                                                                                                 4F I LED
                                                                                         COURT .OF APPEALS
                                                                                               DIVISION


       IN THE COURT OF APPEALS OF THE STATE O ' WA H1                                                     tii0
                                                                                        STATE OF WASHINGTON
                                                    DIVISION II
                                                                                         BY
                                                                                                    DE UTY
 STATE OF WASHINGTON,                                                            No. 44061 -0 -I


                                         Respondent,


           v.

                                                                           UNPUBLISHED OPINION
 LEE R. McCLURE,


                                         Appellant.




          MAXA, J. —        Lee McClure appeals on multiple grounds his convictions for second degree


child rape, third degree child rape, sexual exploitation of a minor, and second degree possession

of depictions of a minor engaged in sexually explicit conduct. McClure makes two additional

assertions in his Statement of Additional Grounds ( SAG).

          We hold that ( 1) the trial court did not violate McClure' s public trial right by addressing

various   issues in   sidebar conferences, (     2) McClure failed to preserve his challenge to the State' s


child sexual abuse expert' s       testimony, ( 3) the prosecutor did not commit misconduct in making

comments about        the   victim' s   testimony   and sexual assault victims   in    general, (   4) sufficient


evidence at trial established that McClure knowingly possessed images of the victim engaged in

sexually   explicit conduct, ( 5)       the trial court did not violate McClure' s due process or equal


protection rights by finding that prior convictions existed for persistent offender sentencing

purposes, and ( 6) the trial court did not abuse its discretion in imposing a sentencing condition

that   prohibited   McClure from        contact with   his   minor son   because his   son was   in the   same class
44061 -0 -II



of persons as the victim. We also reject McClure' s SAG arguments. Accordingly, we affirm

McClure' s convictions and sentence.


                                                   FACTS


         McClure was married to Norma Jean McClure. RH, Norma Jean' s' daughter and


McClure' s step- daughter, primarily lived with them. McClure and Norma Jean had a young son,

AM, who also lived in the home.


         In March 2011, RH reported that McClure had been sexually abusing her for several

years. The State charged McClure with second degree rape of a child, third degree rape of a

child, and sexual exploitation of a minor. Law enforcement officers later executed a search

warrant for McClure' s former residence, from which they seized a desktop computer that

contained 17 images of RH in various stages of undress. The State subsequently added a charge

of second degree possession of depictions of a minor engaged in sexually explicit conduct.

         Before trial, McClure moved to exclude testimony by Dr. Yolanda Duralde, a child abuse

specialist, who examined       RH in April 2011.      The State sought to have Dr. Duralde testify

regarding the reason children frequently delay in reporting sexual abuse. McClure argued that

such testimony would be an improper comment on RH' s credibility. The trial court refused to

exclude this testimony.

         The case proceeded to trial. Voir dire took place in open court, during which the parties

individually questioned jurors and made for cause challenges. The trial court addressed an




 1 Because Lee McClure and Norma Jean McClure share the same last name, we refer to Norma
Jean   by her first   name   for clarity. We intend   no   disrespect.
44061 -0 -II




objection to one of the State' s questions to a juror during a sidebar conference. The parties also

made peremptory challenges and the trial court announced its rulings on two for cause challenges

during a sidebar conference.

          At trial, Dr. Duralde testified that child sexual abuse perpetrators are usually " very close

to the   family   or within   the   family   structure so     they have   access     to the   child."   Report of


Proceedings ( RP) (    Aug.    23, 2012)      at   781.    Dr. Duralde   also stated, "   It' s very common

particularly in pediatric sexual abuse that children don' t disclose right away. They usually

disclose weeks to months, maybe years later when they feel safe or feel like there' s a change in

the   family   structure so   that   they   can    then   make   that disclosure."    RP ( Aug. 23, 2012) at 781 -82.

Dr. Duralde further testified that child sexual abuse victims often cannot recall specific dates and

times of abuse.


          RH testified that McClure began having sexual intercourse with her when she was 12

years old. RH testified that the abuse occurred at least once per month until her 16th birthday,

when she reported the abuse to her father. She also stated that McClure took photographs of her


without her clothing when she was 14 or 15. RH testified that she delayed in reporting the abuse

because she was afraid.


          During trial, the court and parties engaged in multiple sidebar conferences. The

conferences involved argument on evidentiary objections and discussion regarding witness

scheduling issues.

          After the State rested, McClure moved to dismiss the charge for second degree


possession of depictions of a minor engaged in sexually explicit conduct. He argued that there



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44061 -0 -II



was insufficient evidence to prove that he knowingly possessed the images of RH because the

images were not intentionally saved on the computer. The trial court denied the motion.

