0 T 0f~ APPEALS DIVISIM 11 2013 OCT 15 

### AM 8, 56 S- AT r Y \ EPU


### IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II
STATE OF WASHINGTON, Respondent,

V. BRANDON L. DUGGER, Appellant. No. 42792 - 3 -II
UNPUBLISHED OPINION

DALTON, J. P. T. 1— Brandon L. Dugger appeals his conviction and sentence on one count 

### ofsecond degree rape with a special finding thatthevictim was less than 15 years old atthe time ofthe offense. He argues that the ( 1) trial court gave an erroneous burden ofproof and

reasonable doubtjury instruction; (

### 2) the trial court erred in denying his request for a mistrial for ' 

### an allegedly improper and prejudicial comment by the prosecutor during closing argument; and 3) the sentencing court imposed community custody conditions that exceeded statutory authority and violated his constitutional rights. 

### We do not reach thejury instruction claim because it is not preserved. We hold thatthe trial court did not abuse its discretion in denying Dugger' s requestfor a mistrial. We uphold the 

### community custody condition prohibiting Dugger from contactwithjuveniles underthe age of 18 because it is reasonably necessaryto protect them from future harm. Finally,we accept the 

### 1 Judge Jeanette Dalton is serving asjudge pro tempore ofthe Court ofAppeals, Division II, under CAR 21 {c).No. 42792 - 3 - II 

### State' s concession that the condition prohibiting Dugger from possessing a cellular telephone with photograph storage capability exceeded the trial court' s statutory sentencing authority 

### because it is not reasonably crime related and, thus, it should be stricken. Accordingly, we affirm Dugger' s conviction but remand for correction ofthejudgment and sentence. FACTS 

### In the late hours ofNovember 27, 2010, and the early hours ofNovember 28, 2010, 14-
year -

old 

### SMH2 was with a group offriends when one ofher friends arranged to meet Brandon

Dugger3 

### to buy marijuana. The group smoked a small amount ofmarijuanaand then followed Dugger to his friend' s apartment to retrieve the marijuana that he had agreed to sell them. When 

### they arrived atthe apartment, itwas locked. Dugger said that he could gain entrythrough a downstairs window, and he.suggested that SMH join him because she was the smallest ofthe 

### group. But they discovered the window was locked. Under the guise of reuniting SMH and her friends, Dugger led SMH to various locations —



### a garage across from the high school, a park, and finally to a residential garage. . 

### Eventually, SMH became tired ofwaiting forher friends to arrive. When she attempted to leave, Dugger wrapped his phone charger cord around her neck, threatened her with a knife, and directed her to a secluded ravine. Hidden from public view, he raped her. After the rape, SMH and Dugger went their separate ways. SMH called 911 from the bus station and police officers met her there and escorted her to the hospital for treatment. The State charged Dugger with second degree rape and third degree child rape. At trial, Dugger admitted that he had sex with SMH, but he testified that it was consensual. In closing 

### 2 We referto SMH, aminor, by her initials to protect herprivacy. 3 Dugger was 21 years old at the time. 0)No. 42792 - 3 - II 

### argument, defense counsel portrayed SMH as having falsely accused Dugger offorcible rape to avoid discipline for staying out late and smoking marijuana. The prosecutor initiated rebuttal
argument by stating, " 

### It' s insulting. It's insulting for someone to stand here and make Mr. Dugger —." Report of Proccedings (RP) at 312. Dugger objected and moved for a mistrial, 

### arguing thatthe prosecutor' s comments disparaged defense counsel. The trial court ruled that the prosecutor' s comments were not misconduct and denied Dugger' s motion for a mistrial. 

### Without objection, the trial court instructed thejury on the burden ofproofand reasonable doubt as follows:



### The defendant has entered a plea of not guilty to each of these charges. Those pleas put in issue every element of the crimes charged. The State is the plaintiff and has the burden of proving each element of the crimes beyond a reasonable doubt. A defendant is presumed innocent. This presumption continues throughout 

### the entire trial unless during your deliberations you find it has been overcome by the evidence beyond a reasonable doubt. A reasonable doubt is one for which a reason exists and may arise from the evidence or lack of evidence. It is such a doubt as would exist in the mind of a 

### reasonable person after fully, fairly and carefully considering all of the evidence or lack of evidence. If,after such consideration, you have an abiding belief in the truth ofthe charge, you are satisfied beyond a reasonable doubt. Clerk' s Papers ( CP) at 20. 

