements were

spontaneous. A child's statements are spontaneous "so long as the questions are not

leading or suggestive." Young, 62 Wn. App. at 901. Although R.N. specifically asked

M.N. if Lee did something to her, R.N. did not ask leading or suggestive questions about

sexual contact. R.N. testified that she was "shocked" when M.N. told her what Lee had

done and that she did not suspect Lee of abusing M.N. R.N. also testified that unlike

previously, M.N. never told R.N that Lee did not sexually abuse her.

The record shows that Harpell-Franz asked open-ended questions, and Grant did

not know who Lee was at the time M.N. told her about the abuse in the context of a

discussion about school. Although Grant testified that M.N. did not make the allegations

15
No. 70799-0-1/16

against Lee "spontaneously," it is clear from the context of her testimony that Grant

simply meant M.N. made the allegation during their conversation about school, not that

her questions were leading or suggestive.

The court found that factor five, the timing of the declaration and the relationship

between the declarant and the witnesses; and factor eight, the possibility of the

declarant's faulty recollection being remote, weighed in favor of admissibility.

In terms of the timing of the declaration and whether the possibility of the

declarant's faulty recollection being remote, Ithink it has essentially been

conceded by the defense that the alleged sexual abuse recited in these

statements did come close in time to these interviews. So that is a factor

which generally favors the State.

As to the relationship between the declarant and these witnesses,

that's a complicated question. And there are indeed aspects which will

favor the defense here. But certainly as to Amanda Harpell-Franz, the

Court sees her as a neutral figure. I understand [defense counsel's

arguments in this respect, but Ithink the witness's testimony made clear

that her role was viewed by her, Ms. Harpell-Franz, as being a reporter of

what the child has to say and to try to reflect that in as unbiased and openended fashion as she could.

Again, the relationships of the other witnesses — Ms. Grant and the

mother — obviously they are much closer to this child. And that gives rise

to concerns which would tend to favor the defense. But as already noted,

particularly regarding the mother, these two witnesses were ones who

were not predisposed to want to believe or accept such allegations.

And so, on balance, the Court views five and eight as generally

tending to favor the State.

The court's conclusion that factor five and factor eight weighed in favor of

admissibility is supported by the record. Substantial evidence supports the finding that

the statements M.N. made were close in time to the alleged sexual abuse, and the

possibility of M.N. having a faulty recollection was remote. The record also supports the

finding that the relationship between M.N. and the witnesses weighed in favor of

admissibility. When the witness is in a position of trust with the child, this factor is likely

to enhance the reliability of the child's statement. Swan, 114 Wn.2d at 650; but see

16
No. 70799-0-1/17

Ryan. 103 Wn.2d at 176 (concluding children's statements to their mothers lacked

trustworthiness in part because the mothers were told prior to questioning the children

of the probability the defendant had abused their children and were thus predisposed to

believing they had been abused).

M.N. had a close relationship with her mother and Grant, and the record shows

that neither R.N. nor Grant was predisposed to believing M.N. had been sexually

abused. Harpell-Franz was a professional trained in interviewing sexually abused

children.

After carefully weighing the evidence and balancing the Ryan factors, the court

determined that there were sufficient indicia of reliability to admit M.N.'s hearsay

statements.

As recited, there are certainly significant factors in favor of the defense.

There are also significant factors in favor of the State. On balance,

particularly given that key factor, number four, regarding spontaneity, as

that term has been applied, the Court respectfully concludes that there is

sufficient indicia of reliability to allow admissibility of the three sets of

statements which I have identified under the child hearsay statute [RCW]

9A.44.120.

In addition, the court noted the statements themselves were "not very detailed or

specific" and "may be less important than in many cases of this type." The court also

noted that unlike "where the child hearsay portion of the case is clearly huge and

sometimes almost determinative," M.N. would be subject to cross-examination at trial

"at great length and I expect with a fair amount of leeway with the Court."

