                                                                                                          FILED
                                                                                                COURT OF APPEALS
                                                                                                    DIVISION 11

                                                                                               2015 FE8 - 3     MI 8: 50
       IN THE COURT OF APPEALS OF THE STAINI9n4AR6VN

                                                             DIVISION II                       BY
                                                                                                          DEPUTY
    STATE OF WASHINGTON,                                                                        No. 44453 -4 -II


                                               Respondent,


            v.



    BRIAN G. HOLLOWAY,                                                                 UNPUBLISHED OPINION


                                               Appellant.




          SUTTON, J. —            Brian G. Holloway appeals his 11 convictions for multiple charges and

degrees of child rape, child molestation, and incest. He argues that ( 1) the trial court violated his


Sixth Amendment            right   to   a   fair trial, to   present a   defense,   and   to   cross -examine witnesses; (    2) the


State failed to      prove second and                third degree     child rape ( counts      IV   and   VIII); (3) the trial court


and the State' s closing argument misstated the burden of proof; and ( 4) the sentences for three of

his   convictions exceed           the statutory        maximum.         We hold that ( 1) the trial court did not violate


Holloway' s Sixth Amendment right by excluding evidence of G. S. R.' s1 prior recantation as
irrelevant for impeachment              under        ER 608( b), ( 2) the State presented sufficient evidence to support


the   jury' s   guilty   verdicts on counts           IV   and   VIII, (3)   the trial court' s jury instruction and the State' s

closing did not misstate the burden of proof as neither were improper, and ( 4) the trial court

imposed         a sentence   that exceeds the statutory                 maximum       for   counts   II, III   and   X.   We affirm


Holloway' s convictions, but remand to amend the community custody terms on counts II, III, and




1
    We   use    initials in the    opinion      to   protect     the confidentiality   of   the juvenile involved.
No. 44453 -4 -II



X so that the total concurrent sentences for each of these counts does not exceed the statutory

maximum.



                                                                 FACTS


                                I. G. S. R.' S PRIOR ALLEGATION AND HOLLOWAY' S ABUSE


          When G. S. R. was seven years old and living with her biological mother in Montana, G.S. R.

disclosed that her biological mother' s boyfriend' s brother had touched her vagina over her clothes

while   she     was    sleeping.       The police department in Montana investigated before deciding not to

pursue    the   case   because G. S. R. " recanted,"           lacked clarity, and made conflicting statements about

the incident. Sealed Clerk' s Papers ( SCP) at 233.


          In 2007 when she was 10 years old, G.S. R. began living with her father, Brian Holloway,
                                                          2
and    her    stepmother,        Stephanie Phelps.            Shortly after G.S. R. came to live with him, Holloway

began touching G. S. R. " in            a   way that   was not good."       3 Verbatim Report of Proceedings ( VRP) at


337.    Holloway used his hand to touch G. S. R.' s bare butt, breasts, and vagina " fifty or more .. .

times."       3 VRP       at   361.   The touching happened "[        a]    lot"   and " at   least   once a month."   3 VRP at


337.


             After   an    incident    on    or   about   July   4, 2011,    G. S. R. became afraid that Holloway had

impregnated her.               G. S. R. disclosed the incident to Stephanie and, with the aid of counseling, she




2 We will refer to Stephanie Phelps ( previously known as Stephanie Holloway) by her first name
for clarity. We         mean no       disrespect.
No. 44453 -4 -II




disclosed the full extent of Holloway' s abuse to the police.3 The State charged Holloway with 11
offenses: (       1) first degree    child molestation ( count    I), ( 2) second degree child molestation ( counts


II   and    III), (3)     second   degree   child rape ( counts   IV    and   V), ( 4) third degree child molestation


 counts      VI   and   VII), (5) third degree    child rape ( counts    VIII   and   IX), (6) first degree incest (count


X),   and ( 7) second degree incest (count XI).4

                                                            II. TRIAL


           A. Motions in Limine to Admit Evidence of G.S. R.' s Recanted Allegation of Abuse


            On the eve of trial, G.S. R.' s biological mother told Holloway' s counsel about G. S. R.' s

prior allegation and recantation.              The trial court granted Holloway' s motion to continue the trial

so   that   Holloway        could   investigate the issue.      Subsequently, the trial court reviewed in camera

sealed records relating to G.S. R.' s prior allegation and the police report stating that G.S. R. recanted

her allegation.


