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    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON- -)

                                                  DIVISION II

 STATE OF WASHINGTON,                                                             No. 44741 -0 -II


                                      Respondent,


             v.



 JOSE MOISES SEGOVIA -BARRERA,                                           UNPUBLISHED OPINION


                                      Appellant.




         LEE, J. —        Jose M. Segovia -Barrera appeals            his conviction for first degree child


molestation,      arguing that ( 1) the trial   court erred   in admitting the   victim' s   hearsay   statements, (     2)


the prosecuting attorney committed misconduct during closing argument, and ( 3) the trial court

erred   in   imposing discretionary legal financial       obligations.   We hold that the trial court properly

evaluated the reliability of the victim' s statements on the basis of the evidence introduced during

the child hearsay hearing. We also hold that the prosecuting attorney did not commit misconduct

in responding to defense counsel' s closing argument during her rebuttal argument. We accept the

State' s concession of error concerning the imposition of a fee for crime lab testing but hold that

the trial court did not abuse its discretion in imposing a fee for court- appointed counsel. We affirm

the conviction and remand for the trial court to strike the crime lab fee from the judgment and


sentence.
No. 44741 -0 -II



                                                              FACTS


         After Stephanie Hahn and Segovia -Barrera began a romantic relationship in 2006, Hahn

gave birth to their daughter, B. S., 1 in 2007. Hahn and Segovia -Barrera married on June 10, 2012,

so that he would not be deported. Segovia -Barrera moved out a few days later to stay with Hahn' s

mother. Hahn took B. S. to see Segovia -Barrera every weekend.

         After Segovia -Barrera left, B. S. became angry and started acting out. One day, while Hahn

and   B. S.    were     watching television, Hahn              saw    B. S. "    humping   on   something."   2 Report of


Proceedings ( RP)         at   164.    When Hahn asked B. S. what she was doing, B.S. pulled a nail polish .

bottle away from her            crotch.         B. S. said she did not want to tell and that " daddy showed her and

that [ Hahn     will]   be   mad at    her."      2 RP at 164. Hahn told B. S. that the behavior was not okay and

dropped the subject because B. S. seemed embarrassed.


          B. S. told Hahn later that day that Segovia -Barrera had sat on her grandmother' s couch with

her   and "[   s] he did like a humping movement, and she said that it hurt and that it puked on her and

it looked like     milk."       2 RP       at   165.   Hahn reported these statements to Child Protective Services


and the police.


          Segovia -Barrera was not immediately arrested, and Hahn' s boyfriend, James Griffin, did

not   feel that Hahn           and   her   children were     being    adequately     protected.    During a confrontation

between the two men, Griffin sprayed Segovia -Barrera with pepper spray and cut his throat with

a razor    blade.       Griffin then fled to California,              and       Hahn followed.     When they returned to

Washington, Hahn told the police that she, rather than Griffin, had assaulted Segovia -Barrera. She




1 Pursuant to General Order 2011 - 1, this opinion refers to the juvenile victim by initials to protect
the minor' s privacy interests.


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No. 44741 -0 -II



later admitted that B. S.' s statements about Griffin assaulting Segovia -Barrera, which contradicted

Hahn' s statements and implicated Griffin, were correct.


              After Segovia- Barrera'      s   arrest   for the   alleged    abuse of      B. S.,    the State charged him by

amended information with first degree child molestation and alleged that he used his position of

trust to        facilitate the   offense.       The court held a hearing to determine five- year -old B. S.' s

competency to testify, as well as the admissibility of her hearsay statements about the abuse to

Hahn         and several others.      B. S. testified that Segovia -Barrera touched her "[              w]here we go potty at"

with what " he goes           potty   at" on   her   grandmother' s couch.          1 RP   at   17. She said that it felt " like


milk and        like   puke," and     that Segovia -Barrera       cleaned   it up   with a   towel.     1 RP   at   17. She added


that even though he told her not to tell her mother, she told Hahn about the incident.


