State Of Washington v. Paul Gilmore ( 2016 )

Filed
Washington State
Court of Appeals
Division Two
November 15, 2016
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 47693-2-II
Respondent,
v. UNPUBLISHED OPINION
PAUL ALAN GILMORE,
Appellant.
MAXA A.C.J. – Paul Gilmore appeals his convictions for first degree child molestation
and communicating with a minor for immoral purposes relating to his stepdaughter MB, and his
convictions for four counts of viewing depictions of minors engaged in sexually explicit
conduct relating to viewing pornographic websites involving children. Gilmore also challenges
the trial court’s imposition of a discretionary legal financial obligation (LFO) as part of his
sentence.
We hold that (1) there was sufficient evidence to convict Gilmore of four counts of
viewing depictions of minors engaged in sexually explicit conduct, (2) Gilmore’s defense
counsel did not provide ineffective representation by failing to object to certain testimony and
arguments, (3) we decline to consider Gilmore’s argument that the trial court erred in ruling that
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he could not wear his United States Navy uniform at trial because he did not object to that
ruling at trial, (4) Gilmore’s myriad statement of additional grounds (SAG) claims either cannot
be considered or have no merit, and (5) the trial court did not err in imposing a discretionary
LFO as part of Gilmore’s sentence. Accordingly, we affirm Gilmore’s convictions and the trial
court’s imposition of a discretionary LFO.
FACTS
Gilmore worked in the Navy as a machinist. He married Candice1 in 2009. They lived in
Bremerton with their children MB and CG. MB was Candice’s daughter from a previous
relationship and was born in July 2006. Although Gilmore was not MB’s biological father, he
had known her since she was a baby and she thought of him as her father.
MB’s Description of Abuse
In October 2014, Candice’s mother Kathleen became concerned because MB had
suggested to Candice’s father that she had a secret she wanted to share. MB was eight years old
at the time. Kathleen drove from Oregon to visit MB, and on that visit MB told her, “My daddy
has me touch him when he’s naked and we share a computer -- Daddy’s little girl and something
about a [sex act].” 2 Report of Proceedings (RP) at 220.
The next day Kathleen told Candice what MB had said. When MB arrived home from
school, Kathleen asked MB to show Candice what she had been talking about the night before.
MB took Gilmore’s laptop computer, opened it, typed in the password, opened the web browser,
and started typing into the search bar. MB typed “D” and “A” and the search engine
1
We use the first names of MB’s mother and grandmother to avoid confusion. No disrespect is
intended.
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automatically generated a result – a video with “Daddy’s” in the title. 2 RP at 247. The still
image showed a naked, young-looking girl. Candice shut the computer and did not click on the
video. Kathleen later reported to the police what MB had said.
On November 19, child forensic interviewer Alexandra Mangahas interviewed MB.
During the interview MB told Mangahas that Gilmore had done a web search for “daddy’s little
girl” performing a sex act and then showed her the resulting pictures and videos. Clerk’s Papers
(CP) at 266, 270. MB said that the pictures and videos showed grown-ups and children who
were not wearing clothing.
MB described what she saw on Gilmore’s computer. MB saw videos of “[m]oms, dads,
and children” with “privates going into bodies.” CP at 310-11. She said she saw privates go into
grown-ups’ and kids’ mouths. She indicated that privates also went into the place where you go
pee. She said that Gilmore told her to keep it a secret or else he and her mom would be divorced.
MB also wrote down what Gilmore did to her. She wrote “he does putting his finger on
my private part.” CP at 296. She said that Gilmore “sometimes strips me” and that it felt
“weird” when he put his finger on her private part. CP at 298. MB also said that Gilmore
touched her private part with his private part sometimes and that felt weirder.
Law Enforcement Investigation
Detectives Aaron Baker and Lori Blankenship questioned Gilmore. Before asking any
questions, Baker read Gilmore his Miranda2 rights. Gilmore acknowledged that he understood
his rights and he waived them. During the interview Baker asked Gilmore if he had looked up a
website with a title referring to “daddy’s little girl” performing a sex act. CP at 339. Gilmore
2
Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
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said “possibly” then said “probably.” CP at 339. He denied ever showing MB something on his
computer involving sex acts between an adult and a child.
Baker obtained a search warrant and seized Gilmore’s computer. He delivered the
computer to Detective Jason Keays at the Washington State Patrol High Tech Crime Unit.
Keays searched Gilmore’s hard drive using search terms having to do with family sexual abuse,
and generated reports listing websites that had been accessed on the computer that included those
terms.
Baker then received back the computer along with the reports Keays had generated.
There were thousands of entries listed in the reports. Baker searched some of the websites,
including several websites involving incest and sexual relations between fathers and daughters.