            At trial,      Holloway moved to admit evidence of G.S. R.' s prior recanted allegation.

Holloway argued that in order to present a defense the trial court must allow him to cross -examine

G. S. R. about the recanted allegation and to ask Stephanie whether she had coached G. S. R. to lie.

The trial court ruled that ( 1) the rape shield statute, RCW 9A.44. 020, barred evidence of G. S. R' s




3 The State first charged Holloway with only 1 count each of 4 crimes based on G. S. R.' s initial
limited disclosure: ( 1) Second degree             child molestation, (2)       third degree   child rape, ( 3)   first degree
incest,      and (   4)    second   degree incest.        After G. S. R.' s full disclosure, the State amended its
information, bringing the total crimes charged to 11, as detailed above.

4 The State also charged Holloway with two aggravating factors on each charge, totaling 22
aggravating factors: (
                     1) The offense was part of an ongoing pattern of sexual abuse of the same
victim under the age of 18 years and ( 2) Holloway used his position of trust or confidence to
facilitate the       commission of      the   offenses.
No. 44453 -4 -II



prior recantation and ( 2)     this   evidence was        irrelevant for impeachment    under   ER 608( b). The trial


court ruled that Holloway could not cross -examine either G.S. R. or Stephanie about the prior

recanted allegation.



                                             B.    G. S. R.' s Trial Testimony

          GSR testified about multiple instances of abuse by Holloway. Holloway testified that he

never touched G. S. R. inappropriately.

                                      1.   Count IV – Second degree child rape


          G. S. R. testified that Holloway touched her when she had a red, brown, and yellow plaid

blanket    on   the bed   when she was      in the fifth    grade.   She said that his hand was on the skin of her


vagina and "     in between it." 3 VRP        at   348.    When asked to clarify what she meant, she said:

           G. S. R.]:        I don' t want to say it.
           STATE]:           Did his [ Holloway' s] finger go inside you?
           G. S. R.]:        Not that I recall, but it was almost.
           STATE]:           And so when you say in between it, do you mean in between -
           G. S. R.]:        In the —
           STATE]: —            the folds of your vagina?
           G. S. R.]:        Yes.


3 VRP at 348 -49. The State used this portion of G. S. R.' s testimony during its closing to argue it

proved count IV, second degree child rape, beyond a reasonable doubt.

                                      2. Count VIII – Third degree child rape


          G. S. R. also testified that Holloway touched her when she had a new lava lamp and daybed

in her    room.    She testified that      Holloway " was touching        the   inside —the —touching   the in- crease

of   my   vagina and      rubbing it."     3 VRP     at   360.   The State used this portion of G. S. R' s testimony

during its closing to argue it proved count VIII, third degree child rape, beyond a reasonable doubt.




                                                                 4
No. 44453 -4 -II




                                C. Reasonable Doubt Instruction and Closing Argument

            Both parties proposed a reasonable doubt instruction based on 11 Washington Practice:


Washington Pattern               Jury   Instructions:         Criminal 4. 01,       at   85 ( 3d   ed.   2008) ( WPIC 4. 01).         The


versions were            identical     except      the State'   s proposed    instruction included the              optional "   abiding


belief' language in WPIC 4. 01,                    which read: "      If, from such consideration, you have an abiding

belief in the truth         of   the   charge, you are satisfied          beyond         a reasonable     doubt."    CP   at   106.   The


trial court' s instructions to the jury included the abiding belief language over Holloway' s

objection.         The trial court commented that she always includes this optional sentence in the


reasonable doubt instruction because this language mirrors her initial oral instructions to the jury

at the start of the trial. 4A VRP at 572.


