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       IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

STATE OF WASHINGTON,                                )           No. 76962-6-1
                                                    )
                       Respondent,                  )           DIVISION ONE
                                                    )
               v.                                   )           UNPUBLISHED OPINION
                                                    )
JEFFREY JOSEPH BAUS,                                )
                                                    )
                       Appellant.                   )           FILED: November 5, 2018


       ANDRUS, J. — A jury convicted Jeffrey Joseph Baus of rape in the second

degree and assault in the second degree. He contends that he was prejudiced

by the prosecutor's improper remarks during closing argument.                        He also

challenges the imposition of a condition of community custody prohibiting him

from frequenting drug areas, as defined by his community corrections officer.

Baus fails to establish prosecutorial misconduct warranting reversal. Because

the community custody condition related to drug areas is unconstitutionally

vague, we remand to strike the condition. Otherwise, we affirm the judgment and

sentence.

                                            FACTS

       The State charged Jeffrey Baus, by amended information, with second

degree assault and second degree rape.' According to the testimony at Baus's

trial, R.M. spent the evening of April 22, 2016, at the Quilceda Creek Casino in

 Marysville.        R.M., who was homeless and addicted to heroin, spent a


       I The State initially charged Baus with rape in the third degree.
No. 76962-6-1/2


considerable amount of time at the casino. Friends were often there and it was

open all night, warm, and safe.

        That evening, R.M.'s plans for the night fell through and she had "nowhere

to go." R.M. was distressed and she was wearing four-inch high heels that were

"killing" her.

        At some point, R.M. noticed Baus, who appeared to be watching her. At

around 11 p.m., when R.M.'s friend walked away and she was alone, Baus

approached her. Baus commented that she appeared to be having a difficult

time. After R.M. explained her situation, Baus said, "today may be your lucky

day." Baus told R.M. that he had a house in Granite Falls and invited her there to

"hang out" and "Dlelax." Baus assured her there were Inio expectations."

        R.M. and Baus "flirted a little bit" and talked about Alaska. R.M. grew up

in Alaska and Baus said he wanted to retire there. This common interest made

R.M. feel slightly more inclined to trust Baus. After an hour or so, Baus suddenly

announced that he was leaving and that if R.M. wanted to come with him, it was

"now or never." R.M. did not have a cell phone and wanted to find her friend first

to tell him where she was going. Baus refused to wait for her.

        Although R.M. felt uneasy, she left with Baus. As they drove, they passed

the home of one of R.M.'s friends. R.M. asked Baus to stop so she could quickly

talk to her friend. Again, he refused.

        During the 30-minute drive to Baus's wooded neighborhood, the

conversation turned more overtly sexual. Baus told R.M. that she was pretty and




                                         2
No. 76962-6-1/3


described sex acts he wanted to engage in. R.M. "kind of blew it off' and vaguely

said, "[w]ell, I'm not sure about that."

       When they arrived at his home, Baus gave R.M. a tour. Baus showed her

a survivalist room and told her he had everything necessary for the two of them

to "disappear into the woods for a month without anybody knowing where we

were." R.M. was afraid, but felt she could not leave without money, a cell phone,

or shoes she could easily walk in.

       R.M. ate a tuna fish sandwich and some peanut butter. And because she

was nervous, she also smoked "three or four hits" of heroin, which was just

enough to relax her and make her feel "normal." Meanwhile, Baus continued to

drink beer and smoked marijuana.           Baus offered R.M. beverages, but she

declined, fearing that he might drug her.

       Baus let R.M. use the bathroom, but then continually banged on the door,

demanding that she come out. R.M. was increasingly worried. Partly to escape

from Baus, she asked to take a shower. The pocket door in the master bathroom

did not lock properly. A few minutes after R.M. got into the shower, Baus

appeared, naked, and tried to enter.         R.M. yelled at him to leave.   Baus

responded, "Oh come on. Don't you see the toys in there? Don't you want to

play?" After R.M. continued to yell, he left.

       R.M. believed she was truly in danger and started to panic. After her

shower, she ran to the other bathroom and locked the door. For about 15

minutes, she sat on the toilet seat while Baus forcefully pounded on the door and

badgered her. Finally, because she "had enough" of his yelling and thought he
No. 76962-6-1/4


might break down the door, she opened the door, grabbed her purse, and

returned to the master bath. While she tried to calm herself and decide what to

do, she took Q-tip cotton swabs from her purse and cleaned her ears.

