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                                                                                   B

            IN THE COURT OF APPEALS OF THE STATE OF WASHINGT

                                           DIVISION II



STATE OF WASHINGTON,                                                No. 42200 0 II
                                                                              - -


                              Respondent,                    UNPUBLISHED OPINION

       V.




EMANUEL L.FINCH,


                              Appellant.



       WIGGINS, J. .
                T.
                 PEmanuel Leonard Finch was.onvicted by a jury of first degree child
                                           c

rape and first degree child molestation. He challenges his convictions primarily on various

allegations of prosecutorial error. In.addition, he argues that he received ineffective assistance of

counsel due to his attorney's failure to object to the prosecutor's allegedly improper comments.

Finally, he challenges the trial court's sentencing authority to prohibit him from possessing

alcohol and to order him to attend an anger management program. We affirm Finch's conviction,
                            .

and sentence, but remand this case to modify the conditions of his community custody.

                            FACTS AND PROCEDURAL HISTORY


       Emanuel Leonard Finch is the grandfather of two minor girls, L. . and T. . In 2006
                                                                    J.
                                                                     O        J

J.
L. .and T. .moved in with their grandfather. Soon after, Finch began molesting the girls. At
 O       J

the time, L. .was seven or eight, and T. .was eight or nine. He continued to regularly molest
          J.
           O                           J

1 Justice Charlie Wiggins is serving as a judge pro tempore of the Court of Appeals, Division II,
pursuant to CAR 21( ).
                  c
State v. Finch, No. 42200 0 II
                          - -


them, both digitally and orally, and occasionally rape them until June of 2010. That summer,

J.
L. .told a friend at camp that her grandfather did " ucky"things to her. Clerk's Papers (CP)at
 O                                                 y

3. The friend later told her mother, who reported it to child protective services. L. .and T: .
                                                                                   J.
                                                                                    O       J

were forensically interviewed and disclosed Finch's repeated molestation and rape.

       Detectives interviewed Finch, who initially denied touching the girls. However, in a

subsequent interview, Finch admitted to touching them with his hand and with his tongue. He

denied penetrating L. .and T. .with his penis. At trial, Finch denied touching the girls in any
                   J. J
                    O

improper way. When questioned about his confession in the earlier interview, he said that it was

possible that he had said those things, but that he did not remember it.

       The jury found Finch guilty of all charges, plus two aggravating circumstances: abuse of

a position of trust and an ongoing pattern of sexual abuse with a minor. Finch was sentenced to

600 months of confinement and multiple conditions of community custody, including a

prohibition on possession of alcohol and mandated participation in anger management training.

He appeals his conviction.

                                           ANALYSIS


                                 I. _PROSECUTORIAL_
                                                  ERROR


       Finch challenges his convictions based on a number of allegations of prosecutorial error.

Prosecutorial error is a ground for reversal if it is both improper and prejudicial. State v. Monday,

171 Wn. d 667, 675, 257 P. d 551 (2011) citing State v. Fisher, 165 Wn. d 727, 747, 202 P. d
      2                  3               (                            2                  3

937 (2009)). court reviews a prosecutor's comments in context of the entire argument, the
          This

issues in the case, the evidence addressed in the argument, and the jury instructions. State v.

Dhaliwal, 150 Wn. d 559, 578, 79 P. d 432 (2003).
                2                 3             Comments are generally prejudicial only if

there is substantial likelihood that the error affected the jury's verdict. Monday, 171 Wn. d at
                                                                                          2

675 (citing State v. Yates, 161 Wn. d 714, 774, 168 P. d 359 (2007)).
                                  2                  3
                                                 2-
State v. Finch,No. 42200 0 II
                         - -


   A. The prosecutor argued reasonable inferences from the evidence

       The first issue is whether the prosecutor argued facts not supported by the record.

Attorneys       permitted
            are "`          latitude to argue the facts in evidence and reasonable inferences "' in


closing arguments. Dhaliwal, 150 Wn. d at 577 (quoting State v. Smith, 104 Wn. d 497, 510,
                                   2                                         2

707 P. d 1306 (1985)).
     2              Statements not sustained by the record are improper. Id. citing State v.
                                                                             (

Rose, 62 Wn. d 309, 312, 382 P. d 513 (1963)). Dhaliwal, the defendant argued that the
           2                  2             In

prosecutor's comments were based on improper religious and cultural stereotyping, rather than

the evidence. Id. at 576. However, the court found that the prosecutor properly drew inferences

from testimony by using a witness's comments about cultural values as an explanation of

possible motive. Id. at 579.

