STATE v. CORBETT

ragraph ¶26 Inconsistencies on what specific substance (or substances) Corbett placed on his penis during the abuse were not extreme. Corbett went to great length at trial, and on appeal, to point out that, at trial, J.O. testified that he only ever put "frosting" or "icing" on his penis but that prior to the trial, she told people that he used "whipped cream" or "chocolate." Corbett overlooks a significant common thread between all these substances — all of them are sweet and sugary substances. That over a period of several years J.O. may have mentioned slightly different substances that were similar in nature is not an extreme inconsistency, especially when considering that J.O. was only six or seven at the time of the abuse and that her eyes were closed during each incident except for the last one.

We note that Corbett himself sometimes confuses J.O.'s testimony about the various incidents when he alleges that J.O. contradicted herself. For example, in his brief, Corbett claims that J.O. initially testified that she could not remember if Corbett put anything on his penis and then changed her testimony, stating that he had put frosting on it. But J.O.'s testimony that she could not remember Corbett putting anything on his penis was in reference to the candy games, whereas her memory of frosting on the penis was in reference to a karate lesson. Accordingly, J.O.'s statements at trial did not conflict with one another.

¶27 Given the limited discrepancies in J.O.'s testimony, Alexander is distinguishable. Here, J.O.'s inconsistencies are (1) whether Corbett threatened her if she told anyone about the abuse and (2) which sweet substance Corbett sometimes put on his penis. This contrasts with Alexander where the victim provided testimony that contradicted other substantive evidence on whether the abuse occurred at all. 64 Wn. App. at 149-50. The relative temporal references that J.O. offered during the trial for when the abuse occurred were uncontradicted and she never recanted or suggested in any way that Corbett did not sexually abuse her at least four separate times. Accordingly, sufficient evidence supports each of Corbett's four convictions and we affirm them all.

JURY INSTRUCTIONS: DOUBLE JEOPARDY AND UNANIMITY

¶28 Next, Corbett argues that, by allowing the jury to convict him four times based on a single act, the jury instructions did not adequately protect his right to be free from double jeopardy. Specifically, Corbett argues that the trial court failed to instruct the jury that it must find separate and distinct acts supporting each count and enter unanimous verdicts based on these separate and distinct acts. Corbett requests that we vacate three of his convictions on this ground. But Corbett proposed the jury instructions he now seeks to challenge, and he has failed to preserve this issue for our review. Moreover, our review of the record does not support Corbett's claim that he was prejudiced by the trial court's instructions when taken as a whole,

¶29 Initially, we note that Corbett did not comply with CrR 6.15(c) and failed to timely object to the jury instructions he seeks to challenge for the first time on appeal. In fact, Corbett actually proposed the very jury instructions on which he relies for his double jeopardy argument. Accordingly, Corbett invited any error in addition to failing to comply with CrR 6.15(c). State v. Phelps, 113 Wn. App. 347, 353, 57 P.3d 624 (2002) ("The invited error doctrine applies . . . where the defendant engaged in some affirmative action by which he knowingly and voluntarily set up the error."); see also State v. Henderson, 114 Wn.2d 867, 870-71, 792 P.2d 514 (1990) (applying the invited error doctrine even when the alleged error is of constitutional magnitude).

¶30 In addition, when read together, the trial court's instructions accurately informed the jury about its duty. State v. Jackman, 156 Wn.2d 736, 743, 132 P.3d 136 (2006) (stating that challenged jury instructions are subject to de novo review and considered in the context of the jury instructions as a whole). The four separate "to-convict" instructions listed all the required elements of first degree child rape. The trial court instructed the jury that "[a] separate crime is charged in each count," that each count should be decided separately, and that verdicts for one count should not influence verdicts on the other counts. CP at 34. The trial court also instructed the jury that "the State relies upon evidence regarding a single act constituting each count" and that "[t]o convict [Corbett] on any count, [they] must unanimously agree that this specific act was proved." CP at 35 (emphasis added). Read together, the jury instructions accurately informed the jury that it must decide each count separately and that its verdicts must be unanimous.

