State Of Washington, V Lee R. Mcclure ( 2014 )

4F I LED
COURT .OF APPEALS
DIVISION
IN THE COURT OF APPEALS OF THE STATE O ' WA H1 tii0
STATE OF WASHINGTON
DIVISION II
BY
DE UTY
STATE OF WASHINGTON, No. 44061 -0 -I
Respondent,
v.
UNPUBLISHED OPINION
LEE R. McCLURE,
Appellant.
MAXA, J. — Lee McClure appeals on multiple grounds his convictions for second degree
child rape, third degree child rape, sexual exploitation of a minor, and second degree possession
of depictions of a minor engaged in sexually explicit conduct. McClure makes two additional
assertions in his Statement of Additional Grounds ( SAG).
We hold that ( 1) the trial court did not violate McClure' s public trial right by addressing
various issues in sidebar conferences, ( 2) McClure failed to preserve his challenge to the State' s
child sexual abuse expert' s testimony, ( 3) the prosecutor did not commit misconduct in making
comments about the victim' s testimony and sexual assault victims in general, ( 4) sufficient
evidence at trial established that McClure knowingly possessed images of the victim engaged in
sexually explicit conduct, ( 5) the trial court did not violate McClure' s due process or equal
protection rights by finding that prior convictions existed for persistent offender sentencing
purposes, and ( 6) the trial court did not abuse its discretion in imposing a sentencing condition
that prohibited McClure from contact with his minor son because his son was in the same class
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of persons as the victim. We also reject McClure' s SAG arguments. Accordingly, we affirm
McClure' s convictions and sentence.
FACTS
McClure was married to Norma Jean McClure. RH, Norma Jean' s' daughter and
McClure' s step- daughter, primarily lived with them. McClure and Norma Jean had a young son,
AM, who also lived in the home.
In March 2011, RH reported that McClure had been sexually abusing her for several
years. The State charged McClure with second degree rape of a child, third degree rape of a
child, and sexual exploitation of a minor. Law enforcement officers later executed a search
warrant for McClure' s former residence, from which they seized a desktop computer that
contained 17 images of RH in various stages of undress. The State subsequently added a charge
of second degree possession of depictions of a minor engaged in sexually explicit conduct.
Before trial, McClure moved to exclude testimony by Dr. Yolanda Duralde, a child abuse
specialist, who examined RH in April 2011. The State sought to have Dr. Duralde testify
regarding the reason children frequently delay in reporting sexual abuse. McClure argued that
such testimony would be an improper comment on RH' s credibility. The trial court refused to
exclude this testimony.
The case proceeded to trial. Voir dire took place in open court, during which the parties
individually questioned jurors and made for cause challenges. The trial court addressed an
1 Because Lee McClure and Norma Jean McClure share the same last name, we refer to Norma
Jean by her first name for clarity. We intend no disrespect.
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objection to one of the State' s questions to a juror during a sidebar conference. The parties also
made peremptory challenges and the trial court announced its rulings on two for cause challenges
during a sidebar conference.
At trial, Dr. Duralde testified that child sexual abuse perpetrators are usually " very close
to the family or within the family structure so they have access to the child." Report of
Proceedings ( RP) ( Aug. 23, 2012) at 781. Dr. Duralde also stated, " It' s very common
particularly in pediatric sexual abuse that children don' t disclose right away. They usually
disclose weeks to months, maybe years later when they feel safe or feel like there' s a change in
the family structure so that they can then make that disclosure." RP ( Aug. 23, 2012) at 781 -82.
Dr. Duralde further testified that child sexual abuse victims often cannot recall specific dates and
times of abuse.
RH testified that McClure began having sexual intercourse with her when she was 12
years old. RH testified that the abuse occurred at least once per month until her 16th birthday,
when she reported the abuse to her father. She also stated that McClure took photographs of her
without her clothing when she was 14 or 15. RH testified that she delayed in reporting the abuse
because she was afraid.
During trial, the court and parties engaged in multiple sidebar conferences. The
conferences involved argument on evidentiary objections and discussion regarding witness
scheduling issues.
After the State rested, McClure moved to dismiss the charge for second degree
possession of depictions of a minor engaged in sexually explicit conduct. He argued that there
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was insufficient evidence to prove that he knowingly possessed the images of RH because the
images were not intentionally saved on the computer. The trial court denied the motion.
