                                                                                             I" ILEA
                                                                                        COURTO
                                                                                           DIVISION II B
                                                                                      2015,> N 13
                                                                                                  41111: 14
                                                                                      STATE OF
                                                                                                 WASHINGTON
       IN THE COURT OF APPEALS OF THE STATE OP


                                                DIVISION II


STATE OF WASHINGTON,                                                              No. 44704 -5 -II



                                        Respondent,



          v.

                                                                          UNPUBLISHED OPINION

 SILVERIO SANTIAGO,



                                        Appellant.




         WORSWICK, P. J. —       Silverio Santiago appeals his third degree child molestation


conviction. He argues that ( 1) the trial court violated his right to confront witnesses by not

                                                              witness about a separate sexual encounter; ( 2)
allowing him to        cross -examine   the complaining


the State committed prosecutorial misconduct by misstating the burden of proof, encouraging the

jury   to disbelieve Santiago,    and    improperly bolstering      evidence; (   3) insufficient evidence


supports his child molestation conviction; and ( 4) the trial court violated his right to counsel by

imposing court- appointed attorney fees without the support of evidence that he could pay.

Because ( 1) the error in restricting Santiago from cross -examining the complaining witness was

harmless, ( 2) the prosecutor did not commit reversible misconduct, (3) sufficient evidence


supports his conviction, and ( 4) the trial court did not err by imposing attorney fees, we disagree

and    affirm   the   conviction and   imposition    of   fees.
No. 44704 -5 - II



                                                     FACTS


A.       Encounter with MM


         Silverio Santiago   was a   friend   of   MM'   s   family, 1 and was the boyfriend of her older sister.

MM,    who was   fourteen, invited 21-   year -old
                                                     Silverio2
                                                                   to her house     when no one else was   home.

They kissed and removed some of their clothing. Silverio engaged in sexual intercourse with

MM.


         About a year later, MM told her friend about the encounter with Silverio and another


sexual encounter with his 23- year -old brother, Francisco. MM' s mother learned of the


disclosure and confronted MM. At first, MM admitted to her mother only that she had had a

sexual encounter with a man named Armando. 3 The next day, however, she disclosed to her
mother sexual encounters with        Armando, Francisco,          and   finally   Silverio. MM' s mother alerted


authorities.




         Silverio was charged in an amended information with one count of third degree child

molestation and one count of third degree child rape. At Silverio and Francisco' s request, the


court joined Silverio' s trial with that of Francisco, who was charged with the same crimes


against MM as Silverio was.




1 MM, a minor, is identified here by her initials to protect her privacy.

2 Because Silverio Santiago and his brother Francisco Santiago share the same last name, we
refer to them by their first names for clarity. We intend no disrespect.
3
    Any criminal proceedings against Armando remained separate from the Santiagos' trial.


                                                             2
No. 44704 -5 -II



B.        Pretrial Motion: Evidence ofMM's Encounter with Armando

           At a pretrial hearing, Silverio argued that MM' s statements regarding her alleged sexual

encounters with Armando should be admitted. Silverio acknowledged that such testimony may

be barred under the rape shield statute,4 but argued that its probative value outweighed its

prejudicial effect. Silverio also argued that the testimony was relevant to MM' s credibility

regarding whether she, in fact, had sexual intercourse with Silverio or whether she made up the

allegations regarding Silverio in response to her mother' s continued questioning. According to

Silverio, MM first disclosed the encounter with Armando to her mother, then later revealed the

encounters with the Santiagos. Silverio further argued that MM' s statement was admissible as a

prior inconsistent statement and that he needed to use it as impeachment to show that her story

changed. Silverio also wanted to demonstrate that MM' s descriptions of the three encounters

 with Armando and both Santiagos) were identical except for the location of the encounters,

                                                                      5
which     fact   would   have further impeached her credibility.




4 RCW 9A.44. 020. The rape shield statute generally excludes evidence relating to the past
sexual behavior of the complaining witness. It is designed to guard against the prejudicial
inference that a victim' s chastity and veracity are related. State v. Sheets, 128 Wn. App. 149,
155, 115 P. 3d 1004 ( 2005).

5
     Silverio'   s counsel argued, "   We have a young lady who, other than the issue of geography, is
giving the exact same description of all three sexual encounters. She doesn' t really distinguish
between them. The          conversation    is the   same.   The   condoms are   the   same.   The - - how the

clothes come off is the same. Everything is the same. And in order for the jury to understand
that      giving the same story, they have to be presented
        she' s                                                            with all   three stories."   Verbatim
Report of Proceedings ( VRP) ( Feb. 25, 2013) at 18.




