State Of Washington v. Tomas M. Gaspar ( 2020 )

Filed
Washington State
Court of Appeals
Division Two
August 4, 2020
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 53343-0-II
Respondent,
v.
TOMÁS MANUEL GASPAR, UNPUBLISHED OPINION
Appellant.
GLASGOW, J.—Tomás Manuel Gaspar was convicted of three counts of fist degree incest,
two counts of second degree child rape, and one count of first degree child rape based on sexual
abuse of one of his daughters and two of his granddaughters. Each victim testified that he raped
her, and the sexual assault nurse who examined them testified regarding their disclosures to her.
There was no physical evidence of abuse.
Gaspar appeals, arguing that the nurse improperly testified as to her opinion of Gaspar’s
guilt, that the prosecutor’s statements during closing argument referencing the rules of evidence
amounted to misconduct, that he received ineffective assistance of counsel based on his counsel’s
failure to object, and that cumulative error warrants reversal. He also challenges two conditions of
community custody and the imposition of interest on legal financial obligations. The State
concedes that the challenged conditions and interest provision were improper.
We affirm Gaspar’s convictions. The challenged nurse’s testimony was improper but its
improper admission was harmless, and the prosecutor’s statements were not improper. Gaspar’s
ineffective assistance of counsel claims also fail. Thus, there are not multiple errors that would
No. 53343-0-II
require reversal under the cumulative error doctrine. We accept the State’s concessions that the
challenged community custody conditions and interest on legal financial obligations were
improper, and we remand for correction of these errors.
FACTS
One of Gaspar’s daughters, AB, and two of this granddaughters, RS and LS, accused him
of sexual abuse. Each of the victims was between 11 and 13 years old when the alleged abuse took
place, and they are all around the same age.
AB disclosed the abuse to her counselor after her mother noticed behavioral changes in
her, including self-cutting. The abuse at issue took place on occasional weekend visits that AB had
with Gaspar after AB’s mother had separated from Gaspar. AB was about 12 years old at the time,
although she said Gaspar started having sexual contact with her as early as when she was in first
grade.
RS and LS disclosed their abuse at the same time to their mother when they were 11 and
13 years old, respectively. Their mother and AB’s mother reported the allegations to the police.
The State charged Gaspar with three counts of first degree incest, two counts of second degree
child rape, and one count of first degree child rape.
At trial, AB testified that Gaspar had sex with her when she was in sixth grade. She said
she did not tell her mother because she was scared of what would happen and Gaspar told her not
to. He told her that if she told anyone he would go to jail. She testified that he had sex with her
multiple times, sometimes in a chair in his room and sometimes in the attic. She testified that
Gaspar watched pornographic videos with her and that she and LS had drawn pictures of people
having sex with little girls. These pictures were admitted into evidence.
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LS and RS both testified that Gaspar tried to put his penis in their vaginas and LS testified
that it went partway in. LS testified that Gaspar also touched her vagina using his hands and mouth.
LS said that Gaspar watched pornographic videos with her.
Lisa Wahl, a sexual assault nurse examiner, examined all three victims. Wahl was treated
as an expert for the purposes of testifying, and Gaspar did not object to her qualifications. She did
not act as a forensic interviewer, but rather met with each victim once to take their history,
including sexual history, and perform a general physical exam. She then referred them to their
regular healthcare providers and mental health counselors for ongoing treatment. Wahl did not
serve as an ongoing treatment provider for any of the victims.
Wahl testified generally that delayed disclosure of sexual assault is common, particularly
where the abuser is a family member. She then described her examination and interview of AB,
during which AB described the abuse. Wahl testified that AB confirmed that her father had abused
her, including instances of penile-vaginal penetration, since she was in first grade. Wahl testified
that AB confirmed that there was penile-vaginal penetration, and also provided more details of the
abuse than AB relayed in her own testimony.
Wahl then generally explained the phenomenon of grooming, where a perpetrator engages
with a child over a period of time slowly “breaking down those rules and boundaries that usually
exist between an adult and a child,” and uses enticements or threats to prevent the child from
disclosing. 1 Verbatim Report of Proceedings (VRP) (Mar. 21, 2019) at 201-02. She explained
how that behavior manifested itself in this case:
For [AB], she was told that he’ll go to jail. Now, why would that matter to [AB]?