In closing argument, the State referenced Dr. Duralde' s testimony to explain why RH
could not recall specific incidents of abuse or dates on which the abuse occurred. The State
argued, " Recall Dr. Duralde' s testimony, that people generally can' t do that. Especially when
you' ve got something that happens repeatedly, but kids in particular, they' re not going to be able
to give you specific instances." RP ( Aug. 12, 2012) at 976 -77. The State continued, " She' s
being asked to talk about something that her stepfather did to her, sexually; in a strange and
intimidating environment, from that stand, in front of all of you, other strangers who are present
here in the courtroom, but also in front of the person who abused her." RP ( Aug. 27, 2012) at
980 -81.
The jury found McClure guilty as charged. The trial court determined that McClure was
a " persistent offender" under former RCW 9. 94A. 030( 33)( b) ( 2008) 2 because the jury found him
guilty of second degree child rape and because the court found by a preponderance of the
evidence that he had committed first degree child rape in 1993. Therefore, the trial court
sentenced him to total confinement for life without the possibility of parole as required by RCW
9. 94A.570. The trial court also issued a no- contact order prohibiting McClure from any contact
with minors.
McClure appeals his convictions and sentence.
2
LAws OF 2008, ch. 230, § 2
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ANALYSIS
A. PUBLIC TRIAL RIGHT
McClure argues that his public trial right was violated when, during various sidebar
conferences, the trial court addressed an objection to a voir dire question, allowed counsel to
make peremptory juror challenges, announced its rulings on for cause challenges, heard
argument on evidentiary objections, and discussed witness scheduling issues. We disagree.
1. Legal Principles
The Sixth Amendment to the United States Constitution and article I, section 22 of the
Washington Constitution guarantee a defendant the right to a public trial. State v. Wise, 176
Wash. 2d 1, 9, 288 P.3d 1113 ( 2012). In general, this right requires that certain proceedings be held
in open court unless consideration of the five- factor test set forth in State v. Bone -Club, 128
Wash. 2d 254, 258 -59, 906 P.2d 325 ( 1995) supports closure of the courtroom. Whether a
courtroom closure violated a defendant' s right to a public trial is a question of law we review de
novo, as is the issue of whether a courtroom closure in fact occurred. Wise, 176 Wash. 2d at 9, 12.
The threshold determination when addressing an alleged violation of the public trial right
is whether the proceeding at issue even implicates the right. State v. Sublett, 176 Wash. 2d 58, 71,
292 P.3d 715 ( 2012). " Not every interaction between the court, counsel, and defendants will
implicate the right to a public trial or constitute a closure if closed to the public." Id. We
address this issue using the " experience and logic" test, in which we consider: ( 1) whether the
place and process historically have been open to the press and general public (experience prong),
and ( 2) whether public access plays a significant positive role in the functioning of the
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proceeding ( logic prong). Id. at 72 -73. Only if both questions are answered in the affirmative is
the public trial right implicated. Id. at 73.
2. Objections to Voir Dire Questions
McClure argues that his public trial right was violated when the trial court heard an
objection to one of the State' s questions to a juror at a sidebar conference. We disagree.
During voir dire, the State asked a prospective juror, "[ I] f I asked you right now to think
of your last sexual experience and stand up and tell us about it..." RP ( Aug. 7, 2012) at 106.
McClure objected in open court and requested a sidebar discussion. It appears from the record
that only a discussion of the propriety of the question itself, not the actual questioning of
prospective jurors, occurred during the sidebar.conference.
Applying the experience prong of the Sublett test, we note that neither party cites any
authority suggesting that objections to questions to prospective jurors made during voir dire
historically have been addressed in public. Further, the cases holding that voir dire is subject to
the public trial right involved the actual questioning of jurors in a closed court. See, e. g., State v.
Strode, 167 Wash. 2d 222, 226 -27, 217 P.3d 310 ( 2009) ( individual voir dire of jurors in chambers
violated public trial right); In re Pers. Restraint of Orange, 152 Wash. 2d 795, 812, 100 P.3d 291
2004) ( public trial right violated when entire voir dire closed to all spectators).
Here, by contrast, there is no indication that any prospective juror was subjected to
questioning off the record. Accordingly, we hold that McClure' s challenge to the practice of
sidebar discussions for objections on jury questions during voir dire does not satisfy the
experience" prong of the experience and logic test. Therefore, argument on objections to voir
dire questions does not implicate the public trial right.
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3. Peremptory Juror Challenges
McClure argues that the trial court violated his right to a public trial by allowing
peremptory juror challenges to be made at a sidebar conference. We held in State v. Dunn, 180
Wash. App. 570, 321 P.3d 1283 ( 2014) and again in State v. Marks, No. 44919 -6 -II, 2014 WL
6778304, ( Wash. Ct. App. Dec. 2, 2014) that exercising peremptory challenges does not
implicate the public trial right. Accordingly, we hold that the trial court did not violate
McClure' s public trial right by allowing counsel to make peremptory challenges at a sidebar
conference.