              Hahn testified about seeing B. S. rubbing herself against the bottle of nail polish and about

B. S.'   s    disclosures concerning Segovia -Barrera' s               abuse.   Hahn added that B. S. never made any

contradictory          statements.     B. S.' s grandmother, two aunts, and a family friend testified that B.S.

volunteered statements about the abuse to them. Detective Edward McGowan described a taped


forensic interview with B. S. in which she described the touching consistently with what she had

told others.



              The State argued that this testimony showed that B. S. was competent to testify and that her

statements were reliable. Defense counsel addressed the reliability issue by responding only that

it   seemed odd        that   each witness made " spontaneous"              statements     that     were " almost verbatim."    1


RP    at      66.   The trial court concluded that B. S. was competent to testify and that her hearsay

statements were reliable. The court entered written findings of fact and conclusions of law to


support its ruling.



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No. 44741 -0 -II



            At trial, B. S. testified about the incident, and her family members and friend testified about

her statements describing the abuse. The State played the video of B. S.' s forensic interview to the

jury, and a nurse practitioner who examined B. S. also described the child' s disclosures. She added

that her     physical examination of          B. S.'   s condition could       be   consistent with abuse.        Two police


officers testified for the defense about interviews with Segovia -Barrera and Hahn concerning

Griffin' s assault.


            The jury found Segovia -Barrera guilty as charged and also found, by special verdict, that

he   used    his   position of   trust to facilitate the     offense.     At sentencing, Segovia -Barrera asked the

court to impose a standard range sentence and to waive all fines and costs " because he will not


ever   be   able   to pay anything."        2 RP at 289. The trial court accepted the recommendations of the


State and the Department of Corrections and imposed an exceptional sentence of 120 months to


life. The      court also     imposed $ 1, 400 in legal financial          obligations      that included   a $   500 fee for


court- appointed counsel and a $ 100 crime lab fee.


            Segovia -Barrera     appeals     his   conviction.       He also appeals the trial court' s imposition of


court- appointed counsel and crime lab fees.


                                                            ANALYSIS


A. ADMISSIBILITY OF CHILD HEARSAY


            Segovia -Barrera challenges the trial court' s decision that B. S.' s hearsay statements

satisfied     the reliability    requirement       in the   child    hearsay   statute,   RCW 9A.44. 120.         This statute


provides for the admission of hearsay statements when the declarants are victims of sexual abuse

under   the    age of   10.    State   v.   Woods, 154 Wn.2d 613, 623, 114 P. 3d 1174 ( 2005).                     Hearsay is

admissible under the statute if:




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No. 44741 -0 -II


               1)      The        court   finds ...        that the time, content, and circumstances of the statement
              provide sufficient indicia of reliability; and
              2) The child either:
                              a)          Testifies at the proceedings; or
                              b)          Is   unavailable as a witness:               PROVIDED, That when the child is
                             unavailable as a witness, such statement may be admitted only if there is
                             corroborative evidence of the act.



RCW 9A.44. 120. Appellate courts will not reverse a finding that statements meet these statutory

criteria absent an abuse of discretion. Woods, 154 Wn.2d at 623. A trial court abuses its discretion


when     its decision is manifestly                        unreasonable or       based      on untenable reasons or grounds.            State v.


Borboa, 157 Wn.2d 108, 121, 135 P. 3d 469 ( 2006).


              To assess the reliability of child hearsay statements, Washington courts apply the nine Ryan

factors. State               v.   Swan, 114 Wn.2d 613, 647 -48, 790 P. 2d 610 ( 1990) (                            citing State v. Ryan, 103

Wn.2d 165, 175 -76, 691 P. 2d 197 ( 1984)),                              cert.   denied, 498 U.S. 1046 ( 1991).                The nine factors


are: (   1)    whether            the     child    had     an apparent motive          to lie, ( 2) the     child' s general character, (        3)


whether more                 than    one person            heard the     statements, (      4) the spontaneity        of   the   statements, (   5)


whether trustworthiness was suggested by the timing of the statement and the relationship between

the   child and             the   witness, (      6)   whether    the   statements contained express assertions of past                 fact, ( 7)


whether         the         child' s      lack     of   knowledge        could    be    established        by   cross -examination, (     8)    the


remoteness              of    the possibility that the child' s recollection was                            faulty,    and (     9) whether the


