                                                                                                  Filed
                                                                                            Washington State
                                                                                            Court of Appeals
                                                                                             Division Two

                                                                                              May 30, 2018




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                           DIVISION II
 STATE OF WASHINGTON,                                                  No. 48855-8-II

                                 Respondent

         v.

 RICHARD IVER SVALESON, JR.,                                    UNPUBLISHED OPINION

                                 Appellant.

       LEE, J. — Richard Iver Svaleson, Jr. appeals his conviction and sentence, arguing that (1)

insufficient evidence supported the jury finding that he touched the child victim with intent to

gratify his sexual desire; (2) the trial court erred in giving a non-corroboration jury instruction; (3)

the trial court erred in allowing improper opinion testimony regarding standard child victim

interviewing techniques and the diagnosis of acute stress disorder; (4) the prosecutor engaged in

misconduct by (a) improperly shifting the burden of proof, (b) commenting on the victim’s

demeanor, and (c) urging the jury not to blame the victim; (5) defense counsel was ineffective for

failing to object to the prosecutor’s misconduct; (6) several community custody conditions were

unauthorized by statute, were not crime-related, or were unconstitutionally vague; and (7) the

sentencing court erred in imposing discretionary legal financial obligations without considering

Svaleson’s ability to pay. In a statement of additional grounds (SAG), Svaleson argues that: (1)

the prosecutor engaged in misconduct by “prepping” the jury to overlook missing evidence; (2)

his trial counsel was ineffective when he (a) failed to object to the prosecutor’s line of questioning
No. 48855-8-II


on whether he was married to the victim, (b) failed to cross the State’s experts, and (c) failed to

call witnesses on Svaleson’s behalf.

          We hold that the community custody conditions related to alcohol, social networking

websites, and businesses that promote the commercialization of sex were improperly imposed. We

also hold that the remainder of the issues Svaleson raises in his direct appeal and SAG do not

warrant reversal.     Therefore, we affirm Svaleson’s conviction, but reverse the trial court’s

imposition of certain challenged community custody conditions and remand with instructions to

strike those community conditions consistent with this opinion.

                                                FACTS

A.        THE INCIDENT

          E.B.1 was born in 2004. Svaleson was born in 1946.

          E.B. lived with her parents and her older sister A.B. Because E.B.’s parents both worked,

they often asked E.B.’s great-grandmother, Margaret, to watch the girls during school and summer

breaks.

          Margaret lived with her adult son, Svaleson. Though Svaleson lived in the house and was

around when the girls visited, Margaret was solely responsible for watching E.B. and her sister.

E.B. referred to Svaleson as “Uncle Dick.” 4 Verbatim Report of Proceedings (VRP) (Feb. 29,

2016) at 346.

          On December 30, 2014, E.B. and her sister were dropped off at Margaret’s house. The

girls spent the morning watching television. At one point, E.B. went into the kitchen to get




1
    Pursuant to this court’s General Order 2011-1, we use initials for child witnesses in sex crimes.


                                                   2
No. 48855-8-II


something to eat. Svaleson was seated in the kitchen on a “spinning chair.” 4 VRP (Feb. 29, 2016)

at 353. Svaleson called E.B. over to sit on his lap. E.B. testified that once seated, Svaleson touched

her “private areas.” 4 VRP (Feb. 29, 2016) at 353. Svaleson reached his hands underneath E.B.’s

shirt and touched her chest, with his hands directly touching her skin. In response, E.B. pushed

his hands down. Svaleson then rubbed “near” E.B.’s legs “[i]n between [her] kneecap.” 4 VRP

(Feb. 29, 2016) at 359.

       Later that same day, he touched “all” of her “private areas.” 4 VRP (Feb. 29, 2016) at 369.

Specifically, Svaleson touched the areas she “use[s] to go to the bathroom, number one and number

two” over her jeans. 4 VRP (Feb. 29, 2016) at 369. Svaleson’s touches made E.B. uncomfortable.

E.B. did not tell Margaret or her sister what had happened, but instead told her mother in the car

on the way home.

       E.B.’s parents spoke with the law enforcement officers about what E.B. had told them

about what happened with Svaleson. Svaleson was subsequently charged with one count of first

degree child molestation.

B.     THE TRIAL

       1. Testimony

       At trial, E.B. testified to the facts discussed above.         However, she had difficulty

remembering several details of that day. For example, she could not remember if she was wearing

anything underneath her shirt. She could not remember if Svaleson had said anything to her while

he touched her. She also could not recall how long the contact lasted. Initially, E.B. testified that

Svaleson “rubbed near [her] legs” after touching her chest, but that he did not touch near or on her

private area where she “go[es] number one.” 4 VRP (Feb. 29, 2016) at 359. Later, E.B. testified



                                                  3
No. 48855-8-II


that Svaleson touched all three of her private areas that day, but not at the same time she sat on his

lap in the kitchen.

       E.B.’s mother testified at trial that E.B. met with a forensic interviewer at the Child

Advocacy Center named Stacia Adams. After the incident, E.B. began seeing a counselor named

Linda Skinner.

       Adams and Skinner also testified at trial. Adams testified that E.B. told her that her Uncle

Dick had touched her chest and the private areas “where she peed and pooped from.” 6 VRP (Mar.

2, 2016) at 594. In describing the interview process, Adams explained that she was trained to ask

children open-ended questions to ensure she does not suggest information to them. Adams stated

that this technique ensures “that the interview is going to be more accurate and we know that

statistically.” 6 VRP (Mar. 2, 2016) at 585. Adams also testified that she solicited narrative events

from E.B. because “that’s more accurate than saying, like, what usually happens, which would be

a script memory.” 6 VRP (Mar. 2, 2016) at 585-86. Svaleson did not object to this testimony.

       Skinner testified that she began seeing E.B. after her mother reported concerning

behavioral changes, including difficulty sleeping, nightmares, and fear of returning to her great-

grandmother’s house. The prosecutor asked Skinner if she had seen these kinds of behaviors

before in other patients. The prosecutor also asked Skinner if these identified behaviors, based on

her “education, training, and experience” were “common in people who have been sexually

abused[.]” 5 VRP (Mar. 1, 2016) at 537. Skinner answered, “Yes,” to both questions. 5 VRP

(Mar. 1, 2016) at 537. Skinner also testified that she had diagnosed E.B. with “acute stress

disorder,” a diagnosis used when a traumatic experience has occurred. 5 VRP (Mar. 1, 2016) at

538. Svaleson did not object to this line of questioning.



                                                  4
No. 48855-8-II


       Skinner also testified that during their sessions, E.B. stated that Svaleson had said, “Your

hands are starting to get warm,” as he reached his hands under her shirt. 5 VRP (Mar. 1, 2016) at

544. E.B. also told Skinner that Svaleson had “grabbed her butt and squeezed it and grabbed her

vagina and squeezed that with both of his hands.” 5 VRP (Mar. 1, 2016) at 544. Svaleson did not

object to this testimony.

       Svaleson testified and denied that he had ever invited E.B. to sit on his lap. He claimed

that E.B. followed him into the kitchen and sat on his knee. There was no door between the kitchen

and the adjacent living room, where E.B.’s sister was watching television. Svaleson also testified

that E.B. had asked him to tickle her and that he tickled her rib cage near her armpit. According

to Svaleson, as he tickled E.B., she turned sideways and “ran her breast into the edge of [his]

thumb.” 6 VRP (Mar. 2, 2016) at 639. Svaleson admitted that he pinched E.B.’s butt, but only to

encourage her to stand up because she was hurting his knees. He denied that he touched or tickled

E.B. to satisfy his sexual desire.

       2. Jury Instruction

       The State proposed a non-corroboration jury instruction. This instruction stated:

               In order to convict a person of child molestation in the first degree as
       defined in these instructions, it shall not be necessary that the testimony of the
       alleged victim be corroborated. The jury is to decide all questions of witness
       credibility.

