State Of Washington, V Eric K. Jacobson ( 2018 )

Filed
Washington State
Court of Appeals
Division Two
May 15, 2018
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 49887-1-II
Respondent,
v.
ERIC KERMIT JACOBSON, UNPUBLISHED OPINION
Appellant.
WORSWICK, J. — Eric Kermit Jacobson appeals his convictions and sentence for one
count of attempted first degree rape of a child and one count of attempted commercial sexual
abuse of a minor. Jacobson argues that (1) law enforcement’s conduct was so outrageous that it
violated his due process rights, (2) the prosecutor committed misconduct throughout trial, (3)
cumulative error deprived him of a fair trial, (4) substantial evidence does not support his
convictions, and (5) the community custody conditions prohibiting the use of the Internet and
devices with Internet access violate his First Amendment rights. We affirm Jacobson’s
convictions and sentence.
FACTS
I. BACKGROUND
The Washington State Patrol Missing and Exploited Children’s Task Force (Task Force)
investigates sex crimes against children, and the majority of the Task Force’s investigations
involve the Internet. Detective Sergeant Carlos Rodriguez manages the Task Force and oversees
its undercover operations. In December 2015, the Task Force conducted an undercover
No. 49887-1-II
operation in Pierce County. As part of the undercover operation, the Task Force posted ads on
the “Casual Encounters” section of Craigslist,1 posing either as children seeking sex or parents
seeking for others to have sexual contact with their children. 1 Verbatim Report of Proceedings
(VRP) 140.
On December 14, 2015, Sergeant Rodriguez posted an ad on the Casual Encounters
section, posing as Kristl, a single mother with three minor children. The ad was entitled “young
family fun, no RP lets meet” and read “looking for a crazy fun time. only serious need respond.
no solicitations. single mom with 2 daus and 1 son.”2 Ex. 1. Soon after, Kristl3 received an e-
mail response from “John Tepinen,” stating that he was interested in “some play with one or both
of [Kristl’s] daughters.” Ex. 2, at 1.
Kristl and John began exchanging text messages. Kristl stated that her daughters were
“11 nearly 12 and 8.” Ex. 4, at 1. John stated that he was interested in Kristl’s older daughter
and asked for several pictures of her. Sergeant Rodriguez obtained photographs from State
Trooper Anna Gasser that were taken at the time she was approximately 16 years old and sent
the photographs to John. Trooper Gasser portrayed Lisa, Kristl’s 11-year-old daughter,
throughout the undercover operation. John then asked if Kristl would send a picture of herself.
United States Postal Inspection Service Inspector Samantha Knoll portrayed Kristl throughout
the undercover operation. John and Kristl then exchanged pictures of each other.
1
Craigslist is an online classified advertisement website.
2
Sergeant Rodriguez stated that “[no] RP” meant no role play. 1 VRP at 151.
3
We refer to all law enforcement as their undercover personas for clarity.
2
No. 49887-1-II
The next day, John stated, “I believed we were talking about Lisa being ready to go all
the way, and if she is and you are comfortable with that then I would like to help with that.” Ex.
4, at 5. Kristl asked if John was okay with bringing gifts and stated that “roses are always good,
she likes gift cards, tracfone minutes for her phone, stuff like that.” Ex. 4, at 7. John responded
in the affirmative. John then stated he was interested in oral sex with Lisa. Later that day, John
spoke on the phone with both Kristl and Lisa.
Kristl and John arranged to meet the following day at a gas station. Kristl asked that John
bring condoms, lubricant, and candy to meet Lisa. John requested that Kristl bring Lisa to the
gas station so that he could see that Kristl and Lisa were real people. Then, the following
exchange took place:
[KRISTL]: no way. sorry hun. this is too risky for us. [nevermind] then i have a
system and im sticking to it.
[JOHN]: I’m sure you fill up at that station all the time . . . you have to respect that
I need to feel safe too . . . I certainly respect that you do . . . .
[KRISTL]: so have a great life. like i said. i have a system and it has kept me out
of trouble. i will not change.
[JOHN]: Ok.
[KRISTL]: so that means no go right?
....
[JOHN]: I just drove by the address you gave me for the [gas station], and you
gave me the address to a home residential neighborhood. So sorry, this is all
seeming to be something it’s really not.
....
[KRISTL]: im done with you sorry to mich hassle if you change your mind you
know what to do
[JOHN]: They wind up having time tomorrow during the day, may I message you?
Would you be available daytime tomorrow? . . .
[KRISTL]: no way. yo know what the deal is i will find someone else
[JOHN]: Ok.
[KRISTL]: im [upset] with you [now] i have to tell her you arent coming. I
[shouldn’t] have let her [talk] to you
[JOHN]: Ugh . . . I feel bad. Would there be any harm in me coming over tonight
still?
....
3
No. 49887-1-II
[KRISTL]: are you still good with gifts? . . . what did [you] have in mind . . . .
[JOHN]: A gift card, that can be used for any purpose.
Ex. 4, at 10-14.
John notified Kristl that he was at the agreed upon gas station in a silver sport-utility
vehicle (SUV). Kristl then provided the address for the undercover operation’s “trap house.”
Soon after, law enforcement initiated a traffic stop of the silver SUV. Law enforcement
identified Jacobson as the driver of the vehicle and placed him under arrest. Pursuant to a search
incident to arrest, law enforcement located condoms, lubricant, and candy on Jacobson’s person.
Law enforcement also located a cell phone in the silver SUV and verified that the cell phone
belonged to Jacobson and was the same cell phone number John had used to contact Kristl. The
State subsequently charged Jacobson with one count of attempted first degree rape of a child4
and one count of attempted commercial sexual abuse of a minor.5
II. TRIAL
The case proceeded to a jury trial. During voir dire, the following exchange took place:
[THE STATE]: . . . has anyone been into the Casual Encounter section of
Craigslist? . . .
....
[THE STATE]: . . . I am going to ask some questions about the Casual
Encounter section of Craigslist which for those of you who have never heard of it
has dating services, sex services, nudity, all kinds of stuff.
1 VRP at 11-12. Jacobson did not object.
The prosecutor continued:
What would you expect when you hear the name Casual Encounters? Sound
permanent? . . . Were you aware that you could find sex for sale on that website?
4
RCW 9A.44.073(1).
5
Former RCW 9.68A.100(1) (2013).
4
No. 49887-1-II
....
. . . Anyone surprised or not surprised to know that you can actually pay for
sex or, for that matter, get paid for sex on Craigslist?
1 VRP at 14-15. Jacobson did not object.
The prosecutor also asked the prospective jurors if “anybody ever . . . actually been on
Backpage.com? Heard of it? How many of you were aware of the recent news story that the
CEO [(chief executive officer)] of Backpage was just arrested for running the largest online
brothel in the world?” 1 VRP at 15. Jacobson did not object. The prosecutor then referenced
Craigslist, asking: “Does anybody know what happens when you flag the ad?” 1 VRP at 18. A
prospective juror responded that when an ad is flagged, Craigslist will occasionally take it off of
its website. The prosecutor continued: “Someone out there in the Internet reads the ad and
decides whether or not [the] complaint was legit. If it is, the ad is gone, and if it’s not, it stays
up.” 1 VRP at 18. Jacobson did not object.
The prosecutor also referenced “To Catch a Predator.” See 1 VRP at 22. The prosecutor
asked, “How many of you watch shows like 20/20 and Dateline, those kind of things? . . . [D]id
you ever watch the ones, To Catch a Predator, the stings that were done?” 1 VRP at 22. The
prosecutor continued:
To Catch a Predator, those kind of things, how many of you have watched the
shows where they set somebody up; they show up, and it’s the police and they are
arrested? . . . Has anybody here ever seen one of those and thought to themselves,
“God, I feel bad for that guy?”
1 VRP at 22. Jacobson did not object.
Later, the prosecutor asked:
[THE STATE]: How many of you have actually sat on a jury that went all
the way to the deliberations before?
....
5
No. 49887-1-II
[THE STATE]: Has anyone sat on a jury that deliberated but then was not
able to reach a verdict, so it was a hung jury? [Prospective juror]?
PROSPECTIVE JUROR: Yes.
[THE STATE]: Frustrating?
PROSPECTIVE JUROR: Yes. . . .
....
[THE STATE]: The goal of picking a jury is to try to pick a jury that’s
going to get along well enough to reach a unanimous decision. . . . So when [defense
counsel] asks you at the end if there is anything we need to know about you, that
kind of question, is there anybody here who doesn’t play well with others that wants
to admit it?
1 VRP at 54-55. Jacobson did not object.
The prosecutor continued:
What strikes me as one of my difficulties in this particular case is, is that—so one
of the things I intend to do during this case is to present a detective who is going to
walk people through the Craigslist Casual Encounter section, and I assure you it’s
going to be eyeopening. But I also am not surprised at all that not one person in
here raised their hand when I said, “Have you been on the Casual Encounter
section?” Because if you have, you are not going to raise your hand in a group full
of people, especially that are all strangers, and say, “You know what? I saw a whole
bunch of naked people who are offering sex for money, and oh, by the way, they
were offering kids for sale, too,” because it’s kind of difficult to explain what you
were doing there, right?
I mean, it’s not like you just happened to . . . . This is casual encounters
where you have to click and it actually says, “Are you over 18 to go in here?” . . .
....