           In closing argument, the State referenced Dr. Duralde' s testimony to explain why RH

could not recall specific incidents of abuse or dates on which the abuse occurred. The State

argued, "   Recall Dr. Duralde' s testimony, that people generally can' t do that. Especially when

you' ve got something that happens repeatedly, but kids in particular, they' re not going to be able

to   give you specific   instances."        RP ( Aug. 12, 2012)        at   976 -77. The State   continued, "   She' s


being asked to talk about something that her stepfather did to her, sexually; in a strange and

intimidating environment, from that stand, in front of all of you, other strangers who are present

here in the    courtroom,     but   also   in front   of   the   person who abused    her."   RP ( Aug. 27, 2012) at

980 -81.


           The jury found McClure guilty as charged. The trial court determined that McClure was

a " persistent offender" under          former RCW 9. 94A. 030( 33)( b) ( 2008) 2          because the jury found him

guilty of second degree child rape and because the court found by a preponderance of the

evidence     that he   had   committed      first degree     child rape     in 1993. Therefore, the trial court


sentenced him to total confinement for life without the possibility of parole as required by RCW

9. 94A.570. The trial court also issued a no- contact order prohibiting McClure from any contact

with minors.




           McClure appeals his convictions and sentence.




2
     LAws OF 2008,     ch.   230, § 2

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                                                           ANALYSIS


A.      PUBLIC TRIAL RIGHT


        McClure argues that his public trial right was violated when, during various sidebar

conferences, the trial court addressed an objection to a voir dire question, allowed counsel to


make peremptory juror challenges, announced its rulings on for cause challenges, heard

argument on evidentiary objections, and discussed witness scheduling issues. We disagree.

          1.      Legal Principles


        The Sixth Amendment to the United States Constitution and article I, section 22 of the

Washington Constitution guarantee a defendant the right to a public trial. State v. Wise, 176

Wn.2d 1, 9, 288 P. 3d 1113 ( 2012). In general, this right requires that certain proceedings be held


in open court unless consideration of the five- factor test set forth in State v. Bone -Club, 128

Wn.2d 254, 258 -59, 906 P. 2d 325 ( 1995) supports closure of the courtroom. Whether a

courtroom closure violated a defendant' s right to a public trial is a question of law we review de

novo, as       is the issue   of whether a courtroom closure              in fact      occurred.    Wise, 176 Wn.2d at 9, 12.


          The threshold determination when addressing an alleged violation of the public trial right

is whether the proceeding at issue even implicates the right. State v. Sublett, 176 Wn.2d 58, 71,

292 P. 3d 715 ( 2012). "           Not every interaction between the court, counsel, and defendants will

implicate the       right   to   a public   trial   or constitute   a   closure   if   closed   to the   public."   Id. We


address    this issue using the "       experience and        logic" test, in      which we consider: (         1) whether the


place and process historically have been open to the press and general public (experience prong),

and ( 2) whether public access plays a significant positive role in the functioning of the




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44061 -0 -I1




proceeding ( logic prong). Id.          at   72 -73.   Only if both questions are answered in the affirmative is

the public trial right implicated. Id. at 73.

          2.     Objections to Voir Dire Questions


          McClure argues that his public trial right was violated when the trial court heard an

objection to one of the State' s questions to a juror at a sidebar conference. We disagree.

          During   voir     dire, the State    asked a prospective         juror, "[ I] f I asked you right now to think


of your   last   sexual experience and stand           up   and   tell   us about   it..."   RP ( Aug. 7, 2012) at 106.

McClure objected in open court and requested a sidebar discussion. It appears from the record


that only a discussion of the propriety of the question itself, not the actual questioning of

prospective jurors, occurred during the sidebar.conference.

          Applying the experience prong of the Sublett test, we note that neither party cites any

authority suggesting that objections to questions to prospective jurors made during voir dire

historically have been addressed in public. Further, the cases holding that voir dire is subject to

the public trial right involved the actual questioning of jurors in a closed court. See, e. g., State v.

Strode, 167 Wn.2d 222, 226 -27, 217 P. 3d 310 ( 2009) ( individual voir dire of jurors in chambers


violated public     trial   right);   In re Pers. Restraint of Orange, 152 Wn.2d 795, 812, 100 P. 3d 291

 2004) ( public trial right violated when entire voir dire closed to all spectators).


          Here, by contrast, there is no indication that any prospective juror was subjected to

questioning off the record. Accordingly, we hold that McClure' s challenge to the practice of

sidebar discussions for objections on jury questions during voir dire does not satisfy the

 experience" prong of the experience and logic test. Therefore, argument on objections to voir

dire questions does not implicate the public trial right.


