IN THE COURT OFAPPEALS OF THE STATE OFWASHINGTON

STATE OFWASHINGTON, No. 78045-0-I Respondent, DIVISION ONE
v. UNPUBLISHED OPINION ERIC SHAWN THOMAS, Appellant. FILED: May 28, 2019 CHuN, J.

—The State originally charged EricThomas with one count of voyeurism. After obtaining a search warrantforThomas’s cell phone, police found video showing a separate incident ofvoyeurism, which gave rise to a second charge. Thomas moved to suppress the video, claiming the warrantwas overbroad. The trial court denied the motion. Thomas appeals his conviction on both counts ofvoyeurism, renewing the warrant issue and claiming ineffective assistance of counsel and prosecutorial misconduct. Thomas also appeals the imposition ofcertain community custody conditions. Because the warrant provision provided clear parameters to the executing officer, and Thomas fails to establish his otherclaims, we affirm. BACKGROUND On May 1, 2017, K.H. and D.C. were engaging in sexual intercourse inside the bedroom of K.H.’s apartmentwhen K.H. saw someone looking through her partially-closed blinds. K.H. screamed and D.C. pulled on pants and ran outNo. 78045-0-1/2

the door. D.C. ran intothe alley behind the apartment. D.C. looked overthe seven-footfence adjacent to the apartment building, and sawThomas crouching
on the otherside with a cell phone in hand. Seeing the cell phone, D.C. assumed Thomas had been filming them. D.C. told Thomas tojump overthe fence and Thomas complied. Thomas told D.C. he had been urinating behind the building. The two had a verbal altercation. K.H. came outside and called 911. During the call, D.C. provided a physical description to the police. Thomas walked down the street and into anotherapartment complex. Seattle Police OfficerChristopher Shoul responded to the call. Officer ShouT took statementsfrom D.C. and K.H., while another police unit patrolled the
area looking forThomas. After Officer Shoul finished investigating atthe scene, he located Thomas sitting at a nearby bus stop. Thomas told Officer ShouT he had been watching basketball playoffs and drinking at a barwith some friends. After being told one ofthe victims would come byto identify him, Thomas eventuallytold OfficerShoul that he had gone around the building to urinate and heard two people “having sex.” Thomas said he looked and said “wow.” Officer ShouT returned to the apartment and took D.C to the bus stop to identifyThomas. D.C. positively identified Thomas. Anotherofficerarrested and transported Thomas to the police station, where his cell phone was placed into evidence. Seattle Police assigned Detective Scott Hatzenbuehlerto the case. Thomas told Detective Hatzenbuehlerthe following version ofevents: He had

2No. 78045-0-113

been drinking beers and watching a playoff game with some friends at a bar in the area. He walked to the bus stop afterthe game, but missed the bus. While sitting atthe bus stop, Thomas had to use the restroom and walked around the back ofan apartment building to relieve himself. While relieving himself, Thomas heard ‘some sex going on.” Then Thomas heard someone atthe windowyelling. Soon after, a man came running out and accused Thomas ofwatching them. Thomas was not video recording and there was nothing ofthat nature on the phone.Detective Hatzenbuehlerapplied forand obtained a search warrantfor Thomas’s cell phone. The search warrant permitted a search ofThomas’s phone to find evidence related to its use on May 1,2017 including calls, messages, photographs, videos, and location data. The warrant also allowed fora search for“[p]hotographs of [K.H.] or [D.C.], orany parts ofa male orfemale that could be [K.H.] or [D.C.], orof [K.H.’s] apartment building, whetherthe interioror exteriorofthat building,” and “any other information that is evidence ofthe above-listed crime(s),” without date restriction. Aspecially-trained detective extracted the data from the cell phone. Upon receiving the data, Detective Hatzenbuehler began looking forvideo1 or images pursuantto the warrant. Looking forevidence ofvoyeurism, Detective Hatzenbuehlerfirst scrolled through the videos and saw a thumbnail image from