                                                             3
No. 44704 -5 -II



           The State argued that MM' s testimony about the three incidents was not identical, as

Silverio had claimed. 6 The State acknowledged that there was a " level of similarity" between the

three encounters as described, but that MM' s descriptions of the encounters were not exactly the

same.     Verbatim Report    of   Proceedings ( VRP) ( Feb. 25, 2013) at 24.


           MM stated that her sexual encounter with Armando occurred after the encounter with


Silverio. Because the encounter with Armando occurred after the encounter with Silverio, the


court ruled that it was not past sexual behavior and the rape shield law did not apply. However,

the trial court ruled that the revelation about MM' s encounter with Armando was unfairly

prejudicial, and there was nothing so unusual about the similarities between the encounters as

described by MM to make the probative value of those similarities outweigh the prejudice.

C.         Trial Testimony

           In compliance with the trial court' s ruling, Santiago did not present evidence of MM' s

description of her encounter with Armando. However, MM testified on cross -examination that


she initially lied by omission to her mother about her sexual encounters by not telling her about

Silverio until after further questioning from her mother and after revealing her encounter with



6
    The                  With Silverio, they [ MM and Silverio] were texting. He came over to
          prosecutor stated, "


her house. They started kissing. They were on the living room couch. He asked if she wanted
to have sex. She said sure. They had sex on the couch. He used a condom, put his penis in her
vagina....      With Francisco,     she says   they   were ...   supposed to go to the [ Kitsap County Fair],
but they went bowling instead. She says her sister and [ Silverio] left, leaving her and Francisco
alone at Evergreen Park, parked in a car. They were kissing. He asked if she wanted to have
sex. She said sure. They had sex in the back seat of the car. He used a condom, put his penis in
her vagina. Armando, she says she was at Armando' s house practicing for a dance. He offered
to take her home. On the way home, he parked the car. They began kissing, asked if she wanted
to have sex. She said, It' s okay with me. And again, he was wearing a condom, puts his penis in
her   vagina."    VRP ( Feb. 25, 2013) at 23 -24.



                                                            4
No. 44704 -5 - II



Francisco. She also testified on cross -examination. that her description of the encounter with


Silverio was very similar to her description of the encounter with Francisco.

         Silverio did not testify at trial. Detective Stroble testified about a phone call he made to

Silverio, in which Silverio told him that " he knew who [ MM] was; that he ultimately ended up at

her   mom' s house;      that the two       of them         kissed; that they ...     ended up naked on the couch and, at

some point,      decided      not   to   have   sex   for   a couple of reasons."       VRP ( Feb. 28, 2013) at 250.


Detective Stroble also testified that Silverio said he " felt [MM] was obsessed with him; that she

called   him   all   the time to tell him that          she    loved him    and called    him ' baby.'"   VRP ( Feb. 28,


2013) at 253.


         Unlike Silverio, Francisco admitted at trial that he had sexual intercourse with MM but

presented the affirmative defense that MM had misrepresented her age to him.

D.       Motion To Dismiss Child Molestation Charge


         At the close of evidence, Silverio moved to dismiss the child molestation count because


the State had presented no evidence of sexual contact apart from kissing and sexual intercourse,

so there was no evidence supporting a child molestation charge that did not also support the child

rape charge. The trial court denied the motion.


E.        Closing Arguments

         In closing arguments, the State reminded the jury multiple times that Silverio had no

burden    of proof.      It   argued,     for   example: "      Silverio has no burden of proof. None. The burden of


proof in Silverio' s case is completely and totally on the State of Washington. The Defense can

freely   offer   theories.     They don' t have         to    prove   any   of   these theories."   VRP ( Feb. 28, 2013) at


327. In a set of slides shown during the State' s closing argument, many of the slides were



                                                                      5
No. 44704 -5 -II



clearly labeled " Silverio Santiago"          or " Francisco      Santiago."       Clerk' s Papers ( CP) at 103 -09.


However, the final slide, labeled " Conclusion" and not indicating which brother or brothers it

applied   to,   said: "   Hold the defense to its burden."            CP at 108.


