                                                                                                           i= f LE
                                                                                                  COUPi " OF -
                                                                                                                  APPEALS
                                                                                                       DIVIS€C1p.1 11
                                                                                                ZGI Jul- 3Q
                                                                                                                     p 8:   0


    IN THE COURT OF APPEALS OF THE STATE OF W

                                            DIVISION II


 STATE OF WASHINGTON,                                                      No. 45


                                   Respondent,


        Lim

                                                                  UNPUBLISHED OPINION
 ROBERT BRUCE McKAY-ERSKINE,




       MAXA, J. —      Robert McKay -Erskine ( McKay) appeals his convictions and sentence for

child molestation and child rape     resulting from the   sexual abuse   of his   stepdaughter,    AB. We


hold that ( 1) the trial court did not err by admitting McKay' s past statements regarding sexual

conduct with   young   children   because they   provided evidence of    his   motive; ( 2)   even if the trial


court erred in excluding evidence that McKay' s ex- wife made a statement to his girlfriend that

could be interpreted as a threat against McKay, the error was harmless; and ( 3) several issues

McKay raised in his statement of additional grounds ( SAG) have no merit. Accordingly, we

affirm McKay' s convictions.

       However, we hold that the trial court erred in sentencing by imposing certain community

custody conditions. We remand to the trial court to strike the community custody conditions

requiring substance abuse and mental health evaluations unless it makes necessary factual

findings to support those conditions and to reevaluate the community custody condition

prohibiting   contact with vulnerable   individuals.
45587 -1 - II



                                             FACTS


Background


         In the mid- 1990s, McKay and Pyxey Erskine -McKay (Erskine) were members of a group

of itinerant youths known as the Ave Rats, who congregated on and around University Way in

Seattle' s University District. Over the following two decades, many members of the Ave Rats

moved away, but they remained a fairly close- knit group and often lived communally. The Ave

Rats also engaged in communal sexual relationships, and McKay and Erskine each had several

children of varying parentage. AB was Erskine' s child with a father other than McKay.

         Around 2009, McKay and Erskine entered into a committed relationship and began to

cohabitate and raise their children together. At the time, AB was three or four years old. In


2011, McKay and Erskine married and moved with their children into a friend' s house in

Puyallup and later into a house in Tacoma. McKay took on a parenting and caretaking role for

his and Erskine' s children, including AB.

         In early 2012, Camber Edwards, a friend of both McKay and Erskine, moved in with

them. In May 2012, McKay and Edwards began a sexual relationship. Hostility arose when

Erskine found out about the affair, and McKay and Edwards soon left the house.

Sexual Abuse ofAB

         Later in 2012, AB told two family friends living with them in Tacoma that McKay had

abused her. The friends told Erskine, who asked them to take AB to school so she could report


what happened. AB reported the abuse to the school counselor, and the next day to a Child

Protective Services ( CPS) social worker. CPS reported the abuse to the police, and AB


subsequently repeated her story to an investigator and a medical examiner.


                                                 2
45587 -1 - II




          According to AB' s testimony, McKay began to sexually abuse her while the family was

living in Puyallup and continued during their time in Tacoma. McKay forced AB to engage in

oral and vaginal intercourse multiple times while other members of the family were away. AB

was six or seven years old at the time.


          The State charged McKay with two counts of first degree child molestation and three

counts of first degree child rape. The State also alleged aggravating circumstances for all five

counts due to McKay' s alleged abuse of his position of trust as her stepfather and caretaker.

McKay' s Statements Regarding Sex and Children

          The State moved before trial to introduce statements McKay had made to friends several

years earlier indicating a sexual interest in young children and a belief that sexual relationships

between a father and a young daughter were appropriate. The trial court granted the State' s

motion and ruled that it would allow testimony on the statements. To support the ruling, the trial

court specifically found that ( 1) by a preponderance of the evidence, McKay had made the

statements at     issue; ( 2)   the statements were relevant to show McKay' s motive and intent in

committing the crimes; and ( 3) the probative value of the statements outweighed their prejudicial

potential.




