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    IN THE COURT OF APPEALS OF THE STATE OF WASHI3N

                                            DIVISION II

 STATE OF WASHINGTON,                                                     No. 44815 -7 -II


                                   Respondent,


        v.

                                                                    UNPUBLISHED OPINION
 SHERMAN ROBERTS,


                                   Appellant.




       MAxA, J. —     Sherman Roberts appeals his convictions of rape of a child in the third

degree and child molestation in the third degree: He argues that the trial court should have

granted his motion to dismiss after the State asked a witness an objectionable question about


Roberts' s uncharged sexual misconduct. We disagree and hold that the trial court did not abuse


its discretion in denying his motion to dismiss. Roberts also claims that the trial court acted

without statutory authority when it ordered forfeiture of any property in law enforcement' s

possession. We agree and hold that the trial court erred in ordering forfeiture in the absence of

any statutory authority. Accordingly, we affirm Roberts' s convictions but remand to strike the

forfeiture provision from his judgment and sentence.


                                                   FACTS


       In January 1990, Roberts pleaded guilty to two felony sex offenses committed against

AB, who at the time of the offenses was his twelve year old step- daughter. In April 1992, AB

disclosed to her   school nurse   that Roberts   was again   sexually abusing her.   Following   an
44815 -7 -II



investigation, the State charged Roberts with two counts of rape of a child in the third degree and

one count of child molestation in the third degree. Roberts then disappeared until he was

apprehended in Texas in 2012 and brought to trial.


          During Roberts' s cross =examination of AB' s mother, Roberts sought to impeach AB' s

testimony regarding Roberts' s conduct by introducing evidence that the 1990 convictions ensued

after he turned himself into the police following a meeting AB' s mother had with AB, two of

AB' s friends, and one of the friend' s mother. AB' s mother described being shocked at what the

girls   told her.   During   the State'   s redirect examination,   the   prosecutor asked, "   And you found out


that the defendant may        have   exposed   himself to them; is that     correct ?"   Report of Proceedings at


212. The trial court sustained Roberts' s objection and AB' s mother did not answer the question.

          Roberts moved for dismissal based on prosecutorial misconduct. Roberts explained that


he was not seeking a mistrial and did not want a curative instruction. The trial court denied the

motion to dismiss, explaining that the question was objectionable but that the State had asked it

in good faith and was not intentionally violating the trial court' s earlier limitations on evidence

of prior   bad   acts.'   Roberts then conceded that the State may have been negligent in asking the

question, but that it was not intentional misconduct.


           The jury found Roberts guilty of all three counts. The trial court imposed standard range

sentences, and as part of the judgment and sentence notified Roberts of the following:

           Property may have been taken into custody in conjunction with this case. Property
           may be returned to the rightful owner. Any claim for return of such property must
           be   made within   90 days.
                                    After 90 days, if you do not make a claim, property may
           be disposed of according to law.


  During a preliminary hearing, the trial court limited the State' s ability to present evidence of
Roberts' s prior misconduct.



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44815 -7 -II




Clerk' s Papers ( CP)      at   119. Below this, the trial      court wrote           in: "   Forfeit any items seized by law

enforcement."       CP    at   119. Roberts appeals his convictions and the forfeiture order.


                                                          ANALYSIS


A.       MOTION TO DISMISS


         Roberts argues that the trial court abused its discretion in not granting his motion to

dismiss under CrR 8. 3( b) based on the prosecutor' s question about uncharged sexual misconduct.


As noted above, trial counsel specifically asked for dismissal, not for a mistrial, and refused any

curative instructions. Therefore, our review is limited to whether the trial court erred in denying

the motion to dismiss. We hold that the trial court did not err.


         CrR 8. 3( b) provides that the trial court " may dismiss any criminal prosecution due to

arbitrary action or governmental misconduct when there has been prejudice to the rights of the

accused which       materially     affect   the    accused' s right   to a   fair trial."     2 To support dismissal under

CrR 8. 3( b),   the defendant must show by a preponderance of the evidence both ( 1) arbitrary

action or governmental misconduct, and ( 2) actual prejudice affecting the defendant's right to a

fair trial. State   v.   Rohrich, 149 Wn.2d 647, 654, 658, 71 P. 3d 638 ( 2003); State v. Wilson, 149


Wn.2d 1, 9, 65 P. 3d 657 ( 2003).                Significantly, dismissal under CrR 8. 3( b) is an extraordinary

remedy that is improper except in truly egregious cases of misconduct that materially prejudice

the   rights of   the   accused.   State    v.   Moen, 150 Wn.2d 221, 226, 76 P. 3d 721 ( 2003).                The trial


court should      dismiss      under   CrR 8. 3( b) only   as a "   last   resort."     Wilson, 149 Wn.2d at 12.