          Additionally in         closing, the State   argued   to the   jury: " Now, the    presumption of


innocence, though, isn' t the same as the presumption of truthfulness or the presumption of


honesty or the presumption of credibility. You may not have heard of those, because they don' t

exist. You don' t have to go back in that jury room and say, well, they told me this happened, so

that must be the way it happened. No. You judge their credibility just like you would judge

everybody else' s credibility. You judge Francisco' s credibility, and you judge the credibility of

Silverio through the         statements    that he   made   to Detective [ Stroble]."      7 VRP (Feb. 28, 2013) at

324.


          Finally, the      slides shown    during the   State'   s   closing   argument asked    the jury:   ``Do   you


believe [ MM] ?" CP          at   108.   The State also asked the jury to consider why MM would tell the

truth about her encounter with Francisco but fabricate an encounter with Silverio. The slides

also laid out a case for believing MM, reminding the jury of her demeanor and lack of motive to

lie. The slides encouraged the jury a few times, worded in various ways, to weigh MM' s

credibility against that of the Santiagos.

          Silverio argued in closing that MM' s description of her encounters with Francisco and

Silverio were very similar, which undermined her credibility. He also reminded the jury that

MM had initially failed to tell her mother about Silverio, even after telling her about Francisco.



7 The prosecutor mentioned Detective Swayze here, but Silverio spoke only to Detective Stroble.
The prosecutor appears to have misspoken by naming the wrong detective.
No. 44704 -5 -II



         Silverio    also   argued: "   So what about the fact that it appears [ MM] didn' t lie about having

sex with     Francisco?     It does appear that way. He testified he had sex with her. She testified he

had   sex with    her. Does that      make   her   accusation against [    Silverio]   more   believable? No." VRP


 Feb. 28, 2013)      at   352.   Apparently in     response,   the   prosecution argued: "     We know Francisco


had   sex with [ MM].       We know she was telling the truth about that. Why she would come and

make    this up   about    Silverio, I don' t know." VRP ( Feb. 28, 2013) at 373.


         A jury found Silverio guilty of third degree child molestation, but failed to reach a verdict

as to the third degree child rape charge. 8 Silverio moved for arrest of judgment j/udgment

notwithstanding the verdict under CrR 7.4, arguing that the jury could not have found him guilty

of third degree child molestation if it had not found him guilty of rape, because the lack of

verdict on the rape charge showed that the jury had not found that Silverio had sexual intercourse

with MM. He argued that, absent a finding of sexual intercourse, there was no evidence of any

sexual contact.



F.       Assessment ofFees

         At sentencing, the trial        court   imposed $ 1, 13.5 in    court- appointed     attorney fees   and $   1, 000


in   other   legal financial     obligations ( LFOs).    The court entered a finding in the judgment and

sentence that Silverio had the ability or likely future ability to pay these LFOs. The trial court

did not address Silverio' s current or future ability to pay these LFOs on the record, and Silverio

did not object to the finding.

             Silverio appeals.




8 The jury failed to reach a verdict as to either count against Francisco.

                                                               7
No. 44704 -5 -II



                                                   ANALYSIS


             I. RIGHT To PRESENT A DEFENSE BY CROSS -EXAMINING ADVERSE WITNESSES


        Silverio argues that the trial court violated his Sixth and Fourteenth Amendment rights

when it refused to let him cross -examine MM about her encounter with Armando. U.S. CONST.

amends. VI, XIV. Silverio refers to this allegation in his brief as his right to " confront"

witnesses, but his legal contentions relate to his right to present a defense, not his confrontation

clause rights. We disagree that his right to present a defense was violated because the error was

harmless.


A.      Standard ofReview

        The federal and state constitutions guarantee the right to present a defense. State v.

Wittenbarger, 124 Wn. 2d 467, 474, 880 P. 2d 517 ( 1994); U. S. CONST. amends. V, VI, XIV;


WASH. CONST.       art.   I, § 22. But this constitutional right is not absolute and does not extend to


irrelevant or inadmissible evidence. State v. Maupin, 128 Wn.2d 918, 925, 913 P. 2d 808 ( 1996).

B.      Sixth Amendment Violation: Harmless Error


        1.    Victim 's Statements Admissible


        Both the federal and state constitutions protect the right of a defendant to present a

defense, which includes meaningful cross -examination of adverse witnesses. U. S. CONST.

amend   VI; WASH. CONST.         art.   I, § 22, see Washington v. Texas, 388 U. S. 14, 17 -19, 87 S. Ct.


