                                                                                               FILED
                                                                                     COURT OF APPEALS
                                                                                             DIVISION 11

                                                                                    ZON OCT 29          MI 9: 58
                                                                                     STATE OF WASHINGTON
                                                                                                    3

                                                                                     BY
                                                                                                   EBUTY




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                  DIVISION II

 STATE OF WASHINGTON,                                                                  No. 44177 -2 -II


                                      Respondent,


          v.



 STEVEN L. HESSELGRAVE,                                                         UNPUBLISHED OPINION


                                      Appellant.


         JOHANSON, C. J. —         Steven Hesselgrave appeals his conviction and sentence for first degree


rape of a child. He argues that ( 1) his Sixth Amendment right to present a defense was violated


by trial court rulings that improperly limited his right to cross -examine witnesses and improperly

excluded evidence, ( 2)      he   received   ineffective      assistance of counsel, (       3) the trial court abused its


discretion in              the                         to                   in admitting           hearsay   statements, ( 4)
                finding          victim competent           testify   and                  child




the prosecutor committed misconduct by using a " false choice" argument, and ( 5) the trial court

abused    its discretion   by imposing       certain   community custody           conditions.      We hold that ( 1) any

error associated with the trial court' s limitation of Hesselgrave' s right to cross -examine witnesses


was harmless and the trial court did not violate Hesselgrave' s right to present a defense by

improperly     excluding     evidence, (   2)   counsel was not           deficient in his   representation, (   3) the trial


court did not err in finding the victim competent to testify, and (4) the State did not argue a " false

choice"    to the   jury. Finally,     we    accept    the State'     s   concession   regarding community custody
No. 44177 -2 -II



condition number 13, remand to clarify condition 16, and remand to strike condition number 25. ,

We affirm the conviction and remand to correct the community custody conditions.

                                                                FACTS


                                                          I. BACKGROUND


           In    2011,   S. L.   was an eight -year -old female student attending elementary school.

Hesselgrave is S. L.' s former step- father. One May afternoon, S. L. disclosed sexual abuse by her

step- father. Laurel Powell, the school counselor, reported the matter to Child Protective Services

 CPS).     CPS social worker Christine Murillo conducted a " safety interview" with S. L. on May 17,

during     which    S. L. disclosed       sexual abuse      by   her    stepfather.    On May 25, Cornelia Thomas, an

employee of the Child Advocacy Center in Pierce County, conducted a forensic interview with

S. L. S. L. made several detailed disclosures to Thomas that involved allegations of oral, vaginal,


and anal        intercourse.     S. L. testified consistently           with   these   disclosures   at   trial.   According to

Thomas, S. L. maintained sufficient memory to have an independent recollection of the occurrence,

S. L.' s   statements     describing        the    incident      appeared      to   be based    on    her     perception,   S. L.


communicated " quite             well,"   and     S. L.   was    able   to   distinguish truth from lies.          6 Report of


Proceedings ( RP) at 677.


           On the night of the incident, •Hesselgrave also showed S. L. magazines depicting naked

women, in addition to a video on his computer which featured an elephant touching a woman' s




                                                                   2
No. 44177 -2 -II



vagina. S. L. declared that on the same night, Hesselgrave woke up her brother, J.H., 1 told him to

take off his clothes, and instructed S. L. to bite J.H' s penis, a request with which S. L. complied.2

         On June 2, Detectives Jennifer Quilio and Brad Graham interviewed Hesselgrave at police


headquarters. When asked if there was any reason that S. L. may have seen his penis, Hesselgrave

responded that it was possible because he watched pornography at night in the living area of his

apartment when he thought the children were sleeping. Hesselgrave surmised that S. L. could have

woken up and inadvertently seen him masturbating. Aware of S. L.' s allegations, Detective Quilio

asked Hesselgrave whether he viewed pornography that contained images of animals and women

engaging in    sexual acts.        Hesselgrave admitted that he did, but claimed that he had never seen a


video involving an elephant. Hesselgrave denied any sexual contact with S. L.

         The   day   after   his   police   interview, Hesselgrave told Leona   Ling, 3 S. L.' s mother, that she

would never see him again and that he was leaving with their sons. Ling then called 911 to report

what she believed to be an imminent kidnapping. Patrol officers arrested Hesselgrave. The State

charged Hesselgrave with first degree rape of a child contrary to RCW 9A.44.073. 4




1 J. H. is S. L.' s half brother
                         -       and Hesselgrave' s biological son. J.H. would have been either five or
six at the time of the alleged abuse.


2 J. H. testified that he had no recollection of this incident.

3
    Ling is also the mother of Hesselgrave' s two sons.

4 RCW 9A.44. 073 provides,
           1) A person is guilty of rape of a child in the first degree when the person has
          sexual intercourse with another who is less than twelve years old and not married
          to the perpetrator and the perpetrator is at least twenty -four months older than the
          victim.

                     2) Rape of a child in the first degree is a class A felony.

