State Of Washington, V. Darrionte Jvon Konkel

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, No. 87825-5-I

Respondent,

DIVISION ONE

v.

UNPUBLISHED OPINION

DARRIONTE JVON KONKEL,

Appellant.

COBURN, J. — In seventh grade, 14-year-old K.S. used her school-provided laptop to meet Darrionte Konkel on a dating website. The State charged Konkel with three counts of rape of a child in the third degree. The jury found Konkel guilty of digitally penetrating K.S. the first time the two met outside K.S.’ middle school, but not guilty as to alleged acts the State relied on for the other two counts. Konkel asserts several errors in this appeal: (1) the admission of a business records certificate of authenticity violated Konkel’s right to confrontation; (2) the trial court improperly applied the rape shield statute; (3) the court should have excluded chat messages between K.S. and Konkel as inadmissible hearsay; (4) the prosecutor committed misconduct during closing; and (5) multiple community custody conditions are improper. Because the trial court found Konkel indigent, we remand for the court to strike a non-mandatory financial obligations requirement in community custody condition 6. We also remand for the trial court to readdress community custody condition 12 such that it is compliant with article

I, section 7 as articulated in State v. Cornwell, 190 Wn.2d 296, 306, 412 P.3d 1265 (2018). In all other respects we affirm.

FACTS

K.S. was adopted from a Russian orphanage when she was 16 months old and suffers from fetal alcohol syndrome from her birth mother. As a result, she struggles with executive functioning, such as multistep instructions. K.S. had an individual education program because she needed extra support at school.

In May 2017 K.S. was a 14-year-old in seventh grade, a year older than other students in her grade. K.S.’ school counselor, Valeree Vandermolen, and father testified that K.S. was more sexually curious than other students. K.S.’ computer searches and a PowerPoint demonstrated that she was sexually “fixated” on black boys, which included looking up “having sex with black men.” K.S. also enjoyed playing a specific video game where she could create a prostitute avatar. K.S.’ father took K.S.’ phone away after finding out that she had sent inappropriate pictures of herself to strangers.

While in seventh grade, K.S. used her school-issued laptop to make a dating profile on a computer application called “MeetMe,” which the school’s firewall did not block. 1 On “MeetMe” users can find people in their area after creating a profile. An image of K.S.’ profile listed her age as 20. 2 K.S. met Konkel through “MeetMe.” The two first conversed through “MeetMe,” but later converted to chatting on Google Chat, 3 a Google messaging platform. Before meeting Konkel in person, K.S. told Konkel she was 14 years old.

1 The laptop had some firewalls preventing students from using certain social media applications and video gaming.

2 K.S. testified that she listed her age as 17 years old on her “MeetMe” profile.

3 K.S. testified that this messaging platform used to be called “Google Hangouts.”

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K.S. and Konkel met in person for the first time outside her middle school. The two walked around the school chatting until it started getting dark. Then, the two sat on a bench together and began kissing and cuddling before Konkel digitally penetrated K.S.’ vagina. Thereafter, Konkel dropped K.S. off at her home. On the afternoon of May 20, 2017, Konkel and K.S. communicated through text messaging on Google Chat. Ex. 6. The screen capture of the conversation that was admitted at trial starts with what appears to be mid-conversation with a message from K.S.:

[K.S.:] I will wich mostly be tomorrow

[Konkel:] Yeah ill see u tomorrow we cant do stuff like that in public tho

[K.S.:] it was fun [Konkel:] Yeah your pretty af [K.S.:] ur hot af [Konkel:] You think so [K.S.:] 100% [Konkel:] Good i was hoping youd like me hope i didn’t make u nervous

[Konkel:] What felt good [K.S.:] ur hand inside me ur lips was so soft baby [Konkel:] Your lips are soft too and your pussy i was like dam i was tryna taste it

[K.S.:] i can tast it all u want u can *

[Konkel:] You sure youll let me?

