State Of Washington v. Jonathan Perez Duenas ( 2017 )

Filed
Washington State
Court of Appeals
Division Two
June 13, 2017
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 48119-7-II
Respondent,
v.
JONATHAN PEREZ DUENAS, UNPUBLISHED OPINION
Appellant.
WORSWICK, J. — Jonathan Perez Duenas appeals his convictions and sentence for one
count of first degree child rape, two counts of first degree child molestation, and one count of
third degree child molestation. Duenas argues that (1) the trial court erred by admitting improper
opinion testimony regarding (a) H.A.’s and K.L.’s 1 credibility and (b) Duenas’s guilt; (2) the
prosecutor committed misconduct by (a) eliciting improper opinion testimony, (b) arguing facts
not in evidence, (c) making improper appeals to the jury’s passions and prejudices, (d) vouching
for H.A.’s and K.L.’s credibility, and (e) disparaging defense counsel; (3) his defense counsel
was ineffective for (a) failing to object to impermissible opinion testimony, (b) failing to renew
his child hearsay objection, and (c) failing to object to the prosecutor’s misconduct; (4) the
cumulative effect of the trial court’s errors deprived him of a fair trial; (5) Duenas’s convictions
violated the prohibition against double jeopardy; (6) the trial court erred by imposing a sentence
that exceeded the statutory maximum term; and (7) the trial court erred by ordering
1
We use initials to identify child witnesses. Gen. Order 2011–1 of Division II, In Re The Use Of
Initials Or Pseudonyms For Child Witnesses In Sex Crime Cases (Wash. Ct. App.),
http://www.courts.wa.gov/appellate_trial_courts/.
No. 48119-7-II
plethysmograph testing and prohibiting him from entering into a relationship with persons who
have minor-aged children. The State concedes that Duenas’s convictions violated the prohibition
against double jeopardy, his sentence exceeded the statutory maximum, and imposition of
plethysmograph testing was improper.
In his statement of additional grounds (SAG), Duenas claims the prosecutor committed
misconduct by (1) bolstering H.A.’s credibility, (2) making improper appeals to the jury’s
passions and prejudices, (3) disparaging defense counsel, (4) minimizing the State’s burden of
proof, and (5) misrepresenting the role of the jury.
We accept some of the State’s concessions and hold that the trial court imposed a
sentence exceeding the statutory maximum and abused its discretion in ordering plethysmograph
testing. But we reject Duenas’s remaining arguments and the State’s concession that Duenas’s
convictions violated the prohibition against double jeopardy. Accordingly, we affirm Duenas’s
convictions but remand for the trial court to amend the community custody term and to strike the
plethysmograph testing community custody condition.
FACTS
I. BACKGROUND
In 2013, K.L. told her mother, Heather,2 that Heather’s fiancé, Duenas, had been touching
both her and her sister, H.A. At the time of K.L.’s disclosure, K.L. was 14 years old, and H.A.
was nine years old. Heather contacted police, and the State charged Duenas with first degree
2
We use Heather’s first name to protect the identity of K.L. We intend no disrespect.
2
No. 48119-7-II
child rape of H.A. (count I),3 first degree child molestation of H.A. (count II),4 first degree child
molestation of H.A. (count III),5 and third degree child molestation of K.L. (count IV).6
At a pretrial hearing regarding the admissibility of H.A.’s hearsay statements, the State
asked Heather if there had been any major issues between H.A. and Duenas. Heather answered
in the negative. The State continued:
[THE STATE]: How did you start the conversation?
[HEATHER]: I—I said, [H.A.], is there anything that you would like to tell me?
And she goes, No. And I said, Well, let me make this easy for you. I said your
sister has already told me something that I think is really important that you should
probably tell me.
[THE STATE]: All right. And how did she respond?
[HEATHER]: And she started crying.
[THE STATE]: And do you recall what was said next?
[HEATHER]: I—she told me—I said, Is there anything you want to tell me? And
she started crying. . . . And then she—she told me that he had been touching her.
1 Verbatim Report of Proceedings (VRP) at 35-36. Duenas objected to the admission of H.A.’s
hearsay statements, arguing that H.A. had a motive to lie.7
The trial court ruled that H.A.’s hearsay statements would be admissible at trial because
they met the Ryan8 factors and provided sufficient indicia of reliability. The court stated that it
3
RCW 9A.44.073.
4
RCW 9A.44.083.
5
RCW 9A.44.083.
6
RCW 9A.44.089.
7
Duenas argued that the timing of the disclosure, which occurred shortly after his engagement to
Heather, showed that the children were motivated to lie because they did not want Duenas
interfering with their father or taking his place.
8
State v. Ryan, 103 Wash. 2d 165, 691 P.2d 197 (1984).
3
No. 48119-7-II
did not “see a strong enough argument for a motive to lie” because H.A. reluctantly told Heather
and K.L. about the abuse. 1 VRP at 55. The trial court also determined that H.A.’s accounts of
the abuse were consistent and noted that Heather had avoided making suggestive answers when
she talked to H.A.
II. TRIAL
At trial, H.A. testified that Duenas had touched her genitals and digitally raped her on the
same day. H.A. also testified that Duenas touched her genitals on one other occasion.
Heather also testified at trial. In describing the day she first asked H.A. about the sexual
assault allegations, she stated that she “just said, You know, is there anything you would like to
tell me? . . . Your sister has already told me some things, and I just want to make sure that
they’re true.” 2 VRP at 128. Heather continued:
So I said, Let me make this easy on you. I was, like, [K.L.] told me that [Duenas]
had been touching you. And I was, like, Is that true? And she said—I said, Is there
anything you want to tell me? And she said, No. And then she is, like, Yeah.
2 VRP at 128. Duenas did not object. Heather later testified that H.A. had a “really bad attitude
problem” in the months leading up to the sexual assault allegations and that H.A. mostly directed
her attitude toward Duenas. 2 VRP at 138. Duenas did not object.
On cross-examination, Duenas asked Heather, “[H.A. and K.L. are] good kids and they
do the right thing most of the time . . . isn’t that true? But they do lie on occasion.” 2 VRP at
158. Heather responded in the affirmative. On redirect, the following exchange took place:
[THE STATE]: Defense counsel asked if they would occasionally not be
completely honest as kids, correct?
[HEATHER]: Correct.
[THE STATE]: And they’ve told a fib or two in their day?
[HEATHER]: Yeah.
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No. 48119-7-II
[THE STATE]: Okay. Now, if they would be not forthcoming with you, would it
be about smaller stuff or would it be about a massive issue like this?
[HEATHER]: I think it would be a smaller—I—something like this is not
something that’s just made up or something that they’re going to lie about. It’s—I
mean, I can tell, especially when my kids are, like, Well we weren’t going to tell
you, but—you know what I mean? Like, it’s not something that’s just—yeah. I
don’t know how to explain it.
2 VRP at 159-60. Duenas did not object. Duenas testified in his defense and denied H.A.’s and
K.L.’s allegations.
At the close of trial, the trial court instructed the jury that “[y]ou are the sole judges of the
credibility of each witness. You are also the sole judges of the value or weight to be given to the
testimony of each witness.” Clerk’s Papers (CP) at 20. The jury was also instructed that “[a]
separate crime is charged in each count. You must decide each count separately. Your verdict
on one count should not control your verdict on the other count.” CP at 26. Additionally, the
trial court instructed the jury that sexual intercourse included penetration by any object,
including a body part, and that “sexual contact” means “any touching of the sexual or other
intimate parts of a person done for the purpose of gratifying sexual desires of either party.” CP
at 32.
During closing argument, the State argued:
The defendant raped and molested his soon-to-be stepchildren. . . . A lot of
us go through our daily routines and our daily lives and we don’t deal with child
sex abuse or don’t face it. And that’s a very good thing. It would not be a good
society, if we were all dealing with that on a daily basis.
And it’s hard when you’re faced with it. And it’s hard when you’re faced
with it not in the abstract. It’s easy to sit there and say, I recognize that this happens.