1 Despite the warrant provision’s limitation to photographs,” Detective Hatzenbuehler searched forvideos. Thomas does not objectto the search on this ground. NeitherThomas nor the State distinguishes between photographs and videos in theirarguments. Because there is no meaningful difference between photographs and videos in this context, we also do not distinguish between them in our analysis. 3No. 78045-0-1/4

video 19 showing window blinds with what looked like a light on inside and darkness outside. Detective Hatzenbuehler played the short, 20-second video. The video, dated April 4, 2017 appeared to showvoyeuristic activity on the part ofthe person recording. Although Detective Hatzenbuehler believed the evidence was within the scope ofthe warrant, he decided to obtain an addendum to the warrant in case he found additional evidence.2 Upon examination, video 19 appeared to be shot through a window and showed a woman sitting at a computer. The woman never looked in the direction ofthe recording. Detective Hatzenbuehler later determined the woman in the videowas C.W., who lived in the same apartment building as, andjust next doorto, K.H. The State originally charged Thomas with one count ofvoyeurism. After discovery ofthe video of C.W., the State amended the information to include a second count ofvoyeurism. In pretrial motions, Thomas attempted to suppress the video of C.W., arguing Detective Hatzenbuehler exceeded the scope ofthe warrant and obtained the video pursuantto an overbroad warrant. The trial court denied the motion.During trial, Thomas moved fora mistrial due to admission ofan audio recording ofthe 911 call. The trial court also denied this motion. Thejuryfound Thomas guilty on both counts.3 Thomas now appeals.

2Thomasdoes not raise any claims related to the warrant addendum.

~ Below, additional pertinentfacts are introduced as needed forthe individual issues.
4No. 78045-0-1/5

ANALYSIS

A. Search Warrant Thomas argues the trial court erroneously admitted the video of C.W., because police obtained itthrough an overbroad search warrant.4 Thomas claims this results in insufficient evidence to convict on Count II and prejudice as to Count I, requiring reversal for both counts. The State contends police found the video ofC.W. pursuantto a sufficiently particularsearch warrant. Because the warrant provided clear parameters to the executing officer, we agree with the State. Cell phones are ‘private affairs” under article I, section 7 ofthe Washington State Constitution, requiring a warrant oran applicable exception for
a lawful search. State v. Samalia, 186 Wn.2d 262, 268, 375 P.3d 1082 (2016). The Fourth Amendmentto the United States Constitution requires a warrantto describe with particularitythe things to be seized. State v. Higgins, 136 Wn. App. 87, 91, 147 P.3d 659 (2006). This requirement exists to “make a general search ‘impossible and prevent[] the seizure ofone thing undera warrant describing another.” State v. McKee, 3Wn. App. 2d 11, 22, 413 P.3d 1049 (2018) (quoting Marron v. United States, 275 U.S. 192, 196, 48 S. Ct. 74, 72 L. Ed. 231 (1927)), rev’d on othergrounds, No. 96035-6 (Wash. Apr. 22, 201 9), http://www.courts.wa.gov/opinions/pdf/960356.pdf). Particularity also eliminates

~ During oral argument, Thomas’s counsel noted that Detective Hatzenbuehler“arguably” did not actoutside the warrant. Ratherthan argue Detective Hatzenbuehleracted outside the warrant, Thomas assigned errorto the language ofthe warrant and argued overbreadth. Wash. Court ofAppeals oral argument, State v. Thomas No. 78045-0-I (April 16, 2019), at2 mm., 47 sec. through 2 mm., 59 sec. (on file with court). 5No. 78045-0-116

unlimited discretion in the executing officer’s determination ofwhatto seize, and informs the person subjectto the search ofwhat items the officer may seize. State v. Besola, 184Wn.2d 605, 610-11 359 P.3d 799 (2015). The degree of particularitydepends on the nature ofthe materials sought and the facts ofthe
case. State v. Keodara, 191 Wn. App. 305, 313, 364 P.3d 777 (2015). “In general, Washington courts have recognized thatthe search of computers orotherelectronic storage devices gives rise to heightened particularity concerns.” Keodara, 191 Wn. App. at 314. This heightened particularityarises because advances in technology and the centrality of computers in the lives ofaverage people have rendered the computer hard drive akin to a residence in terms ofthe scope and quantity of private information it may contain.” United States v. Galpin, 720 F.3d 436, 446 (2nd Cir. 2013). “A properly issued warrant ‘distinguishes those items the State has probable cause to seize from those it does not,’ particularlyfor a search of computers ordigital storage devices.” Keodara, 191 Wn. App. at 314 (quoting Statev. Askham, 120 Wn. App. 872, 879, 86 P.3d 1224 (2004)). An overbroad warrant lacks the requisite particularity. See Keodara, 191 Wn. App. at 312. Three factors assist in determining whetherawarrant suffers from overbreadth: “(1) whether probable cause exists to seize all items ofa particulartype described in the warrant, (2) whether the warrant sets out objective standards bywhich executing officers can differentiate items subject to seizure from those which are not, and (3) whetherthe governmentwas able to describe the items more particularly in light of the information available to it atthe time the warrantwas issued.”~5~