. . . I am telling you, you have to say, “Yes, I am over 18.” And you know
how you do that? Click. And it’s just that simple. So I guess then here—so here
is the question: How do I find the people, the person, if there is any, the people who
have been on the Casual Encounter section of Craigslist and don’t want to talk about
it? How do I do that?
1 VRP at 59-60. Jacobson did not object.
During opening argument, the prosecutor provided:
The advertisements that [the Task Force is] using now are on Craigslist, and
they are in the Casual Encounter section. . . .
The Casual Encounter section of Craigslist is filth like almost no other. . . .
....
6
No. 49887-1-II
Sergeant Rodriguez will tell you about some of the advertisements that they
have come across when they do these operations because not only does Sergeant
Rodriguez post the advertisements, but while he is responding to people who are
responding to him, he is also looking up other ads, people who are offering up
children, people who are offering up acts of bestiality, with animals, people offering
up all kinds of stuff you cannot believe, and the filthier the better in some respects.
And you’ll see, as Sergeant Rodriguez walks you through Craigslist, the different
type of advertisements.
1 VRP at 120-21. Jacobson did not object.
Later during opening argument, the prosecutor stated, “I am going to also apologize in
advance for some of the evidence and some of the things you are going to see in this case
because they are offensive content. Unfortunately, it’s the defendant’s actions that are bringing
us here today.” 1 VRP at 125-26. Jacobson did not object.
Witnesses testified to the above facts during the trial. Jacobson also testified, stating that
he believed that he was arranging to meet with Kristl, an adult woman, who would portray an 11-
year-old girl. During the prosecutor’s direct examination of Sergeant Rodriguez, the following
exchange took place:
[THE STATE]: What is the purpose in general of the . . . Task Force with the State
Patrol?
[SERGEANT RODRIGUEZ]: So the purpose is to investigate cases dealing with
child exploitation, to recover children—basically, keep people from doing harm to
children.
....
[THE STATE]: So in the [undercover operation], are you—are officers playing the
roles of children?
[SERGEANT RODRIGUEZ]: Yes.
[THE STATE]: How is that helping to protect the children in general?
[SERGEANT RODRIGUEZ]: Because when people are showing up to do
something to a child, that’s a child that they are not—you are keeping them from
doing that to a child. In these operations, we have also identified or removed 18
kids. We have located children through these operations.
1 VRP at 132-33. Jacobson did not object.
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No. 49887-1-II
The prosecutor continued:
[THE STATE]: By the way, are the [undercover operations] going to continue into
next year?
[SEARGEANT RODRIGUEZ]: They will continue as long as I can do them.
[THE STATE]: Are you planning to do more of them?
[SERGEANT RODRIGUEZ]: Yes.
[THE STATE]: Have they been successful in what you’ve been intending to do
with them?
[SERGEANT RODRIGUEZ]: Absolutely.
2 VRP at 390. Jacobson did not object.
During closing argument, the prosecutor stated,
Let me say at the outset of this that I am going to use the word “I” multiple
times in this closing argument. It is not my personal opinion. My personal opinion
has no place in this case. So when I use the word “I,” I am not telling you what to
think. I am telling you what the evidence shows and what the law shows.
5 VRP at 780. The prosecutor continued:
Rape of a Child First Degree, the completed crime, requires sex, and by that
I mean sexual intercourse with a child under 12 not married to the defendant and
more than 24 months younger.
Commercial Sex Abuse of a Minor requires sexual conduct with a minor for
a fee. So there is a lot of overlap between the two crimes. The age of the child;
under 12 is a minor. Sexual contact, as you’ve just heard from the judge, is—sexual
conduct is described as sexual intercourse or sexual contact. . . .
Both of those two things, sexual intercourse and sexual contact, equal sexual
conduct. So the only difference really between the completed crime is the element
of “for a fee.”
5 VRP at 781. Jacobson did not object.
The prosecutor then described the elements of attempt:
So attempt to commit a crime, I am going to talk about those crimes again
together because the elements are so similar. . . .
One of those elements isn’t or shouldn’t be disputed, and that is the element
of a substantial step. . . .
....
If you put it in real-world terms, since none of you have been in a scenario
like this defendant was in, if you put it in real-world terms, if you get together with
8
No. 49887-1-II
your spouse or your children and you talk about going to a movie and you decide
what movie you’re going to go to, what theater you’re going to go to, what time the
movie is going to be, and then you get in your car and you drive to the movie; you
have your money; you get some candy because you are not going to pay that kind
of price at the movie theater and it’s in your pocket; you get to the movie theater
and the phone rings and you get called away and you can’t go, did you intend to
see a movie? That’s what the law criminalizes in the attempted commission of a
crime, a substantial step.
5 VRP at 782-84. Jacobson did not object.
The prosecutor then discussed the evidence presented at trial:
And [the crime] was completed when [Jacobson] left the gas station and drove on
his way to the residence before getting pulled over.
The only reason that he got pulled over before he got to the house and
walked in—because you heard Sergeant Rodriguez talk about, “We let them in with
the undercover officer, tell them to take their shoes off, and we arrest them and we
videotape that.”
That couldn’t happen in this case because there wasn’t a little girl, and this
defendant was cautious. This defendant wanted to put eyes on that little girl. And
the officers weren’t going to take a chance of him pulling into Yakima Street,
[Knoll] going outside without a child and having him take off and get into a more
dangerous situation.
5 VRP at 784. Jacobson did not object.
The prosecutor continued:
So what is important in this case is, what did the defendant know when he
was having his conversations and when he drove over to this house?
A lot of our law is a gray area. There aren’t many things that are black or
white, one or the other, but I am going to suggest to you that there is one thing that
is black and white, and that’s this: An adult will either have sex with a child or will
not. There isn’t any gray area there. An adult either will or will not.
And I am going to go a little bit further than that and say that an adult that
is willing to talk about having sex with a child falls into the category of an adult
who will because there isn’t any adult in our society to whom the idea of sex with
a child is repulsive, who will talk about having sex with a child. That doesn’t
happen in the real world.
This defendant clearly was willing to talk about having sex with a child. He
pursued that topic over the course of three dates. He saw it out and then he drove
to the place where he thought it was going to happen, and that’s what makes him
guilty of both of these crimes.
9
No. 49887-1-II
5 VRP at 786-87. Jacobson did not object.
Then, the prosecutor commented on Jacobson’s defense:
It wasn’t enough for the defendant that he got a picture of Lisa. He then
asked—and I am going to suggest to you that when the defendant’s cross-
examination went worse for him was when he tried to explain to you why he needed
a picture of the mom and the girl together because if the mom is pretending to be
the girl, that’s not possible. . . .
He then wanted the girl brought to the gas station with the mother so he
could put eyes on them and determine they were real.
I am going to suggest to you that the defendant’s explanation of what “no
RP” means was a couple of other initials, one of which is a B. But you know what?
BS. It’s not possible that “no RP” means no real person.
....
But the point is that the no RP, the no real people, the no role play, all of
that is a sidetrack to what was actually going on here because the defendant’s words
and actions are what demonstrated his intent.
5 VRP at 791-92. Jacobson did not object.
The prosecutor also discussed the potential bias of the testifying witnesses:
[THE STATE]: I am going to suggest to you—one of the things the judge
read you was an instruction that said you can consider any interest, bias or
prejudice. . . . I would suggest that you apply that standard to the defendant
particularly. Because if there is anyone who has an interest in the outcome of this
case, it’s him.
[JACOBSON]: Objection, Your Honor. Objection to the statement of
“particularly to the defendant.”
[THE STATE]: . . . I will clarify that.
THE COURT: Sustained. . . .
[THE STATE]: I am not saying weigh his testimony differently. I am
encouraging you, asking you to apply the same standard you applied to [the law
enforcement witnesses]. Apply the same exact standard.
Ask yourself, what interest do they have in the outcome of this case? What
bias? What prejudice? You’ve heard that they have done five or six operations and
dealt with hundreds of these people and arrested 60-plus. What interest do they
have in this particular case above any other case that they have investigated? What
interest does [Jacobson] have? And why does he tell you folks a story that is 180
degrees different from what he said in the undercover capacity of the chats? And
why is it completely different than what he told the detective? Why? It’s because
his testimony was not true.
10
No. 49887-1-II
5 VRP at 798-99. Jacobson did not object.
During rebuttal argument, the prosecutor stated:
[THE STATE]: [Jacobson] decided to have sex with an 11-year-old girl,
and he decided he was going to pay for it to accomplish it. And now it’s up to you
folks to hold him responsible for what he did.
[JACOBSON]: Objection. That’s not what they are supposed to be doing.
THE COURT: Overruled. . . .
[THE STATE]: When the evidence is there, beyond a reasonable doubt, the
just verdict is also what holds the defendant responsible and that’s a verdict of
guilty as charged.
5 VRP at 829. Jacobson did not object to the prosecutor’s last statement. The jury found
Jacobson guilty as charged.
III. SENTENCING
At sentencing, the trial court imposed an indeterminate sentence with a minimum term of
85 months and lifetime community custody for Jacobson’s attempted first degree rape of a child
conviction. The court also sentenced Jacobson to 20.25 months of incarceration and 36 months
of community custody for the attempted commercial sexual abuse of a minor conviction to run
concurrently with the sentence on the attempted rape conviction.
