                                                                                                 Filed
                                                                                           Washington State
                                                                                           Court of Appeals
                                                                                            Division Two

                                                                                           August 14, 2018

    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                          DIVISION II
 STATE OF WASHINGTON,                                                 No. 48993-7-II

                                Respondent,

         v.                                                    UNPUBLISHED OPINION

 BRANDON CHRISTOPHER BARNES,

                                Appellant.


       MAXA, C. J. — Brandon Barnes appeals his conviction for first degree rape of a child and

the trial court’s imposition of certain community custody conditions.

       We hold that (1) Barnes’s claims regarding the imposition of bail and the amount of bail

are moot; (2) the trial court did not err in entering a protective order restricting Barnes’s use and

dissemination of the victim’s recorded forensic interview; (3) the trial court did not err in finding

that the five-year-old victim, TV, was competent to testify; (4) the trial court did not err in

admitting TV’s statements to various people under the child hearsay statute; (5) the prosecutor

did not engage in misconduct regarding the State’s burden of proof; (6) the community custody

condition prohibiting Barnes from frequenting places where children congregate is

unconstitutionally vague; and (7) two other community custody provisions are invalid and a third

is invalid in part because they are not crime related.

       Accordingly, we affirm Barnes’s conviction, but we remand with instructions to strike

community custody conditions 16, 24, 28 and a portion of 29 in accordance with this opinion.
No. 48993-7-II


                                              FACTS

         From September to December of 2014, four-year-old TV lived with her grandmother,

Francesca Heard. Various family members also helped care for TV, including TV’s second

cousin Sonya Jones and Heard’s boyfriend’s mother, Darlene Quins. During this time, TV’s

mother, Keshia,1 was in the process of relocating to Nevada.

         TV also spent time at the home of another second cousin, Tahjiere Smith, who lived with

her boyfriend, Barnes. In November, Heard went out of town for the weekend and TV spent the

weekend with Smith and Barnes.

         Later that week, after Heard had returned, TV told Jones that she was sad because Barnes

“did something to her.” 5 Report of Proceedings (RP) at 437. TV told Jones that while she

stayed with Barnes and Smith, Barnes called her into his and Smith’s bedroom, started to take off

her underwear, laid TV on the ground, and touched TV in the vaginal region of her body. TV

said that she tried to scream, but Barnes covered her mouth with his hand. According to TV,

Barnes lay on top of her and moved up and down.

         After this disclosure, Jones took TV to Heard, who went with TV into a separate room to

talk without Jones present. TV told Heard that Barnes took TV into his bedroom, told her to lie

down on her stomach, and pulled down her panties, and that Barnes laid on top of her. TV also

said that she wanted to get up, but Barnes would not let her. Heard asked TV if she was telling

the truth and TV said that she was. Heard reported TV’s disclosure to the police.

         TV later made disclosures regarding the abuse to Keshia and Quins.




1   We refer to Keshia by her first name to protect TV’s privacy. We intend no disrespect.



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No. 48993-7-II


Imposition of Bail

       The State charged Barnes with two counts of first degree rape of a child. After Barnes

was arrested, the trial court set bail in the amount of $100,000. Barnes later filed a motion to

reduce his bail amount, and the trial court reduced bail to $50,000.

Protective Order Regarding TV’s Forensic Interview

       On December 1, Patricia Mahaulu-Stephens of the Child Advocacy Center conducted a

videotaped forensic interview of TV. The State would not provide Barnes with a copy of the

recorded interview until he agreed to sign a protective order restricting the dissemination of

copies of the recording. Barnes disagreed with the terms of the proposed protective order.

       The trial court ruled that there was cause for the protective order because it implicated the

privacy of a minor child. The order stated, “Neither the transcript of the recording, nor any

portion thereof, shall be divulged to any person not authorized by the terms of this stipulation to

review the DVD and/or audio recording.” Clerk’s Papers (CP) at 187. After both parties signed

the order, Barnes received a copy of the recording. At trial, the recording was played in open

court for the jury, but was not transcribed for the record.

