                                                                                                  Filed
                                                                                            Washington State
                                                                                            Court of Appeals
                                                                                             Division Two

                                                                                           November 28, 2017




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                          DIVISION II
 STATE OF WASHINGTON,                                                  No. 49162-1-II

                                 Respondent,                    UNPUBLISHED OPINION

         v.

 DOUGLAS KIRBY,

                                 Respondent,


        BJORGEN, C.J. — Douglas Kirby appeals his convictions of two counts of first degree

child rape and two counts of first degree child molestation and requests reversal of his

convictions.

        Kirby argues that (1) the prosecution mischaracterized the reasonable doubt standard,

thereby violating his right to a fair trial, (2) defense counsel failed to object to the prosecution’s

mischaracterization of the reasonable doubt standard, which constituted ineffective assistance of

counsel, (3) imposing community custody conditions requiring him to submit to plethysmograph

testing at the direction of his community corrections officer (CCO) exceeded the statutory
No. 49162-1-II


authority of the sentencing court, and (4) the judgment and sentence contain scrivener’s errors as

to the date of the crime. He also objects to appellate costs because he is indigent.

       As to the alleged trial errors, we hold that (1) the prosecution did not mischaracterize the

reasonable doubt standard in its closing rebuttal argument, (2) the defense did not render

ineffective assistance of counsel when it failed to object, because the prosecution properly

characterized the reasonable doubt standard, (3) imposing community custody conditions

requiring Kirby to submit to plethysmograph testing at the direction of his CCO exceeded the

statutory authority of the sentencing court because the terms of the condition allowed the CCO to

order the tests even if not directed by a qualified treatment provider, and (4) the scrivener’s

errors in Kirby’s judgment and sentence necessitate remand for correction. Finally, the State has

indicated that it will not seek appellate costs, so we deem them waived.

       Accordingly, we affirm Kirby’s convictions, but remand to the sentencing court to clarify

the plethysmograph condition and to correct the scrivener’s errors.

                                              FACTS

       The State charged Kirby through its amended information with two counts of first degree

child rape and two counts of first degree child molestation.

       Before closing arguments, the trial court instructed the jury using Washington’s

traditional abiding belief instruction, which addresses the reasonable doubt standard. Instruction

number 3 informed the jury of the State’s burden of proof as follows:

               The defendant has entered a plea of not guilty to the charges. That plea puts
       in issue every element of the crimes charged. The State is the plaintiff and has the
       burden of proving each element of each crime beyond a reasonable doubt.




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               A defendant is presumed innocent. This presumption continues throughout
       the entire trial unless during your deliberations you find it has been overcome by
       the evidence beyond a reasonable doubt.
               A reasonable doubt is one for which a reason exists and may arise from the
       evidence or lack of evidence. It is such a doubt as would exist in the mind of a
       reasonable person after fully, fairly and carefully considering all of the evidence or
       lack of evidence. If, after such consideration, you have an abiding belief in the
       truth of the charge, you are satisfied beyond a reasonable doubt.

Verbatim Report of Proceedings (VRP) (May 11, 2016) at 576-77; Clerk’s Papers (CP) at 36-37.

       The court also instructed the jury as follows:

              The lawyers’ remarks, statements, and arguments are intended to help you
       understand the evidence and apply the law. It is important, however, for you to
       remember that the lawyers’ statements are not evidence. The evidence is the
       testimony and the exhibits. The law is contained in my instructions to you. You
       must disregard any remark, statement, or argument that is not supported by the
       evidence or the law in my instructions.

VRP (May 11, 2016) at 574; CP 34-35.

       During the State’s rebuttal closing argument, the prosecutor expounded on the burden of

proof as follows:

       [State]: Mr. Woodrow [defense counsel] hit on a topic I was actually going to hit
       on as well and that’s the instruction for reasonable doubt and it talks about an
       abiding belief. And it’s weird. We talk about marriage or married, we talk about
       sexual contact or sexual intercourse, things that, frankly, people use in everyday
       language all the time, but when you hear definitions for those, an abiding belief just
       sounds like a legal term, right, but that one you don’t get a definition for. That’s
       because it’s different for each and every one of you, and I’m not going to tell you
       what it should be for you.
                Abiding belief is the basis for a reasonable doubt. For you it may be
       different than the person next to you, but what it comes down to is do you believe
       that everything on those checklists that we talked about earlier happened, and if you
       have that belief, I would submit to you [that] you are convinced beyond a
       reasonable doubt. And if you are convinced beyond a reasonable doubt, I’m going
       to ask you to do what your oath and the jury instructions say you have to do, and
       that’s find Douglas Kirby guilty. Thank you.