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44061 -0 -II



        3.      Peremptory Juror Challenges

        McClure argues that the trial court violated his right to a public trial by allowing

peremptory juror challenges to be made at a sidebar conference. We held in State v. Dunn, 180

Wn. App. 570, 321 P. 3d 1283 ( 2014) and again in State v. Marks, No. 44919 -6 -II, 2014 WL

6778304, ( Wash.    Ct. App. Dec. 2, 2014) that exercising peremptory challenges does not

implicate the public trial right. Accordingly, we hold that the trial court did not violate

McClure' s public trial right by allowing counsel to make peremptory challenges at a sidebar

conference.



        4.     For Cause Juror Dismissals


        McClure argues that his public trial right was violated when the trial court addressed for

cause challenges ofjurors 1, 15, and 44 during a sidebar conference. 3 We disagree because at

sidebar the trial court merely announced its ruling on the in -court for cause challenges of jurors 1

and 15, and its sua sponte dismissal of juror 44 was based on hardship and was not truly a for

cause dismissal.


        Division Three of this court in State v. Love held that the exercise of for cause juror

challenges     during   a sidebar conference   did   not violate   the defendant'   s public   trial   right.   176 Wn.


App.   911, 919, 309 P. 3d 1209 ( 2013).       However, this division has not yet addressed whether for

cause juror challenges implicate the public trial right. In this case, we need not decide whether a


party' s for cause challenges or argument on those challenges implicates the public trial right

because neither party made for cause challenges at the sidebar conference.



3 McClure also references the trial court' s dismissal of juror 47. However, although juror 47' s
dismissal was discussed at sidebar, that juror actually was dismissed for cause in open court.
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44061 -0 -II




               a.   Jurors 1 and 15


        Voir dire of jurors 1 and 15 occurred in open court. Significantly, McClure (juror 1) and

the State ( juror 15) also made for cause challenges of both jurors in open court. The trial court


briefly discussed the challenges and deferred ruling until the end of voir dire. The record

indicates that at the sidebar conference the trial court ruled on these in -court juror challenges,


dismissing both jurors without objection.

        The question here is whether the trial court' s ruling on the in -court for cause challenges

of jurors 1 and 15 implicates the public trial right. Our Supreme Court has not held that the trial


court' s rulings on for cause challenges must be announced in open court. Therefore, we must


apply the experience and logic test to determine if the public trial right applies. Sublett, 176

Wn.2d at 73.


        The experience and logic test does not suggest that the trial court' s ruling on for cause

juror challenges implicates the public trial right. Regarding the experience prong, the rulings

regarding jurors 1 and 15 here were " announced" in writing on a document that was filed in the

public record. We have been cited no authority indicating that this procedure is improper, or that

a trial court' s act of announcing its rulings on juror dismissals historically has been open to the

public. Regarding the logic prong, the public would not play a significant positive role in the

functioning of the trial court' s ruling on for cause juror challenges. Therefore, we hold that the

trial court' s announcement of its ruling on in -court for cause juror challenges does not satisfy the

experience and logic test.




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44061 -0 -II



        We hold that when voir dire of jurors occurs in open court, and when the parties' for

cause challenges of jurors and a discussion of those challenges all occur in open court, a trial


court' s announcement of its ruling on the challenge does not implicate the public trial right.

               b.     Juror 44


        The dismissal ofjuror 44 involves a slightly different situation. The trial court conducted

a brief voir dire of juror 44 in open court, where the juror stated that he was the sole caregiver of


his 95- year -old father. Juror 44 indicated that he needed to take his father to a cardiac


maintenance program two times per week and also needed to assist him with dressing, bathing,

and other activities because his father had suffered a stroke. Neither party questioned juror 44

during the remainder of voir dire. At sidebar, the trial court apparently excused juror 44 without
                                      4
objection   from    either   party.


        As with jurors 1 and 15, the record indicates that during the sidebar conference neither

party challenged juror 44 for cause. Instead, the trial court dismissed juror 44 sua sponte because

of his caregiver responsibilities. And although the trial court stated that juror 44 was dismissed


for cause, it is clear that the basis of the dismissal was juror hardship. Under RCW 2. 36. 100, a

trial court has broad discretion to excuse prospective jurors based on undue hardship or extreme

inconvenience. Juror 44 clearly fell within this category. As a result, the dismissal ofjuror 44

was akin to an administrative dismissal that we held does not implicate the public trial right. See


State v. Wilson, 174 Wn. App. 328, 342 -47, 298 P. 3d 148 ( 2013).




4 Even though the trial court stated that it excused juror 44, the jury panel selection list states that
juror 44 was not reached.

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44061 -0 -II



         We hold that the trial court' s dismissal of juror 44 based on his caregiver responsibilities

did not implicate the public trial right.


         5.    Argument on Evidentiary Objections

         McClure argues that his public trial right was violated when the trial court heard


argument on evidentiary objections and made rulings at sidebar conferences. We disagree.