It’s easy to say that in the abstract. But when it’s right there in front of you and
you’ve gotten to know a child because they’ve testified in front of you, it’s not easy
to sit there and fully comprehend that that child has had that happen to them.
And that’s actually one of the challenges in prosecuting these cases. . . . We
have the obvious hurdle, that we need to prove our case beyond a reasonable doubt.
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No. 48119-7-II
But we also need 12 people to accept that this really did happen. And that’s a hard
thing to do.
But the unfortunate reality is that this stuff happens. It happens to kids every
day and it happened to [K.L.] and it happened to [H.A.]. And it happened to them
at the hands of the defendant.
4 VRP at 386-87. Duenas did not object.
The State continued and noted that one count of first degree child rape and two counts of
first degree child molestation pertained to H.A.; the remaining third degree child molestation
count related to K.L. In discussing the charges related to H.A., the State argued:
Now, both Counts 1 and 2 deal with the same incident, so I want to be clear on that.
So [H.A.] described two incidents. The first incident, which involved the defendant
putting his fingers in her vagina, and that is what’s covered in Counts 1 and 2. So
you have two different crimes charged at the same incident. And to help guide you
on this, you have an instruction that says you’re to treat each count separately.
So what you do is you decide Count 1 and you come to a decision. And
then separate from your decision on Count 1, you decide Count 2. So there isn’t,
oh, well, we found him guilty of Count 1, so we covered that incident. No, you
then completely separately go in and you decide, independent of your determination
on Count 1, do we think Count 2 occurred?
4 VRP at 388-89. Duenas did not object.
The State then addressed the third degree child molestation of K.L. charge, stating:
So then she describes the defendant rubbing her calf. It’s lasting about a minute.
So what’s going on at this point? Well, we can’t get inside the defendant’s head,
but from the evidence, I would argue that what’s going on is a couple of
possibilities. One, he’s testing the waters. He’s rubbing her calf and seeing, okay,
A. Is she awake? And B. Am I going to get some reaction? Because it’s kind of
an innocent part of the body. It’s not obviously problematic.
So he’s rubbing her calf and he’s not really getting a response. He’s not
getting her pushing away, so he continues. . . .
....
Then, he works his way to her vagina. And she talked about this in a very
unique, specific way. . . . That’s detail that I would argue doesn’t come out if
somebody isn’t being truthful about what happened. People—if somebody were
fabricating something, they’re not coming up with details like [K.L.] is coming up
with. That’s a detail that should send some shivers down some of you. Because
that really paints a very troubling picture.
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No. 48119-7-II
4 VRP at 398. Duenas did not object.
In concluding his closing argument, the State argued:
And I would argue that to dismiss this case as simply, a they said it happened case,
wouldn’t do justice to the evidence that’s presented. It would mischaracterize it.
Because we have more than that. We have the corroboration, we have people being
consistent, we have a lack of motivation to lie.
But more importantly, we also have the impact of evidence. . . .
....
The impact that this has had on everybody involved is very real. What the
defendant did to these children is very real and it has been proven to you. I’d ask
that you come back guilty.
4 VRP at 411-13. Duenas did not object.
During closing argument, defense counsel attacked H.A.’s and K.L.’s credibility and
argued that they fabricated the sexual assault allegations. Defense counsel also stated, “Now,
how do we prove it didn’t happen? Well, there’s no physical evidence. We rely upon the
testimony and we look at that testimony.” 4 VRP at 416-17.
During rebuttal argument, the State noted that defense counsel was
accusing [H.A. and K.L.], knowing full well that their mother got to leave the
stresses of her job, got to come home and spend time with them, that she was in
love with the defendant, that they were happy and set to be married. And what he
is accusing them of doing, is fabricating sexual assault allegations and carrying it
through.
4 VRP at 423. The State also noted that “what [defense counsel] is accusing them of doing is
absolutely egregious. . . . [N]obody here—and we don’t have evidence so—what was actually
going on?” 4 VRP at 424. Duenas did not object to the State’s argument.
The State continued,
Now, defense counsel, you know, brings up these points that we don’t have
physical evidence and that’s kind of dovetailing, because there was some people
during jury selection that said I want physical evidence. . . .
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No. 48119-7-II
. . . He raises the bar for the State to a point where no prosecutor could ever
clear that bar. And hammers on, well, it’s not proof beyond a reasonable doubt.
And that’s doing exactly what we talked about, is it’s taking preconceived
notions and that’s not what we’re supposed to do. It’s saying that you need
physical—or you need DNA [(deoxyribonucleic acid)].
....
Beyond a reasonable doubt is described and now you have a definition. It’s
when you have an abiding belief in the charges, that’s it. . . .
So when you are analyzing arguments the defense made, you got to ask
yourself, does it affect my abiding belief that this happened? And the defense
argument can be effective, but it’s misleading because I don’t have to put on a
perfect case. The law doesn’t require me to put on a perfect case. That’s why I
don’t have to prove my case beyond all possible doubt whatsoever.
4 VRP at 428-30. Duenas did not object.
III. SENTENCING
The jury found Duenas guilty of all charges. The court sentenced Duenas to a total of
175 months in confinement. Duenas’s sentence included 54 months of incarceration and 36
months of community custody for the third degree child molestation conviction. The court also
ordered that Duenas “submit to plethysmography exams, at [his] own expense, at the direction of
the community corrections officer” and that he “not enter into a relationship with anyone who
has minor aged children residing in or visiting their home without the approval of the therapist
and the [community corrections officer]” as community custody conditions. CP at 57, 76.
Duenas appeals his convictions and sentence.
ANALYSIS
I. IMPERMISSIBLE OPINION TESTIMONY
Duenas argues that Heather’s testimony that H.A. and K.L. would not lie about an issue
like sexual assault constituted improper opinion testimony regarding (a) H.A.’s and K.L.’s
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No. 48119-7-II
credibility and (b) Duenas’s guilt. The State argues that Duenas failed to preserve this issue for
appeal. We agree with the State.
A defendant may assign evidentiary error on appeal only on a specific ground made at
trial. State v. Kirkman, 159 Wash. 2d 918, 926, 155 P.3d 125 (2007). Generally, we will not
consider a claim of error for the first time on appeal unless it is a manifest error affecting a
constitutional right. RAP 2.5(a)(3). To demonstrate manifest error, the defendant must show
actual prejudice by identifying a constitutional error and showing that the alleged error actually
affected his rights at trial. Kirkman, 159 Wash. 2d at 926-27. To determine if the defendant claims
a manifest constitutional error, we preview the merits of the defendant’s claim to see if it would
succeed. State v. Kirwin, 165 Wash. 2d 818, 823, 203 P.3d 1044 (2009).
The trial court has wide discretion in determining the admissibility of evidence, and we
review its decision of whether to admit evidence for abuse of discretion. State v. Demery, 144
Wash. 2d 753, 758, 30 P.3d 1278 (2001). A trial court abuses its discretion when its decision to
admit evidence is manifestly unreasonable or based on untenable grounds or reasons. State v.
Gunderson, 181 Wash. 2d 916, 922, 337 P.3d 1090 (2014).
Generally, no witness may offer testimony in the form of an opinion regarding a
witness’s credibility or the defendant’s guilt. Demery, 144 Wash. 2d at 759; Kirkman, 159 Wash. 2d
at 927. Such testimony is unfairly prejudicial to the defendant because it invades the exclusive
province of the jury. Demery, 144 Wash. 2d at 759.
“[W]hen a witness does not expressly state his or her belief of the victim’s account, the
testimony does not constitute manifest constitutional error.” State v. Warren, 134 Wash. App. 44,
55, 138 P.3d 1081 (2006), aff’d on other grounds, 165 Wash. 2d 17, 195 P.3d 940 (2008), cert.
9
No. 48119-7-II
denied, 556 U.S. 1192 (2009). Similarly, manifest constitutional error is not present unless a
witness gives an explicit or near explicit opinion on the defendant’s guilt. State v. King, 167
Wash. 2d 324, 332, 219 P.3d 642 (2009). Moreover, the admission of improper opinion testimony
can be cured by a proper instruction. State v. Hager, 171 Wash. 2d 151, 159, 248 P.3d 512 (2011).