Baker printed several photographs taken from the websites involving minors engaged in sexually
explicit conduct.
Criminal Charges
The State charged Gilmore with one count of first degree child molestation, one count of
communication with a minor for immoral purposes, and four counts of first degree viewing
depictions of a minor engaged in sexually explicit conduct.
Pretrial Proceedings
The trial court held a child hearsay hearing pursuant to RCW 9A.44.120 to address the
admissibility of MB’s statements to Candice, Kathleen, and Mangahas. The trial court ruled that
the hearsay statements were admissible. The trial court also held a CrR 3.5 hearing to determine
whether Gilmore’s interview with Baker and Blankenship was admissible, and it ruled that the
interview and Gilmore’s statements were admissible.
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The State filed a motion in limine requesting that the trial court prohibit Gilmore from
wearing his Navy uniform during the trial. During discussion of the motions in limine,
Gilmore’s defense attorney did not object to the State’s request or provide any legal argument
that Gilmore had a right to wear his uniform. But defense counsel did state that Gilmore would
prefer to wear the uniform. The trial court ruled that Gilmore could not wear his uniform.
Trial Testimony
At trial, Kathleen testified about what MB told her. Candice testified about what MB
showed her on the computer. Candice testified that she did not know what to do at first after
talking to Gilmore about what MB had shown her. She said she felt she was “between a rock
and a hard place” because she wanted to give Gilmore “the benefit of the doubt, while still trying
to believe [MB].” 2 RP at 249-50. But Candice stated that after she realized what was going on,
she has “not stopped supporting [MB] since.” 2 RP at 250.
Mangahas testified at trial. The State also admitted and showed the jury the video tape of
MB’s interview with Mangahas.
MB also testified. MB testified about how she used Gilmore’s computer to search for
“daddy’s little girl” performing a sex act and showed it to her mother. 3 RP at 327-28. She
testified that Gilmore had shown her the website. She said that the website had pictures and
videos of adults and children who were not wearing any clothing. She could see their private
parts. She said she saw private parts “[g]oing in each other” in the pictures and videos. 3 RP at
340. On one occasion she went into Gilmore’s room and saw him looking at the pictures on the
website.
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In addition, MB testified that Gilmore had touched her private part with his finger at least
once.
Baker testified and the State admitted and showed to the jury the video tape of Gilmore’s
interview with Baker and Blankenship. Keays and Baker also testified about the websites that
had been searched on Gilmore’s computer. Keays acknowledged that he did not locate any
photographs or videos of child pornography that were actually on Gilmore’s computer. Baker
discussed the photographs he had taken of the website images and testified that he believed the
children depicted in those photographs were under age 16. One of the photos showed a girl who
appeared to him to be under the age of 10.
Conviction and Sentence
The jury convicted Gilmore of one count of first degree child molestation, one count of
communicating with a minor for immoral purposes, and four counts of viewing depictions of
minors engaged in sexually explicit conduct. The jury also found by special verdict that Gilmore
and MB were members of the same family or household for the child molestation charge and the
communicating with a minor charge and that Gilmore abused a position of trust for the child
molestation charge.
The trial court sentenced Gilmore to 198 months. Before imposing LFOs, the trial court
asked the State if it had anything to present on Gilmore’s ability to pay. The State said, “the
defendant did say in the PSI that when he gets released he will be working, so he anticipates
being able to pay the legal financial obligations.” RP (June 5, 2015) at 8. The trial court
imposed a discretionary LFO of $1,135 for court-appointed attorney fees.
Gilmore appeals his conviction and the imposition of the LFO.
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ANALYSIS
A. SUFFICIENCY OF EVIDENCE – VIEWING DEPICTIONS OF MINORS
Gilmore argues that the State presented insufficient evidence to support his conviction of
four counts of viewing depictions of a minor engaged in sexually explicit conduct because there
were no images of minors engaged in sexually explicit conduct on his computer and the State
could not prove that he had actually viewed the websites listed in his computer history. We
disagree.
1. Legal Principles
When evaluating the sufficiency of evidence for a conviction, the test is whether, after
viewing the evidence in the light most favorable to the State, any rational trier of fact could have
found the elements of the crime beyond a reasonable doubt. State v. Homan, 181 Wash. 2d 102,
105, 330 P.3d 182 (2014). We must assume the truth of the State’s evidence and all reasonable
inferences drawn from that evidence. Id. at 106. We treat circumstantial evidence as equally
reliable as direct evidence. State v. Farnsworth, 185 Wash. 2d 768, 775, 374 P.3d 1152 (2016).