                                                           3
No. 44177 -2 -II


                                                   II. PROCEDURE


                                            A. PRETRIAL MOTIONS


           Before trial, the court held a hearing to address Hesselgrave' s challenge regarding S. L' s

competence to testify. The State called numerous witnesses including Murillo, Thomas, S. L, and

others.      The trial court also admitted and published the digital video disc recording of S. L' s

interview with Thomas.


           At the hearing, Hesselgrave argued that S. L. failed to show that she had an independent

memory of the incident and that she had difficulty distinguishing truth from lie because she did

not understand       the   concept of a mistake.
                                                    The trial court considered the timing of the incident in

addition to the Allen5 factors and found that Hesselgrave had failed to overcome the presumption


that S. L. was competent to testify.

           Also before trial, the State moved to admit S. L.' s statements to Thomas, Murillo, and the


classmates to whom she made the initial disclosures under RCW 9A.44. 120, the child hearsay

statute.     The court considered the Ryan6 factors and determined that S. L.' s statements were

admissible provided that S. L. also testified.


                                                     B. TRIAL


           At trial, during cross -examination of S. L., Hesselgrave asked S. L. about a pretrial defense

interview of S. L. conducted by defense counsel and investigator Julie Armijo, but S. L. testified

that   she   had   no recollection of such an   interview. Hesselgrave then asked a series of additional




5 State v. Allen, 70 Wn.2d 690, 424 P. 2d 1021 ( 1967).

6 State v. Ryan, 103 Wn.2d 165, 691 P. 2d 197 ( 1984).

                                                          4
No. 44177 -2 -II



questions attempting to highlight S. L.' s inconsistent recitations of the incident. S. L. denied having

made such     inconsistent   statements.   Hesselgrave continued with this line of questioning, but the

State began to   object,   arguing that the   questions were cumulative, asked and answered, and "[      ER]


613."   3 RP   at   349.   Hesselgrave   argued    that he   was   attempting to impeach S. L., but the court


sustained the objections. Hesselgrave finished cross -examination, but reserved the right to recall

S. L.


         Later, during direct examination of Armij o, Hesselgrave asked a series of similar questions,

again attempting to demonstrate that S. L.' s responses during the defense interview were frequently

inconsistent with S. L.' s trial testimony. After several of these questions were answered, the State

again objected, citing improper impeachment and improper questioning.

         Outside the jury' s presence, the parties argued as to whether S. L.' s interview responses

were inconsistent with her trial testimony. The court agreed that the interview transcript contained

inconsistencies, but nevertheless sustained the State' s objection, noting that under ER 613( b),

extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the

witness is afforded an opportunity to explain or deny the same and the opposite party is afforded

an   opportunity to interrogate the      witness   thereon.   The court found that requirement unmet and


ruled that Hesselgrave was not allowed to ask additional questions of Armijo from S. L.' s interview


transcript.



         Hesselgrave argued that the opportunity to explain did not have to occur prior to the

introduction of the extrinsic evidence. Defense counsel then sought to recall S. L. The trial court


said it would allow a few questions, but it placed limitations on the subject matter of the questions

Hesselgrave could ask. Hesselgrave objected to this limitation on his right to cross -examination



                                                         5
No. 44177 -2 -II



 of   the only      witness   in this   case."   7 RP at 782. Hesselgrave later recalled both S. L. and Armijo,


but asked few questions of either witness, citing constraint by the court' s earlier ruling.

             Again, outside the jury' s presence, Hesselgrave sought to admit documents related to

divorce proceedings between himself and Ling, which he argued supported Hesselgrave' s theory

that Ling prompted S. L. to make false accusations because Ling was unhappy with the terms of

the divorce. The trial court allowed some limited questioning of Ling on this topic, but it refused

to admit the documents because they contained prejudicial, irrelevant information about Ling' s

history of substance abuse.

             In closing argument, the State contended that, in its view, there were only three possibilities

in the case. The prosecutor said,


             So here' s what it really comes down to in this case. There' s three possibilities for
             what    happened: Someone           coached [    S. L.]; [ S. L.]   made it up on her own, or she is
             telling the truth. That' s it.

7 RP    at   938. The State also utilized a " Power Point" slide, which displayed these three " options"


ordered numerically. Hesselgrave objected, citing improper argument, but the court overruled. In

rebuttal      closing, the    prosecutor said     that " it   can'   t be   explained   through coaching   or   planning,"   an




argument that also drew Hesselgrave' s objection on grounds that it constituted " burden shifting."

7 RP    at   975. This objection was also overruled. Hesselgrave was convicted as charged.


             At sentencing, in addition to incarceration, the court imposed community custody along

with certain associated conditions, including the following:

             13.         You shall not possess or consume any controlled substances without a valid
                         prescription from a licensed physician.


             16. . . .        Do not have any contact with physically or mentally vulnerable
                         individuals.
No. 44177 -2 -II



        25.          Do not possess or peruse any sexually explicit materials in any medium.
                     Your sexual deviance treatment provider will define sexually explicit
                     material.   Do not patronize prostitutes or establishments that promote the
                     commercialization of sex. Also, do not possess or use any cell phone that
                     may provide access to the Internet as well.