CP at 36.

       Svaleson objected to the proposed instruction, arguing that the Washington Supreme Court

Committee on Pattern Jury Instructions had explicitly recommended against such instruction. The

trial court allowed the instruction.




                                                5
No. 48855-8-II


       3. Closing Argument

       The prosecutor began her closing argument by explaining the differences between direct

and circumstantial evidence. She then argued that this case turned on whether the jury found that

Svaleson had touched E.B.’s private areas to satisfy his sexual desires. The prosecutor urged the

jury to use “common sense and make those reasonable inferences” when considering the

testimony. 6 VRP (Mar. 2, 2016) at 650. She told the jury that E.B. had described sexual contact

“and if you believe her, if you believe what she’s described, ladies and gentlemen, you are satisfied

beyond a reasonable doubt.” 6 VRP (Mar. 2, 2016) at 652.

       Later, the prosecutor addressed E.B. and Svaleson’s testimony. 6 VRP at 660-61. She

urged the jury to consider Svaleson’s “motives, his bias, but also consider the reasonableness of

his story.” 6 VRP (Mar. 2, 2016) at 661. She also argued that E.B. had “no reason” to lie that

Svaleson “touched her breasts with both hands, that he touched her vaginal area, her back private

area.” 6 VRP (Mar. 2, 2016) at 661. The prosecutor further argued that there was “[n]o reason

for her to fabricate this,” and “if what [E.B.] said happened happened, there’s also no reason and

no reasonable explanation as to why the defendant’s hands would have found themselves in those

areas.” 6 VRP (Mar. 2, 2016) at 661.

       The prosecutor also addressed E.B.’s delay in reporting the incident. She argued:

       Obviously, this was not a comfortable place for her to be. It’s an intimidating
       setting up there probably for anyone, but she’s 11.

               ....

               Don’t make this [E.B.]’s fault. There is testimony that, you know, there’s
       a house phone. Why wouldn’t you call? She didn’t have a cell phone yet at the
       time. It’s not [E.B.]’s fault she did not pick up the house phone and call her mom.
       She knew her mom was coming to get her at the end of the day, and she told her



                                                 6
No. 48855-8-II


       mom pretty much as soon as she got in the car, but that aside, the defendant is the
       one who did this.

6 VRP (Mar. 2, 2016) at 659, 664-65.

       The prosecutor argued that Svaleson was in court watching E.B. and listening to her, and

urged the jury to “think carefully about her reactions, her responses to my questions, how quickly

she basically shut off.” 6 VRP (Mar. 2, 2016) at 659. Svaleson objected, arguing, “This calls for

undue sympathy.” 6 VRP (Mar. 2, 2016) at 659. The trial court overruled the objection.

       In closing, defense counsel argued that Svaleson was merely tickling E.B., but that E.B.

possibly misinterpreted the tickling. Defense counsel emphasized that the kitchen was “an open

concept room where people could walk in and out without having to open a door or knock.” VRP

(Mar. 2, 2016) at 679. Defense counsel also emphasized E.B.’s failure to report what had happened

until her mother picked her up nine hours later.

       In rebuttal, the prosecutor argued that there is “no one set way that someone commits these

crimes.” VRP (Mar. 2, 2016) at 685. She also acknowledged that the jury may be wondering why

Svaleson did this, but “[t]hat’s not an element.” VRP (Mar. 2, 2016) at 685. Instead, the prosecutor

urged the jury to “use [its] common sense” when determining whether the touching was done for

the purpose of gratifying sexual desire:

       [B]ecause you certainly don’t need someone to testify for you in order to meet this element,
       an eleven-year-old saying he touched me and while he was doing this though [sic] he said
       he was doing it to satisfy his sexual desire. You don’t need someone to say that. You infer
       it based on the context, common sense, common experiences why that touching occurred.
       And what I’m submitting to you is that the explanation of just the tickling, it doesn’t make
       sense in this context.

VRP (Mar. 2, 2016) at 686-87.

       The prosecutor concluded her rebuttal with:



                                                   7
No. 48855-8-II


       Finally, defense counsel said there are reasonable doubts in this case. I submit to
       you there is not. Once again, the instructions tell you there’s no need for
       corroboration. It’s not required. There’s no reason [E.B.] would have made these
       things up about him touching her other private parts. How she described the
       touching of her breast area is not consistent with what he said happened in tickling.
       If you believe her, you’re convinced beyond a reasonable doubt, and that’s all that’s
       necessary. I ask that you hold him responsible.

VRP (Mar. 2, 2016) at 688.

C.     RELEVANT PORTIONS OF SENTENCING

       The jury found Svaleson guilty as charged. The sentencing court imposed a 51 months to

life sentence.

       The sentencing court also imposed legal financial obligations of $500 Crime Victim

Penalty Assessment, $200 criminal filing fee, $100 DNA testing fee, and “restitution which may

be set by later order of the Court.” CP at 86. Although the court referred to the $200 fee as “court

costs” in its oral ruling, the judgment and sentence reflects a “$200 Criminal Filing Fee.” VRP

(Apr. 15, 2016) at 8 (sentencing); CP at 86. When asked by the State if the court was imposing

DAC recoupment, the court responded, “[n]o, because of indigency.” VRP (Apr. 15, 2016) at 8

(sentencing). The judgment and sentence shows that court-appointed attorney fees and defense

costs were “waived by court, inability to pay.” CP at 86.

       The sentencing court also imposed a number of community custody conditions, including:

       14.       Do not purchase, possess, or consume alcohol.
       15.       Do not enter into any location where alcohol is the primary product, such as taverns,
                 bars, and/or liquor stores.

                 ....

       23.       Do not go to or frequent places where children congregate, (I.E. Fast-food outlets,
                 libraries, theaters, shopping malls, play grounds and parks, etc.) unless otherwise
                 approved by the Court.



                                                   8
No. 48855-8-II



               ....

       27.     You are also prohibited from joining or perusing any public social websites
               ([Facebook], Myspace, Craigslist, etc.), Skyping, or telephoning any sexually-
               oriented 900 numbers.

               ....

       29.     Do not patronize prostitutes or any businesses that promote the commercialization
               of sex.

CP at 101-102.

       Svaleson appeals.

                                           ANALYSIS

A.     SUFFICIENCY OF THE EVIDENCE

       Svaleson argues that the State presented insufficient evidence that he touched E.B.’s

intimate or sexual parts “for the purposes of gratifying sexual desire of either party or a third

party,” as required by RCW 9A.44.010(2).2 Br. of Appellant at 16. We disagree.

       1. Standard of Review

       In reviewing a challenge to the sufficiency of the evidence, we view the evidence in the

light most favorable to the State and “determine whether any rational fact finder could have found

the elements of the crime beyond a reasonable doubt.” State v. Homan, 181 Wn.2d 102, 105, 330

P.3d 182 (2014). An insufficiency claim admits the truth of the State’s evidence and all reasonable




2
  Svaleson also contends that the State failed to meet its burden of proof because it tried to shift
the burden of proof by arguing that there was no reasonable explanation Svaleson touched E.B.
other than to gratify his sexual desire. Svaleson makes a similar argument in his prosecutorial
misconduct claim. We address Svaleson’s burden shifting argument in the portion of the opinion
addressing prosecutorial misconduct.


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No. 48855-8-II


inferences that can be drawn from that evidence. Id. at 106. All such inferences “ ‘must be drawn

in favor of the State and interpreted most strongly against the defendant.’ ” Id. (quoting State v.

Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992)). Direct and circumstantial evidence are

equally reliable. State v. Farnsworth, 185 Wn.2d 768, 775, 374 P.3d 1152 (2016).