### Thejury found Dugger guilty on both counts and returned a special verdictthat SMH was
under 15 years of age at the time of the crime.

### 4 The trial court sentenced Dugger to a minimum
of 25 years to a maximum of life imprisonment as required 

### by RCW 9. 94A.570(3)( c)( ii). The 

### trial court also sentenced Dugger to community custody for life. The trial court imposed as 

### community custody conditions that Dugger have no contact withjuveniles less than 18 years old,

4 After trial,the court dismissed the charge ofthird degree child rape on doublejeopardy grounds. 3No. 42792 - 3 - II 

### and that he not possess a cellular telephone with photograph storage capability. Dugger timely appeals his conviction and community custody conditions. ANALYSIS I. JURY INSTRUCTION 

### For the first time on appeal, Dugger challenges the trial court' sjury instruction on the burden ofproofand definition of reasonable doubt. He argues that the modified Washington 

### Practice Jury Instruction (WPIC) 4.01 violated the Supreme Court's directive in State v. Bennett, 161 Wn.2d 303, 317 -18, 165 P.3d 1241 ( 2007) and violated due process by shifting the burden of. 

### proofto the defendant and undermining the presumption ofinnocence. The State argues thatthe . modified WPIC 4.01 instruction did not prejudice Dugger. We agree with the State thatthe 

### erroneousjury instruction did notprejudice Duggerbecause it did not relieve the State ofits burden to prove every element ofthe crime beyond a reasonable doubt. Because Duggerdoes not demonstrate that he was actually prejudiced by the alleged error, the unpreserved claim of

error does not qualify for review under RAP 2.5( a)( 3). Thus, we do not reach hisjury instruction
challenge. 

## Anyobjectionstojuryinstructions mustbe put inthe recordtopreserve review. State v. Sublett, 176 Wn.2d 58, 75 -76, 292 P. 3d 715 ( 2012). An appellate court may refuse to review 

### unpreserved claims of error except claims ofmanifest error affecting a constitutional right. RAP 2.5( a)( 3); State v. Gordon, 172 Wn.2d 671, 676, 260 P. 3d 884 (2011). "` [ T]he appellant must 

### identify a constitutional error and show howthe alleged error actually affected the [appellant]' s rights at trial. "' Gordon, 172 Wn.2d at 676 ( second alteration in original) ( internal quotation
marks omitted) (quoting State v. O' Hara, 167 Wn.2d 91, 98, 217 P. 3d 756 (2009)). An error is

manifest" if it is " so obvious on the record that the error warrants appellate review." O' Hara, 11No. 42792 - 3 -II 

### 167 Wn.2d at 99 -100. But the appellant must also show " actual prejudice, i.e., there must be a 

### plausible showing by the [appellant] that the asserted error had practical and identifiable
consequences in the trial of the case. "' Gordon, 172 Wn.2d at 676 ( alteration in original) internal quotation marks omitted) ( quoting O' Hara, 167 Wn.2d at 99). We preview the merits 

### ofthe alleged error to determine whether the claim is likely to succeed. State v. Walsh, 143 Wn.2d 1, 8, 17 P. 3d 591 ( 2001). A trial court' s failure to use WPIC 4.01 to instruct ajury on burden of proof and
reasonable doubt is error. State v. Lundy, 162 Wn.App. 865, 871, 256 P.3d 466 ( 2011). But the error is subject to constitutional harmless error analysis because the Supreme Court' s directive to use WPIC 4.01 was an exercise of its supervisory powers to enact procedural rules rather than an 

### invocation ofits constitutional error-correcting authority. Lundy, 162 Wn.App. at 872; contra State v. Castillo, 150 Wn.App. 466, 473, 208 P. 3d 1201 ( 2009). Here, the trial court committed 

## anobvious errorbyomittingthe lastsentence ofthefirstparagraph ofWPIC 4.01.5 Theburden ofproofand presumption of innocence are grounded in the due process clause. U.S. CONST.


