      IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON


STATE OF WASHINGTON,                            )         No. 78334-3-I

                     Respondent,                )         DIVISION ONE
                                                )
             v.                                 )         UNPUBLISHED OPINION

DAVID LEE CLARK,                                )
                                                )
                    Appellant.                  )         FILED: November 18, 2019


       ANDRUS, J.   —   David Lee Clark appeals his conviction for first degree child

molestation. He argues that prosecutorial error in closing statements denied him

his constitutional right to a fair trial. He also challenges the constitutionality of one

community custody condition. We conclude that the prosecutor’s statements were

neither improper nor prejudicial; thus, Clark received a fair trial. We also conclude

that condition 18 is not unconstitutionally vague because it does not encourage

arbitrary enforcement and because an ordinary person can understand its

prohibitions. We thus affirm Clark’s conviction.

                                        FACTS

       In June 2017, the State charged David Clark with one count of first degree

child molestation for acts occurring between September 1, 2016 and November 5,

2016. The charge was based on seven-year-old T.D.’s statements to a teacher,

law enforcement, and a forensic interviewer that her mother’s boyfriend, Clark, had
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molested and taken inappropriate photographs of her over a three day period in

November 2016.

       Throughout the trial, the key issue was T.D.’s credibility in light of an

absence of any physical corroboration of the events and law enforcement’s inability

to find any photographs of T.D. in Clark’s possession. In its closing argument, the

State, anticipating an attack on T.D.’s testimony and her failure to immediately tell

any adult about the alleged molestation, argued:

       Next topic is, what does a sexual assault victim look like. And the
       fact is there’s no clear answer to this. During voir dire, we discussed
       your personal experiences with these types of crime[s] and
       experiences of sexual assault victims that you know.

       And not one of these people acted in the same way. The consensus
       among everyone was that sexual assault survivors don’t behave in
       the same way. Some people have outbursts right away and you can
       tell that they experienced something traumatic. Some people took
       that pain and stuffed it down.

       Only until years and years later did it come out. Some people took
       that hurt and focused it into other parts of their lives.
                                                              .




       You cannot expect [T.D.] to act in any particular way. She’s
       responding to surviving the sexual assault in a manner that works for
       her at this moment in her life.

       In his closing, Clark did seek to discredit T.D. based on inconsistencies

between her recollection of events during her interview with Alyssa Layne, a child

interview specialist for the King Prosecuting Attorney’s Office, and her trial

testimony. Clark argued that T.D. testified about one incident of molestation, which

she claimed occurred at 4:00 in the morning, and that immediately after the

incident, she went upstairs and fell asleep. Clark argued that her conduct did not

support her contention of being traumatized by the molestation:


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        But [T.D.] testified she was awake at 4:00 in the morning because
        she can’t sleep well. And keep in mind this is a pretty major thing
        that happened. She says she felt nasty. For most people, that would
        be a difficult thing to just fall asleep, but now she went upstairs and
        she just fell asleep. She didn’t stay up wondering should I tell
        anyone, who should I tell, how would I tell them, should I try to clean
        myself, what if I wake people up, do I want to wake people up. She
       just fell asleep.

       On rebuttal, the prosecutor responded to the suggestion that T.D.’s conduct

undermined her testimony:

       [Clark’s counsel] tells you that it’s odd that, after the Defendant
       [molested T.D.], what she did is just go down and go back to sleep.
       That is a traumatic experience. So why would she just go back to
       sleep? And again, we’ve talked about this. We don’t get to judge
       what sexual assault victims do and how they process it. As a way of
       analogy, it’d be like shaming a rape victim that takes a shower
       afterward.

Clark objected to the statements; the trial court overruled the objection.

       After the jury had been excused to the deliberation room, Clark moved for

a mistrial, claiming that the prosecutor’s rape victim analogy shifted the burden of

proof to Clark to prove that molestation had not occurred. The prosecutor argued

that the trial court correctly overruled the objection because he was responding to

Clark’s argument that T.D.’s conduct in having gone to bed after being molested

was suspicious. The trial court denied Clark’s motion for a mistrial, noting that it

did not notice any improper burden shifting during the State’s rebuttal closing

statements and that the rape victim analogy was made in response to Clark’s

arguments regarding T.D.’s credibility.

      The jury found Clark guilty of first degree child molestation. The trial court

sentenced Clark to an indeterminate sentence of 60 months in prison with a



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No. 78334-3-1/4

maximum term of life. It also imposed standard community custody conditions for

sex offenders and identified three additional crime-related prohibitions:

         16. [x] Have no direct and/or indirect contact with minors.

         17. [x] Do not hold any position of authority or trust involving minors.