VRP (May 11, 2016) at 638-39. Kirby did not object to these statements.


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No. 49162-1-II


        The jury returned a guilty verdict on all charges and the court sentenced Kirby to terms of

imprisonment and community custody. As a condition of community custody, Kirby was

ordered to submit to a sexual deviancy evaluation and to successfully complete any

recommended treatment. Additional conditions of community custody were attached in

Appendix H, one of which requires Kirby to, among other matters, comply with “polygraph and

plethysmograph examinations as directed by the CCO.” CP at 24.

        All four counts for which Kirby was convicted were charged as occurring between March

5, 2008 and May 22, 2009. At his arraignment, the court noted that the date of the offenses in

the first amended information had been amended to reflect the proper dates of the offenses:

between March 5, 2008 and May 22, 2009. The to-convict instructions used the same date range.

However, the judgment and sentence lists the date of offense for all four charges as January 1,

2008.

        Kirby appeals.

                                           ANALYSIS

        Kirby argues that the prosecution mischaracterized the reasonable doubt standard in such

a flagrant and ill-intentioned manner as to amount to prosecutorial misconduct, misconduct a

curative instruction could not obviate. We disagree.

                                 I. PROSECUTORIAL MISCONDUCT
A.      Legal Principles

        The Sixth and Fourteenth Amendments to the United States Constitution and article I,

sections 3 and 22 of the Washington Constitution guarantee the right to a fair trial. State v.




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Finch, 137 Wn.2d 792, 843, 975 P.2d 967 (1999). Prosecutorial misconduct may deprive a

defendant of his constitutional right to a fair trial. State v. Davenport, 100 Wn.2d 757, 762, 675

P.2d 1213 (1984).

       To establish prosecutorial misconduct, the defendant must prove that the prosecuting

attorney’s remarks were both improper and prejudicial. State v. Allen, 182 Wn.2d 364, 373, 341

P.3d 268 (2015). “In analyzing prejudice, we do not look at the comments in isolation, but in the

context of the total argument, the issues in the case, the evidence, and the instructions given to

the jury.” State v. Warren, 165 Wn.2d 17, 28, 195 P.3d 940 (2008).

       Depending on whether the defendant objected to the improper comments, we analyze

prejudice in misconduct claims under one of two standards of review. State v. Emery, 174

Wn.2d 741, 760, 278 P.3d 653 (2012). If the defendant objected at trial, the defendant need only

show that the prosecutor’s misconduct resulted in prejudice that had a substantial likelihood of

affecting the jury’s verdict. Id. If, however, the defendant did not object at trial, the defendant 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. Id. at 760-61.

“Under this heightened standard, the defendant must show that (1) ‘no curative instruction would

have obviated any prejudicial effect on the jury’ and (2) the misconduct resulted in prejudice that

‘had a substantial likelihood of affecting the jury verdict.’” Id. at 761 (quoting State v.

Thorgerson, 172 Wn.2d 438, 455, 258 P.3d 43 (2011)).

       Examples of circumstances in which courts have generally found misconduct to be




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No. 49162-1-II


flagrant and ill-intentioned include when the prosecutor: (1) undermines the presumption of

innocence by, for example, stating that a defendant is not entitled to the benefit of the doubt, see

Warren, 165 Wn.2d at 26-27, (2) points out a defendant’s or witness’s assertion of his or her

Fifth Amendment privilege, see State v. Nelson, 72 Wn.2d 269, 282-85, 432 P.2d 857 (1967), or

(3) inserts racial bias into the proceedings. State v. Monday, 171 Wn.2d 667, 680, 257 P.3d 551

(2011).

          In addition, a prosecutor who addresses the reasonable doubt standard in closing

argument acts improperly by “trivializ[ing] and ultimately fail[ing] to convey the gravity of the

State’s burden and the jury’s role in assessing its case against [the defendant].” State v.

Anderson, 153 Wn. App. 417, 431, 220 P.3d 1273 (2009). A prosecutor also acts improperly by

arguing to the jury that it must find the defendant guilty if it cannot articulate a specific reason

for its doubt as to guilt. State v. Johnson, 158 Wn. App. 677, 684-85, 243 P.3d 936 (2010). In

essence, the State acts improperly when it mischaracterizes the standard as requiring anything

less than an abiding belief that the evidence presented establishes the defendant’s guilt beyond a

reasonable doubt. See State v. Pirtle, 127 Wn.2d 628, 657-58, 904 P.2d 245 (1995).