### 5 WPIC 4.01 provides:

The] [ 

### Each] defendant has entered a plea of not guilty. That plea puts in issue every element of [the] [ each] crime charged. The [ State] [ City] [ 

### County] is the plaintiff and has the burden of proving each element of [the] [ each] crime beyond a reasonable doubt. The defendant has no burden of Proving that a reasonable doubt exists [ as to these elements]. A defendant is presumed innocent. This presumption continues throughout 

### the entire trial unless during your deliberations you find it has been overcome by the evidence beyond a reasonable doubt. A reasonable doubt is one for which a reason exists and may arise from the evidence or lack of evidence. It is such a doubt as would exist in the mind of a 

### reasonable person after fully, fairly, and carefully considering all of the evidence or lack of evidence. [ 

### If,from such consideration, you have an abiding belief in the truth of the charge, you are satisfied beyond a reasonable doubt.] 11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 4.01, at 85 3d ed. 2008) ( boldface added).No. 42792 - 3 -II

amend. XIV; WASH. CONST. art. I, § 3; State v. Woods, 143 Wn.2d 561, 594, 23 P. 3d 1046 2001). 

### But Dugger does not show thatthe error actually affected his rights at trial. Gordon, 172 Wn.2d at 676. 

### Jury instructions must define reasonable doubt and clearly communicate thatthe State carries the burden ofproof. Bennett, 161 Wn.2d at 307. Instructing thejury in a manner that 

### relieves the State ofits burden to prove every element ofan offense beyond a reasonable doubt violates due process and requires automatic reversal. Bennett, 161 Wn.2d at 307. But not every 

### omission or misstatement in ajury instruction relieves the State ofits burden. State v. Brown, 147 Wn.2d 330, 339, 58 P. 3d 889 (2002). 

### The question before us is whether omitting from WPIC 4. 01 the sentence: " 

### The defendant has no burden ofproving that a reasonable doubt exists" relieves the State of its burden to prove every element of an offense beyond a reasonable 

### doubt by allowing ajuryto inferthat Duggerhad a burden ofestablishing enough doubtto acquit. 11 WPIC 4. 01, at 85. The United States Supreme Court has approved a reasonable doubt instruction that does not include such a sentence. Victor v. Nebraska, 511 U.S. 1, 7, 18, 22 - 23, 114 S. Ct. 1239, 127 L. Ed. 2d 583 ( 1994). But in that case, the issue was whether the definition
of reasonable doubt lowered the State' s burden of proof. Victor, 511 U.S. at 22 - 23. The Victor Court did not decide the issue before this court—whether an admonition that the defendant has no burden to prove reasonable doubt is required for proper allocation ofthe burden of proof. 

### Even withoutthe omitted sentence, thejury instructions state unequivocally thatthe State has the burden to prove each element of the crime beyond a reasonable doubt.6 They further instruct that the defendant is presumed innocent and that this presumption continues unless 

### 6 The trial court's preliminary instructions to thejury panel beforevoirdire may also have defined reasonable doubt, but neither party designated that portion ofthe record for appeal. 6No. 42792 - 3 -II 

## during deliberations thejuryfindsthe presumption has been overcome bythe evidence beyond a reasonable doubt. Contraryto Dugger' s argument,'taken as awhole,the instructions correctly conveyed thatthe State had the burden ofproofon every element, and there is no reasonable . 

### likelihoodthatthejury interpreted the instructions to inferthatthe defendant either had any burden to prove that reasonable doubt existed or that the defendant had any obligation to present 

### evidence to prove he was not guilty. See Victor, 511 U.S. at 6 (recognizing that "the proper 

### inquiry is notwhether an instruction `could have' been applied in an unconstitutional manner, but whether there is a reasonable likelihood that thejury did so apply it ") ( emphasis in original) quoting Estelle v. McQuire, 502 U.S. 62, 72, & n.4, 112 S. Ct. 475, 116 L. Ed. 2d 385 ( 1981)); State v. Clausing, 147 Wn.2d 620, 626, 56 P. 3d 550 ( 2002) (