       We review a challenge to the sufficiency of the evidence de novo. State v. Rich, 184 Wn.2d

897, 903, 365 P.3d 746 (2016). We defer to the fact finder on issues of conflicting testimony,

witness credibility, and the persuasiveness of evidence. State v. Ague-Masters, 138 Wn. App. 86,

102, 156 P.3d 265 (2007). If there is insufficient evidence to prove an element of a crime, reversal

is required. State v. Smith, 155 Wn.2d 496, 505, 120 P.3d 559 (2005).

       2. The State Presented Sufficient Evidence of Sexual Gratification

       A person commits first degree child molestation by having “sexual contact with another

who is less than twelve years old and not married to the perpetrator and the perpetrator is at least

thirty-six months older than the victim.” RCW 9A.44.083(1). Sexual contact is defined as “any

touching of the sexual or other intimate parts of a person done for the purpose of gratifying sexual

desire of either party or a third party.” RCW 9A.44.010(2). “Sexual gratification” is a clarifying

term meant to define the essential element of “sexual contact.” State v. Lorenz, 152 Wn.2d 22, 34-

35, 93 P.3d 133 (2004).

       Svaleson relies on State v. Powell, 62 Wn. App. 914, 916, 816 P.2d 86 (1991), review

denied 118 Wn.2d 1013 (1992), to argue the State presented insufficient evidence he touched E.B.

with intent to gratify his sexual desire. In Powell, a fourth grade girl told her school counselor that

in the weeks before Thanksgiving, Powell had hugged her around the chest as she was seated on

his lap. 62 Wn. App. at 916. She also said that Powell placed his hand on the front and bottom of



                                                  10
No. 48855-8-II


her underpants, as he assisted her off of his lap. Id. On a separate occasion, Powell momentarily

touched both the girl’s thighs on the outside of her clothing while they were alone in his truck. Id.

        The Powell court held these contacts were insufficient to show the defendant touched the

girl with the intent to gratify his sexual desire. Id. at 917-18. The court held that proof an unrelated

adult with no caretaking function has touched the intimate parts of a child supports the inference

it was done for sexual gratification. Id. at 917. But additional evidence of intent was required

when the contact was over the child’s clothing. Id. The court noted the evidence against Powell

was “equivocal” and only suggested a “fleeting touch” over clothing. Id. at 917-18. Because there

was no additional evidence aside from the fleeting touches over the child’s clothing, such as

threats, bribes, or requests not to tell being made, the Powell court reversed the first degree child

molestation conviction. Id. at 918.

        Here, unlike in Powell, the evidence showed more than a “fleeting touch” over clothing.

The State presented evidence Svaleson touched E.B.’s breasts with both hands underneath her

clothing. Even Svaleson admitted that he directly touched E.B.’s breast with his thumb. Under

Powell, this evidence of direct contact to E.B.’s breasts supported the inference it was done for the

purposes of gratifying sexual desire. The State also presented evidence that immediately after

touching her breast, Svaleson rubbed “between [her] kneecap,” and grabbed and squeezed both

her butt and vagina. 4 VRP (Feb. 29, 2016) at 359. Viewing this evidence in the light most

favorable to the State, a rational trier of fact could have found Svaleson touched E.B. for the

purpose of gratifying his sexual desire.

        Svaleson claims the evidence here was “highly equivocal” because the kitchen was not a

private space and because E.B. failed to tell her mother or sister immediately after the contact



                                                  11
No. 48855-8-II


occurred. Br. of Appellant at 18. But Powell does not stand for the proposition that the State must

present evidence of sexual contact in a private space or evidence the child victim immediately

reported the incident to meet its burden. Although the Powell court considered the lack of

evidence, such as threats or bribes, it never scrutinized the time it took the child victim to report

the abuse. 62 Wn. App. at 917-18. Further, the court never suggested that a child’s delay in

reporting sexual abuse indicated sexual contact never occurred. Id. Thus, Svaleson’s reliance on

E.B.’s nine hour delay in reporting the incident is unavailing.

       Therefore, we hold that Svaleson’s challenge to the sufficiency of the evidence fails.

B.     NON-CORROBORATION JURY INSTRUCTION

       Svaleson argues the trial court unconstitutionally commented on the evidence by giving a

non-corroboration instruction. We disagree.

       1. Standard of Review

       We review a challenged jury instruction de novo. State v. Jackman, 156 Wn.2d 736, 743,

132 P.3d 136 (2006), as corrected (2007). In doing so, we consider the context of the jury

instructions as a whole. Id.

       2. The Non-Corroboration Instruction was not a Comment on the Evidence

       Article IV, section 16 of the Washington Constitution prohibits a judge from “ ‘conveying

to the jury his or her personal attitudes toward the merits of the case.’ ” Id. at 743-44 (quoting

State v. Becker, 132 Wn.2d 54, 64, 935 P.2d 1321 (1997)). Such comment on the evidence need

not be explicit. Id. at 744. A trial court impermissibly comments on the evidence if it implies an

“attitude toward the merits of the case or the court’s evaluation relative to the disputed issue is

inferable from the statement.” State v. Johnson, 152 Wn. App. 924, 935, 219 P.3d 958 (2009)



                                                 12
No. 48855-8-II


(quoting State v. Lane, 125 Wn.2d 825, 838, 889 P.2d 929 (1995)). Conversely, a jury instruction

is not an impermissible comment on the evidence where sufficient evidence supports the

instruction and it is an accurate statement of the law. Id.

       The Washington Supreme Court addressed the use of a non-corroboration jury instruction

in a child sexual abuse case in State v. Clayton, 32 Wn.2d 571, 572, 202 P.2d 922 (1949). There,

Clayton was charged with “an unlawful and felonious attempt to carnally know and abuse a female

child, not his wife, of the age of fifteen years.” Id. At trial, the jury was given the following

instruction:

               You are instructed that it is the law of this State that a person charged with
       attempting to carnally know a female child under the age of eighteen years may be
       convicted upon the uncorroborated testimony of the prosecutrix alone. That is, the
       question is distinctly one for the jury, and if you believe from the evidence and are
       satisfied beyond a reasonable doubt as to the guilt of the defendant, you will return
       a verdict of guilty, notwithstanding that there be no direct corroboration of her
       testimony as to the commission of the act.

Id.

       Clayton admitted that the instruction was a correct statement of the law, but he argued that

the trial court impermissibly commented on the evidence by singling out the State’s evidence. Id.

at 572-73. The court rejected Clayton’s argument, finding that the jury must have understood that

it was to determine Clayton’s guilt or innocence from all the evidence presented. Id. at 577.

Further, the second sentence in the instruction made clear that the jury were the sole judges of the

weight to be given to the witness testimony. Id.

       Aside from Clayton, the Washington Supreme Court has not addressed the use of a non-

corroboration jury instruction in child sexual abuse cases. Notably, the Washington Pattern

Criminal Jury Instructions (WPIC) do not include a corroboration instruction and the Washington



                                                 13
No. 48855-8-II


Supreme Court Committee on Jury Instructions has explicitly recommended against such

instruction, finding corroboration to really be a matter of sufficiency of the evidence. State v.

Zimmerman, 130 Wn. App. 170, 182, 121 P.3d 1216 (2005), review granted, cause remanded, 157

Wn.2d 1012, 138 P.3d 113 (2006).

       In Zimmerman, the defendant was convicted of first degree child molestation. Id. at 173.

This court shared the Committee’s misgivings on including the non-corroboration instruction, but

held that the instruction was not an improper statement on the evidence. Id. at 182.3

       Svaleson argues that Zimmerman and Clayton are either “distinguishable or no longer good

law.” Br. of Appellant at 29. But the holdings in these cases have yet to be reversed or

reconsidered. Also, the instruction given here is not “markedly different” than the instruction in

Clayton. Br. of Appellant at 31. Like the instruction given in Clayton, the instruction here

explicitly instructed the jury to resolve all questions of witness credibility. Thus, we hold that the

non-corroboration instruction in this case was not an improper comment on the evidence.