B.        Reasonable Doubt Standard

          Kirby claims that the prosecution mischaracterized the reasonable doubt standard,

thereby violating his right to a fair trial.

          The prosecutor stated, in pertinent part, as follows:

                  Abiding belief is the basis for a reasonable doubt. For you it may be
          different than the person next to you, but what it comes down to is do you believe




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No. 49162-1-II


       that everything on those checklists that we talked about earlier happened, and if you
       have that belief, I would submit to you [that] you are convinced beyond a
       reasonable doubt. And if you are convinced beyond a reasonable doubt, I’m going
       to ask you to do what your oath and the jury instructions say you have to do, and
       that’s find Douglas Kirby guilty.

VRP (May 11, 2016) at 638-39. Kirby did not object to the prosecutor’s statements at trial, but

contends on appeal that this argument “distorted and minimized the burden of proof.” Br. of

Appellant at 7. According to Kirby, the prosecutor “equated proof beyond a reasonable doubt to

a mere belief in everything on the checklists.” Br. of Appellant at 5 (internal quotation marks

omitted).

       The prosecutor’s statement in the above excerpt that “if you have that belief, I would

submit to you [that] you are convinced beyond a reasonable doubt,” taken in isolation, might be

interpreted as improperly suggesting that any level of belief is the same as belief beyond a

reasonable doubt. However, in context, the prosecutor’s argument shows that his reference to

“belief” in this remark was to an “abiding belief” or a belief sufficient to overcome reasonable

doubt. Taken as a whole, the State’s argument did not trivialize or minimize the State’s burden

to a level less than beyond a reasonable doubt.

       Additionally, Kirby contends that the prosecutor mischaracterized and distorted the

reasonable doubt standard when he stated, “[A]biding belief is the basis for a reasonable doubt.”

Br. of Appellant at 7. This statement, Kirby argues, “suggested [that] the reasonable doubt

standard was something detached from the ‘abiding belief.’” Id. We recognize that prosecutor’s

statement could be interpreted as requiring an abiding belief in the doubt, which would turn the

standard on its head. Nevertheless, a view of the argument as a whole reveals that the prosecutor




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No. 49162-1-II


was talking about an abiding belief that the elements of the crime had been committed, which

was proper.

       Because we hold the prosecutor properly characterized the reasonable doubt standard, our

inquiry into prosecutorial misconduct is at an end. Without any improper actions by the

prosecutor, it is unnecessary to examine prejudice or whether any prejudice was curable by an

instruction. Under the standards above, Kirby has not shown prosecutorial misconduct.

                             II. INEFFECTIVE ASSISTANCE OF COUNSEL

       Kirby argues that he received ineffective assistance of counsel because his attorney failed

to object to the portions of closing argument that he claims constituted prosecutorial misconduct.

We disagree.

       The right to effective assistance of counsel is afforded criminal defendants by the Sixth

Amendment to the United States Constitution and article I, section 22 of the Washington

Constitution. State v. Thomas, 109 Wn.2d 222, 229, 743 P.2d 816 (1987). We review claims of

ineffective assistance de novo. In re Pers. Restraint of Gomez, 180 Wn.2d 337, 347, 325 P.3d

142 (2014).

       To establish ineffective assistance of counsel, Kirby must show both deficient

performance and resulting prejudice. State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d

1251 (1995). If Kirby fails to establish either prong of the test, we need not inquire further.

State v. Foster, 140 Wn. App. 266, 273, 166 P.3d 726 (2007).

       Deficient performance occurs when counsel’s performance falls below an objective




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No. 49162-1-II


standard of reasonableness. State v. Stenson, 132 Wn.2d 668, 705, 940 P.2d 1239 (1997). There

is a strong presumption of effective assistance, and Kirby bears the burden of rebutting that

presumption by showing the lack of a legitimate strategic or tactical reason for the challenged

conduct. McFarland, 127 Wn.2d at 335-36. Resulting prejudice must also occur, and the

appellant must demonstrate that there is a reasonable probability that, but for counsel’s deficient

performance, the result of the proceeding would have been different. Id. at 335.

       As shown above, the State’s arguments on its burden of proof under the reasonable doubt

standard, taken in context, were not improper. Kirby’s attorney did not act deficiently in failing

to object to a proper argument. Because both deficient performance and prejudice must be

proved to support a successful claim of ineffective assistance of counsel, Kirby’s failure to show

deficient performance ends our inquiry.