          Then, with a "dark" and "Ig]lazed over" look on his face, Baus "body

bumped" R.M. When she yelled, he snatched the towel she was wearing, picked

her up, and threw her on the bed.2 He jumped on the bed and straddled her. He

tied her wrists and one leg with thin ropes that were already secured to the

bedposts. R.M. screamed and tried to free herself. Baus hit her in the face.

R.M. felt like her face "exploded" and fluid poured from her nose and mouth.

R.M. pleaded with Baus to stop. He shoved his erect penis into her mouth three

or four times. She gagged and found it difficult to breathe.

          As R.M. continued to plead with him, Baus walked across the room,

picked up a knife on his dresser, and "taunted" her with it for about 10 minutes.

He held the blade to her skin and moved it over her naked body, touching her

legs, vagina, chest, breasts, neck, and arms. R.M. believed he was going to kill

her. Then suddenly, using the same knife, Baus cut the restraints. Baus said to

R.M., "I don't think this thing is going to work out. Some bitches like this sort of

thing."

          R.M. retrieved her clothes that were scattered throughout the house.

Although she was terrified, R.M. tried to pretend that she was still interested in

Baus and was not really hurt. She eventually persuaded Baus to drive her to a

nearby Walmart. R.M. rode with the window rolled down and her hand on the

       2 R.M. is 4 feet 11 inches tall and weighs 118 pounds, while Baus is 6 feet tall and about
100 pounds heavier.
                                               4
No. 76962-6-1/5


door handle, so that she could jump out if necessary. En route, Baus changed

his mind and said he was taking her back to his house and that she could leave

later. As Baus slowed the car to enter a roundabout, R.M. jumped out. Baus

gave her the finger and said,"See you, bitch."

       R.M. walked along the highway for 30 to 40 minutes until she came to an

open service station. The store clerk, Grant Jensen, immediately noticed that

R.M. was injured. Her face was bruised and bleeding. R.M. was frantic and

crying. She told Jensen that a man beat her up after she refused to have sex.

Jensen gave R.M. ice for the swelling on her face, lent her his cell phone, and

encouraged her to call 911. R.M. declined to call for assistance because there

were warrants for her arrest. A customer later drove R.M. to the Walmart where

a friend picked her up.

       Over the next 24 hours, R.M. arranged to store her vehicle and other

personal items. Then, on the morning of April 24, 2016, a friend drove R.M. back

to Baus's home so she could obtain the address and then she called the police.3

Despite the risk of going to jail, R.M. decided to report the crime because

"nobody should do that to anybody."

       Michael Mansur and Thomas Dalton of the Snohomish County Sheriffs

Office met R.M. at the Granite Falls police station that morning. They observed

her recent injuries, including black eyes, an apparently broken nose, and one eye

that was nearly swollen shut. There were faint ligature marks on her wrists.

R.M. was very emotional and shaken. She identified Baus in a photomontage

       3 R.M. was familiar with Baus's neighborhood because she had a friend who lived there
and had worked in that neighborhood in the past.
                                             5
No. 76962-6-1/6


and prepared a written statement. The police officers arranged for R.M. to go to

the hospital for treatment. Both at the hospital and earlier at the police station,

officers took photographs of R.M.'s injuries. At the hospital, R.M. declined to talk

to the forensic nurse examiner.4

       Items recovered in a search of Baus's home and DNA5 testing of some of

those items corroborated R.M.'s presence in Baus's home and several details of

her account.

       At trial, in addition to R.M., several witnesses testified on behalf of the

State, including Jensen, police officers involved in the investigation, and a

Washington State Patrol forensic scientist. Baus did not testify.

       Baus did not deny that R.M. had been in his home. The defense argued,

however, there was insufficient evidence to establish that the contact between

R.M. and Baus occurred on the charging date, "on or about" April 23, 2016.

Counsel also pointed out that there was no video surveillance footage from the

casino or any other evidence showing that Baus approached R.M., and not the

other way around. Considering R.M.'s difficult circumstances at the time and her

acknowledgment that she had flirted with Baus, the defense suggested that R.M.

may have "prey[ed] on" Baus. The defense also argued that R.M.'s memories

and her statement were unreliable because of her drug use and that a sexual

assault examination would have shown whether R.M. had sexual intercourse with

Baus or someone else. The jury convicted Baus as charged.