3
  Similarly, in Johnson, this court again held that it was bound by Clayton despite reservations in
allowing a non-corroboration instruction. 152 Wn. App. at 935-36. The Johnson court also
rejected the defendant’s argument that a non-corroboration instruction required the qualifying
language of the instruction in Clayton that credibility determinations remained with the jury. Id.
at 936.

       Most recently, Division One of this court addressed a non-corroboration jury instruction in
an incest case. State v. Chenoweth, 188 Wn. App. 521, 535-36, 354 P.3d 13 (2015), review denied,
184 Wn.2d 1023, (2015). The Chenoweth court acknowledged the Committee’s misgivings on
including such an instruction, noting that the Zimmerman and Johnson courts had shared those
misgivings. Id. at 536. Nonetheless, the Chenoweth court held that such instruction was an
accurate statement of the law and concluded that its use was not a comment on the evidence. Id.
at 537-38.


                                                 14
No. 48855-8-II


C.      EXPERT TESTIMONY

        Svaleson argues for the first time on appeal that Adams and Skinner offered improper

opinion testimony by making “explicit or near explicit comment on guilt, veracity or credibility.”

Br. of Appellant at 35. We disagree.

        1. Standard of Review

        Because Svaleson raises this issue for the first time on appeal, he must show that allowing

the testimony was a manifest error affecting a constitutional right. State v. Kirkman, 159 Wn.2d

918, 926, 155 P.3d 125 (2007). Svaleson bears the burden of identifying the constitutional error

and showing how the alleged error affected his rights at trial. Id. at 926-27.

        Generally, witnesses are prohibited from offering testimony in the form of an opinion

regarding the guilt or veracity of the defendant. Id. at 927. Such testimony invades the province

of the jury and unfairly prejudices the defendant. Id. In determining whether a witness has offered

impermissible opinion testimony, this court considers the circumstances of the case, including five

factors: “(1) ‘the type of witness involved,’ (2) ‘the specific nature of the testimony,’ (3) ‘the nature

of the charges,’ (4) ‘the type of defense,’ and (5) ‘the other evidence before the trier of fact.’ ” Id.

at 928 (quoting State v. Demery, 144 Wn.2d 753, 759, 30 P.3d 1278 (2001).

        We review a trial court’s decision to admit expert testimony for an abuse of discretion. Id.

at 927. The trial court abuses its discretion if its “ ‘decision is manifestly unreasonable or is based

on untenable reasons or grounds.’ ” State v. Montgomery, 163 Wn.2d 577, 597, 183 P.3d 267

(2008) (quoting State v. Mason, 160 Wn.2d 910, 922, 162 P.3d 396 (2007)).




                                                   15
No. 48855-8-II


       2. Adams’s Testimony

       Svaleson argues that Adams offered improper opinion testimony when she discussed the

technique of using “foundations” to elicit more accurate responses in child interviews. 6 VRP

(Mar. 2, 2016) at 585. Svaleson further argues that it was improper for Adams to testify that her

technique of asking children open-ended questions is “more accurate . . . statistically.” 6 VRP

(Mar. 2, 2016) at 585.

       In Kirkman, the Washington Supreme Court held that the detective in a child rape case

could testify as to the interview protocol used with a child victim. 159 Wn.2d at 931. A detective’s

testimony regarding the protocol used in interviewing a child victim “only provides context for the

interview . . . and does not improperly comment of the truthfulness of the victim.” Id. at 934. The

court rejected the argument that this testimony carried a “special aura of reliability,” as detectives

often use similar protocols in interviewing children, whether they believe the child or not. Id. at

931.

       As in Kirkman, Adams never testified that she believed E.B. was telling the truth. Instead,

she testified as to the open-ended interview techniques used to question an alleged child victim.

Like the detective in Kirkman, she simply testified that this interview protocol was more accurate.

Because this testimony, at best, only indirectly related to E.B.’s credibility, Svaleson has failed to

show that Adam’s testimony was improper opinion testimony.

       3. Skinner’s Testimony

       Svaleson argues that Skinner offered improper opinion testimony on Svaleson’s guilt by

testifying that she had diagnosed E.B. with “acute stress disorder.” Br. of Appellant at 36.

Svaleson also argues that it was improper for Skinner to testify that E.B.’s symptoms were



                                                 16
No. 48855-8-II


consistent with someone who has been sexually abused. Svaleson relies on State v. Black, 109

Wn.2d 336, 745 P.2d 12 (1987) to argue that Skinner’s testimony regarding acute stress disorder

was “ ‘in essence’ a statement that the defendant was guilty.” Br. of Appellant at 36.

        In Black, the defendant in a rape case testified he had sex with the victim, but claimed it

was consensual and that no force was involved. 109 Wn.2d at 338. To prove the sex was

nonconsensual, the State offered the testimony of a counselor for a rape crisis center. Id. The

counselor testified that the victim fit the profile for rape victims and that her symptoms fit “rape

trauma syndrome.” Id. at 339. The court held that expert testimony on rape trauma syndrome

unfairly prejudiced the defendant because the term “rape trauma syndrome” itself suggested that

the defendant was guilty of rape. Id. at 349.

        Unlike the testimony in Black, Skinner’s testimony did not embrace the diagnosis of “rape

trauma syndrome.” Skinner testified that she had diagnosed E.B. with “acute stress disorder” and

explained that this diagnosis was used “when a traumatic experience has occurred, either a client

has witnessed or has learned about a traumatic experience, and there are symptoms resulting from

that traumatic experience that meet a criteria.” 5 VRP (Mar. 1, 2016) at 538. Thus, unlike the

testimony in Black, Skinner testified that there were several reasons a client may develop acute

stress disorder.

        Kirkman is instructive. In Kirkman, a doctor testified that in his evaluation, the child victim

gave “a very clear history” and provided “a clear and consistent history of sexual touching . . . with

appropriate affect.” 159 Wn.2d at 929. The defendant argued that in stating the child’s “report of

sexual touching was clear, consistent, with appropriate affect, and that she used appropriate

vocabulary,” the doctor commented on the child’s credibility. Id. at 929-30. The Kirkman court



                                                  17
No. 48855-8-II


rejected this argument, holding that this testimony “did not come close” to testifying the defendant

was guilty or that he believed the child’s account. Id. at 930.

       Here, Skinner never opined that she believed Svaleson was guilty, nor did she state that

she believed E.B.’s version of the events to be true. Instead, she testified that she diagnosed E.B.

with acute stress disorder and that the symptoms E.B. exhibited were consistent with someone who

has suffered a traumatic experience. Like the doctors’ testimony in Kirkman, Skinner did not offer

her opinion to an ultimate fact in the case. Svaleson fails to show Skinner’s testimony was

improper opinion testimony.

       4.      Manifest Error Affecting a Constitutional Right

       A manifest error affecting a constitutional right does not necessarily exist when a witness

expresses an opinion on an ultimate issue of fact. Id. at 935. “Manifest” under RAP 2.5(a)(3) is

to be construed narrowly and requires “a nearly explicit statement by the witness that the witness

believed the accusing victim.” Id. at 936. It also requires a showing of actual prejudice. Id. at

937.

       Here, Svaleson fails to show that either Skinner or Adams provided improper opinion

testimony. Also, the testimony, at best, only indirectly related to E.B.’s credibility. Therefore, we

hold that Svaleson has failed to show Adam’s and Skinner’s testimony constituted a manifest error

warranting reversal.