[K.S.:] yes i will [Konkel:] Youve never done stuff like that before tho

Ex. 6. Vandermolen discovered K.S.’ relationship with Konkel in May 2017 after she found K.S.’ journal in a classroom detailing interactions she had with a male. 4 Vandermolen reported what she had seen in the messages to the local police

4 While Vandermolen was testifying about the journal, defense interjected with a hearsay objection, which the court sustained.

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department on May 24, 2017. According to K.S., school officials, through their monitoring system, saw conversations on Google Chat between Konkel and K.S. identifying their favorite sexual positions and K.S. got called “into the office” about it. 5 The same day the police were contacted, the school also called K.S.’ father and advised him to take K.S. to the hospital to be tested for sexual assault, which he did that same day.

At the hospital, a forensic nurse examiner conducted a sexual assault evaluation on K.S. During the exam, K.S. consented to a physical assessment and swab collection, except an internal anal swab. During the exam, K.S. mentioned rectal soreness and stated that her and Konkel met in person on two occasions and on the second occasion they had penile-vaginal sexual intercourse. The forensic nurse testified that K.S.’ affect was flat during the exam. That same evening, K.S. and Konkel communicated on Google Chat. Ex. 7.

[K.S.:] so bored [Konkel:] Me too im at home tho tryna get some house work done [K.S.:] damn Im so exited fot tomorrow [Konkel:] Whys that [K.S.:] toorrow if thursday Thursday*

[Konkel:] Yes I know it is [K.S.:] and…… [Konkel:] And im seeing u [K.S.:] yeah….

[Konkel:] What [K.S.:] I can’t see u I got std tested the school snitched I’m trying to make up lies so u won’t go to jail.

[Konkel:] Yo wtf????

[K.S.:] I went to the hospital [Konkel:] And what happened [K.S.:] They took my blood and took samples [Konkel:] Ok so 5 The exhibit of these Google Chat messages was not admitted for lack of foundation.

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[K.S.:] They took my dna [Konkel:] So i gotta stop talking to u huh… [K.S.:] No [Konkel:] Obviously im not risking shit [K.S.:] I have feelings for you [Konkel:] So I cant get in trouble

[K.S.:] Do u have any std,s????

[Konkel:] No i dont plus i used a condom so [K.S.:] U r honest u won’t get busted [Konkel:] What?? Well im fr im not risking shit sorry [K.S.:] I’m gonna have a good lie so u won’t go to jail [Konkel:] Still i shouldnt have to deal with this kind of bs [K.S.:] True I really don’t care if I die as long as I get to be with you [Konkel:] Stop i cant be with someone if people at ur school gonna be talking shit

[K.S.:] No one is it’s just the school [Konkel:] And that’s a big deal U dont get it cuz u canr get in trouble [K.S.:] I don’t càre about me getting busted [Konkel:] Im the one who will get in trouble not u [K.S.:] I know u don’t believe me when I say that I am lying to people even the cops for you [Konkel:] U shouldnt have even been talking about me at all To anyone

[K.S.:] I wasn’t The chrome book happened the t can see shit [Konkel:] No one would know if you didnt say snything [K.S.:] U don’t get school lap tops well I know u hate me RN I respect you so imma go it’s really fucking hard to leave you it really fucking is

Ex. 7. The next day, May 25, K.S. participated in a child forensic interview. In this interview, K.S. stated that the first time she met Konkel in person, they only kissed and cuddled. She also said in the interview that she went to Konkel’s apartment the second time they met in person and that was the last time she saw him. K.S. and Konkel again communicated on Google Chat on May 25.

[K.S.:] I CANT GET YOU OUT OF MY FUCKING HEAD imam c you today period

[Konkel:] No not if ur talking to cops and stuff

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Ex. 7. The next Google chat in the record includes their conversation on May 31.