On cross-examination, Duenas asked Heather if H.A. and K.L. lied on occasion. On
redirect examination, the State addressed Duenas’s question:
[THE STATE]: And [H.A. and K.L. have] told a fib or two in their day?
[HEATHER]: Yeah.
[THE STATE]: Okay. Now, if they would be not forthcoming with you, would it
be about smaller stuff or would it be about a massive issue like this?
[HEATHER]: I think it would be a smaller—I—something like this is not
something that’s just made up or something that they’re going to lie about.
2 VRP at 159-60. Duenas did not object. Following closing arguments, the trial court instructed
the jury that it was the sole judge of a witness’s credibility and of the weight of that witness’s
testimony.
A. Testimony Regarding H.A.’s and K.L.’s Credibility
Duenas argues that Heather’s testimony that H.A. and K.L. would not lie about an issue
like sexual assault was improper opinion testimony regarding H.A.’s and K.L.’s credibility.
Because Duenas did not preserve this claim of error for appeal, we do not review it.
Heather testified that H.A. and K.L. generally did not lie about “massive” issues like
sexual assault allegations. Because Duenas did not object, he must show that this issue is a
manifest error of constitutional magnitude.
However, Heather did not expressly state that she believed H.A. and K.L. were telling the
truth or that they did not lie. Further, Duenas does not show that the trial court’s jury instruction
failed to cure any resulting prejudice. Accordingly, Duenas fails to show that the trial court
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No. 48119-7-II
committed a manifest constitutional error by admitting Heather’s testimony, and we do not
review his claim of error.
B. Testimony Regarding Duenas’s Guilt
Duenas argues that Heather’s testimony that H.A. and K.L. would not lie about an issue
like sexual assault was improper opinion testimony regarding Duenas’s guilt. Because Duenas
did not preserve this claim of error for appeal, we do not review it.
Heather’s testimony was not an explicit or near explicit opinion on Duenas’s guilt.
Consequently, the admission of her testimony was not a manifest error of constitutional
magnitude. Thus, Duenas has not preserved this claim for appeal, and we do not review it.
II. PROSECUTORIAL MISCONDUCT
Duenas argues that the prosecutor committed flagrant and ill-intentioned misconduct by
(a) eliciting improper opinion testimony from Heather regarding H.A.’s and K.L.’s credibility
and Duenas’s guilt, (b) arguing facts not in evidence, (c) making improper appeals to the jury’s
passions and prejudices, (d) vouching for H.A.’s and K.L.’s credibility, and (e) disparaging
defense counsel. We hold that most of the claimed misconduct was not improper and that
Duenas waived the remaining issues.
To establish prosecutorial misconduct, a defendant bears the burden of proving the
prosecutor’s conduct was both improper and prejudicial. State v. Thorgerson, 172 Wash. 2d 438,
442, 258 P.3d 43 (2011).
Where, as here, a defendant fails to object to alleged prosecutorial misconduct, he is
deemed to have waived any error unless he shows the misconduct “was so flagrant and ill
intentioned that an instruction [from the trial court] could not have cured the resulting prejudice.”
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No. 48119-7-II
State v. Emery, 174 Wash. 2d 741, 760-61, 278 P.3d 653 (2012). In order to meet 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.’” 174 Wash. 2d at 761 (quoting Thorgerson, 172 Wash. 2d at
455).
A. Eliciting Impermissible Opinion Testimony
Duenas argues that the prosecutor committed misconduct by eliciting improper opinion
testimony from Heather regarding H.A.’s and K.L.’s credibility and Duenas’s guilt. His
argument is based on the same exchange occurring between the prosecutor and Heather
discussed above. We hold that the prosecutor’s conduct was not improper.
A prosecutor commits misconduct when his questioning seeks to compel a witness’s
opinion as to whether another witness is telling the truth. State v. Jerrels, 83 Wash. App. 503, 507,
925 P.2d 209 (1996). Testimony regarding another witness’s credibility is prejudicial because
weighing the credibility of a witness is the province of the jury. Demery, 144 Wash. 2d at 759.
During cross-examination, Heather affirmatively responded to Duenas’s question
regarding whether H.A. and K.L. lie. The prosecutor’s questions on redirect examination sought
to explore the types of matters H.A. and K.L. lied about. The prosecutor did not ask Heather
whether H.A. and K.L. were telling the truth. Accordingly, the prosecutor did not seek to
compel Heather’s opinion about whether H.A. and K.L. were telling the truth. As a result,
Duenas fails to show that the prosecutor’s question was improper.
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No. 48119-7-II
B. Arguing Facts Not in Evidence
Duenas also argues that the prosecutor committed misconduct by arguing facts not in
evidence by stating that Duenas “raped and molested his soon-to-be stepchildren.” Br. of
Appellant at 27. We hold that the prosecutor’s conduct was not improper.
We review a prosecutor’s statements during closing argument in the context of the total
argument, the issues in the case, the evidence addressed in closing argument, and the jury
instructions. State v. Dhaliwal, 150 Wash. 2d 559, 578, 79 P.3d 432 (2003). It is improper for a
prosecutor to assert during closing argument facts not admitted as evidence during trial. In re
Pers. Restraint of Glasmann, 175 Wash. 2d 696, 705, 286 P.3d 673 (2012). We accord a
prosecutor some latitude to argue reasonable inferences from facts in evidence. Dhaliwal, 150
Wash. 2d at 577.
During closing argument, the prosecutor stated, “The defendant raped and molested his
soon-to-be stepchildren.” 4 VRP at 386. Later, the prosecutor noted that one count of first
degree child rape and two counts of first degree child molestation pertained to H.A.; the
remaining third degree child molestation count related to K.L.
Duenas argues that the prosecutor asserted facts not in evidence during closing argument
because there was no evidence presented at trial that Duenas raped both H.A. and K.L.
However, viewing the statement in the context of the total argument and the issues in the case, it
is clear that the prosecutor was not arguing that Duenas was also guilty of child rape of K.L. The
prosecutor did not argue that Duenas was also guilty of child rape of K.L. when addressing the
evidence and charges, and he did not suggest that Duenas committed uncharged acts.
Accordingly, the prosecutor’s statement was proper.
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No. 48119-7-II
C. Improper Appeals to the Jury’s Passions and Prejudices
Duenas also argues that the prosecutor committed misconduct by making improper
appeals to the jury’s passions and prejudices. Specifically, Duenas argues the prosecutor made
improper appeals to the jury’s passions and prejudices by (1) arguing that the jury needed to
prevent the destruction of society, (2) providing a first person narrative of Duenas’s thought
process, (3) encouraging the jury to have an emotional reaction to the testimony at trial, and (4)
inviting the jury to consider the emotional impact of the crimes on Heather’s family. We hold
that most of the claimed misconduct was not improper and that Duenas waived the remaining
issues.
A prosecutor has wide latitude to draw and express reasonable inferences from the
evidence during closing argument. State v. Perez-Mejia, 134 Wash. App. 907, 916, 143 P.3d 838
(2006). However, a prosecutor has a duty to seek verdicts free from appeals to the jury’s
passions or prejudices. 134 Wash. App. at 915. Arguments that are intended to “‘incite feelings of
fear, anger, and a desire for revenge’ that are ‘irrelevant, irrational, and inflammatory’ are
improper appeals to passion or prejudice.” In re Pers. Restraint of Cross, 180 Wash. 2d 664, 724-
25, 327 P.3d 660 (2014) (internal quotation marks omitted) (quoting State v. Elledge, 144 Wash. 2d
62, 85, 26 P.3d 271 (2001)).
1. Destruction of Society
Duenas argues that the prosecutor made improper appeals to the jury’s passions and
prejudices by arguing that the jury needed to protect the community. We hold that this conduct
was not improper.
