                                                                   FILED 

                                                                APRIL 22,2014 

                                                         In the Office of the Clerk of Court 

                                                        WA State Court of Appeals, Division III 




         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                            DIVISION THREE 


STATE OF WASHINGTON,                          )        No. 30638-1-III
                                              )
                     Respondent and           )
                     Cross-Appellant,         )
                                              )
             v.                               )        UNPUBLISHED OPINION
                                              )
KURT DEAN BONSER,                             )
                                              )
                     Appellant.               )

      ANTOSZ, J. *    Kurt Dean Bonser appeals his conviction for third degree rape of a

child. He contends that the prosecutor engaged in misconduct during closing argument

by focusing the jury's attention on Mr. Bonser's failure to testifY. He also contends that

the trial court improperly imposed an indeterminate term of community custody. We

conclude that the prosecutor did not engage in misconduct during closing argument and

affIrm Mr. Bonser's conviction. But, we agree that the court exceeded statutory authority

by imposing an indeterminate term of community custody and remand for correction.



      * Judge John M. Antosz is serving as judge pro tempore of the Court of Appeals
pursuant to RCW 2.06.150.
No. 30638-1-111
State v. Bonser


                                           FACTS

       RMJ gave birth to a son on March 1,2008. Mr. Bonser acknowledged that he was

the child's father. Because RMJ was born on January 3, 1992, the State concluded that

she was likely less than 16 at the time of conception and charged Mr. Bonser with third

degree rape of a child on or about May 1 to June 30, 2007.

       At trial, RMJ told the jury about her relationship with Mr. Bonser. She first met

Mr. Bonser when she was 11 years old. By the time she was 15 or 16, the two began

living together and became more than friends. They had sexual intercourse during the

time they lived together. She could not remember if she had sexual intercourse with Mr.

Bonser during the months of May or June 2007, but said that they did not live together

during her pregnancy. During this time, RMJ used drugs on a daily basis and sometimes

the drugs caused her to slip in and out of reality.

       RMJ testified that when she first met Mr. Bonser, she lied and told him she was

16. Sometime later, police officers came to a hotel where she was staying. Mr. Bonser

was present. When the police entered they said, "[W]hat are you doing running around

with her, don't you know she's twelve?" Report of Proceedings (RP) at 292. According

to RMJ, Mr. Bonser heard the police tell him that she was 12. Eventually, Mr. Bonser

asked RMJ why the police said that she was 12. RMJ testified that she could not



                                               2

No. 30638-I-III
State v. Bonser


remember how she responded except that she assured him she was not 12, but 16.

Afterward, RMJ avoided the subject of her age with Mr. Bonser and others. RMJ's true

age was revealed after she became pregnant.

       Mr. Bonser did not testify. The evidentiary portion of the trial ended. Mr. Bonser

proposed the affirmative defense instruction that he reasonably believed that RMJ was at

least 16 based on RMJ's statements of her age. The State objected to this proposed

instruction, explaining that Mr. Bonser did not testify at trial, so there was no evidence of

his reasonable belief that RMJ was at least 16 years of age. The State argued that it

would have presented a much different case if it had believed that the court would give

the affirmative defense instruction. The State added that if the trial court determined that

the instruction was allowed, the case should be reopened.

       The trial court instructed the jury on the affirmative defense. The instruction

included:

               It is not a defense to the charge of rape of a child in the third degree
       that at the time of the acts the defendant did not know the age of RMJ or
       that the defendant believed her to be older.
               It is, however, a defense to the charge of rape of a child in the third
       degree that at the time of the acts the defendant reasonably believed that
       RMJ was at least sixteen years of age based upon the declarations as to age
       byRMJ.




                                              3

No. 30638-1-111
State v. Bonser


Clerk's Papers (CP) at 118. The court also instructed the jury on the absence of testimony

by Mr. Bonser. Instruction 9 declared, "The defendant is not required to testifY. You

may not use the fact that the defendant has not testified to infer guilt or to prejudice him

in any way." CP at 119.