[K.S.:] im not I did not TALK to any cops i promise if i did u would of ben in jail by now but ur not in jail i fucking miss you so bad pluses no one is laying a hand on you

[K.S.:] I have a vary strong feeling for you [Konkel:] Who did u talk to then [K.S.:] the docters they wanted to know if I was ok [Konkel:] And what did they say [K.S.:] can I call u [Konkel:] No im busy right now [K.S.:] ok but they took every thang and im on my dADA LAP TOP I cant go on any internet no more dads* but whats ur number so I can call u later pluse they said they r making no stds i don’t got much time

i took pills so we r good [Konkel:] Wait pills for what What u talkin bout

[K.S.:] so i wont get any stds [Konkel:] U shouldnt even have any stds [K.S.:] i know i don’t they just wanna make sure im safe [Konkel:] Why did u go to them [K.S.:] to make sure i did not get an std [Konkel:] So u think that u had something?

[K.S.:] no they wanted to make sure i did not catch anything so i did not

and I need ur number so I can call u some time

Ex. 7. K.S. asked to call Konkel multiple times because she lost internet privileges and was able to communicate on Google Chat because she snuck onto her father’s laptop. Ex. 7. At first, Konkel declined but he eventually gave K.S. his number and told her to call him later that night. Ex. 7. On June 2 K.S. and Konkel again communicated via Google Chat.

[K.S.:] im on my frends school lap top so we r going to see echother on friday

[Konkel:] Today is friday idk if i can today [K.S.:] same what day we gonna c echother

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[Konkel:] My bday is Wednesday [K.S.:] because i cant call u i need to be sneeky \ ok so maby on wensday

[K.S.:] i don’t got much time [Konkel:] Yes forsure wednesday u can give me a bday present [K.S.:] ok baby we gonna hang at the schol school

[Konkel:] I mean i guess [K.S.:] ok what time

do we meet up

ill give u a real good bday present baby [Konkel:] Idk i work that day still so like 720 [K.S.:] ok how good is your memory

[K.S.:] ?

[K.S.:[ well imma go so its wensday 7:20 no one is gitting in our way so we just meet at the same place as allways [Konkel:] Yes hmu when u can

Ex. 7. On Tuesday June 6 the two again communicated via Google Chat. Ex. 7. In response to K.S. stating she was willing to sneak out of her house and get in trouble to see Konkel, Konkel responded asking why K.S. wanted to see him. Ex. 7. K.S. responded with emojis.

[K.S.:]

thair u go

[Konkel:] U want my dick?

[K.S.:] yup Ey i got good pussy right ?

[Konkel:] We dont have a lot of time tho and yes its bomb aff but I want

[K.S.:] fuck time I dont cair what any one said

[Konkel:] Suck it for me tho Its my bday tomorrow

[K.S.:] ok baby what time we gonna meet up ?

i want you to eat my pussy so bad

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Ex. 7. The conversation turns to logistics with K.S. asking what time they should “meet at the school” and Konkel responding that he should be there “right before 8.” Ex. 7. K.S. confirms that she will try to be there before eight and Konkel responds:

[Konkel:] Yes and just look for my car then we will do stuff in my car [K.S.:] k dady god not im horny as hell [Konkel:] Well tomorrow u gotta take care of me I want u to come over again We can do stuff in comfy bed

[K.S.:] ik baby [Konkel:] Ill see u tomorrow ill try to leave early no promises tho [K.S.:] ok baby just hurry we will meet at the same place

Ex. 7. The next Google Chat messages were short texts from K.S. on June 10, 11, and 12 with no response from Konkel. The next exchange was on June 26:

[K.S.:] im going over to ur place to day i wated at the school i don’t have her phone i need one tho [Konkel:] I waited there for u i went at 9

Ex. 7. The next and last Google Chat message in the record occurred on June 30, 2017, with Konkel rejecting K.S.’ request that he pick her up and take her to his place, explaining that they cannot communicate, and that he is “tired of it.” Ex. 7. When K.S. disagrees and says, “i am walking over thaire,” Konkel states he is at work and to “[j]ust stop.” K.S. responds by sending “ ” and asking, “why cant i c u.” Ex. 7. The conversation ends with:

[Konkel:] Stop plz [K.S.:] imma end my life for real c u in heaven

Ex. 7.