As a condition of community custody, the trial court ordered “[n]o internet access or use,
including email, without the prior approval of the supervising CCO [(community custody
officer)].” Suppl. Clerk’s Papers (CP) at 88. The trial court also ordered:
No use of a computer, phone, or computer-related device with access to the Internet
or on-line computer service except as necessary for employment purposes
(including job searches). The CCO is permitted to make random searches of any
computer, phone or computer-related device to which the defendant has access to
monitor compliance with this condition.
Suppl. CP at 88. Jacobson appeals.
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No. 49887-1-II
ANALYSIS
Jacobson argues that law enforcement’s conduct during its undercover Craigslist
operation was so outrageous that it violated his due process rights, the prosecutor committed
misconduct throughout trial, cumulative error deprived him of a fair trial, substantial evidence
does not support his convictions for attempted first degree rape of a child and attempted
commercial sexual abuse of a minor, and the community custody conditions prohibiting the use
of the Internet and devices with Internet access violate his First Amendment rights. We disagree.
I. OUTRAGEOUS CONDUCT
Jacobson argues that law enforcement’s conduct during its undercover Craigslist
operation was so outrageous that it violated his right to due process under the Fifth and
Fourteenth Amendments of the federal constitution. We disagree.
The concept of outrageous conduct is founded on the principle that “the conduct of law
enforcement . . . may be ‘so outrageous that due process principles would absolutely bar the
government from invoking judicial processes to obtain a conviction.’” State v. Lively, 130
Wash. 2d 1, 19, 921 P.2d 1035 (1996) (quoting United States v. Russell, 411 U.S. 423, 431-32, 93
S. Ct. 1637, 36 L. Ed. 2d 366 (1973)). Whether law enforcement has engaged in outrageous
conduct is a question of law that we review de novo. 130 Wash. 2d at 19; see State v. Mullin-
Coston, 152 Wash. 2d 107, 114, 95 P.3d 321 (2004).
To determine whether law enforcement’s conduct violated due process, we must assess
the conduct based on the totality of the circumstances. Lively, 130 Wash. 2d at 21. Law
enforcement’s conduct is outrageous and violates due process only when the conduct is so
shocking that it violates fundamental fairness and the universal sense of fairness. 130 Wash. 2d at
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No. 49887-1-II
19. A claim based on outrageous conduct requires the defendant to demonstrate more than mere
flagrant law enforcement conduct. 130 Wash. 2d at 20. “Public policy allows for some deceitful
conduct and violation of criminal laws by [law enforcement] in order to detect and eliminate
criminal activity.” 130 Wash. 2d at 20. Outrageous conduct is not to be invoked each time law
enforcement acts deceptively. 130 Wash. 2d at 20. Instead, dismissal based on outrageous law
enforcement conduct is reserved for only the most egregious circumstances. 130 Wash. 2d at 20.
In evaluating whether law enforcement’s conduct violated due process, we consider
several factors, including: (1) “whether [law enforcement’s] conduct instigated a crime or merely
infiltrated ongoing criminal activity”; (2) “whether the defendant’s reluctance to commit a crime
was overcome by pleas of sympathy, promises of excessive profits, or persistent solicitation”; (3)
“whether [law enforcement] controls the criminal activity or simply allows for the criminal
activity to occur”; (4) “whether [law enforcement’s] motive was to prevent crime or protect the
public”; and (5)”whether [law enforcement’s] conduct itself amounted to criminal activity or
conduct ‘repugnant to a sense of justice.’” 130 Wash. 2d at 22 (citations omitted) (quoting People
v. Isaacson, 44 N.Y.2d 511, 521, 406 N.Y.S.2d 714, 378 N.E.2d 78 (1978)).
Here, law enforcement posted an ad on Craiglist, posing as Kristl, a mother with three
minor children. Jacobson responded to the ad that same day and expressed an interest in Kristl’s
11-year-old daughter, Lisa. Jacobson stated that he was interested in both oral and vaginal sex
with Lisa. Kristl asked if Jacobson could bring gifts when he met with Lisa, and Jacobson
answered in the affirmative.
Later, the following exchange took place:
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No. 49887-1-II
[JACOBSON]: I just drove by the address you gave me for the [gas station], and
you gave me the address to a home residential neighborhood. So sorry, this is all
seeming to be something it’s really not.
....
[KRISTL]: im done with you sorry to mich hassle if you change your mind you
know what to do
[JACOBSON]: They wind up having time tomorrow during the day, may I
message you? Would you be available daytime tomorrow? . . .
[KRISTL]: no way. yo know what the deal is i will find someone else
[JACOBSON]: Ok.
[KRISTL]: im [upset] with you [now] i have to tell her you arent coming. I
[shouldn’t] have let her [talk] to you
[JACOBSON]: Ugh . . . I feel bad. Would there be any harm in me coming over
tonight still?
....
[KRISTL]: are you still good with gifts? . . . what did [you] have in mind . . . .
[JOHN]: A gift card, that can be used for any purpose.
Ex. 4, at 11-14. Undercover officers portrayed Lisa and Kristl throughout the operation, and
Jacobson spoke with both officers.
Looking to the totality of the circumstances, Jacobson fails to show that law
enforcement’s conduct during the undercover Craigslist operation was so outrageous that it
violated due process. Although law enforcement initially posted the Craigslist ad, law
enforcement’s ad merely infiltrated ongoing criminal activity and did not instigate it. Instead,
Jacobson instigated criminal activity by responding to the ad and requesting sexual contact with
a child. In addition, law enforcement did not engage in criminal conduct during the undercover
operation. Rather, law enforcement acted deceptively—posing as a mother who sought
compensation for Jacobson’s sexual contact with her 11-year-old daughter. Moreover, law
enforcement did not control the criminal activity and instead allowed criminal activity to occur.
Jacobson initiated discussions about the crime, controlled the extent of the crime, and
arranged for the crime to take place. Although Jacobson appeared reluctant to meet Kristl at the
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No. 49887-1-II
gas station when he drove to an incorrect address, law enforcement did not overcome Jacobson’s
reluctance with pleas of sympathy or persistent solicitation. Jacobson was the first to mention
meeting with Kristl and Lisa the following day. Law enforcement’s message that “im upset with
you [now] I have to tell her you arent coming,” did not serve to overcome any reluctance—
Jacobson had already initiated continuing the criminal activity. Ex. 4, at 11. Accordingly,
viewing the totality of the circumstances, law enforcement’s conduct during the undercover
operation was not so shocking that it violated fundamental fairness and the universal sense of
fairness. Thus, law enforcement’s conduct did not violate due process.
II. PROSECUTORIAL MISCONDUCT
Jacobson also argues that the prosecutor committed misconduct by vouching for law
enforcement witnesses, conducting improper voir dire, misstating the law and minimizing the
State’s burden of proof, appealing to the jurors’ passions and prejudices, arguing facts not in
evidence, and disparaging the defense. We disagree.
To establish prosecutorial misconduct, a defendant bears the burden of proving the
prosecutor’s conduct was both improper and prejudicial. State v. Thorgerson, 172 Wash. 2d 438,
442, 258 P.3d 43 (2011). If a defendant meets this burden, we may reverse the defendant’s
conviction. State v. Emery, 174 Wash. 2d 741, 759-61, 278 P.3d 653 (2012). If a defendant
establishes the prosecutor’s conduct was improper, we must determine whether the defendant
was prejudiced. 174 Wash. 2d at 760. A defendant establishes prejudice when “‘there is a
substantial likelihood [that] the instances of misconduct affected the jury’s verdict.’”
Thorgerson, 172 Wash. 2d at 443 (alteration in original) (quoting State v. Magers, 164 Wash. 2d 174,
191, 189 P.3d 126 (2008)).
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No. 49887-1-II
Where a defendant fails to object to alleged prosecutorial misconduct, he is deemed to
have waived any error unless he shows the misconduct was so flagrant and ill-intentioned that an
instruction from the trial court could not have cured the resulting prejudice. Emery, 174 Wash. 2d
at 760-61. To meet this heightened standard, the defendant must show that “(1) ‘no curative
instruction would have obviated any prejudicial effect on the jury’ and (2) the misconduct
resulted in prejudice that ‘had a substantial likelihood of affecting the jury verdict.’” 174 Wash. 2d
at 761 (quoting Thorgerson, 172 Wash. 2d at 455).
In reviewing a prosecutor’s comments during closing argument, we look to the context of
the total argument, the issues presented in the case, the evidence addressed in the argument, and
the jury instructions. State v. Jackson, 150 Wash. App. 877, 883, 209 P.3d 553 (2009). A
prosecutor has wide latitude to draw reasonable inferences from the evidence and to express such
inferences to the jury during closing argument. State v. Warren, 165 Wash. 2d 17, 30, 195 P.3d 940
(2008).
A. Vouching
Jacobson argues that the prosecutor committed misconduct by vouching for law
enforcement witnesses. Specifically, Jacobson argues that the prosecutor improperly vouched by
stating that Jacobson, but not law enforcement, had a particular interest in the outcome of his
case, the Task Force was successful in protecting children, and the jury must reach a unanimous
decision. We disagree.