       In closing argument, defense counsel argued that RMJ continually lied about her

age, so it was reasonable for Mr. Bonser to think that she was over 16 at the time they had

intercourse. In rebuttal, the prosecutor told the jury,

               See, that's the thing. This-this law puts the burden on the adult to
       figure out the age of the younger person, except--except for the one
       exception of when they say something to them about their age. We have
       evidence of that, that she said something and [defense counsel] emphasizes
       that a lot in doing his job, which is probably a great way to do it; but the
       thing that he ignores is that we don't have any evidence of what he actually
       believed and all of the evidence.

RP at 484-85. Defense counsel objected, asking the court to review instruction 9 with the

jury. The court overruled the objection.

       The prosecutor continued,

       The evidence shows that no reasonable person would have-would have
       actually believed she was sixteen in his shoes, from his point of view, given
       the history, given what the police officers told him, given her appearance.
       How old did she look when she came in here?
               [Defense counsel] says there's no evidence that he ever-that Mr.
       Bonser ever heard the officer say that she was twelve. Well, actually that's
       what all of the evidence is. She says the police came in and told Mr. Bonser


                                              4

No.30638-1-III
State v. Bonser


       she was twelve. It's uncontroverted, no other evidence on that point, that is
       the evidence in this case.

RP at 485. The jury found Mr. Bonser guilty of third degree rape. The court imposed a

standard sentencing range of 60 months, the maximum term for this offense. The court

also imposed community custody for "any period of earned early release." CP at 150.

       Mr. Bonser appeals.

                                       ANALYSIS

       Prosecutorial Misconduct. Mr. Bonser contends that the prosecutor's statement

regarding reasonable belief is a comment on Mr. Bonser's right to silence at trial. He

argues that he was the only person who could have presented testimony on the issue of his

reasonable belief, so the statement refers to him and his right to silence. We disagree.

       A defendant claiming prosecutorial misconduct bears the burden of establishing

that the prosecutor's conduct was both improper and prejudicial. State v. Korum, 157

Wn.2d 614,650, 141 P.3d 13 (2006). "In order to prove the conduct was prejudicial, the

defendant must prove there is a substantial likelihood the misconduct affected the jury's

verdict." [d.

       Both the United States Constitution and the Washington Constitution grant a

defendant the right against self-incrimination. See State v. Easter, 130 Wn.2d 228,236,

922 P.2d 1285 (1996). The right against self-incrimination prohibits the State from

                                             5

No.30638-1-II1
State v. Bonser


forcing a defendant to testify at trial. ld. Moreover, the State may not "make closing

arguments relating to a defendant's silence to infer guilt from such silence." ld. A

prosecutor violates a defendant's right against self-incrimination if the prosecutor makes

a statement'" of such character that the jury would "naturally and necessarily accept it as

a comment on the defendant's failure to testify."'" State v. Fiallo-Lopez, 78 Wn. App.

717, 728,899 P.2d 1294 (1995) (quoting State v. Ramirez, 49 Wn. App. 332, 336, 742

P.2d 726 (1987». A prosecutor may argue that evidence is undisputed as long as he or

she does not identify the nontestifying defendant as the only person who could dispute the

evidence. ld. at 729.

       A prosecutor has wide latitude in closing argument to draw reasonable inferences

from the evidence and to express such inferences to the jury. State v. Hoffman, 116

Wn.2d 51,94-95,804 P.2d 577 (1991). "When a defendant advances a theory

exculpating him, the theory is not immunized from attack. On the contrary, the evidence

supporting a defendant's theory of the case is subject to the same searching examination

as the State's evidence." State v. Contreras, 57 Wn. App. 471,476, 788 P.2d 1114

(1990). Once a defendant presents evidence, a prosecutor can fairly comment on what

was not produced. Id.