            In its closing, the State discussed how and why the jury should evaluate and find G. S. R.' s

testimony credible. The State first discussed each count against Holloway, detailing the points of

testimony supporting             each count.          The State then explained the reasonable doubt instruction and


said that " it comes down to if you have an abiding belief in the truth of the charge. The law allows

you    to   convict   based      on   the   word of a child."        4B VRP    at   641.     The State urged the jury to convict

Holloway          based    on   the truth     of   G. S. R.' s testimony    over    Holloway' s testimony,           saying, "[ I] f you


sit there     in that     room, ...      and you       say, ` I believe [ G. S. R.].       I believe in the truth of what she is


saying.      I have that abiding belief, a belief that lasts, that I know that this happened to that poor

little   girl,'   then   you must      convict [Holloway]." 4B VRP at 650. The State argued that even though

this     was a case of "[ h] e said, [ she]             said,"     the jury could look to corroborating evidence in the

testimony of the other witnesses and also use their " gut" and " personal opinions" when deciding

who      to believe.       4B VRP        at   643. "    If   you   believe [ G. S. R.], then [ the State]       met    that    burden   of
No. 44453 -4 -II




proof]      beyond    a reasonable         doubt."      4B VRP        at   643 -44.    In rebuttal, the State asked the jury to

review the evidence and find Holloway guilty based on the evidence at trial, telling the jury to

    know what you know in your mind, in your hearts, in every part of you, that that man [ Holloway]

is very guilty      of what       he did to that little       girl[   G. S. R.]."     4B VRP         at   702 -03.   The jury returned

guilty verdicts on all 11 counts and all 22 aggravating factors.

                                                          III. SENTENCING


            The trial court sentenced Holloway to 116 months on each count of second degree child

molestation ( counts         II   and   III)   and   to 102   months       for first degree incest ( count X); these sentences


were to be served concurrently with the sentences on the other eight counts. 5 The trial court also
imposed 36         months of       community custody for                   counts    II, III   and   X.     The statutory maximum

allowed for counts II, III, and X is 120 months. Holloway appeals.

                                                              ANALYSIS


                                        I. ADMISSIBILITY OF RECANTATION EVIDENCE


            Every criminal defendant has the right to a fair trial, to confront the State' s witnesses, and

to   present a     defense   under       the Washington        and    federal       constitutions.        WASH. CONST.       art.   I, § 22;


U. S. CONST.        amend.    VI; State        v.   Jones, 168 Wn.2d 713, 720, 230 P. 3d 576 ( 2010).                        The right to


confront includes the right to meaningfully cross -examine the States' witnesses to cast doubt on

their credibility.         State   v.   Darden, 145 Wn.2d 612, 620, 41 P. 3d 1189 ( 2002).                                Where a jury' s



5
    Holloway does not challenge the sentences on his other counts ( count I, IV, V, VI, VII, VIII, IX
or   XI).   The trial court also sentenced Holloway to ( 1) 198 months for first degree child molestation
    count   I), ( 2) 280   months        for   each count of second           degree     child rape ( counts         IV   and   V), ( 3) 60
months       for   each count of        third degree      child molestation ( counts            VI        and   VII), (4) 60 months for
each count of        third degree        child rape ( counts      VIII      and   IX), and ( 5) 60 months for second degree
incest ( count XI).        All of these sentences were to be served concurrently.


                                                                       6
No. 44453 -4 -II




decision to believe or not believe a single witness is particularly important to the outcome of the

case,   the   witness' s    credibility " must be   subject   to   close   scrutiny."   State v. Roberts, 25 Wn. App.

830, 834, 611 P. 2d 1297 ( 1980).              This right is limited by rules governing the admissibility of

evidence.      State   v.   Finch, 137 Wn.2d 792, 825, 975 P. 2d 967 ( 1999); see also State v. Donald, 178


Wn.     App.   250, 263 -64, 31,6 P. 3d 1081 ( 2013),         review     denied, 180 Wn.2d 1010 ( 2014). The right


to confront the State' s witnesses does not include the right to admit otherwise inadmissible

evidence. State v. Aguirre, 168 Wn.2d 350, 362 -63, 229 P. 3d 669 ( 2010).


          We normally review evidentiary rulings for an abuse of discretion. State v. Williams, 137

Wn. App. 736, 743, 154 P. 3d 322 ( 2007). But we review de novo a defendant' s claim he has been


denied his constitutional right to present a defense. Jones, 168 Wn.2d at 719. In Donald, Division

One of our court recognized the conflict between these two standards when the defendant asserts


a constitutional right to present a defense. Donald, 178 Wn. App. at 255. Our court did not resolve

this conflict       because    we   held that the trial   court    did   not err under either standard.   Donald, 178


Wn.     App.   at   255. We adopt that same approach here.