       Here, the prosecutor's statements were likewise reasonable inferences from the evidence.

First, the prosecutor's statement about nightly molestation was based on the victims' testimony

about the length of time and .frequency of the abuse. L. . and T. . each testified that their
                                                      J.
                                                       O        J

grandfather molested them regularly for a period of two to three years. The prosecutor's

statement about the nightly abuse came directly from this testimony, not requiring any inference.

       Second, the prosecutor's_
                               comment that Finch had confessed to_ "
                                                                  some,but not all of his
                                                                        _

dark deeds," Report of Proceedings (RP)at 840, stemmed from the inconsistency between the
           6

victims' testimony and the defendant's partial'confession. The victims testified that Finch both

molested them and raped them. While Finch admitted to most of the charges against him, he did

not confess to rape. The prosecutor made a reasonable inference from this discrepancy to say that

Finch had confessed to most of what he had done, but not all.

       Finally, the prosecutor relied on a combination of trial testimony when she asked the jury,

Have you heard every single awful thing that that man has done to them?
                                                                      No. Will anybody,

any single individual, ever truly know every detail about every event?And the answer to that is
                                                3-
State v. Finch,No. 42200 0 II
                         - -


also no." RP at 866. The victims testified that the abuse was frequent and spread over several
        6

years, but at trial,they spoke in detail about only some of the incidents. The prosecutor used this,

along with the child interviewer's testimony that abuse disclosure is a gradual process, to infer

that no one, including the jury, would ever hear every detail. Each challenged statement was

based on trial testimony.

    B. The prosecutor did not make inflammatory statements

        The second issue is whether the prosecutor made statements intended to. inflame the

passions and prejudices of the jury. Arguments intended to "`
                                                           incite feelings of fear, anger, and a

desire for revenge, "' or   that are "`
                                      irrelevant, irrational, and inflammatory,"' improper. State
                                                                               are

v. Elledge, 144 Wn. d 62, 85, 26 P. d 271 ( 2001) quoting BENNETT L. GERSHMAN, TRIAL
                  2               3               (

ERROR AND MISCONDUCT §         2- b)( 72 ( 997)). example, in State v. Echevarria, the
                                2),
                                6( at 171 - 1  For

court found that the prosecutor's comments were impermissibly inflammatory and incited

feelings of fear. 71 Wn. App. 595, 598, 860 P. d 420 (1993). that case,which involved an
                                             2             In

alleged cocaine dealer, the prosecutor discussed the war on drugs, commented on the

battlefield"in our neighborhoods, and made references to the Gulf War and the Vietnam War.

Id. at 598. These remarks encouraged the jury to "convict the defendant, not on basis of the

evidence, but, rather, on the basis of fear and repudiation of drug dealers in general." at 599.
                                                                                       Id.

However, statements limited to the circumstances of the crime are permissible, id.,
                                                                                  even where

the "very nature of the crime renders its narration an emotional event,"
                                                                       State v. Rice, 110 Wn. d
                                                                                            2

577, 606, 757 P. d 889 (1988).
               2

        Here, Finch challenges the three statements that he alleged were not based in the

 evidence as inflammatory. However, these statements were related to the circumstances of his

 crimes; they did not reference outside events, as the prosecutor did in Echevarria, 71 Wn. App.

 595. For example, the use of the word "battlefield" when prosecuting a drug dealer, as the
                                                 no
State v. Finch, No. 42200 0 II
                          - -


prosecutor did in Echevarria, is only tenuously connected to the crime. Here, the prosecutor's

comments were focused specifically on Finch, not on the general threat that child molesters pose.

In cases of sexual abuse, to completely avoid any inflammatory effect would be to hamstring the

prosecutor and downplay the significance of such acts. The prosecutor's statements, while

invoking some emotion, were reasonable inferences from testimony at trial and limited to the

circumstances of the crime.


   C. The prosecutor did not argue that the jury must find that the State's witnesses were lying
       in order to acquit Finch

       Next, we evaluate whether the prosecutor suggested that the jury must find that the

State's witnesses lied in order to acquit the defendant. It is error for a prosecutor to offer the jury

the "false choice" that it can find a defendant not guilty only if it also finds that opposing
                           *

witnesses lied. State v. Miles, 139 Wn. App. 879,-
                                                 890, 162 P. d 1169 (2007). Miles, the
                                                           3              In

defendant's testimony conflicted with the testimony of the State's key witness and seriously

undermined the State's case. Id. at 882. There, the prosecutor told the jury that they heard-

mutually    exclusive "' versions of the events and that "`
                                                         if    one   is true, the other cannot be. "' Id.


at 889. The court found this to be error and reversed the conviction. The court in State v.


