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

v. PETER JAMES CARR, Appellant. DIVISION ONE ,.-; C3 ^iCTNo. 68815-4-1 UNPUBLISHED OPINION CO ~^V-:< 

## 5 ic' FILED: February 18, 2014 

### Dwyer, J. — Peter Carr was arrested in connection with two incidents 

### involving young girls, both ofwhich occurred in June2011 atFederal Way thrift stores. The first incident occurred when Carr rubbed his hand across 8-year-old M.L.'s breast area. The second occurred when Carr asked 9-year-old K.W. 

### whether she liked the leotard he was holding, followed her from aisle to aisle, and 

### lowered his pants to expose his genitals encased in a "pink, sparkly bikini bottom." Carrwas chargedwith one count ofchild molestation in the first degree and one count ofcommunicating with a minor for immoral purposes. 

### Immediately priortotrial, Carr's attorney unsuccessfully moved to sever the counts fortrial. However, he did not renew this motion before or at the close of 

### theevidence. Ajury convicted Carr on both counts. We conclude thatthere was sufficient evidence to support his convictions, that he received effectiveNo. 68815-4-1/2
assistance of counsel, and that the offense of communicating with a minor for immoral purposes is not unconstitutionallyvague. Thus, we affirm.
I InJune 2011, when 8-year-old M.L. was shopping at the Deseret Industries thrift store with her mother and her two sisters, a man in the store touched M.L.'s breast area over her shirt. M.L. testified that it was Carr who touched her leftbreast with his right hand and that his hand "went across" her 

### breast for a period of one second. M.L. stated that Carrdid notlook at her, did 

## not say anything to her, and did not make any sounds during the encounter.1 After demonstrating in courtthe mannerin which she had been touched and, in 

### response to the prosecutor's question, "[a]nd what youjustdemonstrated was 

### rubbing onehand acrossyour breast?" M.L. answered affirmatively. Additionally, 

### priortotestifying in court, M.L. met with a child interview witness specialist and, in a recorded interview, demonstrated five times how the man touched her. 

### During four ofthedemonstrations, M.L. quickly ran herhand over her breast 

### area, applying minimal pressure.2 However, during oneofthe demonstrations, M.L. appeared to apply more pressure, and tomove herhand back andforth
across her breast area. Also, during this interview, when asked how she was 

### touched, M.L. said, "Hejust rubbed like that." This recorded interview was

1Exhibit 4 is the compact disc recording ofM.L.'s interview with a King County Prosecutor's child interview witness specialist, which was viewed by thejury. Thetranscript of that interview was marked as Exhibit 3 but not admitted into evidence. 2After the incident, butbefore being interviewed bythe witnessspecialist, M.L. also demonstrated to her oldersisterhow she had been touched, who described itas follows: "She took herright hand and swiped itacross her chest."No. 68815-4-1/3
shown to the jury. After the incident, M.L. found her mother, Alma Lopez, at the store and told Lopez that a man had touched her. Her mother did not report the incident to 

### the police or to store personnel at that time. Three days later, Lopez decided to return to Deseret Industries with her daughters to see if M.L. would recognize the man who had touched her. Although M.L. did not want to go to the store and


### was visibly upset, once they were inside, she told Lopez that the manwho had touched her was in the store; however, she did not identify him. 

### Subsequently, Lopez returned to the store with herchildren severaltimes. 

### During onevisit, Lopez discovered thata man in the store wasfollowing them and was staring at M.L. During a latervisit, on June 17, 2011, M.L. identified Carr as the man who had touched her, and Lopez notified a store employee who 

### called themanager. The manager approached Carr and said, "it's been reported 

### that you caused a disturbance in the store." Carr hastily left thestore. The police were called and officers came tothestore and spoke toM.L. and her 

### family. One ofthe officers asked M.L. to show him how the man had touched her and, obliging, she "used her right hand, open hand, and then rubbed it across her breast line .
.. [b]ack and forth a few times." 