          Holloway argues that the trial court violated his right to confront the State' s witnesses when

it erroneously excluded evidence of G.S. R.' s prior recanted allegation under the rape shield statute




                                                               7
No. 44453 -4 -II•



                                                                                                              6
and       found this          evidence       was    irrelevant for impeachment          under   ER 608( b).       The trial court


improperly          excluded          this   evidence under     the   rape shield statute.   But the trial court did not abuse


its discretion in excluding this                    evidence as      irrelevant for impeachment       under   ER 608( b); nor did


the trial court violate Holloway' s Sixth Amendment right.

                                                  A. Rape Shield Statute Not Applicable


                Holloway sought to cross -examine G.S. R. about her prior recanted allegation, made when

G.S. R. was seven years old involving another male adult, to imply she has a propensity to " cry

rape."          State   v.   Harris, 97 Wn.         App.    865, 872, 989 P. 2d 553 ( 1999). The trial court ruled that this


evidence was not admissible under RCW 9A.44. 020, the rape shield statute. The rape shield statute


does not prohibit admission of evidence of past sexual abuse because the rape shield statute is


concerned with using a victim' s past consenting behavior to discredit a current allegation of sexual

misconduct.              State   v.   Kilgore, 107 Wn.        App.    160, 177, 26 P. 3d 308 ( 2001),    aff'd, 147 Wn.2d 288,

53 P. 3d 874 ( 2002).                 But    consent   is   not an   issue in   child sexual abuse.    State v. Carver, 37 Wn.


App.           122, 124, 678 P. 2d 842 ( 1984).               The trial court erred in applying the rape shield statute to

exclude evidence of G. S. R.' s prior recanted allegation of sexual abuse.




6
     ER 608( b)          provides       that "[   s] pecific instances of the conduct of a witness, for the purpose of
attacking or supporting the witness' credibility, other than conviction of crime as provided in rule
609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court,
if probative of truthfulness or untruthfulness, be inquired into on cross examination of the witness
    1)    concerning the witness' character for truthfulness or untruthfulness, or ( 2) concerning the
character for truthfulness or untruthfulness of another witness as to which character the witness
being cross -examined has testified."
7
     Subject to         certain exceptions,         the   rape shield statute,    RCW 9A.44. 020      provides    that "[   e] vddence

of       the   victim' s past sexual          behavior ...     is inadmissible on the issue of credibility."


                                                                         8
No. 44453 -4 -II



                                        B.    Credibility Evidence Must Be Relevant

          We next review whether the trial court erred when it excluded G. S. R' s recantation as

irrelevant for impeachment                   under   ER 608( b).         Holloway argues that G. S. R.' s prior recanted

allegation of sexual abuse at age seven was relevant to her sexual abuse allegation against him.


Holloway wanted to impeach G.S. R. by cross- examination at trial with her prior recanted

allegation,        which    Holloway         believed to be false.           Holloway argues this excluded potential

testimony would have cast doubt on G.S. R.' s credibility which was essential to the State' s case.

          ER 608 allows a party to cross -examine a witness about specific instances of past conduct

in   order   to   cast   doubt   on   the   witness' s   credibility. ER 608( b).       Credibility impeachment questions

must be relevant to the truthfulness of the witness' s present testimony. State v. Benn, 120 Wn.2d

631, 651 -52, 845 P. 2d 289 ( 1993).                    Such evidence is relevant if it casts doubt on the witness' s


credibility, or the witness' s credibility is " a fact of consequence" to the trial. State v. Allen S., 98

Wn.     App.      452, 459 -60, 989 P. 2d 1222 ( 1999).              A defendant'      s proffered evidence "`   must be of at


least   minimal          relevance '        and he or she cannot avoid this requirement simply because that

evidence is about a past abuse accusation with some relation to the victim' s credibility. Jones, 168

Wn.2d     at   720 ( quoting Darden, 145 Wn.2d                at   622).   A trial court may exclude evidence of specific

instances      of conduct        for impeachment if it is          remote   in time.    State v. Wilson, 60 Wn. App. 887,

893, 808 P. 2d 754 ( 1991).