        4 R.M. felt she did not need a sexual assault exam because she was not vaginally
assaulted.
        5 Deoxyribonucleic acid.

                                           6
No. 76962-6-1/7


                            Prosecutorial Misconduct

      Baus alleges several instances of prosecutorial misconduct during closing

and rebuttal argument. We reject this argument as a basis for overturning the

conviction.

      Prosecutorial misconduct may deprive a defendant of his right to a fair

trial. See State v. Jones, 144 Wn. App. 284, 290, 183 P.3d 307 (2008). The

appellant bears the burden of demonstrating prosecutorial misconduct on appeal

and must establish that the conduct was both improper and prejudicial. State v.

Stenson, 132 Wn.2d 668, 718, 940 P.2d 1239 (1997). "Allegedly improper

arguments should be reviewed in the context of the total argument, the issues in

the case, the evidence addressed in the argument, and the instructions given."

State v. Russell, 125 Wn.2d 24, 85-86, 882 P.2d 747 (1994). Prosecuting

attorneys have wide latitude during closing arguments to argue facts and

reasonable inferences from the evidence. State v. Thorgerson, 172 Wn.2d 438,

453, 258 P.3d 43(2011). This latitude allows a prosecutor to "freely comment on

witness credibility based on the evidence." State v. Lewis, 156 Wn. App. 230,

240, 233 P.3d 891 (2010).

      To establish prejudice sufficient to require reversal, a defendant who

timely objected to the challenged conduct in the trial court must "show a

substantial likelihood that the misconduct affected the jury verdict."     In re

Glasmann, 175 Wn.2d 696, 704, 286 P.3d 673 (2012). Reversal is not required

where the alleged error could have been obviated by a curative instruction. State

v. Gentry, 125 Wn.2d 570, 596, 888 P.2d 1105 (1995). The "failure to object to


                                       7
No. 76962-6-1/8


an improper remark constitutes a waiver of error unless the remark is so flagrant

and ill intentioned that it causes an enduring and resulting prejudice that could

not have been neutralized by an admonition to the jury." Thorgerson, 172 Wn.2d

at 443(quoting Russell, 125 Wn.2d at 86).

Presumption of Innocence

      Baus contends that the prosecutor committed flagrant misconduct by

undermining the presumption of innocence. Defense counsel stated in closing

argument that the presumption of innocence "continues throughout the entire trial

unless, during your deliberations, you find it has been overcome by the evidence

beyond a reasonable doubt." Counsel further elaborated, "it's the end of the trial

and the law says he sits here right now innocent."

The prosecutor argued in rebuttal,

      Defense counsel started with kind of a discussion of the
      presumption of innocence. What I heard her say was you're not
      allowed to come to any other conclusion. Well, that's really not
      what it says. The defendant is presumed innocent until you're
      convinced otherwise. It doesn't mean a plea of not guilty means
      end of story and you just dismiss what anyone else has to say to
      the contrary. That's not what it means. You evaluate the evidence
      and you determine whether or not — I mean, why are we here if the
      presumption of innocence means he's innocent.

During the same argument the prosecutor also described the phrase "an abiding

belief" as "something that you believe yesterday, today, tomorrow."

      The "presumption of innocence continues 'throughout the entire trial' and

may be overcome, if at all, only during the jury's deliberations."       State v.

Veneqas, 155 Wn. App. 507, 524, 228 P.3d 813(2010)(quoting 11 WASHINGTON

PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 4.01, at 85 (3d ed.


                                        8
No. 76962-6-1/9


2008)). The prosecutor's argument did not suggest otherwise. The argument

was consistent with the jury's instructions.6 Unlike the argument at issue in

Venegas, the prosecutor did not indicate that the presumption of innocence

erodes as the State presents evidence of the defendant's guilt during the trial.