~This opinion refers to these as the ‘Higgins factors.”
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Higgins, 136 Wn. App. at 91-92 (internal quotation marks omitted) (quoting United States v. Mann, 389 F.3d 869, 878 (9th Cir. 2004)). Courts evaluate search warrants “in a commonsense, practical manner, ratherthan in a hypertechnical sense.” State v. Perrone, 119 Wn.2d 538, 549, 834 P.2d 611 (1992) (citing United States v. Turner, 770 F.2d 1508, 1510 (gth Cir. 1985) cert. denied, 475 U.S. 1026 (1096)). “The underlying measure of adequacy in a description is whether, given the specificity ofthe warrant, a violation of personal rights is likely.” Keodara, 191 Wn. App. at 313. “A search warrant must be definite enough thatthe executing officer can identifythe propertysoughtwith reasonable clarity and eliminate the chance thatthe executing officerwill exceed the permissible scope ofthe search.” State v. McKee, 3 Wn. App.2d at 28-29. Appellate courts reviewde novo a trial court’s probable cause and particularity determinations on a motion to suppress. Keodara, 191 Wn. App. at 312. Admission ofevidence obtained in violation ofthe state orfederal constitution amounts to an errorofconstitutional magnitude. Keodara, 191 Wn. App. at 317. Here, Thomas alleges overbreadth based on the provision ofthe original warrant authorizing a search ofThomas’s cell phone for ‘[p]hotographs of [K.H.]
or [D.C.], orany parts ofa male orfemale that could be [K.H.] or [D.C.], or of [K.H.’s] apartment building, whetherthe interior orexterior ofthat building.”6 This

6 During oral argument, counsel raised an issue ofoverbreadth as to an additional warrant provision allowing search ofthe cell phone for“[a]ny other information that is evidence of the above-listed crimes(s).” Wash. Court ofAppeals oral argument, State v. Thomas No. 78045- 0-I (April 16, 2019), at 3 mm., 1 sec. through 3 mm., 29 sec. (on file with court). However, 7No. 78045-0-118

provision ofthe warrant did not limitthe search to the specific date ofthe incident. Thomas argues the lack ofa date restriction caused the warrantto fail the Higgins factors and allowed forsearch and seizure ofdata without regard to its connection to the crime on May 1, 2017. Thomas likens this case to Keodara, which involved a fatal shooting at a bus stop. 191 Wn. App. at 311. Five weeks afterthe shooting and based on an unrelated incident, the police obtained a search warrant authorizing search ofthe defendant’s cell phone fora broad range ofcell phone data, including all call activity, photographs, videos, documents, and internet activity, based on the police officer’s beliefthat gang members’ phones often contain evidence of criminal activity. Keodara, 191 Wn. App. at 309-10. The cell phone contained images ofthe defendantwearing clothes similarto those ofthe bus stop shooter and the State charged the defendantwith murder. Keodara, 191 Wn. App. at 311. The defendant moved to suppress all evidence from the phone for lack of probable cause. Keodara, 191 Wn. App. at 311. The supporting affidavit relayed onlythe officer’s knowledge ofgang members’ use oftheir phones to document theiractivities. Keodara, 191 Wn. App. at 310-11. The warrant authorized the search forstored information, and “any and all otherevidence suggesting the crimes listed above [assault in the fourth degree, unlawful possession of firearms, possession with intentto deliverorsell narcotics.]” Keodara, 191 Wn.
Thomas’s briefing addresses onlythe specific photograph provision. We do not consider arguments made outside the briefing. RAP 10.3.