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

Woods, 154 Wn.2d                     at   623 ( citing Ryan, 103 Wn.2d                 at   175 -76).   Every factor does not need to be

satisfied;          it is   enough that          they    are   substantially   met.     Woods, 154 Wn.2d at 623 -24.


              Segovia -Barrera argues on appeal that the trial court did not apply all the Ryan factors and

disregarded B. S.'                s motive        to lie   by basing    its decision to      admit   the   child   hearsay " largely"   on     only
No. 44741 -0 -II



four findings, i.e., that B. S. understood her obligation to tell the truth, that she had the mental


capacity to receive an accurate impression of the alleged abuse, that she had sufficient memory,

and   that   she presented as   bright   and articulate.    Br.   of   Appellant   at   6. These findings addressed


B. S.' s competency rather than the reliability of her hearsay statements, however, and they reflected

the factors to determine competency set forth in State v. Allen, 70 Wn.2d 690, 692, 424 P.2d 1021

 1967).


          The trial court addressed the Ryan factors after finding B.S. competent to testify and after

describing     her disclosures to   family,    friends,    and    law   enforcement.          The trial court made the


following findings of fact:

                                                           32.


                  B. S. has no motive to lie about the sexual abuse.


                                                           33

                There is nothing in the general character of B. S. which indicates a
          propensity to lie.
                                                           34.


                   More than    one person   heard B. S.' s      statements and    B. S.[']    s statements

          remained consistent during her disclosures ... .

                                                           35.


                 B. S.' s statements were spontaneous. There was nothing leading or
          suggestive by any of the adults to whom B.S. spoke which would suggest the
          statements were anything other than spontaneous.

                                                           36.


                  There is nothing in the relationship between B. S. and the people to whom
          she disclosed that indicates any sort of untrustworthiness concerning the
          statements.




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No. 44741 -0 -II


                                                                       37.


                        B. S.' s disclosures contained express assertions of the sexual assault.


                                                                       38.


                        The   court    finds    no evidence     that   B. S.['] s recollection of the events is
        faulty and her testimony was not exaggerated or over amplified.

Clerk' s Papers ( CP)            at   36.   These findings show that the trial court properly based its decision

concerning the reliability and admissibility of B. S.' s hearsay statements on the Ryan factors.

         Segovia -Barrera also argues that the trial court failed to consider evidence showing that

B. S. had     a clear motive          to lie.     Segovia -Barrera asserts that her motive to lie was apparent from


the circumstances surrounding his relationship with Hahn, Hahn' s relationship with Griffin, and

Hahn' s admission that she coached B. S. to lie. This argument overlooks the fact that this evidence


was   not     introduced         during     the   child    hearsay hearing.        This argument also misrepresents the


evidence regarding Hahn' s alleged coaching, which unfolded as follows.

        The defense revealed in a trial brief filed more than a month after the child hearsay hearing

that Segovia -Barrera believed Hahn had coached B. S. into accusing him of sexual abuse so that

she   could get        him    out of    her life     and   be   with    Griffin.   However, the record does not support


Segovia -Barrera' s claim. The only reference in the record with regard to B. S. being coached was

made in relation to B. S.' s statements about Griffin' s assault on Segovia- Barrera.2 Thus, contrary


2 In an offer of proof, an officer explained that the reference to coaching came when he questioned
Hahn about her statement regarding the assault on Segovia -Barrera and how it conflicted with
B. S.' s description:


         I   asked      her if   she was
                                             telling   me   that [ B. S.]
                                                           was lying and her reply was that what
             B. S.]    had apparently reported was not true and she believes someone else may
         have         coached [   B. S.] to say that.




