### FILED APRIL 22,2014 In the Office ofthe Clerk ofCourt WA State Court ofAppeals, Division III
INTHECOURT OF APPEALS OF THE STATE OF WASHINGTON DIVISIONTHREE STATE OF WASHINGTON, ) 

### No. 30638-1-III ) Respondent and ) Cross-Appellant, ) ) 

### v. ) UNPUBLISHED OPINION ) KURTDEAN BONSER, ) ) Appellant. ) ANTOSZ, J.

### * KurtDeanBonser appeals his conviction for third degreerape ofa child. He contends thattheprosecutor engaged in misconduct during closing argument by focusing thejury's attention onMr. Bonser's failure to testifY. He also contends that the trial court improperly imposed an indeterminate term ofcommunity custody. We concludethat the prosecutor did not engage in misconduct during closing argument and affIrm Mr. Bonser's conviction. But, we agree that the court exceeded statutory authority by imposing an indeterminate term ofcommunity custody and remand for correction.


### *Judge JohnM. Antosz is serving asjudgeprotempore ofthe Court ofAppeals pursuanttoRCW

### 2.06.150.No. 30638-1-111 State 

### v. Bonser
FACTS RMJ gave birth to a son on March 1,2008. Mr. Bonser acknowledged thathe was the child's father. Because RMJ was born onJanuary 3, 1992, the State concluded that she was likely less than 16 at the time ofconception and charged Mr. Bonserwiththird degree rape ofa child on or about May 1to June 30, 2007. Attrial, RMJ told thejury about her relationship with Mr. Bonser. She first met Mr. Bonserwhen she was 11 years old. By the time she was 15 or 16, the two began living together and became more than friends. They had sexual intercourse during the time they livedtogether. She could notremember ifshe had sexual intercourse with Mr. Bonserduring the months ofMay or June 2007, but saidthatthey did not live together during her pregnancy. Duringthis time, RMJ used drugs on a daily basis and sometimes the drugs caused herto slip in and out ofreality. RMJ testified that when she first metMr. Bonser, she lied andtold him she was 16. Sometime later, police officers came to a hotel where she was staying. Mr. Bonser
was present. When the police entered they said, "[W]hat are you doing running around with her, don'tyou know she's twelve?" Report ofProceedings (RP) at 292. According to RMJ, Mr. Bonserheard the police tell him that she was 12. Eventually, Mr. Bonser asked RMJ why thepolice said that she was 12. RMJ testified that she could not
2No. 30638-I-III State v. Bonser
remember how she responded exceptthat she assured him she was not 12, but 16. Afterward, RMJ avoided the subject ofher age with Mr. Bonser and others. RMJ's true age was revealed after she became pregnant. Mr. Bonser did nottestify. The evidentiary portion ofthe trial ended. 

### Mr. Bonser proposed the affirmative defense instructionthat he reasonably believed that RMJ was at least 16 based onRMJ's statements ofher age. The State objectedto this proposed instruction, explaining thatMr. Bonserdid nottestify at trial, so there was no evidence of his reasonable beliefthat RMJ was at least 16 years ofage. The State arguedthat it wouldhavepresented a much different case ifit had believed that the courtwould give the affirmative defense instruction. The State added that ifthe trial court determined that the instruction was allowed, the case should be reopened. The trial court instructed thejury onthe affirmative defense. The instruction included: Itis not a defense to the charge ofrape ofa child in the third degree that at the time ofthe acts the defendant did not know the age ofRMJ or that the defendant believed herto be older. It is, however, a defense to the charge ofrape ofa child in the third degree that at the time ofthe acts the defendant reasonably believed that RMJ was at least sixteenyears ofage based upon the declarations as to age byRMJ.