A prosecutor improperly vouches for a witness by expressing a personal belief in the
veracity of a witness or arguing that evidence not presented at trial supports the witness’s
testimony. Thorgerson, 172 Wash. 2d at 443. However, it is not improper for a prosecutor to draw
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No. 49887-1-II
inferences from the evidence as to why the jury would want to believe one witness over the
other. Jackson, 150 Wash. App. at 883. We will not find prejudicial error unless it is clear and
unmistakable that the prosecutor was expressing a personal opinion. 150 Wash. App. at 883.
1. Comparing Bias of Law Enforcement & Jacobson
First, Jacobson argues that the prosecutor improperly vouched for law enforcement
witnesses by stating that Jacobson, but not law enforcement, had a particular interest in the
outcome of his case. We hold that the prosecutor’s statements did not constitute vouching.
During closing argument, the prosecutor stated:
[THE STATE]: I am going to suggest to you—one of the things the judge
read you was an instruction that said you can consider any interest, bias or prejudice
. . . . I would suggest that you apply that standard to the defendant particularly.
Because if there is anyone who has an interest in the outcome of this case, it’s him.
[JACOBSON]: Objection, Your Honor. Objection to the statement of
“particularly to the defendant.”
[THE STATE]: . . . I will clarify that.
THE COURT: Sustained. . . .
[THE STATE]: I am not saying weigh his testimony differently. I am
encouraging you, asking you to apply the same standard you applied to [the law
enforcement witnesses]. Apply the same exact standard.
Ask yourself, what interest do they have in the outcome of this case? What
bias? What prejudice? You’ve heard that they have done five or six operations and
dealt with hundreds of these people and arrested 60-plus. What interest do they
have in this particular case above any other case that they have investigated? What
interest does [Jacobson] have? And why does he tell you folks a story that is 180
degrees different from what he said in the undercover capacity of the chats? And
why is it completely different than what he told the detective? Why? It’s because
his testimony was not true.
5 VRP at 798-99. Jacobson did not object.
Taken in context, the prosecutor argued that the jury should infer from the evidence
presented at trial that Jacobson was biased because of his personal interest in the case and,
therefore, that his testimony was not credible to the extent that it conflicted with law
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No. 49887-1-II
enforcement’s testimony. The prosecutor then pointed out that no evidence suggested that law
enforcement had a similar personal interest in the case. Moreover, the prosecutor reminded the
jury that it should use the exact same standard to weigh the credibility of all the witnesses. As a
result, the prosecutor correctly stated the law, argued inferences from the evidence presented at
trial, and did not present his personal opinion. Accordingly, Jacobson fails to show that the
prosecutor vouched for law enforcement witnesses, and the prosecutor’s conduct was not
improper. See Jackson, 150 Wash. App. at 884-85.
2. Task Force Protecting Children
Next, Jacobson argues that the prosecutor improperly vouched for law enforcement
witnesses by stating that the Task Force was successful in protecting children. We hold that the
prosecutor’s statements did not constitute vouching.
The following exchange took place during the prosecutor’s direct examination of
Sergeant Rodriguez:
[THE STATE]: What is the purpose in general of the . . . Task Force with the State
Patrol?
[SERGEANT RODRIGUEZ]: So the purpose is to investigate cases dealing with
child exploitation, to recover children—basically, keep people from doing harm to
children.
....
[THE STATE]: So in the [undercover operation], are you—are officers playing the
roles of children?
[SERGEANT RODRIGUEZ]: Yes.
[THE STATE]: How is that helping to protect the children in general?
[SERGEANT RODRIGUEZ]: Because when people are showing up to do
something to a child, that’s a child that they are not—you are keeping them from
doing that to a child. In these operations, we have also identified or removed 18
kids. We have located children through these operations.
1 VRP at 132-33. Jacobson did not object.
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No. 49887-1-II
The prosecutor continued:
[THE STATE]: By the way, are the [undercover operations] going to continue into
next year?
[SEARGEANT RODRIGUEZ]: They will continue as long as I can do them.
[THE STATE]: Are you planning to do more of them?
[SERGEANT RODRIGUEZ]: Yes.
[THE STATE]: Have they been successful in what you’ve been intending to do
with them?
[SERGEANT RODRIGUEZ]: Absolutely.
2 VRP at 390. Jacobson did not object.
Jacobson contends that the prosecutor improperly vouched for Sergeant Rodriguez
because the prosecutor’s questions dealt with the Task Force protecting children and the success
of the Task Force’s undercover operations. However, the prosecutor’s questions revolved
around the goal of the Task Force’s undercover operations and whether that goal was being
fulfilled. The prosecutor did not refer to Sergeant Rodriguez’s credibility and did not suggest
that the Task Force’s success in protecting children impacted his veracity. Moreover, the
prosecutor’s questions did not express a personal belief in the truthfulness of Sergeant
Rodriguez’s testimony.
In addition, we note that Jacobson contends that the Task Force’s alleged outrageous
conduct deprived him of his right to due process. Yet here, Jacobson argues that the very
evidence necessary to evaluate the Task Force’s conduct, and whether its motive was to protect
the public, constitutes improper vouching. Evidence of law enforcement’s motive is necessary in
reviewing undercover operations and is not improper on its face. Accordingly, the prosecutor
did not vouch for Sergeant Rodriguez, and Jacobson fails to show that the prosecutor’s
statements were improper.
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No. 49887-1-II
B. Conducting Improper Voir Dire
Jacobson also argues that the prosecutor committed misconduct by conducting improper
voir dire. Jacobson specifically argues that the prosecutor conducted improper voir dire by
educating the jury about Craigslist, introducing evidence regarding the undercover operation,
Backpage.com, and To Catch a Predator that would not be introduced at trial, and suggesting
that the jury must reach a unanimous decision. The State argues that Jacobson waived any
challenge to the prosecutor’s questions during voir dire because Jacobson failed to object to the
prosecutor’s questions and because Jacobson accepted the jury as constituted. We disagree with
the State but nevertheless hold that the prosecutor’s statements do not constitute misconduct.
The purpose of voir dire is to enable the parties to learn the state of mind of the
prospective jurors so as to determine whether any prospective jurors may be subject to a
challenge for cause or the exercise of a peremptory challenge. State v. Frederiksen, 40 Wash. App.
749, 752, 700 P.2d 369 (1985). Jury voir dire should not be used to prejudice the jury for or
against a party, to educate the jury as to the particular facts of the case, or to argue matters of
law. 40 Wash. App. at 752.
1. Waiver
As an initial matter, the State argues that Jacobson waived any challenge to the
prosecutor’s questions during voir dire because Jacobson failed to object to the prosecutor’s
questions and accepted the jury as constituted. We disagree.
To support its argument, the State cites State v. Elmore, 139 Wash. 2d 250, 985 P.2d 289
(1999). In Elmore, a capital defendant argued for the first time on appeal that the State’s
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No. 49887-1-II
questions during voir dire deprived him of reliable sentencing.6 139 Wash. 2d at 277. The
Washington Supreme Court determined that the defendant’s argument was not properly raised on
appeal because the defendant failed to object during voir dire and because the defendant accepted
the jury as constituted and did not exhaust his peremptory challenges. 139 Wash. 2d at 277. The
court reasoned that voir dire is procedural, rather than constitutional, and cannot be raised for the
first time on appeal. 139 Wash. 2d at 277. In addition, the court determined that a defendant
cannot show prejudice arising from the retention of a particular juror when he does not exercise
all of his peremptory challenges and does not challenge the jury panel. 139 Wash. 2d at 277-78.
Here, Jacobson did not object to the prosecutor’s questions during voir dire. In addition,
Jacobson did not exercise all of his peremptory challenges, and he did not challenge the jury
panel.
Jacobson’s argument is distinguishable from the challenge raised in Elmore. Although
jury selection is procedural, prosecutorial misconduct affects a defendant’s constitutional right to
a fair trial. In re Pers. Restraint of Glasmann, 175 Wash. 2d 696, 703-04, 286 P.3d 673 (2012).
And Elmore did not involve a prosecutorial misconduct challenge. See Elmore, 139 Wash. 2d at
277-78. As discussed above, a defendant may raise prosecutorial misconduct for the first time
on appeal. Because Jacobson raises his prosecutorial misconduct challenges to voir dire for the
first time on appeal, we determine whether the prosecutor’s conduct during voir dire was flagrant
and ill-intentioned, and we do not decline to address Jacobson’s arguments only because he
6
Elmore pleaded guilty, but he proceeded to trial on the penalty phase. Elmore, 139 Wash. 2d at
262-63.
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No. 49887-1-II
neither exhausted his peremptory challenges nor objected to the jury panel before trial. Emery,
174 Wash. 2d at 760-61.
2. Educating the Jury
Jacobson argues that the prosecutor conducted improper voir dire by educating the jury
about Craigslist. We hold that the prosecutor’s statements were not improper.
During voir dire, the following exchange took place:
[THE STATE]: . . . has anyone been into the Casual Encounter section of
Craigslist? . . .
....
[THE STATE]: . . . I am going to ask some questions about the Casual
Encounter section of Craigslist which for those of you who have never heard of it
has dating services, sex services, nudity, all kinds of stuff.
1 VRP at 11-12. Jacobson did not object.
The prosecutor continued:
What would you expect when you hear the name Casual Encounters? Sound
permanent? . . . Were you aware that you could find sex for sale on that website?
....
. . . Anyone surprised or not surprised to know that you can actually pay for
sex or, for that matter, get paid for sex on Craigslist?