Nor did the prosecutor imply that Baus was guilty merely because the State filed

charges against him. Rather, the prosecutor emphasized that the presumption of

innocence may ultimately be overcome by evidence that meets the State's

burden of proof. And to the extent that the prosecutor's explanation of the

meaning of abiding belief was inartful in that it included "yesterday," it was not

flagrant misconduct.7

Burden of Proof

        Baus also contends that the prosecutor improperly shifted the burden of

proof to the defense in discussing the reasonable doubt instruction.                              The

prosecutor argued,

        Now, the reasonable doubt instruction talks about reasonable doubt
        being based on evidence or lack of evidence, but it talks about
        evidence based — I mean reasonable doubt that's based on
        something; right? So you can't just come here and throw out here's
        a man's name, here's a man's name. Maybe it's him or maybe she
        met the defendant three days earlier. Well, where's that come
        from? Is that, is that the way it works? You can just throw out a
        possibility over here and a possibility over here and come up with a
        hypothetical and that's enough reasonable doubt even though it's
        based on nothing? No. No. The law contemplates that it's based

         6 Instruction No. 4 provides, in relevant part: "A defendant is presumed innocent. This
presumption continues throughout the entire trial unless during your deliberations you find it has
been overcome by the evidence beyond a reasonable doubt." The same instruction also states
that jurors are "satisfied beyond a reasonable doubt," if after fairly and carefully considering all the
evidence, they have an "abiding belief in the truth of the charge."
         7 Dictionary definitions of "abiding" include "continuing or persisting in the same state
without changing or diminishing" and "enduring." WEBSTER'S THIRD NEW INTERNATIONAL
DICTIONARY 3(2002).
                                                  9
No. 76962-6-1/10


      on something. The doubt is based on something, not on the fact
      there is a possibility that this potential hypothetical might happen
      and there's other men who she had contact with that week.

The court overruled the defendant's objection, stating, "[I]t's argument. The law

has been given and is clear."

       Baus argues that the          prosecutor's argument is comparable to

impermissible "fill-in-the-blank" remarks like those at issue in State v. Emery, 174

Wn.2d 741 (2012). In Emery, the prosecutor argued,

      [l]n order for you to find the defendant not guilty, you have to ask
      yourselves or you'd have to say, quote, I doubt the defendant is
      guilty, and my reason is blank. A doubt for which a reason exists. If
      you think that you have a doubt, you must fill in that blank.


174 Wn.2d at 750-51. The "fill-in-the-blank" argument was improper because it

"subtly shifts the burden to the defense" by requiring the jury to articulate a

reason to doubt. Emery, 174 Wn.2d at 760.

       But here, the prosecutor did not tell the jury it had to be able to articulate a

specific reason for doubting Baus's guilt before it could acquit. The prosecutor

instead argued that based on the evidence before it, there was no reason to

doubt his guilt. The instructions and the State's argument properly informed the

jury that the State bore the burden of proof. The State's argument did not

impermissibly shift the burden of proof.

Denigration of Defense Counsel

       Baus argues that the prosecutor engaged in misconduct by denigrating his

counsel and defense counsel's role. The prosecutor began closing argument by

reminding the jury that, regardless of R.M.'s personal circumstances and poor


                                           10
No. 76962-6-1/11


choices, she was entitled to personal security. The prosecutor then recounted

some of the obstacles and indignities that R.M. endured in order to pursue

justice, including being questioned by the police and an investigator, being

photographed, and being treated unsympathetically at the hospital because of

her addiction.

       The prosecutor then discussed how the trial itself subjected R.M. to further

humiliation because she was questioned by both counsel, challenged by defense

counsel, and "put under a microscope:"

       She has to sit there (indicating) and she has to tell a room full of
       strangers about her weaknesses, about her life, about her
       mistakes, about the most terrifying thing that has ever happened to
       her, something that none of us could ever imagine in front of the
       guy that did it to her. I put her up there and I asked her to tell me
       all these things, to explain why she did what she did, to tell me
       about her bad decisions, and then when she breaks down
       describing how she was pleading for her life, begging to have a
       chance to see her child again, I coldly make her keep going: What
       happened next?

       But that's not the end. Then the defendant's lawyer starts asking
       her questions insinuating her bad choices, saying things like do you
       expect us to believe that? See, in ordinary polite society, we don't
       talk to each other like that. If you were telling somebody
       something, something humiliating, horrible and terrifying and they
       said to you, do you expect us to believe that - - 18]

       The trial court sustained defense counsel's objection, and instructed the

prosecutor to "move on." Defense counsel did not request a curative instruction.

       "It is improper for the prosecutor to disparagingly comment on defense

counsel's role or impugn the defense lawyer's integrity." Thomerson, 172 Wn.2d

at 451 (prosecutor engaged in misconduct by referring to defense counsel's

         8 During cross-examination, defense counsel questioned R.M. about her written
statement in which she indicated that at a point during the attack she "start[ed] to calm down a
bit" and asked,"So are we supposed to believe that?"
                                              11
No. 76962-6-1/12


presentation of his case as "bogus" and involving "sleight of hand," but the

misconduct did not likely affect the verdict). A prosecutor's statements that

malign defense counsel are impermissible because they can damage a

defendant's opportunity to present his or her case. State v. Lindsay, 180 Wn.2d

423, 432, 326 P.3d 125 (2014). But comments that "can fairly be said to focus

on the evidence" do not constitute misconduct. Thorcierson, 172 Wn.2d at 451.