¶31 Moreover, the entire trial focused on evidence and distinguishing characteristics of four separate and distinct instances of abuse. Each incident was given a separate descriptive identifying name that both counsel used in referring to the event. During closing arguments, the State clearly connected the trial evidence of four separate incidents to the four separate "to-convict" instructions. The jury instructions in the context of this case clearly conveyed to the jury that there were four counts related to four specific incidents of abuse that they were to consider.

Corbett argues that we cannot consider the State's closing arguments because "the State cannot cure through argument a double jeopardy violation that arises from defective jury instructions." Br. of Appellant at 15 (citing State v. Berg, 147 Wn. App. 923, 935-36, 198 P.3d 529 (2008) I. But the State's closing arguments did nut address the merits of Corbett's double jeopardy claim, rather, they highlight difficulties that Corbett has in showing prejudice as part of a constitutional manifest error analysis and presumably excuse the failure to object during the State's closing argument. But Corbett proposed the instruction he now seeks to challenge and the manifest error analysis does not apply.

¶32 Reading all the jury instructions and reviewing the evidence presented at trial along with the State's and Corbett's closing arguments, any reasonable jury would have known that it must find separate and distinct acts for each of the four guilty verdicts that it entered. Accordingly, Corbett has failed to show that the instructions he requested prejudiced him.

¶33 We recognize that a series of cases over the years has addressed a challenge similar to the one Corbett attempts to untimely raise here. Namely, State v. Carter, 156 Wn. App. 561, 234 P.3d 275 (2010), State v. Berg, 147 Wn. App. 923, 198 P3d 529 (2008), State v. Borsheim, 140 Wn. App. 357, 165 P.3d 417 (2007), State v. Hayes, 81 Wn. App. 425, 914 P.2d 788, review denied, 130 Wn.2d 1013 (1996), and State v. Ellis, 71 Wn. App. 400, 859 P.2d 632 (1993), squarely address or touch on the merits of Corbett's jury instruction question. But the defendants in these cases did not propose the instruction they later sought to challenge for the first time on appeal. Moreover, where, as here, the context of the presentation of evidence and argument at trial eliminates a strained, prejudicial reading of an instruction, the jury's verdict is clear and any error is harmless.

We note that Corbett does not raise an ineffective assistance of counsel claim related to the proposing of the jury instructions and that even if raised, such a claim would fail for lack of prejudice.

PROSECUTORIAL MISCONDUCT

¶34 Next, Corbett contends that the State committed misconduct at two different points during its rebuttal closing argument. Specifically, he argues that the State (1) abused its position and experience from other sex abuse cases by calling upon the jury to trust the State's judgment as to his guilt and (2) improperly told the jury they "would not be able to sleep at night if they did not decide that the state's charges were true." Br. of Appellant at 25. We disagree.

¶35 A defendant claiming prosecutorial misconduct bears the burden of establishing the impropriety of the prosecuting attorney's comments and their prejudicial effect. State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997), cert. denied, 523 U.S. 1007 (1998). In determining whether prosecutorial misconduct occurred, we first evaluate whether the prosecuting attorney's comments were improper. State v. Reed, 102 Wn.2d 140, 145, 684 P.2d 699 (1984). If the prosecuting attorney's statements were improper, and the defendant made a proper objection to the statements, then we consider whether the statements prejudiced the jury. See Reed, 102 Wn.2d at 145. Prejudice is established only where "`there is a substantial likelihood the instances of misconduct affected the jury's verdict.'" State v. Dhaliwal, 150 Wn.2d 559, 578, 79 P.3d 432 (2003) (quoting State v. Pirtle, 127 Wn.2d 628, 672, 904 P.2d 245 (1995), cert. denied, 518 U.S. 1026 (1996)). Absent a proper objection and a request for a curative instruction, the defense waives a prosecutorial misconduct claim unless the comment was so flagrant or ill intentioned that an instruction could not have cured the prejudice. State v. Russell, 125 Wn.2d 24, 86, 882 P.2d 747 (1994), cert. denied, 514 U.S. 1129 (1995).