Well, he’s her father and she loves him. And children love their parents, they’re
like right and left arms. You can’t sever that relationship; they’re the first people
that a child knows and loves. And to then put that burden of her father will go to
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jail if she tells shifts the onus of responsibility onto the child’s back and off of the
perpetrator’s back.
And so now we’re talking about toxic stress, bearing that burden for six
years until she disclosed.
Id. at 202-03. Wahl also explained that self-harm is a common coping mechanism of children who
have been sexually abused, “[s]o she’s going to self-harm is one classic example.” Id. at 204. Wahl
identified cutting as a typical response to molestation or child rape. The State later asked Wahl if
she could think of any other reason AB would have cut herself besides the abuse by her father, and
Wahl replied that she did not know of another reason. Gaspar did not object to these statements.
Wahl also testified that LS reported penile-anal penetration, as well as penile-vaginal
penetration. RS reported penile-vaginal penetration.
One of the investigating detectives testified that he was aware that AB had also accused
another relative of sexually abusing her, but the family informed him that the allegation had been
resolved several years ago and they did not want him contacted. The detective did not follow up
on this allegation. Wahl also testified that she was aware of AB’s allegation against the other
relative, although AB never told her when this alleged abuse occurred.
During closing argument, the prosecutor explained how AB, RS, and LS were all
embarrassed about testifying and reluctant to share much detail about their experiences. He then
contrasted their trial testimony with their disclosures to Wahl, explaining that it was easier for
them to discuss the abuse alone with a medical professional. In doing so the prosecutor mentioned
the hearsay exception for statements made for a medical diagnosis as a way of arguing that such
statements can be particularly reliable. Gaspar did not object to these statements.
The prosecutor also referenced the rules of evidence elsewhere in his closing argument,
explaining that the trial court sometimes excludes evidence, for example, because it is hearsay.
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The prosecutor did so in the context of explaining to the jury that it should focus on the evidence
presented as it relates to the elements of the crimes charged. Gaspar did not object to these
comments.
The jury found Gaspar guilty on all counts. The trial court sentenced Gaspar to 318 months
to life in prison for first degree child rape, as well as community custody for the rest of his life,
with his lesser sentences for all of the other counts to run concurrently. One condition of
community custody was that Gaspar must undergo “periodic polygraph and/or plethysmograph
testing to measure treatment progress and compliance at a frequency determined by [his] Sexual
Offender Treatment Provider (SOTP), [community corrections officer], or [Department of
Corrections] Policy.” Clerk’s Papers (CP) at 59. The trial court also ordered that Gaspar not be
allowed to access the Internet without supervision and the prior approval of his community
corrections officer. The trial court ordered Gaspar to pay only the crime victim assessment and
DNA collection fee because he was indigent, but it included the boilerplate language imposing
interest on these financial obligations.
Gaspar appeals.
ANALYSIS
I. WAHL’S TESTIMONY
Gaspar argues that his convictions for second degree rape of a child and incest that were
based on his abuse of AB must be reversed because Wahl improperly testified as to her opinion of
Gaspar’s guilt. We hold the challenged testimony was improper and was a manifest error, but the
error was harmless beyond a reasonable doubt.
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A. RAP 2.5(a)(3)
Gaspar acknowledges that he did not properly object to Wahl’s testimony at trial. To bring
this claim for the first time on appeal, he must therefore show that allowing this testimony was a
manifest error affecting a constitutional right. RAP 2.5(a)(3). “Application of RAP 2.5(a)(3)
depends on the answers to two questions: ‘(1) Has the party claiming error shown the error is truly
of a constitutional magnitude, and if so, (2) has the party demonstrated that the error is manifest?’”
State v. Grott, 195 Wn.2d 256, 267, 458 P.3d 750 (2020) (quoting State v. Kalebaugh, 183 Wn.2d
578, 583, 355 P.3d 253 (2015)).