### With regard to thetouching ofM.L., the Statecharged Carr by information with child molestation alleged to haveoccurred between June 1 and June 10, 2011. At trial, Carr asserted an alibi defense but also testified that he had not touched M.L. in the thrift store. Although neither Lopez norAngelina—M.L.'s 

### older sister—could pinpointthe date ofthe incident during which M.L. was
-3-No. 68815-4-1/4 touched, Lopez testified that itwas on a Saturday between 11:30 a.m. and noon. The testimony of two thrift store employees supported the conclusion that the date ofthe incident had to have been either Saturday, June 4 or Saturday, June 11. The State requested, and was allowed, to amend the information to allege 

### that the crime took place between June 1 and June 14, 2011. In support of the alibi defense, Carr's employer testified that Carr was working from 5 a.m. to 2 p.m. on both June 4 and June 11. Soon after the incident involving M.L., a man lowered his pants and 

### exposed part of a women's bathing suit he was wearing to nine-year-old K.W. while she was shopping at a Goodwill store with her mother. This took place on either June 21 or June 29, 2011. K.W. was shopping in the girl's clothing section 

### and her motherwas looking at women's clothing nearby. K.W. encountered a man who showed her a leotard on a hanger and asked her if she liked it, adding 

### that he liked it. K.W. did not say anything to the man and walked away. She went to a different aisle and the man followed her; she again went to a different 

### aisle and again theman followed her. Atthatpoint, K.W. testified, theman, who was about 10feetaway, looked down and pulled his pants down to the end ofhis underwear, which K.W. described as a "pink, sparkly bikini bottom." K.W. stated 

### thathis pants weredown for a few seconds, that he appeared to be "scratching hisbutt," and that he was grinning. Additionally, K.W. thought he had pulled his 

### pants down on purpose. In response totheprosecutor's question, "Could you see the man'sprivates?" K.W. said that she could not. However, K.W.'s mother, 

### in response to the prosecutor's question as towhether K.W. had been able to
-4-No. 68815-4-1/5

see the man's genitalia, said that K.W. "said she could see the shape ofit, with the tight-fitting bikini bottom." Following this incident, K.W. walked quickly back to her mother, who was in the women's section of the store. Although she told her mother that a man had talked to her, she waited until they had leftthe store to report that the man had showed her his underwear. She waited, she explained, because she considered it a private subject that was "weird" to talk about. Once they returned home, K.W.'s mother called the police. 

### The police obtained surveillance video showing Carr entering the Goodwill store at 3:56 p.m., leaving at 4:29 p.m., re-entering at 5:09 p.m., K.W. and her 

### motherentering at5:15 p.m., and Carr leaving at5:20 p.m.3 Police circulated an alert to retail securitywith a still picture. On July 7, 2011, after Sears' security 

### staffrecognized Carr, the police arrested him in his van in a nearby parking lot. When he was arrested, Carr was wearing a bright pinkwomen's swimsuit under 

### his clothing. Carrowned two women's one-piece bathing suits that he wore under his clothing when he was at home and sometimes in public. 

### The King County Prosecutorcharged Carrwith one count ofchild molestation in the first degree and one count ofcommunicating with a minorfor 

### immoral purposes. Priortotrial, Carr'sattorney moved to sever thetwo charged counts for trial. This motion was denied. Carr's attorney did not thereafter renew 3Although these times are threehours behind thetime stamps reflected by the surveillance video, Officer Kristopher Krusey explained that, during the course of his investigation, he discovered thatthere was athree-hourdiscrepancy between the time stamp and the actual time when the video was recorded. Report of Proceedings (March 28, 2012) at 749- 50.No. 68815-4-1/6
the severance motion before or at the close of the evidence. The jury found Carr guilty on both counts. The trial court imposed a sentence of a maximum oflife in prison with a minimum of 68 months of incarceration on the child molestation charge and a consecutive 364-day suspended sentence on the charge of communicating with a minor for immoral purposes. Carr appeals.
II Carr contends that there was insufficient evidence to support his conviction of child molestation inthe first degree. This is so, he avers, because the State failed to prove that the touch over M.L.'s shirt was done for sexual gratification. His contention is unavailing. When reviewing a sufficiency of the evidence challenge, "'the relevant 

### question iswhether, afterviewing the evidence in the light mostfavorable to the prosecution, anyrational trieroffact could have found the essential elements of the crimebeyonda reasonable doubt'" State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)). This appellate standard ofreview is designed to

ensure that the trial court fact finder reached the "subjective state of near 

### certitude of the guilt of the accused," required by the Fourteenth Amendment's 

### proofbeyond a reasonable doubt standard. Jackson, 443 U.S. at 315. When the sufficiency of the evidence is challengedin a criminal case, all reasonable inferences from the evidence must be drawn in favor of the State and interpreted 

