State Of Washington v. Richard Svaleson, Jr. ( 2018 )

Filed
Washington State
Court of Appeals
Division Two
May 30, 2018
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 48855-8-II
Respondent
v.
RICHARD IVER SVALESON, JR., UNPUBLISHED OPINION
Appellant.
LEE, J. — Richard Iver Svaleson, Jr. appeals his conviction and sentence, arguing that (1)
insufficient evidence supported the jury finding that he touched the child victim with intent to
gratify his sexual desire; (2) the trial court erred in giving a non-corroboration jury instruction; (3)
the trial court erred in allowing improper opinion testimony regarding standard child victim
interviewing techniques and the diagnosis of acute stress disorder; (4) the prosecutor engaged in
misconduct by (a) improperly shifting the burden of proof, (b) commenting on the victim’s
demeanor, and (c) urging the jury not to blame the victim; (5) defense counsel was ineffective for
failing to object to the prosecutor’s misconduct; (6) several community custody conditions were
unauthorized by statute, were not crime-related, or were unconstitutionally vague; and (7) the
sentencing court erred in imposing discretionary legal financial obligations without considering
Svaleson’s ability to pay. In a statement of additional grounds (SAG), Svaleson argues that: (1)
the prosecutor engaged in misconduct by “prepping” the jury to overlook missing evidence; (2)
his trial counsel was ineffective when he (a) failed to object to the prosecutor’s line of questioning
No. 48855-8-II
on whether he was married to the victim, (b) failed to cross the State’s experts, and (c) failed to
call witnesses on Svaleson’s behalf.
We hold that the community custody conditions related to alcohol, social networking
websites, and businesses that promote the commercialization of sex were improperly imposed. We
also hold that the remainder of the issues Svaleson raises in his direct appeal and SAG do not
warrant reversal. Therefore, we affirm Svaleson’s conviction, but reverse the trial court’s
imposition of certain challenged community custody conditions and remand with instructions to
strike those community conditions consistent with this opinion.
FACTS
A. THE INCIDENT
E.B.1 was born in 2004. Svaleson was born in 1946.
E.B. lived with her parents and her older sister A.B. Because E.B.’s parents both worked,
they often asked E.B.’s great-grandmother, Margaret, to watch the girls during school and summer
breaks.
Margaret lived with her adult son, Svaleson. Though Svaleson lived in the house and was
around when the girls visited, Margaret was solely responsible for watching E.B. and her sister.
E.B. referred to Svaleson as “Uncle Dick.” 4 Verbatim Report of Proceedings (VRP) (Feb. 29,
2016) at 346.
On December 30, 2014, E.B. and her sister were dropped off at Margaret’s house. The
girls spent the morning watching television. At one point, E.B. went into the kitchen to get
1
Pursuant to this court’s General Order 2011-1, we use initials for child witnesses in sex crimes.
2
No. 48855-8-II
something to eat. Svaleson was seated in the kitchen on a “spinning chair.” 4 VRP (Feb. 29, 2016)
at 353. Svaleson called E.B. over to sit on his lap. E.B. testified that once seated, Svaleson touched
her “private areas.” 4 VRP (Feb. 29, 2016) at 353. Svaleson reached his hands underneath E.B.’s
shirt and touched her chest, with his hands directly touching her skin. In response, E.B. pushed
his hands down. Svaleson then rubbed “near” E.B.’s legs “[i]n between [her] kneecap.” 4 VRP
(Feb. 29, 2016) at 359.
Later that same day, he touched “all” of her “private areas.” 4 VRP (Feb. 29, 2016) at 369.
Specifically, Svaleson touched the areas she “use[s] to go to the bathroom, number one and number
two” over her jeans. 4 VRP (Feb. 29, 2016) at 369. Svaleson’s touches made E.B. uncomfortable.
E.B. did not tell Margaret or her sister what had happened, but instead told her mother in the car
on the way home.
E.B.’s parents spoke with the law enforcement officers about what E.B. had told them
about what happened with Svaleson. Svaleson was subsequently charged with one count of first
degree child molestation.
B. THE TRIAL
1. Testimony
At trial, E.B. testified to the facts discussed above. However, she had difficulty
remembering several details of that day. For example, she could not remember if she was wearing
anything underneath her shirt. She could not remember if Svaleson had said anything to her while
he touched her. She also could not recall how long the contact lasted. Initially, E.B. testified that
Svaleson “rubbed near [her] legs” after touching her chest, but that he did not touch near or on her
private area where she “go[es] number one.” 4 VRP (Feb. 29, 2016) at 359. Later, E.B. testified
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No. 48855-8-II
that Svaleson touched all three of her private areas that day, but not at the same time she sat on his
lap in the kitchen.
E.B.’s mother testified at trial that E.B. met with a forensic interviewer at the Child
Advocacy Center named Stacia Adams. After the incident, E.B. began seeing a counselor named
Linda Skinner.
Adams and Skinner also testified at trial. Adams testified that E.B. told her that her Uncle
Dick had touched her chest and the private areas “where she peed and pooped from.” 6 VRP (Mar.
2, 2016) at 594. In describing the interview process, Adams explained that she was trained to ask
children open-ended questions to ensure she does not suggest information to them. Adams stated
that this technique ensures “that the interview is going to be more accurate and we know that
statistically.” 6 VRP (Mar. 2, 2016) at 585. Adams also testified that she solicited narrative events
from E.B. because “that’s more accurate than saying, like, what usually happens, which would be
a script memory.” 6 VRP (Mar. 2, 2016) at 585-86. Svaleson did not object to this testimony.
Skinner testified that she began seeing E.B. after her mother reported concerning
behavioral changes, including difficulty sleeping, nightmares, and fear of returning to her great-
grandmother’s house. The prosecutor asked Skinner if she had seen these kinds of behaviors
before in other patients. The prosecutor also asked Skinner if these identified behaviors, based on
her “education, training, and experience” were “common in people who have been sexually
abused[.]” 5 VRP (Mar. 1, 2016) at 537. Skinner answered, “Yes,” to both questions. 5 VRP
(Mar. 1, 2016) at 537. Skinner also testified that she had diagnosed E.B. with “acute stress
disorder,” a diagnosis used when a traumatic experience has occurred. 5 VRP (Mar. 1, 2016) at
538. Svaleson did not object to this line of questioning.
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No. 48855-8-II
Skinner also testified that during their sessions, E.B. stated that Svaleson had said, “Your
hands are starting to get warm,” as he reached his hands under her shirt. 5 VRP (Mar. 1, 2016) at
544. E.B. also told Skinner that Svaleson had “grabbed her butt and squeezed it and grabbed her
vagina and squeezed that with both of his hands.” 5 VRP (Mar. 1, 2016) at 544. Svaleson did not
object to this testimony.
Svaleson testified and denied that he had ever invited E.B. to sit on his lap. He claimed
that E.B. followed him into the kitchen and sat on his knee. There was no door between the kitchen
and the adjacent living room, where E.B.’s sister was watching television. Svaleson also testified
that E.B. had asked him to tickle her and that he tickled her rib cage near her armpit. According
to Svaleson, as he tickled E.B., she turned sideways and “ran her breast into the edge of [his]
thumb.” 6 VRP (Mar. 2, 2016) at 639. Svaleson admitted that he pinched E.B.’s butt, but only to
encourage her to stand up because she was hurting his knees. He denied that he touched or tickled
E.B. to satisfy his sexual desire.
2. Jury Instruction
The State proposed a non-corroboration jury instruction. This instruction stated:
In order to convict a person of child molestation in the first degree as
defined in these instructions, it shall not be necessary that the testimony of the
alleged victim be corroborated. The jury is to decide all questions of witness
credibility.