Substantial evidence supports the finding that factors three, four, five, and eight

supported admission of the November 2010 hearsay statements M.N. made to R.N.,

Grant, and Harpell-Franz.

17
No. 70799-0-1/18

Lee argues that even iffour of the factors favor admissibility, the court

erred in concluding that the Ryan factors were "substantiality met." Lee contends

that "at best," a "mere plurality" of factors supported reliability. But, as we noted

earlier, "not every factor listed in Ryan needs to be satisfied before a court will

find a child's hearsay statements reliable under the child victim hearsay statute."

Swan, 114 Wn.2d at 652; see Young. 62 Wn. App. at 902; Woods. 154Wn.2dat

623-24; see also In re Dependency of A.E.P., 135 Wn.2d 208, 230-31, 956 P.2d

297 (1998); Ryan, 103 Wn.2d at 176-77. We conclude the court did not abuse its

discretion by admitting M.N.'s statements.

Exclusion of Evidence of Policy at M.N.'s School

Lee asserts the court abused its discretion by excluding evidence that the

elementary school principal would not allow staff to be alone with M.N.

We review the decision to exclude evidence for abuse of discretion. State v.

Posey, 161 Wn.2d 638, 648, 167 P.3d 560 (2007). A trial court abuses its discretion

when it bases its decision on untenable grounds or reasons. State v. Nguyen. 131 Wn.

App. 815, 819, 129 P.3d 821 (2006). An abuse of discretion occurs only when no

reasonable person would take the view adopted bythe trial court. State v. Atsbeha, 142

Wn.2d 904, 913-14, 16 P.3d 626 (2001). A trial judge, not an appellate court, is in the

best position to evaluate the prejudicial effect and relevancy of evidence. Posey, 161

Wn.2d at 648.

18
No. 70799-0-1/19

The defense called the principal of the elementary school M.N. attended in fourth

grade to testify about M.N.'s reputation for truthfulness. The principal testified that she

met with M.N. regarding "two distinct allegations" of "sexual abuse or abuse," and that

"[t]here were inconsistencies" in M.N.'s statements. The principal also testified M.N.

"had not been honest with [her]" on several occasions, and M.N. had "a reputation for

not being honest."

Defense counsel then asked the principal whether she "instituted a policy in her

building where staff were not allowed to be alone with [M.N.]" The prosecutor objected

as an improper comment on M.N.'s "disposition for truthfulness or untruthfulness." The

court sustained the objection, ruling that it was "a comment upon an individual's

veracity" and, in any event, defense counsel had already "elicited from this witness . ..

questions and answers about [M.N.'s] reputation for truthfulness."

"A witness's expression of personal belief about the veracity of another witness is

inappropriate opinion testimony in criminal trials." State v. Perez-Valdez, 172 Wn.2d

808, 817, 265 P.3d 853 (2011). "Opinion testimony" is testimony" 'based on one's

belief or idea rather than on direct knowledge of the facts at issue.'" State v. Demery,

144 Wn.2d 753, 760, 30 P.3d 1278 (2001) (quoting Black's Law Dictionary 1486 (7th

ed. 1999)). Comments on the credibility of a key witness are improper because issues

of credibility are reserved for the trier of fact. Demery. 144 Wn.2d at 759.

The court did not abuse its discretion in excluding the testimony regarding the

school policy. The testimony amounted to improper opinion testimony on veracity.

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No. 70799-0-1/20

Reasonable Doubt Jury Instruction

Lee challenges the jury instruction defining "reasonable doubt," 11 Washington

Practice: Washington Pattern Jury Instructions: Criminal 4.01, at 85 (3d ed.

2008). Lee claims the court erred by instructing the jury that "[i]f, from such

consideration, you have an abiding belief in the truth of the charge, you are satisfied

beyond a reasonable doubt." Lee relies on State v. Emery. 174 Wn.2d 741, 278 P.3d

653 (2012), to argue the "belief in the truth" language improperly misstates the jury's

role and "encourages the jury to undertake an impermissible search for the truth." We

disagree.