                                             6

No.30638-I-III
State v. Bonser


       Here, the prosecutor's statements are not a violation of Mr. Bonser's right to

remain silent. The prosecutor's statements in closing argument regarding reasonable

belief do not address Mr. Bonser's silence or infer guilt for such silence. The statements

are not the type a jury would accept as a comment on Mr. Bonser's failure to testifY. Nor

do the prosecutor's statements refer to or imply that Mr. Bonser is the only person who

could provide evidence on his reasonable belief ofRMJ's age. A defendant's state of

mind, including reasonable belief, may be inferred from circumstantial evidence. See

State v. Bryant, 89 Wn. App. 857, 870-71, 950 P.2d 1004 (1998). The jury could

determine Mr. Bonser reasonably believed RMJ was 16 based on circumstantial evidence,

such as RMJ's statements to Mr. Bonser regarding her age.

       Instead, the prosecutor's statements refer to the affirmative defense asserted by

Mr. Bonser and the requirement that the defendant must prove by a preponderance of the

evidence that at the time of the offense the defendant reasonably believed the alleged

victim to be the age alleged by the victim. See RCW 9A.44.030(2).

       Furthermore, Mr. Bonser invited the prosecutor's statements by commenting on

Mr. Bonser's belief during his closing statement. Defense counsel argued, "Given the

circumstances, given the lifestyle, given the misrepresentations and the lies is it

reasonable for [Mr. Bonser] to think that she was over sixteen? Yes. Unequivocally



                                              7

No.30638-1-III
State v. Bonser


yes." RP at 469. Once Mr. Bonser identified the evidence that showed reasonable belief,

the prosecutor was able to comment on what evidence was not produced.

       Therefore, the prosecutor's statements in closing argument do not address Mr.

Bonser's silence or infer guilt for such silence. The prosecutor's argument was not

improper. The trial court did not err in overruling Mr. Bonser's objection in this matter.

Mr. Bonser failed to establish prosecutorial misconduct based on the closing argument.

       Community Custody. Mr. Bonser contends that the court exceeded its statutory

authority by imposing an indeterminate term of community custody. The State concedes

this issue. We agree.

       A sentencing court's application ofthe community custody provisions of chapter

9.94A RCW is reviewed de novo. State v. Motter, l39 Wn. App. 797, 801, 162 P.3d

1190 (2007).

      "A trial court may impose only a sentence which is authorized by statute." State v.

Barnett, 139 Wn.2d 462, 464, 987 P .2d 626 (1999). Third degree rape of a child is a class

C felony, for which the maximum sentence is five years. RCW 9A.20.021(c);

RCW 9A.44.079(2). In sentencing a sex offender, the court is generally required to

impose a three-year term of community custody. RCW 9.94A.701(1)(a).




                                             8

No.30638-1-II1
State v. Bonser


      A community custody term specified by RCW 9.94A.701 shall be reduced when

the offender's combined term of confinement and community custody exceed the

statutory maximum for the crime. RCW 9.94A.701(9). "The [Sentencing Reform Act of

1981, chapter 9.94A RCW] requires courts to impose a 'determinate sentence,' defined as

'a sentence that states with exactitude the number of actual years, months, or days of total

confinement, of partial confinement, [or] of community custody.'" State v. Winborne,

167 Wn. App. 320,324 n.4, 273 P.3d 454 (quoting RCW 9.94A.030(18)) (some

alterations in original), review denied, 174 Wn.2d 1019,282 P.3d 96 (2012).

      The trial court exceeded its statutory authority by imposing an indeterminate term

of community custody. Mr. Bonser's term of community custody equal to "any period of

earned early release" is an indeterminate sentence. CP at 150. Remand is appropriate for

correction of the community custody term in the judgment and sentence.

      Mr. Bonser's conviction is affirmed, but this case is remanded to the trial court to

correct the community custody term.




                                             9

No. 30638-1-111
State v. Bonser


      A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to

RCW 2.06.040.


                                         AntosW;;a~
WE CONCUR:




  7hdL£qj
Siddoway, C.J.
                         I   eg.





                                            10 