Fleming, 83 Wn. App. 209, 921 P. d 1076 (1996),
                               2              reached a similar conclusion. There, the

prosecutor told the jury that to find the defendants not guilty, you would have to find either that
                                                                 "`

the victim] has lied about what occurred in that bedroom      or   that she   was   confused. "' Id. at 213.


The court held that this improperly shifted the burden of proof to the defendant, as well as

misstated the standard. Id.


       Here, the challenged statements were in direct response to defense counsel's theory of the

case, which centered on discrediting the State's witnesses. In his closing, defense counsel

suggested that the victims and detectives were not credible or had reason to lie. In her rebuttal,


                                                  51
State v. Finch,No.42200 0 II
                        - -


the prosecutor contrasted Finch's testimony with that of the detectives, asking, Do you believe
                                                                                 "

that everybody else is lying except for the Defendant?Obviously not.... and gentlemen,
                                                                    Ladies

fundamentally you will have to ask yourself who was lying." RP at 875. Unlike in Fleming, the
                                                          6

prosecutor did not misstate the burden of proof. She followed her statement by explaining that

the State had the burden of proof and had met it stating, As a result," RP at 876, it is no
                                                          "           6            "

longer reasonable   to doubt that the Defendant molested and                She
                                                                 raped [TT] ".       did not offer the


jury the false choice that, in order to acquit Finch, it must find that the State's witnesses lied.

    D. The prosecutor did not vouch for the credibility of the State's witnesses

        The next issue is whether the prosecutor impermissibly expressed her personal belief that

the State's witnesses were credible. It is improper for a prosecutor to vouch for the veracity of a

witness. State v. Ish, 170 Wn. d 189, 196, 241 P. d 389 (2010).
                             2                  3             Remarks in direct response to a

defense argument are not improper as long as they do not "go beyond what is necessary" to

respond to the argument. State v.Dykstra, 127 Wn. App. 1, 8, 110 P. d 758 (2005). example,
                                                                  3             For

in State v. McKenzie, 157 Wn. d 44, 54, 56, 134 P. d 221 (2006),
                            2                    3             defense counsel questioned

the victim's credibility in his closing and used the defendant's neat appearance to raise doubt as

to his guilt. The prosecutor_
                            used the word "
                                          guilty"in_ rebuttal;but each time it was_ direct,
                                                   her                            a

reply to defense counsel's interpretation of the evidence. Id. The court found that the defendant

had not met his burden of showing that the comments were "clear[ y]
                                                               l   and unmistakabl[y]"
                                                                                    the

prosecutor's personal belief. Id. at 56 57.
                                        -

        The same is true here. Finch fails to show how the prosecutor's statements were clear and

unmistakable opinions, rather than reasonable inferences from the evidence. First of all, as in

McKenzie, the prosecutor's statements directly responded to defense counsel's suggestions that

the State's witnesses might have motive to lie. In his closing, Finch's defense counsel asked,



                                                  W
State v. Finch,No. 42200 0 II
                         - -


Has the   testimony of   these   girls   been   coached,   or   is it   imagination ?" 6 RP at 854. The

prosecutor replied:

       There is absolutely no motive, no reason for these girls to make this up. There is
       no reason that they would want to leave that house where they had some measure
       of stability. They had video games, they had computers, they had lessons. They
       had all sorts of things.

6 RP at 876. In addition to positive details that negated a reason to lie, the prosecutor gave

examples of the negative consequences to the girls of complaining. These statements were in

direct response to defense counsel's questions.

       Furthermore, in a case that turned on credibility, the prosecutor pulled specifics directly

from trial testimony to demonstrate that her witnesses were believable. For example, in

describing the credibility of the detectives, she used details from their testimony to support their .

credibility. Her statements were not personal opinion they were based on trial evidence.
                                                       —

   E. A curative instruction could have neutralized any prejudice caused by the prosecutor's
      alleged expression of personal opinion of the defendant's guilt

       Finally, Finch argues that the prosecutor improperly expressed her personal opinion of

his guilt. However, we need not decide whether this challenged conduct was improper because a

curative instruction could have neutralized any prejudice the prosecutor's comments may have

caused.


       A defense counsel's failure to object to a prosecutor's statement waives any error, unless

the statement was " so flagrant and ill-
                                       intentioned that it causes an enduring and resulting

prejudice that could not have been neutralized by a curative instruction to the jury."
                                                                                     State v.