The Washington Supreme Court has expressly approved of this instruction as a

correct statement of the law. In State v. Fedorov. 181 Wn. App. 187, 199-200, 324 P.3d

784 (2014), we recently considered and rejected the same argument. See State v.

Bennett. 161 Wn.2d 303, 317-18, 165 P.3d 1241 (2007); State v. Pirtle. 127 Wn.2d 628,

656-58, 904 P.2d 245 (1995). In Fedorov, we held that the "abiding belief language in

the instruction was not the equivalent of the improper "speak the truth" remarks made

by the State during closing in Emery. Fedorov. 181 Wn. App. at 200; Emery. 174

Wn.2d at 751; see also Bennett. 161 Wn.2d at 317-18; Pirtle, 127 Wn.2d at 656-58. We

adhere to our decision in Fedorov.

Prosecutorial Misconduct

Lee contends prosecutorial misconduct during closing argument requires

reversal. Lee asserts the prosecutor improperly stated a personal opinion and vouched

for M.N.'s credibility. Lee also contends the prosecutor improperly shifted the burden of

proof and commented on his right to not testify.

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No. 70799-0-1/21

To prevail on a claim of prosecutorial misconduct, a defendant must show the

conduct was both improper and prejudicial. State v. Lindsay. 180 Wn.2d 423, 440, 326

P.3d 125 (2014). The court considers a claim of prosecutorial misconduct in the context

of the entire argument, the issues in the case, the evidence, and the instructions given

to the jury. Emery, 174 Wn.2d at 764 n.14. The prosecutor's improper comments are

prejudicial" 'only where there is a substantial likelihood the misconduct affected the

jury's verdict.'" State v. Yates. 161 Wn.2d 714, 774, 168 P.3d 359 (2007)5 (quoting

State v. McKenzie. 157 Wn.2d 44, 52, 134 P.3d 221 (2006)).

During closing argument, a prosecutor has wide latitude to draw reasonable

inferences from the evidence and may freely comment on the credibility of the

witnesses based on the evidence. State v. Stenson, 132 Wn.2d 668, 727, 940 P.2d

1239(1997).

As long as the prosecutor does not directly refer to the defendant's decision not

to testify, the prosecuting attorney may comment on the lack of defense evidence.

State v. Borboa, 157 Wn.2d 108, 123, 135 P.3d 469 (2006).

It is improper for a prosecutor to personally vouch for the credibility of a witness.

Lindsay, 180 Wn.2d at 437. "Improper vouching occurs when the prosecutor expresses

a personal belief in the veracity of a witness or indicates that evidence not presented at

trialsupports the testimony of a witness." State v. Thorgerson, 172 Wn.2d 438, 443,

258 P.3d 43 (2011). But the prosecutor is allowed to argue that the evidence does not

support a defense theory and is entitled to make a "fair response to the arguments of

defense counsel." State v. Russell. 125 Wn.2d 24, 87, 882 P.2d 747 (1994).

Emphasis in original.

21
No. 70799-0-1/22

Lee contends the prosecutor improperly vouched for M.N.'s credibilityduring

rebuttal by arguing that the State did not get to choose the victim from "central casting."

During closing argument, defense counsel focused almost exclusively on M.N.'s

credibility. For example, the defense argued:

This is a sad story about a little girl with a lot of issues and need for

attention and need for affection. A lot of issues. And about the web that

she spun, she got caught up in it. Mr. Lee sure got caught up in it. But it's

a web of falsehoods.

The defense also argued M.N. had a history of "acting out" and making sexual

allegations before her allegations against Lee.

[M.N.] told us about her behavior, and she told us about her

behavior before [Lee] ever came into her life. So as much as [the

prosecutor] would like you to believe that all of her acting out was a result

of some abuse by Mr. Lee, it predated him. Her [oppositional defiant

disorder] diagnosis was when she was four years old. Her self-harm was

before [Lee]. Her vaginal self-harm was before [Lee]. Her history of

sexual allegations was before [Lee].