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No. 44741 -0 -II



to Segovia -Barrera' s current assertion that Hahn admitted to coaching B. S. about the sexual abuse

disclosures, there was no such admission. Rather, any reference to B. S. being coached was made

in the context of Griffin' s assault on Segovia -Barrera.

         Segovia -Barrera also complains that the trial court failed to consider the suspicious timing

of B.S.' s disclosures, as shown by the fact the disclosures came only after her parents separated.

The trial testimony revealed that Segovia -Barrera and Hahn had a troubled relationship and that

they   married       only to     prevent     his deportation.           When they separated a few days later, Segovia -

Barrera went to stay with B. S.' s grandmother, which was where the abuse allegedly occurred. We

see nothing suspicious about the timing of B. S.' s subsequent disclosures.

         Based on the evidence introduced at the child hearsay hearing, the trial court properly found

that B. S. had no motive to lie, that there was nothing to suggest that her spontaneous and consistent

statements to several adults were not trustworthy, and that no evidence showed that her memory

was    faulty   or   that her    testimony         was exaggerated.            Even if the additional evidence introduced at


trial is somehow relevant to the trial court' s pretrial ruling, it does not undermine the court' s

findings regarding the reliability                 of   B. S.'   s statements.    We see no abuse of discretion in the trial


court' s determination that B. S.' s hearsay statements about the sexual abuse were reliable.




                I told her that [ B. S.] had told us that [ Hahn] stayed in the car while Griffin had
             been   the   one   to   go   in the   yard.     Ms. Hahn said that wasn' t right, she had already
             told   me    what    had happened. . .               She   said    that   what [   B. S.]   described had not
             happened, someone must have coached her to tell that story.

2 RP    at           The trial court declined to admit this explanation or further testimony about
             251, 252 -53.
coaching because it pertained to the assault and not to the alleged sexual abuse:



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No. 44741 -0 -II



B. PROSECUTORIAL MISCONDUCT


         Segovia -Barrera next argues that the prosecuting                          attorney committed prejudicial

misconduct during closing argument when she " repeatedly instructed" the jurors to consider what

they   would   do if B. S.   were   their child    and urged       them to    put   themselves in her   shoes.   Br. of


Appellant at 4.


         A defendant who alleges prosecutorial misconduct during closing argument first must

establish that the statements were improper. State v. Emery, 174 Wn.2d 741, 759, 278 P. 3d 653

2012).    Once a defendant establishes that a prosecutor' s statements were improper, we must


determine whether the defendant was prejudiced. Emery, 174 Wn.2d at 760. If the defendant did

not object at trial, 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.

Emery, 174 Wn.2d at 760 -61.

         During closing argument, a prosecuting attorney has wide latitude to argue reasonable

inferences from the     evidence.      State v. Thorgerson, 172 Wn.2d 438, 448, 258 P. 3d 43 ( 2011).


Remarks made in response to defense arguments are not improper as long as they do not go beyond

what is necessary to respond to the defense. State v. Dykstra, 127 Wn. App. 1, 8, 110 P. 3d 758

2005),   review    denied, 156 Wn.2d 1004 ( 2006).                We review allegedly improper remarks in the

context of   the   entire argument.     State v. Gregory, 158 Wn.2d 759, 841, 147 P. 3d 1201 ( 2006),

overruled on other grounds,         State   v.   W.R., Jr.,         P. 3d ,         No. 88341 -6, 2014 WL 5490399


 Wash. Oct 30, 2014).