          At trial, one friend testified that in 2005 McKay said " he believed that the thought of

putting his     penis   in   a child' s mouth without      any teeth   sounded     enticing."   Report of Proceedings


 RP) (   Oct. 14, 2013) at 9. The friend also testified that McKay " told me that he enjoyed the

feeling   of a child' s mouth      on his   penis."     RP ( Oct. 14, 2013)   at   14- 15.   In addition, that friend


testified that   McKay told        her   during   the   same conversation, and at various other        times, that "[   a]



girl' s first sexual experience should be with her father because no one can love them as much as


                                                               3
45587 -1 - II



their   father."    RP ( Oct. 14, 2013) at 10. Another friend also testified that McKay had made

similar statements to her that a girl should have her first sexual experience with her father.

Erskine' s Statement to Edwards


          At trial, McKay' s attorney stated that he intended to ask Edwards, McKay' s girlfriend,

about a statement Erskine made to Edwards at some point after the fall of 2012. Edwards


apparently was prepared to testify that Erskine had said something like " once I am done with

 McKay],     I   am   going to    come after you."       RP ( Oct. 14, 2013) at 44. The State moved to exclude


any such testimony on hearsay grounds. McKay argued that the evidence was admissible as

evidence of Erskine' s mental state at the time, but the trial court ruled that the evidence was


inadmissible hearsay.

McKay' s Convictions and Sentence

          The jury found McKay guilty of each charged count and found that he had abused his

position of trust with AB to commit those crimes. The trial court sentenced McKay to 318.

months to life in prison and imposed community custody for the remainder of his life should he

be released from confinement. The trial court imposed a number of community custody

conditions.        One   of   these   conditions   instructs    McKay, "[ d] o not have any contact with physically

or   mentally      vulnerable    individuals."     Clerk'   s   Papers ( CP)   at   123.   Another condition requires him


to "[ o] btain a Substance Abuse Evaluation, a Mental Health Evaluation, and a psychosexual


evaluation, and       comply      with   any/ all treatment      recommendations."          CP at 124.


           McKay appeals his convictions and sentence.




                                                                   11
45587 -1 - II



                                                          ANALYSIS


A.         ADMISSIBILITY OF MCKAY' S STATEMENTS


           McKay argues that his statements that sexual contact with young children sounded

enticing and that daughters should engage in their first sexual encounters with their fathers were

inadmissible under ER 404( b) because they amounted to character evidence relevant only to

show a propensity to sexualize children. We disagree and hold that the evidence was relevant to

show McKay' s motive in committing the crimes against AB.

            1.   Legal Principles


           Under ER 404( b), "[ e] vidence of other crimes, wrongs, or acts is not admissible to prove


the   character of a person        in   order   to   show action   in conformity therewith." However, this


evidence may be admissible " for other purposes, such as proof of motive, opportunity, intent,

preparation, plan,       knowledge,       identity,    or absence of mistake or accident."       ER 404( b). We


review the trial court' s interpretation of ER 404( b) de novo as a matter of law. State v. Fisher,


165 Wn.2d 727, 745, 202 P. 3d 937 ( 2009).                  If the trial court interprets the rule correctly, we

review the decision to admit evidence under ER 404( b) for abuse of discretion. Id. A trial court


abuses its discretion when its decision is manifestly unreasonable or based on untenable grounds.

State v. Hassan, 184 Wn. App. 140, 151, 336 P. 3d 99 ( 2014).
           Before   a   trial   court admits evidence under         ER 404( b),   it must ( 1) find by a preponderance

of   the   evidence   that the    misconduct occurred, (         2) identify the purpose for admitting the evidence,

 3) determine the        relevance of     the    evidence   to   prove an element of   the   crime, and (   4)   weigh   the
45587 -1 - II




probative value of the evidence against its prejudicial effect under ER 403. 1 State v. Gunderson,

181 Wn.2d 916, 923, 337 P. 3d 1090 ( 2014).


         Here, the trial court properly interpreted ER 404( b) as allowing the admission of evidence

regarding McKay' s prior statements to show intent and motive. The trial court also analyzed the

evidence and made the necessary findings on the record to support the admission of McKay' s

statements under      ER 404( b). The question here is whether the trial court abused its discretion in


admitting the statements to show intent and motive.

         2.      Applicability of ER 404( b) to Verbal Statements

         Initially, the State argues that ER 404(b) applies only to a defendant' s acts, and not to

verbal statements or other expressions. We disagree because statements fall within the

provisions of ER 404(b).