1920, 18 L. Ed. 2d 1019 ( 1967).          But this right is not absolute. State v. Darden, 145 Wn.2d 612,

620, 41 P. 3d 1189 ( 2002). The defendant' s right to present a defense does not extend to


presenting otherwise inadmissible evidence. State v. Aguirre, 168 Wn.2d 350, 362 -63, 229 P. 3d

669 ( 2010). If evidence is relevant and otherwise admissible, the burden shifts to the State to




                                                          8
No. 44704 -5 -II


show that the evidence is so prejudicial as to disrupt the fairness of the fact -finding process.

State v. Jones, 168 Wn.2d 713, 720, 230 P. 3d 576 ( 2010).


          Here, Silverio sought to introduce evidence, of MM' s original statement to her mother

that she had a sexual encounter only with a man named Armando. He argued that her description

of the sexual encounter with Armando suggested that she fabricated the description of the

encounter with Silverio in two respects. First, the fact that she initially told her mother about

Armando but failed to tell her about the Santiagos suggested that she had fabricated the story

about Silverio in response to her mother' s continued questioning. Therefore, the testimony

would reveal prior inconsistent statements. Second, he argued that her description of the

encounter with Armando was identical to her description of her encounters with the Santiagos,

which undermined her credibility.

          This evidence would have been relevant for the reasons Silverio identified: it would have

tended,to show that MM described a sexual encounter to her mother before she told her about the

Santiagos; it also would have tended to show that MM' s description of all three sexual

encounters bore similarities.


          Furthermore, the evidence was admissible: the trial court found that the rape shield

statute   did   not   apply,   and   the   parties   do   not challenge   this ruling. The   evidence was also
No. 44704 -5 -II



admissible under the ER 403 balancing test.9 The probative value of the evidence was not

substantially   outweighed         by the   danger   of unfair prejudice.   ER 403. The evidence had probative


value regarding MM' s veracity, because it demonstrated her inconsistent reporting about the

sexual encounters and demonstrated that she delayed telling her mother about the Santiagos even

after she told her about Armando. Also, there was very little danger of unfair prejudice: because

MM was underage and unable to consent, evidence of her sexual encounters did not tend to show

her character for promiscuity, but instead showed sexual encounters to which MM could not

legally   consent.    State   v.   Carver, 37 Wn.      App.   122, 124, 678 P. 2d 842 ( 1984). Therefore, the


danger of unfair prejudice did not substantially outweigh the probative value of this evidence,

and ER 403 was not a bar to its admissibility.

          Because the trial court here excluded relevant and otherwise admissible evidence, we


look to whether this error was harmless.

          2. Harmless Error


          Error of a constitutional magnitude is harmless if we are convinced beyond a reasonable


doubt that any reasonable jury would have reached the same result without the error. Jones, 168



9 In State v. Aguirre, our Supreme Court held that the scope of the right to present a defense
  does not extend to the introduction of otherwise inadmissible evidence....    The admissibility of
evidence under the rape shield statute, in turn, `is within the sound discretion of the trial court. "'
168 Wn.2d 350, 363, 229 P. 3d 669 ( 2010) ( quoting                 State v. Hudlow, 99 Wn.2d 1, 17, 659 P. 2d
514 ( 1983) (   other citations omitted)).           In State v. Jones, decided in the same term as Aguirre, our
Supreme Court held that alleged violations of the Sixth Amendment right to present a defense
are reviewed     de   novo.    168 Wn. 2d 713, 719, 230 P. 3d 576 ( 2010), see also State v. Iniguez, 167
Wn.2d 273, 280 -81, 217 P. 3d 768 ( 2009).               We follow Aguirre, recognizing that the Sixth
Amendment right to present a defense does not extend to inadmissible evidence, and we review a
trial court' s ruling on admissibility of evidence for an abuse of discretion.



                                                               10
No. 44704 -5 -II



Wn.2d at 724. We hold that this error was harmless beyond a reasonable doubt and does not

require reversal.




         Silverio sought to present two arguments to the jury by presenting the evidence of MM' s

story about Armando: first, he sought to show that she delayed telling her mother about her

encounter with.the Santiagos, although she described another sexual encounter earlier. Second,


he   sought   to   show   that her   stories were   identical. Silverio was able to make both of these points


without presenting the excluded testimony. Silverio was able to show that MM' s story changed

over time. He was able to cross -examine MM about her initial lie by omission to her mother

about her sexual activity. Similarly, Silverio was able to show the jury that MM' s description of

her encounters with Francisco and Silverio were very similar. Therefore, Silverio was able to

make both arguments without MM' s testimony about Armando. We are convinced beyond a

reasonable doubt that a reasonable jury would have reached the same result without the error.