         The   statements at   issue    occurred      during      the State' s rebuttal   argument.     The State was


responding to defense counsel' s argument about Griffin' s assault and Haim' s decision to join



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No. 44741 -0 -II



Griffin in California, and how those facts supported the defense theory that B. S. was coached. The

State' s rebuttal included a single reference to what the jurors would do if B. S. were their child and


a single reference to the jurors putting themselves in her shoes. These statements, in context, are

as follows:


                   You know the      assault   on     Mr. Segovia is —is unfortunate and it is not

       something that is condoned under the law to take the law into your own hands. But
       what   does that tell    you?    What do most people say if you start talking about
       what they would do if somebody hurt their kid. And why would the mother go
       to California? Well, you know, she — she didn' t necessarily make the best decisions

       here, but the kids were in a safe place. She was worried about what was going [ to]
       happen with this other case, and then she went to the police and she made this false
       confession because she didn' t want to see her friend turned boyfriend go to prison
       for standing up for her daughter... .
                   We are not here to decide whether or not Ms. Hahn made good decisions in
       this case. That is obviously being dealt with in another situation. What you' re here
       to decide is do    you   believe [ B. S.].     And do you believe the things that she has said
       over and over again.        Does that— the child that sat here and testified to you, does
        she seem coached?        Five years old. And you can put yourself in her shoes, how
       you would feel as adults taking that seat in front of strangers and talking about
       something that personal. You judge her credibility.

2 RP at 272 -73 ( emphasis added).


       The comments highlighted above were a reasonable response to defense counsel' s


argument.     These comments neither exceeded what was necessary to make that response nor

constituted   an   improper   appeal    to the      jury' s   passions   or prejudices.   Because there was ' no


misconduct, we need not address the issue of prejudice.


C. LEGAL FINANCIAL OBLIGATIONS


        Segovia -Barrera argues that the trial court erred in imposing discretionary legal financial

obligations ( LFOs) without      considering his ability to pay. The obligations he challenges are the


 500 fee for court- appointed counsel and the $ 100 crime lab fee. We review a trial court' s decision


to impose discretionary LFOs under the clearly erroneous standard. State v. Calvin, 176 Wn. App.


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No. 44741 -0 -II



1, 302 P. 3d 509, 316         P. 3d 496, 508      n. 1 (   2013).     Clear error exists when a review of the record


leads to a definite conviction that a mistake was committed. Calvin, 316 P. 3d at 508 n. 1 ( quoting

Schryvers    v.   Coulee    Cmty. Hosp., 138 Wn. App. 648, 654, 158 P. 3d 113 ( 2007)).

         Under RCW 10. 01. 160( 3), "[            t]he court shall not order a defendant to pay costs unless the

defendant is      or will   be   able   to pay them.       In determining the amount and method of payment of

costs, the court shall take account of the financial resources of the defendant and the nature of the

burden that       payment      of costs    will   impose."          Section 2. 5 of Segovia -Barrera' s judgment and


sentence cited      RCW 10. 01. 160 in stating that "[ t]he            court has considered the total amount owing[,]

the defendant'      s   present   and    future ability to pay legal financial          obligations[,]    including the

defendant'   s    financial   resources[,]   and the likelihood that the defendant' s status will change. "3 CP

at 60.


         The trial court imposed the challenged fees after Segovia -Barrera asked for a waiver of all


LFOs because he          would never       be   able   to pay them.       He provided no support for his assertion,


however, and the record shows that he has been employed in the past and has been able to pay

some child support and other court costs.                   Consequently, the record does not show that the trial

court' s imposition of a $ 500 fee for court- appointed counsel was clearly erroneous.

         The trial      court also   imposed      a crime    lab fee. See RCW 43. 43. 690( 1) ( when a person has


been convicted of a crime and a state crime laboratory analysis was performed, the court shall levy




3 Segovia -Barrera contends that the trial court failed to check the box in his judgment and sentence
stating that it had       considered      his ability to pay LFOs, but this         contention   is   not accurate.   The
unchecked boxes relate to additional specific findings concerning restitution, incarceration costs,
and emergency response costs.




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No. 44741 -0 -II


a   fee   of $100).   However, no crime lab analysis was completed. Therefore, we accept the State' s


concession of error regarding the crime lab fee.

            Accordingly, we affirm the defendant' s conviction and the imposition of the fee for court-

appointed counsel. We remand so that the trial court can strike the crime lab fee from the judgment


and sentence.




           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.




    We concur:




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