We also will defer to the trier of fact’s resolution of conflicting testimony and evaluation of the
persuasiveness of the evidence. Homan, 181 Wash. 2d at 106
The State charged Gilmore with four counts of viewing depictions of a minor engaged in
sexually explicit conduct under RCW 9.68A.075(1). The statute states:
A person who intentionally views over the internet visual or printed matter
depicting a minor engaged in sexually explicit conduct as defined in RCW
9.68A.011(4) (a) through (e) is guilty of viewing depictions of a minor engaged in
sexually explicit conduct in the first degree.
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No. 47693-2-II
RCW 9.68A.075(1). The sexual conduct listed in RCW 9.68A.011(4)(a)-(e) includes sexual
intercourse (including genital-genital and oral-genital), penetration of the vagina by any object,
and masturbation. A minor is defined as any person under 18 years of age. RCW 9.68A.011(5).
2. Sufficiency of Evidence Analysis
Here, the State produced evidence that Gilmore searched certain pornographic websites
on specific dates, and that when Baker accessed those websites he observed depictions of minors
engaged in sexually explicit conduct. Gilmore argues that this evidence is speculative because
Keays and Baker did not access these websites until a several weeks after the State alleged that
he accessed them, and that there was no evidence that the same images were on the websites
months earlier or that he had viewed them. He also emphasizes that Keays and Baker admitted
that there were no images of minors engaged in sexually explicit conduct on Gilmore’s
computer.
However, evidence is sufficient for a conviction if a reasonable inference can be drawn
from the evidence that the defendant has engaged in the alleged conduct. See Homan, 181
Wash. 2d at 105-06. Using internet history and search terms, Keays provided expert computer
forensic testimony establishing that Gilmore accessed hundreds of pornographic websites. And
using that internet history, Baker accessed many of those sites and observed images of minors
engaged in sexually explicit conduct. This testimony provided strong circumstantial evidence
that Gilmore also viewed images of minors engaged in sexually explicit conduct on those
websites.
Gilmore is correct that the State did not provide direct evidence that he actually viewed
the images that Baker observed several weeks after Gilmore had accessed the websites. But the
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State did provide circumstantial evidence, which is just as reliable as direct evidence.
Farnsworth, 185 Wash. 2d at 775. This evidence, when viewed in the light most favorable to the
State, was sufficient to give rise to an inference that Gilmore viewed depictions of minors
engaged in sexually explicit conduct.
Accordingly, we hold that the State provided sufficient evidence to convict Gilmore of
four counts of viewing depictions of a minor engaged in sexually explicit conduct.
B. INEFFECTIVE ASSISTANCE OF COUNSEL
Gilmore argues that his defense counsel was ineffective for failing to object to (1)
Candice’s testimony on MB’s credibility and the prosecutor’s reference to the testimony in
closing, (2) a comment Candice made about Gilmore’s guilt, (3) admission of photo evidence
from the searched websites, and (4) Baker’s opinion on the age of individuals in photos. We
disagree.
1. Legal Principles
We review claims of ineffective assistance of counsel de novo. State v. Hamilton, 179
Wash. App. 870, 879, 320 P.3d 142 (2014). To prevail on an ineffective assistance of counsel
claim, the defendant must show both that (1) defense counsel's representation was deficient and
(2) the deficient representation prejudiced the defendant. State v. Grier, 171 Wash. 2d 17, 32-33,
246 P.3d 1260 (2011). Representation is deficient if after considering all the circumstances, it
falls below an objective standard of reasonableness. Id. at 33. Prejudice exists if there is a
reasonable probability that except for counsel's errors, the result of the proceeding would have
been different. Id. at 34.
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We presume that counsel’s assistance was effective unless the defendant shows in the
record the absence of legitimate or tactical reasons supporting counsel’s conduct. Id. at 33-34.
If a claim of ineffective assistance of counsel is based on counsel's failure to object, a defendant
must show that an objection likely would have been sustained. State v. Fortun–Cebada, 158
Wash. App. 158, 172, 241 P.3d 800 (2010) (evidentiary ruling); State v. Johnston, 143 Wash. App. 1,
19, 177 P.3d 1127 (2007) (prosecutor comments).
2. Opinion on Credibility
Gilmore argues that his counsel was ineffective for failing to object to Candice’s opinion
on MB’s credibility and the prosecutor’s references to that testimony during closing argument.
We disagree.
a. Candice’s Testimony
The trial focused in large part on MB’s credibility. Defense counsel made MB’s
credibility a central issue in his opening statement:
[Y]ou will learn that the people that know [MB] best -- her mother, perhaps her
grandmother to a lesser degree -- when they found out about these allegations, they
either did not believe her or at least did not act consistent with someone who would
believe their child.