Clerk' s Papers ( CP) at 243 -44. Hesselgrave appeals.

                                                          ANALYSIS


                                        I. RIGHT TO PRESENT A DEFENSE


        Hesselgrave argues that the State violated his constitutional right to present a defense when


the trial court limited his ability to impeach S. L. on cross -examination and when the court excluded

evidence    related     to Hesselgrave       and   Ling' s     dissolution   proceedings.   We hold that any error

associated with his right to confrontation and cross -examination was harmless and that the court


did not err by properly excluding evidence.

                                              A. STANDARD OF REVIEW


           The right of an accused in a criminal trial to due process is, in essence, the right to a fair


opportunity to defend        against   the State'       s accusations. "'   State v. Jones, 168 Wn.2d 713, 720, 230


P. 3d 576 ( 2010) (     quoting Chambers v. Mississippi, 410 U.S. 284, 294, 93 S. Ct. 1038, 35 L. Ed.

2d 297 ( 1973)).        A defendant' s right to an opportunity to be heard in his defense, including the

rights to examine witnesses against him and to offer testimony, is basic in our system of

jurisprudence.         Chambers, 410 U. S.         at   294. " The right to confront and cross -examine adverse


witnesses     is [   also] guaranteed   by   both the federal        and state constitutions."   State v. Darden, 145


Wn.2d 612, 620, 41 P. 3d 1189 ( 2002) ( citing               Washington v. Texas, 388 U.S. 14, 23, 87 S. Ct. 1920,

 18 L. Ed. 2d 1019 ( 1967)).       Ordinarily, we review a trial court' s decision to limit cross -examination

of a witness. for impeachment purposes for abuse of discretion. State v. Aguirre, 168 Wn.2d 350,



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No. 44177 -2 -II



361 - 62, 229 P. 3d 669 ( 2010). But          a court "`   necessarily abuses its discretion by denying a criminal

defendant'       s constitutional rights. '     State v. Iniguez, 167 Wn.2d 273, 280, 217 P. 3d 768 ( 2009)


 quoting State       v.   Perez, 137 Wn.     App. 97,     105, 151 P. 3d 249 ( 2007)). And we review a claim of


a denial of Sixth Amendment rights de novo. Iniguez, 167 Wn.2d at 280 -81. Because Hesselgrave


argues that the trial court violated his constitutional right to present a defense, our review is de

novo.     Iniguez, 167 Wn.2d          at   280 -81.    Any      error,   however, is harmless "` if we are convinced


beyond a reasonable doubt that any reasonable jury would have reached the same result without
the   error. '     Jones, 168 Wn.2d at 724 ( quoting State v. Smith, 148 Wn.2d 122, 139, 59 P. 3d 74

 2002)).


                                               B. IMPEACHMENT OF S. L.


          ER 613 (b) provides,


                      b) Extrinsic Evidence of Prior Inconsistent Statement of Witness.
          Extrinsic evidence of a prior inconsistent statement by a witness is not admissible
          unless the witness is afforded an opportunity to explain or deny the same and the
          opposite party is afforded an opportunity to interrogate the witness thereon, or the
          interests of justice otherwise require. This provision does not apply to admissions
          of a party- opponent as defined in rule 801( d)( 2).

Our     courts    have    concluded   that    under    ER 613( b),        a witness may be impeached with a prior

inconsistent statement either before or after the extrinsic evidence is introduced so long as the

witness    being impeached is         subject   to    recall.
                                                                 State v. Horton, 116 Wn. App. 909, 916, 68 P. 3d

1145 ( 2003) (      citing State v. Johnson, 90 Wn. App. 54, 70, 950 P. 2d 981 ( 1998)).

          Here, after her cross -examination, Hesselgrave unequivocally reserved the right to recall

S. L.    Thus, the trial court erred in placing limitations on Hesselgrave' s ability to impeach S. L.

solely on grounds that she was not given an opportunity to explain or deny her inconsistent



                                                                  8
No. 44177 -2 -II



statements       during   cross -examination.          But   error   is   not prejudicial unless "` we   are   convinced




beyond a reasonable doubt that any reasonable jury would have reached the same result without

the   error. '   Jones, 168 Wn.2d at 724 ( quoting Smith, 148 Wn.2d at 139).

          We     now   look   at whether     the error was      prejudicial.    Here, a review of the record reveals


that answers to several of the most crucial questions that Hesselgrave sought to ask S. L. on recall


were either elicited       from S. L. herself     or   from     other witnesses,    namely, Armijo.      By way of this

questioning, Hesselgrave was able to emphasize the fact that S. L. had been inconsistent in her

recollection of the events. When Armijo testified, she was questioned about S. L.' s response when


asked whether she recalled what happened with Hesselgrave. Armijo, reading from the transcript

of   the defense interview, testified that S. L.          answered, "`      I forgot.   It' s been like a long time since

that happened. '          6 RP   at   743.     Armijo     also    testified that S. L.    answered " no"    when   asked




specifically whether S. L. told anyone at school about what happened, generally whether she had

told anyone what happened with Hesselgrave, whether she had ever made a comment about


Hesselgrave' s penis, 8 whether S. L. had seen her dad watching movies with naked people in them,

when asked whether she told anyone she was touched in an improper way, and that S. L. answered

 yes" when asked whether she wanted to live with her brothers and whether Hesselgrave going to

jail would make that easier.