         Our Supreme Court recently              addressed       this issue in State           v.   Smith,    Wn.2d ,     334


P. 3d 1049 ( 2014).     In Smith, the court held that sidebar conferences on evidentiary matters do not

implicate the   public   trial   right.   Id.   at   1052 -55.    Accordingly, we hold that the trial court did not

violate McClure' s public trial right by hearing argument on evidentiary matters at a sidebar

conference.



         6.    Witness Scheduling Issues

         McClure argues that his public trial right was violated when the trial court addressed


witness scheduling issues at sidebar. Specifically, the parties discussed at different sidebar

conferences RH' s ability to take the stand for cross -examination when she was feeling ill and

recalling McClure to testify. We disagree.

         In In re Detention of Ticeson, Division One of this court recognized the wide variety of

activities a judge may conduct in chambers, noting that a judge may " sign an agreed order; hold

pretrial conferences; speak privately with counsel to caution against uncivil behavior; inquire as

to the time neededfor remaining witnesses; discuss jury instructions; or do any of the myriad

things   judges do in    chambers     to   ensure      trials   are   fair   and   to   save   time."    159 Wn. App. 374, 386,

246 P. 3d 550 ( 2011) (    emphasis added).             Ticeson supports the conclusion that witness scheduling

discussions do not implicate the public trial right.


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44061 -0 -II



          Further, the experience and logic test does not support application of the public trial right


to these types   of   discussions.      Sidebar discussions to handle the scheduling of witnesses here

were the type of activity historically not required to be held in open court. Further, McClure

fails to show how holding such discussions on the record would play a significant positive role in

the functioning of the trial court.

          Accordingly, we reject McClure' s argument that discussions regarding witness

scheduling issues at sidebar violated his public trial right.

B.        OPINION TESTIMONY


          McClure argues that the trial court violated his right to a trial by jury when Dr. Duralde

testified that child sexual abuse often is perpetrated by close family members because that

testimony was a comment on McClure' s guilt. We decline to address this issue because it was

not raised in the trial court.


          Although McClure moved to exclude Dr. Duralde' s testimony on the ground that she was

going to improperly comment on RH' s credibility by discussing delayed reporting, McClure did

not move to exclude her testimony or object at trial for the reason he now raises on appeal —

improperly commenting on his guilt. Even if a defendant objects to the introduction of evidence

at trial, he or she " may assign evidentiary error on appeal only on a specific ground made at

trial."   State v. Kirkman, 159 Wn.2d 918, 926, 155 P. 3d 125 ( 2007).


          Under RAP 2. 5( a), we generally do not review an evidentiary issue raised for the first

time   on appeal.     State   v.   Robinson, 171 Wn.2d 292, 304 -05, 253 P. 3d 84 ( 2011).   McClure does


not argue that any of the exceptions to RAP 2. 5( a) apply. Therefore, we decline to address this

issue.



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44061 -0 -II



C.      PROSECUTORIAL MISCONDUCT


        McClure argues that the prosecutor committed misconduct by commenting on his right to

confront witnesses and by misrepresenting the evidence. We disagree.

        1.      Legal Principles


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

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

improper     and prejudicial."      In re Pers. Restraint of Glasmann, 175 Wn.2d 696, 704, 286 P. 3d

673 ( 2012).    We review the prosecutor' s conduct and whether prejudice resulted therefrom " by

examining that conduct in the full trial context, including the evidence presented, `the context of

the total argument, the issues in the case, the evidence addressed in the argument, and the

instructions    given   to the   jury.' " State v. Monday, 171 Wn.2d 667, 675, 257 P. 3d 551 ( 2011)

 internal    quotation marks omitted) (     quoting State v. McKenzie, 157 Wn.2d 44, 52, 134 P. 3d 221

 2006)).     A prosecutor has wide latitude in making arguments to the jury and may draw

reasonable inferences from the evidence. State v. Fisher, 165 Wn.2d 727, 747, 202 P. 3d 937

 2009). 5




5 Where, as here, the defendant failed to object to the challenged portions of the prosecutor' s
argument, he is deemed to have waived any error unless the prosecutor' s misconduct was so
flagrant and ill-intentioned that an instruction could not have cured the resulting prejudice. State
v. Emery, 174 Wn.2d 741, 760 -61, 278 P. 3d 653 ( 2012). Because we hold that the prosecutor

did not engage in misconduct, we do not address waiver.

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44061 -0 -II




             2.   Right to Confront Witnesses


             McClure argues that the prosecutor' s comments regarding RH' s difficulty testifying at

trial in front of McClure violated his constitutional right to confront witnesses against him. We

disagree.


             The Sixth Amendment to the United States Constitution and article 1, section 22 of the

Washington Constitution give a defendant the right to confront the witnesses against him or her.