             The trial     court excluded        this    evidence as     irrelevant.    The trial court found that G.S. R.' s


recanted allegation made when she was 7 years old was not probative of whether G.S. R. was

credible at 15 years old, when she alleged Holloway had sexually abused her for 4 years. We agree

that G. S. R.' s prior recanted allegation was not probative of her truthfulness or untruthfulness as to




                                                                     9
No. 44453 -4 -II




the   current   charges    against   Holloway.    This evidence was irrelevant and inadmissible for


impeachment        under   ER 608( b).   The trial court did not abuse its discretion in excluding this

evidence. Because evidence of G. S. R.' s prior recanted allegation was irrelevant, and the right to

confront does not include the right to admit inadmissible evidence, the trial court did not violate

Holloway' s constitutional right to confront witnesses.

                                  II. SUFFICIENT EVIDENCE OF PENETRATION


          To properly convict a criminal defendant, the jury must decide that the State proved every

element    beyond    a reasonable    doubt. WASH. CONST.     art.   I, §§   3, 22; Apprendi v. New Jersey, 530

U. S. 466, 477, 120 S. Ct. 2348, 147 L. Ed. 2d 435 ( 2000). We decide whether the State presented


sufficient evidence on      the   charges of second and   third   degree    child rape   by   asking "` whether any


rational fact finder could have found the essential elements of the crime beyond a reasonable

doubt ' based upon the evidence the State presented on the record. State v. Drum, 168 Wn.2d 23,


34 -35, 225 P. 3d 237 ( 2010) (      quoting State v. Wentz, 149 Wn.2d 342, 347, 68 P. 3d 282 ( 2003)).

We review the evidence in the light most favorable to the State, drawing all reasonable inferences

most favorably to the State and interpreted most strongly against the defendant. Drum, 168 Wn.2d

at 34 -35.


          A person commits second degree child rape when he or she has sexual intercourse with a


child who is at least 12 years old but less than 14 years old; a person commits third degree child

rape when he or she has sexual intercourse with a child who is at least 14 years old but less than

16    years old.   RCW 9A.44. 076; RCW 9A.44. 079. The difference between these two degrees of


child rape is the age of the victim and the difference in age of the perpetrator. RCW 9A.44. 076;


RCW 9A.44. 079. "'         Sexual intercourse '   has its ordinary meaning and includes " any penetration



                                                       10
No. 44453 -4 -II




of   the vagina ...     however       slight,     by   an object,"   when committed on one person by another. RCW

9A.44. 010( 1)(   a) -( b).




           Holloway argues that the State did not prove he committed second or third degree child

rape as charged in counts IV and VIII because the State did not present sufficient evidence of


vaginal penetration.8 He argues that G.S. R. described Holloway touching, at most, G.S. R.' s labia
minora, which,         according to         Holloway,      is   not part of   the   definition   of "vagina."   Br. of Appellant


at   20.   The State argues that even if Holloway' s characterization of G. S. R.' s testimony is true, it

presented sufficient evidence of sexual intercourse because the labia is part of the legal definition

of "vagina."      Br.   of   Resp' t   at    20 -21.    We agree with the State.


           Washington courts have long held that the labia minora are part of the female sex organ,

the vagina, and have rejected Holloway' s specific argument at least three times. State v. Snyder,

199 Wash. 298, 300, 91 P. 2d 570 ( 1939);                       State v. Weaville, 162 Wn. App. 801, 813, 256 P. 3d 426

 2011); State     v.    Delgado, 109 Wn.               App.     61, 65 -66, 33 P. 3d 753 ( 2001), rev 'd in part on other


grounds,     148 Wn.2d 723, 63 P. 3d 792 ( 2003);                     State v. Montgomery, 95 Wn. App. 192, 200 -01,

974 P. 2d 904 ( 1999); State                v.   Bishop,   63 Wn.     App.     15, 19, 816 P. 2d 738 ( 1991).       We decline


Holloway' s invitation to reexamine the law on this point.

           The State     provided sufficient evidence of vaginal penetration.                        Viewed in the light most


favorable to the State9, a rational jury could decide that the State presented proof beyond a



8 The jury convicted Holloway of two counts of second degree child rape ( counts IV and V) and
two counts of third degree child                  rape ( counts     VIII   and   IX).   Holloway appeals only two of these
four   rape convictions:           One second degree child rape conviction ( count IV) and one third degree
child rape conviction (count VIII).