  Hesselgrave also argues in the alternative that he received ineffective assistance of counsel to the
extent    that his   counsel   failed to   lay   the   proper   foundation for S. L.' s impeachment. But because
we determine that the trial court, and not Hesselgrave' s counsel, misinterpreted ER 613, we
conclude that Hesselgrave' s attorney' s performance was not deficient and, thus, Hesselgrave' s
ineffective assistance of counsel claim necessarily fails.

8 S. L. referenced Hesselgrave' s penis during her initial disclosures of abuse.

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No. 44177 -2 -II



          Accordingly, the trial court' s ruling limiting Hesselgrave' s ability to impeach S. L. was

harmless. Hesselgrave was able to attack S. L.' s credibility by showing the jury, through defense

witnesses, that S. L.' s recollection of the events was at times contradictory, if not completely

inaccurate.        The jury was free to decide that such inconsistencies rendered S. L.' s testimony

unreliable and          her credibility   suspect.    Consequently, Hesselgrave cannot show that a reasonable

jury would have reached a different result had he been able to continue questioning S. L. Jones,

168 Wn.2d at 724. Thus, although the trial court arguably limited Hesselgrave' s ability to conduct

cross -examination, we hold that any error was harmless. Further, this error did not prevent

Hesselgrave from presenting his defense. 9
                                              C. DISSOLUTION PLEADINGS


          Hesselgrave asserts that the trial court further violated Hesselgrave' s rights to present a


defense by excluding documents related to Hesselgrave' s divorce from Ling. We disagree.

           We review de novo whether a trial court' s evidentiary ruling violated a defendant' s Sixth

Amendment          right   to present a    defense. Jones, 168 Wn.2d            at   719. The right to present a defense


is   not absolute.         Jones, 168 Wn.2d          at   720.   Defendants have a right to present only relevant

evidence, with no constitutional right                to   present   irrelevant   evidence.   Jones, 168 Wn.2d at 720


    citing State   v.   Gregory,   158 Wn. 2d 759, 786           n. 6,   147 P. 3d 1201 ( 2006)).   Evidence is relevant


when it has any tendency to make the existence of any fact that is of consequence to the




9
     When Hesselgrave           recalled    S. L., the trial court placed limitations on the scope of S. L.' s
questioning.   The trial court discussed the limitations after hearing the State' s argument that
Hesselgrave already had a chance to cross -examine S. L. and that he should not be entitled to call
her as a witness. In this way, the trial court' s ruling was more akin to a ruling in limine than it was
a limitation of Hesselgrave' s right to cross -examine witnesses.


                                                                  10
No. 44177 -2 -II



determination of the action more probable or less probable than it would be without the evidence.


ER 401.


           Here, Hesselgrave urged the trial court to admit various documents and findings of fact


from his dissolution proceedings to show that Ling was unhappy with the parenting plan, custody

determination, and child support obligation and that, therefore, Ling could have influenced S. L.' s

disclosures because she had a motive to retaliate.


           The trial court agreed that evidence of Ling' s dissatisfaction with the dissolution

proceedings might         be    relevant     to   show   motive to fabricate      allegations.   Accordingly, the court

allowed Hesselgrave to ask Ling questions on cross -examination regarding her dissatisfaction with

the parenting plan, custody arrangement, and child support order. Hesselgrave was able to elicit

testimony that Ling wished to change the parenting plan and modify the child support order to

reduce     her monthly     obligation.
                                              Thus, the jury was aware of Ling' s frustration concerning the

arrangement with Hesselgrave and the possibility that she might be vindictive for the same reason.

           But the trial court declined to admit the documents because those documents revealed that


Ling had a history of emotional impairment, substance abuse, and parenting issues. The trial court

correctly recognized that admitting findings that suggest that Ling has a history of emotional

impairment and substance abuse would have been irrelevant and unduly prejudicial.10 Evidence

of Ling' s substance abuse history does not have any tendency to make the existence of any fact




to
     The   court cited   ER 404( b),     which provides,

           Evidence of other crimes, wrongs, or acts is not admissible to prove the character
           of a person    in   order   to   show action     in conformity therewith.
                                                                         It may, however, be
           admissible     for    other      purposes,    such   as   proofopportunity, intent,
                                                                             of   motive,


           preparation, plan, knowledge, identity, or absence of mistake or accident.

                                                                11
No. 44177 -2 -II



that is of consequence to the determination of this action more probable or less probable. ER 401.


Accordingly, the trial court did not err and its ruling did not violate Hesselgrave' s right to present

a defense.


                                                II. COMPETENCE TO TESTIFY


           Hesselgrave argues that the trial court abused its discretion in finding S. L. competent to

testify because ( 1) her statements were unreliable and ( 2) there was insufficient corroborating

evidence     to    support    the   conviction.        We hold that the trial court did not abuse its discretion by

finding    S. L.   competent        to   testify. We hold further that corroborating evidence was not required

because S. L. was not " unavailable."