4. For Cause Juror Dismissals
McClure argues that his public trial right was violated when the trial court addressed for
cause challenges ofjurors 1, 15, and 44 during a sidebar conference. 3 We disagree because at
sidebar the trial court merely announced its ruling on the in -court for cause challenges of jurors 1
and 15, and its sua sponte dismissal of juror 44 was based on hardship and was not truly a for
cause dismissal.
Division Three of this court in State v. Love held that the exercise of for cause juror
challenges during a sidebar conference did not violate the defendant' s public trial right. 176 Wn.
App. 911, 919, 309 P.3d 1209 ( 2013). However, this division has not yet addressed whether for
cause juror challenges implicate the public trial right. In this case, we need not decide whether a
party' s for cause challenges or argument on those challenges implicates the public trial right
because neither party made for cause challenges at the sidebar conference.
3 McClure also references the trial court' s dismissal of juror 47. However, although juror 47' s
dismissal was discussed at sidebar, that juror actually was dismissed for cause in open court.
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a. Jurors 1 and 15
Voir dire of jurors 1 and 15 occurred in open court. Significantly, McClure (juror 1) and
the State ( juror 15) also made for cause challenges of both jurors in open court. The trial court
briefly discussed the challenges and deferred ruling until the end of voir dire. The record
indicates that at the sidebar conference the trial court ruled on these in -court juror challenges,
dismissing both jurors without objection.
The question here is whether the trial court' s ruling on the in -court for cause challenges
of jurors 1 and 15 implicates the public trial right. Our Supreme Court has not held that the trial
court' s rulings on for cause challenges must be announced in open court. Therefore, we must
apply the experience and logic test to determine if the public trial right applies. Sublett, 176
Wash. 2d at 73.
The experience and logic test does not suggest that the trial court' s ruling on for cause
juror challenges implicates the public trial right. Regarding the experience prong, the rulings
regarding jurors 1 and 15 here were " announced" in writing on a document that was filed in the
public record. We have been cited no authority indicating that this procedure is improper, or that
a trial court' s act of announcing its rulings on juror dismissals historically has been open to the
public. Regarding the logic prong, the public would not play a significant positive role in the
functioning of the trial court' s ruling on for cause juror challenges. Therefore, we hold that the
trial court' s announcement of its ruling on in -court for cause juror challenges does not satisfy the
experience and logic test.
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We hold that when voir dire of jurors occurs in open court, and when the parties' for
cause challenges of jurors and a discussion of those challenges all occur in open court, a trial
court' s announcement of its ruling on the challenge does not implicate the public trial right.
b. Juror 44
The dismissal ofjuror 44 involves a slightly different situation. The trial court conducted
a brief voir dire of juror 44 in open court, where the juror stated that he was the sole caregiver of
his 95- year -old father. Juror 44 indicated that he needed to take his father to a cardiac
maintenance program two times per week and also needed to assist him with dressing, bathing,
and other activities because his father had suffered a stroke. Neither party questioned juror 44
during the remainder of voir dire. At sidebar, the trial court apparently excused juror 44 without
4
objection from either party.
As with jurors 1 and 15, the record indicates that during the sidebar conference neither
party challenged juror 44 for cause. Instead, the trial court dismissed juror 44 sua sponte because
of his caregiver responsibilities. And although the trial court stated that juror 44 was dismissed
for cause, it is clear that the basis of the dismissal was juror hardship. Under RCW 2. 36. 100, a
trial court has broad discretion to excuse prospective jurors based on undue hardship or extreme
inconvenience. Juror 44 clearly fell within this category. As a result, the dismissal ofjuror 44
was akin to an administrative dismissal that we held does not implicate the public trial right. See
State v. Wilson, 174 Wash. App. 328, 342 -47, 298 P.3d 148 ( 2013).
4 Even though the trial court stated that it excused juror 44, the jury panel selection list states that
juror 44 was not reached.
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We hold that the trial court' s dismissal of juror 44 based on his caregiver responsibilities
did not implicate the public trial right.
5. Argument on Evidentiary Objections
McClure argues that his public trial right was violated when the trial court heard
argument on evidentiary objections and made rulings at sidebar conferences. We disagree.