CP at 36.
Svaleson objected to the proposed instruction, arguing that the Washington Supreme Court
Committee on Pattern Jury Instructions had explicitly recommended against such instruction. The
trial court allowed the instruction.
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No. 48855-8-II
3. Closing Argument
The prosecutor began her closing argument by explaining the differences between direct
and circumstantial evidence. She then argued that this case turned on whether the jury found that
Svaleson had touched E.B.’s private areas to satisfy his sexual desires. The prosecutor urged the
jury to use “common sense and make those reasonable inferences” when considering the
testimony. 6 VRP (Mar. 2, 2016) at 650. She told the jury that E.B. had described sexual contact
“and if you believe her, if you believe what she’s described, ladies and gentlemen, you are satisfied
beyond a reasonable doubt.” 6 VRP (Mar. 2, 2016) at 652.
Later, the prosecutor addressed E.B. and Svaleson’s testimony. 6 VRP at 660-61. She
urged the jury to consider Svaleson’s “motives, his bias, but also consider the reasonableness of
his story.” 6 VRP (Mar. 2, 2016) at 661. She also argued that E.B. had “no reason” to lie that
Svaleson “touched her breasts with both hands, that he touched her vaginal area, her back private
area.” 6 VRP (Mar. 2, 2016) at 661. The prosecutor further argued that there was “[n]o reason
for her to fabricate this,” and “if what [E.B.] said happened happened, there’s also no reason and
no reasonable explanation as to why the defendant’s hands would have found themselves in those
areas.” 6 VRP (Mar. 2, 2016) at 661.
The prosecutor also addressed E.B.’s delay in reporting the incident. She argued:
Obviously, this was not a comfortable place for her to be. It’s an intimidating
setting up there probably for anyone, but she’s 11.
....
Don’t make this [E.B.]’s fault. There is testimony that, you know, there’s
a house phone. Why wouldn’t you call? She didn’t have a cell phone yet at the
time. It’s not [E.B.]’s fault she did not pick up the house phone and call her mom.
She knew her mom was coming to get her at the end of the day, and she told her
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No. 48855-8-II
mom pretty much as soon as she got in the car, but that aside, the defendant is the
one who did this.
6 VRP (Mar. 2, 2016) at 659, 664-65.
The prosecutor argued that Svaleson was in court watching E.B. and listening to her, and
urged the jury to “think carefully about her reactions, her responses to my questions, how quickly
she basically shut off.” 6 VRP (Mar. 2, 2016) at 659. Svaleson objected, arguing, “This calls for
undue sympathy.” 6 VRP (Mar. 2, 2016) at 659. The trial court overruled the objection.
In closing, defense counsel argued that Svaleson was merely tickling E.B., but that E.B.
possibly misinterpreted the tickling. Defense counsel emphasized that the kitchen was “an open
concept room where people could walk in and out without having to open a door or knock.” VRP
(Mar. 2, 2016) at 679. Defense counsel also emphasized E.B.’s failure to report what had happened
until her mother picked her up nine hours later.
In rebuttal, the prosecutor argued that there is “no one set way that someone commits these
crimes.” VRP (Mar. 2, 2016) at 685. She also acknowledged that the jury may be wondering why
Svaleson did this, but “[t]hat’s not an element.” VRP (Mar. 2, 2016) at 685. Instead, the prosecutor
urged the jury to “use [its] common sense” when determining whether the touching was done for
the purpose of gratifying sexual desire:
[B]ecause you certainly don’t need someone to testify for you in order to meet this element,
an eleven-year-old saying he touched me and while he was doing this though [sic] he said
he was doing it to satisfy his sexual desire. You don’t need someone to say that. You infer
it based on the context, common sense, common experiences why that touching occurred.
And what I’m submitting to you is that the explanation of just the tickling, it doesn’t make
sense in this context.
VRP (Mar. 2, 2016) at 686-87.
The prosecutor concluded her rebuttal with:
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No. 48855-8-II
Finally, defense counsel said there are reasonable doubts in this case. I submit to
you there is not. Once again, the instructions tell you there’s no need for
corroboration. It’s not required. There’s no reason [E.B.] would have made these
things up about him touching her other private parts. How she described the
touching of her breast area is not consistent with what he said happened in tickling.
If you believe her, you’re convinced beyond a reasonable doubt, and that’s all that’s
necessary. I ask that you hold him responsible.
VRP (Mar. 2, 2016) at 688.
C. RELEVANT PORTIONS OF SENTENCING
The jury found Svaleson guilty as charged. The sentencing court imposed a 51 months to
life sentence.
The sentencing court also imposed legal financial obligations of $500 Crime Victim
Penalty Assessment, $200 criminal filing fee, $100 DNA testing fee, and “restitution which may
be set by later order of the Court.” CP at 86. Although the court referred to the $200 fee as “court
costs” in its oral ruling, the judgment and sentence reflects a “$200 Criminal Filing Fee.” VRP
(Apr. 15, 2016) at 8 (sentencing); CP at 86. When asked by the State if the court was imposing
DAC recoupment, the court responded, “[n]o, because of indigency.” VRP (Apr. 15, 2016) at 8
(sentencing). The judgment and sentence shows that court-appointed attorney fees and defense
costs were “waived by court, inability to pay.” CP at 86.
The sentencing court also imposed a number of community custody conditions, including:
14. Do not purchase, possess, or consume alcohol.
15. Do not enter into any location where alcohol is the primary product, such as taverns,
bars, and/or liquor stores.
....
23. Do not go to or frequent places where children congregate, (I.E. Fast-food outlets,
libraries, theaters, shopping malls, play grounds and parks, etc.) unless otherwise
approved by the Court.
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No. 48855-8-II
....
27. You are also prohibited from joining or perusing any public social websites
([Facebook], Myspace, Craigslist, etc.), Skyping, or telephoning any sexually-
oriented 900 numbers.
....
29. Do not patronize prostitutes or any businesses that promote the commercialization
of sex.
CP at 101-102.
Svaleson appeals.
ANALYSIS
A. SUFFICIENCY OF THE EVIDENCE
Svaleson argues that the State presented insufficient evidence that he touched E.B.’s
intimate or sexual parts “for the purposes of gratifying sexual desire of either party or a third
party,” as required by RCW 9A.44.010(2).2 Br. of Appellant at 16. We disagree.
1. Standard of Review
In reviewing a challenge to the sufficiency of the evidence, we view the evidence in the
light most favorable to the State and “determine whether any rational fact finder could have found
the elements of the crime beyond a reasonable doubt.” State v. Homan, 181 Wn.2d 102, 105, 330
P.3d 182 (2014). An insufficiency claim admits the truth of the State’s evidence and all reasonable
2
Svaleson also contends that the State failed to meet its burden of proof because it tried to shift
the burden of proof by arguing that there was no reasonable explanation Svaleson touched E.B.
other than to gratify his sexual desire. Svaleson makes a similar argument in his prosecutorial
misconduct claim. We address Svaleson’s burden shifting argument in the portion of the opinion
addressing prosecutorial misconduct.
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No. 48855-8-II
inferences that can be drawn from that evidence. Id. at 106. All such inferences “ ‘must be drawn
in favor of the State and interpreted most strongly against the defendant.’ ” Id. (quoting State v.
Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992)). Direct and circumstantial evidence are
equally reliable. State v. Farnsworth, 185 Wn.2d 768, 775, 374 P.3d 1152 (2016).
