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IN THE COURT OFAPPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, Respondent,

JOSE ALFREDO MARRUFOSARINANA, Appellant. NO. 71303-5-1 DIVISION ONE

UNPUBLISHED OPINION FILED: April 27, 2015



### Lau, J. —Jose Marrufo-Sarinana appeals his conviction for firstdegree child 

### molestation involving YD. He argues that in closing argumentthe prosecutor improperly appealed to thejurors' emotions, expressed a personal opinion about witness's 

### credibility, and trivialized the burden of proof. He further argues that a community custody condition prohibiting him from dating women or forming relationships with families that have minor children is unconstitutionally vague. Finding no error, we affirm. FACTS The State charged Jose Marrufo-Sarinana by first amended information with one count of first degree child molestation. Although the evidence was disputed attrial, the71303-5-1/2 

### evidence shows the following: Marrufo-Sarinana lived with his girlfriend, Reyna Figueroa, and herthree daughters, YD, KD, and AD. 

### On February 17, 2013, 11 year-old YD fellasleep watching television in her mother's bed. She stayed there all night. YD slepton one side, Figueroa inthe middle, and Marrufo-Sarinana on the other. At 5:00 a.m. the next morning, Figueroa got up and left for work. MarrufoSarinana and YD remained in bed. YD testified that when she awoke Marrufo-Sarinana
was hugging herfrom behind. She said he rubbed his hand on her stomach, under her clothing, and then under her bra. After he touched her breast he put his hand into the waistband ofher sweatpants. YD pretended to be asleep, but atthis point she got out of bed and left the room. YD went directly to her sisters' room, crying and afraid, she told them what happened. They locked the door. KDtexted their mothertelling her, "You need to get home right now. Something happened." RP (10/29/13) at 86. Figueroa immediately confronted Marrufo-Sarinana, who admitted that he hadjust hugged YD but claimed nothing happened. KD called the police. Everett Police OfficerTravis Katzer spoke with Marrufo-Sarinana afterthe 

### incident. Officer Katzer spoke some Spanish, and so was able to communicate with 

### Marrufo-Sarinana using a combination ofSpanish and English. Officer Katzer stated that Marrufo-Sarinana denied touching YDinappropriately. Marrufo-Sarinana agreed to write a statement. Everett Police Detective Aaron Defolo read Marrufo-Sarinana's written statement 

### to the jury. In his statement, Marrufo-Sarinanawrote that he "hugged the girl from the -2-71303-5-1/3 

### back only. Have neverdone that. The girlstates that Itouched her inher intimate 

### parts. When she woke up, she freaked out, but nothing of that happened." RP 

### (10/29/13) at 145. He wrote that Figueroa "asked me why didItouch the girl. Itold her what happenedjust as Iwrote it. Iacceptmyfault. Iknow that Iwas notsupposed to do." RP (10/29/13) at 145. 

### Marrufo-Sarinana did not testify and rested his case withoutpresenting evidence. Marrufo-Sarinana argued in closing that his statementwhere he accepted fault was not a confession, because he at all times denied touching YD inappropriately. He argued itwas a recognition ofthe problem thatthe hug caused. A jury convicted Marrufo-Sarinana as charged. He appeals. ANALYSIS 

### Marrufo-Sarinana alleges three instances ofprosecutorial misconduct inclosing remarks. "To prevail on a claim of prosecutorial misconduct, a defendant must show the conductwas both improper and prejudicial inthe context ofthe entire record and circumstances attrial." State v. Thompson, 169 Wn. App. 436, 495, 290 P.3d 996 (2012). "Courts will find prejudice only ifthere is a substantial likelihood thatthe misconduct affected thejury's verdict." Thompson, 169 Wn. App. at495. The defendant bears the burden ofshowing both thatthe conductwas improper and that it caused prejudice. State v. Hughes, 118 Wn. App. 713, 727, 77 P.3d 681 (2003). When the defendantfails to objectto a comment made by the prosecutor in closing argument, even a commentthattouches on a constitutional right, the alleged misconduct willnot be reviewed unless the comment is so flagrant and ill intentioned as to cause an enduring and resulting prejudice that could not have been remedied by a -3-71303-5-1/4 curative instruction to thejury. State v. Smith, 144 Wn.2d 665, 679, 30 P.3d 1245 

### (2001); State v. French, 101 Wn. App. 380, 386-88, 4 P.3d 857 (2000). Inanalyzing prejudice, we look to the context ofthe total argument, the issues, the evidence and the instructions. State v. Warren, 165 Wn.2d 17, 28, 195 P.3d 940 (2008). Passion and Prejudice 

### Marrufo-Sarinana argues thatthe prosecutor improperly appealed to thejury's emotions. Br. ofAppellant at 6. Marrufo-Sarinana alleges the prosecutor improperly argued, "inthe real world bad things happen, and people do bad things to children." RP (10/30/13) at 21. He also argued as follows: [Prosecutor]: So despite that human nature, you can't always pretend or ignore it. 