¶36 We review a prosecutor's allegedly improper comments in the context of the total argument, the issues in the case, the evidence addressed in the argument, and the jury instructions given. Dhaliwal, 150 Wn.2d at 578; Brown, 132 Wn.2d at 561. A prosecutor has wide latitude in closing argument to draw reasonable inferences from the evidence and to express such inferences to the jury. State v. Hoffman, 116 Wn.2d 51, 94-95, 804 P.2d 577 (1991).

¶37 Corbett first challenges the following statements from the State's rebuttal:

[PROSECUTOR:] Defense counsel tells you that, you know, this is really a strange set of facts. Well, no offense, but you guys haven't read hundreds of police reports about sexual assaults that happen.

[DEFENSE]: Objection, Your Honor, this is outside —

THE COURT: It's argument. Overruled.

[PROSECUTOR]: You don't know what happens in these types of cases. What you do know is what was testified to. What you do know is the facts of this case. You know that it's not uncommon for a child who is a victim of rape to wait to tell what happened. You know it's not uncommon for that child to give different facts along the way. She is feeling out the waters. She has seen her world getting destroyed. She is asking for help. Her own mother did nothing.

7 RP at 889.

¶38 Corbett argues that (1) the State used its position and experience from other sex abuse cases to call on the jury to trust the State's judgment as to his guilt and (2) referenced evidence outside of the record. The State's comments about other cases are extremely vague and merely reflect the unfortunate reality that sexual abuse and sexual assault cases are commonplace. Taken in context, the State was actually rebutting Corbett's closing argument assertions that the facts of this case are "unusual" and "bizarre," raising concerns about J.O.'s credibility. The State rebutted Corbett's argument by indirectly highlighting the testimony of several expert witnesses who explained they have experience with hundreds of child sex abuse cases and did not feel there was anything unusual about J.O.'s development of the facts of her abuse since her first disclosure. Essentially, the State reminded the jurors that they are not experts on sex abuse cases but that expert witnesses testified at trial about the normalness of J.O.'s alleged abuse. By doing this, the State was refuting Corbett's closing argument. And because of the indirect references to experts who testified at trial, it appears that the State was not referring to itself as the reader of hundreds of other prior sex abuse reports but, rather, reminding the jury about the extent of the experts' experience. Corbett has failed to show that the State's arguments were improper.

¶39 Moreover, Corbett failed to show any prejudice that did, or could have, stemmed from these statements, especially in light of a jury instruction that "[t]he lawyer's remarks, statements, and arguments are . . . not evidence" and that the jury must disregard any "remark, statement, or argument that is not supported by the evidence or the law." CP at 29. We presume a jury follows the court's instructions. State v. Swan, 114 Wn.2d 613, 661-62,790 P.2d 610 (1990), cert. denied, 498 U.S. 1046 (1991).

¶40 Corbett also challenges some of the State's arguments made later during its rebuttal:

You are the seekers of truth. You are the seekers of justice. You are to determine what the truth is, and you are to determine if that man sitting in that chair stuck his penis in her mouth, and how many times he did it.

You have to be able to sleep with that decision at night for both the Defendant and for [J.O.].

7 RP at 891.

¶41 Because Corbett did not object to these statements or request a curative jury instruction, the "flagrant or ill intentioned" standard applies. Russell, 125 Wn.2d at 86. Corbett provides no argument explaining his perceived prejudice of this statement, noting in his brief only that he "did not object to the argument that the jurors would not be able to sleep at night" and baldly asserting that "[t]he statement regarding not being able to sleep at night" was flagrant and ill intentioned. Br. of Appellant at 25. We do not review assigned errors where arguments for them are not adequately developed in the briefs. State v. Dennison, 115 Wn.2d 609, 629, 801 P.2d 193 (1990).

¶42 We note that Corbett's paraphrasing of the State's argument mischaracterized the point that the State made. The trial transcripts show that the State was reminding the jury that it needed to be careful in reaching a decision for both Corbett's and J.O.'s sake; urging the jury to be careful and deliberate in reaching its decision for the sake of all concerned is not misconduct. Accordingly, Corbett's prosecutorial misconduct claim fails.