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App. at 309-10. This courtfound the warrant overbroad because, “{t]here was no limit on the topics of information forwhich the police could search. Nordid the warrant limitthe search to information generated close in time to the incidents for which the police had probable cause.” Keodara, 191 Wn. App. at 316. Similarly, McKee, 3Wn. App.2d at 29, involved a warrant authorizing a “physical dump” ofthe phone’s memory. During an investigation ofsexual exploitation ofa minorand dealing in depictions ofa minorengaged in sexually explicit conduct, police obtained a warrant authorizing a search forall images, videos, documents, calendars, call logs, and otherdata. McKee, 3 Wn. App.2d at29. “The warrant gives the police the rightto search the contents ofthe cell phone and seize private information with no temporal orother limitations.” McKee, 3 Wn. App.2d at29. This allowed a search ofgeneral categories ofdata without objective standards to guide the police executing the warrant. McKee, 3 Wn. App.2d at29. As a result, the warrantfailed to meetthe particularity requirement ofthe Fourth Amendment. McKee, 3Wn. App.2d at 29. In Keodara and McKee, the warrants lacked particularity because they allowed forsearches ofa broad range ofdata without a data ordate restriction. However, neither Keodara nor McKee hold that a warrant must include both data and date restrictionsto satisfythe particularity requirement. Rather, the warrants in the cases lacked either limitation, and therefore suffered from overbreadth. As noted in McKee, the warrant gave police “the rightto search the contents ofthe cell phone and seize private information with no temporal orother limitation.” 3 Wn. App.2d at 29 (emphasis added).
9No. 78045-0-I/iC

Unlike the wide-ranging warrants in Keodara and McKee, the warrant in this case provided specific, case-related limits to the search. Most ofthe warrant provisions limited the search to digital information from May 1,2017. The provision at issue lacked a date restriction but included a data restriction that limited the search onlyto images depicting D.C., K.H., K.H.’s apartment building,
or“any parts ofa male orfemale that could be” K.H. or D.C. With this data restriction, the warrant resembles the one upheld in Askham. 120 Wn. App. at 879. In Askham, the warrant allowed forseizure ofa wide range ofdigital storage, including computers, drives, disks, and other memory storage. 120 Wn. App. at 879, While the warrant allowed search ofa broad categoryof material, it specified the files and applicationsforsearch. Askham, 120 Wn. App. at 879. The warrant listed textfiles related to the victim, specific internet sites, graphic images and image files, and textfiles relating to manipulation ofdigital images. Askham, 120 Wn. App. at 879. With these established parameters, “[t]he warrant’s description left no doubt as to which items were to be seized and was ‘not a license to rummageforany evidence ofany crime.” Keodara, 1 91 Wn. App. at 314 (quoting Askham, 120 Wn. App. at 880). As a result ofthis specification offiles subjectto search, the warrant satisfied the particularity requirement. With its limitation to photographs of D.C., K.H., K.H.’s building, and “any parts ofa male orfemale that could be” K.H. or D.C., the warrant provision at issue in this case includes even more restrictive language than in Askham. The warrant allowed Detective Hatzenbuehlerto search solelyforthose particular
10No. 78045-0-Ill I

images on the cell phone. The search was more akin to the physical search ofa box of photographs than an examination ofthe entire digital contents ofa cell phone as found in Keodara and McKee. Ratherthan allowing law enforcement to rummage through a wide range of private information thatThomas might have had on his phone, the provision focused on the category of images. In examining these images, “[a] degree offlexibility is required.” See United States v. Abboud, 438 F.3d 554, 576 n.7 (6th Cir. 2006). This includes flexibility as to dates as “evidence that date{s] from outside ofthe time period’ described in the warrant affidavit ‘may be relevantto the activitywithin the time period.” United States v. Manafort, 313 F.Supp.3d 213, 235, (D.D.C. 2018) (quoting Abboud, 438 F.3d at 576, n.7). The United States Supreme Court has recognized that ‘proofofsimilaracts is admissible to show intent orthe absence of mistake.” Andresen v. Maryland, 427 U.S. 463, 483, 96 5. Ct. 2737, 49 L.Ed.2d 627 (1976). In this case, images of K.H., D.C., and K.H.’s building from priordates are relevantto the crime charged forthis very reason. The State relied on the April video of C.W. to argue thatThomas purposefullywent behind to building to look in the windows.7 Here, the warrant did not allowfora broad search offiles for photographs
orvideos unrelated to the crime at issue orviolate the Higgins factors. The warrant provided clear parameters to the executing officer. Detective Hatzenbuehlercould not legally search for images depicting other people in other