Competency/Child Hearsay Hearing

       The State notified Barnes that it intended to introduce TV’s hearsay statements at trial

pursuant to RCW 9A.44.120. Specifically, the State sought to introduce TV’s statements to

Jones, Heard, Keshia, Quins, Mahaulu-Stephens, and Michelle Breland, a nurse practitioner who

examined TV following her disclosure. The court held a hearing to determine TV’s competency

to testify and the admissibility of her hearsay statements.

       At the hearing, the State questioned TV as to her understanding of the difference between

the truth and a lie. TV initially stated that she did not know the difference between telling the




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No. 48993-7-II


truth and telling a lie. But then she said that her teacher told her not to lie and that her mother

sometimes talked to her about telling the truth and a lie. And TV correctly answered some

hypothetical questions that distinguished between the truth and pretend. Finally, she said she

would tell the truth and promised not to lie.

       TV could not remember living at Heard’s house in the fall of 2014, but she recalled that

Heard’s house was brown and that she had spent the night there in her own bedroom upstairs.

She also did not remember talking in a room with cameras about the incident involving Barnes.

However, she remembered telling Heard and Jones about what had happened at Barnes’s house.

       Jones, Heard, Keshia, and Quins, testified about TV’s statements to them. Jones asked

TV if she was telling a story or telling the truth. TV told Jones, “I’m not telling you a story. I’m

telling you the truth.” 2 RP at 150. TV also told Heard that she was telling the truth about what

happened with Barnes. Keshia testified that she never had any problems with TV lying.

       Mahaulu-Stephens testified that during her forensic interview of TV, she asked TV if she

would promise to tell the truth and TV said that she would. TV corrected Mahaulu-Stephens if

she made errors while talking to TV. TV also asked for clarification when she did not

understand something.

       The trial court reviewed TV’s recorded interview with Mahaulu-Stephens. In the

recorded interview, TV described Barnes’s “boomerang” as “going in her potty.” 3 RP at 247.

TV described the feeling as “smooshy or gooey.” 3 RP at 247. Mahaulu-Stephens testified that

TV’s use of this language evidenced a lack of coaching because she was only able to articulate a

four year old’s understanding of anatomy.

       The trial court found that while TV initially had difficulty answering directly whether she

understood the difference between the truth and a lie, “she did by examples indicate that she did




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No. 48993-7-II


have an understanding of the difference between fiction and reality.” 3 RP at 287. The court

also found that TV “has the understanding and the knowledge of her obligation to speak the truth

on the witness stand.” 3 RP at 287. Further, based on the forensic interview, the court found

that TV demonstrated mental capacity at the time of the occurrence. Specifically, TV was

conversant during the interview, paid close attention to the room, and complimented the

examiner on her clothing. Compared to her demeanor in court, her demeanor in the interview

“indicated she was very grounded at the time.” 3 RP at 288. The court also found that TV had

sufficient memory to retain independent recollection of the charged incident because she could

answer questions related to where she was living, what happened shortly after, when she moved,

and whether she was in school or daycare.

       The trial court found that there was no reason to question TV’s general character nor was

there a motive for TV to lie. And the initial disclosure to Jones was spontaneous. There were

multiple people who heard TV’s statement in a short period of time, TV disclosed the incident to

Heard moments after disclosing the incident to Jones, and the forensic interview was set up a

week following the initial disclosure. Even though TV made some inconsistent statements, there

was some degree of consistency between the two initial disclosures.

       Based on the totality of the circumstances, the trial court found that there was no reason

to believe that TV misrepresented what she perceived in this case. Therefore, the trial court

ruled that TV was competent to testify at trial and TV’s child hearsay statements to each of the

witnesses were admissible.

Trial Testimony and Argument

       At trial, Jones, Heard, Keshia, Quins, and Mahaulu-Stephens testified about TV’s

statements that the trial court had ruled admissible. TV also testified. She stated that the last




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No. 48993-7-II


time she spent the night at Barnes’s home, he called her into his room. He then told her to lie

down on the floor on her stomach and got on top of her. She was wearing pants and a shirt at the

time and her “clothes were halfway off because of him.” 5 RP at 410.