The focus of the manifest error inquiry “must be on whether the error is so obvious on the
record that the error warrants appellate review.” State v. O’Hara, 167 Wn.2d 91, 99-100, 217 P.3d
756 (2009). The defendant must make a plausible showing that the asserted error had practical and
identifiable consequences at trial. Grott, 195 Wn.2d at 269. To make this determination, “‘the
appellate court must place itself in the shoes of the trial court to ascertain whether, given what the
trial court knew at that time, the court could have corrected the error.’” Id. (quoting O’Hara, 167
Wn.2d at 100). In Grott, the court concluded that there was “no basis to conclude that the trial
court should have sua sponte” corrected the error. Id. at 270.
B. Whether Gaspar Alleges a Manifest Error of Constitutional Magnitude
Gaspar alleges that Wahl’s testimony violated his right to a jury trial. An expert’s testimony
may violate the defendant’s constitutional right to a jury trial if it invades the fact-finding province
of the jury by expressing an opinion about the guilt or veracity of the defendant or about the
veracity of the victim. State v. Kirkman, 159 Wn.2d 918, 927, 155 P.3d 125 (2007). This invasion
of the jury’s province to find facts is clearly an issue of constitutional magnitude.
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Under Grott, we next determine whether Gaspar makes a plausible showing that Wahl’s
testimony had practical and identifiable consequences in his trial. 195 Wn.2d at 269. “It is not
enough that the Defendant allege prejudice—actual prejudice must appear in the record.” State v.
McFarland, 127 Wn.2d 322, 334, 899 P.2d 1251 (1995). “Admission of witness opinion testimony
on an ultimate fact, without objection, is not automatically reviewable as a ‘manifest’
constitutional error.” Kirkman, 159 Wn.2d at 936. Rather, because the manifest error exception is
narrow, it “requires a nearly explicit statement by the witness that the witness believed the accusing
victim” or that the witness believed the defendant was guilty. Id.Gaspar argues that Wahl improperly testified that AB had been abused by Gaspar and that
AB’s psychological trauma was linked to abuse by Gaspar specifically, as opposed to another
accused family member. Wahl first testified generally about how trauma can impact a child’s
behavior and how it can be linked to sexual abuse. She then described how an abuser might groom
a victim for abuse by using enticements or threats and described how this process manifested itself
in the victims’ allegations. She then explained that AB was told her father would go to jail, and
putting that burden on her “shifts the onus of responsibility onto the child’s back and off of the
perpetrator’s back.” 1 VRP (Mar. 21, 2019) at 202. Finally, Wahl said specifically about AB: “And
so now we’re talking about toxic stress, bearing that burden for six years until she disclosed.” Id.Wahl went on to explain more generally about the impact of severe stress on a child’s brain.
She then linked these consequences to AB specifically, stating: “So, as these - over time in this
developing brain of a child -- for [AB’s] sake, six years -- what has happened to her brain is
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potentially permanent physiologic as well as psychologic change in these neuropathways.” Id.at
204.1
Finally, Wahl more generally explained that this type of abuse can lead to self-harm and
cutting, and, although there might be other reasons a child might cut themselves apart from sexual
abuse, Wahl did not know of any other reasons why AB would have cut herself.
Gaspar does not argue that it was improper for Wahl to describe general behaviors of child
victims of abuse, but rather that it was improper for Wahl to identify AB as a victim of sexual
abuse and Gaspar, her father, as the perpetrator. He likens Wahl’s testimony to the testimony in
State v. Florczak, 76 Wn. App. 55, 882 P.2d 199 (1994). There, an expert witness testified that the
victim suffered from posttraumatic stress disorder and “‘[w]hen we give the child [posttraumatic]
stress, it can be to any traumatic event. It is secondary, in this case, in [the victim]’s case, to sexual
abuse.’” Id. at 74 (alteration in original) (quoting testimony). Division One held that by stating the
victim’s posttraumatic stress was linked to abuse, the expert rendered an opinion on the ultimate
fact—whether any abuse had occurred. Id. The court therefore held that the testimony invaded the
province of the jury and constituted a manifest error because it amounted to an opinion that the
defendants were guilty. Id. Wahl’s testimony was similar to the testimony in Florczak because she
linked AB’s symptoms of stress and trauma to her father’s threat that if AB disclosed the abuse he
would go to jail. This conveyed to the jury that Wahl believed AB and that Gaspar was guilty.