In October 2020 Snohomish County Sherriff’s Sergent Matthew Houghtaling was assigned to investigate this case. Houghtaling executed two search warrants, seeking a DNA sample from Konkel and Google records from K.S.’ Google account. Houghtaling

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obtained Konkel’s DNA and submitted it to the Washington State Patrol laboratory to compare his sample to the DNA evidence obtained from K.S. Houghtaling also obtained the Google Chat messages between K.S. and Konkel later identified as exhibit 6A. At some time after police were involved, K.S. went through her old email account and found chat messages between her and Konkel on Google Chat. She told her parents and investigators and allowed them to take screenshots of the messages, which were later identified as exhibit 7.

Konkel was charged with three counts of rape of a child in the third degree. Each count was related to three separate acts, digital penetration (Count 1), oral sex that K.S. performed on Konkel (Count 2), and oral sex that Konkel performed on K.S. or the penal-vaginal intercourse (Count 3).

PROCEDURAL HISTORY

Pretrial, the State moved to admit a certificate of authentication as to exhibit 6A, which includes an affidavit from a Google records custodian. Konkel objected, alleging a violation of his constitutional right to confront witnesses. The court admitted the certificate. Konkel also moved to exclude K.S.’ statement in exhibit 6A, “ur hand inside me ur lips was so soft baby” as inadmissible hearsay. The court disagreed, finding that none of K.S.’ statements in exhibit 6A would be “offered for the truth of what they are asserting, just for purposes of what was said.” The State did not disagree. The court further explained that without K.S.’ statement “the context” of Konkel’s reply does not make sense, and that K.S. will be testifying and subject to cross-examination.

Konkel also moved to exclude K.S.’ remaining messages to Konkel in exhibit 7 as inadmissible hearsay. The court agreed with the State and denied Konkel’s motion to

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exclude because the statements were not offered for the truth of the matter asserted, but to provide context to fully understand Konkel’s responses.

Finally, the State moved to exclude any evidence of K.S.’ past or subsequent sexual behavior under the rape shield statute. Konkel argued that they wanted to elicit testimony that K.S. was sexualized at a young age. The court granted the State’s motion and explained that evidence regarding K.S.’ sexual knowledge is admissible on cross examination to the extent the State elicits that testimony on direct examination.

At trial, Vandermolen testified before the State called K.S. Vandermolen explained what prompted her to call the police. Vandermolen spoke with K.S. after she had seen her messages with Konkel and was “worried that she had been citing suicidal ideation.” Konkel objected as to relevance. The trial court “[o]verruled on that ground.” Konkel made no other objection as to this testimony nor did he request a limiting instruction. 6 During Konkel’s cross-examination of Vandermolen, Konkel asked whether K.S.

told her “that she got picked up by two guys.” The court sustained the State’s objection and ordered the jury to disregard the question. Later, after the jury was excused for a midmorning recess, the State asked the court to remind defense counsel of the State’s motion in limine on the rape shield statute and “any other males that [K.S.] -- had been characterized as boyfriends or that she hung out with.” Defense counsel asserted that he did not violate the court’s pretrial ruling because when K.S. talked to Vandermolen about the incident that was the basis for calling the police, K.S. indicated that it was not one boy or one man that picked her up, but two. Counsel explained he was eliciting this

6 Konkel does not assign error on appeal to the court’s ruling to the relevancy objection.

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information to impeach K.S. The court pointed out that because K.S. had not testified, there was nothing to impeach at the time of Vandermolen’s testimony. The court invited counsel to raise the issue later outside the jury’s presence for the court to make a careful ruling based on what the testimony was should counsel believe such cross- examination becomes relevant.

At trial, K.S. testified that she met Konkel in person for the first time outside her school. The two walked around the school “getting to know each other better.” As it started getting dark, K.S. stated that “stuff just kind of went down a little bit.” K.S. testified that after kissing the two cuddled, and Konkel slid his hands into her pants and fingered her “coochie,” which she explained meant “vagina.”

On cross examination of K.S., Konkel asked K.S. to confirm that in her child forensic interview she said that she and Konkel only kissed and cuddled the first time they met in person. K.S. said “[i]f it says that on here, maybe that’s what I said.”