                                          II. PROSECUTORIAL MISCONDUCT


         Silverio argues that the prosecutor committed misconduct on four occasions in closing

argument and that the cumulative effect of these incidents requires reversal. We disagree.

A.       Standard ofReview

         The Sixth and Fourteenth Amendments to the United States Constitution and article I,

section 3 and article I, section 22 of the Washington Constitution guarantee the right to a fair

trial. State   v.   Finch, 137 Wn. 2d 792, 843, 975 P. 2d 967 ( 1999).        Prosecutorial misconduct may

deprive a defendant of his constitutional right to a fair trial. State v. Davenport, 100 Wn.2d 757,

762, 675 P. 2d 1213 ( 1984).




                                                            11
No. 44704 -5 -II



        To prevail on a prosecutorial misconduct claim, a defendant must show that in the

context of the record and all the trial circumstances, the prosecutor' s conduct was improper and

prejudicial.    State   v.   Thorgerson, 172 Wn.2d 438, 442, 258 P. 3d 43 ( 2011).           We consider the


prosecutor' s alleged improper conduct in the context of the total argument, the issues in the case,

the evidence addressed in the argument, and the jury instructions. State v. Anderson, 153 Wn.

App.   417, 430, 220 P. 3d 1273 ( 2009). To show prejudice, a defendant must show a substantial


likelihood that the         misconduct affected    the   jury verdict.     Thorgerson, 172 Wn.2d   at   442 -43. The


cumulative effect of multiple or repeated incidents of prosecutorial misconduct can warrant


reversal. State v. Weber, 159 Wn.2d 252, 279, 149 P. 3d 646 ( 2006).

         If a defendant fails to object to misconduct at trial, he waives the issue unless he

establishes that the misconduct was so flagrant and ill-intentioned that an instruction could not

have   cured   the    prejudice.     Thorgerson, 172 Wn.2d         at   443. We focus less on whether the


prosecutor' s misconduct was flagrant and ill- intentioned and more on whether the resulting

prejudice could have been cured. State v. Emery, 174 Wn.2d 741, 762, 278 P.3d 653 ( 2012).

We consider whether there is a substantial likelihood that the misconduct affected the jury' s

verdict. State v. Dhaliwal, 150 Wn.2d 559, 578, 79 P. 3d 432 ( 2003).

B.       No Reversible Prosecutorial Misconduct


         1.    Burden Shifting

         Silverio argues that the prosecutor improperly shifted the burden of proof to Silverio

when   he     asked   the   jury   to " hold the defense to   its burden." See CP at 108. This phrase appeared


on a slide shown to the jury during closing arguments. This statement apparently referred to

Francisco' s charges. Francisco had argued the affirmative defense that MM had misrepresented




                                                              12
No. 44704 -5 -I1



her   age   to Francisco.        Silverio argues that this slide failed to differentiate between the two cases,


and therefore, the prosecutor misled the jury into thinking that Silverio, who argued no

affirmative defense, had the burden of proof. We disagree.


            Taking the prosecutor' s argument and the slide in the whole context of the argument,

evidence, and jury instructions, the prosecutor did not commit misconduct. Throughout most of

the slide show, each slide clearly bore the name of the defendant to whom it referred in large

letters   at   the   top ( for   example, "   Silverio Santiago"    or "   Francisco Santiago" in bold.) See CP at


103 -09. Two slides labeled " Silverio Santiago" clearly stated that " Silverio has no burden of

proof."        CP    at   106. The   prosecutor reiterated   this in his    oral argument: "   Silverio has no burden


of proof. None. The burden of proof in Silverio' s case is completely and totally on the State of

Washington. The Defense can freely offer theories. They don' t have to prove any of these

theories."      VRP ( Feb. 28, 2013) at 327. When he referred to Francisco' s burden of proof, he


explicitly was only referring to Francisco' s case.

            Taken in the context of the entire argument and all the slides, the prosecutor made


abundantly clear that Silverio had no burden of proof. Therefore, the prosecutor did not shift the

burden of proof and, thus, did not commit misconduct.