During rebuttal, the prosecutor responded to the argument and acknowledged

the child's past trauma.

I don't pick the folks who come here and talk about the things that

have been done to them. I don't go to central casting and try to find cute

seven-year-old kids who have no trauma — who have no previous trauma

in their lives. I don't go to central casting.

The court overruled the defense objection.

[DEFENSE]: Objection, Your Honor. The first person is

improper. Personal opinion is not allowed in argument.

THE COURT: No personal attributions by either counsel

are appropriate. Given the context, ... I will have you continue with your

argument.

The prosecutor's statement in rebuttal was not improper. The prosecutor is

entitled to respond to the arguments of defense counsel. Russell, 125 Wn.2d at 87.

22
No. 70799-0-1/23

Defense counsel raised the issue of M.N.'s credibility and argued she should not be

believed because of her previous history of acting out and making false allegations.

The "central casting" statement was a fair response to the defense argument and an

attempt to point out that M.N. had previous trauma in her life but that history was not a

reason to disbelieve her. The argument does not vouch for M.N.'s veracity or imply that

the prosecutor believed M.N.'s allegations against Lee.

United States v. Smith. 962 F.2d 923 (9th Cir. 1992), and State v. Stith, 71 Wn.

App. 14, 856 P.2d 415 (1993), are distinguishable.

In Smith, the prosecutor assured the jury that the State's key witness could not

say "whatever he wanted to say" as defense counsel suggested because he would

prosecute the witness for perjury if he did so. Smith, 962 F.2d at 928.6 The court held

that this remark "constituted the sort of personal and institutional guarantee that the law

forbids" because itsuggested the prosecutor believed the witness's testimony was true.

Smith. 962 F.2d at 933. The prosecutor further "reinforced this message with repeated

comments aimed at establishing his own veracity and credibility as a representative of

the government," such as stating that his job was "not to seek a conviction but rather to

guarantee a fairtrial and turn over any favorable evidence to the defense," and that "if I

did anything wrong in this trial Iwouldn't be here. The court wouldn't allowthat to

happen." Smith, 962 F.2d at 933-347 The court reversed, concluding the prosecutor's

comments as a whole were not invited and "placed the prestige of the law enforcement

branch of government behind his conduct of the trial and behind [the witnesses

testimony." Smith, 962 F.2d at 936.

6 Internal quotation marks omitted.

7 Internal quotation marks omitted, alteration omitted.

23
No. 70799-0-1/24

In Stith. the prosecutor alluded to the defendant's prior drug offense in closing

and stated that the defendant was "just coming back and he was dealing again." Stith,

71 Wn. App. at 16.8 In rebuttal, the prosecutor then told the jury:

Our system has incredible safeguards that would not allow a case like this

to come to court ifsomehow the police acted improperly. So the question

of probable cause is something the judge has already determined before

the case came before you today.

Stith, 71 Wn. App. at 17.9

This court reversed, concluding the statements were "flagrantly improper" and

"[t]aken together... not only implied that the trial was a useless formality because the

real issues had already been determined but also directly stated that [the defendant]

was out on the streets, dealing again." Stith. 71 Wn. App. at 22-23.

Lee also contends the prosecutor improperly shifted the burden of proof and

commented on his right to not testify during rebuttal.

The State must prove the elements of the charged crime beyond a reasonable

doubt. In re Winship. 397 U.S. 358, 361, 90 S. Ct. 1068, 25 L Ed. 2d 368 (1970). It is

improper for the prosecutor to argue that the defendant carries the burden of proof.