D.     PROSECUTORIAL MISCONDUCT

       Svaleson argues the prosecutor committed misconduct in closing argument by: (1) shifting

the burden to Svaleson to disprove the State’s case; (2) commenting that testifying at trial was not

“a comfortable place for [E.B.] to be” and was “an intimidating setting;” and (3) urging the jury to



                                                 18
No. 48855-8-II


not blame E.B. and “make this [her] fault.”4 Br. of Appellant at 40; 6 VRP (Mar. 2, 2016) at 659,

664. We hold these allegations of misconduct fail.

       1.   Standard of Review

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

prosecutor’s conduct was both improper and prejudicial. State v. Emery, 174 Wn.2d 741, 756, 278

P.3d 653 (2012). First, we determine whether the prosecutor’s conduct was improper. Id. at 759.

If the prosecutor’s conduct was improper, the question turns to whether the prosecutor’s improper

conduct resulted in prejudice. Id. at 760. Prejudice is established by showing a substantial

likelihood that the prosecutor’s misconduct affected the verdict. Id.

       However, if a defendant does not object at trial, he or she is deemed to have waived any

error unless the prosecutor’s misconduct was so flagrant and ill-intentioned that an instruction

could not have cured any resulting prejudice. Id. at 760–61. Under this heightened standard of

review, the defendant must show that “(1) ‘no curative instruction would have obviated any

prejudicial effect on the jury’ and (2) the misconduct resulted in prejudice that ‘had a substantial

likelihood of affecting the jury verdict.’ ” Id. at 761 (quoting State v. Thorgerson, 172 Wn.2d 438,

455, 258 P.3d 43 (2011)). In making a prejudice determination, we “focus less on whether the

prosecutor’s misconduct was flagrant or ill intentioned and more on whether the resulting prejudice

could have been cured.” Id. at 762.




4
  Svaleson recites numerous other statements made by the prosecutor during closing arguments,
arguing that they were all “flagrant, prejudicial and ill-intentioned misconduct.” Br. of Appellant
at 40. However, because Svaleson provides no argument explaining how these statements
constituted flagrant and ill-intentioned misconduct, we do not address these challenges. RAP
10.3(a)(6); Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992).


                                                19
No. 48855-8-II


       When reviewing a claim of prosecutorial misconduct, we consider the statements in the

context of the entire case. Thorgerson, 172 Wn.2d at 443. In closing, the State is afforded wide

latitude in drawing and expressing reasonable inferences from the evidence. State v. Hoffman, 116

Wn.2d 51, 94-95, 804 P.2d 577 (1991), cert denied 516 U.S. 1160 (1996). The State may draw

reasonable inferences from the evidence and respond to defense arguments in its closing. State v.

Stenson, 132 Wn.2d 668, 727, 940 P.2d 1239 (1997), cert denied 523 U.S. 1008 (1998); State v.

Brown, 132 Wn.2d 529, 566, 940 P.2d 546 (1997), cert denied, 523 U.S. 1007 (1998).

       2.   Improper Burden Shifting

       Svaleson argues that the prosecutor improperly shifted the burden of proof onto him by

asking the jury “why would [E.B.] make up all of that?” and stating that “what [E.B.] described is

sexual contact, and if you believe her, if you believe what she’s described, ladies and gentleman,

you are satisfied beyond a reasonable doubt.” Br. of Appellant at 38. Svaleson implies that the

statements were prejudicial because they essentially informed the jury that Svaleson was guilty

because there was no evidence showing he was not guilty.

       In support, Svaleson relies on State v. Fleming, 83 Wn. App. 209, 213, 921 P.2d 1076

(1996), review denied 131 Wn.2d 1018 (1997). In Fleming, the court held that the prosecutor

engaged in flagrant misconduct resulting in manifest constitutional error when she argued the jury

“would have to find either that [the victim] has lied about what occurred . . . or that she was

confused” to find the defendant not guilty. 83 Wn. App. at 213.

       But the prosecutor here did not tell the jury that acquitting Svaleson meant finding E.B.

had lied. Rather, the prosecutor stated that if the jury believed E.B.’s testimony, they would be

satisfied beyond a reasonable doubt. Also, when viewed in the context of the entire closing



                                               20
No. 48855-8-II


argument, the prosecutor’s statements did not argue that Svaleson was guilty because there was no

evidence showing he was not guilty. Instead, the prosecutor’s arguments addressed the lack of

evidence corroborating E.B.’s testimony.

       Svaleson also argues that the prosecutor created “an effective improper presumption” that

the jury should conclude proof of touching E.B.’s sexual parts was proof the touching was done

for sexual gratification. Br. of Appellant at 20. In support, Svaleson cites to State v. Deal, 128

Wn.2d 693, 699-700, 911 P.2d 996 (1996) and State v. Brunson, 128 Wn.2d 98, 107, 905 P.2d 346

(1995). But both Deal and Brunson addressed a jury instruction that created an improper

presumption. Deal, 128 Wn.2d at 700-01; Brunson, 128 Wn.2d at 105. Because Svaleson is not

arguing that a jury instruction created an improper presumption, his reliance on Deal and Brunson

is misplaced.

       Also, when viewed in the context of the State’s entire closing argument, the prosecutor did

not create any presumption or improperly shift its burden to prove intent by arguing to the jury “if

you believe what [E.B.’s] described, ladies and gentlemen, you are satisfied beyond a reasonable

doubt.” 6 VRP (Mar. 2, 2016) at 652. Instead, the prosecutor made this statement while discussing

the credibility of E.B. and Svaleson. The prosecutor argued that the jury should consider

Svaleson’s motives, bias, and the reasonableness of his story when assessing his testimony, and

that E.B. had no reason to fabricate. The prosecutor’s latitude in closing argument extended to

arguing that the jury should draw permissible inferences based on the evidence presented that

Svaleson touched E.B. to gratify his sexual desire.




                                                21
No. 48855-8-II


       Moreover, because Svaleson did not object below, Svaleson has waived any error by failing

to show that no curative instruction would have obviated any prejudicial effect. Emery, 174

Wn.2d. Thus, Svaleson’s prosecutorial misconduct claim based on improper burden shifting fails.

       3.   Commenting on E.B.’s Demeanor

       Svaleson argues the prosecutor engaged in flagrant and ill-intentioned misconduct by

mentioning that court was uncomfortable and an intimidating setting for E.B. We disagree.

       It is inappropriate for a prosecutor to make “nothing but an appeal to the jury’s passion and

prejudice.” State v. Claflin, 38 Wn. App. 847, 850, 690 P.2d 1186 (1984), review denied 103

Wn.2d 1014 (1985). For example, in Belgarde, the court held that the prosecutor’s repeated

references to the defendant’s association with the American Indian Movement as “a deadly group

of madmen” was a deliberate appeal to the jury’s passion and prejudice and encouraged the jury

to render a verdict based on the defendant’s association with AIM. 110 Wn.2d 504, 506, 755 P.2d

174 (1988). In Claflin, the court found prosecutorial misconduct where a prosecutor read “a poem

utilizing vivid and highly inflammatory imagery” to describe rape’s emotional effect on its victims.

38 Wn. App. at 850.

       Here, the prosecutor made the challenged statements in the context of E.B.’s credibility.

The statements were not made to inflame the passion and prejudice of the jury as in Belgarde and

Claflin, but were made to explain why E.B. had difficulty remembering details when testifying.

We hold that these statements were not made to obtain “undue sympathy” and that Svaleson’s

prosecutorial misconduct argument fails.




                                                22
No. 48855-8-II


       4.   Urging the Jury to Not Blame E.B.

       Svaleson also contends that the prosecutor improperly conveyed to the jury that failing to

convict Svaleson would be a finding that E.B. was at fault, relying on the prosecutor’s statement

“not to make this [E.B.’s] fault.” Br. of Appellant at 39. We reject this assertion.