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No. 48119-7-II
Generally, appeals for the jury to act as a conscience of the community are permissible
unless they are specifically designed to inflame the jury. State v. Davis, 141 Wash. 2d 798, 873, 10
P.3d 977 (2000). During closing argument, the prosecutor stated:
A lot of us go through our daily routines and our daily lives and we don’t deal with
child sex abuse or don’t face it. And that’s a very good thing. It would not be a
good society, if we were all dealing with that on a daily basis.
4 VRP at 386.
In arguing that it would not be a good society if jurors dealt with sexual assault on a daily
basis, the prosecutor did not ask the jury to convict Duenas to protect their society. Rather, the
prosecutor made a generalization about society. Further, the argument cannot be said to have
been specifically designed to inflame the passions and prejudices of the jury because it was not
inflammatory, and the prosecutor did not make the statement in an effort to seek a conviction on
the basis of fear and anger. Duenas fails to show that the prosecutor’s argument was improper.
2. Duenas’s Thought Process
Duenas also argues that the prosecutor made improper appeals to the jury’s passions and
prejudices by providing a first person narrative of his thought process. We hold that this conduct
was not improper.
In discussing the third degree child molestation of K.L. charge, the prosecutor said:
Well, we can’t get inside the defendant’s head, but from the evidence, I would argue
that what’s going on is a couple of possibilities. One, he’s testing the waters. He’s
rubbing her calf and seeing, okay, A. Is she awake? And B. Am I going to get some
reaction?
4 VRP at 397-98.
Duenas relies on State v. Pierce, 169 Wash. App. 533, 280 P.3d 1158 (2012), to support his
contention that the prosecutor’s account of his thought process amounted to misconduct. In
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No. 48119-7-II
Pierce, the prosecutor stepped into the shoes of the defendant during closing argument by
repeatedly presenting the thought process of the defendant from the first person point of view.
169 Wash. App. at 554-55. We determined the statements served no purpose other than to inflame
the jury’s passions and prejudices by portraying the defendant as an impatient, amoral drug
addict who refused to work. 169 Wash. App. at 554. We noted that the prosecutor could have
asked the jury to infer this view from the facts but went beyond his wide latitude in drawing
inferences from evidence by effectively testifying about the defendant’s particular thoughts. 169
Wash. App. at 555. We concluded that the cumulative effect of these statements, as well as other
improper statements during closing argument, prejudiced the defendant. 169 Wash. App. at 556.
Pierce is factually distinguishable. The prosecutor’s statements here do not rise to the
same level of impropriety as in Pierce. Here, the prosecutor argued that the jury could infer
from the evidence presented at trial that Duenas was testing his boundaries, but he did not
explicitly attribute amoral or criminal thoughts to Duenas. As a result, the prosecutor’s argument
was not improper.
3. Emotional Reaction to Testimony
Duenas also argues that the prosecutor made improper appeals to the jury’s passions and
prejudices by encouraging the jury to have an emotional reaction to the evidence presented at
trial. We hold that Duenas waived this issue on appeal.
The State commits misconduct by asking the jury to convict based on emotions instead of
the evidence. State v. Fuller, 169 Wash. App. 797, 821, 282 P.3d 126 (2012). While a prosecutor
is not barred from referring to the heinous nature of a crime, the prosecutor nevertheless retains a
duty to ensure a verdict is free from prejudice. Pierce, 169 Wash. App. at 553.
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No. 48119-7-II
During closing argument, the prosecutor addressed the third degree child molestation of
K.L. charge. The prosecutor noted that K.L. described the offense in a unique and detailed way,
and he argued that the amount of detail “should send some shivers down some of you.” 4 VRP
at 398. Duenas did not object.
We assume that the prosecutor’s comment that K.L.’s account “should send some shivers
down some of you” was improper. Nonetheless, we note that it was a brief and isolated
statement. Duenas fails to show that the statement was so flagrant and ill-intentioned that an
instruction could not have cured any resulting prejudice. Accordingly, Duenas has waived this
issue.
4. Impact on Heather’s Family
Duenas also argues that the prosecutor made improper appeals to the jury’s passions and
prejudices by inviting the jury to consider the emotional impact of the crimes on Heather’s
family. We hold that Duenas waived this issue.
In concluding his closing argument, the prosecutor stated:
We have the corroboration, we have people being consistent, we have a lack of
motivation to lie.
But more importantly, we also have the impact of evidence. . . .
....
The impact that this has had on everybody involved is very real. What the
defendant did to these children is very real and it has been proven to you. I’d ask
that you come back guilty.
4 VRP at 411-13. Duenas did not object.
The prosecutor’s discussion of the allegations’ impact on Heather and her family was
irrelevant to the charged offenses and constituted an appeal to the jury’s passions and prejudices.
However, the prosecutor only briefly referred to the allegations’ impact and did not elaborate on
17
No. 48119-7-II
the type of impact caused or its effect on H.A., K.L., or Heather. Duenas cannot show that the
prosecutor’s statement had a substantial likelihood of affecting the jury’s verdict. Accordingly,
the prosecutor’s statement was not so flagrant and ill-intentioned that an instruction could not
have cured any resulting prejudice. Thus, Duenas waived this issue.
D. Vouching for H.A.’s and K.L.’s Credibility
Duenas also that argues the prosecutor committed misconduct by vouching for H.A.’s
and K.L.’s credibility. We hold that the prosecutor’s conduct was not improper.
A prosecutor commits misconduct by vouching for a witness’s credibility. State v.
Coleman, 155 Wash. App. 951, 957, 231 P.3d 212 (2010). Improper vouching may occur when a
prosecutor (1) expresses his personal belief as to the veracity of a witness or (2) argues that
evidence not presented at trial supports the witness’s testimony. Thorgerson, 172 Wash. 2d at 443.
Despite this, misconduct only occurs when it is clear and unmistakable that the prosecutor is not
arguing an inference from the evidence but is expressing a personal opinion. State v. McKenzie,
157 Wash. 2d 44, 53, 134 P.3d 221 (2006).
During closing argument, the prosecutor stated that sexual assault affects kids every day
and that “it happened to [K.L.] and it happened to [H.A.].” 4 VRP at 387. In describing the
third degree child molestation of K.L. charge, the prosecutor said that K.L. discussed the offense
in a unique way and with “detail that I would argue doesn’t come out if somebody isn’t being
truthful about what happened.” 4 VRP at 398.
Duenas argues that the prosecutor attempted to bolster H.A.’s and K.L.’s credibility by
stating that sexual abuse happens to kids every day. However, in the context of the entire
argument, the prosecutor did not argue that because sexual abuse happens to kids every day, H.A.
18
No. 48119-7-II
and K.L. were telling the truth. Moreover, the prosecutor did not express his personal opinion
regarding H.A.’s and K.L.’s credibility. Accordingly, Duenas does not show that the prosecutor’s
statement was improper.
Duenas also argues that the prosecutor expressed his personal belief regarding K.L.’s
credibility in stating that the details she gave in describing the assault only come out if someone is
being truthful. Defense counsel attacked K.L.’s credibility throughout trial. The prosecutor
responded to defense counsel’s argument by arguing that evidence could support the jury’s
conclusion that K.L. was credible. As a result, the prosecutor did not express his personal opinion
that K.L. was credible or that her testimony was truthful. Accordingly, the prosecutor’s statement
was not improper.
E. Disparaging Defense Counsel
Duenas also argues that the prosecutor committed misconduct by disparaging defense
counsel in implying that defense counsel was being misleading. We hold that Duenas waived
this issue.
It is improper for a prosecutor to disparagingly comment on defense counsel’s role or
challenge defense counsel’s integrity. Thorgerson, 172 Wash. 2d at 465. Disparaging defense
counsel, however, is significantly different from disparaging defense counsel’s argument. See
Thorgerson, 172 Wash. 2d at 451.
In closing argument, defense counsel attacked H.A.’s and K.L.’s credibility and argued
that they fabricated the sexual assault allegations. During his rebuttal argument, the prosecutor
stated that it was “absolutely egregious” for defense counsel to suggest that H.A. and K.L. were
lying. 4 VRP at 424. Duenas did not object.