          As the State points out, the language of ER 404( b) limits its application to " evidence of

other   crimes, wrongs, or acts."     However, the rule " encompasses not only prior bad acts and

unpopular behavior but any evidence offered to ` show the character of a person to prove the

person   acted    in conformity'   with   that   character at   the time   of a   crime." State v. Foxhoven, 161


Wn.2d 168, 175, 163 P. 3d 786 ( 2007) ( quoting            State v. Everybodytalksabout, 145 Wn.2d 456,

466, 39 P. 3d 294 ( 2002)).


          We previously have applied ER 404( b) to verbal statements. See State v. Venegas, 155

Wn.     App.    507, 525- 26, 228 P. 3d 813 ( 2010). And our Supreme Court has subjected expressive




 1 ER 404( b) must be read in conjunction with ER 403, which requires the trial to court to
exercise its discretion in evaluating whether relevant evidence is unfairly prejudicial. State v.
Gunderson, 181 Wn.2d 916, 923, 337 P. 3d 1090 ( 2014). However, McKay does not argue that
this   evidence was    inadmissible   under      ER 403. Therefore,        we   do   not address   this   issue.
45587- 1- I1




acts to ER 404( b) analysis as well. Foxhoven, 161 Wn.2d at 175 ( analyzing the admissibility of

 tag"    graffiti);     State   v.   Coe, 101 Wn.2d 772, 776, 684 P. 2d 668 ( 1984) ( analyzing the


admissibility of evidence that, among other things, the defendant " used certain vulgar terms"

during     sex).      Because the State has not identified any compelling reason to depart from these

cases, we hold that ER 404( b) applies to McKay' s statements.

           3.         Evidence of Motive


           The trial court ruled that McKay' s statements." show motive and intent due to the

similarity [ to the       charged crimes], and as such,               they    are relevant    to this   case."   RP ( Sept. 26,


2013)     at    35.   We hold that the trial court did not abuse its discretion in admitting McKay' s

statements to show motive.


           Under ER 404( b),            prior act evidence can be admissible to prove motive. See, e. g., State

v.   Yarbrough, 151 Wn.              App. 66,       83- 84, 210 P. 3d 1029 ( 2009) ( holding            that gang affiliation is

admissible under           ER 404( b) to       show motive          for the   murder of   a   rival   gang   member).     Motive is


an "    impulse, desire,        or   any    other   moving       power which causes an         individual to     act."   State v.


Powell, 126 Wn.2d 244, 259, 893 P. 2d 615 ( 1995).                            Evidence of motive is admissible even when


it is   a not an element of           the   charged crime.         Yarbrough, 151 Wn. App. at 83.

           Here, the trial court did not have to attempt to infer motive from prior acts. Instead,


McKay          expressly   stated     why he        might   be   motivated    to   molest and rape      AB: because he thought


that receiving oral sex from a young child was enticing and because he thought a daughter' s first

sexual encounter should be with her father. As a result, the evidence was not admitted to show


that McKay acted in conformity with some propensity to have sex with children or his daughters




                                                                       7
45587 -1 - II




as McKay argues. It was admitted to show the impulse, desire, or moving power that caused him

to act. Powell, 126 Wn. 2d at 259.


             Because McKay' s statements were relevant to establish his motive in molesting and

raping AB, we hold that the trial court did not abuse its discretion by admitting them.

B.           ADMISSIBILITY OF ERSKINE' S STATEMENT


             McKay argues that the trial court violated his constitutional right of confrontation by

precluding him from impeaching Erskine with evidence of a statement she made to Edwards,

which he interpreted as a threat to set him up. McKay claims the statement was relevant to show

that Erskine was biased against him. Even assuming without deciding that the trial court erred in

excluding evidence of Erskine' s statement, we hold that any such violation was harmless error.

             Under the Sixth Amendment' s confrontation clause, a defendant has a right to confront


the witnesses against him through cross- examination. Fisher, 165 Wn.2d at 752. This right of


confrontation includes a right to call a witness to impeach a prosecution witness by showing bias.