SENTENCING: CRIME-RELATED PROHIBITION

¶43 Last, Corbett challenges sentencing conditions that prohibit his contact with all minors insofar as it prohibits his contact with his biological minor children. Corbett has two sons who were ages 10 and 14 at the time of the February 2009 trial; his sons live with their mother. Specifically, Corbett argues that barring contact with his minor sons is not a valid crime-related prohibition because the State failed to show he is a danger to his sons. We disagree.

¶44 Former RCW 9.94A.505(8) (2003) authorizes the trial court to impose "crime-related prohibitions" as part of any sentence. "`Crime-related prohibition' means an order of a court prohibiting conduct that directly relates to the circumstances of the crime for which the offender has been convicted, and shall not be construed to mean orders directing an offender affirmatively to participate in rehabilitative programs or to otherwise perform affirmative conduct." Former RCW 9.94A.030(12) (2002). We review crime-related prohibitions for an abuse of discretion. State v. Riley, 121 Wn.2d 22, 37, 846 P.2d 1365 (1993). Abuse of discretion occurs when a decision is manifestly unreasonable or exercised on untenable grounds or for untenable reasons. State v. Ancira, 107 Wn. App. 650, 653, 27 P.3d 1246 (2001).

¶45 Parents have a fundamental right to raise their children without State interference. See In re Custody of Smith, 137 Wn.2d 1, 15, 969 P.2d 21 (1998) (recognizing a parent's right to rear his or her children without State interference as a constitutionally-protected fundamental liberty interest), aff'd sub nom. Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000); see also Meyer v. Nebraska, 262 U.S. 390, 399, 43 S. Ct. 625, 67 L. Ed. 1042 (1923). But parental rights are not absolute and may be subject to reasonable regulation. Prince v. Massachusetts, 321 U.S. 158, 166, 64 S. Ct. 438, 88 L. Ed. 645 (1944). Limitations on fundamental rights must be "reasonably necessary to accomplish the essential needs of the state and the public order." State v. Riles, 135 Wn.2d 326, 349-50, 957 P.2d 655 (1998) (concluding that a prohibition on a convicted sex offender's contact with minors was not a justified limitation on freedom of association rights where the victim was not a minor (citing Riley, 121 Wn.2d at 37-38)), abrogated on other grounds by State v. Sanchez Valencia, 169 Wn.2d 782, 239 P.3d 1059 (2010). Sentencing courts can restrict fundamental parenting rights by conditioning a criminal sentence if the condition is reasonably necessary to further the State's compelling interest in preventing harm and protecting children. Berg, 147 Wn. App. at 942; Ancira, 107 Wn. App. at 654; see State v. Letourneau, 100 Wn. App. 424, 438, 997 P.2d 436 (2000); see also In re Dependency of C.B., 79 Wn. App. 686, 690, 904 P.2d 1171 (1995) (stating prevention of harm to children is a compelling State interest), review denied, 128 Wn.2d 1023 (1996).

¶46 The decision in Berg by Division One of this court is instructive, and we note some important similarities with the current case. A jury convicted Berg of third degree child rape and two counts of third degree child molestation after he sexually molested a 14-year-old girl (A.A.) who lived with him. Berg, 147 Wn. App. at 927-30. Berg parented A. A., but she was not his biological child. Berg, 147 Wn. App. at 927, 942-43. Berg challenged the reasonableness of a no-contact order covering all minor females, including his then two-year-old biological daughter (A.B.). Berg, 147 Wn. App. at 927, 941. Division One upheld the no-contact order as a reasonable crime-related prohibition, stating,

A.A. lived in the home where Berg was acting as her parent when the abuse occurred. By allowing Berg to be alone with A.B. who also live[s] in the home as his child, the court reasonably fear[s] that it would be putting A.B. in the same situation that A.A. was in when Berg sexually abused her. Thus, the trial court's order restricting contact was reasonably necessary to protect A.B.

Berg, 147 Wn. App. at 942-43.

¶47 Here, Corbett's sexual abuse of J.O. is analogous to Berg's actions. J.O. lived with Corbett as a stepdaughter for approximately seven months when she was six to seven years old. Just as Berg did, Corbett abused his parenting role by sexually abusing a minor in his care. There is no distinction between Berg's actions and Corbett's actions. We affirm the no-contact order based on the Berg court's analysis. The no-contact order is reasonably necessary to protect Corbett's children because of his history of using the trust established in a parental role to satisfy his own prurient desire to sexually abuse minor children. See Berg, 147 Wn. App. at 943-44.