                                                 A. STANDARD OF REVIEW


           An appellate, court will not disturb a trial court' s conclusion as to the competency of a

witness to testify except for abuse of discretion. State v. S.J.W., 170 Wn.2d 92, 97, 239 P. 3d 568

 2010) ( citing Faust         v.   Albertson, 167 Wn.2d 531, 545 -46, 222 P. 3d 1208 ( 2009)). This standard


of review     is especially         applicable    to    child witnesses   because "[   t]he competency of a youthful

witness is not easily reflected in a written record, and [ an appellate court] must rely on the trial

judge who sees the witness, notices the witness' s manner, and considers his or her capacity and

intelligence."        State    v.    Woods, 154 Wn.2d 613, 617, 114 P. 3d 1174 ( 2005) (              citing State v.

Przybylski, 48 Wn.           App.        661, 665, 739 P. 2d 1203 ( 1987)).       As our Supreme Court has noted,


  There is probably no area of law where it is more necessary to place great reliance on the trial

court' s   judgment than in assessing the competency                  of a child witness.'   Woods, 154 Wn.2d at 617


 quoting State v. Borland, 57 Wn. App. 7, 11, 786 P. 2d 810, review denied, 114 Wn.2d 1026

 1990)).



                                                                 12
No. 44177 -2 -II



             Furthermore, every             person          is   presumed competent       to   testify, including      children.       S.J.W,


170 Wn.2d           at    100.     A child' s competency is now determined by the trial judge within the

framework of RCW 5. 60. 050, while the Allenll factors serve to inform the judge' s determination.


S.J.W., 170 Wn.2d at 100. Accordingly, a party challenging the competency of a child witness has

the burden of rebutting that presumption with evidence indicating that the child is of unsound

mind, intoxicated at the time of his production for examination, incapable of receiving just

impressions         of    the     facts,    or    incapable         of   relating facts    truly.        RCW 5. 60. 050.      Moreover,


inconsistencies in a child' s testimony do not necessarily call into question witness competency.

State   v.   Carlson, 61 Wn.               App.       865, 874, 812 P. 2d 536 ( 1991), review denied, 120 Wn.2d 1022


 1993).       Instead, such inconsistencies generally relate to the witness' s credibility and the weight

to   give    his   or   her testimony.           Carlson, 61 Wn. App. at 874 ( citing State v. Stange, 53 Wn. App.

638, 642, 769 P. 2d 873, review denied, 113 Wn.2d 1007 ( 1989)).




                                             B. RELIABILITY OF S. L.' S STATEMENTS


             Here, Hesselgrave contends that the court erred in finding S. L. competent to testify because

the trial court did not properly consider the question of S. L.' s mental capacity at the time of the

occurrence. We disagree with Hesselgrave.




11 The Allen factors include
              1)   an    understanding           of   the    obligation   to   speak   the truth    on   the   witness stand; (   2)
             the   mental        capacity        at   the time      of   the occurrence . . .        to receive an accurate
             impression          of [ his   testimony]; (          3) a memory sufficient to retain an independent
             recollection of        the occurrence; ( 4)             the capacity to express in words his memory of
             the   occurrence;        and (      5) the capacity to understand simple questions about [ the
             occurrence].

70 Wn.2d at 692.


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No. 44177 -2 -II


          Hesselgrave         relies on      In   re   Dependency     of A. E.P., 135 Wn.2d 208, 223, 956 P. 2d 297


 1998),     for the proposition that a trial court cannot determine a child' s mental capacity when there

is   no evidence     establishing       when       the   crime occurred.      But A. E.P. is distinguishable.      There, the


court concluded that after reviewing the entire record there was nothing establishing the date or

time   period of the alleged sexual abuse.                 A.E.P., 135 Wn.2d at 223.


          But here, the record reveals that the alleged abuse happened either during the time S. L.

lived with Hesselgrave, from December 2008 until September 2009, or during one night in the fall

of   2010   when     S. L.   spent   the    night.     Thus, the record does establish a general time period during

which the alleged abuse occurred, that was sometime between late 2008 and the fall of 2010 when


S. L. was either six, seven, or eight years old.


          In considering the Allen factors, the trial court here said,

                     She has to have the capacity at the time, which was some years ago, to
          receive accurate    impressions of what was happening. I don' t see any reason to
            doubt that.       She may not have a great ability to express it, and some of her
            statements appear to be somewhat inconsistent with each other. That doesn' t mean
            she couldn' t understand what was happening to her. A six -year -old is old enough.

RP (   Aug.    23, 2012)       at    189.    Accordingly, the trial court' s written findings make clear that it

considered whether S. L. was able to receive accurate impressions from the earlier of the two


periods when she was six. And the court concluded that she could.