### moststrongly against the defendant. State v. Salinas, 119Wn.2d 192, 201, 829
-6-No. 68815-4-1/7
P.2d 1068 (1992). A claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom. Salinas. 119 Wn.2d at 201. "Deference must be given to the trier offact who resolves conflictingtestimony and evaluates the credibility ofwitnesses and persuasiveness of material evidence." State v. Carver. 113 Wn.2d 591, 604, 781 P.2d 1308, 789 P.2d 306 (1989). To convict Carr of child molestation in the first degree, the State was required to prove that Carr had sexual contact with a child under the age of 12 who was not his wife or domestic partner and who was at least 36 months 

### youngerthan him. RCW 9A.44.083(1). The pertinent statute defines "sexual contact" as "anytouching of the sexual or other intimate parts of a person done 

### for the purpose ofgratifying sexual desire of either partyor a third party." RCW 9A.44.010(2). The breast area is a sexual orintimate part of a person. State v. Jackson. 145 Wn. App. 814, 819, 187 P.3d 321 (2008). Thus, the question is whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found beyond a reasonable doubt that Carr 

### touched M.L.'s breast areafor the purpose ofsexual gratification.4

4Pernicious language has been imported into the standard ofreview: specifically, that evidence ofsexualgratification is insufficient ifitis "susceptible ofinnocent explanation." State v. Powell. 62Wn. App. 914, 918, 816 P.2d 86(1991) (although thecourt recited theproper standard at thebeginning ofits opinion, it later indicated thattheevidence wasinsufficient becauseitwas "susceptible ofinnocent explanation"); Statev. Whisenhunt, 96Wn. App. 18, 24, 980 P.2d 232 (1999) (distinguishing Powell by holding that the evidence was not open toinnocent explanation); Statev. Price. 127Wn. App. 193, 202, 110 P.3d 1171 (2005) (also distinguishing Powell by holding thatthe evidence was not "susceptible ofinnocentexplanation"), aff'd on othergrounds, 158Wn.2d 630, 146 P.3d 1183 (2006). Ifthis were the standard, "child molestation convictions would besubject to dismissal orreversal simply because ajury could believe a nonsexual explanation for the behavior." State v. Veliz. 76 Wn. App. 775, 779 n.6, 888 P.2d 189 (1995).
-7-No. 68815-4-1/8 Viewingthe evidence inthe lightmost favorable to the State, a rational trier of fact could conclude beyond a reasonable doubt that Carr touched M.L.'s breast area for sexual gratification. "Proofthat an unrelated adult with no caretaking function has touched the intimate parts of a child supports the inference the touching was for the purpose ofsexual gratification." State v. Powell. 62 Wn. App. 914, 917, 816 P.2d 86 (1991). However, "we require 

### additional proofof sexual purpose when clothes cover the intimate part touched." State v. Harstad, 153 Wn. App. 10, 21, 218 P.3d 624 (2009). Rubbing of an intimate area is sufficient additional proof to establish a sexual purpose. Harstad. 

### 153Wn. App. at 22. Here, the additional proofof sexual purpose is supplied by evidence in the record that Carr rubbed his hand back and forth across M.L.'s 

### breast area.5 Thus, although M.L. was wearing a shirt that covered her breast area, evidence that Carr rubbed his hand back and forth across her breast area
was sufficient to allow a rational trier of fact, viewing the evidence inthe light most favorable to the State, to conclude beyond a reasonable doubt that Carr touched M.L.'s breast area for sexual gratification.
Ill Carr next contends that there was insufficient evidence presented at trial 

### to support his conviction ofcommunicating with a minor for immoral purposes.
We adhere to the view we expressed in Veliz: "the correcttest is thatrecited by the Powell court atthe beginning ofits opinion: whether, as a matter oflaw, there issufficient evidence from which a rational trier of fact couldfind all the elements of the crime beyond a reasonable doubt. 62 Wn. App. at 916." Veliz, 76 Wn. App. at 779 n.6. 5Although evidence as towhetherthis took place was in conflict, the evidence before the jury was sufficientfor the fact finder to find that this occurred. It is for the trial fact finderto resolve conflicts in testimony. Carver, 113 Wn.2d at 604.
-8-No. 68815-4-1/9
This is so, he avers, because there was insufficient evidence admitted to prove that his communication with K.W. was for an immoral sexual purpose. We disagree. RCW 9.68A.090(1) reads, in pertinent part: "[A] person who communicates with a minor for immoral purposes, or a person who communicates with someone the person believes to be a minor for immoral purposes, is guilty of a gross misdemeanor." The word "communicate" means 

### spoken word or course of conduct. State v. Schimmelpfennig. 92Wn.2d 95, 103- 04, 594 P.2d 442 (1979). See also State v. Jackman, 156 Wn.2d 736, 748, 132 

### P.3d 136 (2006) ("adefendant communicates with a minor under RCW 9.68A.090 if he or she invites or induces the minor to engage in prohibited 

### conduct"). Ultimately, "the statute prohibits communication with children for the 

### predatory purpose ofpromoting their exposure to andinvolvement in sexual misconduct." State v. McNallie, 120 Wn.2d 925, 933, 846 P.2d 1358 (1993). 