RP (May 12, 2015) at 13.
During the State’s direct examination, Candice testified about her initial reluctance to
believe her daughter:
A. I was caught between a rock and a hard place. So I was trying to figure out
where the truth really was.
Q. Why are you saying you were in between a rock and a hard place?
A. Because something like that, you know, I was trying to give [Gilmore] the
benefit of the doubt, while still trying to believe my daughter. And it’s just
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No. 47693-2-II
something that’s all-around hard to accept. So it -- it took me some time, and then
I had my eyes opened and realized what was going on and have not stopped
supporting my daughter since.
2 RP at 249-50.
In his closing argument, defense counsel returned to his opening statement theme by
repeating the line about how those who knew MB best, such as her mother, did not know
whether to believe her. And he specifically referenced Candice’s testimony:
And [Candice], [MB’s] own mother, her reaction was she didn’t know what to
believe. And her mother -- and Candice’s mother, Kathy, didn’t know what to
believe. These are the people who knew her best. Better than any of you. . . . So I
think it is important to see what the people who knew her best, what their reaction
when they heard what the allegations were. And I wouldn’t say they did nothing,
but they didn’t do anything consistent with absolutely believing [MB]’s allegation.
4 RP at 637-38.
Based on defense counsel’s questioning and argument, Gilmore cannot show that defense
counsel did not have a tactical reason for not objecting to Candice’s testimony. MB’s credibility
was central to the case. Defense counsel’s strategy was to focus on the fact that Candice and
others who knew MB best initially were not sure whether to believe her. Candice’s testimony
was useful and necessary for this argument. In fact, defense counsel referred to that testimony
during his closing argument.
There is a strong presumption that defense counsel’s representation was effective.
Gilmore has provided no basis for overcoming that presumption. Therefore, we hold that
defense counsel was not deficient for failing to object to Candice’s testimony.
b. Closing Argument
During closing argument the prosecutor referenced Candice’s testimony about MB’s
allegations:
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No. 47693-2-II
Candice described being stuck between a rock and a hard place. . . . I didn’t want
to necessarily -- I didn’t want to believe [MB]. I wanted to believe that this man
who I had married, had a child with, had known for 20 years would not do this.
But then when law enforcement came and told her some of the disclosures that
[MB] had made, it became absolutely clear to her that her daughter was telling the
truth. And what she said was, I haven’t stopped supporting my daughter since.
4 RP at 622-23.
A prosecutor may not express a personal opinion on the credibility of a witness. State v.
Allen, 161 Wash. App. 727, 746, 255 P.3d 784 (2011). However, a prosecutor “has wide latitude
in closing argument to draw reasonable inferences from the evidence and may freely comment
on witness credibility based on the evidence.” Id.
Gilmore fails to show that an objection to the prosecutor’s comment would have been
sustained. The prosecutor did not improperly express her personal opinion on MB’s credibility.
Instead, she argued based on the evidence – Candice’s testimony – and prosecutors may freely
comment on credibility based on the evidence. Id. And as discussed above, defense counsel
may have had a strategic reason not to object to a discussion of Candice’s testimony. Therefore,
we hold that defense counsel was not deficient for failing to object to the prosecutor’s comment.
3. Candice’s Opinion on Guilt
Gilmore argues that counsel was ineffective for failing to object to Candice’s comment
that he contends gave her opinion on Gilmore’s guilt. We disagree.
On redirect examination, Candice testified about her reaction to Gilmore’s arrest:
A. I got a call. He’s been arrested and I still didn’t really know the whole truth of
the scope of the situation. So I was upset that my mom had turned him in. But
when the sheriff’s department showed up, it cleared a lot of things up and I was not
upset any more.
Q. What do you mean “it cleared a lot of things up”?
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A. Well, when they came and they told me what she had said about the images in
that video --
Q. And “she” being [MB]?
A. Yes, [MB]. Good. He needed to be arrested. If he was showing her things like
that and doing some of what was talked about and said, then he needed to be
arrested.
2 RP at 268-69 (emphasis added).
A witness generally may not offer opinion testimony regarding the defendant’s guilt or
veracity because such testimony is unfairly prejudicial to the defendant and invades the exclusive
province of the jury. State v. Demery, 144 Wash. 2d 753, 759, 30 P.3d 1278 (2001). But reading
Candice’s comment in context reveals that she did not actually express an opinion about whether
Gilmore was guilty, but instead explained why she stopped being upset about Gilmore’s arrest.
Candice did not say that she thought Gilmore had done the things MB talked about. She said
that if he had done what MB said, then he needed to be arrested. Candice’s comment did not
invade the exclusive province of the jury to determine guilt, because her comment did not
indicate whether or not she thought he was guilty.