       Svaleson argues the prosecutor “clearly conveyed to the jurors that a failure to convict

would be to make this E.B.’s fault” through this statement. Br. of Appellant at 42. But he provides

no support connecting this kind of statement to his conclusion. Svaleson’s sole support for his

argument is the prosecutor’s comment to not “make this [E.B.’s] fault.” 6 VRP (Mar. 2, 2016) at

664. Svaleson baldly asserts that through this statement, the prosecutor “clearly conveyed to the

jurors that a failure to convict would be to make this E.B.’s fault.” Br. of Appellant at 42.

       Viewing this statement within the context of the entire case, the prosecutor made this

statement in response to the defense’s argument that E.B. failed to immediately call her mom with

the house phone following the incident. In closing, defense counsel spent considerable time

commenting on E.B.’s delay in reporting. He even counted the hours it took E.B. to say something.

Given that Svaleson spent significant time addressing E.B.’s delay in reporting this incident, it was

not improper for the prosecutor to respond by arguing:

       Don’t make this [E.B.]’s fault. There is testimony that, you know, there’s a house
       phone. Why wouldn’t you call? She didn’t have a cell phone yet at the time. It’s
       not [E.B.]’s fault she did not pick up the house phone and call her mom. She knew
       her mom was coming to get her at the end of the day, and she told her mom pretty
       much as soon as she got in the car, but that aside, the defendant is the one who did
       this.

6 VRP (Mar. 2, 2016) at 664-65.




                                                 23
No. 48855-8-II


       Because Svaleson fails to show the prosecutor’s statement constituted improper conduct,

we hold that Svaleson’s prosecutorial misconduct argument fails.

E.     INEFFECTIVE ASSISTANCE OF COUNSEL

       Svaleson argues that his trial counsel was prejudicially deficient in his performance

because he failed to object to the prosecutor’s “egregious” misconduct and there was no legitimate

tactical reason for failing to object. Br. of Appellant at 42. We disagree.

       1.   Legal Principles

       The Sixth Amendment to the U.S. Constitution and article I, section 22 of the Washington

Constitution guarantees the accused the right to effective assistance of counsel. State v. Grier, 171

Wn.2d 17, 32, 246 P.3d 1260 (2011), cert denied 135 S. Ct. 153 (2014). We review an ineffective

assistance of counsel claim de novo. State v. Estes, 188 Wn.2d 450, 457, 395 P.3d 1045 (2017).

       In Strickland, the U.S. Supreme Court outlined the prevailing standard to reverse a criminal

conviction based on an ineffective assistance of counsel claim. Grier, 171 Wn.2d at 32. This

entails a two-pronged inquiry in which the defendant must show (1) counsel’s performance was

deficient and (2) this deficient performance prejudiced the defense. Id. at 32-33. Counsel’s

performance is deficient if it falls “below an objective standard of reasonableness.” Id. at 33

(quoting Strickland v. Washington, 466 U.S. 668, 688, 104 S. Ct. 2052, 80 L. Ed. 2d. 674 (1984)).

To prevail, the defendant must overcome “a strong presumption that counsel’s performance was

reasonable.” State v. Kyllo, 166 Wn.2d 856, 862, 215 P.3d 177 (2009). Counsel’s performance is

not deficient if it can be characterized as legitimate trial strategy or tactics. Estes, 188 Wn.2d at

458.




                                                 24
No. 48855-8-II


       Defense counsel’s failure to object during the prosecutor’s closing argument generally does

not constitute deficient performance “because lawyers ‘do not commonly object during closing

argument “absent egregious misstatements.” ’ ” In re Pers. Restraint of Cross, 180 Wn.2d 664,

721, 327 P.3d 660 (2014) (quoting In re Pers. Restraint of Davis, 152 Wn.2d 647, 717, 101 P.3d

1 (2007)). Further, to establish deficient performance or prejudice for failing to object, Svaleson

must show that such objection would likely have been successful. State v. Gerdts, 136 Wn. App.

720, 727, 150 P.3d 627 (2007).

       2.   Counsel was not Ineffective

       Here, defense counsel objected based on “undue sympathy” when the prosecutor

mentioned testifying at trial was uncomfortable for E.B. 6 VRP (March 2, 2016) at 659. Because

defense counsel objected, Svaleson’s ineffective assistance of counsel claim fails.

       Svaleson also argues that counsel provided ineffective assistance by failing to object to the

prosecutor’s arguments that purportedly shifted the burden and told the jury to not make this E.B.’s

fault. Both of these claims fail because Svaleson has failed to show the prosecutor’s remarks were

improper. See supra Section D. Thus, Svaleson fails to show that even had defense counsel

objected, the objection would have been sustained. Svaleson fails to show that counsel’s failure

to object was deficient performance, and his ineffective assistance of counsel claim fails.

F.     CUMULATIVE ERROR DOCTRINE

       Svaleson argues that even if the errors standing alone do not warrant reversal, he was

deprived of a fair trial due to the cumulative effect of the prosecutorial misconduct, the improper

jury instruction, improper opinion testimony, and his ineffective assistance of counsel. Under the

cumulative error doctrine, reversal may be required even if each individual error would otherwise



                                                25
No. 48855-8-II


be considered harmless. State v. Russell, 125 Wn.2d 24, 93, 882 P.2d 747 (1994), cert denied 514

U.S. 1129 (1995). Because we hold that Svaleson failed to show that any one of his challenges

constituted error, we likewise hold Svaleson’s cumulative error argument fails.

E.     COMMUNITY CUSTODY CONDITIONS

       Svaleson argues that a number of community custody conditions imposed by the

sentencing court were either unauthorized or unconstitutional. First, he asserts it was improper for

the sentencing court to prohibit him from “purchas[ing], possess[ing], or consum[ing] alcohol” or

from frequenting “any location where alcohol is the primary product, such as taverns, bars, and/or

liquor stores.” CP at 78. Second, he challenges the sentencing court’s authority to ban him from

frequenting locations where children congregate and also argues this condition was

unconstitutionally vague. Third, Svaleson argues the condition banning him from using social

networking sites, including Facebook, Myspace, and Craigslist, was improper. Finally, Svaleson

argues that the sentencing court’s prohibition on patronizing prostitutes and businesses that

promote commercialization of sex was not crime-related, but was also constitutionally vague, and

violates the First Amendment.

       The State concedes that the sentencing court exceeded its statutory authority in prohibiting

Svaleson from purchasing alcohol or entering locations where alcohol is the primary product. The

State also concedes that the sentencing court improperly prohibited Svaleson from using social

networking sites and frequenting businesses that promote the commercialization of sex because

they were not crime-related.




                                                26
No. 48855-8-II


       1. Standard of Review

       We review de novo whether the sentencing court had the statutory authority to impose a

particular community custody condition. State v. Acevedo, 159 Wn. App. 221, 231, 248 P.3d 526

(2010). But a challenge that a community custody condition is not crime-related is reviewed for

abuse of discretion. State v. Sanchez Valencia, 169 Wn.2d 782, 792, 239 P.3d 1059 (2010). In

applying the abuse of discretion standard, we will only reverse a condition that we find to be

“manifestly unreasonable.” State v. Irwin, 191 Wn. App. 644, 652, 364 P.3d 830 (2015). Of

course, imposing an unconstitutional condition is always “manifestly unreasonable.” Id. We do

not presume that community custody conditions are constitutionally valid. Sanchez Valencia, 169

Wn.2d at 793.

       When we determine a sentencing court has imposed an unauthorized condition on

community custody, we will remedy the error by remanding to the sentencing court with

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

1262 (2008).

       2.   Alcohol Prohibitions

       Svaleson challenges the sentencing court’s statutory authority to impose two community

custody prohibitions involving alcohol and argues that neither condition was crime-related. First

he challenges condition 14, which prohibited him from “purchas[ing], possess[ing], or

consum[ing] alcohol.” CP at 78. Next, he challenges condition 15, which prohibited him from

entering “into any location where alcohol is the primary product, such as taverns, bars, and/or

liquor stores.” CP at 78. The State concedes that the portion of condition 14 prohibiting Svaleson

from possessing or purchasing alcohol and condition 15 exceeded the sentencing court’s statutory



                                               27
No. 48855-8-II


authority. We accept the State’s concession and remand to the sentencing court to amend

community custody condition 14 to only prohibit consuming alcohol and to strike condition 15.