### Accordingly, the question iswhether, afterviewing the evidencein the light most favorable to the State, any rational trier of fact could have found beyond a reasonable doubt that Carr communicated with K.W. for the predatory purpose of 

### promoting her exposure to and involvement in sexual misconduct. 

### Viewing the evidence in the light mostfavorable to the State, a rational trier of fact could conclude beyond a reasonable doubt that Carrcommunicated 

### with K.W. for the predatory purpose ofpromoting her exposure to and involvement in sexual misconduct. Carr held up a leotard for K.W. to see and asked her whether she liked it, adding that he did. When she moved away to a
-9-No. 68815-4-1/10
different aisle without answering, he followed her. When she again moved away to a different aisle, he again followed her. Finally, when he was a short distance 

### away, while grinning, he pulled down his pants and displayed his pink, sparkly6 women's bathing suit, which revealed the shape of his genitals. Based on this set of circumstances, a rational trier of fact could conclude that Carr's actions
were meant to invite or induce K.W. to engage in prohibited conduct, thereby 

### promoting her exposure to and involvement in sexual misconduct.7
IV Carr next contends that we should reverse his conviction on the charge of 

### communicating with a minor for immoral purposes, asserting that the statute is unconstitutionally vague as applied to his conduct. This is evidenced, he argues, 

### by thejury's request for a definition of "immoral purposes ofa sexual nature." We disagree. We review the constitutionality of a statute de novo. Citv ofSpokane v. Neff. 152 Wn.2d 85, 88, 93 P.3d 158 (2004). However, "[t]he mere need for 

### statutory construction does not render a statute unconstitutional." State v. Evans, 177 Wn.2d 186, 203, 298 P.3d 724 (2013). It is presumed that a statute is constitutional unless its unconstitutionality appears beyond a reasonable 

### doubt, a showing which must be madeby the challenging party. Citv of Seattlev. Eze, 111 Wn.2d 22, 26, 759 P.2d 366 (1988).
6The fact that the underwearwas pink is relevantas tending to show that Carr was using itto attract children. See State v. Hosier, 157 Wn.2d 1, 13-14, 133 P.3d 936 (2006). 7In his statement ofadditional grounds, Carrasserts that there was insufficient evidence 

### to support his conviction ofcommunicating with aminorfor immoral purposes. We reject his duplicative argument. -10-No. 68815-4-1/11
"The due process vagueness doctrine seeks to ensure that the public has adequate notice ofwhat conduct is proscribed and to ensure that the public is protected from arbitrary ad hoc enforcement." State v. Saunders. 132 Wn. App. 592, 599, 132 P.3d 743 (2006). "The vagueness doctrine is violated ifthe provision (1) fails to define the criminal offense so that ordinary people can understand what conduct is proscribed and (2) fails to provide ascertainable standards of guilt to prevent arbitrary enforcement." Saunders, 132 Wn. App. at 599. However, "a statute is not unconstitutionally vague merely because a 

### person cannot predictwith complete certaintythe exact point at which his actions would be classified as prohibited conduct." Eze, 111 Wn.2d at 27. Indeed, "'one 

### who deliberately goes perilously close to an area ofproscribed conductshall take the risk that he may cross the line.'" Evans, 177 Wn.2d at 203 (quoting Bovce Motor Lines. Inc. v. United States, 342 U.S. 337, 340, 72 S. Ct. 329, 96 L. Ed. 

### 367 (1952)). Consequently, "the presumption in favor ofa law's constitutionality should be overcome onlyin exceptional cases." Eze, 111 Wn.2d at 28. 

### This is not an exceptionalcase. After being instructed that an essential element ofthe crime ofcommunicating with a minor for immoral purposes was that Carr communicated with K.W. for "immoral purposes of a sexual nature," the 

### jury asked thejudge todefine "immoral purposes ofa sexual nature." Thejudge declined to instruct the juryfurther. From this, Carr contends that "[t]hejury's search for a definition of'immoral purpose of a sexual nature' demonstrates the 

### vagueness oftheterm when applied toMr. Carr's case." However, this inference ofunconstitutional vagueness that Carr urges us to draw belies the directive that
-11

-No. 68815-4-1/12

we presume a statute to be constitutional. The jury's request for a more detailed definition ofone of the elements is open to any number ofbenign explanations. Itdoes not, however, demonstrate beyond a reasonable doubt that the statute fails to define the criminal offense so that ordinary people can understand what 

### conduct is proscribed. Neitherdoes it establish that the statute fails to provide ascertainable standards of guilt to prevent arbitrary enforcement. 