Candice’s comment was not improper and not objectionable. We hold that defense
counsel was not deficient for failing to object to Candice’s testimony.
4. Photo Evidence
Gilmore argues that defense counsel was ineffective for failing to object to photos of
pornographic images found on web sites searched on Gilmore’s computer presented by the State.
We disagree.
The State introduced photos of pornographic images that Baker found while performing
internet searches using the terms found on Gilmore’s search history. Gilmore argues that the
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photos were irrelevant under ER 401 because they were found in searches conducted several
weeks after the timestamps on Gilmore’s search history. He also argues that the images were
more prejudicial than probative and therefore inadmissible under ER 403.
However, the photos were relevant to corroborate MB’s account of what she saw when
she typed in “daddy’s little girl” performing a sex act. And they were relevant to show that
certain search terms found on Gilmore’s computer could lead to images of child pornography
when used in a search engine. Although the State may not have been able to show that those
specific images were images that appeared at the time Gilmore searched the term, the photos
provided circumstantial evidence that Gilmore did view similar images.
Because the photographs were admissible, Gilmore cannot show that a defense objection
would have been sustained. Therefore, we hold that defense counsel was not ineffective for
failing to object to the photographs.
5. Opinion on Age
Gilmore argues that defense counsel was ineffective for failing to object to Baker’s
opinion that the girls in the photographs discussed above were under the age of 16 because Baker
was not an expert on identifying age and because an expert opinion was not needed. We
disagree because Baker’s opinion testimony was admissible.
Under ER 701, a witness not testifying as an expert can offer opinions that are rationally
based on the witness’s perceptions and will be helpful to the trier of fact. A lay witness can only
offer opinion testimony that is not based on scientific, technical, or other specialized knowledge
covered by ER 702. ER 701; State v. Montgomery, 163 Wash. 2d 577, 591, 183 P.3d 267 (2008).
It is within the trial court’s discretion whether to admit lay opinion testimony under ER 701. See
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No. 47693-2-II
State v. Blake, 172 Wash. App. 515, 523, 298 P.3d 769 (2012). And ER 704 provides if an opinion
is otherwise admissible, it is not objectionable for embracing an ultimate issue to be decided by
the trier of fact.
Determining a person’s general age does not require scientific, technical, or other
specialized knowledge. Baker’s opinions were based on his own perceptions. And he testified
about his experience raising his own three children and performing volunteer work with other
children. He stated that he felt comfortable based on that experience estimating the ages of
children. As a result, if Gilmore had objected the trial court likely would have found that his
testimony was helpful to the jury and therefore admissible under ER 701.
Accordingly, we hold that Gilmore’s defense counsel was not deficient for failing to
object to Baker’s opinions on the age of the people in the pornographic photos.
C. WEARING MILITARY UNIFORM AT TRIAL
Gilmore argues that the trial court erred in granting the State’s motion in limine and
preventing Gilmore from wearing his Navy uniform at trial. We decline to consider this issue
because Gilmore failed to object in the trial court.
We generally will not consider an issue on appeal when the appellant fails to object to the
claimed error in the trial court. RAP 2.5(a). Here, Gilmore did not expressly object to the
State’s motion in limine. He said that he would prefer to wear his uniform. But he did not
provide any legal argument in support of wearing his uniform, and in fact he conceded that the
State’s authority established that there was no right to wear a uniform at trial. And Gilmore did
not object when the trial court ruled that he could not wear his uniform.
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We decline to consider Gilmore’s argument that the trial court erred in ruling that he
could not wear his uniform at trial.
D. SAG CLAIMS
1. Redundant SAG Claims (#3, #4, #8)
In SAG #3 and #4, Gilmore asserts that the State presented insufficient evidence to
support his convictions for viewing depictions of minors engaged in sexually explicit conduct
because the State did not show that he actually clicked the links and viewed the images or that he
had images on his computer. But those arguments were raised in his brief and are addressed
above.
In SAG #8, Gilmore argues that his counsel was ineffective for failing to object to
Baker’s testimony giving his opinion on the age of individuals. But that argument was raised in
his brief and addressed above.
2. Impermissibly Vague SAG Claims (SAG #10, # 15, #16, #17, #18, #19)
Although RAP 10.10(c) does not require an appellant refer to the record or cite authority
in a SAG, the rule does require an appellant to inform this court of the “nature and occurrence of
alleged errors.” The following assertions are too vague to properly inform us of the error.
In SAG #10, Gilmore asserts that the witnesses improperly bolstered MB’s testimony and
character. But he does not explain what witnesses or what testimony bolstered MB’s testimony
and character.