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No. 48119-7-II
The prosecutor continued and addressed defense counsel’s argument that the State failed
to present physical evidence of sexual assault. The prosecutor stated that “the defense[’s]
argument can be effective, but it’s misleading because I don’t have to put on a perfect case.” 4
VRP at 430.
Duenas did not object to any of the prosecutor’s statements. Assuming without deciding
that the prosecutor’s statements disparaged defense counsel, Duenas cannot show that the
prosecutor’s statements had a substantial likelihood of affecting the jury’s verdict. H.A.’s and
K.L.’s testimony was consistent throughout trial, and the prosecutor’s statement reiterated that
physical evidence was not necessary for a conviction. Accordingly, Duenas fails to show that
the statements were so flagrant and ill-intentioned that an instruction could not have cured any
resulting prejudice. Thus, Duenas waived this issue.
III. INEFFECTIVE ASSISTANCE OF COUNSEL
Duenas also argues that defense counsel was ineffective by (a) failing to object to
Heather’s impermissible opinion testimony regarding H.A.’s and K.L.’s credibility and Duenas’s
guilt, (b) failing to renew his child hearsay objection following Heather’s inconsistent trial
testimony regarding H.A.’s allegations, and (c) failing to object to the prosecutor’s purported
misconduct during closing argument and by failing to request a curative instruction. We
disagree.
We review ineffective assistance of counsel claims de novo. State v. Brown, 159 Wn.
App. 366, 370, 245 P.3d 776, review denied, 171 Wash. 2d 1025 (2011). In asserting an ineffective
assistance of counsel claim, a defendant must overcome a strong presumption of effective
representation. State v. McFarland, 127 Wash. 2d 322, 335, 899 P.2d 1251 (1995).
20
No. 48119-7-II
The defendant must show that defense counsel’s representation was deficient and that
defense counsel’s deficient representation prejudiced him. State v. Grier, 171 Wash. 2d 17, 32-33,
246 P.3d 1260 (2011). Defense counsel’s performance is deficient if it falls below an objective
standard of reasonableness and was not based on a tactical decision. State v. Beasley, 126 Wn.
App. 670, 686, 109 P.3d 849 (2005). Prejudice occurs when, but for defense counsel’s deficient
performance, there is a reasonable probability that the outcome at trial would have been
different. 126 Wash. App. at 686.
A. Failure To Object to Impermissible Opinion Testimony
Duenas argues that defense counsel was ineffective by failing to object to Heather’s
impermissible opinion testimony regarding H.A.’s and K.L.’s credibility and Duenas’s guilt. We
disagree because Duenas cannot show that defense counsel’s performance prejudiced him.
To prove that defense counsel was ineffective for failing to challenge the admission of
evidence, a defendant must show that (1) the failure to object fell below prevailing professional
norms, (2) the proposed objection would likely have succeeded, and (3) the result of the trial
would have been substantially different had the objection succeeded. In re Pers. Restraint of
Davis, 152 Wash. 2d 647, 714, 101 P.3d 1 (2004). Counsel’s failure to object to testimony cannot
prejudice a defendant unless the trial court would have ruled that the testimony was inadmissible.
See McFarland, 127 Wash. 2d at 337.
During cross-examination, Duenas asked Heather whether H.A. and K.L. lied. Heather
responded in the affirmative. On redirect, the State asked if H.A. and K.L. “would be not
forthcoming . . . about smaller stuff or . . . about a massive issue like [sexual assault]?” 2 VRP at
21
No. 48119-7-II
159. Heather stated that “this is not something that’s just made up or something that [H.A. and
K.L. are] going to lie about.”2 VRP at 159-60. Duenas did not object.
Duenas argues that he received ineffective assistance of counsel because defense counsel
failed to object to Heather’s impermissible opinion testimony. However, as discussed above,
Heather did not expressly state that she believed H.A. and K.L. were telling the truth or that
Duenas was guilty. As a result, Duenas fails to show that Heather’s testimony constituted
impermissible opinion testimony, and the trial court likely would have overruled any objection to
that testimony. Because Duenas cannot show that Heather’s testimony was inadmissible, or that
the trial court would have sustained an objection to Heather’s testimony, defense counsel’s
failure to object to that testimony was not prejudicial. Thus, Duenas’s claim fails.
B. Failure To Renew Child Hearsay Objection
Duenas also argues that defense counsel was ineffective by failing to renew his child
hearsay objection following Heather’s inconsistent trial testimony. We disagree because Duenas
cannot show that defense counsel’s performance prejudiced him.
To prove that defense counsel was ineffective for failing to object, a defendant must
show that (1) the failure to object fell below prevailing professional norms, (2) the proposed
objection would likely have succeeded, and (3) the result of the trial would have been
substantially different had the objection succeeded. Davis, 152 Wash. 2d at 714.
Before trial, the State moved to admit hearsay statements H.A. made to Heather. At a
pretrial hearing regarding the admissibility of H.A.’s hearsay statements, Heather stated that
there had not been any major issues between H.A. and Duenas. Heather also said that H.A. was
22
No. 48119-7-II
reluctant to tell her about the sexual assault and that she asked H.A. open-ended questions to
learn what had occurred.
The trial court ruled that H.A.’s hearsay statements would be admissible. The court
determined that H.A. did not have a motive to lie because she reluctantly told Heather about the
abuse and that H.A.’s statements provided sufficient indicia of reliability because H.A. was fairly
consistent in her accounts of the abuse. The trial court also took note that Heather avoided
making suggestive answers in asking H.A. about the abuse.
At trial, Heather testified that she asked H.A. a series of leading questions when she first
confronted H.A. about the sexual assault allegations. Duenas did not object. Heather also
testified that H.A. had a bad attitude in the months leading up to the allegations and that H.A.
mostly directed her attitude toward Duenas. Duenas did not object.
The trial court determined that H.A.’s hearsay statements provided sufficient indicia of
reliability because H.A. did not have a strong motive to lie and because her allegations were
fairly consistent. Although Heather testified about asking H.A. leading questions and testified
that H.A. had a bad attitude toward Duenas, her testimony still showed that H.A. reluctantly told
her about the abuse and that H.A.’s accounts of the abuse were fairly consistent. Accordingly,
Duenas cannot show that had defense counsel renewed his objection to H.A.’s hearsay
statements, the objection would have been successful. Therefore, Duenas cannot show that
defense counsel’s failure to renew the objection prejudiced him, and his claim fails.
C. Failure To Object to Prosecutorial Misconduct
Duenas also argues that defense counsel was ineffective by failing to object to the
prosecutor’s purported misconduct during closing argument and by failing to request a curative
23
No. 48119-7-II
instruction. We disagree because Duenas cannot show that his defense counsel’s performance
prejudiced him.
As discussed above, most of the claimed prosecutorial misconduct was not improper.
Consequently, we turn to Duenas’s claims that defense counsel was ineffective for failing to
object to the prosecutor’s statements during closing argument that encouraged an emotional
reaction to K.L.’s testimony, discussed the impact of the crimes on Heather’s family, and
disparaged defense counsel.
Even assuming defense counsel’s performance was deficient, Duenas cannot show a
reasonable probability that, but for defense counsel’s errors, the jury’s verdict would have been
different. The prosecutor’s statements encouraging an emotional reaction, discussing the crimes’
impact, and disparaging defense counsel were brief and isolated. The statements were not
central to the prosecutor’s case, and H.A.’s and K.L.’s testimony provided compelling evidence
of Duenas’s guilt. Accordingly, Duenas fails to demonstrate that defense counsel’s performance
was prejudicial, and his claim of ineffective assistance of counsel fails.
IV. CUMULATIVE ERROR
Duenas also argues that the cumulative effect of the trial court’s errors deprived him of a
fair trial. We disagree.