            2. Presumption ofInnocence

            Silverio also argues that the prosecutor committed misconduct by undermining his

presumption of innocence. The prosecutor argued to the jury in closing that the " presumption of

innocence ...             isn' t the same as the presumption of truthfulness or the presumption of honesty or

the presumption of credibility. You may not have heard of those, because they don' t exist."

VRP (Feb. 28, 2013) at 324. Silverio argues that the presumption of innocence necessarily



                                                               13
No. 44704 -5 -II


equates to a presumption that the defendant told the truth, and that the presumption of innocence


requires the jury to presume the defendant spoke honestly. We disagree.

           When the prosecutor asked the jury to " judge the credibility of Silverio through the

statements       that he   made    to Detective [ Stroble], " 10     and argued that there was no presumption of


honesty, truthfulness, or credibility, he did not commit misconduct. VRP ( Feb. 28, 2013) at 324.

Without citing authority, Silverio argues that the presumption of innocence includes a

presumption of truthfulness, honesty, and credibility. But the law is clear that the jury is the sole

judge     of   credibility. State    v.   Summers, 107 Wn.          App.   373, 389, 28 P. 3d 780 ( 2001); State v.


Dietrich, 75 Wn.2d 676, 677 -78, 453 P. 2d 654 ( 1969); State v. Holbrook, 66 Wn.2d 278, 279,


401 P. 2d 971 ( 1965).         Therefore, the prosecutor' s statements that the jury was to judge Silverio' s

credibility and that the presumption of innocence did not include a presumption of truthfulness

were an accurate statement of the law and did not constitute misconduct.


           3. Mischaracterized Burden ofProof

           Silverio argues that the prosecutor committed misconduct by mischaracterizing the

burden of proof by arguing that the jury must find that the State' s witnesses were lying in order

to   acquit    Silverio. He    points      to the final   slide   in the closing   argument, which asked      the   jury: " Do

you   believe [ MM] ?" CP           at    108. Other slides highlighted that MM had no motive to lie. The


prosecutor in closing argument emphasized the unlikelihood that MM would have wanted to get




10
     As   stated above,      Silverio told Detective Stroble that he knew [ MM]; that he was with MM at
her mom' s house; that the two of them kissed; that they were on the couch naked and, decided
not to have sex. Silverio also told Detective Stroble that Silverio " felt [ MM] was obsessed with
him; that       she called   him   all   the time to tell him that      she   loved him   and called   him ' baby.'"    VRP
 Feb. 28, 2013) at 253.



                                                                   14
No. 44704 -5 - II



the Santiagos in trouble or otherwise fabricate the story. In effect, Silverio argues here that the

prosecutor committed misconduct by encouraging the jury to find that MM was credible. We

disagree.


         This argument is without merit. Silverio mischaracterizes the prosecutor' s argument.


The prosecutor here merely reminded the jury of its duty to weigh conflicting testimony. Such

arguments are valid under our law: a prosecutor may tell the jury that it is free to reject testimony

that conflicts with more credible testimony. State v. Evans, 163 Wn. App. 635, 644, 260 P. 3d

934 ( 2011).     The prosecutor did not commit misconduct, and Silverio' s argument fails.


         4. Improper Bolstering

          Silverio argues that the prosecutor committed misconduct by improperly bolstering the

credibility of the State' s witnesses. He argues that the prosecutor encouraged the jury to convict

Silverio based     on     the   evidence against   Francisco. Silverio fails to show flagrant and ill -


intentioned misconduct, so his claim fails.


          In   rebuttal   to Silverio' s closing argument,"         the   prosecutor argued, "    We know Francisco


had   sex with [ MM].           We know she was telling the truth about that. Why she would come and

make    this up about Silverio, I don' t know."          VRP ( Feb. 28, 2013)        at   373.   Silverio did not object


to this argument. He now argues that this argument improperly bolstered MM' s credibility,

encouraged the jury to convict him based on the evidence against Francisco, and operated as

character evidence attempting to show conformity with MM' s general character for truthfulness.



11
     In his closing   argument,      Silverio   argued: "[   W]hat about the fact that it appears [ MM] didn' t lie
about   having    sex with       Francisco?   It does appear that way. He testified he had sex with her. She
testified he had sex with her. Does that make her accusation against [ Silverio] more believable?
No." VRP ( Feb. 28, 2013) at 352.