9
    Drum, 168 Wn.2d           at   34 -35.
No. 44453 -4 -II




reasonable doubt through G. S. R.' s testimony that Holloway committed every element of second

and third degree child rape as charged. We affirm Holloway' s convictions on counts IV and VIII.

               III. REASONABLE DOUBT JURY INSTRUCTION AND STATE' S CLOSING ARGUMENT


              Holloway argues that the trial court' s instruction on reasonable doubt, combined with the

State' s closing, diluted the State' s burden of proof He also argues that this instruction and the

State' closing deprived him            of   due   process   and warrant reversal of all    of   his   convictions.   We


disagree.


                                          A. Burden of Proof Jury Instruction

              Due process requires that jury instructions clearly inform the jury that the State bears the

burden to prove every essential element of a crime beyond a reasonable doubt. State v. Bennett,

161 Wn.2d 303, 307, 317, 165 P. 3d 1241 ( 2007). It is reversible error when an instruction fails to


do so by relieving the State of its burden. Bennett, 161 Wn.2d at 307. We review challenged jury

instructions de novo. Bennett, 161 Wn.2d at 307.


              WPIC 4. 01 includes optional " abiding belief' language that instructs the jury as follows:

 If,from such consideration, you have an abiding belief in the truth of the charge, you are satisfied

beyond         a reasonable     doubt."     WPIC 4. 01 (    emphasis   omitted).   The   optional "     abiding belief'

language in WPIC 4. 01 is bracketed and is not mandatory on trial courts. Washington courts have

upheld the traditional " abiding belief" instruction multiple times, as has the United States Supreme

Court. See,        e. g.,   Victor v. Nebraska, 511 U. S. 1, 114 S. Ct. 1239, 127 L. Ed. 2d 583 ( 1994) and

State    v.   Pirtle, 127 Wn12d 628, 658, 904 P. 2d 245 ( 1995) (          upholding the " abiding belief" phrase

in the   pattern    instruction because it does       not "   diminish" the definition   of reasonable     doubt),   cert.




denied, 539 U. S. 916 ( 2003).




                                                               12
No. 44453 -4 -II




         Holloway      cites    State    v.   Emery,     174 Wn.2d 741, 278 P. 3d 653 ( 2012) to support his


argument. But that case is distinguishable: Emery held that the State made an improper argument

by telling   the   jury   that its      verdict     needed   to "'     speak   the truth, '               analyzing the issue under

prosecutorial misconduct rules rather than an instructional error. Emery, 174 Wn.2d at 751, 756.

         Contrary to Holloway' s argument, the Washington State Supreme Court in Bennett

instructed trial courts to use WPIC 4. 01 in every criminal case because the concept of reasonable

doubt is   so   fundamental that it           requires   Washington trial           courts          to   adhere   to   a " clear,   simple,



accepted, and uniform          instruction."        Bennett, .161 Wn.2d        at   317 -18.             Failure to use WPIC 4. 01 is


error unless    the   proposed    instruction " proved to be better than the WPIC."                             State v. Castillo, 150


Wn. App. 466, 472 -73, 208 P. 3d 1201 ( 2009).

         The reasonable doubt instruction in Holloway' s trial told the jury that it must " fully, fairly,

and   carefully"   consider all    the   evidence or      lack    of evidence.       CP        at   106 ( Instruction 3).      After this


consideration, the jury was instructed that if they had an " abiding belief' in the truth of the charge,

then   they "[ were]   satisfied   beyond      a reasonable       doubt." CP        at   106 ( Instruction 3).           The reasonable


doubt instruction did not infer or tell the jury, as Holloway argues, to disregard the evidence and

decide the case based on what they thought was true. The trial court' s reasonable doubt instruction,

which included the " abiding belief' language, did not relieve the State of its burden of proof and

this instruction did not violate Holloway' s constitutional rights.