~The defense did not objectto the State’s use ofthis evidence during closing argument and rebuttal. 11No. 78045-0-1/12

places; ifvideo 19 depicted C.W. in a different building, the evidence would have been outside the original warrant. Therefore, the warrantwas not overbroad. B. IneffectiveAssistance of Counsel Thomas argues ineffective assistance oftrial counsel based on the proposal ofan incorrectjury instruction and the inadvertent admission of potentially damaging evidence from a 911 call. While counsel erred in both respects, Thomas cannot demonstrate prejudice as a result ofthose errors. Effective assistance ofcounsel is guaranteed bythe Sixth Amendment of the United States Constitution and article I, section 22 ofthe Washington Constitution. State v. Hendrickson, 129 Wn.2d 61, 77, 917 P.2d 563 (1996). To prevail on a claim of ineffective assistance oftrial counsel, a defendant must prove both deficient performance and prejudice. State v. Jones, 183 Wn.2d 327, 339, 352 P.3d 776 (2015). Establishing deficient performance requires a showing that counsel’s representation fell below an objective standard of reasonableness based on all the circumstances. State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987). Prejudice sufficientto supporta claim of ineffective assistance of counsel occurs when counsel’s errors were so serious as to deprive the defendant ofa fairtrial. Hendrickson, 129 Wn.2d at 78. The defendant must showa ‘reasonable probabilitythat, butforcounsel’s errors, the result ofthe trial would have been different.” Hendrickson, 129 Wn.2d at 78. A claim of ineffective assistance of counsel is a mixed question of lawand factthat an appellate court reviews de novo. Jones, 1 83 Wn.2d at 338-39.
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1. Jury Instruction Thomas alleges trial counsel provided ineffective assistance ofcounsel by proposing inaccurate and incomplete lesser included offense instructions. The State argues Thomas cannot establish the prejudice necessaryto support an ineffective assistance claim. We agree with the State. Jury instructions must not be misleading and must properly inform the trier offact. State v. Grimes, 92 Wn. App. 973, 978, 966 P.2d 394 (1998). “Thejury is presumed to read the court’s instructions as a whole, in light ofall other instructions.” Statev. Hutchinson, 135 Wn.2d 863, 885, 959 P.2d 1061 (1998). Additionally, the appellate court reviews individual jury instructions in the context ofthe instructions as a whole. State v. Tyler, 191 Wn.2d 205, 216, 422 P.3d 436 (2018).Here, the trial court issued instruction 10, defining voyeurism: A person commits the crime of voyeurism when, forthe purposes of arousing or gratifying the sexual desire of any person, the person knowinglyviews orphotographs orfilms a second person withoutthe second person’s knowledge and consent, and while the second person is beingviewed orphotographed orfilmed, thesecond person is in a place where he or she would have a reasonable expectation of privacy. (Emphasis added.) The trial court also gave a to-convict instruction for voyeurism as instruction 15. Defense counsel proposed lesser included offense instructions for attempted voyeurism in the first degree.8 The trial court subsequently provided

8Although counsel proposed the instruction, the invited errordoctrine does not bar Thomas’s argumentfor ineffective assistance based on this issue. State v. Kyllo, 166 Wn.2d 856, 861, 215 P.3d 177 (2009). ‘If instructional error is the result of ineffective assistance ofcounsel, the invited error doctrine does not preclude review.” ~ 166 Wn.2d at 861. In otherwords, the 13No. 78045-0-1/14

the suggested instructions on attempted voyeurism in the first degree. The trial court instructed, “A person commitsthe crime ofattempted Voyeurism in the first degreewhen, with the intentto committhat crime, [they do] any actthat is a substantial step toward the commission ofthat crime.” (Emphasis added.) The court also gave the following to-convict instruction: To convictthe defendant ofthe crime of attempted voyeurism in the first degree, each of the following elements of the crime must be proved beyond a reasonable doubt: (1) That on orabout May 1, 2017, the defendant did an actthatwas a substantial step toward the commission of voyeurism in the first degree; (2) Thatthe actwas done with the intentto commitvoyeurism in the first degree; and (3) Thatthe act occurred in the State ofWashington. (Emphasis added.) However, when Thomas committed the crimes in April and May 2017, voyeurism in the first degree did not exist. Former RCW 9A.44. 115 established onlythe single crime ofvoyeurism. The legislature amended ROW 9A.44. 115 and divided the crime ofvoyeurism into first and second degree offenses in 2017, effective July23, 2017. LAws OF2017, ch. 292, sec. 1. Thomas’s trial occurred in 2018, afterthe effective date ofthe statute establishing the crime ofvoyeurism in the first degree. Therefore, defense counsel successfully proposed jury instructions fora crime that existed atthe time oftrial but did not pertain to Thomas based on the dates of his offenses. Additionally, the lesser included offense instructions referto voyeurism in the first degree, while the main offense
invited errordoctrine does not applywhere the errorat issue serves as the basis foran ineffective assistance claim.