In State v. Ciskie, 110 Wn.2d 263, 280, 751 P.2d 1165 (1988), the court allowed general
expert testimony on the aspects of posttraumatic stress disorder specifically relevant to survivors
1
Gaspar did not object based on Wahl’s credentials or her ability to render an expert opinion on
the psychological effects of this stress on AB, nor has this issue been raised on appeal.
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of rape because the expert witness stopped short of assessing the victim’s credibility regarding
whether rape had occurred in that case. Here, Wahl’s testimony went beyond what was permissible
in Ciskie because she linked AB’s posttraumatic stress to her relationship with her abuser, and
named Gaspar as that abuser. Wahl strayed into telling the jury her diagnosis was based, at least
in part, on her belief that AB had been raped.
In State v. Case, ___ Wn. App. 2d ___, 466 P.3d 799, 808-09 (2020), we recently applied
Ciskie and held that general, objective testimony from an expert witness on behaviors typically
exhibited by victims did not amount to improper opinion testimony where the expert did not
expressly link their testimony to the facts of the particular case. Wahl’s testimony violated that
principle by linking her general testimony on how perpetrators use grooming techniques such as
enticements and threats to what actually happened between AB and Gaspar and by expressly
stating that AB’s stress was linked to sexual abuse committed by her father.
The State contends that Wahl was merely relaying what AB told her about Gaspar’s abuse,
rather than expressing her own personal opinion of what happened. The State argues that Wahl
was explaining why it would be difficult for someone to disclose abuse by their father, not that
Wahl’s diagnosis of AB led her to believe that Gaspar was the perpetrator. The State points out
that Wahl clarified on cross-examination that AB also talked about being abused by someone other
than Gaspar. While this is true, the express connection between AB’s symptoms and the rape
perpetrated by her father goes beyond what Ciskie allowed.
Moreover, Florczak established that this type of testimony from an expert constitutes a
manifest error affecting a constitutional right under RAP 2.5(a)(3). 76 Wn. App. at 74. In Florczak,
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the court explained: “By stating that her diagnosis of [posttraumatic] stress syndrome was
secondary to sexual abuse, [the expert witness] rendered an opinion of ultimate fact. . . . It therefore
was manifest constitutional error, that is, error that had ‘practical and identifiable consequences in
the trial of the case.’” Id. (quoting State v. Lynn, 67 Wn. App. 339, 345, 835 P.2d 251 (1992)). We
therefore conclude that Wahl’s testimony connecting grooming activity and AB’s symptoms
specifically to abuse perpetrated by her father constituted a manifest error affecting a constitutional
right.
C. Harmless Error
The State bears the burden on appeal of showing that this constitutional error was harmless
beyond a reasonable doubt. State v. Franklin, 180 Wn.2d 371, 382, 325 P.3d 159 (2014); State v.
Guloy, 104 Wn.2d 412, 426, 705 P.2d 1182 (1985). “Manifest constitutional error is harmless only
if the untainted evidence is so overwhelming that it necessarily supports a guilty verdict.”
Florczak, 76 Wn. App. at 75.
Gaspar argues that the error was not harmless because AB’s account of the abuse at trial
was brief and vague, whereas there was some evidence that AB was abused by a different relative.
Therefore, Gaspar argues, Wahl’s testimony was prejudicial because it bolstered AB’s claim while
undermining the defense theory that if any abuse occurred, it was not done by Gaspar.
During its closing argument the State emphasized the importance of Wahl’s testimony,
including portions that we have concluded are improper. In his closing argument, defense counsel
pointed to the lack of physical evidence of any abuse and argued that a reasonable doubt existed
as to Gaspar’s guilt because another family member had been accused of abuse but never
investigated. He also highlighted the inconsistencies and lack of detail in AB’s trial testimony to
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argue that there was a reasonable doubt regarding the timing of the alleged abuse and that
penetration occurred.