Our Supreme Court recently addressed this issue in State v. Smith, Wn.2d , 334
P.3d 1049 ( 2014). In Smith, the court held that sidebar conferences on evidentiary matters do not
implicate the public trial right. Id. at 1052 -55. Accordingly, we hold that the trial court did not
violate McClure' s public trial right by hearing argument on evidentiary matters at a sidebar
conference.
6. Witness Scheduling Issues
McClure argues that his public trial right was violated when the trial court addressed
witness scheduling issues at sidebar. Specifically, the parties discussed at different sidebar
conferences RH' s ability to take the stand for cross -examination when she was feeling ill and
recalling McClure to testify. We disagree.
In In re Detention of Ticeson, Division One of this court recognized the wide variety of
activities a judge may conduct in chambers, noting that a judge may " sign an agreed order; hold
pretrial conferences; speak privately with counsel to caution against uncivil behavior; inquire as
to the time neededfor remaining witnesses; discuss jury instructions; or do any of the myriad
things judges do in chambers to ensure trials are fair and to save time." 159 Wash. App. 374, 386,
246 P.3d 550 ( 2011) ( emphasis added). Ticeson supports the conclusion that witness scheduling
discussions do not implicate the public trial right.
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Further, the experience and logic test does not support application of the public trial right
to these types of discussions. Sidebar discussions to handle the scheduling of witnesses here
were the type of activity historically not required to be held in open court. Further, McClure
fails to show how holding such discussions on the record would play a significant positive role in
the functioning of the trial court.
Accordingly, we reject McClure' s argument that discussions regarding witness
scheduling issues at sidebar violated his public trial right.
B. OPINION TESTIMONY
McClure argues that the trial court violated his right to a trial by jury when Dr. Duralde
testified that child sexual abuse often is perpetrated by close family members because that
testimony was a comment on McClure' s guilt. We decline to address this issue because it was
not raised in the trial court.
Although McClure moved to exclude Dr. Duralde' s testimony on the ground that she was
going to improperly comment on RH' s credibility by discussing delayed reporting, McClure did
not move to exclude her testimony or object at trial for the reason he now raises on appeal —
improperly commenting on his guilt. Even if a defendant objects to the introduction of evidence
at trial, he or she " 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).
Under RAP 2. 5( a), we generally do not review an evidentiary issue raised for the first
time on appeal. State v. Robinson, 171 Wash. 2d 292, 304 -05, 253 P.3d 84 ( 2011). McClure does
not argue that any of the exceptions to RAP 2. 5( a) apply. Therefore, we decline to address this
issue.
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C. PROSECUTORIAL MISCONDUCT
McClure argues that the prosecutor committed misconduct by commenting on his right to
confront witnesses and by misrepresenting the evidence. We disagree.
1. Legal Principles
To prevail on a claim of prosecutorial misconduct, a defendant must show that " in the
context of the record and all of the circumstances of the trial, the prosecutor' s conduct was both
improper and prejudicial." In re Pers. Restraint of Glasmann, 175 Wash. 2d 696, 704, 286 P.3d
673 ( 2012). We review the prosecutor' s conduct and whether prejudice resulted therefrom " by
examining that conduct in the full trial context, including the evidence presented, ``the context of
the total argument, the issues in the case, the evidence addressed in the argument, and the
instructions given to the jury.' " State v. Monday, 171 Wash. 2d 667, 675, 257 P.3d 551 ( 2011)
internal quotation marks omitted) ( quoting State v. McKenzie, 157 Wash. 2d 44, 52, 134 P.3d 221
2006)). A prosecutor has wide latitude in making arguments to the jury and may draw
reasonable inferences from the evidence. State v. Fisher, 165 Wash. 2d 727, 747, 202 P.3d 937
2009). 5
5 Where, as here, the defendant failed to object to the challenged portions of the prosecutor' s
argument, he is deemed to have waived any error unless the prosecutor' s misconduct was so
flagrant and ill-intentioned that an instruction could not have cured the resulting prejudice. State
v. Emery, 174 Wash. 2d 741, 760 -61, 278 P.3d 653 ( 2012). Because we hold that the prosecutor
did not engage in misconduct, we do not address waiver.
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2. Right to Confront Witnesses
McClure argues that the prosecutor' s comments regarding RH' s difficulty testifying at
trial in front of McClure violated his constitutional right to confront witnesses against him. We
disagree.
The Sixth Amendment to the United States Constitution and article 1, section 22 of the
Washington Constitution give a defendant the right to confront the witnesses against him or her.