       The prosecutor's comment suggesting that defense counsel challenged

the victim's testimony in a manner that was offensive to "polite society" was

disparaging to defense counsel. See Thoraerson, 172 Wn.2d at 452. However,

the larger context of the argument was not a personal attack on defense counsel

or counsel's strategy. Rather, the prosecutor was reminding the jury that R.M.

faced significant challenges in coming forward with her allegations. Counsel

highlighted the fact that all participants in the process—including the prosecutor,

the defense, and law enforcement—subjected R.M. to uncomfortable and

unwanted scrutiny. The prosecutor encouraged the jury to consider these facts

in evaluating R.M.'s credibility.

       The trial court sustained defense counsel's timely objection and

specifically instructed the prosecutor to abandon her line of argument. To the

extent there was any residual prejudice, it could have been neutralized by an

instruction to disregard the argument.       In State v. Lindsay, the prosecutor

characterized the defense's argument a "crock" and engaged in numerous other

instances of misconduct. Lindsay, 180 Wn.2d at 442-43. Our Supreme Court

determined that the cumulative effect of the repeated and prejudicial misconduct


                                        12
No. 76962-6-1/13


could not have been cured by any instruction or series of instructions. Lindsay,

180 Wn.2d at 443. But here, the misconduct was neither repeated nor pervasive.

Considering the larger context of the argument, the limited nature of the

inappropriate remarks, and the weight of the evidence against Baus, there is not

a substantial likelihood that the prosecutor's comments about the manner in

which defense counsel questioned the victim affected the jury's verdict.

       We conclude Baus has not established prosecutorial misconduct

warranting a reversal of his conviction.

                         Condition of Community Custody

      At sentencing, the trial court imposed a condition of community custody

requiring Baus to avoid "drug areas, as defined in writing by the supervising

Community Corrections Officer" (CCO).           Baus contends this condition is

unconstitutionally vague. We agree.

      The guarantee of due process requires that laws, including sentencing

conditions, not be vague. U.S. CONST. amend. XIV, § 1; WASH.CONST. art. 1, § 3;

State v. Irwin, 191 Wn. App. 644, 652, 364 P.3d 830 (2015). To withstand a

vagueness challenge, a condition of sentence must (1) provide ordinary people

fair warning of proscribed conduct, and (2) have standards that are sufficiently

definite enough to protect against arbitrary enforcement. State v. Bahl, 164

Wn.2d 739, 752-53, 193 P.3d 678 (2008); Irwin, 191 Wn. App. at 652-53. Failure

to satisfy either prong renders the condition unconstitutional. Irwin, 191 Wn. App.

at 653.




                                           13
No. 76962-6-1/14


       In Irwin, this court held that a similar community custody condition

requiring further definition by a CCO was unconstitutionally vague. Irwin, 191

Wn. App. 652. A condition of sentence barred Irwin from places where "children

are known to congregate," as defined by his CCO. Irwin, 191 Wn. App. 655.

This court concluded that "Mithout some clarifying language or an illustrative list

of prohibited locations . . . the condition does not give ordinary people sufficient

notice to 'understand what conduct is proscribed." Irwin, 191 Wn. App. 655.

Moreover, the authority given to the CCO to interpret the condition allowed for

unconstitutionally arbitrary enforcement. Irwin, 191 Wn. App. 655.

       Likewise here, leaving the definition of "drug areas" subject to the CCO's

discretion deprives Baus of fair warning of the proscribed conduct. And while it is

true that he may have notice of prohibited conduct once the CCO sets forth a

definition of "drug areas" in writing, the condition still fails under the second prong

of vagueness analysis because it is vulnerable to arbitrary enforcement. See

Irwin, 191 Wn. App. at 655. For these reasons, the condition of community

custody related to "drug areas" is unconstitutionally vague.

       Accordingly, we affirm Baus's convictions, but remand to strike the

challenged condition of community custody.



                                                Ji‘liv-t-4-)7
WE CONCUR:




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