Although AB did not offer much detail in her trial testimony, she said clearly that her father
had sex with her, meaning that his penis went into her vagina, and the last time this occurred was
in the summer after her sixth grade year when she was 12. She also testified that he made her watch
pornographic movies with him. She indicated that he made her have sex with him in a particular
chair in his bedroom. She said that this also occurred in the attic where she sometimes slept. She
did not tell anyone because her father said that if she did, he would go to jail.
Gaspar does not dispute that Wahl properly testified about AB’s disclosures to her. Wahl
relayed to the jury that AB told her that her father sexually abused her starting when she was in
the first grade. Wahl reported the details of AB’s disclosure of multiple instances of rape. Wahl
testified that AB disclosed penile-vaginal penetration and penile-oral penetration, including details
about where Gaspar ejaculated. Through Wahl’s testimony, the jury was aware that AB had also
accused another male relative of sexual abuse. Finally, Wahl’s objectionable testimony linking
AB’s stress to abuse by her father was to some extent cumulative of AB’s testimony that she was
scared to disclose the abuse because Gaspar told her he would go to jail if she told anybody.
In light of this straightforward and direct testimony that was properly before the jury, as
well as the cumulative nature of some of Wahl’s objectionable testimony, the straightforward,
consistent descriptions from AB and Wahl amounted to overwhelming untainted evidence. The
error was therefore harmless beyond a reasonable doubt.
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II. PROSECUTORIAL MISCONDUCT
Gaspar argues that the prosecutor committed misconduct during closing argument by
suggesting that (1) there was additional evidence that the rules of evidence prevented the jury from
hearing, and (2) statements made to medical providers are more reliable as a matter of law. We
disagree.
A. Background on Prosecutorial Misconduct
To prove prosecutorial misconduct, Gaspar bears the burden to show that the prosecutor’s
comments were both improper and prejudicial in the context of the entire trial. State v. Thorgerson,
172 Wn.2d 438, 442, 258 P.3d 43 (2011). Failure to object or to request a curative instruction
constitutes a waiver of the misconduct unless the comments were so flagrant and ill intentioned
that no jury instruction could have cured the resulting prejudice. State v. Emery, 174 Wn.2d 741,
760-61, 278 P.3d 653 (2012). “Reviewing courts should 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. Under this heightened standard, a defendant who did not object must show
both a substantial likelihood that the misconduct affected the verdict and that such prejudice was
not curable. Id. at 761.
We review allegedly improper closing arguments “‘within the context of the prosecutor’s
entire argument, the issues in the case, the evidence discussed in the argument, and the jury
instructions.’” State v. Cardenas-Flores, 194 Wn. App. 496, 515, 374 P.3d 1217 (2016) (quoting
State v. Dhaliwal, 150 Wn.2d 559, 578, 79 P.3d 432 (2003)). “[A] prosecutor has wide latitude to
argue reasonable inferences from the evidence.” In re Pers. Restraint of Glasmann, 175 Wn.2d
696, 704, 286 P.3d 673 (2012). However, “a prosecutor’s argument that shifts the burden to the
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defense is improper and amounts to flagrant and ill intentioned misconduct.” Cardenas-Flores,
194 Wn. App. at 515. “A prosecutor generally cannot comment on the defendant's failure to present
evidence because the defendant has no duty to present evidence.” Thorgerson, 172 Wn.2d at 453.
It is also misconduct for a prosecutor to vouch for a witness’s credibility. State v. Robinson, 189
Wn. App. 877, 892, 359 P.3d 874 (2015).
B. Whether the Prosecutor Improperly Misstated the Burden of Proof
Gaspar argues that the prosecutor improperly shifted the burden of proof to the defense by
suggesting that doubts about the evidence should be resolved in favor of the State. He points to the
following portion of the prosecutor’s closing argument:
The State doesn’t have to, you know, to prove that someone had red hair, or
that, you know, a host of things. It might come up in your head during deliberations
and you say, well, why didn’t the State prove this? Why didn’t the State prove this?