In SAG #15, Gilmore asserts that his defense counsel provided deficient representation
by failing to propose lesser included offense instructions. But he does not explain what lesser
included offense instructions his defense counsel should have proposed or for what counts.
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In SAG #16, Gilmore asserts that defense counsel was ineffective for failing to move to
sever the charges. But he does not explain which charges should have been severed.
In SAG #17, Gilmore asserts that defense counsel was ineffective for failing to call
defense witnesses. But he does not identify the witnesses that defense counsel should have
called.
In SAG #18, Gilmore asserts that defense counsel was ineffective for failing to challenge
the authenticity of evidence. But he does not direct our attention to any particular evidence.
In SAG #19, Gilmore cites generally to the closing argument and asserts that the
prosecutor gave an opinion about the victim’s statements and his testimony. But he does not
identify what portions of the closing argument he challenges or describe the nature of the alleged
improper opinion.
Accordingly, we cannot review these vague assertions.
3. Unpreserved SAG Claims (SAG #7, #9)
In SAG #7, Gilmore asserts that the trial court erred in allowing MB to testify at trial,
claiming that MB should not have been permitted to testify because she could not distinguish
reality from fantasy.3 But Gilmore did not object to MB testifying or raise the issue of MB’s
competency in the trial court. Therefore, he cannot challenge MB’s competency to testify on
appeal. RAP 2.5(a).
In SAG #9, Gilmore asserts that the trial court erred in admitting MB’s forensic interview
because the interviewer failed to ask MB if she knew the difference between the truth and a lie
3
The trial court held a hearing to determine whether Candice and Kathleen could refer to hearsay
statements MB made to them. Whether MB was competent to testify herself was not at issue in
that hearing.
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No. 47693-2-II
and failed to instruct MB to tell the truth. But Gilmore did not object to the admission of the
interview in the trial court. Therefore, he cannot challenge its admission on appeal. RAP 2.5(a).
4. Sufficiency of Evidence Claims (SAG #11, #12)
In SAG #11 and SAG #12, Gilmore argues that there was insufficient evidence to convict
him of first degree child molestation. We disagree.
As stated above, evidence is sufficient if after viewing the evidence in the light most
favorable to the State, any rational trier of fact could have found the elements of the crime
beyond a reasonable doubt. Homan, 181 Wash. 2d at 105.
To convict Gilmore of first degree child molestation, the State had to prove that Gilmore
had “sexual contact” with MB. RCW 9A.44.083. “Sexual contact” means any touching of the
sexual or intimate parts of another for purposes of sexual gratification. RCW 9A.44.010(2).
Here, the State produced clear evidence in the form of MB’s statements to Mangahas and MB’s
own testimony at trial that Gilmore had touched MB on her private part. This evidence was
sufficient to convict Gilmore of first degree child molestation.
Gilmore makes two assertions. First, in SAG #11 he emphasizes that there was no
medical or physical evidence to support the child molestation charge. But no authority requires
medical or physical evidence to convict on a child molestation charge.
Second, in SAG #12 Gilmore emphasizes that there was no evidence of prolonged
touching – i.e., rubbing or massaging – which he claims is required to support a child
molestation charge. But no authority requires “prolonged” touching to convict on a child
molestation charge; mere touching is sufficient.
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We hold that the State produced sufficient evidence to convict Gilmore of first degree
child molestation.
5. Prosecutorial Misconduct Claims (SAG #1, #5, #6, #20)
a. Legal Principles
To prevail on a claim of prosecutorial misconduct, a defendant must show that in the
context of the record and all of the circumstances of the trial, the prosecutor’s conduct was both
improper and prejudicial. State v. Thorgerson, 172 Wash. 2d 438, 442, 258 P.3d 43 (2011).
Misconduct is prejudicial if there is a substantial likelihood it affected the verdict. State v.
Emery, 174 Wash. 2d 741, 760, 278 P.3d 653 (2012). However, a defendant waives any error by
failing to object to the prosecutor’s improper conduct, unless that conduct was so flagrant and ill-
intentioned that an instruction could not have cured the resulting prejudice. Id. at 760-61.
b. Comment on Silence/Demeanor
In SAG #1, Gilmore claims the prosecutor committed misconduct in her closing
argument by commenting on his silence during questioning. He challenges the following
comment during closing argument:
His answers to the rest of the questions, I would suggest, are equivocal; again, like
the “possibly,” ending up, “finally” and “probably.” His body language -- and this
is something we talked about when we’re talking about credibility. His body
language, if you watched him during the interview, he appears uninterested. He’s
looking at his hands and kind of cleaning his fingernails while law enforcement is
accusing him of molesting his eight-year-old daughter and searching for child
pornography. And he seems irritated, uninterested, and is just kind of sitting there
like it is any other day.