The State can take no action which will unnecessarily `` chill' or penalize the assertion of a
constitutional right and the State may not draw adverse inferences from the exercise of a
constitutional right." State v. Gregory, 158 Wash. 2d 759, 806, 147 P.3d 1.201 ( 2006) ( quoting
State v. Rupe, 101 Wash. 2d 664, 705, 683 P.2d 571 ( 1984)). Therefore, the State may not invite
the jury to draw a negative inference from the defendant' s exercise of a constitutional right,
including the right to confront witnesses against him. Gregory, 158 Wash. 2d at 806.
However, " not all arguments touching upon a defendant' s constitutional rights are
impermissible comments on the exercise of those rights." Id. at 806. The question is whether
the prosecutor " manifestly intended the remarks to be a comment on that right." State v. Crane,
116 Wash. 2d 315, 331, 804 P.2d 10 ( 1991). "[ S] o long as the focus of the questioning or argument
is not upon the exercise of the constitutional right itself,' the inquiry or argument does not
infringe upon a constitutional right." Gregory, 158 Wash. 2d at 807 ( quoting State v. Miller, .110
Wn. App. 283, 284, 40 P.3d 692 ( 2002)).
Here, during closing argument the State discussed RH' s difficulty recalling specific
instances of abuse or dates on which the abuse occurred. The State commented:
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It' s very hard for her to verbalize, for her to describe to you, for her to find the
words. She didn' t have the words to explain it, what he did to her. So when you' re
thinking about her testimony specifically, remember She' s being
these things.
asked to talk about something that her stepfather did to her, sexually, in a strange
and intimidating environment, from that stand, in front of all of you, other strangers
who are present here in the courtroom, but also in front of the person who abused
her.
RP ( Aug. 27, 2012) at 980 -81 ( emphasis added).
McClure cites State v. Jones, in which Division One of this court held that the State
violated the defendant' s right to confrontation when the prosecutor suggested that the defendant
was frustrated when he could not make eye contact with the victim and that the victim' s
courtroom contact with the defendant was so traumatic that she could not return to court. 71 Wn.
App. 798, 811 - 12, 863 P.2d 85 ( 1993). The court held that the comments invited the jury to
draw a negative inference from the defendant' s exercise of his right to confront witnesses. Id. at
811 - 12.
However, the prosecutor' s comments here involved a general discussion of why RH' s
testimony was credible and the emotional toll imposed on RH, comments similar to those
approved by our Supreme Court in Gregory. In that case, the victim testified that having to
appear in court and be cross -examined was horrific. Gregory, 158 Wash. 2d at 805 -06. The
prosecutor referenced this testimony in closing, implying that the victim would not have
subjected herself to taking the stand had she not been telling the truth. Id. Our Supreme Court
held that the comments were not improper because they were offered to support the victim' s
credibility. Id. at 808. The court reasoned that "[ t] he State did not specifically criticize the
defense' s cross -examination of [the victim] or imply that [the defendant] should have spared her
the unpleasantness of going through trial." Id. at 807.
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Here, as in Gregory, the prosecutor discussed RH' s difficulty testifying to explain the
inconsistencies in her testimony and to establish her credibility. Although the prosecutor
specifically mentioned RH having trouble testifying in front of McClure, the comment was made
in the context of RH' s difficulty explaining the abuse and how the public nature of the discussion
amplified her discomfort. Further, unlike in Jones, in which the prosecutor specifically
referenced the defendant' s attempt to make eye contact with the victim, the State did not
specifically criticize McClure' s cross -examination of RH or imply that McClure " should have
spared her the unpleasantness of going through trial." Gregory, 158 Wash. 2d at 807; see also
Jones, 71 Wash. App. at 811 -12.
Considering the argument as a whole, the prosecutor' s comments did not improperly
infringe on McClure' s right to confront witnesses. Accordingly, we hold that McClure' s
prosecutorial misconduct claim on this basis fails.
3. Arguing Facts Not in Evidence
McClure argues that the prosecutor improperly argued facts not in evidence during
closing argument by mischaracterizing Dr. Duralde' s testimony regarding sexual abuse victims'
inability to recall specific dates and times that the abuse took place. We disagree.
A prosecutor has wide latitude in closing argument to draw reasonable inferences from
the evidence and to express such inferences to the jury. State v. Stenson, 132 Wash. 2d 668, 727,
940 P.2d 1239 ( 1997). However, a prosecutor commits misconduct by arguing to the jury based
on evidence outside the record. Glasmann, 175 Wash. 2d at 704.