       Breland, a pediatric nurse practitioner, performed a physical examination of TV. Breland

testified that during her examination of TV, TV told her that someone had done something she

did not like to her hip, but then pointed to her anal region. TV then described the area as “the

part where the pee pee comes out.” 6 RP at 615. TV also told Breland that her pants and panties

had been taken down.

       Throughout closing argument, the State emphasized that the jurors were the sole judges

of credibility. The State argued that the evidence in this case was TV’s words. The State also

argued, “[i]f you believe [TV’s] words, if you believe her description of what happened to her,

what the defendant did to her, you are convinced beyond a reasonable doubt.” 7 RP at 761.

       The State also emphasized that TV had “absolutely no motive to fabricate what happened

to her” and that there was “no evidence before you, none presented, to suggest a reason why she

would.” 7 RP at 750. Barnes objected to this statement as shifting the burden of proof. The

State then argued that there was no evidence that any of the other witnesses fabricated their

testimony. Barnes again objected that these statements were shifting the burden.

       Barnes argued in closing that Heard coached TV into disclosing the abuse. He also

argued that the circumstantial evidence suggested animosity between Heard and Keshia, which

prompted the coaching.

       The State addressed Barnes’s theory of coaching in rebuttal, stating, “There’s nothing to

support that. Not a shred of actual evidence to support that.” Later, the State argued:

       Everything that was talked [about] in defense counsel’s argument and all of the
       evidence presented at trial does not support this. There simply is no evidence to



                                                 6
No. 48993-7-II


        support that. There is no evidence that [TV] was actually, in fact, coached and no
        evidence that would suggest [] Heard did this. There is nothing tying her to her
        being mad and wanting to seek revenge against [Barnes] and [Smith]. It doesn’t
        make any sense.

7 RP at 803.

Conviction and Sentence

        The jury found Barnes guilty of one count first degree rape of a child and not guilty on

the other count. As part of Barnes’s sentence, the trial court imposed several community custody

conditions.

        Barnes appeals his conviction and the imposition of certain community custody

conditions.

                                             ANALYSIS

A.      IMPOSITION OF BAIL

        Barnes assigns error to the trial court’s initial imposition of bail at $100,000, as well as

the court’s subsequent reduction of bail to $50,000. He argues that the trial court failed to apply

the presumption of release in noncapital cases. He also claims that the bail amounts were

excessive and in violation of the Eighth Amendment. We decline to address these arguments

because they are moot.

        An issue is moot if we can no longer provide effective relief. State v. Gentry, 125 Wn.2d

570, 616, 888 P.2d 1105 (1995). We generally do not consider questions that are purely

academic. Id. at 616-17. But we may consider a moot issue if it involves matters of continuing

and substantial public interest. State v. Cruz, 189 Wn.2d 588, 598, 404 P.3d 70 (2017). In

determining whether a case presents an issue of continuing and substantial public interest, we

consider (1) the public or private nature of the issue, (2) whether guidance for public officers on

the issue is desirable, and (3) the likelihood that the issue will recur. Id.



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No. 48993-7-II


       The relief that Barnes requests here is for us to hold that the initial $100,000 bail was

excessive and to hold that the trial court erred in failing to apply the presumption of release in

imposing bail. But we cannot grant effective relief regarding the bail imposed because the trial

court granted Barnes’s request to lower the initial $100,000 bail and Barnes subsequently posted

the lowered bail amount. Therefore, this issue is moot.

       Barnes argues that the imposition of bail in his case represents a matter of continuing and

substantial public interest because of the significant impact of pretrial detention on the accused.

However, his challenge here is based on the specific circumstances of his imposed bail amount;

his criminal history, ties to the community, and financial need. And the amount of bail imposed

is left to the discretion of the trial court. State v. Reese, 15 Wn. App. 619, 620, 550 P.2d 1179

(1976). Barnes fails to show that the discretionary imposition of bail here based on the specific

circumstances of his criminal history, ties to the community, and likelihood of complying with

court orders represents a matter of continuing and substantial public interest.

       We decline to address Barnes’s moot arguments regarding the imposition of bail.