We review a challenge to the sufficiency of the evidence de novo. State v. Rich, 184 Wn.2d
897, 903, 365 P.3d 746 (2016). We defer to the fact finder on issues of conflicting testimony,
witness credibility, and the persuasiveness of evidence. State v. Ague-Masters, 138 Wn. App. 86,
102, 156 P.3d 265 (2007). If there is insufficient evidence to prove an element of a crime, reversal
is required. State v. Smith, 155 Wn.2d 496, 505, 120 P.3d 559 (2005).
2. The State Presented Sufficient Evidence of Sexual Gratification
A person commits first degree child molestation by having “sexual contact with another
who is less than twelve years old and not married to the perpetrator and the perpetrator is at least
thirty-six months older than the victim.” RCW 9A.44.083(1). Sexual contact is defined as “any
touching of the sexual or other intimate parts of a person done for the purpose of gratifying sexual
desire of either party or a third party.” RCW 9A.44.010(2). “Sexual gratification” is a clarifying
term meant to define the essential element of “sexual contact.” State v. Lorenz, 152 Wn.2d 22, 34-
35, 93 P.3d 133 (2004).
Svaleson relies on State v. Powell, 62 Wn. App. 914, 916, 816 P.2d 86 (1991), review
denied 118 Wn.2d 1013 (1992), to argue the State presented insufficient evidence he touched E.B.
with intent to gratify his sexual desire. In Powell, a fourth grade girl told her school counselor that
in the weeks before Thanksgiving, Powell had hugged her around the chest as she was seated on
his lap. 62 Wn. App. at 916. She also said that Powell placed his hand on the front and bottom of
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No. 48855-8-II
her underpants, as he assisted her off of his lap. Id. On a separate occasion, Powell momentarily
touched both the girl’s thighs on the outside of her clothing while they were alone in his truck. Id.The Powell court held these contacts were insufficient to show the defendant touched the
girl with the intent to gratify his sexual desire. Id. at 917-18. The court held that proof an unrelated
adult with no caretaking function has touched the intimate parts of a child supports the inference
it was done for sexual gratification. Id. at 917. But additional evidence of intent was required
when the contact was over the child’s clothing. Id. The court noted the evidence against Powell
was “equivocal” and only suggested a “fleeting touch” over clothing. Id. at 917-18. Because there
was no additional evidence aside from the fleeting touches over the child’s clothing, such as
threats, bribes, or requests not to tell being made, the Powell court reversed the first degree child
molestation conviction. Id. at 918.
Here, unlike in Powell, the evidence showed more than a “fleeting touch” over clothing.
The State presented evidence Svaleson touched E.B.’s breasts with both hands underneath her
clothing. Even Svaleson admitted that he directly touched E.B.’s breast with his thumb. Under
Powell, this evidence of direct contact to E.B.’s breasts supported the inference it was done for the
purposes of gratifying sexual desire. The State also presented evidence that immediately after
touching her breast, Svaleson rubbed “between [her] kneecap,” and grabbed and squeezed both
her butt and vagina. 4 VRP (Feb. 29, 2016) at 359. Viewing this evidence in the light most
favorable to the State, a rational trier of fact could have found Svaleson touched E.B. for the
purpose of gratifying his sexual desire.
Svaleson claims the evidence here was “highly equivocal” because the kitchen was not a
private space and because E.B. failed to tell her mother or sister immediately after the contact
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No. 48855-8-II
occurred. Br. of Appellant at 18. But Powell does not stand for the proposition that the State must
present evidence of sexual contact in a private space or evidence the child victim immediately
reported the incident to meet its burden. Although the Powell court considered the lack of
evidence, such as threats or bribes, it never scrutinized the time it took the child victim to report
the abuse. 62 Wn. App. at 917-18. Further, the court never suggested that a child’s delay in
reporting sexual abuse indicated sexual contact never occurred. Id. Thus, Svaleson’s reliance on
E.B.’s nine hour delay in reporting the incident is unavailing.
Therefore, we hold that Svaleson’s challenge to the sufficiency of the evidence fails.
B. NON-CORROBORATION JURY INSTRUCTION
Svaleson argues the trial court unconstitutionally commented on the evidence by giving a
non-corroboration instruction. We disagree.
1. Standard of Review
We review a challenged jury instruction de novo. State v. Jackman, 156 Wn.2d 736, 743,
132 P.3d 136 (2006), as corrected (2007). In doing so, we consider the context of the jury
instructions as a whole. Id.
2. The Non-Corroboration Instruction was not a Comment on the Evidence
Article IV, section 16 of the Washington Constitution prohibits a judge from “ ‘conveying
to the jury his or her personal attitudes toward the merits of the case.’ ” Id. at 743-44 (quoting
State v. Becker, 132 Wn.2d 54, 64, 935 P.2d 1321 (1997)). Such comment on the evidence need
not be explicit. Id. at 744. A trial court impermissibly comments on the evidence if it implies an
“attitude toward the merits of the case or the court’s evaluation relative to the disputed issue is
inferable from the statement.” State v. Johnson, 152 Wn. App. 924, 935, 219 P.3d 958 (2009)
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No. 48855-8-II
(quoting State v. Lane, 125 Wn.2d 825, 838, 889 P.2d 929 (1995)). Conversely, a jury instruction
is not an impermissible comment on the evidence where sufficient evidence supports the
instruction and it is an accurate statement of the law. Id.The Washington Supreme Court addressed the use of a non-corroboration jury instruction
in a child sexual abuse case in State v. Clayton, 32 Wn.2d 571, 572, 202 P.2d 922 (1949). There,
Clayton was charged with “an unlawful and felonious attempt to carnally know and abuse a female
child, not his wife, of the age of fifteen years.” Id. At trial, the jury was given the following
instruction:
You are instructed that it is the law of this State that a person charged with
attempting to carnally know a female child under the age of eighteen years may be
convicted upon the uncorroborated testimony of the prosecutrix alone. That is, the
question is distinctly one for the jury, and if you believe from the evidence and are
satisfied beyond a reasonable doubt as to the guilt of the defendant, you will return
a verdict of guilty, notwithstanding that there be no direct corroboration of her
testimony as to the commission of the act.
Id.Clayton admitted that the instruction was a correct statement of the law, but he argued that
the trial court impermissibly commented on the evidence by singling out the State’s evidence. Id.
at 572-73. The court rejected Clayton’s argument, finding that the jury must have understood that
it was to determine Clayton’s guilt or innocence from all the evidence presented. Id. at 577.
Further, the second sentence in the instruction made clear that the jury were the sole judges of the
weight to be given to the witness testimony. Id.Aside from Clayton, the Washington Supreme Court has not addressed the use of a non-
corroboration jury instruction in child sexual abuse cases. Notably, the Washington Pattern
Criminal Jury Instructions (WPIC) do not include a corroboration instruction and the Washington
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No. 48855-8-II
Supreme Court Committee on Jury Instructions has explicitly recommended against such
instruction, finding corroboration to really be a matter of sufficiency of the evidence. State v.
Zimmerman, 130 Wn. App. 170, 182, 121 P.3d 1216 (2005), review granted, cause remanded, 157
Wn.2d 1012, 138 P.3d 113 (2006).
In Zimmerman, the defendant was convicted of first degree child molestation. Id. at 173.
This court shared the Committee’s misgivings on including the non-corroboration instruction, but
held that the instruction was not an improper statement on the evidence. Id. at 182.3
Svaleson argues that Zimmerman and Clayton are either “distinguishable or no longer good
law.” Br. of Appellant at 29. But the holdings in these cases have yet to be reversed or
reconsidered. Also, the instruction given here is not “markedly different” than the instruction in
Clayton. Br. of Appellant at 31. Like the instruction given in Clayton, the instruction here
explicitly instructed the jury to resolve all questions of witness credibility. Thus, we hold that the
non-corroboration instruction in this case was not an improper comment on the evidence.