### stating thatjury instructions are to be read as a whole). 

### Because the challengedjury instruction accurately states thatthe burden ofproofis 

### entirelythe State' s, Dugger cannot showthatthe trial court's use ofthe nonconforming WPIC 4.01 instruction had practical and identifiable consequences at his trial. See Gordon, 172 Wn.2d

at 676. Thus, Dugger' s claim does not fall within the narrow exception of RAP 2. 5( a)( 3). See Gordon, 172 Wn.2d at 676. Accordingly, we do not reach the unpreserved error. II. PROSECUTORIAL MISCONDUCT 

### Dugger next argues that the trial court abused its discretion by denying his motion for a mistrial because the State committed prosecutorial misconduct during closing argument by 

### disparaging defense counsel. The State responds thatthe prosecutor's comments in closing argument were not improper or prejudicial and, thus, the trial court properly denied Dugger' s mistrial motion. We agree with the State.

7No. 42792 - 3 -II 

### Prosecutorial misconduct may deprive a defendant ofhis right to a fairtrial. State v. Jones, 144 Wn.App. 284, 290, 183 P. 3d 307 ( 2008). 

### A defendant claiming such misconduct

must prove that the prosecutor' s conduct was both improper and prejudicial "` in the context of the total argument, the issues in the case, the evidence addressed in the.argument, and the instructions given to thejury. "' State v. McKenzie, 157 Wn.2d 44, 52, 134 P.3d 221 ( 2006) quoting State v. Brown, 132 Wn.2d 529, 561, 940 P. 2d 546 ( 1997)). A prosecutor' s improper 

### comments are prejudicial "only where `there is a substantial likelihoodthe misconduct affected the

### jury' s verdict. "' McKenzie, 157 Wn.2d at 52 ( emphasis in original) (quoting Brown, 132 Wn.2d at 561). 

### It is improper for the prosecutorto disparagingly comment on defense counsel' s role or impugn the defense lawyer' s 

### integrity." State v. Thorgerson, 172 Wn.2d 438, 451, 258 P.3d 43 2011). " 

### The trialjudge is generally in the best position to determine whether the prosecutor' s
actions were improper and whether, under the circumstances, they were prejudicial." State v. Ish, 170 Wn.2d 189, 195 -96, 241 P. 3d 389 (2010). Thus, we.review a trial court' s ruling on an 

### allegation ofprosecutorial misconduct for abuse ofdiscretion. Ish, 170 Wn.2d at 195 -96. In Thorgerson, our Supreme Court held that a prosecutor committed misconduct by accusing defense counsel of engaging in "` sl[ e] ight of hand "' 

### tactics and by using disparaging terms like "` bogus "' and "` desperation "' to describe the defense. 172 Wn.2d at 450 - 52

alteration in original). But the_ court also held that the misconduct was not likely to have altered the outcome ofthe case because the victim's testimony was consistent throughout trial and the 

### disparaging remarks essentiallytold thejuryto disregardwhatthe prosecutor believed was irrelevant evidence. Thorgerson, 172 Wn.2d at 452.No. 42792 -3 - II Here, after defense counsel' s closing, the prosecutor commenced rebuttal 

### by stating, " It' s insulting. It' s insulting for someone to stand here and make Mr. Dugger —." RP at 312. The prosecutor did not finish her sentence because defense counsel interrupted with an objection. The trial court recessed. The defense moved for a mistrial, arguing that the prosecutor' s remarks disparaged and demeaned defense counsel, which , deprived Dugger ofa fair hearing. The trial

court denied defense counsel' s motion.7 

### Here, Dugger contends that the prosecutor was criticizing the defense' s strategy to 

### challenge SMH' s credibility and, thus, the prosecutorwas implicitly professing the State' s opinion of Dugger' s guilt. This inference from the prosecutor' s argument is speculative. The 

### prosecutor was interrupted by defense counsel before the insulting aspect ofdefense counsel' s argument was identified. Contrary to Dugger' s argument, the prosecutor' s ambiguous, incomplete statement was not more inflammatory than that in Thorgerson, where the prosecutor 

### repeatedly accused the defense ofdeceiving thejury. 172 Wn.2d at 450 - 52. Here, the trial court properly reviewed the prosecutor' s statement, refused to speculate 

### about whatthe prosecutor may have said ifshe had not been interrupted by objection, determined that the statement heard bythejury was not improper, and denied counsel' s motion for a mistrial. 