            Furthermore, if a child can relate contemporaneous events, the court can infer the child is


competent      to   testify   about    the   abuse     incidents   as well.   A. E.P., 135 Wn.2d   at   225.   Here, S. L. was

able to describe events from 2007. S. L. was also able to testify accurately regarding circumstances

surrounding her time            living      with   Hesselgrave in 2008 to 2009.         Ling' s testimony confirmed the




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No. 44177 -2 -II



truth of these statements. Accordingly, substantial evidence supports the trial court' s finding that

S. L. could receive accurate impressions during the period in which the events allegedly occurred.

         Again, relying on A. E.P., Hesselgrave argues that there are serious questions regarding the

potential impact of the therapy and interrogation S. L. underwent as the victim of a crime separate

and   distinct from the     current allegation.   The   court   in A. E.P. held that the third Allen factor, "'   a




memory    sufficient   to   retain an   independent   recollection of   the   occurrence, "'   may not be satisfied

if the defendant can establish that a child' s memory of events has been corrupted by improperly

suggestive   interviews.      135 Wn.2d at 230 ( quoting State v. Allen, 70 Wn.2d 690, 692, 424 P. 2d

1021 ( 1967)).     Hesselgrave discusses the fact that Anna Watson, who conducted a forensic


interview of S. L. after unrelated abuse came to light, used positive reinforcement techniques when


S. L. made disclosures and did not question the truth of what S. L. said, instead " validating" the

child' s disclosures so that she would feel " good" if she made additional disclosures in the future.


         But Hesselgrave. advances no argument regarding how use of these techniques amounts to

 improper interviews" nor does he suggest how participation in a forensic interview unrelated to


her current disclosure would " taint" S. L.' s memory such that the aforementioned Allen factor is

unsatisfied.   Given the record of S. L.' s testimony and the deference we afford the trial court' s

determination of competence, there is sufficient evidence to support the finding that S. L. retained

an independent recollection of the occurrence.




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No. 44177 -2 -II



                                                     C. CORROBORATION


              Hesselgrave also argues that the trial court erred in admitting S. L.' s hearsay statements

under RCW 9A.44. 120 because there was insufficient corroboration to support those statements. 12

But the trial court did not err because S. L. was available to testify and in fact did testify at trial.

              Corroboration of the hearsay statements is required only ifthe child is unavailable to testify

at   trial.    A. E.P., 135 Wn.2d      at   226.     And a child witness is considered " unavailable" under the


purview of the statute if she is deemed incompetent to testify. A.E.P., 135 Wn.2d at 227.

              Here, the trial court properly found S. L.                  competent   to   testify   and   S. L.   did testify.

Accordingly, the trial court needed to find only that the time, content, and circumstances of S. L.' s

statements provided sufficient              indicia   of   reliability.   The trial court considered the Ryan factors


and entered        findings    determining      that the statements         were   admissible.       Thus, the trial court' s


rulings were not based on manifestly untenable grounds and the trial court did not abuse its




12 RCW 9A.44. 120 provides,
              A statement made by a child when under the age of ten describing any act of sexual
              contact performed with or on the child by another, describing any attempted act of
              sexual contact with or on the child by another, or describing any act of physical
              abuse of the child by another that results in substantial bodily harm as defined by
              RCW 9A.04. 110, not otherwise admissible by statute or court rule, is admissible in
              evidence   in dependency proceedings under Title 13 RCW and criminal
              proceedings, including juvenile offense adjudications, in the courts of the state of
              Washington if:
                       1) The court finds, in a hearing conducted outside the presence of the jury,
              that the time, content, and circumstances of the statement provide sufficient indicia
              of reliability; and
                       2) The child either:
                       a) Testifies at the proceedings; or
                       b) Is   unavailable      as    a   witness:     PROVIDED, That when the child is
              unavailable   as   a   witness,      such statement may be admitted only if there is
              corroborative evidence of the act.


                                                                  16
No. 44177 -2 -II



discretion in finding that Hesselgrave failed to rebut the presumption of competence and in ruling

that S. L.' s hearsay statements were admissible under RCW 9A.44. 120.

                                        III. PROSECUTORIAL MISCONDUCT


              Hesselgrave asserts that his conviction must be reversed because the prosecutor' s closing

argument suggested to the jury that acquittal of Hesselgrave was only possible by determining that

the State' s witnesses were           lying. We hold that the prosecutor' s argument was not improper

because it did not suggest that the jury must disbelieve S. L. in order to acquit Hesselgrave.

                                                A. STANDARD OF REVIEW


              To establish prosecutorial misconduct, Hesselgrave has the burden of establishing that the

challenged conduct was             both improper    and prejudicial.   State v. Cheatam, 150 Wn.2d 626, 652,


81 P. 3d 830 ( 2003).        We review the prosecutor' s conduct " 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)). When a defendant objects to alleged


misconduct at trial, the defendant must show that the prosecutor' s misconduct resulted in prejudice


that had a substantial likelihood of affecting the jury' s verdict. State v. Emery, 174 Wn.2d 741,

760, 278 P. 3d 653 ( 2012).