14No. 78045-0-1115

instructions, instructions 10 and 15, referto voyeurism ratherthan voyeurism in the first degree. Despite the erroneous instructions on attempted voyeurism in the first degree, Thomas cannot demonstrate a “reasonable probabilitythat, butfor counsel’s errors, the result ofthe trial would have been different.” Hendrickson, 129 Wn.2d at 78. The elements forvoyeurism underformer ROW9A.44. 115 are identical to those forvoyeurism in the first degree underthe amended statute ROW 9A.44.11 5(2)(a). Regardless ofthe name, thejury received the correct definition and elements forthe lesser included offense. Furthermore, thejury instructions included onlythe single definition of voyeurism given in instructions 10 and 15. Thejury had no otherdefinition of voyeurism before t. Because the onlydefinition provided the correct elements of the law, the likelihood ofconfusion was minimal. Taking thejury instructions as a whole, the onlydefinition given forvoyeurism properly informed thejury ofthe applicable law. Thomas has not shown thatthe instructions created any confusion forthejury. As a result, his ineffective assistance claim on this ground faiIs. 2. 911 Oall Priorto trial, Thomas brought a motion in limine to preclude the witnesses from testifying that he, oranyone else, looked through K.H.’s window on prior occasions. The State did not object, and the trial court granted the motion. During trial, the State played the entirety ofthe recorded 911 call placed by K.H. during the incident. On the recording, K.H. states, “I’ve seen him before
15No. 78045-0-1/16

in ourwindow,” and “he watches me.” D.C. also says, ‘[H]e’s done this before.”~ Afterthejury heard the audio recording, defense counsel requested a sidebar and moved fora mistrial. The trial court subsequently denied the mistrial and admonished counsel, “I was a little taken aback, because I feel that itwas incumbent on the counsels to knowthe evidence that’s being presented before the court.” Defense counsel declined a curative instruction forfear itwould call attention to the statements. The parties agreed to redactthe recording in case thejury requested to listen to it again. The trial court admitted the redacted version into evidence to substitute forthe original, butthejury did not askto hear the call again. Thomas argues ineffective assistance due to trial counsel’s failure to reviewthe 911 call for potentially damaging statements and objectto its admission on propergrounds. The State contends Thomas cannot demonstrate the requisite prejudice because thejury may not have heard the statements and the statements were essentially cumulative ofthe video ofC.W. We agree with the State. Through muffled statements on the 911 call, thejury potentially learned that Thomas had been outside K.H.’s apartment priorto May 1, 2017. However, C.W. and K.H. have neighboring windows in the apartment building. Admission ofvideo ofC.W., taken from the same location outside their neighboring apartmentwindows on April 4, 2017, provided essentiallythe same information to

~ The trial court did not hearthe statementswhen the recording was played forthejury. The trial court only discerned the statements after listening again outside of proceedings. 16No. 78045-0-1/17

thejury. The State repeatedly referred to the April date ofthe video. Therefore, admissible evidence placed Thomas outside of C.W. and K.H.’s bedroom windows within the month priorto the incident. Additionally, the video ofC.W. and the erroneous evidence from the 911 call both negated Thomas’s defense of happenstance. The video of C.W. demonstrated thatThomas had been behind the building on a prioroccasion, making his presence on May 1, 2017 less likely related to his emergent need to find a place to urinate. The statements from the 911 call established that Thomas watched K.H. on prioroccasions, allowing forthe conclusion that he did not randomly decide to urinate in that location. As a result, the 911 call provided redundant evidence to negate Thomas’s claims. Because the video ofC.W. taken from outside their neighboring windows demonstrated Thomas’s prior presence outside of K.H.’s window and negated any claim of mistake, the statements in the 911 call amounted to cumulative evidence. Thomas fails to demonstrate ‘reasonable probabilitythat, butfor counsel’s errors, the result ofthe trial would have been different.” Hendrickson, 129 Wn.2d at 78. Therefore, Thomas cannot show prejudice to support ineffective assistance ofcounsel on this ground. C. Prosecutorial Misconduct Thomas claims the prosecutorcommitted misconduct during closing argument by undermining the presumption of innocence. The State argues that
an objection and instruction from the courtwould have cured any prejudice resulting from the prosecutor’s comment. While we agree thatthe prosecutor’s