B.     PROTECTIVE ORDER FOR TV’S FORENSIC INTERVIEW

       Barnes argues that the trial court erred in entering the protective order restricting his use

and dissemination of the video copy of TV’s forensic interview. He claims that such restriction

on his use of the evidence violated (1) discovery rule CrR 4.7(a), (2) his constitutional right to an

open and public trial, and (3) the required procedure for sealing court records. We reject each of

these arguments.

       1.    Violation of Discovery Rules

       CrR 4.7(a)(1)(ii) states, “Except as otherwise provided by protective orders . . . the

prosecuting attorney shall disclose to the defendant . . . any written or recorded statements” of




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No. 48993-7-II


witnesses the State intends to call at trial. (Emphasis added.) The purpose of this disclosure

requirement is to ensure the defendant has meaningful access to the evidence supporting the

criminal charges. State v. Boyd, 160 Wn.2d 424, 432, 158 P.3d 54 (2007). Such access allows

the defense to effectively prepare for trial and the defendant to be provided adequate

representation. Id. CrR 4.7(a) obliges the prosecutor to provide copies of evidence “[w]here the

nature of the case is such that copies are necessary in order that defense counsel can fulfill this

critical role.” Id. at 435.

        Barnes relies on Boyd to argue that the protective order here limited his right to

meaningfully access the video recording and thereby violated his right to effective assistance of

counsel. But here, the State did provide Barnes a copy of the forensic interview of TV.

Therefore, contrary to Barnes’s assertion, the State did not fail to produce required material

under the rules of discovery.

        Further, the Supreme Court in Boyd specifically upheld a protective order restricting the

use and dissemination of evidence that was similar to the order at issue here. 160 Wn.2d at 439.

The court reasoned that CrR 4.7(a) explicitly provides for disclosure of evidence subject to

protective orders. Id. at 438. The court held, “In cases such as these, safeguarding the interests

of the victims requires conditions that account for the ease with which the evidence can be

disseminated.” Id. A protective order limiting the dissemination and use of such evidence

protects the victim and “also safeguards the defendant’s interests.” Id. at 439.

        Like the protective order in Boyd, the protective order here provided defense counsel

ongoing access to the copied recording before and during trial, allowed for access by defense

expert, and permitted defense counsel to review the evidence with Barnes. Therefore, Barnes’s

CrR 4.7(a) argument fails.




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No. 48993-7-II


       2.    Constitutional Right to Open Courts

       Article I, section 22 of the Washington Constitution guarantees a criminal defendant the

right to a public trial. State v. Love, 183 Wn.2d 598, 604, 354 P.3d 841 (2015), cert. denied 136

S. Ct. 1524 (2016). And article I, section 10 of the Washington Constitution guarantees the

public that “[j]ustice in all cases shall be administered openly, and without unnecessary delay.”

These constitutional provisions assure fairness of our judicial system, and are collectively

referred to as the “public trial right.” Love, 183 Wn.2d at 605. We review public trial right

claims de novo. Id. at 604.

       We apply a three-step analysis in assessing a claimed violation of public trial rights: (1)

whether the public trial right attaches to the proceeding at issue; (2) if the right attaches, whether

the courtroom was closed; and (3) whether such closure was justified. Id. at 605. “The appellant

carries the burden on the first two steps; the proponent of the closure carries the third.” Id.

       Here, Barnes appears to argue that his constitutional right to an open and public trial was

violated because the forensic recording of TV was played in public court but not transcribed. He

also argues that in issuing the protective order, the trial court expressed a belief that it was proper

to automatically exclude the public from access to such materials.

       However, Barnes presents no argument explaining how the issuance of a protective order

limiting dissemination of a forensic interview during discovery closed the courtroom to public

access. And the record shows that TV’s interview recording was played during trial in open

court. Barnes does not provide argument or citation to authority to support his claim that the

failure of the trial court to transcribe the video recording in the record rendered the courtroom

closed for purposes of the public trial right. Because Barnes has failed to show that the




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No. 48993-7-II


courtroom was closed to the public during this proceeding, he has failed to meet his burden to

show a public trial violation. Therefore, Barnes’s argument fails.