Brown, 132 Wn. d 529, 568, 940 P. d 546 (1997). example, in State v. Belgarde, the court
             2                  2             For

found prejudice that could not have been neutralized by an instruction where the prosecutor

described members of the American Indian Movement as " a deadly group of madmen,"

militant," "butchers, that killed indiscriminately Whites and their own:"
         and                                                            110 Wn. d 504,
                                                                              2

                                                   7-
State v. Finch,No. 42200 0 H
                         - -


506 07, 755 P. d 174 (1988) emphasis omitted).The court found that these words were so
    -        2              (

inflammatory that an instruction could not have neutralized the prejudice. Id. In In re Glasmann,

the court held that a curative instruction would have been insufficient where the prosecutor

superimposed the word "GUILTY" three times over the defendant's photo and where the

defense's argument was that he was guilty, but only of lesser crimes than those with which he

was charged. 175 Wn. d 696, 702, 286 P. d 673 (2012).
                   2                  3             Due to the power of imagery and the

nuanced distinctions that separate degrees of crime, the court held that an instruction would not

have cured the prejudice. Id. at 707 08.
                                     -

       By contrast, in Dhaliwal, the court found that the defendant had not demonstrated

enduring prejudice   where the prosecutor used the         phrases "`their   nature "'   and "` ow they
                                                                                              h

operate, "' and talked about choosing "` path that was all too common within the Far West Cab
                                      a

Company   and indeed the Sikh   community. "' 150 Wn. d at 580. The court found that this was a
                                                    2

far cry" from the inflammatory comments in Belgarde, 110 Wn. d at 506 07, and that the
                                                           2          -

comments referred not to a religious stereotype, but referenced a common method of dealing in

the community, which was testified to in trial. Dhaliwal, 150 Wn. d at 580. In McKenzie, the
                                                                2

court also found_that a_
                       curative _
                                instruction _
                                            could have neutralized any_prejudice._
                                                                                There, the .

prosecutor's rebuttal focused on the victim's lost innocence" in response to defense counsel's
                                               "

closing theme that the defendant would have to settle for the words "not guilty" instead of

innocent."
         157 Wn. d at 60. The prosecutor said, If you saw [the.ictim] walking down the
               2                               "`             v

street, you wouldn't know that [the defendant] had taken her innocence. You might think she was

innocent too, and she   was   until the   guilty   man   took that from her. "'   Id. at 56. The court

acknowledged that, while the prosecutor went "
                                             too far in her effort to exploit defense counsel's

theme," was not so flagrant and ill-
      it                           intentioned that it could not have been cured. Id. at 60.



                                                   In
State v. Finch,No. 42200 0 II
                         - -


       Here, a curative instruction could have likewise neutralized any prejudice the prosecutor

caused with her allegedly improper comments. First, her comments lack the clear inflammatory

influence of those in Belgarde. 110 Wn. d 504. Saying that the defendant was "[ uilty. Guilty.
                                      2                                      G]

Guilty," RP at 814, may have affected the jury, but Dhaliwal, 150 Wn. d 559, and McKenzie,
       6                                                            2
157 Wn. d 44, show that some emotional language can be cured by a judge's instruction.
      2

Furthermore, while as in Glasmann, 175 Wn. d 696, the prosecutor repeated the word "guilty"
                                         2

three times, here she did not have the powerful added impact of a visual.

       Had defense counsel objected, the court could have reminded the jury that the closing

arguments are not evidence and that the lawyers' opinions are irrelevant. And, though

aggravating circumstances are at play here, the jury was merely asked to answer yes or no, rather
than to evaluate nuanced degrees of crimes as in Glasmann. Id. The weight of the testimony

against Finch, coupled with his weak and unsubstantiated defense, made it very unlikely that the
prosecutor's statements triggered his guilty verdict. The prosecutor's statements do not constitute
conduct so flagrant and ill-
                           intentioned as to create prejudice immune to a curative instruction.

                           II.    INEFFECTIVE ASSISTANCE OF COUNSEL

       To demonstrate ineffective assistance of counsel where counsel failed to object, the

appellant must show that 1)not objecting fell below prevailing professional norms, 2)that the

proposed objection would have likely been sustained, and 3)that the result of the trial would
have been different if the evidence had not been admitted. In re Pers. Restraint of Davis, 152