Well, there’s lots of reasons. Part of it has to do with what evidence is allowed into
the case. Some evidence is excluded because of hearsay, which is completely
understandable. I mean, when the Court excludes evidence it’s all for a good reason.
The Court wants the jury to make its decision based upon the facts and the law of
the case. The Court doesn’t want the jury or the system, and the Court doesn’t want
the jury to make decisions based outside those elements. So, all the State has to
prove is the elements, nothing more.
2 VRP (Mar. 22, 2019) at 249-50. Gaspar did not object to these statements.
In Thorgerson, the court disapproved of the prosecutor’s reference to the hearsay rules in
closing arguments. 172 Wn.2d at 444-45. But the court ultimately held that the reference was not
misconduct and instead was a permissible argument on the evidence. Id. at 444-45, 453-54. Thus,
reference to the rules of evidence in closing argument does not necessarily constitute misconduct.
Here, although the prosecutor mentioned the hearsay rules, it is clear from the context of his entire
argument that he was not suggesting that the burden of proof rested with Gaspar. Rather, he
referenced the evidence rules as an example to argue that the jury should consider only the
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evidence admitted and focus on the evidence relevant to proving the elements of the crime. Even
though it would have been better not to invoke the rules of evidence, the broader argument was a
permissible one.
C. Whether the Prosecutor Improperly Vouched for Wahl’s Testimony
Vouching may occur when the prosecutor “‘place[s] the prestige of the government behind
the witness.’” Robinson 189 Wn. App. at 892-93 (quoting State v. Coleman, 155 Wn. App. 951,
957, 231 P.3d 212 (2010)). Shortly after his comments on the hearsay rule discussed above, the
prosecutor turned to Wahl’s examination of the victims:
So, you saw their reluctance in this case to talk about it. Well, then you
heard from Lisa Wahl. Now, when they talked to Lisa Wahl they were sitting there
with, you know, basically one-on-one or they had - I think she had a nurse in there
with her as well. But they’re sitting and they’re comfortable and they’re talking,
and they’re much more likely to disclose at that point. And Lisa Wahl took this
information for the purpose of a medical diagnosis. So, what the kids told her, it
was very important that it be true and accurate because that’s the - for instance, on
the hearsay rule, one of the exceptions is that the physician-patient conversation.
Since it’s - since the statements are made for the purpose of medical diagnosis and
treatment people tend to be much more honest when they talk about what happened
to them, because it’s important that the doctor realize what’s going on, to accurately
help them. So, people tend to be much more accurate when they talk to a doctor.
2 VRP (Mar. 22, 2019) at 250-51. Gaspar did not object to these statements.
Gaspar argues that these statements vouched for the credibility of the children’s disclosure
to Wahl and Wahl’s testimony about those disclosures because the prosecutor’s reference to the
rules of evidence “placed upon Wahl’s testimony the imprimatur of the judicial system itself.” Br.
of Appellant at 31. But the prosecutor did not offer his personal opinion of the credibility of these
disclosures or suggest that Wahl specifically was a reliable witness by virtue of being a medical
professional. Rather, he explained that as a general matter child victims of abuse tend to be more
forthcoming with details of their abuse when speaking in private to a medical professional than
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they are when testifying at trial, in order to explain the lack of detail elicited from the children on
the stand about the abuse they experienced. “Thus, the prosecutor was simply drawing inferences
from the evidence at trial, not implying knowledge of facts outside the evidence” or “plac[ing] the
prestige of the government behind the witness.” Robinson, 189 Wn. App. at 894.
Gaspar also reasons that the prosecutor’s statements to the jury on the law must be limited
to the law as set forth in the trial court’s instructions to the jury, see State v. Perez-Cervantes, 141
Wn.2d 468, 475, 6 P.3d 1160 (2000), but courts generally do not instruct juries on the rules of
evidence because doing so could cause confusion.
As discussed above, although frowned upon, the mere reference to the rules of evidence in
closing argument does not necessarily constitute misconduct. Thorgerson, 172 Wn.2d at 444-45.
Rather, “the more important focus” is whether the prosecutor’s comments improperly bolstered
the credibility of the disclosures made to Wahl. Id. at 445.