       3.   Sealing of Forensic Interview Pursuant to GR 15

       GR 15(a) “sets forth a uniform procedure for the destruction, sealing, and redaction of

court records.” Sealing a record pursuant to GR 15 “means to protect from examination by the

public and unauthorized court personnel.” GR 15(b)(4). A party in a criminal proceeding may

file a motion to seal court records by giving notice to all parties and the victim. GR 15(c)(1).

Barnes argues that the trial court failed to enter written findings as required by GR 15 when it

sealed TV’s recorded forensic interview.

       But the record does not support Barnes’s claim that the trial court sealed the record under

GR 15. The record does not contain a motion by the State to seal the forensic interview from

public examination pursuant to GR 15 or a court order granting such motion. Further, neither

party referenced GR 15 during the hearing on the protective order. Nowhere in the order does

the court prohibit the public from accessing the recording for any purpose. In fact, the order

specifically allows for potential dissemination to the media pursuant to court order. Therefore,

Barnes’s argument fails.

C.     COMPETENCY OF TV TO TESTIFY

       Barnes argues that the trial court erred in finding TV competent to testify at trial because

the court applied the wrong legal standard for determining competency. He also argues that

based on the inconsistencies throughout TV’s testimony, she did not demonstrate an ability to

receive just impressions and accurately relate events occurring contemporaneously to the

incident at issue. We disagree.




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No. 48993-7-II


       1.   Standard of Review

       The determination of a witness’s competency is left to the trial court’s sound discretion

and will not be disturbed on appeal absent a showing of manifest abuse of discretion. State v.

Woods, 154 Wn.2d 613, 617, 114 P.3d 1176 (2005). “There is probably no area of law where it

is more necessary to place great reliance on the trial court’s judgment than in assessing the

competency of a child witness.” State v. Borland, 57 Wn. App. 7, 11, 786 P.2d 810 (1990),

overruled on other grounds, State v. Rohrich, 132 Wn.2d 472, 939 P.2d 697 (1997). Because the

competency of a minor witness is not easily reflected in a written record, we “must rely on the

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

and intelligence.” Woods, 154 Wn.2d at 617. On appeal, we may examine the entire record in

reviewing the trial court’s competency determination. Id.

       2.   No Abuse of Discretion

       Barnes argues that the trial court abused its discretion by applying the wrong legal

standard to determine that TV was competent to testify. We disagree.

       In State v. Allen, our Supreme Court outlined the test a trial court must employ when

assessing the competency of a child witness. 70 Wn.2d 690, 692, 424 P.2d 1021 (1967). The

trial court must determine whether the child exhibits:

       (1) an understanding of the obligation to speak the truth on the witness stand; (2)
       the mental capacity at the time of the occurrence concerning which he is to testify,
       to receive an accurate impression of it; (3) a memory sufficient to retain an
       independent recollection of the occurrence; (4) the capacity to express in words
       his memory of the occurrence; and (5) the capacity to understand simple questions
       about it.

Id. Barnes argues that the trial court applied the wrong legal standard when making a finding on

factors one and two.




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No. 48993-7-II


            Regarding the first factor, Barnes argues that the trial court applied the wrong standard

because the court relied on TV’s answers to the State’s hypothetical questions regarding whether

something was true or imaginary. The court acknowledged that TV initially struggled in

answering the question of whether she understood the difference between the truth and a lie, but

found that “she did by examples indicate that she did have an understanding of the difference

between fiction and reality.” 3 RP at 287. Specifically, TV was able to answer whether a series

of posed hypotheticals were truths or lies. She then promised to not testify to anything that was a

lie or pretend. The trial court ruled that TV “ha[d] the understanding and the knowledge of her

obligation to speak the truth on the witness stand.” 3 RP at 287. Therefore, the trial court did

not apply the wrong legal standard.

            Regarding the second factor, Barnes argues that the trial court applied the wrong standard

when it determined that TV had the mental capacity at the time of the occurrence based on her

demeanor in the forensic interview. In support, Barnes references the portion of the trial court’s

ruling describing TV as verbally agile and paying close attention during the forensic exam.