 The State can take no action which will unnecessarily ` chill' or penalize the assertion of a

constitutional right and the State may not draw adverse inferences from the exercise of a

constitutional right."     State   v.   Gregory,   158 Wn.2d 759, 806, 147 P. 3d 1.201 ( 2006) ( quoting


State   v.   Rupe, 101 Wn.2d 664, 705, 683 P. 2d 571 ( 1984)).             Therefore, the State may not invite

the jury to draw a negative inference from the defendant' s exercise of a constitutional right,

including the right to confront witnesses against him. Gregory, 158 Wn.2d at 806.

             However, " not   all arguments touching upon a defendant' s constitutional rights are

impermissible       comments on     the   exercise of   those   rights."   Id. at 806. The question is whether


the   prosecutor "   manifestly intended the       remarks   to   be   a comment on   that   right."   State v. Crane,


116 Wn. 2d 315, 331, 804 P. 2d 10 ( 1991). "[            S] o long as the focus of the questioning or argument

 is not upon the exercise of the constitutional right itself,' the inquiry or argument does not

infringe      upon a constitutional right."    Gregory, 158 Wn.2d at 807 ( quoting State v. Miller, .110

Wn. App. 283, 284, 40 P. 3d 692 ( 2002)).

             Here, during closing argument the State discussed RH' s difficulty recalling specific

instances of abuse or dates on which the abuse occurred. The State commented:




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44061 -0 -II




         It' s very hard for her to verbalize, for her to describe to you, for her to find the
         words. She didn' t have the words to explain it, what he did to her. So when you' re
         thinking    about   her testimony specifically,        remember         She' s being
                                                                             these things.

         asked to talk about something that her stepfather did to her, sexually, in a strange
            and intimidating environment, from that stand, in front of all of you, other strangers
         who are present here in the courtroom, but also in front of the person who abused
         her.


RP ( Aug. 27, 2012) at 980 -81 ( emphasis added).

         McClure cites State v. Jones, in which Division One of this court held that the State


violated the defendant' s right to confrontation when the prosecutor suggested that the defendant

was frustrated when he could not make eye contact with the victim and that the victim' s

courtroom contact with the defendant was so traumatic that she could not return to court. 71 Wn.


App.   798, 811 - 12, 863 P. 2d 85 ( 1993).    The court held that the comments invited the jury to

draw a negative inference from the defendant' s exercise of his right to confront witnesses. Id. at

811 - 12.


            However, the prosecutor' s comments here involved a general discussion of why RH' s

testimony was credible and the emotional toll imposed on RH, comments similar to those

approved by our Supreme Court in Gregory. In that case, the victim testified that having to

appear in court and be cross -examined was horrific. Gregory, 158 Wn.2d at 805 -06. The

prosecutor referenced this testimony in closing, implying that the victim would not have

subjected herself to taking the stand had she not been telling the truth. Id. Our Supreme Court

held that the comments were not improper because they were offered to support the victim' s

credibility. Id.    at   808. The   court reasoned   that "[   t] he State did not specifically criticize the

defense' s cross -examination of [the victim] or imply that [the defendant] should have spared her

the   unpleasantness of      going through trial." Id. at 807.



                                                          14
44061 -0 -I1



         Here, as in Gregory, the prosecutor discussed RH' s difficulty testifying to explain the

inconsistencies in her testimony and to establish her credibility. Although the prosecutor

specifically mentioned RH having trouble testifying in front of McClure, the comment was made

in the context of RH' s difficulty explaining the abuse and how the public nature of the discussion

amplified her discomfort. Further, unlike in Jones, in which the prosecutor specifically

referenced the defendant' s attempt to make eye contact with the victim, the State did not


specifically criticize McClure' s cross -examination of RH or imply that McClure " should have

spared   her the   unpleasantness of   going through trial."   Gregory, 158 Wn.2d at 807; see also

Jones, 71 Wn. App. at 811 -12.

         Considering the argument as a whole, the prosecutor' s comments did not improperly

infringe on McClure' s right to confront witnesses. Accordingly, we hold that McClure' s

prosecutorial misconduct claim on this basis fails.

         3.    Arguing Facts Not in Evidence

         McClure argues that the prosecutor improperly argued facts not in evidence during

closing argument by mischaracterizing Dr. Duralde' s testimony regarding sexual abuse victims'

inability to recall specific dates and times that the abuse took place. We disagree.

         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. Stenson, 132 Wn.2d 668, 727,

940 P. 2d 1239 ( 1997).    However, a prosecutor commits misconduct by arguing to the jury based

on evidence outside the record. Glasmann, 175 Wn.2d at 704.