In Thorgerson, the court disapproved of the prosecutor’s references to hearsay rules in his
opening and closing statements to explain why a witness did not provide more information, but
stated that they did not rise to prosecutorial misconduct because “the prosecutor did not refer to
the nature of that testimony or his personal belief” in the substance of that testimony. Id. at 444.
Rather, the prosecutor was responding to the defendant’s attempts to undermine the witness’s
credibility by highlighting inconsistencies in her testimony. Id. at 444-47.
Here, as in Thorgerson, the prosecutor did not convey a personal belief in Wahl’s
testimony, her credibility as a witness, or the victims’ allegations. The purpose of his remarks on
the evidence rules was to emphasize the significant differences in the environments where the
victims had discussed their rapes—in Wahl’s office and on the witness stand. In Thorgerson, the
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prosecutor reasonably sought to mitigate any attempt to undercut the credibility of the victims’
trial testimony. Id. at 445-46. This is precisely what defense counsel did in closing argument
here—he pointed out discrepancies in the victims’ accounts of the time frame when the alleged
abuse took place and highlighted that each of their testimonies lacked sufficient detail to establish
that penetration had taken place. The prosecutor was responding to this attempt to undermine the
victims’ credibility. For these reasons, we hold that the prosecutor’s statements were not improper.
III. INEFFECTIVE ASSISTANCE OF COUNSEL
In the alternative, Gaspar argues he received ineffective assistance counsel based on his
counsel’s failure to object to Wahl’s testimony and to the alleged instances of prosecutorial
misconduct. We disagree.
A. Ineffective Assistance Generally
The Sixth Amendment to the United States Constitution and article I, section 22 of the
Washington Constitution guarantee effective assistance of counsel. State v. Grier, 171 Wn.2d 17,
32, 246 P.3d 1260 (2011). To demonstrate that he received ineffective assistance of counsel,
Gaspar must show both that defense counsel’s performance was deficient and that the deficient
performance resulted in prejudice. State v. Linville, 191 Wn.2d 513, 524, 423 P.3d 842 (2018).
Defense counsel’s performance is deficient if it falls below an objective standard of
reasonableness. State v. Estes, 188 Wn.2d 450, 458, 395 P.3d 1045 (2017). We strongly presume
that defense counsel’s performance was not deficient. Emery, 174 Wn.2d at 755. To overcome this
presumption, Gaspar must show “the absence of legitimate strategic or tactical reasons supporting
the challenged conduct by counsel.” McFarland, 127 Wn.2d at 336.
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Prejudice ensues if there is a reasonable probability that the result of the proceeding would
have been different had defense counsel not performed deficiently. Estes, 188 Wn.2d at 458. For
a claim based on counsel’s failure to object, the defendant “must establish that an objection likely
would have been sustained.” In re Det. of Monroe, 198 Wn. App. 196, 205, 392 P.3d 1088 (2017).
Because both prongs of the ineffective assistance of counsel test must be met, the failure to
demonstrate either prong will end our inquiry. State v. Classen, 4 Wn. App. 2d 520, 535, 422 P.3d
489 (2018).
B. Failure to Object
Because we hold that Wahl’s testimony was improper, we must address whether defense
counsel’s failure to object amounted to ineffective assistance. For the same reasons that Wahl’s
testimony was harmless beyond a reasonable doubt, Gaspar has failed to prove prejudice resulted
from counsel’s failure to object. As discussed above, Wahl’s objectionable testimony was to some
extent cumulative of AB’s testimony that she was scared to disclose the abuse because Gaspar told
her he would go to jail if she told anybody. And AB’s own testimony conveyed sufficient detail
of rape, as did testimony from Wahl that Gaspar does not assert was improper. Although the State
relied on Wahl’s testimony during closing argument, as discussed above, the purpose of this
reference was to emphasize that AB’s disclosure to Wahl was consistent with her testimony, not
to bolster Wahl’s credibility as an expert or to highlight her opinion of the facts of the case. Thus,
even assuming defense counsel performed deficiently, Gaspar has not shown that the outcome of
his trial would have been different had counsel objected to Wahl’s testimony.