                                               B.   State' s Closing Argument

          Holloway also argues that the State " further diluted" the burden of proof during closing by

asking the jury to rely on their gut, intuition, experiences, hearts, and own feelings when deciding

whether    to believe G. S. R.' s       testimony. Br.       of   Appellant     at       31.    Holloway argues that the State



                                                                  13
No. 44453 -4 -II




appealed to the jury to " find the truth, rather than to determine whether the State had proved each

element of each charged offense               beyond       a reasonable   doubt." Br.      of   Appellant   at   33.   Holloway

never    objected     to the State' s closing         or   the "    abiding belief' language, nor ask for a curative

instruction. We hold that the State' s closing was not improper.

          To prove prosecutorial misconduct, the defendant on appeal must establish that the State' s


statements were improper and prejudicial in the context of the entire record. Emery, 174 Wn.2d

at   760, 761.   If a defendant does not object during closing, the defendant waives any error unless

the misconduct was so flagrant and ill-intentioned that a curative instruction could not have cured


the resulting prejudice and there is a substantial likelihood that the misconduct affected the jury' s

verdict. Emery, 174 Wn.2d at 760 -61.

          Credibility is     within     the   sole   determination       of   the finder   of   fact.   State v. Thomas, 150


Wn.2d 821, 874, 83 P. 3d 970 ( 2004).                  During closing, the State urged the jury to find G.S. R.

credible and to believe her testimony over Holloway' s testimony. By explaining various sources

the jury could use to find G.S. R. credible, the State' s closing was intended to guide the jury in its

credibility determination. The State never told the jury to find the truth, speak the truth, or infer

to the   jurors that   was    their   role.   The State reviewed each count, discussed every element of each

crime,    detailing    the   testimony    and evidence         to   support each count.         The State asked the jury to

convict Holloway based on the evidence and the events that G. S. R. testified to and the State

referred to the " abiding belief' language in the reasonable doubt instruction. The State implored

the jury to convict based on the evidence it presented, not, as Holloway argues, in order to find the

truth.




                                                                    14
No. 44453 -4 -II



        Our court has already held that closing argument statements similar to the State' s closing

here did not constitute prosecutorial misconduct. State v. Curtiss, 161 Wn. App. 673, 701 -02, 250

P. 3d 496 ( 2011) (    holding that the prosecutor did not engage in misconduct by telling the jurors to

examine     their "` gut   '    and    their "` hearts '   to find the defendant guilty).           The State' s closing did not

relieve the State of its burden of proof.


                        IV. THREE SENTENCES EXCEED THE STATUTORY MAXIMUM


        Holloway argues that the sentencing court erred in imposing sentences that exceed the
                                                                                          1°
statutory   maximum        for his      convictions on counts       II, III,   and   X.        The State concedes this issue.


        A term of confinement, combined with a term of community custody, cannot exceed the

statutory maximum for the crime as provided in RCW 9A.20. 021; the trial court must reduce the

term of community custody                   if the   combined     total   is beyond the           maximum     sentence.   RCW


9. 94A.701( 9); State          v.   Boyd, 174 Wn.2d 470, 472 -73, 275 P. 3d 321 ( 2012).                 Holloway' s sentences

on counts II, III, and X were for class B felonies, which carry a statutory maximum confinement

sentence    of   120   months.           RCW 9A.20. 021( 1)( b).          The trial court sentenced Holloway to 116

months on count II, 116 months on count III, and 102 months on count X, and 36 months of


community custody              on each of      these   counts,   exceeding the statutory           maximum.      We remand to


amend the community custody terms in the judgment and sentence so that the total concurrent

sentences for these three convictions do not exceed the 120 month statutory maximum.




1° Counts II and III are for second degree child molestation; count X is for first degree incest.


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No. 44453 -4 -II



                                                   CONCLUSION


          We hold that ( 1) the trial court properly excluded evidence of G. S. R.' s prior recantation as

irrelevant, ( 2)   the State presented sufficient evidence of vaginal penetration to support the jury' s

guilty    verdicts   on counts   IV   and   VIII, ( 3)   the trial court' s inclusion of "abiding belief" in the

reasonable doubt instruction and the State' s closing did not misstate the burden of proof because

neither were improper, and ( 4) the trial court imposed a sentence that exceeds the statutory

maximum for three of Holloway' s convictions. Accordingly, we affirm Holloway' s convictions,

but remand to amend the community custody terms on counts II, III, and X so that the total

concurrent sentences for each of these counts does not exceed the statutory maximum.

          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:




Lee, J.




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