K.S. also testified that she and Konkel coordinated to meet up for a second time.

This second time, K.S. testified that Konkel picked her up at her middle school, and she performed oral sex on Konkel in his car. Then, she and Konkel went to Konkel’s apartment where Konkel performed oral sex on K.S and they had penal-vaginal intercourse. She also testified that Konkel “almost put his penis inside [her] ass” and afterwards drove her home.

The State, through Houghtaling, admitted exhibit 6A. The State admitted exhibit 7 through K.S. but did not question her about its contents. At no time did Konkel ask for a limiting instruction related to exhibits 6A or 7.

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During closing argument, the State discussed the messages in exhibit 6A and argued to the jury that Konkel’s messages corroborated that he digitally penetrated K.S. The State also highlighted that K.S. said she was going to lie to the police for Konkel and that K.S. expressed thoughts of suicidal ideation. In discussing the messages in exhibit 7, the State argued, “Then he terrorizes this 14-year-old by telling her, no, I’m not dealing with this bullshit. And this 14-year-old is so emotional about what has occurred between the two of them, the last thing she says to him: I’m going to end my life for real, see you in heaven.” Konkel did not testify.

The jury convicted Konkel of digital penetration (count 1) but acquitted him on the remaining counts. The court sentenced him to 12 months and a day as well as 36 months of community custody. The court found Konkel indigent and waived all nonmandatory fees and costs. Konkel did not raise any objections to the imposed community custody conditions. Konkel’s conditions included condition 6, requiring him to obtain a sexual deviancy evaluation and participate in sexual deviancy treatment. Under this condition, the court ordered that Konkel abide by all financial obligations. The trial court also ordered Konkel to receive supervising community corrections officer (CCO) approval for his residence, living arrangement, and employment (condition 10); and consent to department of corrections (DOC) home visits, including visual inspection of all residence areas (condition 12). The court also prohibited Konkel from obtaining employment or volunteer positions that place him in contact with or control over minor children (condition 15).

Konkel appeals.

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DISCUSSION

Confrontation Clause

Konkel argues that the court violated his right to confrontation when it admitted a records custodian’s affidavit and a Google business records certificate of authenticity without the record custodian’s testimony because the affidavit is testimonial. RCW 10.96.030(2) allows business records to be admitted without testimony from the records custodian if accompanied by an affidavit, declaration or certification by its record custodian or other qualified person.

“In all criminal prosecutions, the accused shall enjoy the right … to be confronted with the witnesses against him.” U.S. CONST. amend. VI; see also WASH. CONST. art., I, § 22 (accused shall have the right “to meet the witnesses against him face to face”). The confrontation clause bars the admission of “testimonial” hearsay unless the declarant is unavailable to testify and the defendant had a prior opportunity for cross- examination. Crawford v. Washington, 541 U.S. 36, 53-54, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). We review de novo an alleged confrontation clause violation. State v. Koslowski, 166 Wn.2d 409, 417, 209 P.3d 479 (2009).

In State v. Jasper, the trial court admitted a legal custodian’s affidavit that a defendant was driving with a suspended license based upon a diligent public records search. 158 Wn. App. 518, 525, 531, 245 P.3d 228 (2010). The affidavit in Jasper stated that the affiant performed a diligent search, which implies the person knew what they were searching for and stated that the defendant’s license was suspended on a particular day. Id. at 531. This court held that the affidavits were testimonial because they included “factual assertions, intended to prove an element of a crime charged.

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They are not mere statements of the authenticity of the attached records themselves.” Id.

On the other hand, in State v. Lee, the trial court admitted cell phone records through affidavits that attest to the authenticity of those records. 159 Wn. App. 795, 813, 247 P.3d 470 (2011). In Lee, the defendants did not dispute that the cell phone records were business records created for the phone companies’ administration. Id. at 817. This court held that the affidavits were not testimonial because the affidavits were “created and admitted solely to prove the authenticity of the underlying phone records.” Id. at 818.