The cumulative error doctrine applies when a trial is affected by several errors that,
standing alone, may not be sufficient to justify reversal. State v. Greiff, 141 Wash. 2d 910, 929, 10
P.3d 390 (2000). Cumulative error requires reversal when the combination of errors denies the
defendant a fair trial. 141 Wash. 2d at 929. Reversal is not required when there are few or no
24
No. 48119-7-II
errors and the errors, if any, have little to no effect on the outcome of the trial. State v. Weber,
159 Wash. 2d 252, 279, 149 P.3d 646 (2006).
Here, the only errors we consider involve prosecutorial misconduct. As discussed above,
it was error for the prosecutor to encourage an emotional reaction to K.L.’s testimony, discuss
the emotional impact of the crimes on Heather’s family, and disparage defense counsel during
closing argument. However, the combined effect of these errors do not require reversal. The
prosecutor’s statements resulted in little prejudice as they were brief and isolated statements that
occurred during the prosecutor’s lengthy closing argument. Moreover, H.A.’s and K.L.’s
testimony provided the jury with an abundance of evidence of Duenas’s guilt, and the jury was
properly instructed on how to weigh that evidence. The prosecutor’s statements did not
undermine Duenas’s convictions or his right to a fair trial.
As a result, Duenas fails to establish that he was prejudiced by the alleged errors, and he
does not show how these combined alleged errors affected the outcome of his trial. Because the
alleged errors had little to no effect on the outcome of his trial, we hold that Duenas’s cumulative
error claim fails and does not warrant reversal.
V. DOUBLE JEOPARDY
Duenas also argues that his convictions for one count of first degree child rape of H.A.
and one count of first degree child molestation of H.A. violated the prohibition against double
jeopardy. The State concedes error. We reject the State’s concession and affirm Duenas’s
25
No. 48119-7-II
conviction for one count of first degree child rape and one count of first degree child
molestation.9
Double jeopardy claims are questions of law we review de novo. State v. Hughes, 166
Wash. 2d 675, 681, 212 P.3d 558 (2009). The double jeopardy clause of the Fifth Amendment to
the United States Constitution provides that a person may not be subject for the same offense to
be twice put in jeopardy of life and limb. U.S. CONST. amend. V. Similarly, the Washington
State Constitution states, “No person shall be . . . twice put in jeopardy for the same offense.”
WASH. CONST. art. I, § 9.
A trial court that enters multiple convictions for the same offense violates double
jeopardy. In re Pers. Restraint of Francis, 170 Wash. 2d 517, 523, 242 P.3d 866 (2010). However,
“if each count arises from a separate and distinct act, the defendant is not potentially exposed to
multiple punishments for a single act.” State v. Peña Fuentes, 179 Wash. 2d 808, 824, 318 P.3d
257 (2014). “Where a defendant’s act supports charges under two criminal statutes, a court
weighing a double jeopardy challenge must determine whether, in light of legislative intent, the
charged crimes constitute the same offense.” In re Pers. Restraint of Orange, 152 Wash. 2d 795,
815, 100 P.3d 291 (2004). Where, as here, the relevant statutes do not expressly disclose the
legislature’s intent, we apply the Blockburger10 “same evidence” test.11 152 Wash. 2d at 820.
9
We are not bound by an erroneous concession related to an issue of law. In re Pers. Restraint
of Goodwin, 146 Wash. 2d 861, 875, 50 P.3d 618 (2002).
10
Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932).
11
The statutory language of both RCW 9A.44.073 and RCW 9A.44.083 does not expressly
speak to multiple punishments for the same act.
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No. 48119-7-II
Under Blockburger, we presume that the legislature did not intend to punish criminal
conduct twice when the evidence required to support a conviction for one of the charged crimes
would have been sufficient to support a conviction for the other charged crime. 152 Wash. 2d at
820. Accordingly, when a defendant receives multiple convictions for offenses that are identical
both in fact and in law, he cannot be punished separately absent clear legislative intent to the
contrary. Peña Fuentes, 179 Wash. 2d at 824; State v. Freeman, 153 Wash. 2d 765, 776, 108 P.3d
753 (2005). “A ‘defendant’s double jeopardy rights are violated if he or she is convicted of
offenses that are identical both in fact and in law.’” Peña Fuentes, 179 Wash. 2d at 824 (quoting
State v. Calle, 125 Wash. 2d 769, 777, 888 P.2d 155 (1995)). If each offense includes elements not
included in the other offense, the offenses are different and multiple convictions do not violate
double jeopardy. 179 Wash. 2d at 824. Additionally, if each count arises from a separate and
distinct act, the defendant is not exposed to multiple convictions for the same criminal act. 179
Wash. 2d at 824.
First degree child rape requires proof of “sexual intercourse” with a child under the age
of 12. RCW 9A.44.073(1). Sexual intercourse can be proven by evidence of any form of
penetration. RCW 9A.44.010(1)(a). First degree child molestation requires proof of “sexual
contact” with a child under the age of 12. RCW 9A.44.083(1). “Sexual contact” refers to “any
touching of the sexual or other intimate parts of a person done for the purpose of gratifying
sexual desire of either party.” RCW 9A.44.010(2).
The State charged Duenas with one count of first degree child rape of H.A. (count I) and
two counts of first degree child molestation of H.A. (counts II and III). At trial, H.A. testified
27
No. 48119-7-II
that Duenas touched her genitals and digitally raped her on the same day. H.A. also testified that
Duenas touched her genitals on one another occasion.
During closing argument, the State argued:
Now, both Counts 1 and 2 deal with the same incident, so I want to be clear on that.
So [H.A.] described two incidents. The first incident, which involved the defendant
putting his fingers in her vagina, and that is what’s covered in Counts 1 and 2. So
you have two different crimes charged at the same incident. And to help guide you
on this, you have an instruction that says you’re to treat each count separately.
4 VRP at 388-89.
The jury was instructed that a separate crime was charged in each count and that it was to
decide each count separately. The jury was also instructed on the definition of sexual intercourse
and child molestation. The jury found Duenas guilty of one count of first degree child rape and
two counts of first degree child molestation.
Duenas argues that his convictions for first degree child rape and first degree child
molestation violate double jeopardy because the convictions are based on the same act.
However, this argument was rejected in State v. Land, 172 Wash. App. 593, 295 P.3d 782, review
denied, 177 Wash. 2d 1016 (2013). The Land court stated:
Where the only evidence of sexual intercourse supporting a count of child
rape is evidence of penetration, rape is not the same offense as child molestation.
And this is so even if the penetration and molestation allegedly occur during a
single incident of sexual contact between the child and the older person. The
touching of sexual parts for sexual gratification constitutes molestation up until the
point of actual penetration; at that point, the act of penetration alone, regardless of
motivation, supports a separately punishable conviction for child rape.
172 Wash. App. at 600.
The State concedes error and argues that because the prosecutor did not clarify that first
degree child rape and first degree child molestation were separate acts in his closing argument,
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No. 48119-7-II
Duenas’s convictions violate double jeopardy. The State appears to base its concession on the
rule announced by the Washington Supreme Court in State v. Mutch, 171 Wash. 2d 646, 254 P.3d
803 (2011). Under Mutch, there is a double jeopardy violation if, considering the evidence,
arguments, and instructions, it is not clear that it was “‘manifestly apparent to the jury that the
State [was] not seeking to impose multiple punishments for the same offense’ and that each
count was based on a separate act.” 171 Wash. 2d at 664 (alterations in original).
At trial, H.A. testified that Duenas touched her genitals and digitally raped her. The court
instructed the jury that it must decide each count separately, and the court defined the elements
of both first degree child rape and first degree child molestation. In closing argument, the
prosecutor stated that one count of first degree child rape and one count of first degree child
molestation dealt with the same incident. While the prosecutor referred to the incident as the
time when H.A. was digitally raped, he did not argue that evidence of penetration satisfied both
counts. Instead, he emphasized that two different crimes were charged for this incident and that
the jury must consider the charges separately. Considering the entire record in this case, no
double jeopardy violations occurred under the rule in Mutch. Despite the prosecutor’s conflated
closing argument, the evidence and jury instructions made it manifestly apparent to the jury that
each count involved distinct acts of sexual assault, even if the acts were part of the same
incident.