State   v.   Spencer, 111 Wn.       App.     401, 408- 11, 45 P. 3d 209 ( 2002).        However, any error in

excluding       such evidence   is   subject    to   a   harmless   error analysis.   Id. at 408. "[ R] eversal is


required unless no rational jury could have a reasonable doubt that the defendant would have

been    convicted even     if the    error   had   not   taken   place."   Id.


             Here, evidence of Erskine' s statement would not have altered the reasoning of any rational

juror. The evidence was repetitive, as Erskine' s probable bias was clear from other evidence

before the jury. The jury could strongly infer bias from other portions of Erskine' s testimony,

and the State readily admitted during closing argument that Erskine had an " ax to grind" with

McKay.         RP ( Oct. 15, 2013)     at   729.
45587 -1 - II




         Further, Erskine    was not a crucial prosecution witness.         She did not testify about

McKay' s    abuse of   AB   or about   any   statements   AB   made about   the   abuse.   She testified only to

background facts that provided context and corroborated the testimony of other witnesses. Because

Erskine did not provide any evidence crucial to McKay' s conviction, there is no reason to believe

that McKay would not have been convicted if evidence of Erskine' s alleged threat had been

admitted.




         Because Erskine' s potential for bias was evident and admitted, and because Erskine was

not a crucial witness, we hold that any error in excluding evidence of Erskine' s statement to

Edwards could not have affected a rational jury' s verdict and therefore was harmless.2
C.       COMMUNITY CUSTODY CONDITIONS


         McKay argues that two of the community custody conditions imposed on him as part of

his sentence were unauthorized under the circumstances of his case. First, he challenges a


condition requiring evaluations for substance abuse and mental health. Second, he challenges a

condition prohibiting contact with physically or mentally vulnerable individuals. We hold that

the trial court' s findings did not sufficiently support the condition requiring substance abuse and

mental health evaluations and that on remand the trial court also should reevaluate the community

custody condition prohibiting contact with vulnerable individuals.




2
 McKay also argues that the cumulative impact of the errors he alleges denied him a fair trial.
Cumulative error may warrant reversal, even if errors are individually harmless. State v. Weber,
159 Wn.2d 252, 279, 149 P. 3d 646 ( 2006). However, because we hold that the trial court did not
err in admitting McKay' s statement, the only possible error was excluding Erskine' s statement.
And that error was harmless. Therefore, we reject this argument.

                                                          6
45587 -1 - II



          1.     Legal Principles


         In    general,   the   Sentencing   Reform Act (SRA), ch. 9. 94A RCW, authorizes imposition of


prohibitions and affirmative conditions as part of any sentence if they are related to the crimes

for   which    the   defendant has been      convicted.   RCW 9. 94A. 505( 8).    Other provisions of the SRA


govern the circumstances under which particular conditions may be imposed.

         We review a sentencing court' s imposition of community custody conditions for an abuse

of   discretion. State     v.   Johnson, 184 Wn.    App. 777,      779, 340 P. 3d 230 ( 2014).   A sentencing

court abuses its discretion if its decision is manifestly unreasonable or based on untenable

grounds, and imposition of a condition without authorization is manifestly unreasonable. Id.

          2.     Substance Abuse and Mental Health Evaluations


          McKay' s sentence included a community custody condition imposing a requirement that

he "[ o] btain a Substance Abuse Evaluation, a Mental Health Evaluation, and a psychosexual


evaluation, and       comply     with   any/ all treatment   recommendations."     CP at 124. McKay argues

that the trial court imposed without authorization the portion of this condition requiring

substance abuse and mental health evaluations. We agree that imposition of these conditions was


not authorized under the circumstances.


                 a.     Substance Abuse Evaluation


          McKay argues that the trial court was not authorized to impose a substance abuse

evaluation condition because his crimes were unrelated to substance abuse. We agree.

          RCW 9. 94A. 703( 3)( d) authorizes a court to order a defendant as part of his sentence to


participate in crime -related treatment or counseling services or rehabilitative programs " related

to the circumstances of the offense, the offender' s risk of reoffending, or the safety of the


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45587 -1 - II




community."          In State v. Jones, we held that substance abuse treatment reasonably relates to the

offender' s risk of reoffending and to the safety of the community only if the evidence shows that

substance abuse contributed          to the   offense.       118 Wn. App. 199, 208, 76 P. 3d 258 ( 2003).