### Carr spoke to K.W. when they were alone, followed her repeatedly when she moved away from him, and, grinning, pulled down his pants when he was 

### standing close to her, revealing the shape ofhis genitals encased in his tight pink women's swimsuit bottom. An ordinary person would understand that Carr's 

### conduct was at least "perilously close to an area ofproscribed conduct." See Evans, 177 Wn.2d at 203. Accordingly, the statute is not unconstitutionally vague as applied to him in these circumstances.
V Carr next contends that he received ineffective assistance ofcounsel. 

### This is so, he avers, because his counsel failed to renew his motion to sever the 

### two charged counts before orat theclose oftheevidence. Carrfails toestablish
an entitlement to appellate relief on this claim. 

### "In order to prevail on an ineffective assistance claim, the defendant must 

### demonstrate '(1) deficient performance, thathis attorney's representation fell below the standard ofreasonableness, and (2) resulting prejudice that, but for 

### thedeficient performance, the result would have beendifferent."' Statev. Mullins, 158 Wn. App. 360, 371, 241 P.3d 456(2010) (quoting Statev. Hassan,
-12-No. 68815-4-1/13 151 Wn. App. 209, 216-17, 211 P.3d 441 (2009)). In evaluating an ineffective assistance of counsel claim, this court "must begin with 'a strong presumption counsel's representation was effective' and must base its determination on the record below." In re Pers. Restraint of Hutchinson. 147 Wn.2d 197, 206, 53 P.3d 17 (2002) (quoting State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995)). "The defendant alleging ineffective assistance ofcounsel 'must show in the record the absence of legitimate strategic or tactical reasons supporting the challenged conduct by counsel.'" Hutchinson. 147 Wn.2d at 206 (quoting McFarland, 127 Wn.2d at 336). 

### The record supports the proposition that Carr's trial counsel had legitimate tactical reasons for not renewing the motion to sever the two counts fortrial. 

### First, as the case played out, the evidence against Carr on each count was not overwhelming. On appeal, as to each count, Carr's appellate counsel advances 

### in good faith the argument that the evidence onboth counts was constitutionally insufficient. It is easy for us to envision Carr's trial counsel being of a like mind. Carr's trial counsel could have been of the opinion that Carr would be acquitted 

### by thejury on each count—especially given thetestimony admitted in support of his alibi defense to the felony count. Given the evidence admitted, which thejury

was free to view in a manner beneficial to Carr (unlike an appellate court on 

### appeal), and given appellate counsel'sgood faith view ofthe evidence—that it was constitutionally insufficient—Carr'strial counsel, for tactical reasons, may 

### have desired to proceed to ajury, on both counts, rather than risk retrial on either

count. -13-No. 68815-4-1/14
This was especially true with respect to the felony charge. At trial, the testimony came out in a manner not anticipated by the prosecution, which forced the prosecution to seek leave to amend the charging document. This unanticipated testimony was consistent with Carr's alibi defense. Although neither the State nor the court, on its own motion, could have moved to sever the counts during trial without Carr's consent, CrR 4.4(c)(2)(ii), ifCarr made such a motion the decision would have been up to the trial judge. Carr could not control the trial court's exercise of discretion as to which of the counts to sever for retrial and which to allow to go to thejury for decision. Itwas a legitimate tactical decision for Carr to wish to see the felony count—bolstered by the evidence 

### supporting his alibi defense—go tothejury.8 In short, trial counsel had reason to believe that the defense ofthe felony 

### count had gone better than anticipated. Similarly, for the same reasons that appellate counsel possesses a good faith beliefthat the evidence on both counts
was weak, so can we envision Carr's trial counsel being ofthe same view. Thus,


### we can envision legitimate tacticalreasons for Carr's trial counsel opting to have both counts proceed to verdict. Thus, Carr fails to establish deficient