3
Similarly, in Johnson, this court again held that it was bound by Clayton despite reservations in
allowing a non-corroboration instruction. 152 Wn. App. at 935-36. The Johnson court also
rejected the defendant’s argument that a non-corroboration instruction required the qualifying
language of the instruction in Clayton that credibility determinations remained with the jury. Id.
at 936.
Most recently, Division One of this court addressed a non-corroboration jury instruction in
an incest case. State v. Chenoweth, 188 Wn. App. 521, 535-36, 354 P.3d 13 (2015), review denied,
184 Wn.2d 1023, (2015). The Chenoweth court acknowledged the Committee’s misgivings on
including such an instruction, noting that the Zimmerman and Johnson courts had shared those
misgivings. Id. at 536. Nonetheless, the Chenoweth court held that such instruction was an
accurate statement of the law and concluded that its use was not a comment on the evidence. Id.
at 537-38.
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No. 48855-8-II
C. EXPERT TESTIMONY
Svaleson argues for the first time on appeal that Adams and Skinner offered improper
opinion testimony by making “explicit or near explicit comment on guilt, veracity or credibility.”
Br. of Appellant at 35. We disagree.
1. Standard of Review
Because Svaleson raises this issue for the first time on appeal, he must show that allowing
the testimony was a manifest error affecting a constitutional right. State v. Kirkman, 159 Wn.2d
918, 926, 155 P.3d 125 (2007). Svaleson bears the burden of identifying the constitutional error
and showing how the alleged error affected his rights at trial. Id. at 926-27.
Generally, witnesses are prohibited from offering testimony in the form of an opinion
regarding the guilt or veracity of the defendant. Id. at 927. Such testimony invades the province
of the jury and unfairly prejudices the defendant. Id. In determining whether a witness has offered
impermissible opinion testimony, this court considers the circumstances of the case, including five
factors: “(1) ‘the type of witness involved,’ (2) ‘the specific nature of the testimony,’ (3) ‘the nature
of the charges,’ (4) ‘the type of defense,’ and (5) ‘the other evidence before the trier of fact.’ ” Id.
at 928 (quoting State v. Demery, 144 Wn.2d 753, 759, 30 P.3d 1278 (2001).
We review a trial court’s decision to admit expert testimony for an abuse of discretion. Id.
at 927. The trial court abuses its discretion if its “ ‘decision is manifestly unreasonable or is based
on untenable reasons or grounds.’ ” State v. Montgomery, 163 Wn.2d 577, 597, 183 P.3d 267(2008) (quoting State v. Mason, 160 Wn.2d 910, 922, 162 P.3d 396 (2007)).
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2. Adams’s Testimony
Svaleson argues that Adams offered improper opinion testimony when she discussed the
technique of using “foundations” to elicit more accurate responses in child interviews. 6 VRP
(Mar. 2, 2016) at 585. Svaleson further argues that it was improper for Adams to testify that her
technique of asking children open-ended questions is “more accurate . . . statistically.” 6 VRP
(Mar. 2, 2016) at 585.
In Kirkman, the Washington Supreme Court held that the detective in a child rape case
could testify as to the interview protocol used with a child victim. 159 Wn.2d at 931. A detective’s
testimony regarding the protocol used in interviewing a child victim “only provides context for the
interview . . . and does not improperly comment of the truthfulness of the victim.” Id. at 934. The
court rejected the argument that this testimony carried a “special aura of reliability,” as detectives
often use similar protocols in interviewing children, whether they believe the child or not. Id. at
931.
As in Kirkman, Adams never testified that she believed E.B. was telling the truth. Instead,
she testified as to the open-ended interview techniques used to question an alleged child victim.
Like the detective in Kirkman, she simply testified that this interview protocol was more accurate.
Because this testimony, at best, only indirectly related to E.B.’s credibility, Svaleson has failed to
show that Adam’s testimony was improper opinion testimony.
3. Skinner’s Testimony
Svaleson argues that Skinner offered improper opinion testimony on Svaleson’s guilt by
testifying that she had diagnosed E.B. with “acute stress disorder.” Br. of Appellant at 36.
Svaleson also argues that it was improper for Skinner to testify that E.B.’s symptoms were
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No. 48855-8-II
consistent with someone who has been sexually abused. Svaleson relies on State v. Black, 109
Wn.2d 336, 745 P.2d 12 (1987) to argue that Skinner’s testimony regarding acute stress disorder
was “ ‘in essence’ a statement that the defendant was guilty.” Br. of Appellant at 36.
In Black, the defendant in a rape case testified he had sex with the victim, but claimed it
was consensual and that no force was involved. 109 Wn.2d at 338. To prove the sex was
nonconsensual, the State offered the testimony of a counselor for a rape crisis center. Id. The
counselor testified that the victim fit the profile for rape victims and that her symptoms fit “rape
trauma syndrome.” Id. at 339. The court held that expert testimony on rape trauma syndrome
unfairly prejudiced the defendant because the term “rape trauma syndrome” itself suggested that
the defendant was guilty of rape. Id. at 349.
Unlike the testimony in Black, Skinner’s testimony did not embrace the diagnosis of “rape
trauma syndrome.” Skinner testified that she had diagnosed E.B. with “acute stress disorder” and
explained that this diagnosis was used “when a traumatic experience has occurred, either a client
has witnessed or has learned about a traumatic experience, and there are symptoms resulting from
that traumatic experience that meet a criteria.” 5 VRP (Mar. 1, 2016) at 538. Thus, unlike the
testimony in Black, Skinner testified that there were several reasons a client may develop acute
stress disorder.
Kirkman is instructive. In Kirkman, a doctor testified that in his evaluation, the child victim
gave “a very clear history” and provided “a clear and consistent history of sexual touching . . . with
appropriate affect.” 159 Wn.2d at 929. The defendant argued that in stating the child’s “report of
sexual touching was clear, consistent, with appropriate affect, and that she used appropriate
vocabulary,” the doctor commented on the child’s credibility. Id. at 929-30. The Kirkman court
17
No. 48855-8-II
rejected this argument, holding that this testimony “did not come close” to testifying the defendant
was guilty or that he believed the child’s account. Id. at 930.
Here, Skinner never opined that she believed Svaleson was guilty, nor did she state that
she believed E.B.’s version of the events to be true. Instead, she testified that she diagnosed E.B.
with acute stress disorder and that the symptoms E.B. exhibited were consistent with someone who
has suffered a traumatic experience. Like the doctors’ testimony in Kirkman, Skinner did not offer
her opinion to an ultimate fact in the case. Svaleson fails to show Skinner’s testimony was
improper opinion testimony.
4. Manifest Error Affecting a Constitutional Right
A manifest error affecting a constitutional right does not necessarily exist when a witness
expresses an opinion on an ultimate issue of fact. Id. at 935. “Manifest” under RAP 2.5(a)(3) is
to be construed narrowly and requires “a nearly explicit statement by the witness that the witness
believed the accusing victim.” Id. at 936. It also requires a showing of actual prejudice. Id. at
937.
Here, Svaleson fails to show that either Skinner or Adams provided improper opinion
testimony. Also, the testimony, at best, only indirectly related to E.B.’s credibility. Therefore, we
hold that Svaleson has failed to show Adam’s and Skinner’s testimony constituted a manifest error
warranting reversal.