First degree child rape requires proof of sexual intercourse, but first degree child
molestation does not. State v. French, 157 Wash. 2d 593, 611, 141 P.3d 54 (2006). Conversely,
first degree child molestation requires proof of sexual contact, but first degree child rape does
not. 157 Wash. 2d at 611. As first degree child rape and first degree child molestation each include
29
No. 48119-7-II
elements not included in the other offense, the offenses are separate and are different in law. 157
Wash. 2d at 611. Further, H.A. testified that Duenas both touched her genitals and digitally raped
her. Accordingly, the offenses are different in fact. While the penetration and molestation
occurred during a single incident, the first degree child rape charge was not the same as the first
degree child molestation charge. Land, 172 Wash. App. at 600. Accordingly, the charged crimes
were different offenses. Therefore, we reject the State’s concession and hold that Duenas’s first
degree child rape and first degree child molestation convictions do not violate double jeopardy.
VI. UNAUTHORIZED SENTENCE
Duenas also argues that the trial court erred by imposing a sentence for third degree child
molestation that exceeded the statutory maximum. The State concedes error. We accept the
State’s concession.
A court’s sentencing authority is limited to that granted by statute. In re Postsentence
Review of Combs, 176 Wash. App. 112, 117, 308 P.3d 763 (2013). Whether a sentencing court has
exceeded its statutory authority is a question of law we review de novo. State v. Mann, 146 Wn.
App. 349, 357, 189 P.3d 843 (2008). If a court exceeds its sentencing authority, it commits
reversible error. State v. Winborne, 167 Wash. App. 320, 330, 273 P.3d 454 (2012).
Under RCW 9.94A.505, a court exceeds its sentencing authority if it imposes a sentence
that exceeds the statutory maximum for the crime. Accordingly, a sentencing court is required to
reduce a community custody term “whenever an offender’s standard range term of confinement
in combination with the term of community custody exceeds the statutory maximum for the
crime.” RCW 9.94A.701(9).
30
No. 48119-7-II
Duenas was sentenced to 54 months of incarceration and 36 months of community
custody for third degree child molestation, a class C felony. RCW 9A.44.089(2). The maximum
sentence authorized by statute for a class C felony is 60 months. RCW 9A.20.021(1)(c). As a
result, the trial court was required to reduce Duenas’s 36-month community custody term so that
his standard range term of confinement and term of community custody did not exceed 60
months. The trial court failed to do so. The State concedes Duenas’s sentence exceeded the
statutory maximum for third degree child molestation. We accept the State’s concession and
remand for amendment of the community custody term.
VII. COMMUNITY CUSTODY CONDITIONS
Duenas also argues that the trial court abused its discretion in ordering that Duenas
undergo plethysmograph testing and imposed an unconstitutionally vague condition by
prohibiting him from entering into a relationship with another with minor aged children. The
State concedes that the trial court abused its discretion in ordering that Duenas submit to
plethysmograph testing. We accept the State’s concession regarding the plethysmograph testing
condition. However, we affirm the condition prohibiting Duenas from entering into a
relationship with another with minor aged children.
A. Plethysmograph Testing
Duenas argues that the trial court abused its discretion in ordering plethysmograph testing
as a community custody condition. The State concedes error. We accept the State’s concession.
A trial court is permitted to impose “crime-related prohibitions” and affirmative
conditions as part of a felony sentence. Former RCW 9.94A.505(8) 2002. We review the
imposition of a community custody condition for abuse of discretion and will reverse only if the
31
No. 48119-7-II
trial court’s decision is manifestly unreasonable or based on untenable grounds. Warren, 165
Wash. 2d at 32.
A trial court is authorized to impose community custody conditions that monitor
compliance. State v. Riles, 135 Wash. 2d 326, 342-43, 957 P.2d 655 (1998), abrogated on other
grounds by State v. Sanchez Valencia, 169 Wash. 2d 782, 239 P.3d 1059 (2010). However,
“plethysmograph testing does not serve a monitoring purpose,” and the testing implicates a
defendant’s due process right to be free from bodily intrusions. 135 Wash. 2d at 345; Land, 172
Wash. App. at 605. Although plethysmograph testing may be ordered by a qualifying treatment
provider to treat sex offenders, it is inappropriate “as a routine monitoring tool subject only to
the discretion of a community corrections officer.” Land, 172 Wash. App. at 605.
The trial court ordered that Duenas submit to plethysmography exams at the direction of
the community corrections officer. Because plethysmograph testing does not serve a monitoring
purpose and is inappropriate “as a routine monitoring tool subject only to the discretion of a
community corrections officer,” the trial court’s decision to impose the plethysmograph testing
condition was manifestly unreasonable. Land, 172 Wash. App. at 605. Accordingly, the trial court
abused its discretion in imposing the condition, and we remand with instructions to strike the
plethysmograph testing community custody condition.
B. Relationship with Another with Minor Children
Duenas also argues the trial court erred in imposing community custody conditions
because the condition prohibiting him from entering into a relationship with another with minor
aged children is unconstitutionally vague. We disagree.
32
No. 48119-7-II
We review vagueness challenges to community custody conditions under an abuse of
discretion standard. Sanchez Valencia, 169 Wash. 2d at 793. We will reverse a sentencing
condition if it is manifestly unreasonable. State v. Bahl, 164 Wash. 2d 739, 753, 193 P.3d 678
(2008). The imposition of an unconstitutional condition is manifestly unreasonable. 164 Wash. 2d
at 753.
The vagueness doctrine under the Fourteenth Amendment and article I, section 3 of the
Washington Constitution requires that citizens have fair warning of prohibited conduct. 164
Wash. 2d at 752. Community custody provisions that fail to provide ascertainable standards of
guilt to protect against arbitrary enforcement are unconstitutionally vague. 164 Wash. 2d at 752.
However, “‘a community custody provision is not unconstitutionally vague merely because a
person cannot predict with complete certainty the exact point at which his actions would be
classified as prohibited conduct.’” Sanchez Valencia, 169 Wash. 2d at 793 (internal quotation
marks omitted) (quoting State v. Sanchez Valencia, 148 Wash. App. 302, 321, 198 P.3d 1065
(2009)).
Community custody provisions may require defendants to “perform affirmative conduct
reasonably related to the circumstances of the offense, the offender’s risk of reoffending, or the
safety of the community.” RCW 9.94A.703(3)(d). A defendant may also be ordered to refrain
from direct or indirect contact with a specific class of individuals. RCW 9.94A.703(3)(b). The
trial court ordered that Duenas “not enter into a relationship with anyone who has minor aged
children residing in or visiting their home without the approval of the therapist and the
[community corrections officer].” CP at 57.
33
No. 48119-7-II
Duenas argues that the sentencing condition does not provide him with adequate notice of
what kind of relationships are prohibited. However, Division One of this court rejected a similar
argument in State v. Kinzle, 181 Wash. App. 774, 785, 326 P.3d 870 (2014). The Kinzle court
noted that the trial court has discretion to order a defendant to refrain from contact with a
specified class of individuals. 181 Wash. App. at 785. The Kinzle court concluded that because
the defendant contacted the victims through a social relationship with their parents, a sentencing
condition preventing him from dating women and forming relationships with families with minor
children was reasonably crime-related and necessary to protect the public and, therefore, not
unconstitutionally vague. 181 Wash. App. at 785.
Like in Kinzle, Duenas came into contact with H.A. and K.L. through his relationship
with their mother. The community custody condition prevents Duenas from forming any
relationship with another with minor children without approval. As a result, the condition is
reasonably crime-related and necessary to protect the public. Further, “the vagueness doctrine is
not concerned with overreach; it is concerned with arbitrary enforcement resulting from
uncertainty in terms.” State v. Smith, 130 Wash. App. 721, 728, 123 P.3d 896 (2005). The
condition does not rely on a community corrections officer to give meaning to the term
“relationship.” Instead, Duenas’s therapist and community corrections officer determine which
relationships are permissible. As a result, the condition is not subject to arbitrary enforcement.