17No. 78045-0-1118

statements amountto an error of law, Thomas fails to demonstrate the prejudice required fora successful claim of prosecutorial misconduct. To prevail on a claim ofprosecutorial misconduct, the defendant must prove thatthe prosecutor’s comments were improperand prejudicial. State v. Yates, 161 Wn.2d 714, 774, 168 P.3d 359 (2007). “The burden to establish prejudice requires the defendantto prove that ‘there is a substantial likelihood [that] the instances ofmisconduct affected thejury’s verdict.” State v. Thorgerson, 172 Wn.2d 438, 442-43, 258 P.3d 43(2011) (quoting State v. Maqers, 164 Wn.2d 174, 191, 189 P.3d 126 (2008)). Failure to objectto a prosecuting attorney’s improper remark constitutes a waiver ofthe error unless the remark is so flagrant and ill-intentioned thatthe resulting prejudice could not have been neutralized by a curative instruction. State v. Elmore, 139 Wn.2d 250, 292, 985 P.2d 289 (1999). “Any allegedly improperstatements should be viewed within the context ofthe prosecutor’s entire argument, the issues in the case, the evidence discussed in the argument, and thejury instructions.” State v. Dhaliwal, 150 Wn.2d 559, 578, 79 P.3d 432 (2003).During closing argument, the prosecutortold thejury, “Now, the defendant carries the presumption of innocence in this case and that presumption continues until you go backto thejury room.” Thomas contends the prosecutor’s statement denied him a fairtrial by suggesting to thejurythatthe presumption of innocence “evaporates” once deliberation begins.

18No. 78045-0-1/1 9
Indeed, the prosecutor’s statementthatthe presumption of innocence “continues until you go backto thejury room” misstated the law. See State v. Reed, 168 Wn. App. 553, 578, 278 P.3d 203 (2012); State v. Evans, 163 Wn. App. 635, 643, 260 P.3d 934 (2011); State v. Veneqas, 155 Wn. App. 507, 524- 25, 228 P.3d 813 (2010). Ratherthan ending atthejury room door, “The presumption of innocence continues throughoutthe entire trial and may be overcome, ifat all, only during deliberations.” Evans, 163 Wn. App. at 643. Any statement that invites thejuryto disregard the presumption upon deliberation “seriously dilutes the State’s burden of proof.” Evans, 163 Wn. App. at 644. To the extent thatthe prosecutor’s comment suggested the presumption of innocence continued only until thejurors began deliberations, it constituted an improper remark. However, because Thomas did not objectto this statement during trial, he has waived the error“unless the remark is soflagrant 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). Thomas argues the misconduct incurably prejudiced him because the prosecutor urged thejurors to treatThomas’s out-of-court statements as any otherwitness statement, requiring temporary coexistence with the presumption of innocence. According to Thomas, the prosecutor’s argument suggested the jurors cast aside the presumption of innocence. While the statementsuggested thatjurors could disregard the presumption of innocence upon deliberation, this

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court recently addressed a similarstatement and found a curative instruction would have neutralized any resulting prejudice. See Reed, 168 Wn. App. at 579. In Reed, the prosecutorstated ‘the presumption of innocence ‘does last all the way until you walk intothat [jury] room and start deliberating.” 168 Wn. App. at 578. Reed did not objectto this statement during trial. Reed,168 Wn. App. at 578. There, as here, the statement amounted to an incorrect statement ofthe law by suggesting the presumption of innocence dissipated atthe beginning ofdeliberations. Reed, 168 Wn. App. at 578. The court concluded the defendantfailed to demonstrate enduring prejudice: “We have no doubtthat a simple instruction from the trial court indicating thatthe presumption of innocence may be overcome, ifat all, only duringthejury’s deliberationswould have been sufficientto overcome any prejudice resulting from the prosecutor’s remark.” Reed, 168 Wn. App. 579. Given the similarity ofthe statements, the Reed court’s conclusion holds equallytrue forthe case at hand. Had Thomas objected to the prosecutor’s statements, the court could have issued an instruction to correctthe misstatement ofthe law and remind thejurythatthe presumption of innocence persisted until the State proved the charged crime beyond a reasonable doubt. See Evans, 163 Wn. App. at 642-43. As a result, Thomas fails to establish the prosecutor’s error as so flagrant and ill-intentioned that a curative instruction could not neutralize the resulting prejudice and cannot prevail on his claim of prosecutorial misconduct.