1 VRP at 14-15. Jacobson did not object.
In response to a question regarding whether Craigslist should be responsible for the
content posted on its website, a prospective juror stated, “[Craigslist has] a lot of recording
capabilities where if you see inappropriate content, you flag it as inappropriate.” 1 VRP at 16.
The prosecutor then asked, “Does anybody know what happens when you flag the ad?” 1 VRP
at 18. A prospective juror responded that when an ad is flagged, Craigslist will occasionally take
it off of its website. The prosecutor continued: “Someone out there in the Internet reads the ad
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No. 49887-1-II
and decides whether or not [the] complaint was legit. If it is, the ad is gone, and if it’s not, it
stays up.” 1 VRP at 18. Jacobson did not object.
Later, the prosecutor stated:
What strikes me as one of my difficulties in this particular case is, is that—so one
of the things I intend to do during this case is to present a detective who is going to
walk people through the Craigslist Casual Encounter section, and I assure you it’s
going to be eyeopening. But I also am not surprised at all that not one person in
here raised their hand when I said, “Have you been on the Casual Encounter
section?” Because if you have, you are not going to raise your hand in a group full
of people, especially that are all strangers, and say, “You know what? I saw a whole
bunch of naked people who are offering sex for money, and oh, by the way, they
were offering kids for sale, too,” because it’s kind of difficult to explain what you
were doing there, right?
I mean, it’s not like you just happened to . . . . This is casual encounters
where you have to click and it actually says, “Are you over 18 to go in here?” . . .
....
. . . I am telling you, you have to say, “Yes, I am over 18.” And you know
how you do that? Click. And it’s just that simple. So I guess then here—so here
is the question: How do I find the people, the person, if there is any, the people who
have been on the Casual Encounter section of Craigslist and don’t want to talk about
it? How do I do that?
1 VRP at 59-60. Jacobson did not object.
During voir dire, the prosecutor asked a number of questions about Craigslist and its
functions, as well as the content of the Casual Encounters section on the website. Although these
questions were related to facts that would be presented at trial, the prosecutor’s questions did not
educate the jury about the particular facts at issue. The prosecutor did not use voir dire to
inform the jury of the nature of the Craigslist ad Jacobson responded to and did not suggest that
the jury should be prejudiced against Jacobson because of his use of Craigslist. As a result,
Jacobson fails to show that the prosecutor’s conduct during voir dire was improper.
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No. 49887-1-II
3. Introducing Facts Not Presented at Trial
Jacobson also argues that the prosecutor conducted improper voir dire by introducing
evidence regarding the undercover operation, Backpage.com, and “To Catch a Predator” that
would not be introduced at trial. Br. of Appellant at 28. We hold that the prosecutor’s
statements were not improper.
During voir dire, the prosecutor asked the prospective jurors: “So has anybody ever . . .
actually been on Backpage.com? Heard of it? How many of you were aware of the recent news
story that the CEO of Backpage was just arrested for running the largest online brothel in the
world?” 1 VRP at 15. Jacobson did not object.
The prosecutor also asked, “How many of you watch shows like 20/20 and Dateline,
those kind of things? . . . [D]id you ever watch the ones, To Catch a Predator, the stings that
were done?” 1 VRP at 22. The prosecutor continued:
To Catch a Predator, those kind of things, how many of you have watched the
shows where they set somebody up; they show up, and it’s the police and they are
arrested? . . . Has anybody here ever seen one of those and thought to themselves,
“God, I feel bad for that guy?”
1 VRP at 22. Jacobson did not object.
The prosecutor’s questions regarding Backpage.com and “To Catch a Predator” did not
pertain to facts particular to Jacobson’s case, and the prosecutor did not use those questions to
prejudice the jury against Jacobson. Instead, the prosecutor’s questions were generalized
inquiries about issues related to ads on Craigslist. It appears that the prosecutor asked these
questions to ascertain the prospective jurors’ points of view on these related issues and to
determine whether any prospective jurors were subject to a challenge for cause or the use of a
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No. 49887-1-II
peremptory challenge. Therefore, Jacobson fails to show that the prosecutor’s questions
regarding Backpage.com and “To Catch a Predator” were improper.
4. Reaching a Unanimous Verdict
Jacobson also argues that the prosecutor conducted improper voir dire by suggesting that
the jury must reach a unanimous decision. We hold that Jacobson waived this issue on appeal
because he fails to show that the prosecutor’s conduct was flagrant and ill-intentioned.
Later during voir dire, the prosecutor asked:
[THE STATE]: How many of you have actually sat on a jury that went all
the way to the deliberations before?
....
[THE STATE]: Has anyone sat on a jury that deliberated but then was not
able to reach a verdict, so it was a hung jury? [Prospective juror]?
PROSPECTIVE JUROR: Yes.
[THE STATE]: Frustrating?
PROSPECTIVE JUROR: Yes. . . .
....
[THE STATE]: The goal of picking a jury is to try to pick a jury that’s
going to get along well enough to reach a unanimous decision. . . . So when [defense
counsel] asks you at the end if there is anything we need to know about you, that
kind of question, is there anybody here who doesn’t play well with others that wants
to admit it?
1 VRP at 54-55. Jacobson did not object.
We assume without deciding that the prosecutor’s statements were improper.
Nonetheless, the prosecutor’s statements were not flagrant and ill-intentioned misconduct. The
prosecutor’s statement regarding the goal of a unanimous jury was isolated. In addition, the trial
court instructed the jury that “you have a duty to discuss the case with one another and to
deliberate in an effort to reach a unanimous verdict. . . . [You] should [not] change your mind
just for the purpose of reaching a verdict.” CP at 38. We presume that jurors follow the trial
court’s instructions. Emery, 174 Wash. 2d at 766. As a result, Jacobson cannot show that the
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No. 49887-1-II
prosecutor’s comment had a substantial impact on the jury’s verdict. Moreover, Jacobson fails to
show that an instruction could not have cured any resulting prejudice. Therefore, Jacobson
waived this issue on appeal.
C. Misstating the Law & Minimizing the State’s Burden of Proof
Jacobson also argues that the prosecutor committed misconduct by misstating the law and
minimizing the State’s burden of proof. Specifically, Jacobson argues that the prosecutor
misstated the law by arguing that attempted first degree rape of a child and attempted
commercial sexual abuse of a minor are similar crimes and by improperly analogizing that the
charged crimes were like going “to the movies but being interrupted by a phone call.” Br. of
Appellant at 32. We hold that the prosecutor’s statements were not improper.
“A prosecutor commits misconduct by misstating the law.” State v. Allen, 182 Wash. 2d
364, 373, 341 P.3d 268 (2015). A prosecutor’s arguments that shift or misstate the State’s
burden to prove the defendant’s guilt beyond a reasonable doubt also constitute misconduct.
State v. Lindsay, 180 Wash. 2d 423, 434, 326 P.3d 125 (2014).
1. Similar Crimes
Jacobson argues that the prosecutor misstated the law and minimized the State’s burden
of proof by arguing that attempted first degree rape of a child and attempted commercial sexual
abuse of a minor are similar crimes. We hold that the prosecutor’s argument was not improper.
“A person is guilty of rape of a child in the first degree when the person has sexual
intercourse with another who is less than twelve years old and not married to the perpetrator and
the perpetrator is at least twenty-four months older than the victim.” RCW 9A.44.073(1). A
person is guilty of commercial sexual abuse of a minor when the person “engage[s] in sexual
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No. 49887-1-II
conduct with a minor in return for a fee.” Former RCW 9.68A.100(1)(c) (2013). “Sexual
conduct” is defined as sexual intercourse, sexual contact, or both. Former RCW 9.68A.100(5).
During closing argument, the prosecutor stated:
Rape of a Child First Degree, the completed crime, requires sex, and by that
I mean sexual intercourse with a child under 12 not married to the defendant and
more than 24 months younger.
Commercial Sex Abuse of a Minor requires sexual conduct with a minor for
a fee. So there is a lot of overlap between the two crimes. The age of the child;
under 12 is a minor. Sexual contact, as you’ve just heard from the judge, is—sexual
conduct is described as sexual intercourse or sexual contact. . . .
Both of those two things, sexual intercourse and sexual contact, equal sexual
conduct. So the only difference really between the completed crime is the element
of “for a fee.” . . .
....
So attempt to commit a crime, I am going to talk about those crimes together
again because the elements are so similar. For Attempted Rape of a Child 1, it’s
intent to commit the crime, a substantial step. For Commercial Sex Abuse of a
Minor, it’s intent to commit the crime, a substantial step.
5 VRP at 781-83. Jacobson did not object.
The prosecutor’s statements regarding first degree rape of a child and commercial sexual
abuse of a minor did not amount to misstatements of the law. The prosecutor explained that the
elements of the two crimes are similar and distinguished those elements. Moreover, the
prosecutor’s statements did not involve the State’s burden of proof. Accordingly, Jacobson fails
to show that the prosecutor’s statements were improper.
2. Improper Analogy
Jacobson also argues that the prosecutor misstated the law and minimized the State’s
burden of proof by arguing that attempted first degree rape of a child and attempted commercial
sexual abuse of a minor are like “go[ing] to the movies but being interrupted by a phone call.”
Br. of Appellant at 32. We hold that the prosecutor’s statements were not improper.