         Here, there is no evidence that substance abuse played a role in McKay' s commission of

the crimes against AB. The record shows that McKay had issues with substance abuse. But the

only evidence in the record indicating that this substance abuse was relevant in this case was

testimony that a friend thought McKay' s statements regarding sex and children were the product

of his drug use, rather than reflections of his actual beliefs. No evidence directly or indirectly

linked McKay' s drug use to his commission of the crimes against AB.

         Because the evidence did not show that McKay' s substance abuse contributed to his

offenses, it was manifestly unreasonable for the trial court to impose a community custody

condition requiring a substance abuse evaluation. Therefore, we remand to the trial court with

instructions to strike that condition unless it finds that McKay' s substance abuse contributed to

the abuse of AB.


                b.      Mental Health Evaluation


         McKay argues that the trial court was not authorized to impose a mental health evaluation

condition because his crimes were unrelated to any mental illness. The State concedes that the

trial court was unauthorized to impose this condition because it made no finding that McKay

suffered   from      a mental   illness   related   to the   crimes against   AB. We accept the State' s


concession and hold that the mental health evaluation condition was improper.


         Like substance abuse counseling and treatment, mental health counseling and treatment

may be required as a sentencing condition under RCW 9. 94A.703( 3)( c) and ( d) as long as the


                                                                11
45587 -1 - II




counseling and treatment is " crime -related" or " reasonably related to the circumstances of the

offense,   the   offender' s risk of   reoffending,     or   the safety   of       the community."   However, RCW


9. 94B. 080 further requires that mental health evaluation and treatment may only be imposed

         if the court finds that reasonable grounds exist to believe that the offender is a
         mentally ill person as defined in RCW 71. 24.025, and that this condition is likely
         to have influenced the offense. An order requiring mental status evaluation or
         treatment must be based on a presentence report and, if applicable, mental status
         evaluations that have been filed with the court to determine the offender' s
                                                                               3
         competency      or   eligibility for   a   defense   of   insanity.

We held in Jones that mental health treatment and counseling " reasonably relates" to the

offender' s risk of reoffending and to the safety of the community " only if the court obtains a

presentence report or mental status evaluation and finds that the offender was a mentally ill

person whose condition         influenced the       offense."      118 Wn. App. at 210.

         Here, a presentence report submitted to the trial court indicated that McKay suffered from

some mental health issues and recommended imposing a mental health evaluation at sentencing.

But the trial court made no finding that McKay Was mentally ill or that any mental illness

influenced his     offenses.    Therefore, under Jones, the trial court was not authorized to impose


mental health counseling or treatment.

           We hold that the trial court abused its discretion by imposing the mental health evaluation

condition without finding that McKay was a mentally ill person whose illness influenced the



3 The title of chapter 9. 94B RCW indicates that the chapter applies only to crimes committed
before July 1, 2000.. Similarly, RCW 9. 94B. 010( 1) provides that "[ t] his chapter codifies
sentencing provisions that may be applicable to sentences for crimes committed prior to July 1,
2000."     However, a 2008 amendment to chapters 9. 94A and 9. 94B RCW included an express
statement that the provision currently codified at RCW 9. 94B. 080 applies to crimes committed
after August 1, 2009. See LAWS of 2008, ch. 231, § 55. Because McKay committed his crimes

in 2012, RCW 9. 94B. 080 applies to his sentencing.
                                                                12
45587 -1 - II



offense. Therefore, we remand for the trial court to strike the condition unless it finds, based on


evidence presented at sentencing, that McKay was a mentally ill person whose condition

influenced the abuse of AB.


         3.     No Contact with Physically or Mentally Vulnerable Individuals

         McKay' s sentence included a condition that he " not have any contact with physically or

mentally      vulnerable   individuals." CP   at   123.   McKay argues that this condition was not related

to the crimes for which he was convicted because AB was not physically or mentally vulnerable,

and therefore that imposition of the condition was unauthorized.. We decline to address this


argument because of our decision in State v. Johnson, 180 Wn. App. 318, 327 P. 3d 704 ( 2014),

which we issued after briefing in this case.

         In Johnson, we held that a community custody condition prohibiting " any contact with

physically or mentally vulnerable individuals" was unconstitutionally vague. Id. at 326- 329.