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D. Community Custody Conditions Thomas appeals the imposition ofcertain community custody prohibitions. Specifically, Thomas alleges (1) the communitycustody condition prohibiting him from entering sex-related businesses is not crime-related; and (2) the conditions prohibiting possession ofsexually explicit materials and requiring that he inform the community custody officer (CCC) and treatment provider ofany dating relationship are unconstitutionallyvague. The State contends the trial court properly exercised its discretion in imposing these conditions. Because State v. Nguyen, 191 Wn.2d 671, 425 P.3d 847 (2018) recently upheld these community custody conditions againstthe same claims, the trial court properly imposed the conditions. 1. Crime-Related Prohibition Here, the court imposed a community custody condition prohibiting Thomas from “enter{ingj sex-related businesses, including: x-rated movies, adult bookstores, strip clubs, and any location where the primarysource of business is related to sexually explicit material.” Thomas contends this prohibition is not crime related and amounts to an abuse ofthe court’s discretion. Nguyen says otherwise. As a condition ofcommunity custody, a sentencing court has the discretion to impose “crime-related prohibitions,” proscribing “conductthat directly relates to the circumstances ofthe crime forwhich the offender has been convicted.” RCW 9.94A.703(3)(f); RCW 9.94A.030(10). “The prohibited conduct need not be identical to the crime ofconviction, butthere must be ‘some basis for

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the connection.” Nguyen, 191 Wn.2d at 684 (quoting State v. Irwin, 191 Wn. App. 644, 657, 364 P.3d 830 (2015)). An appellate court reviews communitycustody conditions for an abuse of discretion. Nguyen, 191 Wn.2d at 678. A court does not abuse its discretion ifa reasonable relationship exists between the community custody condition and the crime ofconviction. Nguyen, 191 Wn.2d at 684. “So long as it is reasonable to conclude thatthere is a sufficient connection between the prohibition and the crime ofconviction, we will not disturb the sentencing court’s community custody conditions.” Nguyen, 191 Wn.2d at 685-86. Thomas was convicted oftwo counts ofvoyeurism. Voyeurism is a sex offense involving viewing, photographing, orfilming without consentforthe purposes ofarousal orgratification ofsexual desire. Former RCW 9A.44.115(2). Commission ofa sex offense establishes an inabilityto control sexual urges. Nguyen, 191 Wn.2d at 686. Therefore, ‘fi]t is both logical and reasonable to conclude that a convicted person who cannotsuppress sexual urges should be prohibited from accessing ‘sexually explicit materials,’ the only purpose ofwhich is to invoke sexual stimulation.” Nguyen, 191 Wn.2d at 686. As a result, the trial court did not abuse its discretion in limiting Thomas’s access to sexually explicit materials by prohibiting entrance to sex-related businesses. 2. Vagueness Challenge Thomas argues unconstitutional vagueness as to the community custody provisions requiring him to inform the CCO and treatment provider ofany dating

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relationship and prohibiting him from possessing orviewing sexually explicit material. Based on Nguyen, we disagree. The Fourteenth Amendmentto the United States Constitution and article I, section 3 ofthe Washington State Constitution require fairwarning of proscribed conduct. State v. BahI, 164 Wn.2d 739, 752, 193 P.3d 678 (2008). A community custody provision suffers from vagueness if it does not define the criminal offense with sufficientdefiniteness such that ordinary people can understand the conduct proscribed, ordoes not provide ascertainable standards ofguilt. Nguyen, 191 Wn.2d at 678. In Nguyen, theWashington State Supreme Court explicitly concluded thatthe two provisions appealed here—the requirementof informing the CCO and treatment provider ofany dating relationship and prohibition against sexually explicit material—were not unconstitutionally vague. 191 Wn.2d at 681-83. Therefore, the sentencing courtdid not abuse its discretion by imposing these community custody conditions. We affirm.

WE CONCUR: 

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