### Moreover, any negative impact on thejury would be minimized because thejury had been instructed not to consider the arguments ofcounsel as evidence. Because Dugger has not proved 

### thatthe trial court abused its discretion in denying his motion for a mistrial based on alleged prosecutorial misconduct, his claim fails.

7 Defense counsel did not request a curative instruction for the alleged misconduct as an alternative to his unsuccessful motion for a mistrial. 7No. 42792 - 3 -II III. COMMUNITY CUSTODY CONDITIONS 

### Finally, Dugger asserts that the trial court imposed certain community custody conditions 

### that exceeded statutory authority and violated his constitutionally protected freedoms ofspeech,
association, and movement. " We review de novo whether the trial court had statutory authority 

### to impose community custody . conditions. Ifthe condition is statutorily authorized, we review the [ trial] court' s decision to impose the condition for an abuse of discretion." State v. Snedden, 166 Wn. App. 541, 543, 271 P. 3d 298 (2012) ( citation omitted). Abuse of discretion occurs when the decision is exercised on untenable grounds or for untenable reasons. Snedden, 166 Wn. App. at 543. 

### Statutorily authorized conditions are usually upheld ifreasonably crime related. State v. Warren, 165 Wn.2d 17, 32, 195 P.3d 940 (2008). 

### Crime - related prohibitions limiting a convicted defendant' s fundamental rights " must be sensitively imposed' so that they are ` reasonably necessaryto accomplish the essential needs of the State and public order. "' 

### In re Pers. Restraint ofRainey, 168 Wn.2d 367, 377, 229 P.3d 686 2010) ( quoting Warren, 165 Wn.2d at 32); see State v. Riles, 135 Wn.2d 326, 346 - 47, 957 P.2d 655 ( 1998) ( 

### applying same standard to restrictions ofFirst Amendment freedom ofassociation right), abrogated on other grounds, State v. Sanchez Valencia, 169 Wn.2d 782, 239 P.3d 1059 2010); State v. Riley, 121 Wn.2d 22, 37 -38, 846 P. 2d 1365 ( 1993) ( same); 

### City ofTacoma v. Luvene, 118 Wn.2d 826, 840 n.5, 827 P.2d 1374 ( 1992) ( noting that the right to move about 

### freely is a constitutionally protected liberty within the sensitive First Amendment area). A. No Contact with Juveniles under 18 Years Old Dugger argues that the trial court's imposition of a community custody condition 

### prohibiting him from contact withjuveniles under age 18 violates his constitutionally protected

10No. 42792 - 3 -II
rights of free speech, association, and movement. Because the record supports that the no

### contact condition is reasonably necessary underthe circumstances ofthis case, we uphold it.

The Sentencing Reform Act of 1981 ( SRA), chapter 9. 94A RCW, authorizes the trial courtto impose " crime-related prohibitions" as a condition ofsentence, including ordering defendants to "[ r]efrain from direct or indirect contact with the victim of the crime or a specified
class of individuals." RCW 9. 94A.505( 8); RCW 9. 9A.703( 3)( b). Here, the trial court imposed a
condition prohibiting " contact with juveniles under 18 years of age." CP at 42, 45. An order 

### prohibiting contactwith alljuveniles implicates fundamental freedoms ofspeech, association,
and movement. 8 U.S. CONST. amends. I, V, XIV; WASH. CONST. art. I, §§ 3, 5; see Riles, 135 

### Wn.2d at 347; Luvene, 118 Wn.2d at 840 n.5. But a convicted defendant' s fundamental rights, 

### including freedom ofassociation, may be restricted ifreasonably necessary to accomplish the essential needs ofthe State and public order. Riles, 135 Wn.2d at 347; Riley, 121 Wn.2d at 37- 

### 38. Preventing harm to children is a compelling State interest. State v.Ancira, 107 Wn.App. 650, 653 -54, 27 P. 3d 1246 ( 2001); see Riles, 135 Wn.2d at 346 - 47 (upholding a condition 

### prohibiting contactwith "any-minor - age children" when the defendant had been convicted of raping a six -

year - old child). 