McKay did not raise this issue on appeal. However, we remand for the trial court to reevaluate

the " vulnerable individuals" community custody condition in light of Johnson.

D.       SAG Assertions


         In his SAG, McKay makes seven further claims of error. Two of the issues he raises do

not warrant review. None of his other assertions have merit.


         1.      Issues Not Warranting Review

         McKay challenges the use of his past statements on grounds that they amounted to

character evidence offered to show a propensity to commit sex crimes against children. But his

attorney ably presented this issue in the main appeal, and it is addressed in section A above.

McKay presents no grounds for further review of this issue.


                                                           13
45587 -1 - II




          McKay also asserts that several admitted exhibits contained inadmissible hearsay, and

that their admission violated his confrontation right. However, these exhibits are not part of the


record on appeal. We cannot consider matters outside the record on a direct appeal. State v.

Ellison,        Wn.   App._,     346 P. 3d 853, 856 ( 2015), petition for review filed, No. 91612- 8


 Wash. Apr. 30, 2015).        If McKay wishes to raise this issue, the appropriate avenue would be a

personal restraint petition. See State v. McFarland, 127 Wn.2d 322, 335, 899 P. 2d 1251 ( 1995).


          2.    Other Issues


                a.    Admissibility of Child Hearsay

          McKay asserts that the trial court violated his confrontation right by allowing witnesses

to testify about AB' s out-of-court statements without adequately analyzing the reliability factors

necessary to admit child hearsay. We disagree.

          Hearsay statements of a child under the age of 10 are admissible in a criminal case when

the statements describe sexual or physical abuse of the child; the court finds that the time,

content, and circumstances of the statements provide sufficient indicia of reliability; and the

child testifies at the proceedings. RCW 9A.44. 120; State v. Kennealy, 151 Wn. App. 861, 880,

214 P. 3d 200 ( 2009).      We review a trial court' s decision to admit child hearsay statements for an

abuse of discretion. Kennealy, 151 Wn. App. at 879.

           In determining the reliability of child hearsay statements, the trial court considers the

Ryan reliability factors: ( 1)     whether   there is   an apparent   motive   to lie, ( 2) the general character


of   the declarant, ( 3)   whether more   than   one person   heard the   statements, (   4) the spontaneity of




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

                                                         14
45587 -1 - II



the   statements, (     5) the timing of the declaration and the relationship between the declarant and

the   witness, ( 6) whether      the   statement contained express assertions of past            fact, ( 7) whether the


declarant'   s   lack   of   knowledge   could   be   established    through    cross- examination, ( 8)   the


remoteness of the possibility of the declarant' s recollection being faulty, and ( 9) whether the

surrounding circumstances suggested the declarant misrepresented the defendant' s involvement.

Kennealy, 151 Wn. App. at 880. No single Ryan factor is decisive, but the factors must be

 substantially met" to indicate sufficient reliability. Id. at 881.

          The trial court found that the Ryan factors were substantially met under the circumstances

of this case. McKay challenges this determination, arguing that each factor should have weighed

against this finding.

          Regarding factors one and two, McKay argues that AB had a motive to lie and a general

character indicating that her statements were unreliable. ' He bases this argument on the

possibility that Erskine coached AB or otherwise influenced her to concoct false stories of the

sexual abuse. He points out that Erskine had a motive to influence AB in this way. However,

Erskine' s motives are not relevant to an analysis of AB' s motives or character, and therefore they

do not bear on these reliability factors. The testimony at the hearing established that AB was

actually quite trustworthy and did not dislike or fear the defendant prior to the abuse. In fact,

McKay himself seems to indicate that AB had no ill will toward him.

          Regarding factor three, McKay notes that while AB made the same general statements to

more than one person, some of the details were inconsistent. But the fundamental details of the


oral and vaginal intercourse and digital molestation were consistent. When several statements


describe   a "   substantially    similar account of      the   events   to   multiple people   sequentially, [ it]



                                                                15
45587 -1 - II



supports   the trial   court' s   ruling   on   the statements' reliability   and   trustworthiness."   Kennealy,

151 Wn.    App.   at   883.   Because AB' s statements, as recounted at the hearing, established a

substantially similar account of the events, this factor weighs toward reliability.