         At trial, Dr. Duralde testified that most children have trouble recalling specific dates and

times when sexual abuse occurred. She testified that the same was true for adults because " if


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44061 -0 -II




something has         occurred over a period of         time,   it certainly is harder to say, `    Oh, it was this day' or

It   was   that   day,'   and   to   sort of pinpoint   it because    sometimes   it   sort of   blends together." RP


Aug. 23, 2012) at 794. In closing argument, the State referenced this testimony, stating:


            R] emember Dr. Duralde explaining that this is typical of kids, to not be able to
           give specific dates; specific instances, particularly when they occurred over an
           extended period of          They' re bound to blend together, as they did for her.
                                         time.

           Instances that stood out did so because they were slightly different, like in the car,
           or   the   one   time     they did it in [ AM]'   s room.    They   were    different. Even then she

           couldn' t say exactly when it happened because it was in the context of this same
           thing happening over and over again.

RP ( Aug. 27, 2012) at 982.

           McClure argues that the prosecutor mischaracterized Dr. Duralde' s testimony that

victims have trouble remembering dates and times of abuse by stating that victims also have

trouble recalling " specific instances" of abuse. Br. of Appellant at 24. Although Dr. Duralde did

not specifically mention " specific instances" of abuse, her testimony, when taken in context,

generally conveyed that victims have difficulty recalling specific dates on which instances of

sexual abuse occurred because of the ongoing nature of the abuse. The prosecutor conveyed a

similar message in closing., and the fact that the prosecutor mentioned " specific instances" in

addition to specific dates and times does not amount to a mischaracterization of Dr. Duralde' s

statements.




           The prosecutor' s comments regarding Dr. Duralde' s testimony were not improper.

Accordingly, we hold that McClure' s prosecutorial misconduct claim on this basis fails.




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D.           SUFFICIENCY OF EVIDENCE OF POSSESSION


             McClure challenges the sufficiency of the evidence to support his conviction for

possession of depictions of minors engaged in sexually explicit conduct because the State failed

to prove that he knowingly possessed the images found on his computer. We disagree.

             1.   Standard of Review


             A criminal defendant challenging the sufficiency of the State' s evidence on appeal admits

the truth of that evidence, and we draw all reasonable inferences therefrom in the State' s favor.

State   v.   Homan, 181 Wn.2d 102, 106, 330 P. 3d 182 ( 2014).    Evidence is legally sufficient to

support a guilty verdict if any rational trier of fact, viewing the evidence in the light most

favorable to the State, could find the elements of the charged crime beyond a reasonable doubt.

State   v.   Owens, 180 Wn.2d 90, 99, 323 P. 3d 1030 ( 2014). We defer to the trier of fact on issues


of conflicting testimony, witness credibility, and persuasiveness of the evidence. State v.

Thomas, 150 Wn.2d 821, 874 -75, 83 P. 3d 970 ( 2004).


             2.   Sufficient Evidence of Knowledge


             The jury found McClure guilty of second degree possession of depictions of a minor

engaged in sexually explicit conduct. A person commits the crime of second degree possession

of depictions of a minor engaged in sexually explicit conduct " when he or she knowingly

possesses any visual or printed matter depicting a minor engaged in sexually explicit conduct."

RCW 9. 68A.070( 2)( a).


             In order to satisfy the knowledge requirement in RCW 9. 68A.070( 2)( a), the State must

prove that the defendant ( 1) knowingly possessed visual or printed matter depicting a minor




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44061 -0 -I1




engaged in sexually explicit conduct, and ( 2) knew the person depicted was a minor. State v.

Garbaccio, 151 Wn.       App.   716, 734, 214 P. 3d 168 ( 2009). Under RCW 9A.08. 010( 1)( b):


        A person knows or acts knowingly or with knowledge when:
         i) he or she is aware of a fact, facts, or circumstances or result described.by a statute
        defining an offense; or
         ii) he or she has information which would lead a reasonable person in the same
        situation to believe that facts exist which facts are described by a statute defining
        an offense.



        At trial, the State' s computer crimes detective testified that he discovered 17 thumbnail

images of RH in various stages of undress on McClure' s computer. He stated that the files were


not actually saved to the computer and that the images were likely saved while a digital camera

was attached   to the   computer and    that   while   the photos were      being    viewed on   the   computer, "     in


the background, the     program   has   a   hidden file that'   s   storing the   pictures you' re   clicking   on."   RP


 Aug. 8, 2012) at 174. The images were then copied to the computer' s hard drive when the

computer was shut down. The detective further explained that the average computer user would


not be able to find the images.


        McClure argues that the State failed to prove that he had knowledge that he possessed the


images found on his computer because the images were not intentionally saved to the computer

and were difficult to find. However, the knowledge required under RCW 9. 68A.070( 2)( a) is


simply knowledge that the defendant possessed the depictions. There is no requirement that the

defendant have specific knowledge that the depictions were located in a particular place, here


McClure' s computer. See Garbaccio, 151 Wn. App. at 734.