D. PROSECUTORIAL MISCONDUCT
Svaleson argues the prosecutor committed misconduct in closing argument by: (1) shifting
the burden to Svaleson to disprove the State’s case; (2) commenting that testifying at trial was not
“a comfortable place for [E.B.] to be” and was “an intimidating setting;” and (3) urging the jury to
18
No. 48855-8-II
not blame E.B. and “make this [her] fault.”4 Br. of Appellant at 40; 6 VRP (Mar. 2, 2016) at 659,
664. We hold these allegations of misconduct fail.
1. Standard of Review
To prevail on a claim of prosecutorial misconduct, a defendant must show that the
prosecutor’s conduct was both improper and prejudicial. State v. Emery, 174 Wn.2d 741, 756, 278
P.3d 653 (2012). First, we determine whether the prosecutor’s conduct was improper. Id. at 759.
If the prosecutor’s conduct was improper, the question turns to whether the prosecutor’s improper
conduct resulted in prejudice. Id. at 760. Prejudice is established by showing a substantial
likelihood that the prosecutor’s misconduct affected the verdict. Id.However, if a defendant does not object at trial, he or she 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 any resulting prejudice. Id. at 760–61. Under this heightened standard of
review, 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.’ ” Id. at 761 (quoting State v. Thorgerson, 172 Wn.2d 438,
455, 258 P.3d 43 (2011)). In making a prejudice determination, we “focus less on whether the
prosecutor’s misconduct was flagrant or ill intentioned and more on whether the resulting prejudice
could have been cured.” Id. at 762.
4
Svaleson recites numerous other statements made by the prosecutor during closing arguments,
arguing that they were all “flagrant, prejudicial and ill-intentioned misconduct.” Br. of Appellant
at 40. However, because Svaleson provides no argument explaining how these statements
constituted flagrant and ill-intentioned misconduct, we do not address these challenges. RAP
10.3(a)(6); Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992).
19
No. 48855-8-II
When reviewing a claim of prosecutorial misconduct, we consider the statements in the
context of the entire case. Thorgerson, 172 Wn.2d at 443. In closing, the State is afforded wide
latitude in drawing and expressing reasonable inferences from the evidence. State v. Hoffman, 116
Wn.2d 51, 94-95, 804 P.2d 577 (1991), cert denied 516 U.S. 1160 (1996). The State may draw
reasonable inferences from the evidence and respond to defense arguments in its closing. State v.
Stenson, 132 Wn.2d 668, 727, 940 P.2d 1239 (1997), cert denied 523 U.S. 1008 (1998); State v.
Brown, 132 Wn.2d 529, 566, 940 P.2d 546 (1997), cert denied, 523 U.S. 1007 (1998).
2. Improper Burden Shifting
Svaleson argues that the prosecutor improperly shifted the burden of proof onto him by
asking the jury “why would [E.B.] make up all of that?” and stating that “what [E.B.] described is
sexual contact, and if you believe her, if you believe what she’s described, ladies and gentleman,
you are satisfied beyond a reasonable doubt.” Br. of Appellant at 38. Svaleson implies that the
statements were prejudicial because they essentially informed the jury that Svaleson was guilty
because there was no evidence showing he was not guilty.
In support, Svaleson relies on State v. Fleming, 83 Wn. App. 209, 213, 921 P.2d 1076(1996), review denied 131 Wn.2d 1018 (1997). In Fleming, the court held that the prosecutor
engaged in flagrant misconduct resulting in manifest constitutional error when she argued the jury
“would have to find either that [the victim] has lied about what occurred . . . or that she was
confused” to find the defendant not guilty. 83 Wn. App. at 213.
But the prosecutor here did not tell the jury that acquitting Svaleson meant finding E.B.
had lied. Rather, the prosecutor stated that if the jury believed E.B.’s testimony, they would be
satisfied beyond a reasonable doubt. Also, when viewed in the context of the entire closing
20
No. 48855-8-II
argument, the prosecutor’s statements did not argue that Svaleson was guilty because there was no
evidence showing he was not guilty. Instead, the prosecutor’s arguments addressed the lack of
evidence corroborating E.B.’s testimony.
Svaleson also argues that the prosecutor created “an effective improper presumption” that
the jury should conclude proof of touching E.B.’s sexual parts was proof the touching was done
for sexual gratification. Br. of Appellant at 20. In support, Svaleson cites to State v. Deal, 128
Wn.2d 693, 699-700, 911 P.2d 996 (1996) and State v. Brunson, 128 Wn.2d 98, 107, 905 P.2d 346(1995). But both Deal and Brunson addressed a jury instruction that created an improper
presumption. Deal, 128 Wn.2d at 700-01; Brunson, 128 Wn.2d at 105. Because Svaleson is not
arguing that a jury instruction created an improper presumption, his reliance on Deal and Brunson
is misplaced.
Also, when viewed in the context of the State’s entire closing argument, the prosecutor did
not create any presumption or improperly shift its burden to prove intent by arguing to the jury “if
you believe what [E.B.’s] described, ladies and gentlemen, you are satisfied beyond a reasonable
doubt.” 6 VRP (Mar. 2, 2016) at 652. Instead, the prosecutor made this statement while discussing
the credibility of E.B. and Svaleson. The prosecutor argued that the jury should consider
Svaleson’s motives, bias, and the reasonableness of his story when assessing his testimony, and
that E.B. had no reason to fabricate. The prosecutor’s latitude in closing argument extended to
arguing that the jury should draw permissible inferences based on the evidence presented that
Svaleson touched E.B. to gratify his sexual desire.
21
No. 48855-8-II
Moreover, because Svaleson did not object below, Svaleson has waived any error by failing
to show that no curative instruction would have obviated any prejudicial effect. Emery, 174
Wn.2d. Thus, Svaleson’s prosecutorial misconduct claim based on improper burden shifting fails.
3. Commenting on E.B.’s Demeanor
Svaleson argues the prosecutor engaged in flagrant and ill-intentioned misconduct by
mentioning that court was uncomfortable and an intimidating setting for E.B. We disagree.
It is inappropriate for a prosecutor to make “nothing but an appeal to the jury’s passion and
prejudice.” State v. Claflin, 38 Wn. App. 847, 850, 690 P.2d 1186 (1984), review denied 103
Wn.2d 1014 (1985). For example, in Belgarde, the court held that the prosecutor’s repeated
references to the defendant’s association with the American Indian Movement as “a deadly group
of madmen” was a deliberate appeal to the jury’s passion and prejudice and encouraged the jury
to render a verdict based on the defendant’s association with AIM. 110 Wn.2d 504, 506, 755 P.2d
174 (1988). In Claflin, the court found prosecutorial misconduct where a prosecutor read “a poem
utilizing vivid and highly inflammatory imagery” to describe rape’s emotional effect on its victims.
38 Wn. App. at 850.
Here, the prosecutor made the challenged statements in the context of E.B.’s credibility.
The statements were not made to inflame the passion and prejudice of the jury as in Belgarde and
Claflin, but were made to explain why E.B. had difficulty remembering details when testifying.
We hold that these statements were not made to obtain “undue sympathy” and that Svaleson’s
prosecutorial misconduct argument fails.
22
No. 48855-8-II
4. Urging the Jury to Not Blame E.B.
Svaleson also contends that the prosecutor improperly conveyed to the jury that failing to
convict Svaleson would be a finding that E.B. was at fault, relying on the prosecutor’s statement
“not to make this [E.B.’s] fault.” Br. of Appellant at 39. We reject this assertion.
Svaleson argues the prosecutor “clearly conveyed to the jurors that a failure to convict
would be to make this E.B.’s fault” through this statement. Br. of Appellant at 42. But he provides
no support connecting this kind of statement to his conclusion. Svaleson’s sole support for his
argument is the prosecutor’s comment to not “make this [E.B.’s] fault.” 6 VRP (Mar. 2, 2016) at
664. Svaleson baldly asserts that through this statement, the prosecutor “clearly conveyed to the
jurors that a failure to convict would be to make this E.B.’s fault.” Br. of Appellant at 42.