         Regarding factor four, McKay asserts that AB' s statements were not spontaneous. He

correctly notes that AB' s statements were made in response to questions. But " for purposes of

determining the reliability of a statement made by a child victim of sexual abuse, any statements

made that are not the result of leading or suggestive questions are spontaneous" for purposes of

assessing their reliability. In re Dependency ofS.S., 61 Wn. App. 488, 497, 814 P. 2d 204 ( 1991).

The questions to which AB responded were open-ended, and her responsive statements were


therefore " spontaneous."



         Regarding factor five, McKay seems to suggest that the timing of AB' s statements and

AB' s relationship with the people she told about the abuse indicate a lack of reliability. But he

argues only that one of the hearsay witnesses had mental health problems and a history of sexual

abuse, and that the witness may have prompted AB' s statements. This argument does not

address AB' s relationship with that witness or the importance of the timing of her statements,

and therefore does not address the impact of that relationship on the reliability of AB' s

statements. See Kennealy, 151 Wn. App. at 884.

         Regarding factor seven, McKay argues that AB' s lack of knowledge about the abuse

could not be drawn out on cross- examination, and that this weighed against a finding of

reliability. McKay seems to suggest that cross- examination about the abuse would have shown

AB' s lack of knowledge had he been allowed to cross- examine her on that topic. The trial court


limited the scope of cross- examination at the hearing, excluding questions about the abuse to


                                                              16
45587 -1 - II



protect AB from unnecessary trauma. But the trial court allowed cross- examination as to AB' s

memory and general lack of knowledge. McKay chose not to cross- examine her on those topics,

but it cannot be said that he was unable to show her lack of knowledge via cross- examination.


         In summary, none of McKay' s arguments establish that the trial court' s decision to admit

AB' s hearsay statements was unreasonable under the circumstances. Because he fails to show

that the trial court acted unreasonably in finding that the Ryan factors showed sufficient

reliability in this case, the trial court did not abuse its discretion by allowing the child hearsay

testimony.

                b.   Admissibility of Hearsay

         McKay challenges the admission of testimony by social workers and investigators who

interviewed AB recalling AB' s statements to them about the abuse. He appears to assert that the

testimony violated both his constitutional right of confrontation and the rules of evidence

governing admission of hearsay statements. We reject both arguments.

         McKay asserts that the admission of the child hearsay evidence violated his confrontation

right because AB' s statements to social workers and investigators were testimonial. However,


even if the statements were testimonial, a trial court violates a criminal defendant' s confrontation


right by admitting hearsay evidence only if the defendant is unable to cross- examine the hearsay

declarant. State     v.   Price, 158 Wn.2d 630, 640, 146 P. 3d 1183 ( 2006). Because AB testified at


trial and was cross- examined by McKay, the trial court did not violate McKay' s right to confront

her.


         McKay,also seems to assert that the hearsay statements should not have been admissible

as statements related to medical treatment. But there is no indication that the trial court admitted



                                                      17
45587 -1 - II




the testimony pursuant to that hearsay exception. The testimony was instead admissible under

RCW 9A.44. 120 and application of the Ryan child hearsay factors. Moreover, McKay seems to

challenge only testimony offered at the child hearsay hearing, which is not subject to the rules of

evidence.       See ER 1101(   c)(   3).   Therefore, we hold that McKay' s arguments relating to hearsay

evidence lack merit.


                      Prosecutorial Misconduct


         McKay asserts that the prosecutor committed prejudicial misconduct during closing

argument. However, McKay did not object to any of the argument he now characterizes as

improper. We hold that he waived this issue by failing to object.

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

context of the record and all of the circumstances of the trial, the prosecutor' s conduct was both

improper      and prejudicial.".     In re Pers. Restraint ofGlasmann, 175 Wn.2d 696, 704, 286 P. 3d

673 ( 2012).      We review the prosecutor' s conduct and whether prejudice resulted therefrom by

examining that conduct in the full trial context, including the evidence presented, the context of

the total argument, the issues in the case, the evidence addressed in the argument, and the


instructions given to the jury. State v. Monday, 171 Wn.2d 667, 675, 257 P. 3d 551 ( 2011).