       At the time of the incident in 2014, former RCW 9.94A.703 allowed the sentencing court

to impose the discretionary community custody condition that Svaleson “[r]efrain from consuming

alcohol.” RCW 9.94A.703 (3)(e) (2014).5 Thus, the sentencing court had the authority under

former RCW 9.94A.703(3)(e) to prohibit Svaleson from consuming alcohol as a condition of his

community custody. But the sentencing court did not have statutory authority to impose the

conditions related to possessing, purchasing, or frequenting locations where alcohol was the

primary product unless these conditions were crime-related.

       Under RCW 9.94A.703(3)(f), the sentencing court had discretionary authority to order

Svaleson to “[c]omply with any crime-related prohibitions.” A condition is crime-related only if

there is specific evidence showing it contributed to the offense. State v. Jones, 118 Wn. App. 199,

207-08, 76 P.3d 258 (2003).

       Because there was no evidence that alcohol played a role in Svaleson’s offense, it was

manifestly unreasonable for the sentencing court to prohibit the purchase and possession of alcohol

as a crime-related condition. Therefore, we hold that the condition prohibiting Svaleson from

entering a location where alcohol is the primary product was an abuse of discretion because there

was no evidence that showed this was a crime-related condition. Thus, we remand to the

sentencing court with instructions to strike the portion of condition 14 prohibiting him from

purchasing or possessing alcohol and to strike condition 15.



5
  At sentencing in 2016, the legislature had updated the discretionary community custody
conditions to “[r]efrain from possessing or consuming alcohol.” RCW 9.94A.703 (3)(e) (2015).


                                                28
No. 48855-8-II


       3.   Ban on Frequenting Locations Where Children Congregate

       Svaleson challenges community custody condition 23 prohibiting him from visiting

locations where children congregate.6 Svaleson argues that the condition is not crime-related. He

also makes a vagueness challenge. We disagree on both accounts.

               a.   The Condition is Crime-Related

       Svaleson argues that the condition banning him from places children congregate is not

crime-related because Svaleson committed this crime in a private home. We disagree.

       A condition is crime-related if it directly relates to the underlying crime and need not be

causally related to the crime. Zimmer, 146 Wn. App. at 413 (community custody condition

prohibiting possession of drug paraphernalia directly related to the defendant’s conviction for

possession of methamphetamine); State v. Acrey, 135 Wn. App. 938, 946-47, 146 P.3d 1215 (2006)

(community custody condition prohibiting the defendant from working as a caretaker for elderly

or disabled individuals after she manipulated an elderly man into marrying her and subsequently

drained his bank account was crime-related because the defendant’s criminal method involved

gaining the trust of a dependent person).

       Here, the condition prohibiting Svaleson from visiting locations where children congregate

directly related to his conviction for child molestation. Svaleson was convicted of a crime where

the victim was a 10 year old girl. Although he did not meet E.B. in a public location, his criminal




6
  Svaleson challenges this condition by conflating two distinct legal issues in one assignment of
error, but we address each in turn. State v. Zimmer, 146 Wn. App. 405, 412, 190 P.3d 121 (2008),
review denied, 165 Wn.2d 1035 (2009).


                                                29
No. 48855-8-II


method involved gaining the trust of a young child. Therefore, it was not manifestly unreasonable

for the trial court to prohibit Svaleson from frequenting locations where children congregate.

                b.    The Condition is not Unconstitutionally Vague

         Alternatively, Svaleson argues condition 23 is unconstitutionally vague because a ban on

frequenting places children congregate “includes an incredibly open-ended list.” Br. of Appellant

at 46. We disagree.

        The guarantee of due process, afforded by the Fourteenth Amendment to the United States

Constitution and article I, section 3 of the Washington Constitution requires citizens to have fair

warning of conduct proscribed. State v. Bahl, 164 Wn.2d 739, 752, 193 P.3d 678 (2008). A statute

is unconstitutionally vague if it fails to “(1) provide ordinary people fair warning of proscribed

conduct and (2) have standards that are definite enough to ‘ “protect against arbitrary

enforcement.” ’ ” Irwin, 191 Wn. App. at 652-53 (quoting Bahl, 164 Wn.2d at 752-53). A

community custody condition is unconstitutionally vague if it fails in either respect. Id. at 653.

        Svaleson primarily relies on the holding in Irwin. The Irwin court held a condition

prohibiting the defendant from “frequent[ing] areas where minor children are known to

congregate, as defined by the supervising CCO” was unconstitutionally vague. 191 Wn. App. at

652. But the Irwin court reached this decision noting that “[w]ithout some clarifying language or

an illustrative list of prohibited locations . . . the condition does not give ordinary people sufficient

notice to ‘understand what conduct is proscribed.’ ” Id. at 655 (quoting Bahl, 164 Wn.2d at 753.

        In contrast, Svaleson challenges a condition that states:

        Do not go to or frequent places where children congregate, (I.E. Fast-food outlets,
        libraries, theatres, shopping malls, play grounds and parks, etc.) unless otherwise
        approved by the Court.



                                                   30
No. 48855-8-II



CP at 79.

       The condition imposed here cures the defect in the condition challenged in Irwin because

it contains the “illustrative list of prohibited locations” the Irwin court held would provide

sufficient notice. Irwin, 191 Wn. App. at 655. The condition here further alleviates the arbitrary

enforcement concerns in Irwin because it does not vest a correctional officer with the authority to

define “places where children congregate.” CP at 79. Because the condition here cures the

vagueness defects identified in Irwin, we hold Svaleson’s vagueness challenge fails.

       4.   Ban on Social Networking Sites

       Svaleson challenges the community custody condition prohibiting him from “joining or

perusing any public social websites ([Facebook], Myspace, Craigslist, etc.), Skyping, or

telephoning any sexually-oriented 900 numbers.” CP at 79. Again, he contends the condition is

not crime-related and is unconstitutionally vague. The State concedes the condition is not crime-

related. We accept the State’s concession and hold that the condition is not crime-related.

       Internet use is crime-related if there is evidence that Internet use “contributed in any way

to the crime.” O’Cain, 144 Wn. App. at 775. Here, there was no evidence before the sentencing

court that technology, let alone social networking websites, contributed in any way to Svaleson’s

crime of child molestation. Without evidence that social networking websites, Skype, or sexually-

oriented 900 numbers contributed to the crime, we hold that the sentencing court erred in imposing

this condition.7



7
 Because we decide this issue on non-constitutional grounds, we do not reach the constitutional
challenge. State v. Smith, 104 Wn.2d 497, 505, 707 P.2d 1306 (1985).



                                                31
No. 48855-8-II


       Thus, we accept the State’s concession and remand to the trial court with instructions to

strike community custody condition 27.

       5.   Prohibitions Related to the Commercialization of Sex

       Svaleson challenges community custody condition 29, which prohibited him from

“patronize[ing] prostitutes or any businesses that promote the commercialization of sex.” CP at

79. He argues that the condition was not crime-related, was unconstitutionally vague, and violates

the First Amendment. Again, the State concedes this condition was not crime-related.

       Here, there was no evidence to suggest that establishments promoting the

commercialization of sex contributed in any way to Svaleson’s crime. Therefore, the sentencing

court erred in imposing this condition.

       However, in Washington, it is a misdemeanor to patronize a prostitute.               RCW

9A.88.110(4). The sentencing court has authority to require an offender to engage in law-abiding

behavior. Jones, 118 Wn. App. at 205. Thus, the sentencing court did not abuse its discretion in

prohibiting Svaleson from patronizing a prostitute in violation of Washington law.