         18. [x] Stay out of areas where children’s activities regularly occur or
         are occurring. This includes parks used for youth activities, schools,
         daycare facilities, playgrounds, wading pools, swimming pools being
         used for youth activities, play areas (indoor or outdoor), sports fields
         being used for youth sports, arcades, and any specific location
         identified in advance by DCC or CCC.

         Clark appeals. First, he argues that the prosecutor’s rape victim analogy in

the State’s rebuttal closing deprived him of his constitutional right to a fair trial. He

contends that the trial court erred in overruling Clark’s timely objection to the

statement and in denying the motion for a mistrial. Second, he argues that the trial

court erred in imposing community custody condition 18, which prohibits him from

entering areas where children’s activities regularly occur.1

                                            ANALYSIS

    1. Prosecutorial Error

        Clark argues that the prosecutor committed an error when he said: “We

don’t get to judge what sexual assault victims do and how they process it. As a

way of analogy, it’d be like shaming a rape victim that takes a shower afterwards.”

He contends that comparing the defense arguments about T.D.’s credibility to



          1 Clark also filed a pro se Statement of Additional Grounds (SAG), alleging numerous

ineffective assistance of counsel claims. But he does not explain how his counsel was ineffective,
and he fails to describe any of his other claims with sufficient clarity for this court to understand.
RAP 10.10(c) does not require an appellant to reference the record or cite to authorities, but we
will not consider an appellant’s SAG “if it does not inform the court of the nature and occurrence of
alleged errors.” RAP 10.10(c); State v. Hand, 199 Wn. App. 887, 901, 401 P.3d 367 (2017). We
thus decline to review any of Clark’s SAG claims.
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No. 78334-3-1/5

shaming a rape victim for showering after being assaulted (1) misstated the role of

the jury, (2) improperly impugned defense counsel, and (3) impermissibly appealed

to the jury’s passions, prejudices, and sympathy by expressing his personal

opinion. We disagree.

       “A prosecutor must enforce the law by prosecuting those who have violated

the peace and dignity of the state by breaking the law.” State v. Walker, 182 Wn.2d

463, 476, 341 P.3d 976 (2015) (quoting State v. Monday, 171 Wn.2d 667, 676,

257 P.3d 551 (2011)).      “[A] prosecutor [is afforded] wide latitude to argue

reasonable inferences from the evidence,     .   .   .   [but he] should not use arguments

calculated to inflame the passions or prejudices of the jury.” In re Glasmann, 175

Wn.2d 696, 704, 286 P.3d 673 (2012). To prevail on a claim of prosecutorial error

during trial, a defendant must show that the prosecutor’s conduct was both

improper and prejudicial in the context of the record and all of the circumstances

of the trial. j.ç~ When defense counsel makes a timely objection to a prosecutor’s

statements, prejudice exists when there is a substantial likelihood that the

misconduct affected the jury verdict. j~

       In reviewing claims of prosecutorial error, we do not look to whether there

was sufficient evidence to convict the defendant. Id. at 711. Instead, the issue is

“whether the comments deliberately appealed to the jury’s passion and prejudice

and encouraged the jury to base the verdict on the improper argument rather than

properly admitted evidence.” jç~ (internal quotation marks omitted) (quoting State

v. Furman, 122 Wn.2d 440, 468-69, 858 P.2d 1092 (1993)).                     Moreover, a

prosecutor’s statements “even if they are improper, are not grounds for reversal if

they were invited or provoked by defense counsel and are in reply to his or her
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No. 78334-3-1/6

acts and statements, unless the remarks are not a pertinent reply or are so

prejudicial that a curative instruction would be ineffective.” State v. Russell, 125

Wn.2d 24, 86, 882 P.2d 747 (1994).

       Clark first argues that the prosecutor misstated the jury’s role during rebuttal

closing by telling the jury that it could not “judge” T.D. for failing to immediately

report the assault. He contends that this statement suggested that the jury was

not permitted to consider the inconsistencies in T.D.’s testimony when assessing

her credibility.   But the prosecutor’s argument was a pertinent reply to Clark’s

closing argument.

       Clark sought to discredit T.D. throughout trial and during his closing

argument. Clark questioned T.D.’s chronology of events, T.D.’s recounting of the

outfits she wore at different times, and T.D.’s failure to tell Layne about a

particularly heinous act of molestation until heavily prompted to do so.         Clark

argued that the fact that T.D. was able to return to her room and sleep after the

molestation showed that she had lied about the sexual abuse. Clark implied that

a child who had just been molested would not be able to sleep and would likely tell

someone about the assault.