### Particularly not in this courtroom, in this building right here right now. Like it or not, you're going to face it, and when you do, there's no reason to doubtthe defendant did exactly what Y.D. said he did. 

### And this is the building where those things are revealed; this is the building where people that prey on children are held accountable. And that's exactly what... [Defense counsel]: Objection, Your Honor. [Prosecutor]: ...I am asking you to do. 

### [Defense counsel]: Appealing to the passion and prejudice ofthejury. The Court: Overruled. 

### [Prosecutor]: Iwas almost done. This isthe exactly where those people are held accountable. And that's what I'masking you to do by returning a verdict of guilty. Thank you.
RP (10/30/13) at 21-22.71303-5-1/5 

### Arguments intended to provoke fear, anger, a desire for revenge, or which are 

### irrelevant, irrational, or inflammatory are improperappeals to passion or prejudice. In re Pers. Restraint ofCross. 180 Wn.2d 664, 724, 327 P.3d 660 (2014). It is improperfor a prosecutorto ask a jury to return a verdict to send a message or to act as a conscience to the community. State v. Bautista-Caldera. 56 Wn. App. 186, 195, 783 P.2d 116 (1989).Marrufo-Sarinana cites State v. Perez-Mejia, where we reversed a murder 

### conviction when the prosecutorencouragedjurors to correct a larger societal problem. 134 Wn. App. 907, 917-19, 143 P.3d 838 (2006). Perez-Meiia does not control. The prosecutor asked thejury to "send a message" about gang violence, appealed to the patriotism ofthejury, and made an argument designed to call attention to the defendant's ethnicity. Perez-Mejia, 134 Wn. App. at 917-18. Unlike in Perez-Meiia, the prosecutor's argument did not ask thejury to send a 

### message, appeal to thejurors' patriotism, or mention Marrufo-Sarinana's ethnicity. The prosecutor properly argued thatthe evidence supported the charge against MarrufoSarinana, and that he should be held accountable "by returning a verdict of guilty." It is not improperfor a prosecutorto argue thatthe defendant should be "held to account by


### ajury's decision; that is indeed thejury's responsibility and function." State v. McNallie, 64 Wn. App. 101, 111, 823 P.2d 1122 (1992), affd, 120 Wn.2d 925, 846 P.2d 1358 (1993). Viewed incontext, nothing aboutthe prosecutor's argumentwas an appeal to decide the case on an improper basis or an attemptto influence thejury. The argument
was not improper and thus, not misconduct.71303-5-1/6

Burden of Proof 

### Marrufo-Sarinana argues thatthe prosecutorcommitted misconductby misstating the law and trivializing the reasonable doubt standard in closing argument. Appellant's Br. at 10. 

### At trial, the prosecutorargued as follows: Butyourjob, your role asjuror, is not to decide how bad somebodywas molested. Thejob is to decide whether or not they were molested at all, and 

### specifically whether or not the State's evidence has proved itbeyond a reasonable doubt. 

### So to the extentyou think, well, could have been worse, or maybe you think for some reason this wasn't so bad, you're on the wrong track. Iacknowledge it could have been worse, but clearly, itmeets the law and itwas a child molest. Ifthere's a spectrum ofacts that meet child molestation, you're not to decide where it falls on that spectrum, only whether or not it's on the spectrum at all. Maybe analogous to a pregnancy test, yes or no. If it's yes, itdoesn'ttell you how pregnant or how far along; just is or isn't. So with that in mind, Iwantto have you think aboutthe evidence inthis case and whether it's shown beyond a reasonable doubt thatthat man molested Y.D. RP (10/30/13) at 12-13. It is misconductfor a prosecutorto make arguments that misstate or shiftthe State's burden to prove the defendant's guilt beyond a reasonable doubt. State v. Lindsay, 180Wn.2d 423, 434, 326 P.3d 125 (2014). This includes comparing the 

### beyond a reasonable doubt standard to every day decision making. State v. Anderson, 153 Wn. App. 417, 431, 220 P.3d 1273 (2009). Marrufo-Sarinana did not objectto this argument. His claim is waived unless he