Viewing this statement within the context of the entire case, the prosecutor made this
statement in response to the defense’s argument that E.B. failed to immediately call her mom with
the house phone following the incident. In closing, defense counsel spent considerable time
commenting on E.B.’s delay in reporting. He even counted the hours it took E.B. to say something.
Given that Svaleson spent significant time addressing E.B.’s delay in reporting this incident, it was
not improper for the prosecutor to respond by arguing:
Don’t make this [E.B.]’s fault. There is testimony that, you know, there’s a house
phone. Why wouldn’t you call? She didn’t have a cell phone yet at the time. It’s
not [E.B.]’s fault she did not pick up the house phone and call her mom. She knew
her mom was coming to get her at the end of the day, and she told her mom pretty
much as soon as she got in the car, but that aside, the defendant is the one who did
this.
6 VRP (Mar. 2, 2016) at 664-65.
23
No. 48855-8-II
Because Svaleson fails to show the prosecutor’s statement constituted improper conduct,
we hold that Svaleson’s prosecutorial misconduct argument fails.
E. INEFFECTIVE ASSISTANCE OF COUNSEL
Svaleson argues that his trial counsel was prejudicially deficient in his performance
because he failed to object to the prosecutor’s “egregious” misconduct and there was no legitimate
tactical reason for failing to object. Br. of Appellant at 42. We disagree.
1. Legal Principles
The Sixth Amendment to the U.S. Constitution and article I, section 22 of the Washington
Constitution guarantees the accused the right to effective assistance of counsel. State v. Grier, 171
Wn.2d 17, 32, 246 P.3d 1260 (2011), cert denied 135 S. Ct. 153 (2014). We review an ineffective
assistance of counsel claim de novo. State v. Estes, 188 Wn.2d 450, 457, 395 P.3d 1045 (2017).
In Strickland, the U.S. Supreme Court outlined the prevailing standard to reverse a criminal
conviction based on an ineffective assistance of counsel claim. Grier, 171 Wn.2d at 32. This
entails a two-pronged inquiry in which the defendant must show (1) counsel’s performance was
deficient and (2) this deficient performance prejudiced the defense. Id. at 32-33. Counsel’s
performance is deficient if it falls “below an objective standard of reasonableness.” Id. at 33(quoting Strickland v. Washington, 466 U.S. 668, 688, 104 S. Ct. 2052, 80 L. Ed. 2d. 674 (1984)).
To prevail, the defendant must overcome “a strong presumption that counsel’s performance was
reasonable.” State v. Kyllo, 166 Wn.2d 856, 862, 215 P.3d 177 (2009). Counsel’s performance is
not deficient if it can be characterized as legitimate trial strategy or tactics. Estes, 188 Wn.2d at
458.
24
No. 48855-8-II
Defense counsel’s failure to object during the prosecutor’s closing argument generally does
not constitute deficient performance “because lawyers ‘do not commonly object during closing
argument “absent egregious misstatements.” ’ ” In re Pers. Restraint of Cross, 180 Wn.2d 664,
721, 327 P.3d 660 (2014) (quoting In re Pers. Restraint of Davis, 152 Wn.2d 647, 717, 101 P.3d
1 (2007)). Further, to establish deficient performance or prejudice for failing to object, Svaleson
must show that such objection would likely have been successful. State v. Gerdts, 136 Wn. App.
720, 727, 150 P.3d 627 (2007).
2. Counsel was not Ineffective
Here, defense counsel objected based on “undue sympathy” when the prosecutor
mentioned testifying at trial was uncomfortable for E.B. 6 VRP (March 2, 2016) at 659. Because
defense counsel objected, Svaleson’s ineffective assistance of counsel claim fails.
Svaleson also argues that counsel provided ineffective assistance by failing to object to the
prosecutor’s arguments that purportedly shifted the burden and told the jury to not make this E.B.’s
fault. Both of these claims fail because Svaleson has failed to show the prosecutor’s remarks were
improper. See supra Section D. Thus, Svaleson fails to show that even had defense counsel
objected, the objection would have been sustained. Svaleson fails to show that counsel’s failure
to object was deficient performance, and his ineffective assistance of counsel claim fails.
F. CUMULATIVE ERROR DOCTRINE
Svaleson argues that even if the errors standing alone do not warrant reversal, he was
deprived of a fair trial due to the cumulative effect of the prosecutorial misconduct, the improper
jury instruction, improper opinion testimony, and his ineffective assistance of counsel. Under the
cumulative error doctrine, reversal may be required even if each individual error would otherwise
25
No. 48855-8-II
be considered harmless. State v. Russell, 125 Wn.2d 24, 93, 882 P.2d 747 (1994), cert denied 514
U.S. 1129 (1995). Because we hold that Svaleson failed to show that any one of his challenges
constituted error, we likewise hold Svaleson’s cumulative error argument fails.
E. COMMUNITY CUSTODY CONDITIONS
Svaleson argues that a number of community custody conditions imposed by the
sentencing court were either unauthorized or unconstitutional. First, he asserts it was improper for
the sentencing court to prohibit him from “purchas[ing], possess[ing], or consum[ing] alcohol” or
from frequenting “any location where alcohol is the primary product, such as taverns, bars, and/or
liquor stores.” CP at 78. Second, he challenges the sentencing court’s authority to ban him from
frequenting locations where children congregate and also argues this condition was
unconstitutionally vague. Third, Svaleson argues the condition banning him from using social
networking sites, including Facebook, Myspace, and Craigslist, was improper. Finally, Svaleson
argues that the sentencing court’s prohibition on patronizing prostitutes and businesses that
promote commercialization of sex was not crime-related, but was also constitutionally vague, and
violates the First Amendment.
The State concedes that the sentencing court exceeded its statutory authority in prohibiting
Svaleson from purchasing alcohol or entering locations where alcohol is the primary product. The
State also concedes that the sentencing court improperly prohibited Svaleson from using social
networking sites and frequenting businesses that promote the commercialization of sex because
they were not crime-related.
26
No. 48855-8-II
1. Standard of Review
We review de novo whether the sentencing court had the statutory authority to impose a
particular community custody condition. State v. Acevedo, 159 Wn. App. 221, 231, 248 P.3d 526(2010). But a challenge that a community custody condition is not crime-related is reviewed for
abuse of discretion. State v. Sanchez Valencia, 169 Wn.2d 782, 792, 239 P.3d 1059 (2010). In
applying the abuse of discretion standard, we will only reverse a condition that we find to be
“manifestly unreasonable.” State v. Irwin, 191 Wn. App. 644, 652, 364 P.3d 830 (2015). Of
course, imposing an unconstitutional condition is always “manifestly unreasonable.” Id. We do
not presume that community custody conditions are constitutionally valid. Sanchez Valencia, 169
Wn.2d at 793.
When we determine a sentencing court has imposed an unauthorized condition on
community custody, we will remedy the error by remanding to the sentencing court with
instruction to strike the unauthorized condition. State v. O’Cain, 144 Wn. App. 772, 775, 184 P.3d
1262 (2008).
2. Alcohol Prohibitions
Svaleson challenges the sentencing court’s statutory authority to impose two community
custody prohibitions involving alcohol and argues that neither condition was crime-related. First
he challenges condition 14, which prohibited him from “purchas[ing], possess[ing], or
consum[ing] alcohol.” CP at 78. Next, he challenges condition 15, which prohibited him from
entering “into any location where alcohol is the primary product, such as taverns, bars, and/or
liquor stores.” CP at 78. The State concedes that the portion of condition 14 prohibiting Svaleson
from possessing or purchasing alcohol and condition 15 exceeded the sentencing court’s statutory
27
No. 48855-8-II
authority. We accept the State’s concession and remand to the sentencing court to amend
community custody condition 14 to only prohibit consuming alcohol and to strike condition 15.