This is not consistent with a person who has not committed these crimes. A person
who has not committed these crimes and is being accused of them by law
enforcement is going to be doing something like: I did not do this. I didn’t do this.
You can search whatever; you can look at my computer. They are going to be
vehement. They are not going to be irritated. They are not going to be looking at
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No. 47693-2-II
their fingernails to clean out their fingernails. They are going to be very vocal.
Yes, everyone is going to respond differently.
But the defendant’s response in [sic] law enforcement is absolutely inconsistent
with somebody who did not commit these offenses.
4 RP at 607-08. Gilmore did not object to this argument.
The Fifth Amendment to the United States Constitution states that “[n]o person . . . shall
be compelled in any criminal case to be a witness against himself.” Article I, section 9 of the
Washington Constitution states that “[n]o person shall be compelled in any criminal case to give
evidence against himself.” “Both provisions guarantee a defendant the right to be free from self-
incrimination, including the right to silence.” State v. Pinson, 183 Wash. App. 411, 417, 333 P.3d
528 (2014). This right precludes the State from using the defendant’s silence to its advantage
either as substantive evidence of guilt or to invite an inference that the defendant’s silence is an
admission of guilt. State v. Burke, 163 Wash. 2d 204, 217, 181 P.3d 1 (2008).
On the other hand, commenting on a defendant’s demeanor is different than commenting
on his silence. State v. Barry, 183 Wash. 2d 297, 307-08, 352 P.3d 161 (2015). A comment on the
defendant’s demeanor does not violate his right to silence. Id. at 308; see also State v. Easter,
130 Wash. 2d 228, 243, 922 P.2d 1285 (1996).
Here, Gilmore did not remain silent at any point during the police interview. Therefore,
the prosecutor’s comment cannot constitute a comment on silence and did not violate Gilmore’s
Fifth Amendment right to silence.
Gilmore also claims that the prosecutor violated his right to a fair trial by commenting on
his demeanor. He cites Barry to support his argument, but that case is inapplicable. Barry
considered whether the jury could appropriately consider the defendant’s courtroom demeanor as
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evidence. 183 Wash. 2d at 301. Here the prosecutor’s comment referenced Gilmore’s demeanor
during the police interview. Further, the prosecutor argued that Gilmore’s responses were not
credible or convincing based on his accompanying demeanor. Such an argument falls within the
wide latitude granted to prosecutors when arguing from the evidence.
We hold that the prosecutor’s comment about how Gilmore acted while being
interviewed was not improper.
c. Closing Argument
In SAG #5, Gilmore asserts that the prosecutor improperly attempted to evoke an
emotional response from the jury during closing argument by referring to MB’s demeanor while
she was testifying. The prosecutor did argue that MB was reluctant to testify and that it was
difficult for her to testify. But it is not improper to discuss a victim’s demeanor in discussing her
credibility. See State v. Ortega-Martinez, 124 Wash. 2d 702, 714, 881 P.2d 231 (1994) (stating that
a jury may evaluate the victim’s demeanor in a rape case). We hold that the prosecutor’s
argument regarding MB’s demeanor did not constitute misconduct.
d. Leading Questions
In SAG #6, Gilmore asserts that over his objections, the prosecutor was allowed to ask
MB leading and suggestive questions in violation of ER 611. Gilmore objected to only one
question during MB’s direct examination on the ground that it was leading. The trial court
overruled the objection because limited leading is allowed with child witnesses. Gilmore does
not identify any other alleged leading questions.
The use of leading questions in the examination of a child witness is within the trial
court’s discretion. State v. Canida, 4 Wash. App. 275, 279, 480 P.2d 800 (1971). We hold that to
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No. 47693-2-II
the extent the prosecutor used leading questions to examine MB, those questions did not
constitute misconduct.
e. Prosecutorial Vindictiveness
In SAG #20, Gilmore asserts prosecutorial vindictiveness because (1) the State filed an
amended information adding new charges on the first day of trial, (2) the prosecutor attempted to
provoke an emotional response and aggravate him during cross-examination, and (3) the
prosecutor told the jury during closing argument that he was not telling the truth and lying.
Due process principles prohibit prosecutorial vindictiveness, which occurs when the State
acts against a defendant in response to the defendant’s exercise of his constitutional or statutory
rights. State v. Korum, 157 Wash. 2d 614, 627, 141 P.3d 13 (2006). Prosecutorial vindictiveness
includes the intentional filing of a more serious crime in retaliation for a defendant’s lawful
exercise of a right. State v. Bonisisio, 92 Wash. App. 783, 790, 964 P.2d 1222 (1998). But to
prevail on such a claim, a defendant must present evidence of actual vindictive motivation. State
v. McDowell, 102 Wash. 2d 341, 344, 685 P.2d 595 (1984).
