      IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

STATE OF WASHINGTON,                               No. 78823-0-I

                       Respondent,                 DIVISION ONE
        v.
                                                   UNPUBLISHED OPINION
 DOUGLAS WAMBA,

                       Appellant.


       LEACH, J. — Douglas Wamba appeals his convictions for varying degrees

of child rape and child molestation of his two stepdaughters.            We affirm his

convictions but remand to strike the community custody condition prohibiting him

from searching the internet without permission, and strike the interest accrual on

unpaid legal financial obligations.

                                    BACKGROUND

       Douglas Wamba’s two stepdaughters, S.L. and O.L., accused Wamba of

raping and molesting them several times. The State charged Wamba with multiple

counts of child rape and child molestation. The jury convicted Wamba of nine

counts of varying degrees of child rape and child molestation.

       Wamba appeals. Additional facts related to the issues Wamba raises are

set forth in the discussion of that issue.




  Citations and pincites are based on the Westlaw online version of the cited material.
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                                          ANALYSIS

        Wamba claims the prosecutorial conduct denied him a fair trial. He also

challenges a community custody provision limiting access to the internet and a

sentence provision imposing interest on unpaid financial obligations. Wamba

received a fair trial, but his challenges to the sentence have merit.

Prosecutorial Misconduct

        Wamba claims the prosecutor acted improperly during closing arguments

by commenting on evidence that the court did not admit for the truth of the

statement’s content and by commenting on the victims’ credibility.

        This court reviews a claim of prosecutorial misconduct under an abuse of

discretion standard. 1 We evaluate the propriety of the prosecutor's conduct and

whether any improper conduct prejudiced a defendant by reviewing a prosecutor's

challenged statements in the context of the entire case. 2 To show prejudice, a

defendant must demonstrate a substantial likelihood that the prosecutor's

misconduct affected the outcome of the trial. 3 When a defendant fails to object to

the challenged conduct, the defendant must show the conduct was so flagrant and

ill-intentioned that a jury instruction could not have cured any resulting

prejudice. 4 A prosecutor's misconduct may deny a defendant his or her

constitutional right to a fair trial. 5




1 State v. Ish, 170 Wn.2d 189, 195–96, 241 P.3d 389 (2010).
2 State v. Thorgerson, 172 Wn.2d 438, 442–43, 258 P.3d 43 (2011).
3 In re Glasmann, 175 Wn.2d 696, 704, 286 P.3d 673 (2012).
4 Thorgerson, 172 Wn.2d at 443 (quoting State v. Russell, 125 Wn.2d 24, 86,

882 P.2d 747 (1994)).
5 Glasmann, 175 Wn.2d at 703–04.


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         During closing arguments, the prosecutor referred to a text message that

S.L. sent to her mother discussing Wamba’s molestation of her:

                 We have the message that a 12-year-old [S.L.] sent her
         mother on December the 4th of 2014 that was subsequently
         forwarded from Kelly to the defendant. And this is one of several
         poignant moments in this case, when you look at the evidence, the
         way she described it, what she was concerned about.
                 DJ touched me inappropriate three times since the last time it
         was a dream, in quotes. I’m uncomfortable to be around him,
         knowing that he’s touched me there. I get really nervous around him.
         I don’t like to be alone with him. The reason it’s happened so many
         times is because he didn’t want me telling you and because I’m so
         nervous to tell him to stop. I like when he gives me back massages
         but he just goes too far. I don’t like it. Never have. Never will. It’s just
         so irritating. I’m 12. This is a 12-year-old, describing being molested
         and raped by her stepfather.

         Wamba did not object.

         The text message the prosecutor described was introduced through

testimony from S.L.’s mother, Kelly. The court instructed the jury it was not to

consider the text as proof of the truth of its contents. The prosecutor did not refer

to S.L.’s text message for the truth of the matter asserted, but to show that Wamba

had a pattern of trying to exert control over the victims. So, Wamba fails to show

that the prosecutor made any improper argument about the text message.