Thorgerson, 172 Wn.2d at 453. A defendant has no duty to present evidence, and it is

error for the State to suggest otherwise. State v. Cheatam, 150 Wn.2d 626, 652, 81

P.3d 830 (2003). It is also improper for a prosecutor to comment on the defendant's

failure to testify. A comment on a defendant's right to remain silent occurs when the

State uses the defendant's exercise of his Fifth Amendment rights as either substantive

evidence of guilt or to suggest that his silence is an admission of guilt. State v. Lewis,

130 Wn.2d 700, 704-05, 707, 927 P.2d 235 (1996).

8 Internal quotation marks omitted.

9 Internal quotation marks omitted.

24
No. 70799-0-1/25

Here, in response to the defense closing argument, the prosecutor addressed

each of the reasons the defense attorney cited as to why M.N.'s testimony was not

credible. The prosecutor then argued, "What was not discussed in closing argument,

what we didn't hear about was what the defendant did. We didn't hear an explanation

about what the defendant —." Defense counsel objected. The court sustained the

objection and instructed the jury to "disregard" the argument. Because the trial court

instructed the jury to disregard the comment, Lee cannot establish prejudice. We

presume the jury follows the instructions of the court. State v. Kirkman, 159 Wn.2d 918,

928, 155P.3d 125(2007).

Proof of Rape of a Child in the First Degree

Lee contends that because the State failed to prove he was not married to M.N.,

insufficient evidence supports the conviction for rape of a child in the first degree under

RCW 9A.44.073.

We review a claim of sufficiency of the evidence to determine " 'whether any

rational fact finder could have found the essential elements of the crime beyond a

reasonable doubt.'" State v. Drum, 168 Wn.2d 23, 34-35, 225 P.3d 237 (2010) (quoting

State v. Wentz. 149 Wn.2d 342, 347, 68 P.3d 282 (2003)). A challenge to the

sufficiency of the evidence necessarily admits the truth of the State's evidence and all

reasonable inferences that can be drawn from that evidence. Drum. 168 Wn.2d at 35.

Circumstantial and direct evidence are equally reliable in determining sufficiency of the

evidence. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980).

To establish Lee was guilty of rape of a child in the first degree, the State had the

burden of proving beyond a reasonable doubt that Lee had "sexual intercourse with

25
No. 70799-0-1/26

another who is less than twelve years old and not married to the perpetrator and the

perpetrator is at least twenty-four months older than the victim." RCW 9A.44.073(1).

First, as a matter of law, Lee could not have been married to M.N. The evidence

established M.N. was less than 11-years-old at the time of the charged crime. Every

marriage in Washington where either person is under 17-years-old is void. RCW

26.04.010(2). Viewed in the light most favorable to the State, the evidence also

established R.N. was M.N.'s mother, Lee and R.N. were in a relationship, and Lee and

R.N. had a child together. A rational trier of fact could conclude that Lee was not

married to M.N. at the time of the charged crimes.

Cumulative Error

Lee contends cumulative error denied him a fair trial. Under the cumulative error

doctrine, trial errors that do not warrant a new trial by themselves may warrant a new

trial when considered cumulatively. State v. Greiff, 141 Wn.2d 910, 929, 10 P.3d 390

(2000). Because there were no errors, the cumulative error doctrine does not apply.

Community Custody Conditions

Lee challenges two of the community custody conditions imposed by the court.

We review whether a court had the statutory authority to impose a community custody

condition de novo. State v. Armendariz. 160 Wn.2d 106, 110, 156 P.3d 201 (2007). A

court may impose only a sentence authorized by statute. State v. Barnett, 139 Wn.2d

462, 464, 987 P.2d 626 (1999). A" '[cjrime-related prohibition' . . . directly relates to the

circumstances of the crime for which the offender has been convicted." RCW

9.94A.030(10); State v. Land. 172 Wn. App. 593, 605, 295 P.3d 782 (2013).