At the time of the incident in 2014, former RCW 9.94A.703 allowed the sentencing court
to impose the discretionary community custody condition that Svaleson “[r]efrain from consuming
alcohol.” RCW 9.94A.703 (3)(e) (2014).5 Thus, the sentencing court had the authority under
former RCW 9.94A.703(3)(e) to prohibit Svaleson from consuming alcohol as a condition of his
community custody. But the sentencing court did not have statutory authority to impose the
conditions related to possessing, purchasing, or frequenting locations where alcohol was the
primary product unless these conditions were crime-related.
Under RCW 9.94A.703(3)(f), the sentencing court had discretionary authority to order
Svaleson to “[c]omply with any crime-related prohibitions.” A condition is crime-related only if
there is specific evidence showing it contributed to the offense. State v. Jones, 118 Wn. App. 199,
207-08, 76 P.3d 258 (2003).
Because there was no evidence that alcohol played a role in Svaleson’s offense, it was
manifestly unreasonable for the sentencing court to prohibit the purchase and possession of alcohol
as a crime-related condition. Therefore, we hold that the condition prohibiting Svaleson from
entering a location where alcohol is the primary product was an abuse of discretion because there
was no evidence that showed this was a crime-related condition. Thus, we remand to the
sentencing court with instructions to strike the portion of condition 14 prohibiting him from
purchasing or possessing alcohol and to strike condition 15.
5
At sentencing in 2016, the legislature had updated the discretionary community custody
conditions to “[r]efrain from possessing or consuming alcohol.” RCW 9.94A.703 (3)(e) (2015).
28
No. 48855-8-II
3. Ban on Frequenting Locations Where Children Congregate
Svaleson challenges community custody condition 23 prohibiting him from visiting
locations where children congregate.6 Svaleson argues that the condition is not crime-related. He
also makes a vagueness challenge. We disagree on both accounts.
a. The Condition is Crime-Related
Svaleson argues that the condition banning him from places children congregate is not
crime-related because Svaleson committed this crime in a private home. We disagree.
A condition is crime-related if it directly relates to the underlying crime and need not be
causally related to the crime. Zimmer, 146 Wn. App. at 413 (community custody condition
prohibiting possession of drug paraphernalia directly related to the defendant’s conviction for
possession of methamphetamine); State v. Acrey, 135 Wn. App. 938, 946-47, 146 P.3d 1215 (2006)
(community custody condition prohibiting the defendant from working as a caretaker for elderly
or disabled individuals after she manipulated an elderly man into marrying her and subsequently
drained his bank account was crime-related because the defendant’s criminal method involved
gaining the trust of a dependent person).
Here, the condition prohibiting Svaleson from visiting locations where children congregate
directly related to his conviction for child molestation. Svaleson was convicted of a crime where
the victim was a 10 year old girl. Although he did not meet E.B. in a public location, his criminal
6
Svaleson challenges this condition by conflating two distinct legal issues in one assignment of
error, but we address each in turn. State v. Zimmer, 146 Wn. App. 405, 412, 190 P.3d 121 (2008),
review denied, 165 Wn.2d 1035 (2009).
29
No. 48855-8-II
method involved gaining the trust of a young child. Therefore, it was not manifestly unreasonable
for the trial court to prohibit Svaleson from frequenting locations where children congregate.
b. The Condition is not Unconstitutionally Vague
Alternatively, Svaleson argues condition 23 is unconstitutionally vague because a ban on
frequenting places children congregate “includes an incredibly open-ended list.” Br. of Appellant
at 46. We disagree.
The guarantee of due process, afforded by the Fourteenth Amendment to the United States
Constitution and article I, section 3 of the Washington Constitution requires citizens to have fair
warning of conduct proscribed. State v. Bahl, 164 Wn.2d 739, 752, 193 P.3d 678 (2008). A statute
is unconstitutionally vague if it fails to “(1) provide ordinary people fair warning of proscribed
conduct and (2) have standards that are definite enough to ‘ “protect against arbitrary
enforcement.” ’ ” Irwin, 191 Wn. App. at 652-53 (quoting Bahl, 164 Wn.2d at 752-53). A
community custody condition is unconstitutionally vague if it fails in either respect. Id. at 653.
Svaleson primarily relies on the holding in Irwin. The Irwin court held a condition
prohibiting the defendant from “frequent[ing] areas where minor children are known to
congregate, as defined by the supervising CCO” was unconstitutionally vague. 191 Wn. App. at
652. But the Irwin court reached this decision noting that “[w]ithout some clarifying language or
an illustrative list of prohibited locations . . . the condition does not give ordinary people sufficient
notice to ‘understand what conduct is proscribed.’ ” Id. at 655 (quoting Bahl, 164 Wn.2d at 753.
In contrast, Svaleson challenges a condition that states:
Do not go to or frequent places where children congregate, (I.E. Fast-food outlets,
libraries, theatres, shopping malls, play grounds and parks, etc.) unless otherwise
approved by the Court.
30
No. 48855-8-II
CP at 79.
The condition imposed here cures the defect in the condition challenged in Irwin because
it contains the “illustrative list of prohibited locations” the Irwin court held would provide
sufficient notice. Irwin, 191 Wn. App. at 655. The condition here further alleviates the arbitrary
enforcement concerns in Irwin because it does not vest a correctional officer with the authority to
define “places where children congregate.” CP at 79. Because the condition here cures the
vagueness defects identified in Irwin, we hold Svaleson’s vagueness challenge fails.
4. Ban on Social Networking Sites
Svaleson challenges the community custody condition prohibiting him from “joining or
perusing any public social websites ([Facebook], Myspace, Craigslist, etc.), Skyping, or
telephoning any sexually-oriented 900 numbers.” CP at 79. Again, he contends the condition is
not crime-related and is unconstitutionally vague. The State concedes the condition is not crime-
related. We accept the State’s concession and hold that the condition is not crime-related.
Internet use is crime-related if there is evidence that Internet use “contributed in any way
to the crime.” O’Cain, 144 Wn. App. at 775. Here, there was no evidence before the sentencing
court that technology, let alone social networking websites, contributed in any way to Svaleson’s
crime of child molestation. Without evidence that social networking websites, Skype, or sexually-
oriented 900 numbers contributed to the crime, we hold that the sentencing court erred in imposing
this condition.7
7
Because we decide this issue on non-constitutional grounds, we do not reach the constitutional
challenge. State v. Smith, 104 Wn.2d 497, 505, 707 P.2d 1306 (1985).
31
No. 48855-8-II
Thus, we accept the State’s concession and remand to the trial court with instructions to
strike community custody condition 27.
5. Prohibitions Related to the Commercialization of Sex
Svaleson challenges community custody condition 29, which prohibited him from
“patronize[ing] prostitutes or any businesses that promote the commercialization of sex.” CP at
79. He argues that the condition was not crime-related, was unconstitutionally vague, and violates
the First Amendment. Again, the State concedes this condition was not crime-related.
Here, there was no evidence to suggest that establishments promoting the
commercialization of sex contributed in any way to Svaleson’s crime. Therefore, the sentencing
court erred in imposing this condition.
However, in Washington, it is a misdemeanor to patronize a prostitute. RCW
9A.88.110(4). The sentencing court has authority to require an offender to engage in law-abiding
behavior. Jones, 118 Wn. App. at 205. Thus, the sentencing court did not abuse its discretion in
prohibiting Svaleson from patronizing a prostitute in violation of Washington law.