We hold that the instant case is similar to Lee, and unlike Jasper. Specifically, the trial court admitted an affidavit from a records custodian at Google attesting to the authenticity of its Google chat message records associated with K.S.’ school email account. Ex. 6A. This affidavit did not include any factual assertions intended to prove an element of any crime charged. Instead, the affidavit included statements solely to establish the authenticity of the documents, which were Google business records.

Konkel argues that Lee relied on dicta from Melendez-Diaz v. Massachusetts, 557 U.S. 305, 322-23, 129 S. Ct. 2527, 174 L. Ed. 2d 314 (2009), because Lee cited the Melendez-Diaz court’s response to its dissenting opinion. Lee, 159 Wn. App. at 816. In Melendez-Diaz, the court held that analysts’ affidavits were testimonial because they were “made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial” and had the sole purpose of providing “prima facie evidence of the composition, quality, and the net weight” of the analyzed substance. 557 U.S. at 311 (citations omitted).

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Thereafter, the court responded to the dissent’s assertion that a clerk’s certificate authenticating an official record was traditionally admissible at trial and not deemed testimonial even though it was prepared for use at trial. 557 U.S. at 322. The Melendez- Diaz court contrasted a clerk’s certificate from the analysts’ certificates, emphasizing that clerks could not create a record for the sole purpose of providing evidence against the defendants like the analysts did in Melendez-Diaz. Id. at 323-24. Whether a discussion of a clerk’s certificate in Melendez-Diaz was necessary for that court’s holding is of no matter, because the Lee court applied the holding in Melendez-Diaz to the facts in Lee, which are analogous to the facts in the instant case.

Finally, Konkel alleges that confrontation clause jurisprudence has “undergone further refinement” since Melendez-Diaz but cites inapposite cases addressing the admissibility of something other than an affidavit certifying a business record. See Smith v. Arizona, 602 U.S. 779, 783, 144 S. Ct. 1785, 219 L. Ed. 2d 420 (2024) (addressing whether a lab report written by another analyst is hearsay when an expert relies on it); State v. Hall-Haught, 4 Wn.3d 810, 818-19, 821, 569 P.3d 315 (2025) (clarifying expert witness testimony’s implications with the confrontation clause and that testimonial statements admitted at trial apply to forensic evidence when witness unavailable and no opportunity to cross-examine). We conclude that exhibit 6A’s admission did not violate Konkel’s confrontation rights.

Rape Shield Statute

Konkel next claims that the trial court erred when it excluded, under the rape shield statute, impeachment evidence that K.S. met up with two men instead of just Konkel the first time they met in person.

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The rape shield statute provides that “[e]vidence of the victim's past sexual behavior ... is inadmissible on the issue of credibility.” RCW 9A.44.020(2). Additionally, the rape shield statute cannot be “construed to prohibit cross-examination of the victim on the issue of past sexual behavior when the prosecution presents evidence in its case in chief tending to prove the nature of the victim’s past sexual behavior.” RCW 9A.44.020(4).

The trial court’s decision to exclude evidence under the rape shield statute is reviewed for an abuse of discretion. State v. Cox, 17 Wn. App. 2d 178, 186, 484 P.3d 529 (2021). “A trial court abuses its discretion only when its decision is manifestly unreasonable or based on untenable grounds.” Ryan v. State, 112 Wn. App. 896, 899, 51 P.3d 175 (2002). “A trial court necessarily abuses its discretion if the ruling is based on [an] erroneous interpretation of the law.” State v. Bartch, 28 Wn. App. 2d 564, 573, 537 P.3d 1091 (2023) (citing State v. Gaines, 16 Wn. App. 2d 52, 57, 479 P.3d 735 (2021). “A trial judge, not an appellate court, is in the best position to evaluate the dynamics of a jury trial and therefore the prejudicial effect of a piece of evidence.” State v. Harris, 97 Wn. App. 865, 869, 989 P.2d 553 (1999) (citing State v. Taylor, 60 Wn.2d 32, 40, 371 P.2d 617 (1962)).