        There was ample evidence from which a rational juror could have found that McClure


knew that he possessed the images even if he did not know they were on his computer. The



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detective testified that the file path for the pictures included McClure' s user name. In addition,


the computer was in McClure' s home, McClure frequently used it, he controlled the children' s

access to it, and had his own password. There also was evidence that McClure owned a digital

camera and that others were required to ask permission to use it. Further, RH testified that


McClure took the photographs of her that were found on the computer.


        Viewing this evidence in the light most favorable to the State, a rational trier of fact could

find that McClure knew he possessed the images found on his computer. Accordingly,

McClure' s challenge to the sufficiency of the evidence on his conviction for possession of

depictions of minors engaged in sexually explicit conduct fails.

E.      PERSISTENT OFFENDER SENTENCE


        McClure argues that his persistent offender sentence violates his due process and equal


protection rights because his prior conviction was not proved to ajury beyond a reasonable

doubt. However, our Supreme Court recently confirmed that for the purposes of persistent

offender sentencing, a judge rather than a jury may find the fact of a prior conviction by a

preponderance of the evidence. State v. Witherspoon, 180 Wn.2d 875, 891 -92, 329 P. 3d 888

 2014). Therefore, McClure' s arguments fail.


F.      PROHIBITION ON CONTACT WITH MINORS


        McClure argues that the trial court' s sentencing condition that prohibits him from contact

with minors interferes with his fundamental right to parent his minor son. We disagree.

         1.    Crime -Related Prohibitions


          As a part of any sentence, the court may impose and enforce crime -related prohibitions

and affirmative conditions as provided   in this   chapter."   RCW 9. 94A.505( 8).   A "[ c] rime- related



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prohibition" is an order " prohibiting conduct that directly relates to the circumstances of the

crime."       RCW 9. 94A. 030( 10). This includes no- contact orders. State v. Armendariz, 160 Wn.2d


106, 113, 156 P. 3d 201 ( 2007).


             We review a trial court' s imposition of crime -related prohibitions for abuse of discretion.

State   v.   Warren, 165 Wn. 2d 17, 32, 195 P. 3d 940 ( 2008).. A trial court abuses its discretion with


regard to a sentencing condition if its decision is manifestly unreasonable or based on untenable

grounds.          State   v.   Corbett, 158 Wn.         App.    576, 597, 242 P. 3d 52 ( 2010).              Generally, crime -related

prohibitions will              be   upheld   if they   are   reasonably related to the        crime.       Warren, 165 Wn.2d at 32.


             However, "[            m] ore careful review of sentencing conditions is required where those

conditions         interfere        with a   fundamental       constitutional right."        Id.   at   32. Conditions that interfere


with fundamental rights must be " reasonably necessary to accomplish the essential needs of the

State   and public order."               Id. In   addition, such conditions must              be " narrowly drawn,"             and "[   t] here


must    be    no reasonable alternative                way to   achieve    the State'   s   interest." Id.    at   34 -35. "[    T] he


interplay of sentencing conditions and fundamental rights is delicate and fact -specific, not

lending itself to          broad      statements and         bright line   rules."   In re Pers. Restraint ofRainey, 168

Wn.2d 367, 377, 229 P. 3d 686 ( 2010).


             Even though we must review sentencing conditions that interfere with fundamental rights

carefully,        we still review        the imposition         of such conditions      for   an abuse of      discretion. Warren,


165 Wn.2d at 33; Corbett, 158 Wn. App. at 601.

             2.      Fundamental Right to Parent


             The rights to the care, custody, and companionship of one' s children are fundamental

constitutional rights.                Warren, 165 Wn.2d at 34. More specifically, parents have a fundamental

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constitutional right   to   raise   their   children without   State interference.     Corbett, 158 Wn. App. at

598. However, parental rights are not absolute. Id. A trial court can impose a condition


restricting a defendant' s access to his or her own children if the condition is " reasonably

necessary to further the State' s compelling interest in preventing harm and protecting children."

Id.


          3.   Reasonable Necessity of No Contact Order

          McClure argues that the prohibition from contact with all children, including his son, was

not reasonably related to the crime he committed because both the present offenses and his 1993

conviction were committed against girls that were not his biological children.

          Washington courts have been reluctant to uphold no- contact orders with classes of


persons    different than the   crime victim.        Warren, 165 Wn.2d     at   33.   Three cases are illustrative.