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Gaspar also alleges ineffective assistance of counsel based on the lack of objection to the
alleged instances of prosecutorial misconduct. Because we hold that neither challenged statement
was improper, defense counsel was not deficient for failing to object.
IV. CUMULATIVE ERROR
Gaspar argues that cumulative error deprived him of a fair trial. “Under the cumulative
error doctrine, we may reverse a defendant’s conviction when the combined effect of errors during
trial effectively denied the defendant [their] right to a fair trial, even if each error standing alone
would be harmless.” State v. Venegas, 155 Wn. App. 507, 520, 228 P.3d 813 (2010). “The doctrine
does not apply where the errors are few and have little or no effect on the trial’s outcome.” Id.Because Gaspar has not identified multiple errors, the doctrine does not apply here.
V. CONDITIONS OF COMMUNITY CUSTODY
Gaspar argues the trial court erred in ordering him to submit to penile plethysmograph
testing at the discretion of the department and in restricting his Internet use. The State concedes
that both of these conditions were improperly imposed. We agree.
First, Gaspar argues the trial court erred in ordering penile plethysmograph testing as
directed by his community corrections officer and department policy. He requests that this
condition be modified to clarify that such testing can only occur for purposes of his sexual deviancy
treatment, as directed by his treatment provider. The State concedes that the condition is improper
as written and should be modified as Gaspar suggests.
The trial court may order plethysmograph testing as a part of crime-related treatment. State
v. Johnson, 184 Wn. App. 777, 780, 340 P.3d 230 (2014). However, using plethysmograph testing
as a monitoring tool at the discretion of the community corrections officer or department policy is
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No. 53343-0-II
improper. Id. at 780-81. We accordingly accept the State’s concession and remand for the trial
court to clarify this community custody condition.
Second, Gaspar argues that the community custody condition restricting his Internet use is
improper because it is not crime-related. The trial court prohibited Gaspar from accessing the
Internet “without the presence of a responsible adult who is aware of the conviction, and the
activity has been approved by the [community corrections officer] and the Sexual Offender
Treatment Provider in advance.” CP at 59. Gaspar argues, and the State agrees, that this condition
is not crime-related because there is no evidence that Internet use played a role in the commission
of his crimes.
The trial court may impose crime-related conditions on a defendant’s sentence and term of
community custody. RCW 9.94A.505(9), .703(3)(f). “Crime-related” refers to conduct that
“directly relates to the circumstances of the crime for which the offender has been convicted.”
RCW 9.94A.030(10). “‘Directly related’ includes conditions that are ‘reasonably related’ to the
crime.” State v. Irwin, 191 Wn. App. 644, 656, 364 P.3d 830 (2015) (quoting State v. Kinzle, 181
Wn. App. 774, 785, 326 P.3d 870 (2014)).
“[A] sentencing court may not prohibit a defendant from using the Internet if his or her
crime lacks a nexus to Internet use.” State v. Johnson, 180 Wn. App. 318, 330, 327 P.3d 704(2014). Here, there was evidence that Gaspar watched pornographic videos with the victims.
However, it appears that those videos were watched on DVD or videotape and there was no
evidence that Gaspar used the Internet to expose his victims to pornography. We therefore accept
the State’s concession, hold that this condition was not crime-related, and remand for the trial court
to strike this condition.
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No. 53343-0-II
VI. LEGAL FINANCIAL OBLIGATIONS
Gaspar argues the trial court erred in ordering that interest accrue on his nonrestitution legal
financial obligations because this provision violates RCW 10.82.090(1). The State concedes the
trial court should not have imposed interest accrual. We agree and remand for the trial court to
strike this provision from Gaspar’s judgment and sentence and replace it with updated language
that complies with amended RCW 10.82.090(1).
CONCLUSION
We affirm Gaspar’s convictions and remand for the trial court to correct the errors in his
judgment and sentence pertaining to Gaspar’s community custody conditions and legal financial
obligations.
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.
Glasgow, J.
We concur:
Lee, C.J.
Cruser, J.
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