       The prosecutor, in direct response to this argument, used the rape victim

analogy to put T.D.’s conduct into context. He pointed out that the jury should not

conclude T.D. was lying merely from the way in which she reacted to the traumatic

events. The prosecutor asked the jury to instead evaluate T.D.’s credibility by

determining who was in the best position to testify accurately about what happened

to her, to evaluate why a young child’s story may differ from one telling to the next

when asked different questions by different interviewers, to consider the level of
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No. 78334-3-1/7

detail T.D. was able to provide when describing her different encounters with Clark,

and to put weight on T.D.’s demeanor while testifying. The prosecutor did not tell

the jury that it could not consider T.D.’s actions after the rape; the prosecutor

merely argued that there were better methods of analyzing her credibility.

       Clark next asserts that the prosecutor’s comment about rape victims

impugned Clark’s counsel by challenging her characterization of T.D.’s conduct as

odd.   While prosecutors may argue that the evidence does not support the

defense’s theory, they may not “impugn the role or integrity of defense counsel.”

State v. Lindsay, 180 Wn.2d 423, 431-32, 326 P.3d 125 (2014). Such statements

“can severely damage an accused’s opportunity to present his or her case and are

therefore impermissible.” j~ç~ at 432.

       Clark analogizes the prosecutor’s statement to those made by the

prosecutor in State v. ThorQerson, 172 Wn.2d 438, 258 P.3d 43 (2011). There,

the prosecutor called the defense’s case “bogus” and involving a “sleight of hand.”

   at 451-52. The Thorgerson court concluded that the statements were improper

and ill-intentioned because they disparaged defense counsel, suggesting

deceptive conduct on counsel’s part, rather than focused on the evidence before

the jury. jçL at 452. There was nothing the prosecutor said here that was in any

way analogous to the comments in Thorgerson. The prosecutor did not disparage

defense counsel; the focus was on T.D. and how to assess her credibility.

       Clark also analogizes the prosecutor’s statements to those deemed to

impugn the defense in Lindsay, where the prosecutor said, in reference to defense

counsel’s closing statements: “This is a crock. What you’ve been pitched for the

last four hours is a crock.” 180 Wn.2d at 433. The Lindsay court concluded that
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No. 78334-3-1/8

the prosecutor’s comments implied deception and dishonesty. ~ And the phrase

“crock” was commonly understood to be the shortened version of a particularly

vulgar phrase. j~ at 433-34. Again, there was no similar statement in this case.

The prosecutor did not suggest that defense counsel was deceptive or dishonest.

       Clark contends, however, that the prosecutor compared defense counsel’s

argument to shaming a rape victim. But Clark is mischaracterizing the argument.

In context, it is clear the prosecutor sought to convince the jury that victims of

sexual crimes process their traumas differently, and T.D.’s ability to sleep after

being sexually assaulted was no different than a rape victim failing to preserve

evidence after being sexually assaulted.       The prosecutor did not argue that

defense counsel suggested that T.D. was to blame for what she endured. The

record simply does not support Clark’s argument that the prosecutor impugned

defense counsel in challenging T.D.’s credibility.

       Finally, Clark asserts that through the rape victim analogy, the prosecutor

expressed his personal opinion that T.D. was credible and appealed to the jurors’

passions and prejudices in doing so. “[l]t is impermissible for a prosecutor to

express a personal opinion as to the credibility of a witness or the guilt of the

defendant.” Matter of Lui, 188 Wn.2d 525, 560-61, 397 P.3d 90 (2017). But “there

is a distinction between the individual opinion of the prosecuting attorney, as an

independent fact, and an opinion based upon or deduced from the testimony in the

case.” j~ at 561 (internal quotation marks omitted) (quoting State v. McKenzie,

157 Wn.2d 44, 53-54, 134 P.3d 221 (2006)). “Prejudicial error does not occur until

such time as it is clear and unmistakable that counsel is not arguing an inference


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No. 78334-3-1/9

from the evidence, but is expressing a personal opinion.” kf. (quoting McKenzie,

157 Wn.2d at 53-54).

        Because Clark made T.D.’s credibility the focus of his defense, the

prosecutor understandably responded to that defense. The prosecutor did not

state that he believed T.D. was telling the truth. The prosecutor merely argued

how the jury should evaluate Clark’s credibility arguments. The record supports

the conclusion that the prosecutor used the rape victim analogy to argue that T.D.’s

personal response to being molested did not make her more or less credible. It

was not an expression of the prosecutor’s personal opinion as to T.D.’s credibility.

       Furthermore, even if the statement had been improper bolstering testimony,

the jury instructions clearly informed the jurors that: “You are the sole judges of the

credibility of each witness. You are also the sole judges of the value or weight to

be given to the testimony of each witness.” Jurors are presumed to follow their

instructions. State v. Emery, 174 Wn.2d 741, 754, 278 P.3d 653 (2012).             We

cannot conclude that this single statement made in rebuttal caused any prejudice

to Clark.

       We conclude that the prosecutor’s statement was neither improper nor

prejudicial. Because the statement was proper, the trial court did not abuse its

discretion in overruling the objection or in denying Clark’s motion for a new trial.