2 CrR 8. 3( b) allows dismissal on motion of the court rather than on the defendant' s motion.
However, the State does not argue that CrR 8. 3( b) is inapplicable here, so we do not address this
issue.



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             We review a trial court' s decision on a motion to dismiss for a manifest abuse of

discretion. State      v.   Everybodytalksabout, 145 Wn.2d 456, 39 P. 3d 294 ( 2002). The trial court


abuses its discretion if the decision is manifestly unreasonable or is based on untenable grounds.

Rohrich, 149 Wn.2d at 654.


             We find no manifest abuse of discretion here. First, the alleged misconduct was not


 egregious."       As the trial court pointed out, the State merely asked one objectionable question on

an issue in which the State argued that Roberts had opened the door. Second, Roberts cannot

show actual prejudice. Roberts quickly objected to the State' s question, and the jury never heard

the answer. In addition, the trial court instructed the jury to consider only the evidence, not the

statements or remarks         from   counsel. "   We presume that juries follow all instructions given."


State   v.   Stein, 144 Wn.2d 236, 247, 27 P. 3d 184 ( 2001).         Because AB' s mother did not answer


the State' s question, under the trial court' s instructions there was no evidence of prior sexual


misconduct admitted for the jury to consider.

             Roberts claims that the prosecutor' s statement affected the entire trial such that the jury

could not render a fair verdict. We disagree. The jury heard about Roberts' s prior convictions

for molesting AB. It heard how the sexual abuse continued, even while Roberts was prohibited


from any contact with AB. And it heard that AB wanted the abuse to stop and finally reported

what Roberts was doing. Given this evidence, it was not an abuse of discretion for the trial court

to conclude that a question implying that Roberts may have exposed himself in front of AB and

her friends three years earlier did not establish actual prejudice.


             We hold that the trial court' s decision to deny the CrR 8. 3( b) motion to dismiss was not

an abuse of       discretion. Therefore,    we affirm    Roberts'   s convictions.
44815 -7 -II



B.        FORFEITURE OF SEIZED PROPERTY


          Roberts argues that the trial court acted without statutory authority when it ordered

forfeiture of all property law enforcement seized. We agree.

          A trial court has no inherent power to order forfeiture of property in connection with a

criminal conviction.    State   v.   Alaway,   64 Wn.   App.   796, 800, 828 P. 2d 591 ( 1992). The


authority to order forfeiture of property as part of a judgment and sentence is purely statutory.

Alaway, 64 Wn. App. at 800. We review de novo whether the trial court had statutory authority

to impose a sentencing condition. State v. Armendariz, 160 Wn.2d 106, 110, 156 P. 3d 201

 2007).


          Here, the trial court did not provide any statutory authority for its forfeiture order. The

State also does not attempt to argue that the trial court had statutory authority to forfeit seized

property. Accordingly, we have no basis upon which we can affirm the trial court' s order.

          The State argues that CrR 2. 3( e) allows a defendant to move at any time for the return of

seized property, and that Roberts failed to do so. But CrR 2. 3( e) does not provide any statutory

authority for forfeiture of seized property. And even if CrR 2. 3( e) somehow authorized

forfeiture, that rule applies only to property seized in an unlawful search. There is no indication

that any property here was seized in an unlawful search.

          The State relies on State v. McWilliams, in which we held that the trial court did,not

abuse   its discretion in ordering the forfeiture       of seized   property.   177 Wn. App. 139, 152, 311

P. 3d 584 ( 2013),   review   denied, 179 Wn.2d 1020 ( 2014). However, in that case the defendant


apparently did not argue that the trial court had no statutory authority to forfeit seized property.

Instead, the defendant argued that the trial court exceeded its statutory authority by ordering



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forfeiture without procedural due process. McWilliams, 177 Wn. App. at 149. We noted that the

ability to move for return of the property under the provisions of his judgment and sentence and

under   CrR 2. 3(   e)   afforded   him due   process.     McWilliams, 177 Wn.           App.   at   150 -51.   In addition,


we pointed out that the defendant had not even asserted a possessory interest in the property.

McWilliams, 177 Wn. App. at 152. But we did not hold that the trial court could order forfeiture

in the absence of statutory authority.

         We hold that the State has not shown that the trial court had statutory authority to order

forfeiture of the seized property. Therefore, the trial court erred in ordering forfeiture and the

forfeiture provision must be stricken from Roberts' s judgment and sentence.


         We    affirm    Roberts'   s convictions,   but   remand   to   strike   the   phrase "[    f]orfeit any items

seized by law enforcement" from the judgment 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 in accordance with RCW


2. 06. 040, it is so ordered.




 We concur:




 P / 3R        N, A.Q. J.




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