### can show the remarkwas so flagrant and ill intentioned the prejudice could not have

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been addressed with a curative instruction. State v. Russell. 125 Wn.2d 24, 86, 882 P.2d 747 (1994). Marrufo-Sarinana fails to meet this burden because he cannot show the comment was improper, let alone flagrant and ill intentioned. He cites Anderson, 153 Wn. App. 417 and Lindsay, 180 Wn.2d 423. But inAnderson, the prosecutor's comments were improper because he compared the burden ofproofto the decision to have elective surgery, whetherto leave children with a babysitter, and to changing lanes


### on the freeway. Anderson, 153 Wn. App. at425, 431. These examples trivialized the burden ofproofbecause they compared the standard to commonplace events. Anderson, 153 Wn. App. at431. Likewise, in Lindsay, the prosecutor compared the burden ofproofto a puzzle, 

### arguing "[y]ou could have 50 percentofthose puzzle pieces missing and you know it's Seattle." 180 Wn.2d at 436. The court held thatthis argumentwas improperbecause it quantified the burden of proof. Lindsay, 180 Wn.2d at 436. Marrufo-Sarinana's reliance on Anderson and Lindsay is misplaced. Here, the 

### prosecutor's argumenttwice informed thejurythatthe proper burden of proofwas evidence beyond a reasonable doubt. The prosecutor's single, isolated comment 

### referring to a pregnancytest did not implicate the burden of proof. Althoughunartful, 

### the commentcautioned the juryagainstviewing the case based merely on their view of the seriousness of the alleged conduct. Instead, the prosecutorproperly argued the jury must determine "whether or not the State's evidence has [been] proved beyond a reasonable doubt." RP (10/30/13) at 12-13.71303-5-1/8 

### Further, defense counsel's closing argument acknowledged thatthe prosecutor must prove the charge "beyond a reasonable doubt, a burden which Ptheprosecutor] 

### recognizes is a heavy one." RP (10/30/13) at 24 (emphasis added). Marrufo-Sarinana does not establish this argumentwas incurably flagrant and ill intentioned. Marrufo-Sarinana cannot show the commentwas improper. It is therefore waived. But even assuming the comment was improper, Marrufo-Sarinana does not show 

### prejudice. The court properly instructed thejury on the presumption ofinnocence, the burden of proof, and the definition ofbeyond a reasonable doubt. CP 32 (Instruction No. 3). Thejury is presumed to follow the trial court's instructions. State v. Stein, 144 Wn.2d 236, 247, 27 P.3d 184 (2001). Moreover, any prejudice could have been easily neutralized with a timely curative instruction. Witness Credibility Marrufo-Sarinana argues thatthe prosecutorcommitted misconduct by 

### expressing a personal opinion aboutthe victim's credibility. Br. ofAppellant at 9. We disagree. At trial, the prosecutor argued in rebuttal closing that YDwas telling the truth. He 

### argued "[i]fyou think for some reason she was lying, she deserves an AcademyAward. And thatwas from startto finish inthis case." RP (10/30/13) at 14. Marrufo-Sarinana did not object. 

### "It is impermissible for a prosecutorto express a personal opinion as to the 

### credibility of a witness orthe guilt of a defendant." Lindsay, 180 Wn.2d at 437. But a

-8-71303-5-1/9 prosecutor has "wide latitude to argue inferences from the facts concerning witness credibility." State v. Warren, 165 Wn.2d at 30. 

### Central to Marrufo-Sarinana's defense was the issue ofwitness credibility. Inher opening remarks, defense counsel stated that "[t]his entire case is an accusation and a denial. All the testimony that you are going to hear is going to stem around that accusation and that denial." RP (10/29/13) at 9. Inclosing, counsel argued "[t]here
were only two people inthat bedroom, [YD] and Jose Marrufo-Sarinana. And the evidence that you heard does not all corroborate [YD]." RP (10/30/13) at 23. Defense counsel placed YD's credibility squarely at issue. 

### The prosecutor's argumentwas not improperfor two reasons: First, there was no explicit statement ofpersonal opinion. State v. Brett, 126Wn.2d 136, 175, 892 P.2d 29 (1995) (prejudicial errorwill not be found unless it is clear and unmistakable that 

### counsel is expressing a personal opinion). Second, prosecutors have wide latitude to argue reasonable inferences from the facts concerning witness credibility. State v. Stenson. 132Wn.2d 668, 727, 940 P.2d 1239 (1997). Marrufo-Sarinana fails to 

### establish that this argumentwas incurably flagrant and ill intentioned. Any error could have been cured by a prompt instruction and the jurywas properly instructed that the State had the burden of proof. 