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No. 49887-1-II
The trial court instructed the jury that a “substantial step” is “conduct that strongly
indicates a criminal purpose and which is more than mere preparation.” CP at 32. During
closing argument, the prosecutor provided:
So attempt to commit a crime, I am going to talk about those crimes again
together because the elements are so similar. . . .
One of those elements isn’t or shouldn’t be disputed, and that is the element
of a substantial step. . . .
....
If you put it in real-world terms, since none of you have been in a scenario
like this defendant was in, if you put it in real-world terms, if you get together with
your spouse or your children and you talk about going to a movie and you decide
what movie you’re going to go to, what theater you’re going to go to, what time the
movie is going to be, and then you get in your car and you drive to the movie; you
have your money; you get some candy because you are not going to pay that kind
of price at the movie theater and it’s in your pocket; you get to the movie theater
and the phone rings and you get called away and you can’t go, did you intend to
see a movie? That’s what the law criminalizes in the attempted commission of a
crime, a substantial step.
5 VRP at 782-84. Jacobson did not object.
Jacobsen mischaracterizes the prosecutor’s argument. The prosecutor did not equate the
crimes to going to the movies but rather was specifically attempting to illustrate the term
“substantial step.” The prosecutor properly stated that taking a substantial step is an element of
attempt. The prosecutor then used his movie analogy to give context to the term. The
prosecutor’s analogy conveyed that a substantial step required more than mere preparation and
could be satisfied when conduct strongly indicated that a person intended to commit the act in
question. The prosecutor’s statements did not minimize the fact that the jury was required to
find Jacobson guilty beyond a reasonable doubt. As a result, Jacobson fails to show that the
prosecutor’s statements were improper.
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No. 49887-1-II
D. Appealing to Jurors’ Passions & Prejudices
Jacobson also argues that the prosecutor committed misconduct by appealing to the
jurors’ passions and prejudices during closing argument. Specifically, Jacobson argues that the
prosecutor appealed to the jurors’ passions and prejudices by arguing that the jury should “hold
Jacobson responsible,” discussing the “filth” on Craigslist, and suggesting that one who
discusses having sex with a child is willing to have sex with a child. Br. of Appellant at 34-35.
We disagree.
Prosecutors commit misconduct when they use arguments designed to arouse the
passions or prejudices of the jury. Glasmann, 175 Wash. 2d at 704. Arguments designed to arouse
the jury’s passions or prejudices create a danger that the jury may convict for reasons other than
the evidence. See State v. Ramos, 164 Wash. App. 327, 338, 263 P.3d 1268 (2011). Despite this,
a prosecutor is not muted because the acts committed arouse natural indignation. State v. Pierce,
169 Wash. App. 533, 552, 280 P.3d 1158 (2012). A prosecutor is not barred from referring to the
heinous nature of a crime but nevertheless retains the duty to ensure a verdict free from
prejudice. 169 Wash. App. at 553.
1. Holding Jacobson Responsible
Jacobson argues that the prosecutor appealed to the jurors’ passion and prejudices by
arguing that the jury should “hold Jacobson responsible.” Br. of Appellant at 33. We hold that
the prosecutor’s statements were not improper.
During rebuttal argument, the prosecutor stated:
[THE STATE]: [Jacobson] decided to have sex with an 11-year-old girl,
and he decided he was going to pay for it to accomplish it. And now it’s up to you
folks to hold him responsible for what he did.
[JACOBSON]: Objection. That’s not what they are supposed to be doing.
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No. 49887-1-II
THE COURT: Overruled. . . .
[THE STATE]: When the evidence is there, beyond a reasonable doubt, the
just verdict is also what holds the defendant responsible and that’s a verdict of
guilty as charged.
5 VRP at 829. Jacobson did not object to the prosecutor’s last statement.
Viewing the prosecutor’s statements in context and in light of the entire argument, the
prosecutor argued that the evidence supported a guilty verdict. Stated another way, the
prosecutor argued that the jury should hold Jacobson responsible and return guilty verdicts
because the evidence showed beyond a reasonable doubt that Jacobson committed the crimes
charged. As a result, the prosecutor argued that the jury should render a conviction based on the
evidence. Consequently, the prosecutor did not urge the jury to convict Jacobson for reasons
other than the evidence presented at trial, and the prosecutor’s statements were not designed to
arouse the jurors’ passions and prejudices. Accordingly, Jacobson fails to show that the
prosecutor’s statements were improper.
2. Discussing the “Filth” on Craigslist
Jacobson also appears to argue that the prosecutor appealed to the jurors’ passion and
prejudices by discussing the “filth” on Craigslist. We hold that Jacobson waived this issue on
appeal because he fails to show that the prosecutor’s conduct was flagrant and ill-intentioned.
During opening argument, the prosecutor provided:
The advertisements that [the Task Force is] using now are on Craigslist, and
they are in the Casual Encounter section. . . .
The Casual Encounter section of Craigslist is filth like almost no other. . . .
....
Sergeant Rodriguez will tell you about some of the advertisements that they
have come across when they do these operations because not only does Sergeant
Rodriguez post the advertisements, but while he is responding to people who are
responding to him, he is also looking up other ads, people who are offering up
children, people who are offering up acts of bestiality, with animals, people offering
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No. 49887-1-II
up all kinds of stuff you cannot believe, and the filthier the better in some respects.
And you’ll see, as Sergeant Rodriguez walks you through Craigslist, the different
type of advertisements.
1 VRP at 120-21. Jacobson did not object.
Later during opening argument, the prosecutor stated, “I am going to also apologize in
advance for some of the evidence and some of the things you are going to see in this case
because they are offensive content. Unfortunately, it’s the defendant’s actions that are bringing
us here today.” 1 VRP at 125-26. Jacobson did not object.
It was improper for the prosecutor to suggest that Jacobson’s actions were the reason why
the jury would hear evidence about bestiality and other “filthy” content on Craigslist. However,
Jacobson does not argue that the prosecutor’s statements had a substantial likelihood of affecting
the jury’s verdict, and he does not show that no instruction could cure any resulting prejudice.
The prosecutor’s statements were brief and made in isolation. At trial, the jury heard evidence
regarding the content on Craigslist and the text messages between Jacobson and Kristl, and the
trial court instructed the jury that “[y]ou must reach your decision based on the facts proved to
you and on the law given to you, not on sympathy, prejudice, or personal preference.” CP at 25.
Accordingly, Jacobson waived this issue on appeal because he fails to show that the prosecutor’s
statements were flagrant and ill-intentioned.
3. Suggesting Guilt
Jacobson also argues that the prosecutor appealed to the jurors’ passions and prejudices
by suggesting that one who discusses having sex with a child is willing to have sex with a child.
We hold that Jacobson waived this issue on appeal because he fails to show that the prosecutor’s
conduct was flagrant and ill-intentioned.
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No. 49887-1-II
During closing argument, the prosecutor stated:
So what is important in this case is, what did the defendant know when he
was having his conversations and when he drove over to this house?
A lot of our law is a gray area. There aren’t many things that are black or
white, one or the other, but I am going to suggest to you that there is one thing that
is black and white, and that’s this: An adult will either have sex with a child or will
not. There isn’t any gray area there. An adult either will or will not.
And I am going to go a little bit further than that and say that an adult that
is willing to talk about having sex with a child falls into the category of an adult
who will because there isn’t any adult in our society to whom the idea of sex with
a child is repulsive, who will talk about having sex with a child. That doesn’t
happen in the real world.
This defendant clearly was willing to talk about having sex with a child. He
pursued that topic over the course of three dates. He saw it out and then he drove
to the place where he thought it was going to happen, and that’s what makes him
guilty of both of these crimes.
5 VRP at 786-87. Jacobson did not object.
The prosecutor’s argument suggested that because rape of a child is so repulsive, anyone
who discusses having sex with a child will have sex with a child. The prosecutor then argued
that because Jacobson discussed having sex with a child, the jury should infer that he would have
sex with a child. The prosecutor’s arguments did not refer to the specific evidence that
demonstrated Jacobson’s intent to commit attempted first degree rape of a child and suggested
that the jury should convict Jacobson for reasons outside of the evidence presented at trial. As a
result, the prosecutor argued facts outside of the evidence, and his arguments were designed to
arouse the jurors’ passions and prejudices. Thus, these arguments were highly improper.
Despite this, Jacobson fails to show that there is a substantial likelihood that the
prosecutor’s arguments affected the jury’s verdict. The prosecutor later argued how evidence
presented at trial showed that Jacobson was guilty of the charged crimes: Jacobson met at the
agreed upon gas station at the agreed upon time and brought condoms, lubricant, and candy.
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No. 49887-1-II
Moreover, the trial court instructed the jury that it must disregard any statement or argument that
was not supported by the evidence, and we presume that jurors follow the trial court’s
instructions. Emery, 174 Wash. 2d at 766. And the prosecutor reminded the jury that it was
Jacobson’s actions that supported a guilty verdict. Accordingly, Jacobson fails to show that no
instruction could cure any resulting prejudice. Therefore, Jacobson waived this issue on appeal
because he fails to show that the prosecutor’s conduct was flagrant and ill-intentioned.
E. Arguing Facts Not in Evidence
Jacobson also argues that the prosecutor committed misconduct by arguing facts not in
evidence. Specifically, Jacobson argues that the prosecutor argued facts not in evidence by
stating that Jacobson was arrested before he arrived at the trap house to avoid a dangerous
situation.7 We hold that the prosecutor’s statement was not improper.