8On appeal, Carrhighlights certain evidencerelevant to the communicating with a minor charge: "The evidencethatMr. Carrwas wearing a hotpink women'sswim suit under hisclothing and that [thechild] thoughtshe saw him in a sparkly bikini bottom was too inflammatory to be admitted in his trial for child molestation." Had Carr renewed the motion to sever, the trial court—presented with this very contention—may have agreed and ruled to sever the child molestation charge, allowing the misdemeanor countto go to thejury. However, such a ruling would havedeprived Carrofthe advantage gained from the unanticipated testimony as to the dateson which the touching ofM.L. must have occurred. On a retrial, the State might be better prepared to meet the alibi defense. Carr's trial counsel, whoperformed ably, could have had such tactical concerns in mind in determining not to renew the motion to sever. -14-No. 68815-4-1/15 

### performance on thepart ofhis trial counsel.9,10
VI Carr next contends that prosecutorial misconduct denied him a fairtrial. This is so, he asserts, because during closing argument the prosecutor 

### improperly (1) misstated the burden ofproof, (2) misrepresented the facts ofthe case, and (3) made arguments that appealed to thejurors' fears and prejudices about sex offenders. Again, Carr does notdemonstrate an entitlement to appellate relief. 

### To establishprosecutorial misconduct, Carr mustfirst show that the 

### prosecutor's statements were improper, and then show that Carrwas prejudiced as a result. State v. Emery, 174 Wn.2d 741, 759-65, 278 P.3d 653 (2012). 

### However, "[i]fthe defendant did not object attrial, the defendant is deemed to 

### have waived any error, unless the prosecutor's misconductwas soflagrant and il intentioned that an instruction could not have cured the resulting prejudice." 

### Emery, 174 Wn.2d at760-61. Accord Statev. McKenzie, 157 Wn.2d 44, 53 n.2,
9In his statementofadditional grounds, Carr contends that hewas prejudiced by virtue of the trial court denial ofhis original motion to sever. However, where a defendant does not renew his orhermotion to severcounts before oratthe close ofthe evidence, theissue iswaived and 

### we will address it only within the discussion ofineffective assistance ofcounsel. CrR 4.4(a); State v. McDaniel. 155 Wn. App. 829, 858-59, 230 P.3d 245 (2010). Carr did not renew his motion tosever before oratthe close ofthe evidence. Thus, we do not considerwhetherthe trial court erred by denying his pretrial motion to sever. 10 In his statementofadditional grounds, Carrasserts an alternate ground for his 

### ineffective assistance claim: specifically, that his counsel did not do asCarr requested on several occasions These included failing to remind thejury ofCarr's time cards showing that he worked on June 4and June 11, failing to remind thejury offacts relating to Carr's alibi and M.L.'s school 

### schedule, failing to provide Carrwith the dates during which Carr's picture appeared on television in relation to law enforcement seeking toapprehend him, and failing toprovide Carrwith a 

### physical copy ofthose broadcasts. However, because these arguments are notsupported by credible evidence in the record, we do not review them. State v. Alvarado. 164Wn.2d 556, 569, 192 P.3d 345 (2008) (citing RAP 10.10(c)).
-15-No. 68815-4-1/16
134 P.3d 221 (2006) (recognizing that "the absence of an objection by defense counsel 'strongly suggests to a court that the argument or event in question did 

### not appear critically prejudicial to an appellant in the context of the trial'" (quoting State v. Swan, 114 Wn.2d 613, 661, 790 P.2d 610 (1990))). "Under this 

### heightened standard, the defendant must show that (1) 'no curative instruction would have obviated any prejudicial effect on the jury' and (2) the misconduct resulted in prejudice that 'had a substantial likelihood of affecting the jury verdict.'" Emery. 174 Wn.2d at 761 (quoting State v. Thorgerson. 172 Wn.2d 438, 455, 258 P.3d 43 (2011)). In making this determination, we "focus less on 

### whether the prosecutor's misconduct was flagrant orill intentioned and more on 

### whetherthe resulting prejudice could have been cured." Emery, 174Wn.2d at
762. 

### First, Carr contends that the prosecutor misstated the burden ofproof 

### during closing argument by saying, "If, as you sitin thatdeliberation room, you 

### can say, 'I believe [M.L.],' and you can say, 'I believe [K.W.],' that is enough to endyour inquiry. That isenough toconvictthedefendant." "[I]t is an 

### unassailable principle thattheburden is on the State toprove every element and that the defendant is entitled to the benefit of any reasonable doubt. It is errorfor 

### the Stateto suggest otherwise." Statev. Warren, 165 Wn.2d 17, 26-27, 195 

### P.3d 940 (2008). Although Carr did not objecttotheprosecutor's statement, he is correct that the prosecutor's statement was improper. However, prior to 