         When the defendant fails to object to the challenged portions of the prosecutor' s


argument, he 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 the resulting prejudice. State

v.   Emery,     174 Wn.2d 741, 760- 61, 278 P. 3d 653 ( 2012). The defendant must show that ( 1) no


curative instruction would have eliminated the prejudicial effect, and ( 2) the misconduct resulted


in prejudice that had a substantial likelihood of affecting the verdict. Id.


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         McKay argues that the prosecutor improperly resorted to denigrating remarks about

Erskine and the Ave Rats as a group. The prosecutor implied that Erskine could not have
coached AB to fabricate her accusations because Erskine was not intelligent enough to concoct


such a scheme. The prosecutor also implied that the other members of the Ave Rats whose


testimony corroborated AB' s story were too unintelligent and unmotivated to go along with any

such scheme. While the trial testimony arguably supported these inferences, the prosecutor

likely went too far in so commenting on Erskine and the other witnesses. But the remarks appear

to have been intended to support the credibility of the witnesses they denigrated. While different

phrasing would have been more appropriate and could have better illustrated the prosecutor' s

point, there is no indication that the prosecutor' s statements were flagrant or ill -intentioned or


that an instruction could not have cured any prejudice.

         McKay also argues that the prosecutor misrepresented the evidence by referring to facts not

substantiated by the evidence presented at trial. During closing argument, the prosecutor repeatedly

stated that AB urinated on herself twice when discussing her abuse with her school counselor. The

school counselor testified that AB " wet her pants in my office on two occasions, but I can' t recall if

that   was   during the   disclosure   or afterwards or   before." RP ( Oct. 9, 2013) at 372 ( emphasis added).


While the prosecutor arguably misrepresented the evidence on this issue, a curative instruction could

have easily remedied any resulting prejudice had McKay objected. But McKay did not object, and

nothing in the record shows that the prosecutor' s description of AB' s incontinence was flagrant and

ill -intentioned misconduct warranting reversal.

         Finally, McKay argues that the prosecutor inappropriately appealed to the jury' s sympathy

for AB. But the prosecutor' s comments appear to explain AB' s behavior by emotionally


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contextualizing her discussions with investigators and testimony at trial. Because AB' s

credibility was key in this case, and McKay' s primary defense theory was that she was coached

to give false testimony, the prosecutor did not commit misconduct by highlighting that emotional

context and the difficulty AB faced in accusing McKay and testifying. And any prejudice due to

sympathy was effectively cured by the trial court' s instruction to the jurors not to allow their

emotions to govern their deliberations.


          Because McKay does not show flagrant, ill -intentioned misconduct resulting in incurable

prejudice, we hold that he has waived his claims of prosecutorial misconduct.

                d.     Same Criminal Conduct


          McKay asserts that the trial court erred by failing to count all five of his offenses as the

same criminal conduct for purposes of calculating his offender score at sentencing. We disagree.

          For purposes of calculating an offender score, offenses which constitute the same

criminal conduct are counted as one offense.            RCW 9. 94A. 525( 5)(   a)(   i). " `   Same criminal


conduct ...'    means two or more crimes that require the same criminal intent, are committed at


the same time        and place, and   involve the   same victim."   RCW 9. 94A. 589( 1)(        a).   If any element of

the same criminal conduct analysis is missing, a trial court must count the offenses separately

when calculating the offender score. State v. Walker, 143 Wn. App. 880, 890, 181 P. 3d 31

 2008).


          Here, McKay committed multiple acts against AB on different occasions and in different

locations. Therefore, the acts clearly were not committed at the same time and place, and the

trial court correctly considered McKay' s five offenses to be distinct criminal conduct for




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purposes of calculating the offender score. We therefore reject McKay' s same criminal conduct

argument.



                 e.    Cumulative Error


         McKay asserts that the aggregate impact of these cumulative errors denied him a fair

trial. However, because the trial court did not commit the errors McKay asserts, there was no

cumulative error.




         We affirm McKay' s convictions. But we remand to the trial court to strike the

community custody conditions requiring substance abuse and mental health evaluations unless it

makes necessary factual findings to support those conditions, and to reevaluate the community

custody condition prohibiting contact with vulnerable individuals

         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.




                                                       MAXA, J.



We concur:




 WRS            RC5K—,P. J.




 L/—
   E, J.



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