However, a trial court may infer the second factor of the Allen test based on the child’s overall

demeanor and manner of answering questions. State v. Sardinia, 42 Wn. App. 533, 537, 713

P.2d 122 (1986). Therefore, it was not untenable for the trial court to consider TV’s demeanor

and ability to answer questions during the interview.

            Barnes also argues that the trial court abused its discretion in ruling on factors two and

three of the Allen test because TV was unable to recall contemporaneous events during her

testimony. In support, Barnes points to various inconsistencies in TV testimony over the course

of trial.




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No. 48993-7-II


        However, “[i]nconsistencies in the child witness’s testimony bear on credibility, not

admissibility.” State v. Przybylski, 48 Wn. App. 661, 665, 739 P.2d 1203 (1987). A competency

determination of a child witness does not require the trial court examine the child regarding the

particular issues and facts of the case. Id. at 666 (holding a five year old witness was competent

to testify where she “demonstrated an ability to recall and recount past events and to intelligently

respond to questions.”); Sardinia, 42 Wn. App. at 537 (holding the child victim demonstrated an

adequate memory to recall the past when she testified that she knew who her school teachers

were and what her performance in school had been). Here, TV demonstrated an ability to recall

past events and to intelligently respond to questions.

        Based on the record, we hold that the trial court did not abuse its discretion in finding TV

competent to testify at trial.

D.      ADMISSION OF CHILD HEARSAY STATEMENTS

        Barnes argues that the trial court abused its discretion in ruling that TV’s child hearsay

statements were admissible because (1) there was no corroborative evidence and (2) the trial

court failed to consider the reliability of each statement individually. 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 either

the child testifies at the proceedings or the child’s statements are supported with corroborative

evidence of the act. RCW 9A.44.120(1), (2)(a), (b); 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. Id. at 879.




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No. 48993-7-II


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

Ryan2 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

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.

Id. at 880. No single factor is decisive, but the factors must be substantially met to indicate

sufficient reliability. Id. at 881.

         Barnes argues that corroborative evidence was required to support TV’s hearsay

statements because TV should have been ruled incompetent to testify and therefore unavailable.

However, as explained above, the trial court did not abuse its discretion in finding TV competent

to testify and therefore she was not unavailable as a witness. Because TV testified at trial, the

State was not required to support TV’s statements with corroborative evidence of the act. RCW

9A.44.120(2)(a), (b).

         Regarding Barnes’s second argument, Barnes never objected to the trial court’s method

of applying the Ryan factors generally to all of TV’s statements rather than on an individual

basis. In order to raise the objection for the first time on appeal, the appellant must show

admission of the evidence was a “manifest error affecting a constitutional right.” State v.

Kirkman, 159 Wn.2d 918, 926, 155 P.3d 125 (2007). But Barnes argues only that the trial court




2
    State v. Ryan, 103 Wn.2d 165, 176, 691 P.2d 197 (1984).


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No. 48993-7-II


abused its discretion. He makes no argument on appeal why RAP 2.5(a) applies. Thus, we

decline to reach this issue.

       We hold that the trial court did not abuse its discretion in ruling that TV’s child hearsay

statements were admissible under RCW 9A.44.120.

E.     PROSECUTORIAL MISCONDUCT

       Barnes argues that the prosecutor’s statements during closing argument improperly

shifted the State’s burden of proof and created a “false choice” by telling the jury that they would

need to find the State’s witnesses were lying in order to find Barnes not guilty. We disagree.

       1.    Legal Principles

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

prosecutor’s conduct was both improper and prejudicial in the context of the entire record and

the circumstances at trial.’ ” State v. Thorgerson, 172 Wn.2d 438, 442, 258 P.3d 43 (2011)

(quoting State v. Magers, 164 Wn.2d 174, 191, 189 P.3d 126 (2008)). We review allegedly

improper arguments of the prosecutor in the context of the total argument, the evidence

addressed during argument, the issues in the case, and the trial court’s instructions. State v.

Russell, 125 Wn.2d 24, 85-86, 882 P.2d 747 (1994). During closing argument, 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). The State may also respond to defense

arguments in its closing. Russell, 125 Wn.2d at 86. Prejudice is established by showing a

substantial likelihood that the prosecutor’s misconduct affected the verdict. State v. Emery, 174

Wn.2d 741, 762, 278 P.3d 653 (2012).