Gilmore has identified no evidence in the record showing actual vindictiveness by the
State. Therefore, we reject this argument.
6. Ineffective Assistance of Counsel Claims (SAG #2, #13, #14)
a. Legal Principles
As stated above, to prevail on an ineffective assistance of counsel claim, the defendant
must show both that (1) defense counsel’s representation was deficient and (2) the deficient
representation prejudiced the defendant. Grier, 171 Wash. 2d at 32-33. We presume that defense
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No. 47693-2-II
counsel’s assistance was effective until the defendant shows in the record the absence of
legitimate or tactical reasons supporting counsel’s conduct. Id. at 33-34.
b. Failure to Move to Suppress Evidence
In SAG #13, Gilmore asserts that his defense counsel provided deficient representation
by failing to file a motion to suppress evidence obtained in exploratory searches of his computer.
But the State obtained a warrant to search Gilmore’s computer, and he does not challenge the
validity of the warrant. Therefore, defense counsel had no basis for filing a motion to suppress
evidence discovered in the search. We reject Gilmore’s ineffective assistance of counsel claim
on this basis.
c. Failure to Object to Experts
In SAG #14, Gilmore asserts that his defense counsel provided deficient representation
by failing to object to expert testimony from Mangahas and Baker based on their lack of
qualifications. But Mangahas and Baker did not provide expert testimony. Mangahas testified
about her forensic interview with MB. She did not express any expert opinions about what MB
told her, other than possibly the grooming testimony discussed below. Baker testified about his
investigation and his search of Gilmore’s computers, but he did not provide any expert testimony
beyond the basic expertise of a law enforcement officer. Therefore, there was no testimony that
was objectionable as incompetent expert testimony. We reject Gilmore’s ineffective assistance
of counsel claim on this basis.
d. Failure to Object to Comments on Grooming
In SAG #2, Gilmore asserts that his defense counsel provided deficient representation by
failing to object to testimony and closing argument about the grooming process and techniques
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No. 47693-2-II
because the witnesses who testified did not have training or knowledge on this subject.
Mangahas testified about grooming and the prosecutor emphasized that testimony in closing
argument. But Mangahas testified that she did have training and/or experience in grooming
behavior, and she provided a detailed description of such behavior. There is no indication that
the trial court would have excluded her testimony or the prosecutor’s argument if defense
counsel had objected based on a lack of qualifications. We reject Gilmore’s ineffective
assistance of counsel claim on this basis.
E. IMPOSITION OF LFOS
Gilmore argues for the first time on appeal that the trial court erred by imposing a
discretionary LFO without making an inquiry into his ability to pay. We exercise our discretion
to consider Gilmore’s challenge to the discretionary LFO,4 and we hold that the trial court did
assess Gilmores’s ability to pay and therefore did not err in imposing the discretionary LFO.
Before imposing discretionary LFOs, the trial court must make an individualized inquiry
into the defendant’s present and future ability to pay. Former RCW 10.01.160(3) (1995); State v.
Blazina, 182 Wash. 2d 827, 837-38, 344 P.3d 680 (2015). Including boilerplate language in the
judgment and sentence stating that the defendant has an ability to pay does not satisfy this
requirement. Blazina, 182 Wash. 2d at 838.
Gilmore argues that the trial court made no inquiry into his ability to pay. But the record
indicates that the trial court asked the State whether Gilmore had the ability to pay discretionary
LFOs. And the State responded that Gilmore would have the ability to pay because he indicated
that he would be working after his release. Gilmore does not argue that this inquiry was
4
State v. Blazina, 182 Wash. 2d 827, 830, 834-35, 344 P.3d 680 (2015).
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No. 47693-2-II
insufficient. Accordingly, we affirm the trial court’s imposition of the $1,135 discretionary LFO
for court-appointed attorney fees and defense costs.
F. APPELLATE COSTS
Gilmore asks that this court refrain from awarding appellate costs if the State seeks them.
Under former RCW 10.73.160(1) (1995), we have discretion whether or not to award appellate
costs to the State as the prevailing party in this case. RAP 14.2; State v. Sinclair, 192 Wash. App.
380, 389-90, 367 P.3d 612, review denied, 185 Wash. 2d 1034 (2016). We exercise our discretion
to waive appellate costs in this case.
CONCLUSION
We affirm Gilmore’s convictions and the imposition of the discretionary LFO.
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.
MAXA, A.C.J.
We concur:
WORSWICK, J.
MELNICK, J.
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