Before K.S. testified, the State called Vandermolen to explain how it came to be that she called police after viewing K.S.’ journal. During cross-examination of Vandermolen, Konkel inquired about her conversations with K.S. and K.S.’ internet usage. Konkel asked, “you indicated before that she told you that she got picked up by two guys; is that - -.” At that point the State objected, and the court sustained the objection, ordering the jury to disregard the question. At this stage it is unclear if the

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State’s objection was based on hearsay or on a perceived violation of the rape shield statute. Konkel did not ask to be heard regarding the objection and moved on with his cross examination without any further explanation.

It was not until the midmorning recess that the State asked the court to remind Konkel about the motion in limine on the rape shield statute. Konkel explained that he was attempting to impeach K.S.’ anticipated testimony about being with a single individual when she first met Konkel in person even though she told Vandermolen that two boys picked her up. The trial court correctly advised Konkel that because K.S. had yet to testify, there was nothing to impeach. The trial court invited Konkel to reraise the issue when he believed such cross-examination would be relevant so that the court could make a careful ruling based on the testimony. Konkel never reraised the issue.

During the motion in limine discussion about the rape shield statute, Konkel never apprised the court on his intent to elicit testimony that K.S. told Vandermolen two guys picked her up. Konkel also did not inform the court that he sought to show inconsistency with K.S.’ anticipated testimony that she met with only Konkel the first time they met in person. So, the court’s granting of the State’s motion in limine as to the rape shield statute could not be viewed as an improper ruling for an issue not raised.

“[W]e will not disturb a trial court’s rulings on a motion in limine or the admissibility of evidence absent an abuse of the court’s discretion.” State v. Powell, 126 Wn.2d 244, 258, 893 P.2d 615 (1995). An abuse of discretion exists when “a trial court’s exercise of its discretion is manifestly unreasonable or based upon untenable grounds or reasons.” Id.

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During trial, the State drew an unspecified objection when Konkel cross examined Vandermolen asking if K.S. told her she “got picked up by two guys.” In context, the court may have granted the objection because it was eliciting inadmissible hearsay or it could have perceived the question to elicit testimony related to K.S.’ sexual interactions with people other than Konkel. There was nothing conveyed to the trial court at this time that the testimony Konkel wished to elicit related to circumstances of whether K.S. met up with only Konkel or met up with two people. Konkel cannot now argue that the trial court erred in misapplying the rape shield statute in circumstances unknown to the court at that time.

When Konkel finally explained to the trial court that he was attempting to impeach K.S.’ anticipated testimony, the court correctly observed that because K.S. had not yet testified, there was nothing to impeach. State v. Allen S., 98 Wn. App. 452, 460, 989 P.2d 1222 (1999); State v. Robbins, 25 Wn.2d 110, 113, 169 P.32 246 (1946) (noting that impeachment not permissible because “nothing to impeach” when witness refused to testify under self-incrimination right). Moreover, the court did not make a ruling as to whether Konkel could later elicit such testimony. Instead, the court invited Konkel to reraise the matter when he believed such cross examination is relevant and the court would make a careful ruling. But Konkel never reraised the issue.

We conclude that Konkel has failed to establish that the trial court misapplied the rape shield statute.

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Exhibits 6A and 7

Konkel contends that the trial court erroneously admitted some of K.S.’

statements because they were not needed to provide context to Konkel’s statements and, therefore, were inadmissible hearsay. A. Standard of Review for Hearsay The parties dispute whether the standard of review is abuse of discretion or de novo. The State argues that the standard of review is abuse of discretion because we review the admissibility of evidence for an abuse of discretion. State v. Demery, 144 Wn.2d 753, 758, 30 P.3d 1278 (2001). Konkel argues that the standard of review is de novo because we review whether a statement is hearsay de novo. State v. Edwards, 131 Wn. App. 611, 614, 128 P.3d 631 (2006). We agree with Konkel.