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No. 48993-7-II


       2.      No Misconduct

       When the State and defense present two conflicting versions of events at trial, the jury

need not determine which version is true in order to reach a verdict. State v. Miles, 139 Wn.

App. 879, 890, 162 P.3d 1169 (2007). Even if the jury remains unpersuaded by the defense

evidence, it still “only [has] to entertain a reasonable doubt as to the State’s case.” Id.

Therefore, a prosecutor engages in misconduct by informing the jury that they may only acquit

the defendant if they believe the evidence defense presented. Id.

       Barnes relies on Miles to argue that the prosecutor here committed misconduct by

commenting on the credibility of the State’s witnesses. But here, the prosecutor never told the

jury that they had heard mutually exclusive versions of the events. The prosecutor also never

told the jury that if the defense witnesses are incorrect, then the State’s witnesses must be

correct. Given that Barnes did not present any witnesses to testify to a different version of the

events at trial,3 the prosecutor could not have argued that the jury must choose which side’s

witnesses were correct.

       Barnes’s theory of the case was that Heard had coached TV into disclosing the abuse

because of Heard’s animosity toward Keshia. Barnes also directed considerable argument

toward Jones’s credibility, who he argued had given a false name to police, had not cooperated

with the investigation, and through her actions showed she did not want to be involved. His

theory was that Jones’s hostility during the investigation and trial showed that “she knew Mr.

Barnes was not guilty of these charges.” 7 RP at 779. Because Barnes’s defense largely entailed




3
  At trial, the only witness Barnes called to testify was the defense investigator, who testified to
the accuracy of the transcription of the defense interviews of State witnesses.



                                                  17
No. 48993-7-II


undermining the credibility of the State’s witnesses, it was not improper for the prosecutor to

respond to this argument and inform the jurors that they were the sole judges of credibility.

       Further, contrary to Barnes’s assertion, the State never told the jury that they should find

Barnes guilty because he had failed to present any evidence showing he was not guilty. The

prosecutor merely argued that there was no evidence to support Barnes’s argument that TV and

the other witnesses fabricated their testimony. A prosecutor is permitted to argue the absence of

evidence to support the defendant’s theory of the case.

       We hold that the prosecutor’s arguments were not improper and therefore that Barnes’s

prosecutorial misconduct claim fails.

F.     COMMUNITY CUSTODY CONDITIONS

       Barnes challenges a number of community custody conditions imposed by the sentencing

court as either unauthorized or unconstitutional. We hold the prohibition against frequenting

places where children congregate is unconstitutionally vague. We also hold that the conditions

restricting Barnes’s access of locations where alcohol is sold, use of the Internet, and patronizing

businesses promoting commercialization of sex were not crime-related.

       1.   Standard of Review

       We review de novo the sentencing court’s statutory authority to impose a particular

community custody condition. State v. Acevedo, 159 Wn. App. 221, 231, 248 P.3d 526 (2010).

However, we review a challenge that the condition is not crime-related for abuse of discretion.

State v. Sanchez Valencia, 169 Wn.2d 782, 791-92, 239 P.3d 1059 (2010); State v. Zimmer, 146

Wn. App. 405, 413, 190 P.3d 121 (2008).

       In applying this standard, we will reverse a condition only if we find that imposition of

the condition was manifestly unreasonable. State v. Irwin, 191 Wn. App. 644, 652, 364 P.3d 830




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No. 48993-7-II


(2015). Imposing an unconstitutional condition is “manifestly unreasonable.” Id. Community

custody conditions are not presumed to be constitutionally valid. Sanchez Valencia, 169 Wn.2d

at 793. If we determine a sentencing court imposed an unauthorized condition on community

custody, we 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.   Frequenting Locations Where Children Congregate

         The trial court imposed community custody condition 24, which states, “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.” CP at 173. In

State v. Wallmuller, this court recently held that a similar condition was unconstitutionally

vague. No. 50250-0-II, (Wash. Ct. App. Aug. 7, 2018) (part published),

http://www.courts.wa.gov/opinions/pdf/D2%2050250-0-II%20Published%20Opinion.pdf. We

follow Wallmuller and hold that community custody condition 24 also is unconstitutionally

vague.