### closing argument, thejury had been properly instructed asto the burden ofproof

16No. 68815-4-1/17 

### and the definition ofreasonable doubt.11 Had Carr interposed an objection and

11 Thepertinent languagefrom thejury instructions is as follows: The defendant has entered a plea of not guilty. That plea puts in issue every element of each crime charged. The State is the plaintiffand has the burden ofproving each element of each crime beyond a reasonable doubt. The defendant has no burden ofproving that a reasonable doubt exists as to these elements. 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 afterfully, fairly, and carefully considering all of the evidence or lack ofevidence. If, from such consideration, you have an abiding belief in the truth of the charge, you are satisfied beyond a reasonable doubt. Jury Instruction 2. To convict the defendant of the crime of child molestation in the first degree, as charged in Count I, each ofthefollowing elements ofthecrime must be proved beyond a reasonable doubt: (1) Thatduring a period oftime intervening between June 1, 2011 through June 14, 2011, thedefendant had sexual contactwith M.V.L.; (2) That M.V.L. was lessthan twelve yearsold at thetime ofthesexual contact and was not married to the defendant and was not in a state registered domestic partnership with the defendant; (3) That M.V.L. was at leastthirty-six months younger than the defendant; and (4)That this act occurredin the State ofWashington. Ifyou find from the evidence that each oftheseelements hasbeen 

### proved beyond areasonable doubt, then it will be your duty to return averdict of guilty as to Count I. On the other hand, if, after weighing all the evidence you have a reasonable doubtas to any one ofthese elements, then itwill be your duty to return a verdict of not guilty as to Count I. Jury Instruction 8. To convict the defendant of the crime of communicating with a minor for immoral purposes, as charged in Count II, each ofthe following elements ofthe crime must be proved beyond a reasonable doubt: (1) That onoraboutJune29, 2011, thedefendant communicated with K.W. for immoral purposes of a sexual nature; (2) That K.W. was a minor; and (3) That this act occurredin the State ofWashington. Ifyou find from theevidence that each oftheseelements hasbeen 

### proved beyond areasonable doubt, then itwill be your duty to return averdict of guilty as to Count II. On the other hand, if, afterweighing all of the evidence, you have a reasonable doubt as to any one ofthese elements, thenit will beyour duty to return a verdict of not guiltyas to Count II.

17No. 68815-4-1/18 requested a curative instruction, the court could easily have instructed the jury to be guided by its prior instructions. Because the asserted error could have been 

### remedied by acurative instruction, Carr is not entitled to appellate relief.12 Next, Carr contends that the prosecutor misrepresented the facts of the


### case during closing argument. Specifically, Carr objects to the prosecutor's use of the word "groped" when describing Carr's contact with M.L., and the 

### prosecutor's use oftheword "exposed" when describing Carr's lowering ofhis 

### pantsin closeproximity to K.W. "The propriety ofa prosecutor's conduct is 'reviewed in the context of the total argument, the issues in the case, the 

### evidence addressed in the argument, and the instructions given.'" State v. Reed. 

### 168 Wn. App. 553, 577, 278 P.3d 203 (quoting Statev. Russell, 125 Wn.2d 24, 85-86, 882P.2d 747 (1994)), review denied, 176Wn.2d 1009, 290 P.3d 995 

### (2012). "In closing argument, aprosecutor is afforded wide latitude to draw and express reasonable inferences from the evidence." Reed, 168 Wn. App. at577. Theprosecutor did not misrepresentfacts. Carr's claim oferror stems 

### from his misapprehension oftheevidence in therecord. As explained, there was evidence in the record that Carr rubbed his hand back and forth across M.L.'s 

### breastarea, and thatCarr lowered his pants toreveal the shape ofhis genitals to 

### K.W. The prosecutor's use ofthe word "groped" is supported by the evidence of Carr rubbing his hand back and forth across M.L.'s breast area. The 

### prosecutor's use ofthe word "exposed," taken in context, does not suggest an Jury Instruction 11.
. 12 In his statement ofadditional grounds, Carr asserts thattheprosecutor misstated the burden ofproof. We reject his duplicative argument.
-18-No. 68815-4-1/19
assertion that Carr exposed his bare genitals; instead, K.W.'s mother was asserting that he exposed the shape of his genitals beneath his tight swimsuit, which is supported by evidence inthe record. Itwas reasonable, therefore, for the prosecutor to argue from this evidence that Carr "groped" M.L. and "exposed" 

### himselfto K.W. Accordingly, the prosecutor's conduct was not improper.13 Next, Carr contends that the prosecutor improperly appealed to thejurors' fears and prejudices about sex offenders when she punctuated her rebuttal 