At trial, Dr. Duralde testified that most children have trouble recalling specific dates and
times when sexual abuse occurred. She testified that the same was true for adults because " if
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something has occurred over a period of time, it certainly is harder to say, `` Oh, it was this day' or
It was that day,' and to sort of pinpoint it because sometimes it sort of blends together." RP
Aug. 23, 2012) at 794. In closing argument, the State referenced this testimony, stating:
R] emember Dr. Duralde explaining that this is typical of kids, to not be able to
give specific dates; specific instances, particularly when they occurred over an
extended period of They' re bound to blend together, as they did for her.
time.
Instances that stood out did so because they were slightly different, like in the car,
or the one time they did it in [ AM]' s room. They were different. Even then she
couldn' t say exactly when it happened because it was in the context of this same
thing happening over and over again.
RP ( Aug. 27, 2012) at 982.
McClure argues that the prosecutor mischaracterized Dr. Duralde' s testimony that
victims have trouble remembering dates and times of abuse by stating that victims also have
trouble recalling " specific instances" of abuse. Br. of Appellant at 24. Although Dr. Duralde did
not specifically mention " specific instances" of abuse, her testimony, when taken in context,
generally conveyed that victims have difficulty recalling specific dates on which instances of
sexual abuse occurred because of the ongoing nature of the abuse. The prosecutor conveyed a
similar message in closing., and the fact that the prosecutor mentioned " specific instances" in
addition to specific dates and times does not amount to a mischaracterization of Dr. Duralde' s
statements.
The prosecutor' s comments regarding Dr. Duralde' s testimony were not improper.
Accordingly, we hold that McClure' s prosecutorial misconduct claim on this basis fails.
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D. SUFFICIENCY OF EVIDENCE OF POSSESSION
McClure challenges the sufficiency of the evidence to support his conviction for
possession of depictions of minors engaged in sexually explicit conduct because the State failed
to prove that he knowingly possessed the images found on his computer. We disagree.
1. Standard of Review
A criminal defendant challenging the sufficiency of the State' s evidence on appeal admits
the truth of that evidence, and we draw all reasonable inferences therefrom in the State' s favor.
State v. Homan, 181 Wash. 2d 102, 106, 330 P.3d 182 ( 2014). Evidence is legally sufficient to
support a guilty verdict if any rational trier of fact, viewing the evidence in the light most
favorable to the State, could find the elements of the charged crime beyond a reasonable doubt.
State v. Owens, 180 Wash. 2d 90, 99, 323 P.3d 1030 ( 2014). We defer to the trier of fact on issues
of conflicting testimony, witness credibility, and persuasiveness of the evidence. State v.
Thomas, 150 Wash. 2d 821, 874 -75, 83 P.3d 970 ( 2004).
2. Sufficient Evidence of Knowledge
The jury found McClure guilty of second degree possession of depictions of a minor
engaged in sexually explicit conduct. A person commits the crime of second degree possession
of depictions of a minor engaged in sexually explicit conduct " when he or she knowingly
possesses any visual or printed matter depicting a minor engaged in sexually explicit conduct."
RCW 9. 68A.070( 2)( a).
In order to satisfy the knowledge requirement in RCW 9. 68A.070( 2)( a), the State must
prove that the defendant ( 1) knowingly possessed visual or printed matter depicting a minor
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engaged in sexually explicit conduct, and ( 2) knew the person depicted was a minor. State v.
Garbaccio, 151 Wn. App. 716, 734, 214 P.3d 168 ( 2009). Under RCW 9A.08. 010( 1)( b):
A person knows or acts knowingly or with knowledge when:
i) he or she is aware of a fact, facts, or circumstances or result described.by a statute
defining an offense; or
ii) he or she has information which would lead a reasonable person in the same
situation to believe that facts exist which facts are described by a statute defining
an offense.
At trial, the State' s computer crimes detective testified that he discovered 17 thumbnail
images of RH in various stages of undress on McClure' s computer. He stated that the files were
not actually saved to the computer and that the images were likely saved while a digital camera
was attached to the computer and that while the photos were being viewed on the computer, " in
the background, the program has a hidden file that' s storing the pictures you' re clicking on." RP
Aug. 8, 2012) at 174. The images were then copied to the computer' s hard drive when the
computer was shut down. The detective further explained that the average computer user would
not be able to find the images.
McClure argues that the State failed to prove that he had knowledge that he possessed the
images found on his computer because the images were not intentionally saved to the computer
and were difficult to find. However, the knowledge required under RCW 9. 68A.070( 2)( a) is
simply knowledge that the defendant possessed the depictions. There is no requirement that the
defendant have specific knowledge that the depictions were located in a particular place, here
McClure' s computer. See Garbaccio, 151 Wash. App. at 734.