         3.   Other Community Custody Conditions

         RCW 9.94A.703(3)(f)4 provides the sentencing court discretionary authority to order

Barnes 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). Barnes argues that the trial court imposed three community

custody conditions that were not crime related.




4 RCW 9.94A.703 has been amended since the events of this case transpired; however, these
amendments do not materially affect the statutory language relied on by this court. Accordingly,
we refrain from including the word “former” before RCW 9.94A.703.


                                                  19
No. 48993-7-II


       First, community custody condition 16, states, “Do not enter into any location where

alcohol is the primary product, such as taverns, bars, and/or liquor stores.” CP at 172. Here,

there is no evidence that alcohol played a role in Barnes’s offense. Therefore, the trial court

erred by prohibiting Barnes from entering a location where alcohol is the primary product.

       Second, community custody condition 28 states,

       You shall not have access to the Internet except for educational or employment
       purposes at any location in any medium to include cellphones, nor shall you have
       access to, possess, or peruse any sexually explicit materials in any medium. You
       are also prohibited from joining or perusing any public social websites ([Facebook],
       Myspace, Craigslist, etc.), Skyping, or telephoning any sexually-oriented 900
       numbers.

CP at 173. Internet use is crime-related if there is evidence that Internet use “contributed in any

way to the crime.” State v. O’Cain, 144 Wn. App. at 775.

       Here, there was no evidence that the Internet use, public social websites, Skype, or

sexually-oriented 900 numbers contributed in any way to Barnes’s offense. Therefore, the trial

court erred by prohibiting Barnes from engaging in those activities.

       Third, community custody condition 29 states, “Do not patronize prostitutes or any

businesses that promote the commercialization of sex; also, do not go to or loiter at any place

where sexually explicit materials are sold.” CP at 173.    We agree that the sentencing court

abused its discretion in imposing the community custody condition prohibiting Barnes from

patronizing businesses that promote commercialization of sex. There was no evidence to suggest

that businesses promoting the commercialization of sex contributed in any way to Barnes’s

crime. Therefore, the trial court erred by prohibiting Barnes from patronizing such businesses.

       However, we affirm the sentencing court’s imposition of the community custody

condition prohibiting Barnes from patronizing prostitutes. It is a misdemeanor to patronize a

prostitute. RCW 9A.88.110(1)(c)(3). And the sentencing court may require an offender to



                                                 20
No. 48993-7-II


engage in law-abiding behavior. Jones, 118 Wn. App. at 205-06. Therefore, the sentencing

court did not abuse its discretion in prohibiting Barnes from patronizing prostitutes in violation

of Washington law.

        We hold that the sentencing court abused its discretion in imposing community custody

conditions 16, 24, 28, and the portion of 29 related to patronizing businesses that promote the

commercialization of sex and frequenting places where sexually explicit material is sold.

                                          CONCLUSION

        We affirm Barnes’s conviction, but we remand with instructions to strike community

custody conditions 16, 24, 28 and a portion of condition 29.

        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, C.J.
 I concur:



 WORSWICK, J.




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No. 48993-7-II


       Lee, J. (concur in part and dissent in part) — I concur with the majority’s opinion in all

respects, except with regard to Barnes’ challenge to community custody condition 24 on

unconstitutional vagueness grounds.

       Barnes challenges community custody condition 24, which prohibits him from

frequenting places where children congregate unless otherwise approved by the court. He argues

that the condition was not crime-related and was unconstitutionally vague. For the same reasons

articulated in my concurrence/dissent in State v. Wallmuller, No. 50250-0-II, (Wash. Ct. App.

Aug. 7, 2018) (part published), http://www.courts.wa.gov/opinions/pdf/D2%2050250-0-

II%20Published%20Opinion.pdf, I respectfully disagree with the majority and would hold that

the condition was crime-related and not unconstitutionally vague.




                                                     LEE, J.




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