         Wamba next claims the prosecutor impermissibly commented on the

victims’ credibility.   A prosecutor commits misconduct by personally vouching for

a witness's credibility or veracity. 6 “Improper vouching generally occurs (1) if the

prosecutor expresses his or her personal belief as to the veracity of the witness or

(2) if the prosecutor indicates that evidence not presented at trial supports the




6   Ish, 170 Wn.2d at 196.
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witness's testimony.” 7

         Wamba alleges these comments improperly vouched for the victims’

veracity:

         [S.L] also, to a certain extent, not as marked as [O. L.] And before I
         move on, just a caution about that. And I don’t even know if this is
         something I need to say, but I’m going to say it anyway. Please be
         careful in using your own preconceptions or assumptions about how
         someone should or would react to trauma.
                And I don’t know if you came into this experience with an idea
         in mind of how you think someone who had been raped or molested
         would react, how you think they would talk about it, how you think
         they would appear on the stand.
                There was some discussion about that jury selection [sic] way
         back three weeks ago when we were talking about what do you do
         when you are assessing testimony from somebody you don’t know,
         and some of your fellow prospective jurors reasonably said, well, I
         would pay attention to body language and how they react. And those
         are fair observations to make. But be real careful that you’re not
         using your own preconceptions or your own notions about how you
         think someone should act or should react in assessing the testimony
         from the witnesses in this case.

         The prosecutor’s comments, of telling the jurors to be careful of their

preconceptions or assumptions about how someone should react to trauma, does

not express belief about the veracity of the victims or indicate that evidence not

presented supports either victim’s testimony. So, the prosecutor did not comment

improperly. Wamba has not shown any prosecutorial misconduct.

Community Custody

         Wamba next claims the community custody condition barring him from


7   Ish, 170 Wn.2d at 196.
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access to the internet violates his constitutional right because it is

unconstitutionally vague. He also claims the condition exceeds the trial court’s

sentencing authority because it is not crime related. Because the State fails to

persuade us, that the condition is crime related, we do not reach Wamba’s

constitutional argument.

      At sentencing, the court imposed the following condition of community
custody:

       Do not access the Internet on any computer, phone, or computer-
       related device with access to the Internet or on-line computer service
       except as necessary for employment purposes (including job
       searches) in any location, unless such access is approved in
       advance by the supervising Community Corrections Officer and your
       treatment provider. The CCO is permitted to make random searches
       of any computer, phone, or computer-related device to which the
       defendant has access to monitor compliance with this this condition.

       The State agrees this condition must be crime related to survive Wamba’s

challenge. 8 We note the trial court did not make any finding that this condition was

crime related. In State v. O'Cain, the court struck a condition prohibiting O'Cain

from unapproved Internet access: 9

       There is no evidence in the record that the condition in this case is
       crime related. There is no evidence that O'Cain accessed
       the Internet before the rape or that Internet use contributed in any
       way to the crime. This is not a case where a defendant used
       the Internet to contact and lure a victim into an illegal sexual
       encounter. The trial court made no finding that Internet use
       contributed to the rape.[10]




8 RCW 9.9A703(3)(f).
9 144 Wn. App. 772, 774-75, 184 P.3d 1262.
10 O’Cain, 144 Wn. App. at 775.


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         Similarly as here, the record contains no evidence that Wamba’s criminal

conduct was related to his use of the Internet. The State claims the use of internet

contributed to his crimes because he talked to the mother through text messages

and showed the victims inappropriate photos. The State does not explain how

phone texting or photos on a cell phone equate to internet use. Because none of

the events it relies on is specific to internet use, we remand to strike this community

condition because it is not crime-related.

Legal Financial Obligations

         Wamba challenges a provision providing for the accrual of interest on

unpaid legal financial obligations (LFOs). Because the State concedes that this

provision should be stricken, and since the law requires it, 11 we remand to strike

the interest accrual on the LFOs.