                                                   B. FALSE CHOICE


              In closing argument, over defendant' s objection, the prosecutor told the jury that in the

State'   s view     there   were   only three   possibilities   to determine the   outcome of    the    case: (    1) that




                                                            17
No. 44177 -2 -II



someone coached         S. L., (2)     that S. L. made it up on her own, or ( 3) that S. L. was telling the truth.13
To prevail, Hesselgrave must show that the alleged misconduct had a substantial likelihood of


affecting the jury' s verdict. Emery, 174 Wn.2d at 760.
           Here, Hesselgrave            characterizes the State' s argument as misconduct based on the


presentation of a "     false    choice,"      which occurs when a party misstates the .burden of proof, as well

as the jury' s role, by misleading the jury into thinking that acquittal requires the conclusion that

the   prosecution' s witnesses are             lying. Hesselgrave relies on State v. Barrow, 60 Wn. App. 869,

809 P. 2d 209,     review     denied, 118 Wn.2d 1007 ( 1991),                 State v. Miles, 139 Wn. App. 879, 162 P. 3d

1169 ( 2007),     and   State    v.    Fleming, 83     Wn.   App.    209, 921 P. 2d 1076 ( 1996), review denied, 131


Wn.2d 1018 ( 1997), in support of his argument.


           But Barrow, Miles, and Fleming are readily distinguishable from Hesselgrave' s case

because in each of the cited instances, the prosecutor actually told the jury that they must disbelieve

the State' s witnesses in order to acquit the defendant and here, no such statement was made. Miles,


139 Wn. App. at 889 -90; Barrow, 60 Wn. App. at 874 -75; Fleming, 83 Wn. App. at 213.

           Here, the   prosecutor presented            the jury   with   three " possibilities,"      but he did not tell the jury

that it    must   agree with one          of   those   possibilities     in   order     to   acquit   Hesselgrave.    Indeed, the


prosecutor      did   not   tell the   jury   that   they had   to find anything.            Read in context, the prosecutor' s


statements were more a comment on S. L.' s credibility, which the prosecutor has wide latitude to

do in closing     argument.       State   v.   Stenson, 132 Wn.2d 668, 727, 940 P. 2d 1239 ( 1997) ( citing                 State

v.   Hoffman, 116 Wn.2d 51, 94 -95, 804 P. 2d 577 ( 1991)),                     cert.   denied, 523 U.S. 1008 ( 1998). Some




13
      As   a   threshold      matter,     Hesselgrave        objected      after   the       prosecutor   presented   the " three

possibilities" argument. Accordingly, Hesselgrave has preserved the issue for review.

                                                                   18
No. 44177 -2 -I1



of the prosecutor' s " Power Point" slides to which Hesselgrave takes issue support this proposition.

The State used a slide that read,


                                                No Evidence to Support
                                                      S. L. Made it up
                                                       on Her Own


Ex. 24   at    8.    Following this   slide was one   that   read, "   One Conclusion (3) S. L. is telling the truth." •

Ex. 24    at   8.    This is not an argument that the jury must disbelieve S. L. to acquit Hesselgrave, but

rather that the evidence shows that the jury should believe S. L. because her version of the events

is credible. We hold that the prosecutor' s argument was not improper.

                                                IV. COMMUNITY CUSTODY


          Hesselgrave asserts that the sentencing court erred by imposing •community custody

condition numbers 13, 16, and 25 because these conditions are either unconstitutional or because


the sentencing          court was not   statutorily   authorized       to impose them.        We hold that the trial court


was without authority to impose conditions 13, 16, and 25 as they currently read.

          A defendant may argue for the first time on appeal that sentencing conditions placed on his

community custody            were    imposed    without   authority     under   existing     statutes.   State v. Jones, 118

Wn.     App.        199, 204, 76 P. 3d 258 ( 2003).       Whether to impose community custody conditions is

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

State    v.    Bahl, 164 Wn.2d 739, 753, 193 P. 3d 678 ( 2008)                     Imposition of an unconstitutional


condition would           be manifestly     unreasonable.     Bahl, 164 Wn. 2d         at   753.   Similarly, a court abuses

its discretion        when   it   exceeds   its sentencing authority. State       v.   C.D.C.,     145 Wn. App. 621, 625,

 186 P. 3d 1166 ( 2008).           Furthermore, when a sentencing court imposes an unauthorized condition

of community custody, appellate courts remedy the error by remanding the matter with instructions


                                                               19
No. 44177 -2 -II



to strike the unauthorized condition.                   State v. O' Cain, 144 Wn. App. 772, 775, 184 P. 3d 1262

 2008).


            The State     concedes         that    we   should    remand      to      strike   the   phrase "'   from a licensed


physician '       contained in condition 13 because prescriptions can be lawfully issued by medical

professionals other than licensed physicians. Br. of Resp' t at 73. We accept the State' s concession

because RCW 9. 94A. 703( 2)( c) only                   allows a court order        to direct    an offender      to "[ r] efrain from



possessing or consuming controlled substances except pursuant to lawfully issued prescriptions"

and   does    not   include   a requirement        that the   prescriber   be   a "   licensed   physician."      Accordingly, the

court exceeded its sentencing authority in imposing condition 13.