### Thus, the question is whetherthe condition prohibiting all contact withjuveniles under 18 

### years old is reasonably necessary to prevent Dugger from committing further sexual crimes against children. We hold that it is. Dugger was convicted offorcibly raping a 14-year - old child. As in Riles, the trial court was within its discretion to consider it necessary to protect 

### children to impose a condition prohibiting Dugger from contact with minor aged children.



### s As Dugger suggests, such an order potentially limits his interaction with friends and family members, and prohibits him from frequenting places where minors are likely to be found. 11No. 42792 - 3 - II 

### Our Supreme Court recently made clear thatthe duration, as well as the scope, ofnocontact orders must be sensitively imposed so that it is reasonably necessary to accomplish the
essential needs ofthe State and public order. Rainey, 168 Wn.2d at 381. In Rainey,the court 

### struck a lifetime no-contact order prohibiting Rainey from all contact with his child because the court was unable to determine from the record whether, in the absence ofany express 

### justification bythe trial court, a lifetime no-contact order was reasonably necessary to achieve the State' s interest in protecting the child from Rainey. 168 Wn.2d at 381 -82. Recognizing the fact-specific nature ofthe inquiry," the court remanded to the trial court for resentencing so that the court could " address the parameters ofthe no-contact order under the reasonably necessary
standard." 

### Rainey, 168 Wn.2d at 382. 

### Here,the sentencing court did not expresslyjustifythe lifetime no-contact order, but our independent review reveals that the no-contact order' s scope and duration were reasonably 

### necessary to protect children from future harm by Dugger. The record reflects that.Dugger used violence and threats ofviolence to rape a 14-year - old child. He targeted a child who was small 

### in stature and possibly underthe influence ofdrugs. Hewentto great effortto.get hisvictim alone and keep her separated from herfriends. When she tried to leave, he wrapped a cord around her neck,threatened her with a knife, directed her to a secluded ravine, and raped her. 

### Dugger did nottake responsibility for his crime at trial or sentencing and he did not demonstrate remorse or empathytoward thevictim. Based on these circumstances, we hold thatthe trial court had ample evidence to conclude that Dugger posed a future threat to otherjuveniles under 

## the age of 18 andthat imposing ano-contactorder forthe statutory maximum ofhis punishment

12No. 42792 - 3 - II

was reasonably necessary for their protection. 9 Accordingly, we uphold the sentencing condition 

### prohibiting Dugger from all contact withjuveniles under 18 years old. B. No Cellular Telephone with Photograph Storage Capability 

### Dugger also asserts that the trial court' s imposition ofa condition prohibiting him from possessing, using, or having access to any cellular telephone with photograph storage capability 

### exceeds statutory authority. The State concedes that the condition is not crime - related and, thus, the trial court lacked authority under the SRA to impose it.

### 10 We accept the State' s concession and remand to the trial court to strike the condition. 

### Accordingly, we affirm Dugger' s conviction, reverse the community custody condition prohibiting Dugger from possessing a cellular telephone with photograph storage capability, and



### 9 Dugger may bring apost sentencing motion for reliefshould his circumstances change — making the condition too onerous —or if certain conditions necessary to safeguard the protected class against further harm are met. CrR 7. 8( b)( 5) ( providing that the court may relieve a party from a final judgment, order, or proceeding for "[

### a]ny other reasonjustifying relieffrom the operation ofthe judgment "). 

### to As an initial matter,the State contends thatthe cell phone condition was not adopted by the trial court because it was contained in an unsigned appendix F to the DOC presentence investigation. We disagree. The judgment and sentence state that Dugger must comply with any 

### other recommendations made bythe DOC in the presentence report/investigation, which included appendix F. 13No. 42792 - 3 -II 

### remand to the trial court for entry ofa correctedjudgment and sentence. 

### A majority ofthe panel having determined thatthis opinion will not be printed.in the Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,. it is so ordered.
DALTON, J. P.T. We concur: 1 

# 4, NN- BRINTNALL, J.

J HANSON, A.C. J.

14