Thus, we hold that the sentencing court erred in prohibiting Svaleson from patronizing
businesses that promote the commercialization of sex because such prohibition was not crime-
related and remand for the sentencing court to strike the community custody condition prohibiting
Svaleson from patronizing businesses that promote the commercialization of sex.8
8
Svaleson also raises constitutional vagueness and First Amendment challenges to the condition
related to the “commercialization of sex.” Br. of Appellant at 48-49. Because we decide
Svaleson’s “commercialization of sex” claim on non-constitutional grounds, we decline to address
his constitutional arguments. Smith, 104 Wn.2d at 505.
32
No. 48855-8-II
G. LEGAL FINANCIAL OBLIGATIONS
Svaleson argues the sentencing court erred in imposing “standard” legal financial
obligations (LFOs) because it failed to consider his financial resources and the burden those costs
would impose. Br. of Appellant at 49. We disagree.
1. Standard of Review
We review a sentencing court’s decision on whether to impose LFOs for abuse of
discretion. State v. Clark, 191 Wn. App. 369, 372, 362 P.3d 309 (2015), review granted in part
187 Wn.2d 1009 (2017). A court abuses its discretion when it imposes an LFO based on untenable
grounds or for untenable reasons. Id.
2. The Sentencing Court did not Err in Imposing Mandatory LFOs
Svaleson relies on Blazina9 to argue the court abused its discretion in applying LFOs.
Blazina is not instructive here because it addressed the sentencing court’s imposition of
discretionary fees.
Here, the sentencing court imposed only costs and fees mandated by statute: $500 Crime
Victim Penalty Assessment,10 $200 criminal filing fee,11 and $100 DNA testing fee.12 Thus,
9
State v. Blazina, 182 Wn.2d 827, 344 P.3d 680 (2015).
10
Former RCW 7.68.035(1)(a) (2011), amended by LAWS OF 2018, ch. 269, S.S.H.B. No. 1783;
State v. Curry, 118 Wn.2d 911, 917, 829 P.2d 166 (1992).
11
Former RCW 36.18.020(h) (2013), amended by LAWS OF 2018, ch. 269, S.S.H.B. No. 1783;
State v. Lundy, 176 Wn. App. 96, 102, 308 P.3d 755 (2013).
12
RCW 43.43.754(1)(a); Former RCW 43.43.7541 (2011), amended by LAWS OF 2018, ch. 269,
S.S.H.B. No. 1783.
33
No. 48855-8-II
because the LFOs imposed were mandated by statute, the sentencing court did not err in imposing
them.
H. SAG ISSUES
Svaleson asks this court to review (1) whether the prosecutor engaged in prosecutorial
misconduct; (2) whether his attorney provided ineffective assistance of counsel; (3) the sufficiency
of the evidence; and (4) whether the cumulative error doctrine compels reversal. We reject each
of these claims.
1. Prosecutorial Misconduct13
Svaleson contends that the prosecutor trivialized the State’s burden of proof because she
impermissibly “prepped” the jury to overlook the many details E.B. could not remember while
testifying. SAG at 4. Svaleson relies on State v. Lindsay, 180 Wn.2d 423, 326 P.3d 125 (2014),
for support.
In Lindsay, the Washington Supreme Court held it was improper for the prosecutor to
describe reasonable doubt in closing argument by quantifying the standard of proof through a
jigsaw puzzle analogy. 180 Wn.2d at 436. The court in Lindsay did not hold the prosecutor
engaged in misconduct by arguing the State had met its burden of proof when one of the witnesses
could not remember every detail of the incident. Id.
Here, Svaleson’s argument based on Lindsay fails because the prosecutor never
incorporated a jigsaw puzzle analogy when describing the reasonable doubt standard. Also, it was
not improper for the State to argue it had met its burden of proof, even though E.B. could not
13
We addressed Svaleson’s challenge that the prosecutor impermissibly shifted the burden of proof
during closing argument in supra Section D.2.
34
No. 48855-8-II
remember several details of the incident during testimony. Thus, we hold that Svaleson’s
prosecutorial misconduct challenge fails.
2. Counsel was not Ineffective
a. Counsel was not Ineffective for Failing to Object
Svaleson argues his counsel was ineffective because he failed to object to the State’s
“ridiculous and inflammatory question” asking whether Svaleson was ever married to E.B. SAG
at 8. We reject this argument.
To successfully prove counsel was ineffective for failing to object to this line of
questioning, Svaleson must show the objection would likely have been successful. Gerdts, 136
Wn. App. at 726-27. Svaleson cannot make this showing here because first degree child
molestation is defined as “knowingly causes another person under the age of eighteen to have,
sexual contact with another who is less than twelve years old and not married to the perpetrator.”
RCW 9A.44.083(1). Thus, in order to meet its burden of proof the State was required to prove
E.B. and Svaleson were not married at the time. Any objection to this line of questioning would
have failed, and we hold that Svaleson’s ineffective assistance of counsel claim fails.
b. Counsel was not Ineffective for Failing to Cross-Examine the Officers
Svaleson argues counsel was ineffective for failing to cross-examine the officers about the
lack of physical evidence in the case. We disagree.
Counsel renders ineffective assistance of counsel for failing to cross-examine a State expert
only if such failure reasonably affected the outcome. Estes, 188 Wn.2d at 458. Here, Svaleson
has not shown that cross-examining the officer on the lack of physical evidence in his case would
likely have affected the outcome. The jury’s finding that he molested E.B. did not turn on any
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No. 48855-8-II
physical evidence and the State repeatedly conceded this case did not involve physical medical
findings. Therefore, Svaleson’s argument fails.
c. Counsel was not Ineffective for Failing to Call Witnesses
Svaleson also contends his trial counsel was ineffective because, other than Svaleson,
counsel failed to call any witnesses. However, Svaleson fails to explain how additional witnesses
would have assisted him in contesting the charge. We hold that Svaleson has failed to show
counsel’s performance was deficient for failing to call additional witnesses because he has not
shown how additional witnesses would have assisted his defense or that there is a reasonable
probability the outcome of the trial would have been different.
3. Sufficiency of Evidence
Svaleson argues the State presented insufficient evidence that he touched E.B. with intent
to gratify his sexual desire. As discussed in Section A above, we hold that this argument fails.14
4. Cumulative Error Doctrine
Svaleson contends the combined errors he identified compel reversal. Because Svaleson
has failed to identify any instance constituting error, we hold that his argument fails.
14
Svaleson also claims the State presented insufficient evidence because E.B.’s testimony
contained many “I don’t remembers” and “I don’t knows.” SAG at 10. However, “ ‘[t]he test for
determining the sufficiency of the evidence is whether, after viewing the evidence in the light most
favorable to the State, any rational trier of fact could have found guilt beyond a reasonable doubt.’
” State v. Hovig, 149 Wn. App. 1, 8, 202 P.3d 318, review denied 166 Wn.2d 1020 (2009) (quoting
Salinas, 119 Wn.2d at 201). Also, “ ‘all reasonable inferences from the evidence must be drawn
in favor of the State and interpreted most strongly against the defendant.’ ” Id. Svaleson fails to
show how E.B.’s challenged testimony amounts to insufficient evidence for any rational trier of
fact to find guilt beyond a reasonable doubt.
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No. 48855-8-II
CONCLUSION
We affirm Svaleson’s conviction. We reverse the challenged community custody
conditions as noted in this opinion and remand for the sentencing court to strike the community
conditions consistent with this opinion.
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.
Lee, A.C.J.
We concur:
Worswick, J.
Sutton, J.
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