Moreover, the sentencing condition is not unconstitutionally vague merely because Duenas
cannot predict with exact certainty which relationships will be prohibited by the condition.
Sanchez Valencia, 169 Wash. 2d at 793. Accordingly, Duenas does not show that the community
34
No. 48119-7-II
custody condition is unconstitutionally vague and therefore manifestly unreasonable. Thus, the
trial court did not abuse its discretion in imposing the community custody condition.
VIII. APPELLATE COSTS
Duenas asks that we refrain from awarding appellate costs against him because he is
indigent. A commissioner of this court can consider whether to award appellate costs in due
course under the newly revised RAP 14.2 if the State files a cost bill and if Duenas objects to that
cost bill.
STATEMENT OF ADDITIONAL GROUNDS
In his SAG, Duenas claims the prosecutor committed misconduct by (1) vouching for
H.A.’s credibility, (2) making improper appeals to the jury’s passions and prejudices, (3)
impugning and disparaging the role and integrity of defense counsel, (4) minimizing the burden
of proof, and (5) misrepresenting the role of the jury. Duenas already raised claims on appeal
regarding the prosecutor’s misconduct in vouching H.A.’s credibility, making improper appeals
to the jury’s passions and prejudices, and impugning and disparaging the role and integrity of
defense counsel. We need not reconsider issues already raised and argued by defense counsel on
appeal. State v. Meneses, 149 Wash. App. 707, 715-16, 205 P.3d 916 (2009), aff’d in part, 169
Wash. 2d 586, 238 P.3d 495 (2010). We address Duenas’s remaining claims below, and we
conclude that they lack merit.
I. PROSECUTORIAL MISCONDUCT
Duenas claims that the prosecutor committed misconduct by (a) minimizing the burden of
proof during closing argument and (b) misrepresenting the role of the jury. His claims lack
merit.
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To establish prosecutorial misconduct, a defendant bears the burden of proving the
prosecutor’s conduct was both improper and prejudicial. Thorgerson, 172 Wash. 2d at 442. If a
defendant meets this burden, we may reverse the defendant’s conviction. Thorgerson, 172
Wash. 2d at 443
If a defendant establishes the prosecutor’s conduct was improper, we must determine
whether he was prejudiced. Emery, 174 Wash. 2d at 760. Where, as here, a defendant fails to
object to alleged prosecutorial misconduct, he is deemed to have waived any error unless he
shows the misconduct “was so flagrant and ill intentioned that an instruction [from the trial
court] could not have cured the resulting prejudice.” 174 Wash. 2d at 760-61. In order to meet 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.’” 174 Wash. 2d at 761 (quoting Thorgerson,
172 Wash. 2d at 455).
A. Minimizing the Burden of Proof
Duenas claims that the prosecutor committed misconduct by minimizing the burden of
proof in arguing that if the jury had an abiding belief in the charges, the charges were proved
beyond a reasonable doubt. This claim lacks merit.
A prosecutor’s argument misstating, minimizing, or trivializing the law regarding the
burden of proof can be improper. State v. Johnson, 158 Wash. App. 677, 685, 243 P.3d 936
(2010), review denied, 171 Wash. 2d 1013, 249 P.3d 1029 (2011). Due process requires that the
State bear the burden of proving each element of a crime beyond a reasonable doubt. Warren,
165 Wash. 2d at 26.
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In State v. Osman, 192 Wash. App. 355, 375, 366 P.3d 956 (2016), the court addressed
whether defense counsel’s definition of the term “abiding belief” misstated the State’s burden of
proof. The Osman court took note of the Supreme Court of the United States’ determination that
“‘[t]he word “abiding” here has the signification of settled and fixed, a conviction which may
follow a careful examination and comparison of the whole evidence.’” 192 Wash. App. at 374
(internal quotation marks omitted) (quoting Victor v. Nebraska, 511 U.S. 1, 15, 114 S. Ct. 1239,
127 L. Ed. 2d 583 (1994)). As a result, the term “abiding belief” encouraged jurors “‘to reach a
subjective state of near certitude of the guilt of the accused.’” 192 Wash. App. at 375 (quoting
Victor, 511 U.S. at 14-15). Accordingly, the Osman court held that defense counsel did not
improperly quantify the State’s burden of proof by arguing that an abiding belief of guilt meant
that the jurors would not look back on their decision after leaving the courthouse and wonder if
they made a mistake. 192 Wash. App. at 375.
Here, the prosecutor argued in closing that “[b]eyond a reasonable doubt is described
. . . . It’s when you have an abiding belief in the charges, that’s it.” 4 VRP at 430. The
prosecutor continued: “So when you are analyzing arguments the defense made, you got to ask
yourself, does it affect my abiding belief that this happened?” 4 VRP at 430.
Duenas claims that the prosecutor’s statement minimized the State’s burden of proof
because it suggested that “beyond a reasonable doubt” was a trivial standard. Looking at the
argument as a whole, the prosecutor did not argue that an abiding belief was a fleeting or short-
lived belief. Instead, the prosecutor argued that the jury must have an abiding belief in the
charges to convict Duenas. Accordingly, the prosecutor did not minimize the State’s burden of
proof, and his statement was proper. Duenas’s claim lacks merit.
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B. Misrepresenting the Role of the Jury
Duenas also claims that the prosecutor committed misconduct by misrepresenting the role
of the jury in suggesting that the jury could acquit Duenas only if they determined H.A. and K.L.
had a motive to lie. This claim lacks merit.
It is misconduct for a prosecutor to argue that the jury must find that the State’s witnesses
are either lying or confused in order to acquit a defendant. In re the Pers. Restraint of
Glassmann, 175 Wash. 2d 696, 723, 286 P.3d 673 (2012) (Wiggins, J., dissenting) (citing State v.
Fleming, 83 Wash. App. 209, 214, 921 P.2d 1076 (1996)). Misstating the basis on which a jury
can acquit the defendant shifts the requirement that the jury find the defendant guilty beyond a
reasonable doubt. See 175 Wash. 2d at 723 (Wiggins, J., dissenting).
In closing argument, the prosecutor stated:
The question for you is, do I have an abiding belief that this happened? So what
you have to ask yourself is, you’re back there and you’re deliberating and let’s say
a juror brings up, well, you know, [H.A.] couldn’t remember the exact date of the
first incident. . . .
But when somebody brings that point up, here’s what you ask yourself.
Okay, so she couldn’t remember the date. But when I listened to her testify, when
I saw her demeanor, when I saw that other witnesses corroborated what she said,
and when I analyzed and I applied my common sense, I said what possible motive
would this kid have to come through all this if they weren’t telling the truth? And
when you looked at her testifying and you had an abiding belief in her testimony,
does the fact that she can’t remember that date shake that?
4 VRP at 431-32. Duenas did not object.
Duenas argues that the prosecutor’s comments are similar to the comments the prosecutor
made in Fleming, 83 Wash. App. 209. In Fleming, the prosecutor argued that in order to acquit the
defendant, the jury would have to determine that either the complaining witness lied or was
confused. 83 Wash. App. at 213. Here, the prosecutor did no such thing. Instead, the prosecutor
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asked the jury to decide if they had an abiding belief in H.A.’s account of sexual abuse. Merely
asking questions of the jury does not rise to the level of misrepresenting the role of the jury.
State v. Lewis, 156 Wash. App. 230, 241, 233 P.3d 891 (2010). Accordingly, the prosecutor did
not misrepresent the role of the jury, and his statement was proper. Thus, Duenas’s claim lacks
merit.
CONCLUSION
We hold that the trial court imposed a sentence exceeding the statutory maximum and
abused its discretion in ordering Duenas to submit to plethysmograph testing. But we reject
Duenas’s remaining arguments. Accordingly, we affirm Duenas’s convictions, but we remand for
the trial court to amend the community custody term and to strike the plethysmograph testing
community custody condition.
A majority of the panel having determined that this 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.
Worswick, J.
We concur:
Bjorgen, C.J.
Lee, J.
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