   2. Condition 18

       Clark next challenges community custody condition 18, which states:

       Stay out of areas where children’s activities regularly occur or are
       occurring. This includes parks used for youth activities, schools,
       daycare facilities, playgrounds, wading pools, swimming pools being
       used for youth activities, play areas (indoor or outdoor), sports fields

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 No. 78334-3-1/10

           being used for youth sports, arcades, and any specific location
           identified in advance by DCC or CCC.

Clark claims that condition 18 is unconstitutionally vague for three reasons: (1) it

fails to define “area” and “regularly occur;” (2) it refers to “children” and “youth”

without establishing that the terms are synonymous; and (3) it permits arbitrary

enforcement because it gives the Community Corrections Officer (CCC) unfettered

discretion to determine the scope of the ban. We disagree and conclude that

condition 18 is not unconstitutionally vague.

           “Conditions of community custody may be challenged for the first time on

appeal and, where the challenge involves a legal question that can be resolved on

the existing record, preenforcement.” State v. Wallmuller, No. 963 13-4, slip op. at

4 (Wash. Sept. 26, 2019), htt~://www.courts.wa.qov/o~jnjons/~df/9631 34.pdf. We

review community custody conditions for abuse of discretion. ~

       The due process vagueness doctrine under the Fourteenth Amendment to

the United States Constitution and under article I, section 3 of the Washington

Constitution requires that citizens have fair warning of proscribed conduct. State

v. BahI, 164 Wn.2d 739, 752, 193 P.3d 678 (2008). A statute is unconstitutionally

vague if it (1) does not define the criminal offense with sufficient definiteness or

(2) does not provide ascertainable standards of guilt to protect against arbitrary

enforcement. j~ at 752-53. Although courts apply the same vagueness doctrine

to sentencing conditions, it does not have the same presumption of validity as a

statute.     j~ at 753. Imposing conditions of community custody is within the

discretion of the sentencing court and will only be reversed if manifestly

unreasonable. jç~ An unconstitutional condition is manifestly unreasonable. jç~

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No. 78334-3-I/li

       Clark first contends that condition 18 is unconstitutionally vague because it

does not adequately define what areas are included within the prohibited locations.

In State v. Irwin, 191 Wn. App. 644, 364 P.3d 830 (2015), this court held that a

condition prohibiting a defendant from “frequent[ing] places where minors are

known to congregate” was vague. jç~ at 653. It noted, however, that the condition

would be permissible if it included “some clarifying language or an illustrative list

of prohibited locations.” jç~ at 655. Our Supreme Court recently affirmed this

holding, concluding that a similar condition, containing a nonexhaustive illustrative

list of prohibited areas, was constitutional because it illustrated the scope of the

restriction in a way that an ordinary person could understand. See Wallmuller, slip

op. at 13 (prohibiting staying in “places where children congregate” when

accompanied by a short, nonexciusive list is not vague). Like the condition at issue

in Wallmuller, Clark’s condition 18 contains a nonexclusive list that clarifies “areas

where children’s activities regularly occur.” By providing such a list, an ordinary

person can understand the scope of the prohibited conduct. We thus reject Clark’s

argument that the terms “area” and “regularly occur” are unconstitutionally vague.

       We similarly reject Clark’s next argument that condition 18 is vague

because it refers to “children” and “youth” without establishing whether the terms

are synonymous.      But this does not render the condition vague because an

ordinary person can understand the scope of the prohibition.                  The dictionary

definition of “child” is “a young person   .   .   .   especially between infancy and youth,”

while the dictionary definition of “youth” is “a young person.” WEBSTER’S THIRD

NEW INTERNATIONAL DICTIONARY OF THE ENGLISH LANGUAGE 388, 2654 (2002).

Moreover, condition 18 is under the sub-heading “Offenses Involving Minors.” We
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thus conclude that the words “children” and “youth” in condition 18 are sufficiently

clear for Clark to understand and are not unconstitutionally vague.

       We also reject Clark’s final argument that condition 18 permits arbitrary

enforcement by his CCC. In State v. BahI, 164 Wn.2d at 758, the Supreme Court

held that a community custody condition that prohibited Bahl from possessing

pornographic materials “as directed by the supervising Community Corrections

Officer” was unconstitutional because it delegated to his CCC the ability to

determine what fell within the scope of the prohibition. But by providing the CCC

with an illustrative list of prohibited areas, the trial court here limited the CCO’s

discretion to designate locations to avoid. And the language of the condition

makes it clear that the CCC must designate such locations in advance, thereby

eliminating the risk of Clark inadvertently violating the condition.

       We conclude that condition 18 is not unconstitutionally vague because an

ordinary person can understand its prohibitions and because it does not permit

arbitrary enforcement.

       Affirmed.




WE CONCUR:




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