There was ample evidence from which a rational juror could have found that McClure
knew that he possessed the images even if he did not know they were on his computer. The
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detective testified that the file path for the pictures included McClure' s user name. In addition,
the computer was in McClure' s home, McClure frequently used it, he controlled the children' s
access to it, and had his own password. There also was evidence that McClure owned a digital
camera and that others were required to ask permission to use it. Further, RH testified that
McClure took the photographs of her that were found on the computer.
Viewing this evidence in the light most favorable to the State, a rational trier of fact could
find that McClure knew he possessed the images found on his computer. Accordingly,
McClure' s challenge to the sufficiency of the evidence on his conviction for possession of
depictions of minors engaged in sexually explicit conduct fails.
E. PERSISTENT OFFENDER SENTENCE
McClure argues that his persistent offender sentence violates his due process and equal
protection rights because his prior conviction was not proved to ajury beyond a reasonable
doubt. However, our Supreme Court recently confirmed that for the purposes of persistent
offender sentencing, a judge rather than a jury may find the fact of a prior conviction by a
preponderance of the evidence. State v. Witherspoon, 180 Wash. 2d 875, 891 -92, 329 P.3d 888
2014). Therefore, McClure' s arguments fail.
F. PROHIBITION ON CONTACT WITH MINORS
McClure argues that the trial court' s sentencing condition that prohibits him from contact
with minors interferes with his fundamental right to parent his minor son. We disagree.
1. Crime -Related Prohibitions
As a part of any sentence, the court may impose and enforce crime -related prohibitions
and affirmative conditions as provided in this chapter." RCW 9. 94A.505( 8). A "[ c] rime- related
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prohibition" is an order " prohibiting conduct that directly relates to the circumstances of the
crime." RCW 9. 94A. 030( 10). This includes no- contact orders. State v. Armendariz, 160 Wash. 2d
106, 113, 156 P.3d 201 ( 2007).
We review a trial court' s imposition of crime -related prohibitions for abuse of discretion.
State v. Warren, 165 Wash. 2d 17, 32, 195 P.3d 940 ( 2008).. A trial court abuses its discretion with
regard to a sentencing condition if its decision is manifestly unreasonable or based on untenable
grounds. State v. Corbett, 158 Wn. App. 576, 597, 242 P.3d 52 ( 2010). Generally, crime -related
prohibitions will be upheld if they are reasonably related to the crime. Warren, 165 Wash. 2d at 32.
However, "[ m] ore careful review of sentencing conditions is required where those
conditions interfere with a fundamental constitutional right." Id. at 32. Conditions that interfere
with fundamental rights must be " reasonably necessary to accomplish the essential needs of the
State and public order." Id. In addition, such conditions must be " narrowly drawn," and "[ t] here
must be no reasonable alternative way to achieve the State' s interest." Id. at 34 -35. "[ T] he
interplay of sentencing conditions and fundamental rights is delicate and fact -specific, not
lending itself to broad statements and bright line rules." In re Pers. Restraint ofRainey, 168
Wash. 2d 367, 377, 229 P.3d 686 ( 2010).
Even though we must review sentencing conditions that interfere with fundamental rights
carefully, we still review the imposition of such conditions for an abuse of discretion. Warren,
165 Wash. 2d at 33; Corbett, 158 Wash. App. at 601.
2. Fundamental Right to Parent
The rights to the care, custody, and companionship of one' s children are fundamental
constitutional rights. Warren, 165 Wash. 2d at 34. More specifically, parents have a fundamental
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constitutional right to raise their children without State interference. Corbett, 158 Wash. App. at
598. However, parental rights are not absolute. Id. A trial court can impose a condition
restricting a defendant' s access to his or her own children if the condition is " reasonably
necessary to further the State' s compelling interest in preventing harm and protecting children."
Id.
3. Reasonable Necessity of No Contact Order
McClure argues that the prohibition from contact with all children, including his son, was
not reasonably related to the crime he committed because both the present offenses and his 1993
conviction were committed against girls that were not his biological children.
Washington courts have been reluctant to uphold no- contact orders with classes of
persons different than the crime victim. Warren, 165 Wash. 2d at 33. Three cases are illustrative.