       Thus, we hold that the sentencing court erred in prohibiting Svaleson from patronizing

businesses that promote the commercialization of sex because such prohibition was not crime-

related and remand for the sentencing court to strike the community custody condition prohibiting

Svaleson from patronizing businesses that promote the commercialization of sex.8




8
  Svaleson also raises constitutional vagueness and First Amendment challenges to the condition
related to the “commercialization of sex.” Br. of Appellant at 48-49. Because we decide
Svaleson’s “commercialization of sex” claim on non-constitutional grounds, we decline to address
his constitutional arguments. Smith, 104 Wn.2d at 505.


                                               32
No. 48855-8-II


G.       LEGAL FINANCIAL OBLIGATIONS

         Svaleson argues the sentencing court erred in imposing “standard” legal financial

obligations (LFOs) because it failed to consider his financial resources and the burden those costs

would impose. Br. of Appellant at 49. We disagree.

         1.   Standard of Review

         We review a sentencing court’s decision on whether to impose LFOs for abuse of

discretion. State v. Clark, 191 Wn. App. 369, 372, 362 P.3d 309 (2015), review granted in part

187 Wn.2d 1009 (2017). A court abuses its discretion when it imposes an LFO based on untenable

grounds or for untenable reasons. Id.

         2.   The Sentencing Court did not Err in Imposing Mandatory LFOs

         Svaleson relies on Blazina9 to argue the court abused its discretion in applying LFOs.

Blazina is not instructive here because it addressed the sentencing court’s imposition of

discretionary fees.

         Here, the sentencing court imposed only costs and fees mandated by statute: $500 Crime

Victim Penalty Assessment,10 $200 criminal filing fee,11 and $100 DNA testing fee.12 Thus,




9
    State v. Blazina, 182 Wn.2d 827, 344 P.3d 680 (2015).
10
  Former RCW 7.68.035(1)(a) (2011), amended by LAWS OF 2018, ch. 269, S.S.H.B. No. 1783;
State v. Curry, 118 Wn.2d 911, 917, 829 P.2d 166 (1992).
11
  Former RCW 36.18.020(h) (2013), amended by LAWS OF 2018, ch. 269, S.S.H.B. No. 1783;
State v. Lundy, 176 Wn. App. 96, 102, 308 P.3d 755 (2013).
12
  RCW 43.43.754(1)(a); Former RCW 43.43.7541 (2011), amended by LAWS OF 2018, ch. 269,
S.S.H.B. No. 1783.



                                                33
No. 48855-8-II


because the LFOs imposed were mandated by statute, the sentencing court did not err in imposing

them.

H.      SAG ISSUES

        Svaleson asks this court to review (1) whether the prosecutor engaged in prosecutorial

misconduct; (2) whether his attorney provided ineffective assistance of counsel; (3) the sufficiency

of the evidence; and (4) whether the cumulative error doctrine compels reversal. We reject each

of these claims.

        1. Prosecutorial Misconduct13

        Svaleson contends that the prosecutor trivialized the State’s burden of proof because she

impermissibly “prepped” the jury to overlook the many details E.B. could not remember while

testifying. SAG at 4. Svaleson relies on State v. Lindsay, 180 Wn.2d 423, 326 P.3d 125 (2014),

for support.

        In Lindsay, the Washington Supreme Court held it was improper for the prosecutor to

describe reasonable doubt in closing argument by quantifying the standard of proof through a

jigsaw puzzle analogy. 180 Wn.2d at 436. The court in Lindsay did not hold the prosecutor

engaged in misconduct by arguing the State had met its burden of proof when one of the witnesses

could not remember every detail of the incident. Id.

        Here, Svaleson’s argument based on Lindsay fails because the prosecutor never

incorporated a jigsaw puzzle analogy when describing the reasonable doubt standard. Also, it was

not improper for the State to argue it had met its burden of proof, even though E.B. could not



13
  We addressed Svaleson’s challenge that the prosecutor impermissibly shifted the burden of proof
during closing argument in supra Section D.2.


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No. 48855-8-II


remember several details of the incident during testimony. Thus, we hold that Svaleson’s

prosecutorial misconduct challenge fails.

       2. Counsel was not Ineffective

               a.   Counsel was not Ineffective for Failing to Object

       Svaleson argues his counsel was ineffective because he failed to object to the State’s

“ridiculous and inflammatory question” asking whether Svaleson was ever married to E.B. SAG

at 8. We reject this argument.

       To successfully prove counsel was ineffective for failing to object to this line of

questioning, Svaleson must show the objection would likely have been successful. Gerdts, 136

Wn. App. at 726-27. Svaleson cannot make this showing here because first degree child

molestation is defined as “knowingly causes another person under the age of eighteen to have,

sexual contact with another who is less than twelve years old and not married to the perpetrator.”

RCW 9A.44.083(1). Thus, in order to meet its burden of proof the State was required to prove

E.B. and Svaleson were not married at the time. Any objection to this line of questioning would

have failed, and we hold that Svaleson’s ineffective assistance of counsel claim fails.

               b.   Counsel was not Ineffective for Failing to Cross-Examine the Officers

       Svaleson argues counsel was ineffective for failing to cross-examine the officers about the

lack of physical evidence in the case. We disagree.

       Counsel renders ineffective assistance of counsel for failing to cross-examine a State expert

only if such failure reasonably affected the outcome. Estes, 188 Wn.2d at 458. Here, Svaleson

has not shown that cross-examining the officer on the lack of physical evidence in his case would

likely have affected the outcome. The jury’s finding that he molested E.B. did not turn on any



                                                35
No. 48855-8-II


physical evidence and the State repeatedly conceded this case did not involve physical medical

findings. Therefore, Svaleson’s argument fails.

               c.   Counsel was not Ineffective for Failing to Call Witnesses

       Svaleson also contends his trial counsel was ineffective because, other than Svaleson,

counsel failed to call any witnesses. However, Svaleson fails to explain how additional witnesses

would have assisted him in contesting the charge. We hold that Svaleson has failed to show

counsel’s performance was deficient for failing to call additional witnesses because he has not

shown how additional witnesses would have assisted his defense or that there is a reasonable

probability the outcome of the trial would have been different.

       3. Sufficiency of Evidence

       Svaleson argues the State presented insufficient evidence that he touched E.B. with intent

to gratify his sexual desire. As discussed in Section A above, we hold that this argument fails.14

       4. Cumulative Error Doctrine

       Svaleson contends the combined errors he identified compel reversal. Because Svaleson

has failed to identify any instance constituting error, we hold that his argument fails.




14
   Svaleson also claims the State presented insufficient evidence because E.B.’s testimony
contained many “I don’t remembers” and “I don’t knows.” SAG at 10. However, “ ‘[t]he test for
determining the sufficiency of the evidence is whether, after viewing the evidence in the light most
favorable to the State, any rational trier of fact could have found guilt beyond a reasonable doubt.’
” State v. Hovig, 149 Wn. App. 1, 8, 202 P.3d 318, review denied 166 Wn.2d 1020 (2009) (quoting
Salinas, 119 Wn.2d at 201). Also, “ ‘all reasonable inferences from the evidence must be drawn
in favor of the State and interpreted most strongly against the defendant.’ ” Id. Svaleson fails to
show how E.B.’s challenged testimony amounts to insufficient evidence for any rational trier of
fact to find guilt beyond a reasonable doubt.


                                                 36
No. 48855-8-II


                                           CONCLUSION

        We affirm Svaleson’s conviction.      We reverse the challenged community custody

conditions as noted in this opinion and remand for the sentencing court to strike the community

conditions consistent with this opinion.

        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.




                                                    Lee, A.C.J.
 We concur:



 Worswick, J.


 Sutton, J.




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