In State v. Letourneau, the court invalidated a condition prohibiting the defendant from

unsupervised contact with her biological minor children based on her conviction for second

degree    rape of a child, when      the    victim was not one of    her own    children.   100 Wn. App. 424,

437 -442, 997 P. 2d 436 ( 2000).            In State v. Ancira, the court invalidated a condition prohibiting

the defendant from contact with his two minor children based on a conviction for violation of a

no- contact order   regarding his       wife.    107 Wn.   App. 650,   653 -55, 27 P. 3d 1246 ( 2001).     In State


v. Riles, our Supreme Court invalidated a condition prohibiting the defendant from contact with

minors    based   on a conviction      for the   rape of an adult.   135 Wn.2d 326, 349 -50, 957 P. 2d 655


 1998).


          But here McClure' s son was not in a different class of persons than McClure' s victim, his


step -daughter RH. As McClure points out, there are differences between RH and AM. RH is a

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girl, and she is McClure' s step- daughter. AM is a boy, and he is McClure' s biological son.

However, the two     children      have   one significant   similarity —McClure lived in the same home


with and parented both of them. Two cases have affirmed a trial court' s sentencing condition

prohibiting the defendant from contact with his biological child when the victim was not his

biological child. The key in both cases was that the defendant lived with both the victim and the

child in a parental capacity.

         In State v. Berg, the defendant lived with his girlfriend' s two children and a biological

daughter he had    with    his   girlfriend.   147 Wn.   App.    923, 927, 198 P. 3d 529 ( 2008). The


defendant was convicted of rape and child molestation of his girlfriend' s daughter. Id. at 926 -30.

The defendant testified that he had parented his victim. Id. at 930. Division One of this court

affirmed a sentencing condition that prohibited the defendant from unsupervised contact with

any female minor, including his biological daughter. Id. at 942 -44. The court held that because

Berg lived with the victim and committed the abuse in the home, an order restricting contact with

other female children who lived in the home was reasonable to protect those children from the

same type of harm. Id. at 943.


         In Corbett, the defendant        was convicted of       raping his step- daughter.   158 Wn. App. at

581 -86. The defendant lived with the victim and was her primary caregiver when she was not

with her biological father. Id. at 582. The defendant also had two biological sons. Id. at 597.

We affirmed a sentencing condition barring the defendant from having contact with his minor

sons.   Id. at 597 -601.    We emphasized that, as in Berg, the defendant lived in the same home as

his victim. Corbett, 158 Wn. App. at 598 -99. Because the defendant was in a parenting role and

sexually abused a minor in his care, the no- contact order was necessary to protect the defendant' s

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children " because of his history of using the trust established in a parental role to satisfy his own

prurient   desire to sexually   abuse minor children."             Id. at 599.


         In addition, in Corbett we expressly rejected the same argument McClure makes here

that the defendant' s male children did not fall within the class of his female victim. Id. at 600-

01.   We stated:


         Here, Corbett'   s   convicted    crime     is the   sexual     abuse     of   J. O., a child whom he
         parented. Because Corbett' s victim was a minor girl whom he parented, his classes
         of victims are " minors    he    parents"    in   addition     to "   minor girls. ",   Corbett' s crime
         establishes   that he abuses     parental   trust to satisfy his        own prurient     interests. The

         trial court' s no- contact order prohibiting Corbett from having contact with his
         biological children is directly related to his crime because they fall within a class
         of persons he victimized.


Id. at 601 ( emphasis in original).


         Here, the facts surrounding McClure' s abuse of RH are analogous to those in Corbett.

McClure sexually abused a child whom he parented. Therefore, RH and McClure' s son were in

the   same class of persons — children      whom McClure parented. And this means that the


sentencing condition was reasonably related to the State' s interest in protecting AM. The fact

that RH and AM are a different gender is immaterial.


         We hold that the trial court did not abuse its discretion in imposing a sentencing

condition that prohibited McClure from contact with his biological son.

G.         SAG Arguments


           McClure asserts in his SAG that ( 1) the jury was prejudiced against him because some of

its members stated during voir dire that they believed someone charged with the same crimes as

McClure must be guilty, and ( 2) the State improperly asked leading questions to RH. We reject

these assertions.



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          First, the trial court excused for cause the prospective jurors who indicated they would be

unable to remain impartial. Because none of these prospective jurors were empaneled in the


jury, their views could not prejudice McClure.

          Second, the trial court did not abuse its discretion by allowing the prosecutor to use

leading   questions while     questioning RH.   Under   ER 611(    c),   leading questions may only be used

on   direct   examination " as   may be necessary to   develop   the   witness'   testimony." The trial court

has broad discretion to determine whether leading questions are necessary to develop a witness' s

testimony. State     v.   Delarosa- Flores, 59 Wn.   App.    514, 517, 799 P. 2d 736 ( 1990).    Considering

the traumatic nature of RH' s testimony and her young age, we hold that the trial court did not

abuse its discretion by allowing the leading questions in this case.

          We affirm McClure' s convictions and sentence.


          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 pursuant to RCW 2. 06. 040, it

is so ordered.




 We concur:




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