Wn. d 647, 714, 101 P. d 1 ( 2004).There is a presumption that failure to object can be
  2                  3
characterized   as   legitimate trial strategy. Id. "`
                                                    Exceptional   deference "'   is given to counsel's

strategic decisions.Id. quoting State v. McNeal, 145 Wn. d 352, 362, 37 P. d 280 (2002)).
                        (                              2                 3
        Finch fails to show that his counsel's performance was insufficient. An attorney's

decision not to object falls within the wide range of professional norms. Id. at 717. A defendant
                                                 u
         State v. Finch,No.42200 0 II
                                 - -


         must rebut the presumption that a tactical reason existed not to object. See id. at 714. Here, it is

         conceivable that defense counsel didn't object because he thought his objection would not be

         sustained or because he was reticent to draw more attention to the prosecutor's statements. Other

         than the conclusory statement that counsel's performance was "not objectively reasonable, nor

         can it be considered legitimate trial strategy," of Appellant at 25, Finch makes no argument
                                                        Br.

         that counsel's performance fell below professional norms. This will not suffice to overcome the

         strong presumption of effectiveness. Because Finch fails to satisfy this first element, we need not

         proceed further with this test. Finch has not demonstrated ineffective assistance of counsel.

                                            III.   SENTENCING AUTHORITY


                A trial court has the authority to impose conditions of community custody, including

         crime-
              related treatment or counseling and affirmative conduct reasonably related to the safety of

         the community. RCW 9.
                            c) court reviews sentencing conditions for abuse
                            703( 4A.
                               3)(
                               9   d).
                                     This —(

         of discretion. State   v.   Warren, 165 Wn. d 17, 32, 195 P. d 940 (2008). A sentence will be
                                                   2                3


         reversed if it is manifestly unreasonable, where no reasonable person would agree with the trial

         court. State v. Riley, 121 Wn. d 22, 37, 846 P. d 1365 (1993).
                                      2                2              Here, the trial court exceeded its

I __ _   authority by_
                     prohibiting Finch from possessing alcohol and ordering him to_
                                                                                  participate in an

         anger management treatment program.

            A. There is no express statutory authority to prohibit alcohol possession, nor any evidence
               that alcohol played a role in Finch's crimes

                While the trial court has the statutory authority to prohibit any offender from consuming

         alcohol, RCW 9.
                      e),
                      703( 4A.no statute expressly authorizes the court to prohibit offenders
                         3)(
                         9

         from possessing alcohol. The State concedes this lack of authority, as well as the lack of

         evidence of substance abuse in this case. This provision should be stricken.




                                                         10-
State v. Finch, No. 42200 0 II
                          - -


    B. Any evidence that anger played a role in Finch's crimes is tenuous at best

       Anger management treatment is not related to Finch's crime. The circumstances of a

crime define the nature of the conditions imposed. State v. Schmeck, 98 Wn. App. 647, 651,.
                                                                                         990

P. d 472 (1999).In Schmeck, the appellant challenged his sentence of anger management.
 2

However, the court found the condition justified because the appellant exhibited angry and

aggressive behavior, threatening to kill himself and his ex wife, violating a protection order by
                                                            -

continually threatening her, and calling her      dead woman ...
                                               a "`                walking. "' Id. at 649.

       In Finch's case, anger management counseling is not related to his crime. Finch's use of

force and threats, as well as his victims' fear that he would yell or tackle them, do not rise to the

level of the facts in Schmeck. Here, the record does not reflect any instances where the appellant

actually did yell at or attack the girls,just that they worried that he would. Furthermore, Finch's

use of force did not reflect anger as much as inappropriate and illegal—
                                                            —          desires. The imposition

of an anger management program is unreasonable and unrelated.

       Nor would Finch's participation in an anger management program be reasonably related

to the safety of the community. Generally, counseling is reasonably related to the safety of the

community only if the behavior it treats contributed to the offense._ e. .,
                                                                    See, _ g State v. Jones, 118

Wn. App. 199, 76 P. d 258 (2003). Jones, the offender was sentenced to alcohol counseling,
                  3             In

though there was no evidence that substance abuse contributed to his crime. Id. at 208. The court

instructed the trial court to strike the provision. Id. at 212. The State also argues that anger

management is reasonably related to community safety because a presentencing investigation

concluded that Finch was sexually deviant and predatory. While this may be true, an anger

control course would not treat deviancy and predation. This provision should also be stricken.




                                                 11-
State v. Finch, No.42200 0 II
                         - -


                                      CONCLUSION


       We affirm Finch's conviction and 600 month sentence, holding that any alleged error
                                            -

could have been neutralized by a curative instruction. However, we remand to strike the

community custody provisions prohibiting alcohol possession and mandating participation in an

anger management program.

       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

040,
2.6.it is so ordered.
  0




                                                   WIGG    T.
                                                           J. .
                                                            P




       WE CONCUR.




    HANSON, A. .
            J.
             C
6

                          APT
BRIDGE VER,J. .
           T.
            P




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