In State v. Letourneau, the court invalidated a condition prohibiting the defendant from
unsupervised contact with her biological minor children based on her conviction for second
degree rape of a child, when the victim was not one of her own children. 100 Wash. App. 424,
437 -442, 997 P.2d 436 ( 2000). In State v. Ancira, the court invalidated a condition prohibiting
the defendant from contact with his two minor children based on a conviction for violation of a
no- contact order regarding his wife. 107 Wn. App. 650, 653 -55, 27 P.3d 1246 ( 2001). In State
v. Riles, our Supreme Court invalidated a condition prohibiting the defendant from contact with
minors based on a conviction for the rape of an adult. 135 Wash. 2d 326, 349 -50, 957 P.2d 655
1998).
But here McClure' s son was not in a different class of persons than McClure' s victim, his
step -daughter RH. As McClure points out, there are differences between RH and AM. RH is a
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girl, and she is McClure' s step- daughter. AM is a boy, and he is McClure' s biological son.
However, the two children have one significant similarity —McClure lived in the same home
with and parented both of them. Two cases have affirmed a trial court' s sentencing condition
prohibiting the defendant from contact with his biological child when the victim was not his
biological child. The key in both cases was that the defendant lived with both the victim and the
child in a parental capacity.
In State v. Berg, the defendant lived with his girlfriend' s two children and a biological
daughter he had with his girlfriend. 147 Wn. App. 923, 927, 198 P.3d 529 ( 2008). The
defendant was convicted of rape and child molestation of his girlfriend' s daughter. Id. at 926 -30.
The defendant testified that he had parented his victim. Id. at 930. Division One of this court
affirmed a sentencing condition that prohibited the defendant from unsupervised contact with
any female minor, including his biological daughter. Id. at 942 -44. The court held that because
Berg lived with the victim and committed the abuse in the home, an order restricting contact with
other female children who lived in the home was reasonable to protect those children from the
same type of harm. Id. at 943.
In Corbett, the defendant was convicted of raping his step- daughter. 158 Wash. App. at
581 -86. The defendant lived with the victim and was her primary caregiver when she was not
with her biological father. Id. at 582. The defendant also had two biological sons. Id. at 597.
We affirmed a sentencing condition barring the defendant from having contact with his minor
sons. Id. at 597 -601. We emphasized that, as in Berg, the defendant lived in the same home as
his victim. Corbett, 158 Wash. App. at 598 -99. Because the defendant was in a parenting role and
sexually abused a minor in his care, the no- contact order was necessary to protect the defendant' s
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children " because of his history of using the trust established in a parental role to satisfy his own
prurient desire to sexually abuse minor children." Id. at 599.
In addition, in Corbett we expressly rejected the same argument McClure makes here
that the defendant' s male children did not fall within the class of his female victim. Id. at 600-
01. We stated:
Here, Corbett' s convicted crime is the sexual abuse of J. O., a child whom he
parented. Because Corbett' s victim was a minor girl whom he parented, his classes
of victims are " minors he parents" in addition to " minor girls. ", Corbett' s crime
establishes that he abuses parental trust to satisfy his own prurient interests. The
trial court' s no- contact order prohibiting Corbett from having contact with his
biological children is directly related to his crime because they fall within a class
of persons he victimized.
Id. at 601 ( emphasis in original).
Here, the facts surrounding McClure' s abuse of RH are analogous to those in Corbett.
McClure sexually abused a child whom he parented. Therefore, RH and McClure' s son were in
the same class of persons — children whom McClure parented. And this means that the
sentencing condition was reasonably related to the State' s interest in protecting AM. The fact
that RH and AM are a different gender is immaterial.
We hold that the trial court did not abuse its discretion in imposing a sentencing
condition that prohibited McClure from contact with his biological son.
G. SAG Arguments
McClure asserts in his SAG that ( 1) the jury was prejudiced against him because some of
its members stated during voir dire that they believed someone charged with the same crimes as
McClure must be guilty, and ( 2) the State improperly asked leading questions to RH. We reject
these assertions.
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First, the trial court excused for cause the prospective jurors who indicated they would be
unable to remain impartial. Because none of these prospective jurors were empaneled in the
jury, their views could not prejudice McClure.
Second, the trial court did not abuse its discretion by allowing the prosecutor to use
leading questions while questioning RH. Under ER 611( c), leading questions may only be used
on direct examination " as may be necessary to develop the witness' testimony." The trial court
has broad discretion to determine whether leading questions are necessary to develop a witness' s
testimony. State v. Delarosa- Flores, 59 Wn. App. 514, 517, 799 P.2d 736 ( 1990). Considering
the traumatic nature of RH' s testimony and her young age, we hold that the trial court did not
abuse its discretion by allowing the leading questions in this case.
We affirm McClure' s convictions and sentence.
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 pursuant to RCW 2. 06. 040, it
is so ordered.
We concur:
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