                    III. PLETHYSMOGRAPH COMMUNITY CUSTODY CONDITION

       Kirby argues that the sentencing court abused its discretion when it ordered him to submit

to plethysmograph testing at the direction of his CCO. We hold that the trial court did not abuse

its discretion in entering this condition, but remand to the sentencing court to clarify its

sentencing order regarding this testing consistently with this opinion.

       We review the imposition of community custody conditions for an abuse of discretion.

State v. Johnson, 184 Wn. App. 777, 779, 340 P.3d 230 (2014). A trial court abuses its

discretion if its decision is manifestly unreasonable or is exercised on untenable grounds or for

untenable reasons. State v. Rohrich, 149 Wn.2d 647, 654, 71 P.3d 638 (2003). Among the ways

a condition is manifestly unreasonable is if it is beyond the court’s authority to impose. Johnson,

184 Wn. App. at 779.


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No. 49162-1-II


       Kirby challenges the community custody condition that will require him to submit to

plethysmograph testing at the direction of his CCO. He argues that such testing can be required

only if the person ordering it is a qualified treatment provider and it is part of crime-related

treatment.

       We have previously acknowledged that plethysmograph testing does not serve a

monitoring purpose and is only appropriate in the context of a comprehensive evaluation or

treatment process. Johnson, 184 Wn. App. at 780. As such, a sentencing court may not require

plethysmograph testing unless it also requires crime-related treatment for sexual deviancy. Id.

Further, a CCO’s “scope of authority is limited to ordering plethysmograph testing for the

purpose of sexual deviancy treatment.” Id. at 781. Similarly, Division One of our court stated in

State v. Land, that “[plethysmograph] testing can properly be ordered incident to crime-related

treatment by a qualified provider. . . . But it may not be viewed as a routine monitoring tool

subject only to the discretion of a community corrections officer.” 172 Wn. App. 593, 605, 295

P.3d 782 (2013).

       In this case, the trial court required Kirby to submit to plethysmograph testing as directed

by the CCO, but also required a sexual deviancy evaluation and the successful competition of

any recommended treatment. We recognize that Kirby’s CCO may be required to direct

plethysmograph testing as part of his sexual deviancy treatment, but also recognize that, under

the terms of Kirby’s community custody conditions, his CCO could direct plethysmograph

testing independently of a treatment provider.




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No. 49162-1-II


       Consistently with Johnson and Land, we hold that a CCO may direct plethysmograph

testing for the purpose of sexual deviancy treatment as required by a qualified treatment

provider. Therefore, the trial court did not abuse its discretion, insofar as its sentencing order

allowed a CCO to direct Kirby to submit to plethysmograph testing for the purpose of his sexual

deviancy treatment. Still, because the sentencing order is unclear, we remand this case to the

superior court to amend the sentencing order to clarify that the CCO may only direct

plethysmograph testing if a qualified provider requires it as a part of his sexual deviancy

treatment.1

                                     IV. SCRIVENER’S ERRORS

       Kirby argues that we should remand his case to the sentencing court to correct four

scrivener’s errors in his judgment and sentence: each count contains an incorrect date of crime.

The State concedes that we should remand to correct the wrong date error. We accept the State’s

concession to correct each counts date of crime.

       We are empowered to remand a case to correct a judgment and sentence, even if no

prejudice is demonstrated from the scrivener’s error. See State v. Moten, 95 Wn. App. 927, 929,

976 P.2d 1286 (1999). Kirby’s judgment and sentence states he committed the crimes on

January 1, 2008, but all four counts for which Kirby was convicted were charged in the amended

information as occurring between March 5, 2008 and May 22, 2009.

       Accordingly, we remand this case to the sentencing court to correct these scrivener’s

errors in Kirby’s judgment and sentence.


1
 This result is consistent with our holding in the unpublished decision in State v. Nease, 189 Wn.
App. 1048 (2015) (unpublished), http://www.courts.wa.gov/opinions/pdf/45733-4.pdf.


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No. 49162-1-II


                                       V. APPELLATE COSTS

        Kirby asks this court to exercise its discretion to deny any appellate costs the State

requests. The State has stated it will not seek appellate costs.

        With this representation by the State, we waive appellate costs.

                                          CONCLUSION

        We affirm Kirby’s conviction, but remand for the sentencing court to (1) clarify its

sentencing order regarding plethysmograph testing consistently with this opinion and (2) correct

the scrivener’s errors.

        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.



                                                      BJORGEN, C.J.
 We concur:



 WORSWICK, J.




 MAXA, J.




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