### Regarding the two arguments by the prosecutorfor whichdefense counsel made no objection, the decision not to object orrequesta curative instruction "strongly suggests to a court that the argument orevent inquestion did notappearcritically prejudicial to an appellant in the context of the trial." State v. Swan, 114Wn.2d 613, 661, 790 P.2d 610 (1990).71303-5-1/10 

### Marrufo-Sarinana's challenges to the prosecutor's closing remarks also fail because he has not demonstrated that the outcome oftrial would have been different 

### had an objection been lodged and a curative instruction been given. The record evidence ofMarrufo-Sarinana's guiltwas very strong. After the molestation, YD immediately reported it to her sisters. YDwas crying and afraid. The sisters immediately locked their bedroom door and KD texted an urgent message to Figueroa to come home. Within 10 minutes ofthat text, YD and KD each told their mother what happened when she arrived home. Figueroa immediately confronted Marrufo-Sarinana who admitted he hugged YD while inbed. KDimmediately called the police and reported the molestation while Figueroa spoke to Marrufo-Sarinana. The police arrived within minutes. Figueroa reported the molestation to the officers. Figueroa and her daughters completed written witness statements. Figueroa described YD's demeanor
as "[destroyed, crying, terrified." RP (10/29/13) at 91. OfficerAtkins described YD as 

### "crying uncontrollably." RP (10/29/13) at 107. Shetold himthat Marrufo-Sarinana touched her while she was in bed. 

### After advising Marrufo-Sarinana of his Miranda1 rights, Officer Katzer asked Marrufo-Sarinana what happened. He admitted to hugging YD. He agreed to provide a written statement ofthe incident. 

### YD told nurse practitioner Paula Skamski that Marrufo-Sarinana touched her breast and stomach under her clothes and put his hand under herwaistband. The trial 

### court admitted a copy of KD's text message which stated, "Mom, We need to talk

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). -10-71303-5-1/11 

### urgently." RP (10/29/13) at 144. The trial court also admitted a copy of MarrufoSarinana's hand written statementwhich states in part: Iwentto bed on the same bed, covered myself, and hugged [YD] from the back only. Have never done that. And the girl states that Itouched her in her intimate parts. When she woke up, she freaked out, but nothing ofthat happened. And she leftthe room....my wife came back and asked me why did Itouch the girl. I told herwhat happenedjust as Iwrote it. Iaccept my fault. Iknow that Iwas not supposed to do." RP (10/29/13) at 145. Cumulative Effect Marrufo-Sarinana argues thatthe above comments require reversal, "objected to and not, because the misconductwas prejudicial and impervious to curative instruction." Br. ofAppellant at 11. 

### The cumulative errordoctrine applies only when several trial errors occurwhich, 

### standing alone, may not be sufficient to justifyreversal, but when combined, may deny defendant a fair trial. State v. Greiff, 141 Wn.2d 910, 929, 10 P.3d 390 (2000). Because there are no errors here, this doctrine does not apply. Community Custody Condition 

### Marrufo-Sarinana challenges on unconstitutional vagueness grounds the 

### community custody condition imposed at sentencing that prohibits dating women or forming relationships with minor children. Br. ofAppellant at 14. 

### Following Marrufo-Sarinana's conviction, the trial court imposed a numberof 

### community custody conditions. One condition related toforming relationships with those with minor children: 8. Do not date women or form relationships with families who have minor 

### children, as directed bythe supervising Community Corrections Officer. -11-71303-5-1/12

CP 20 (Appendix 4.2 Additional Conditions ofCommunity Custody). Marrufo-Sarinana contends thatthis condition is "written so broadly as to seemingly prohibit Mr. Marrufo-Sarinana from maintaining communication with friends or family members who 'have minor children,' regardless ofwhetherthose children live with them, orwhetherthe appellant has access to visitation. The condition is unclear about written communication with such families, and itdelegates full authority to the community correction officerto determine the conductwhich is permitted." Br. of Appellant at 14. We disagree. From the outset, the State argues thatthe invited errordoctrine precludes review 

### of this issue because Marrufo-Sarinana agreed to the community custody condition.2 Br. ofRespondent at 18. The invited error doctrine applies where the defendant 

### engages insome affirmative action by which he knowingly and voluntarily set up the
error. State v. Phelps, 113 Wn. App. 347, 353, 57 P.3d 624 (2002). Butthe record 

### does not supportthe State's contention. Atsentencing, the Statetold the court about the DepartmentofCorrections' proposed list ofcommunity custody conditions. The State said "[defense counsel] and Ihave looked at ittogether and proposed some deletions." RP (12/18/13) at 4. This statementdoes not showthe type of affirmative act that would preclude review underthe invited errordoctrine. The Fourteenth Amendment ofthe United States Constitution and article I, 