            Hesselgrave also challenges condition 16 that provides,


            Do not initiate, or have in any way, physical contact with children under the age of
            18 for any reason, unless approved as per # 14 above. Do not have any contact with
            physically or mentally vulnerable individuals.[14'
CP    at   243.     Hesselgrave contends that this condition was not statutorily authorized because his
case       involved    no "   physically          or   mentally   vulnerable          individuals."        CP     at   243.   RCW


9. 94A.703( 3)( f) states that a court may order an offender to comply with any crime -related

prohibitions.        Additionally, the statute allows a court to order that an offender refrain from direct

or   indirect     contact     with   the   victim       of   the crime   or   a    specified     class   of   individuals.    RCW


9. 94A.703( 3)( b).         Our Supreme Court has concluded that when read in context, a provision


prohibiting contact with a class of individuals also requires some relationship to the crime. State




14 Condition 14 states that any contact with minor children would need to be supervised and would
require prior approval by the sexual deviancy treatment provider and the community corrections
officer.



                                                                  20
No. 44177 -2 -II



v.   Riles, 135 Wn.2d 326, 350, 957 P. 2d 655 ( 1998),                  overruled on other grounds by State v.

Valencia, 169 Wn.2d 782, 239 P. 3d 1059 ( 2010).                    Notwithstanding Hesselgrave' s argument, the

sentencing court erred by imposing this condition for the reasons we describe below.

           We recently analyzed an identical condition and held that the use of the term " vulnerable"

fails to    provide   the   safeguards against     arbitrary    enforcement required       by   due   process.   State v.


Johnson, 180 Wn.          App.   318, 327, 327 P. 3d 704 ( 2014).        We noted that, considering the definition

of "vulnerable,"      the " breadth    of [the condition]   is startling. "15   Johnson, 180 Wn. App. at 328. We

held that remand was required and ordered the trial court to either clarify the meaning of

 vulnerable" or to strike that portion of the condition. Johnson, 180 Wn. App. at 329. Therefore,

we remand for the trial court to clarify the term " vulnerable" or to strike condition 16.

           Last, Hesselgrave takes issue with condition 25, which provides,


           Do     not possess or peruse      any sexually      explicit materials     in any   medium.     Your
           sexual
                     deviancy    treatment   provider will     define sexually    explicit material.     Do not
           patronize prostitutes or establishments that promote the commercialization of sex.

           Also, do not possess or use any cell phone that may provide access to the Internet
           as well.




CP    at   244.    Hesselgrave contends that the record does not support imposition of this condition

because the        case   did   not   involve   prostitution    or " adult   shops"    and because the condition is


unconstitutionally vague. Forbidding Hesselgrave from possessing sexually explicit materials was

a crime -related prohibition because the record demonstrates that Hesselgrave showed S. L. sexually

explicit material in print and video format and a sentencing court has broad discretion to impose

reasonably crime -related conditions. O' Cain, 144 Wn. App. at 775.




15 " Vulnerable" means " capable of being wounded: defenseless against injury" or " open to attack
ordamage: readily countered: inviting obvious                   retort, ridicule, or   obloquy."      WEBSTER' S THIRD
NEW INTERNATIONAL DICTIONARY 2567 ( 2002).
                                                               21
No. 44177 -2 -I1



         Similarly, the court did not err in imposing the provision prohibiting Hesselgrave from

patronizing    prostitutes.    In Washington, it is      a misdemeanor        to   patronize   a prostitute.   RCW


9A. 88. 110.   Because trial courts are allowed to impose conditions requiring offenders to engage

in law- abiding behavior, Jones, 118 Wn. App. at 205 -06, and requiring that Hesselgrave not

patronize prostitutes is consistent with law- abiding behavior, the trial court did not err by imposing

these prohibitions contained within condition 25.


         But regarding the prohibition against going to establishments that promote the

 commercialization      of    sex"   and the prohibition on the use of a cell phone that is capable of


accessing the internet, these        are prohibitions   that   are not   reasonably   crime related.    There is no


evidence to suggest that such establishments were in any way related to Hesselgrave' s crime.

Likewise, nothing in the record reveals that cellular phones were involved in Hesselgrave' s crime.

Moreover the court struck a separate condition that would have prohibited Hesselgrave from


having internet access generally, unless it was otherwise approved. It is unreasonable to strike that

condition but maintain the prohibition on the possession or use of a cellular phone which is capable


of   accessing the internet.         The prohibition on possession of sexually -explicit material in any

medium would also cover possession of such material obtained from the internet on a cell phone.


Considering the ubiquity of "smart" cellular phones and the pace at which the technology develops,

this provision essentially bars Hesselgrave from owning a cellular phone at any time in the future.

We hold that the trial court abused its discretion in imposing conditions 13, 16, and 25. We order

these conditions stricken or clarified on remand, consistent with this opinion.




                                                         22
No. 44177 -2 -II



        Finding no other prejudicial error, we affirm the conviction and remand to correct the

community custody conditions.


        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:




HUNT, J. P. T/




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