### argument with the statement: "He is the guy that parents warn their kids about. Find him guilty." "Prosecutors have a duty to seek verdicts free from appeals to passion or 

### prejudice." State v. Perez-Meiia. 134Wn. App. 907, 915, 143 P.3d 838 (2006). "Accordingly, a prosecutorengages in misconduct when making an argument 

### that appeals tojurors' fear and repudiation ofcriminal groups orinvokes racial, ethnic, orreligious prejudice as a reason to convict." Perez-Meiia, 134Wn. App. at 916. However, "[t]he propriety of a prosecutor's conduct is 'reviewed in the contextofthe total argument, the issues in the case, the evidence addressed in 

### theargument, and theinstructions given.'" Reed, 168 Wn. App. at577 (quoting Russell, 125 Wn.2d at 85-86). Because Carr's counsel did not object at trial, any 

### error was waived "unless the prosecutor's misconduct was so flagrant and ill intentioned that an instruction could not have cured the resulting prejudice." Emery, 174 Wn.2d at 760-61.
13 In his statement ofadditional grounds, Carr alsoobjects totheprosecutor's use ofthe words "groped" and "fondled." We reject hisduplicative argument.
-19-No. 68815-4-1/20 Although the prosecutor's conduct here was not as egregious as in PerezMeiia, where the prosecutor improperlyexhorted the jury to convict the defendant inorder to send a message to gangs, the prosecutor's statement was improper. 

### While only a small portion of the argument was inflammatory, considered in light of the issues in the case—notably, that the two incidents showed a propensity to 

### prey on children—this appeal to the jurors' aversiontoward pedophiles was magnified. Accordingly, the prosecutor's statement was improper. Nevertheless, Carr is not entitled to appellate relief. Unlike in Perez-Meiia, 

### here there was no objection interposed to the improper argument. Had there 

### been such an objection, thetrial court could have issued a proper curative instruction. We are not convinced that the challenged conduct was so flagrant 

### and ill-intentioned that such a curative instruction would not have constituted an adequate remedy.
VII Carr makes a number ofcontentions in his statement of additional 

### grounds that were not made by his attorney on appeal. None are availing. Carr contends that lawenforcement officers failed to collect exonerating 

### evidence, requiring thatthe child molestation case bedismissed. This is so, he asserts, becausetheofficerwho wascalled toDeseret Industries on June 17, 

### 2011, failed tosecure thesurveillance video from June 3 to June 17. There is no trial courtrecord with respect to thisclaim. Thus, there is nothing for us to review. No entitlement to appellate relief is established. 

### Carr next contends that the probable cause determination was improperly
-20-No. 68815-4-1/21
made with respect to the incident involving M.L. This is so, he avers, because the certification for determination of probable cause describes Carr as "rubbing" M.L.'s breast, which is not how the dispatched officer described what happened. However, because Carr did not raise this issue in the trial court, there is no record for us to review. Again, no entitlement to appellate relief has been
established. Carr next raises several issues that, in effect, contend that there was a conspiracy between the prosecutor and his defense attorney to suppress certain evidence. However, because these arguments are not supported by credible evidence in the record, we do not review them. State v. Alvarado, 164 Wn.2d 556, 569, 192 P.3d 345 (2008) (citing RAP 10.10(c)). Carr next offers affidavits from his sister and mother, wherein they both 

### assert that a juror approached them and spoke with them regarding the jury's deliberationfollowing the verdict. Because these arguments are not supported 

### by credible evidence in the record, we do not review them. Alvarado. 164Wn.2d at 569 (citing RAP 10.10(c)). Carr next contends that the charge ofcommunicating with a minor for 

### immoral purpose should be dismissed. The basis for this contention is his assertion that initially the police did not have any evidence that Carr had committed the crime. In essence, Carr appears to be challenging the trial court's denial of his Knapstad14 motion. However, the denial of a Knapstad motion is not 

### appealable aftera trial has been conducted. State v. Olson, 73Wn. App. 348,
14 State v. Knapstad. 107 Wn.2d 346, 729 P.2d 48 (1986).
-21

-No. 68815-4-1/22
357 n.6, 869 P.2d 110(1994). Thus, we do not further consider Carr's
contention. Finally, Carr contends that M.L.'s mother testified untruthfully. Credibility determinations are the province of the trial court fact finder. Carver, 113 Wn.2d

at 604.Affirmed.

We concur:

# U'JJ lkck*£,J.

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