                                                               15
No. 44704- 5- 11



        If a defendant fails to object to misconduct at trial, he waives the issue unless he

establishes that the misconduct was so flagrant and ill-intentioned that an instruction could not


have   cured   the   prejudice.   Thorgerson, 172 Wn.2d              at   443. We do not reverse on the basis of a


prosecutor' s   improper       remarks   if they   are "   in direct   response   to   a   defense   argument,"   so long as

they " do not `go beyond what is necessary to respond to the defense and [ they] must not bring

before the jury matters not in the record, or be so prejudicial that an instruction cannot cure

them. "' State       v.   Francisco, 148 Wn.   App.        168, 178 -79, 199 P. 3d 478 ( 2009) ( quoting          State v.

Dykstra, 127 Wn. App. 1, 8, 110 P. 3d 758 ( 2005)).

          Here, assuming without deciding that the comments constituted misconduct, we hold that

Silverio fails to show that the prosecutor committed flagrant and ill-intentioned misconduct. The

State has wide latitude to argue reasonable inferences from the evidence, including inferences of

witness   credibility.       Thorgerson, 172 Wn.2d at 448. The Santiagos requested joinder of their


trials, which guaranteed that the jury would hear evidence against both of them. The prosecutor

responded to Santiago' s argument that MM had told the truth only about her sexual encounter

with Francisco. Had Silverio objected to this argument, the trial court would have had the

opportunity to give a curative instruction that could have neutralized any possible prejudice from

the prosecutor' s challenged statement. Silverio has not shown that arguing such an inference

about MM' s credibility was flagrant and ill-intentioned misconduct. Silverio' s failure to object

to misconduct that is not flagrant and ill-intentioned operates as a waiver, and his argument fails.

          Silverio argues that the cumulative effect of repeated instances of prosecutorial


misconduct requires reversal.            Weber, 159 Wn.2d at 279. But Silverio demonstrates only one




                                                                16
No. 44704 -5 -II


possible instance of misconduct; therefore, there can be no cumulative effect. His prosecutorial

misconduct arguments fail.


                                III. SUFFICIENCY OF THE EVIDENCE


       Silverio relies on the jury' s failure to convict him of rape to argue that insufficient

evidence supports his conviction of third degree child molestation. We disagree because

sufficient evidence supports the conviction.


A.     Standard ofReview

       When reviewing a sufficiency challenge to a conviction, we determine whether, after

viewing the evidence in the light most favorable to the State, any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt. State v. Green, 94 Wn.2d

216, 221 -22, 616 P. 2d 628 ( 1980).   A sufficiency challenge admits the truth of the State' s

evidence and accepts all reasonable inferences from it. State v. O' Neal, 159 Wn.2d 500, 505,

150 P. 3d 1121 ( 2007).


B.      Sufficient Evidence of Child Molestation

        Silverio argues that insufficient evidence supports his conviction of third degree child


molestation. Because the jury failed to reach a verdict on the third degree rape charge, Silverio

reasons that the jury found that Silverio did not have sexual intercourse with MM. Aside from

sexual intercourse, the evidence showed only that MM and Silverio kissed and removed their

clothing. Silverio argues that kissing is not sexual contact, and therefore, the jury did not find

any sexual contact to support the child molestation charge.

        Third degree child molestation occurs when a defendant has sexual contact with a victim

between the ages of fourteen and sixteen to whom he is not married, and where the defendant is




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No. 44704 -5 -I1



more than forty -eight months older than the victim. See RCW 9A.44. 089. Third degree child

rape bears the same elements, except that sexual intercourse, rather than mere sexual contact,

must   be   proven.   See RCW 9A.44. 079. " Sexual contact" is defined in RCW 9A.44. 010( 2) as


 any touching of the sexual or other intimate parts of a person done for the purpose of gratifying

sexual   desire   of either   party   or a   third party."   The Supreme Court has held that kissing, even

when   it leaves   a "   hickey" 'or " passion mark,"        is not sufficient sexual contact to support an


indecent liberties       conviction.   State    v.   R. P., 122 Wn. 2d 735, 736, 862 P. 2d 127 ( 1993).