A prosecutor commits misconduct by arguing facts not in evidence. Glasmann, 175
Wash. 2d at 705. However, a prosecutor is permitted to draw reasonable inferences from the
evidence.
At trial, Sergeant Rodriguez stated that he did not feel comfortable having Knoll act in an
undercover capacity because she had not received any undercover training. Sergeant Rodriguez
stated that there were safety concerns in sending Knoll to meet Jacobson, so he was not going to
7
Jacobson also appears to argue that the prosecutor improperly stepped in Jacobson’s shoes and
attributed thoughts to Jacobson. Jacobson’s argument is conclusory and does not provide a
reasoned analysis of how the prosecutor’s statements constituted misconduct. Accordingly, we
do not consider this argument. RAP 10.3(a)(6); State v. Mason, 170 Wash. App. 375, 384, 285
P.3d 154 (2012) (“We do not consider conclusory arguments unsupported by citation to
authority.”).
33
No. 49887-1-II
have her leave the trap house. Sergeant Rodriguez also testified that Gasser looked too old to
leave the trap house and meet Jacobson.
During closing argument, the prosecutor stated:
And [the crime] was completed when [Jacobson] left the gas station and drove on
his way to the residence before getting pulled over.
The only reason that he got pulled over before he got to the house and
walked in—because you heard Sergeant Rodriguez talk about, “We let them in with
the undercover officer, tell them to take their shoes off, and we arrest them and we
videotape that.”
That couldn’t happen in this case because there wasn’t a little girl, and this
defendant was cautious. This defendant wanted to put eyes on that little girl. And
the officers weren’t going to take a chance of him pulling into Yakima Street,
[Knoll] going outside without a child and having him take off and get into a more
dangerous situation.
5 VRP at 784. Jacobson did not object.
Sergeant Rodriguez’s testimony established that there were safety concerns in allowing
Knoll and Gasser to meet Jacobson either at the gas station or at the trap house. The prosecutor
then inferred from the evidence that a more dangerous situation could occur if law enforcement
permitted Jacobson to enter the trap house. As a result, Jacobson fails to show that the
prosecutor argued facts not in evidence and that the prosecutor’s statements were improper.
F. Disparaging the Defense
Jacobson also argues that the prosecutor committed misconduct by disparaging the
defense.8 Jacobson specifically argues that the prosecutor disparaged the defense by arguing that
8
Jacobson also argues in passing that the prosecutor committed misconduct during his cross-
examination of Jacobson. However, Jacobson does not argue why the prosecutor’s conduct
constituted misconduct and does not provide any citation to authority. Accordingly, we do not
consider Jacobson’s argument. RAP 10.3(a)(6); Mason, 170 Wash. App. at 384.
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No. 49887-1-II
Jacobson’s explanation for his response to the Craigslist ad was “BS.” Br. of Appellant at 40.
This court should hold that the prosecutor’s statement was not improper.
It is misconduct for a prosecutor to disparagingly comment on defense counsel’s role or
impugn defense counsel’s integrity. Thorgerson, 172 Wash. 2d at 451. However, prosecutors may
properly argue that the evidence does not support the defense’s theory of the case. 172 Wash. 2d at
465.
At trial, Jacobson testified that when he responded to the Task Force’s Craigslist ad, he
believed he was agreeing to meet with an adult woman who would act like an 11-year-old girl.
Jacobson testified that he believed the term “no RP” in the Craigslist ad meant “no real people.”
4 VRP at 567.
During closing argument, the prosecutor stated,
Let me say at the outset of this that I am going to use the word “I” multiple
times in this closing argument. It is not my personal opinion. My personal opinion
has no place in this case. So when I use the word “I,” I am not telling you what to
think. I am telling you what the evidence shows and what the law shows.
5 VRP at 780. The prosecutor then responded to Jacobson’s trial testimony:
It wasn’t enough for the defendant that he got a picture of Lisa. He then
asked—and I am going to suggest to you that when the defendant’s cross-
examination went worse for him was when he tried to explain to you why he needed
a picture of the mom and the girl together because if the mom is pretending to be
the girl, that’s not possible. . . .
He then wanted the girl brought to the gas station with the mother so he
could put eyes on them and determine they were real.
I am going to suggest to you that the defendant’s explanation of what “no
RP” means was a couple of other initials, one of which is a B. But you know what?
BS. It’s not possible that “no RP” means no real person.
....
But the point is that the no RP, the no real people, the no role play, all of
that is a sidetrack to what was actually going on here because the defendant’s words
and actions are what demonstrated his intent.
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No. 49887-1-II
5 VRP at 791-92. Jacobson did not object.
Although the prosecutor’s statement that Jacobson’s explanation of the meaning of “no
RP” was strong, the statement was not a comment on defense counsel’s role and did not impugn
defense counsel’s integrity. Instead, the prosecutor permissibly argued that the evidence
presented at trial, and not his personal opinion, did not support Jacobson’s testimony. It is not
improper for a prosecutor to argue that evidence does not support the defense’s theory.
Thorgerson, 172 Wash. 2d at 465. Accordingly, Jacobson fails to show that the prosecutor’s
statements were improper.
III. CUMULATIVE ERROR
Jacobson argues that the cumulative effect of the prosecutor’s alleged misconduct
deprived him of a fair trial. We disagree.
The cumulative error doctrine applies when a trial is affected by “several trial errors that
standing alone may not be sufficient to justify reversal but when combined may deny a defendant
a fair trial.” State v. Greiff, 141 Wash. 2d 910, 929, 10 P.3d 390 (2000). To determine whether
cumulative error requires reversal of a defendant’s conviction, we must consider whether the
totality of circumstances substantially prejudiced the defendant. The totality of the
circumstances do not substantially prejudice the defendant where the evidence is overwhelming
against the defendant. In re Pers. Restraint of Cross, 180 Wash. 2d 664, 691, 327 P.3d 660 (2014).
Additionally, the cumulative error doctrine does not apply when there are no errors or where the
errors are few and have little or no effect on the trial’s outcome. State v. Weber, 159 Wash. 2d 252,
279, 149 P.3d 646 (2006).
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No. 49887-1-II
As discussed above, Jacobson identifies three trial errors—the prosecutor’s improper
suggestion that one who discusses having sex with a child is willing to have sex with a child,
improper statement that the jury must reach a unanimous decision, and improper discussion
regarding the filth on Craigslist. Considering these errors together, Jacobson fails to show that
their combined effect deprived him of a fair trial. The prosecutor’s remarks had little to no effect
on the outcome of Jacobson’s trial because they were brief and made in isolation. The trial court
instructed the jury that it must reach its decision based on the evidence and that it should
disregard any of the prosecutor’s statements that were not supported by the evidence.
Moreover, overwhelming evidence supports Jacobson’s convictions. Jacobson
exchanged a number of text messages with undercover officers and clearly stated that he wished
to have both oral and vaginal intercourse with an 11-year-old girl, Lisa. Jacobson asked for
several pictures of Lisa, and he agreed to provide a gift card as compensation for having sexual
contact with Lisa. In addition, Jacobson drove to the agreed upon gas station before he was to
meet Lisa. Jacobson was arrested outside the gas station with condoms, lubricant, and candy on
his person—as the undercover officers requested.
Looking to the errors in the context of the entire record, we conclude that Jacobson failed
to meet his burden in proving that the cumulative effect of the prosecutor’s statements
substantially prejudiced him and thus deprived him of a fair trial.
IV. SUFFICIENCY OF THE EVIDENCE
Jacobson also argues that insufficient evidence supports his convictions for attempted
first degree rape of a child and attempted commercial sexual abuse of a minor. We disagree.
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No. 49887-1-II
A challenge to the sufficiency of the evidence to convict is a constitutional question that
we review de novo. State v. Rich, 184 Wash. 2d 897, 903, 365 P.3d 746 (2016). To determine
whether sufficient evidence supports a defendant’s conviction, we must consider whether any
rational trier of fact could have found the essential elements of the charged crime beyond a
reasonable doubt. 184 Wash. 2d at 903. We must draw all reasonable inferences from the evidence
in favor of the State and interpret them strongly against the defendant. State v. Brown, 162
Wash. 2d 422, 428, 173 P.3d 245 (2007). We consider circumstantial evidence and direct evidence
as equally reliable. State v. Bowen, 157 Wash. App. 821, 827, 239 P.3d 1114 (2010).
A. Attempted First Degree Rape of a Child
Jacobson argues that insufficient evidence supports his conviction for attempted first
degree rape of a child because the State failed to prove that Jacobson attempted to have sexual
intercourse with a child under the age of 12. We disagree.
To convict a defendant of attempted first degree rape of a child, the State must prove
beyond a reasonable doubt that the defendant intended to have sexual intercourse and took a
substantial step toward having sexual intercourse with a child under the age of 12. RCW
9A.28.020(1), 9A.44.073(1); State v. Wilson, 1 Wash. App. 2d 73, 83, 404 P.3d 76 (2017). A
substantial step is conduct strongly corroborative of the defendant’s criminal purpose. State v.
Wilson, 158 Wash. App. 305, 317, 242 P.3d 19 (2010). Mere preparation to commit a crime is not
a substantial step toward the commission of that crime. 158 Wash. App. at 317. However, “Any
slight act done in furtherance of a crime constitutes an attempt if it clearly shows the design of
the individual to commit the crime.” State v. Price, 103 Wash. App. 845, 852, 14 P.3d 841 (2000).