¶48 Because we apply Berg to Corbett's case, we do not address arguments based on Letourneau, which is factually distinguishable. In Letourneau, Division One of this court struck down a no-contact order related to biological children because insufficient evidence existed to show it was reasonably necessary to protect her own children. 100 Wn. App. at 441-42. Letourneau did not have sex with a family member or with a child living in her home and evaluators did not find her to be a pedophile. Berg, 147 Wn. App. at 943 (citing Letourneau, 100 Wn. App. at 441-42). In contrast, Corbett's crimes were perpetrated against a minor he parented. The fact that Corbett sexually abused a child family member distinguishes Letourneau and provides the necessary support to impose a prohibition on contact with his own children.

¶49 Insofar as Corbett argues that the no-contact order is not narrowly tailored to serve the State's interest in protecting children because it applies to his sons when his victim was a girl, we disagree. Here, the trial court had ample evidence to apply the no-contact order to all of Corbett's children regardless of their sex. The State showed that all of Corbett's children are at risk. Corbett's victim was a child whom he parented. Corbett committed the sexual abuse of J.O. while other children were in the home, specifically his then three-and-a-half-year-old stepson, D.O. And although the crimes for which Corbett was convicted involved a minor girl, his method of sexual intercourse was not gender specific. These facts sufficiently support the sentencing court's decision to prohibit Corbett's contact with all children, not just other people's children and not just his daughters, if he had any.

¶50 We also reject Corbett's reliance on Riles and State v. Julian, 102 Wn. App. 296, 9 P.3d 851 (2000), review denied, 143 Wn.2d 1003 (2001), for the proposition that his sons do not fall within his class of victims and, thus, that a prohibition on contact with his sons is not directly related to his crime. In Riles, the court struck a no-contact order with minors where the defendant's victim was a 19-year-old-woman because it found no relationship between raping an adult and a future threat to minor children. 135 Wn.2d at 349-50. Specifically, our Supreme Court held that minor children were not within the same class of individuals as the victim, nor did children have a "relationship to the offender's crime." Riles, 135 Wn.2d at 350. In Julian, Division Three of this court upheld a no-contact order with minors related to a first degree child molestation conviction of a four-year-old child but struck a prohibition on alcohol use because the trial court failed to make a connection between Julian's crime and alcohol use. 102 Wn. App. at 298-99, 305-06.

¶51 Here, Corbett's convicted crime is the sexual abuse of J.O., a child whom he parented. Because Corbett's victim was a minor girl whom he parented, his classes of victims are "minors he parents" in addition to "minor girls." Corbett's crime establishes that he abuses parental trust to satisfy his own prurient interests. The trial court's no-contact order prohibiting Corbett from having contact with his biological children is directly related to his crime because they fall within a class of persons he victimized. Accordingly, Riles and Julian do not apply.

¶52 Moreover, under our state's domestic relation laws, a parent's residential time with a child can be limited if the parent engages in certain behavior including sexual abuse of a child. RCW 26.09.191(2)(a). This reason alone could result in a limitation on Corbett's parenting rights under our state's civil laws. We see no reason that a criminal trial court cannot similarly consider such circumstances to justify a limiting contact order with one's own children.

¶53 Accordingly, we hold that the trial court did not abuse its discretion when imposing as a condition of Corbett's sentence a prohibition on contact with all minor children, including his biological children. We affirm this sentencing condition as a valid crime-related prohibition that does not unduly burden Corbett's fundamental parenting rights. We also affirm his convictions.

We note that, under Corbett's sentencing conditions, he can have supervised visits with his children so long as the visits are preapproved. Condition 25 states, "No contact with any minors without prior approval of the DOC/CCO and Sexual Deviancy Treatment Provider." CP at 84 (emphasis added). In addition, by the time Corbett is eligible for community custody release, his children will no longer be minors and his contact with his children will no longer be limited.

ARMSTRONG and HUNT, JJ., concur.