         Contrary to Silverio' s assertions, a jury' s failure to convict him of child rape does not

prove that they found that an element of child molestation was not proven. State v. Goins, 151
Wn.2d 728, 733, 92 P. 3d 181 ( 2004). " Juries return inconsistent verdicts for various reasons,


including     mistake, compromise, and           lenity."    Goins, 151 Wn. 2d   at   733.   Instead of looking to

whether the jury produced, consistent verdicts, we consider only whether sufficient evidence

supports each conviction. Goins, 151 Wn.2d at 733, see also State v. Ng, 110 Wn.2d 32, 48, 750

P. 2d 632 ( 1988).


            Here, sufficient evidence supports Silverio' s conviction. Green, 94 Wn.2d at 221 -22;

O' Neal, 159 Wn.2d at 505. MM testified that she and Silverio kissed and removed some of their

clothing, then had sexual intercourse. Regardless of the jury' s failure to convict Silverio of third

degree child rape, sufficient evidence existed to support his conviction of third degree child

molestation, and Silverio' s argument fails.




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No. 44704 -5 -II



                                     IV. LEGAL FINANCIAL OBLIGATIONS


        Silverio argues that the trial court violated his federal constitutional right to counsel when


it ordered him to pay the cost of his court- appointed attorney. Silverio also argues that RCW

10. 01. 160, allowing repayment of attorney fees, violates the Sixth Amendment. We disagree.

A.      Standard ofReview

        We review a claim of a denial of Sixth Amendment12 rights de novo. Jones, 168 Wn.2d


at 719. We also review de novo the interpretation and application of statutes, including the

imposition   of   legal financial   obligations ( LFOs).      State v. Stone, 165 Wn. App. 796, 806, 268

P. 3d 226 ( 2012).


B.      Issue Waived


        At sentencing, the trial      court   imposed   a   total   of $2,   135 in fees,   including $ 1,   135 in


attorney fees. Silverio argues that the trial court violated his right to counsel when it imposed the

attorney fees without first finding that he had the present or future ability to pay. Silverio waived

this issue by failing to raise it below. State v. Blazina, 174 Wn. App. 906, 911, 301 P. 3d 492,

review granted,      178 Wn.2d 1010 ( 2013).      We decline to allow the appellant to raise the issue for


the first time on appeal. Blazina, 174 Wn. App. at 911.

C.      RCW 10. 01. 160( 3) Does Not Violate the Sixth Amendment


        Silverio    argues   that RCW 10. 01. 160( 3),       allowing repayment of attorney fees, violates his

Sixth Amendment right to counsel. He argues that Washington courts erroneously allow a trial

court to impose repayment without first making a determination of the defendant' s actual future




12 U. S. CONST. amend. VI.


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No. 44704 -5 - II



ability to pay, which violates the Sixth Amendment by chilling the exercise of the right to

counsel.      Fuller   v.   Oregon, 417 U. S. 40, 94 S. Ct. 2116, 40 L. Ed. 2d 642 ( 1974). We disagree.


         Washington' s repayment statute, RCW 10. 01. 160, does not violate the Sixth Amendment


by   chilling the    right   to   counsel.    State   v.   Blank, 131 Wn.2d 230, 239, 930 P. 2d 1213 ( 1997); State


v.   Curry,   118 Wn.2d 911, 916, 829 P. 2d 166 ( 1992);                   State v. Smits, 152 Wn. App. 514, 523 -24,

216 P. 3d 1097 ( 2009); State           v.   Crook, 146 Wn.         App.   24, 27, 189 P. 3d 811 ( 2008). As Silverio


acknowledges, our Supreme Court has consistently held that Fuller does not require a court to

find that the accused has the actual future ability to pay before ordering payment of court-

appointed counsel           fees. (   Citing Blank, 131 Wn.2d at 239; Curry, 118 Wn.2d at 916; Smits, 152

Wn.    App.    at   523 -24; Crook, 146 Wn.           App.    at   27). The court is required to find that the


defendant will be able to pay, but RCW 10. 01. 160( 3) does not require the trial court to enter

formal, specific findings of the defendant' s ability to pay when it initially imposes LFOs.

Instead, when a defendant is unable to pay the cost of his LFOs, including attorney fees,

Washington law permits him to petition for modification of the payments. RCW 10. 01. 160( 4).

         Because Washington courts have consistently held that Fuller does not require a judicial

determination of the defendant' s actual ability to pay before ordering repayment, Silverio' s

argument fails. Therefore, we hold that Silverio waived the issue of his ability to pay and

decline to reconsider the Washington case law holding that RCW 10. 01. 160 does not violate the

Sixth Amendment under Fuller.




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No. 44704 -5 -II



        Affirmed.


        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.




 We concur:




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