38
No. 49887-1-II
Here, Jacobson engaged in a text message exchange with Kristl after responding to the
Task Force’s Craigslist ad. Kristl said that her daughter, Lisa, was “[e]leven, nearly 12.” 2 VRP
at 257. Jacobson asked for photographs of Lisa and stated, “I believed we were talking about
Lisa being ready to go all the way. And if she is and you are comfortable with that, then I would
like to help with that.” 2 VRP at 278. Jacobson also stated that he was interested in oral sex.
Jacobson and Kristl arranged to meet at a gas station before Jacobson would meet with
Lisa. Kristl also asked that Jacobson bring condoms, lubricant, and candy. Jacobson was
arrested outside of the agreed upon gas station and had condoms, lubricant, and candy on his
person.
Jacobson argues that the State failed to prove that he intended to have sexual intercourse
with a child under the age of 12 because Lisa’s age was ambiguous. Jacobson contends that
because Kristl did not correct him when he stated that Lisa was 12 and because he was sent
pictures of Gasser that were taken when she was approximately 16, it was not clear that Lisa was
under the age of 12. We hold that Jacobson’s argument is unpersuasive.
We draw all reasonable inferences from the evidence in a light most favorable to the
State. Brown, 162 Wash. 2d at 428. At trial, the State introduced a text message in which Kristl
states that Lisa is “[e]leven, nearly 12.” 2 VRP at 257. A juror could reasonably conclude
beyond a reasonable doubt from this text message that Jacobson intended to have sexual
intercourse with an 11-year-old.
Moreover, when viewing the evidence in the light most favorable to the State, the jury
could find beyond a reasonable doubt that Jacobson intended to have sexual intercourse with an
11-year-old and took a substantial step toward the commission of the crime of first degree child
39
No. 49887-1-II
rape. The evidence established that Jacobson requested to have oral and vaginal sex with Lisa.
Jacobson asked for photographs of Lisa, agreed on a meeting place, drove to the agreed upon
meeting place, and brought condoms and lubricant. These actions strongly corroborate
Jacobson’s intent to commit the crime of first degree child rape. Therefore, substantial evidence
supports Jacobson’s conviction for attempted first degree rape of a child.
B. Attempted Commercial Sexual Abuse of a Minor
Jacobson also argues that insufficient evidence supports his conviction for attempted
commercial sexual abuse of a minor. Jacobson contends that sufficient evidence does not
support each alternative means of committing attempted commercial sexual abuse of a minor and
that there was no evidence that a “fee” was at issue. Br. of Appellant at 52. We disagree.
Former RCW 9.68A.100 provides:
(1) a person is guilty of commercial sexual abuse of a minor if:
(a) He or she pays a fee to a minor or a third person as compensation for a
minor having engaged in sexual conduct with him or her;
(b) He or she pays or agrees to pay a fee to a minor or a third person pursuant
to an understanding that in return therefore such minor will engage in sexual
conduct with him or her; or
(c) He or she solicits, offers, or requests to engage in sexual conduct with a
minor in return for a fee.
To prove that a defendant attempted to commit a crime, the State must show beyond a
reasonable doubt that “with intent to commit a specific crime, he or she does any act which is a
substantial step toward the commission of that crime.” RCW 9A.28.020(1). As a result, to
prove that a defendant committed attempted commercial sexual abuse of a minor, the State must
show that a defendant (1) intended the criminal result and (2) took a substantial step toward
accomplishing that result.
40
No. 49887-1-II
As an initial matter, both parties appear to assert that commercial sexual abuse of a minor
is an alternative means crime. We assume without deciding that this is true. However, the trial
court instructed the jury that a person commits the crime of commercial sexual abuse of a minor
when “he pays or agrees to pay a fee to a minor or a third person pursuant to an understanding
that in return for the fee the minor will engage in sexual conduct with him solicits, offers, or
requests to engage in sexual conduct with a minor in return for a fee.” CP at 35. Accordingly,
we must determine whether substantial evidence supports both that Jacobson attempted to
engage in sexual conduct with a minor in return for a fee and that Jacobson attempted to solicit,
offer, or request to engage in sexual conduct with a minor in return for a fee.
Jacobson and Kristl arranged for Jacobson to meet Lisa, Kristl’s 11-year-old daughter.
Jacobson expressed that he wanted to have oral and vaginal sex with Lisa. During a text
message exchange, Kristl asked Jacobson if he was okay with gifts. Jacobson asked, “What does
[Lisa] like?” 2 VRP at 284. Kristl responded, “Roses are always good. She likes gift cards,
track phone minutes for her phone, stuff like that. Is that okay?” 2 VRP at 284. Jacobson
answered in the affirmative.
On the day that Jacobson and Kristl agreed to meet, Kristl asked Jacobson what gifts he
planned on bringing. Jacobson stated: “A gift card? That can be used for any purpose.” 2 VRP
at 325. Jacobson and Kristl did not discuss the exact amount that would be placed on the gift
card. Jacobson and Kristl agreed to meet at a gas station before Jacobson could meet with Lisa.
Jacobson was arrested outside of the agreed upon gas station. During a search incident to
Jacobson’s arrest, law enforcement located condoms and lubricant.
41
No. 49887-1-II
Jacobson argues that the State failed to prove that he intended to have sexual contact with
a minor in exchange for a fee because the State did not present evidence that a fee was at issue.
We disagree. Although Jacobson and Kristl did not agree on a fixed sum to be placed on the gift
card, Jacobson’s offer and assent to provide a gift card demonstrated his intent to provide a fee in
return for engaging in sexual conduct with Lisa and was a substantial step toward accomplishing
that result.
Viewing the evidence in a light most favorable to the State, we conclude that a rational
trier of fact could find the essential elements of both alternative means of attempted commercial
sexual abuse of a minor beyond a reasonable doubt. Jacobson requested to have both vaginal
and oral sex with Lisa, an 11-year-old. In addition, Jacobson agreed to provide a gift card to
Kristl in exchange for his sexual conduct with Lisa. Jacobson’s conduct in driving to the agreed
upon meeting place and having condoms and lubricant on his person strongly corroborates his
intent to engage in sexual conduct with Lisa and to provide a gift card as compensation, as
agreed. Accordingly, Jacobson took a substantial step toward the commission of attempted
commercial sexual abuse of a minor, and substantial evidence supports both alternative means of
that crime.
V. COMMUNITY CUSTODY CONDITIONS
Jacobson also argues that the trial court’s prohibition against accessing the Internet
without approval of his community custody officer and against using a device with Internet
access violates his First Amendment rights. We disagree.
Generally, imposing community custody conditions is within the discretion of the
sentencing court and will be reversed if manifestly unreasonable. State v. Sanchez Valencia, 169
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No. 49887-1-II
Wn.2d 782, 791-92, 239 P.3d 1059 (2010). The imposition of an unconstitutional community
custody condition is manifestly unreasonable. 169 Wash. 2d at 792.
A defendant’s constitutional rights while on community custody are subject to the
infringements authorized by Washington’s Sentencing Reform Act (SRA), chapter 9.94A RCW.
State v. Riles, 135 Wash. 2d 326, 347, 957 P.2d 655 (1998). Under the SRA, a trial court may
require that a defendant comply with crime-related prohibitions. RCW 9.94A.505(9), .703(3)(f).
In addition, a trial court may prohibit a defendant’s access to a means or medium through which
he committed a crime. In re Pers. Restraint of Rainey, 168 Wash. 2d 367, 380, 229 P.3d 686
(2010). A condition restricting a defendant’s First Amendment rights must be reasonably
necessary to accomplish the essential needs of the State and public order and be sensitively
imposed. State v. Bahl, 164 Wash. 2d 739, 757, 193 P.3d 678 (2008).
The trial court imposed community custody provisions and ordered that Jacobson refrain
from “internet access or use, including email, without the prior approval of the supervising
CCO.” Suppl. CP at 88. The trial court also ordered:
No use of a computer, phone, or computer-related device with access to the Internet
or on-line computer service except as necessary for employment purposes
(including job searches). The CCO is permitted to make random searches of any
computer, phone or computer-related device to which the defendant has access to
monitor compliance with this condition.
Suppl. CP at 88.
Here, the conditions prohibiting access to the Internet and the use of a device with access
to the Internet were reasonably necessary to accomplish the essential needs of the State and
public order, and the conditions were sensitively imposed. Jacobson’s crimes were committed
through the use of the Internet, where he found and responded to a Craigslist ad that facilitated
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No. 49887-1-II
his arrangement to have sexual contact with an 11-year-old girl. Prohibiting Jacobson from
accessing the Internet, and using devices with Internet access, is reasonably necessary to prevent
repeated offenses. Without access to the Internet, Jacobson is unable to access similar ads and
communicate to make additional arrangements. Moreover, the community custody conditions do
not impose a blanket prohibition of Internet use. Jacobson may access the Internet with the
permission of his community custody officer. Accordingly, the trial court did not improperly
infringe on Jacobson’s First Amendment rights by prohibiting his use of the Internet and devices
with Internet access.
We affirm Jacobson’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 in accordance with RCW
2.06.040, it is so ordered.
Worswick, P.J.
We concur:
Bjorgen, J.
Sutton, J.
44