### section 3 of the Washington Constitution require that citizens have fair warning of

2The State provides no citation to the record for this assertion. Br. of Respondent at 18-19. -12-71303-5-1/13 

### proscribed conduct. State v. Bahl, 164 Wn.2d 739, 752, 193 P.3d 678 (2008). "A statute is unconstitutionally vague if it'(1)--- does not define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is proscribed, 

### or (2) ... does not provide ascertainable standards of guilt to protect against arbitrary enforcement.'" Bahl, 164 Wn.2d at 752-53 (alterations in original) (quoting City of Spokane v. Douglass, 115 Wn.2d 171, 178, 795 P.2d 693 (1990)). An ordinance that fails to meeteitherofthese requirements is unconstitutionally vague. Bahl, 164Wn.2d

at 753.This assures that ordinary people can understand what is allowed and are 

### protected against arbitrary enforcement. State v. Valencia, 169Wn.2d 782, 791, 239 P.3d 1059 (2010). A condition is not unconstitutionally vague merely because a person 

### cannot predictwith complete certainty the exact point at which his actions would be classified as prohibited conduct. Valencia, 169 Wn.2d at 793. 

### Imposing conditions ofcommunity custody is withinthe discretion ofthe sentencing court and will be reversed only ifmanifestly unreasonable. Valencia, 169 Wn.2d at 791-92. Imposing an unconstitutional condition is manifestly unreasonable. Bahl, 164Wn.2dat753. 

### We considerthe terms of a community custody condition inthe context in which they are used. Bahl, 164Wn.2d at 754. 

### We rejected a challenge similar to the one made in the presentcase inState v. 

### Kinzle, 181 Wn. App. 774, 326 P.3d 870, review denied, 337 P.3d 325 (2014). There, the defendantwas convicted of two counts of firstdegree child molestation. The court ordered the defendant not to "date women nor form relationships with families who have -13-71303-5-1/14 

### minor children, as directed by the supervising Community Corrections Officer." Kinzle, 

### 181 Wn. App. at 785. The defendant argued that the conditionwas overbroad, vague, and unnecessary. We held that under RCW9.94A.703(3)(b), the sentencing court has discretion to order an offender to refrain from "direct or indirect contact with the victim of 

### the crime or a specified class of individuals." Kinzle, 181 Wn. App. at 785 quoting RCW 9.94A.703(3)(b). Because the defendant's crime involved children he contacted through
a social relationship with their parents, we held the condition was reasonably necessary to protectthe public. Kinzle, 181 Wn. App. at 785. Kinzle controls here. Marrufo-Sarinana's contact with YD occurred as a result of
a social relationship with her mother. The challenged condition is reasonably crimerelated and necessary to protectthe public. See, e.g., State v. Autrev, 136 Wn. App. 460, 468, 150 P.3d 580 (2006). Marrufo-Sarinana analogizes to Valencia and Bahl. InValencia, our Supreme Court considered a condition prohibiting a defendantfrom possessing or using "any paraphernalia that can be used for the ingestion or processing ofcontrolled substances

or that can be used to facilitate the sale or transfer ofcontrolled substances..." Valencia, 169 Wn.2d at 785. The court reasoned that the condition left too much discretion to individual community corrections officers and was therefore unconstitutionally vague. Valencia, 169 Wn.2d at 795. And in Bahl, the Supreme Court held that a community custody condition 

### prohibiting a defendantfrom possessing or accessing "pornographic" materials was 

### unconstitutionally vague. Bahl, 164Wn.2d at 758. The court explained that 

### "pornography" does not have a precise legaldefinition and, insofar as itrelates to adult -14-71303-5-1/15 

### pornography, is protected speech. Bahl, 164 Wn.2d at 754. After finding the condition vague, the courtwrote "[t]hefact thatthe condition provides that Bahl's community corrections officer can direct whatfalls withinthe condition only makes the vagueness problem more apparent, since it virtually acknowledges that on its face itdoes not provide ascertainable standards for enforcement." Bahl, 164Wn.2d at 758. This case is unlike Valencia and Bahl. The condition in Valencia relied on a community corrections officerto give meaning to the term "any paraphernalia," which could have encompassed any large number ofeveryday items. In Bahl, the corrections officerwas responsible for defining "pornography"—a term without a legal definition. We reject Marrufo-Sarinana's vagueness challenge. CONCLUSION Forthe reasons discussed above, we affirm.

WE CONCUR:

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