### 3

### No. 30638-1-111 

### State v. 

### Bonser
Clerk's Papers (CP) at 

### 118. The court also instructed thejuryon the absence oftestimony by Mr. Bonser. Instruction 9 declared, "The defendant is not required to testifY. You may not use the fact that the defendanthas nottestified to infer guilt or to prejudice him in any way." CP at 119. In closing argument, defense counsel argued that RMJ continually lied about her age, so it was reasonable for 

### Mr. Bonser to think that she was over 

### 16 at the time they had intercourse. In rebuttal, theprosecutortold thejury, See, that's the thing. This-this law puts the burden on the adult to figure out the age ofthe younger person, except--except for the one exception ofwhenthey say something to them about their age. We have evidence ofthat, that she said something and [defense counsel] emphasizes that a lot in doing hisjob, which is probably a greatway to do it; but the thing that he ignores is that we don'thave any evidence ofwhathe actually believed and all ofthe evidence. RP at 

### 484-85. Defense counsel objected, asking the courttoreview instruction 

### 9 withthe jury. The court overruled the objection. The prosecutor continued, The evidence shows that no reasonable person would have-wouldhave actually believed she was sixteen in his shoes, from his point ofview, given the history, given whatthe police officers toldhim, given her appearance. How old did she look when she came in here? [Defense counsel] says there's no evidence that he ever-that

### Mr. Bonser ever heard the officer say that she was twelve. Well, actually that's what all ofthe evidence is. She says the police came in and told

### Mr. Bonser


### 4No.30638-1-III State v. Bonser
she was twelve. It's uncontroverted, no other evidence on thatpoint, that is the evidence in this case. RP at485. Thejury found Mr. Bonser guilty ofthird degree rape. The court imposed a standard sentencing range of60 months, the maximum term for this offense. The court also imposed community custody for "anyperiod ofearned early release." CP at 150. Mr. Bonser appeals. ANALYSIS ProsecutorialMisconduct. Mr. Bonsercontends that the prosecutor's statement regarding reasonable beliefis a comment on Mr. Bonser's right to silence at trial. He argues that he was the only person who could have presented testimony on the issue ofhis reasonable belief, so the statement refers to him and his right to silence. We disagree. A defendant claimingprosecutorial misconduct bears the burden ofestablishing thattheprosecutor's conduct was both improper and prejudicial. State v. Korum, 157 Wn.2d 614,650, 141 P.3d 13 (2006). "In orderto prove the conductwas prejudicial, the defendant must prove there is a substantial likelihood the misconduct affected thejury's verdict." 

### [d. Both the United States Constitution and the Washington Constitution grant a defendant the right against self-incrimination. See State v. Easter, 130 Wn.2d 228,236, 922 P.2d 1285 (1996). The right against self-incrimination prohibits the State from 5No.30638-1-II1 State 

### v. Bonser forcing a defendant to testify at trial. 

### ld. Moreover, the State may not "make closing arguments relating to a defendant's silence to infer guilt from such silence." 

### ld. A prosecutor violates a defendant's right against self-incrimination ifthe prosecutor makes
a statement'" ofsuch character that thejurywould "naturally and necessarily accept it as
a comment on the defendant's failure to testify."'" State v. Fiallo-Lopez, 78 Wn. App. 717, 728,899 P.2d 1294 (1995) (quoting State v. Ramirez, 49 Wn. App. 332, 336, 742 P.2d 726 (1987». A prosecutor may argue that evidence is undisputed as long as he or she does not identify the nontestifying defendant as the only person who could dispute the evidence. 

### ld. at 729. A prosecutor has wide latitude in closing argumentto draw reasonable inferences from the evidence and to express such inferences to thejury. State v. Hoffman, 116 Wn.2d 51,94-95,804P.2d 577 (1991). "When a defendant advances a theory exculpating him, the theory is not immunized from attack. On the contrary, the evidence supporting a defendant's theory ofthe case is subject to the same searching examination
as the State's evidence." State v. Contreras, 57 Wn. App. 471,476, 788 P.2d 1114 (1990). Once a defendant presents evidence, a prosecutor can fairly comment on what
was not produced. 