Statement of Additional Grounds

         Wamba claims, in his statement of additional grounds, that he received

ineffective assistance of counsel when his attorney failed to examine the analyst,

Tracy Youmans, who helped officers extract information from his cellphone. We

review ineffective assistance of counsel claims de novo. 12 To establish such a

claim, Wamba must show (1) defense counsel’s conduct was deficient, i.e., that it

fell below an objective standard of reasonableness and (2) that the deficient

performance prejudiced him: that there is a reasonable possibility that, but for

counsel’s deficient performance, the outcome of his trial would have been




11   State v. Ramirez, 191 Wn.2d 732, 747, 426 P.3d 714 (2018).
12   In re Brett, 142 Wn.2d 868, 873, 16 P.3d 601 (2001).
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different. 13 Our scrutiny of defense counsel’s performance is highly deferential,

and we employ a strong presumption of reasonableness. 14 “To rebut this

presumption, the defendant bears the burden of establishing the absence of any

‘conceivable legitimate tactic explaining counsel's performance.’” 15 Failure to

satisfy either prong of the test defeats an ineffective assistance of counsel claim. 16

       Wamba states his counsel provided ineffective assistance by failing to call

Youmans as a witness. But, he fails to establish the absence of any conceivable

legitimate tactic explaining counsel's performance. First, Detective Steve Paxton

testified for the State regarding Youmans’ training and the report about the

cellphone information. And, Wamba fails to explain how testimony from Youmans

would not have been duplicative. Also, given the contents found on his cellphone,

like text messages, his defense counsel may reasonably have decided not to

revisit this subject or focus the jury’s attention on the cellphone evidence. Wamba

does not show that his attorney lacked any conceivable legitimate tactic for not

calling Youmans.

       Wamba next asserts that the State’s failure to call Youmans to testify about

the work she did in preparing her analysis of the cellphones deprived him of his

constitutional right to confront his accuser. Wamba asserts that while the court in




13 State v. Reichenbach, 153 Wn.2d 126, 130, 101 P.3d 80 (2004) (citing State v.
Thomas, 109 Wn.2d 222, 225–26, 743 P.2d 816 (1987)).
14 Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 80 L. Ed. 2d

674 (1984); State v. McFarland, 127 Wn.2d 322, 335-36, 899 P.2d 1251 (1995).
15 State v. Grier, 171 Wn.2d 17, 42, 246 P.3d 1260 (2011).

(2011) (quoting Reichenbach, 153 Wn.2d at 130).
16 Strickland, 466 U.S. at 697.


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State v. Lui 17 would “most likely not have considered [Youmans] a ‘witness’ . . . for

confrontation purposes,” her work “created factual information for use by the

investigating detective” and later used by the State at trial. But, the court in Lui

held that only an analyst who testifies about facts adverse to a defendant triggers

a confrontation clause issue. 18 Because Youmans only created the report, and

Paxton testified about adverse facts, Wamba’s argument fails. Also, Wamba fails

to explain how Youmans’ testimony would have changed the outcome of the trial.

So, the ineffective assistance of counsel claim fails.

                                    CONCLUSION

         We affirm in part and remand with instructions to strike consistent with this

opinion. Wamba does not establish any prosecutorial misconduct. He also does

not establish any absence of effective assistance of counsel. So, his challenges

to his convictions fail. Because the community custody condition about internet

use was unrelated to his criminal conduct, the condition is invalid. The condition

providing for interest on unpaid legal obligations violates current law. We affirm

Wamba’s convictions but remand to the trial court to strike the community custody

condition and to strike the interest accrual on the LFOs.




WE CONCUR:




17   State v. Lui, 179 Wn.2d 457, 315 P.3d 493 (2014).
18   Lui, 179 Wn.2d at 489-90.
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