26
No. 70799-0-1/27

Lee contends the community custody condition prohibiting Internet access and

allowing a search of any computer he uses is not crime related and must be stricken.10

The State concedes that because there is no evidence the charged crime involved the

use of a computer or the Internet, this condition is not crime related. We accept the

State's concession as well taken. See State v. O'Cain. 144 Wn. App. 772, 775, 184

P.3d 1262 (2008) (condition prohibiting Internet access is not crime related where the

record shows Internet usage was not related to the crime).

Lee relies on Land to argue the condition that requires him to submit to

plethysmograph testing is not authorized by statute and is unconstitutional.

In Land, this court held that a condition requiring an individual to submit to

plethysmograph testing subject only to the discretion of a community corrections officer

violates a defendant's constitutional right to be free from bodily intrusions. Land, 172

Wn. App. at 605. We concluded that while plethysmograph testing "can properly be

ordered incident to crime-related treatment by a qualified provider," the testing "may not

be viewed as a routine monitoring tool subject only to the discretion of a community

corrections officer." Land, 172 Wn. App. at 605.

In State v. Riles. 135 Wn.2d 326, 343-45, 957 P.2d 655 (1998), abrogated on

other grounds by State v. Valencia. 169 Wn.2d 782, 239 P.3d 1059 (2010), the

Washington Supreme Court upheld conditions reguiring plethysmograph testing as part

of the defendant's sexual deviancy treatment.11 The court concluded that

10 Condition 11 states, "Do not access the Internet on any computer in any location, unless such

access is approved in advance by the supervising Community Corrections Officer and your treatment

provider. Any computer to which you have access is subject to search."

11 The text of the community custody condition approved of in Riles states, "Submit to polygraph

and plethysmograph testing upon the request of your therapist and/or Community Corrections Officer, at

your own expense." Riles, 135 Wn.2d 337 (italics omitted).

27
No. 70799-0-1/28

plethysmograph testing is "a treatment device that can be imposed as part of crimerelated treatment or counseling." Riles. 135 Wn.2d at 345. However, "[i]t is not

permissible for a court to order plethysmograph testing without also imposing crimerelated treatment" because "[p]lethysmograph testing serves no purpose in monitoring

compliance with ordinary community placement conditions." Riles. 135 Wn.2d at 345.

Here, in accord with Riles, the court ordered Lee to participate in plethysmograph

testing as part of his sexual deviancy treatment and subject to the approval of Lee's

"sexual deviancy therapist." Conditions 12 and 14 state:

12. Participate and make progress in sexual deviancy treatment.

Follow all conditions outlined in your treatment contract. Do not change

therapists without advanced permission of the sentencing Court.

14. Participate in plethysmograph and polygraph examinations as

directed by the supervising Community Corrections Officer, to ensure

conditions of community custody. Plethysmographs should only be

administered with approval of Defendants sexual deviancy therapist.

Reading the conditions together, it is clear that the community corrections

officer's authority to direct plethysmograph testing is limited to sexual deviancy

treatment. Unlike in Land, the plethysmograph testing is not subject "only to the

discretion of a community corrections officer." Land, 172 Wn. App. at 605.

We also reject Lee's argument that the plethysmograph condition violates his

constitutional right to be free from bodily intrusion. "Although a 'defendant's

constitutional rights during community placement are subject to the infringements

authorized by the [Sentencing Reform Act of 1981, chapter 9.94A RCW],'" a restriction

on a fundamental right is constitutional only if it is "reasonably necessary to accomplish

the essential needs of the state and the public order." Riles, 135 Wn.2d at 350 (quoting

28
No. 70799-0-1/29

State v. Ross. 129Wn.2d 279, 287, 916 P.2d 405 (1996)). The plethysmograph testing

condition is reasonably necessary to achieve a compelling state interest, namely,

protecting the public. Because the condition can only be administered for treatment

purposes and only with the "approval of [Lee]'s sexual deviancy therapist," it is also

narrowly drawn.

We remand to strike the community custody condition restricting Lee's Internet

use. In all other respects, we affirm.

WE CONCUR:

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29