### Id.

6No.30638-I-III State v. Bonser Here, the prosecutor's statements are not a violation ofMr. Bonser'srightto remain silent. The prosecutor's statements in closing argument regarding reasonable beliefdo not address Mr. Bonser's silence or infer guilt for such silence. The statements
are not the type ajurywould accept as a comment on Mr. Bonser's failure to testifY. Nor do the prosecutor's statements refer to or imply that Mr. Bonser is the only person who could provide evidence on his reasonable beliefofRMJ's age. A defendant's state of mind, including reasonable belief, may be inferred from circumstantial evidence. See State v. Bryant, 89 Wn. App. 857, 870-71, 950 P.2d 1004 (1998). Thejurycould determine Mr. Bonser reasonably believed RMJ was 16 based on circumstantial evidence, such as RMJ's statements to Mr. Bonserregarding her age. Instead, the prosecutor's statements refer to the affirmative defense asserted by 

### Mr. Bonser and the requirement that the defendant must proveby a preponderance ofthe evidence that at the time ofthe offense the defendant reasonably believed the alleged victim to be the age alleged by the victim. See RCW 9A.44.030(2). Furthermore, Mr. Bonser invited the prosecutor's statements by commenting on Mr. Bonser's beliefduring his closing statement. Defense counsel argued, "Given the circumstances, given the lifestyle, given the misrepresentations and the lies is it reasonable for [Mr. Bonser] to think that she was over sixteen? Yes. Unequivocally
7No.30638-1-III State 

### v. Bonser yes." RP at 469. Once Mr. Bonseridentified the evidence that showed reasonable belief, the prosecutor was able to comment on what evidence was notproduced. Therefore, theprosecutor's statements in closing argument do not address 

### Mr. Bonser's silence orinfer guilt for such silence. The prosecutor's argument was not improper. The trial court did not err in overruling Mr. Bonser's objection in this matter. Mr. Bonser failed to establishprosecutorial misconduct based on the closing argument. Community Custody. 

### Mr. Bonsercontends that the court exceeded its statutory authority by imposing an indeterminate term ofcommunity custody. The State concedes this issue. We agree. A sentencing court's application ofthe community custody provisions ofchapter 9.94A RCW is reviewed de novo. State v. Motter, l39 Wn. App. 797, 801, 162 P.3d 1190 (2007). "Atrial court may impose only a sentence which is authorized by statute." State v. Barnett, 139 Wn.2d 462, 464, 987 P.2d 626 (1999). Third degree rape ofa child is a class C felony, for whichthe maximum sentence is five years. RCW 9A.20.021(c); RCW 9A.44.079(2). 

### In sentencing a sex offender, the court is generally required to impose a three-year term ofcommunity custody. RCW 9.94A.701(1)(a).



### 8No.30638-1-II1 State v. Bonser
A community custody term specified by RCW 9.94A.701 shall be reduced when the offender's combinedterm ofconfinement and community custody exceed the statutory maximum for the crime. RCW 9.94A.701(9). "The [Sentencing Reform Act of 1981, chapter 9.94A RCW] requires courts to impose a 'determinate sentence,' defined as 'asentence that states with exactitude the number ofactual years, months, or days oftotal confinement, ofpartial confinement, [or] ofcommunity custody.'" State v. Winborne, 167 Wn. App. 320,324 n.4, 273 P.3d 454 (quoting RCW 9.94A.030(18)) (some alterations in original), review denied, 174 Wn.2d 1019,282 P.3d 96 (2012). The trial court exceeded its statutory authority by imposing an indeterminate term ofcommunity custody. Mr. Bonser's term ofcommunity custody equal to "anyperiod of earned early release" is an indeterminate sentence. CP at 150. Remand is appropriate for correction ofthe community custody term in thejudgment and sentence. Mr. Bonser's conviction is affirmed, but this case is remanded to the trial courtto correctthe community custody term.



### 9No. 30638-1-111 State 

### v. Bonser
A majority ofthe panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for publicrecordpursuant to RCW 2.06.040.

# AntosW;;a~ WE CONCUR: 

# 7hdL£qj 

# eg. I Siddoway, C.J.

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