To argue that the standard of review is abuse of discretion, the State relies on Demery, which examined whether the trial court abused its discretion in admitting police officer statements that the defendant was lying during a taped interview. 144 Wn.2d at 758. In Demery, the defendant was arrested after threatening the victim with a gun for money. Id. 755-56. The defendant agreed to give a taped statement to detectives and in the tape, detectives made statements suggesting that the defendant was lying. Id. at 756. At trial, the court admitted the tape over the defendant’s objection, finding that the officers’ statements provided context for the defendant’s statements, and the statements were a part of a commonly used police interview technique. Id. at 757. The tape was played before the jury. Id.

On appeal, the defendant argued that the trial court erred in admitting the tape because the police officer’s statements accusing him of lying were impermissible

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opinion testimony regarding his veracity. Id. at 757-58. The court explained that, generally, a witness cannot offer opinion testimony regarding the defendant’s guilt because it is unfairly prejudicial to the defendant and “invad[es] the exclusive province of the [jury].” Id. at 759 (citing City of Seattle v. Heatley, 70 Wn. App. 573, 577, 854 P.2d 658 (1993) (alteration in original) (internal quotation marks omitted)). The court examined whether the statements were properly admitted under an abuse of discretion standard. Id. at 758. The court held the detectives’ statements were not improper opinion testimony because the statements were not offered during live testimony and were not made under oath; so, they do not fall within the definition of opinion testimony. Id. at 760. Therefore, the court did not abuse its discretion in admitting the tape. Id.

The court also explained that a “relevant consideration” in the case was the purpose the evidence was offered for at trial. Id. at 761. The trial court found the defendant’s responses were relevant. Id. The court also stated that, in this case, the officers’ statements were not hearsay because they “were admitted solely to provide context for the responses offered by the defendant.” Id. Accordingly, the court held that “[b]ecause the trial court concluded that the responses made by the defendant were relevant in regard to the defendant’s credibility as a witness, we conclude that the jury was entitled to assess the reasonableness of the defendant’s responses to the officers’ assertions that he was lying.” Id. at 762.

In Edwards, the defendant argued that a detective’s testimony of a confidential informant’s statements was substantive evidence of guilt and not an explanation that placed the police investigation “in context.” 131 Wn. App. at 614. The confidential informant in Edwards told a detective that an individual named “Olin” “was dealing in

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crack cocaine” and provided the individual’s contact information. Id. at 613. From this tip, police were able to find and arrest the defendant, who was charged with two counts of delivery of a controlled substance and one count of possession of a controlled substance with intent to deliver. Id. At trial, the court denied the defendant’s motion to exclude, as hearsay, a detective’s anticipated testimony that an informant named “Olin” was dealing cocaine. Id. After a jury convicted him of possession of a controlled substance with intent to deliver, the defendant appealed his conviction, arguing that the detective’s testimony regarding the confidential informant’s statements was substantive evidence of guilt and not just an explanation which places the police investigation “in context.” Id. at 614. The State disagreed, arguing that the detective’s testimony about the informant’s statement explained the motivation for the police investigation. Id.

The court examined de novo whether the detective’s testimony regarding the informant’s statements was hearsay. Id. The court reasoned that the testimony was hearsay because the reason the detectives began their investigation into the defendant was not an issue in controversy; accordingly, the statements are not relevant. Id. As a result, the statement was only relevant if it was admitted for its truth – that the defendant was involved in drug activity. Id. at 615. Therefore, the court held the statements were hearsay and should not have been admitted. Id.

We hold that the applicable standard of review is de novo because Konkel only argues that K.S.’ statements in exhibits 6A and 7 were not needed to provide context and, therefore, are inadmissible hearsay. In Demery, the defendant did not argue whether the officer’s statements in the tape were admitted for their context. 144 Wn.2d at 758. Instead, the defendant argued that the court improperly admitted the officer’s

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statements because they are improper opinion testimony. Id. at 757-58. The test for admitting opinion testimony requires the court to generally consider the circumstances of the case and five factors. Id. at 759. Although the court discussed that the detectives’ statements were admitted for context, it appears that the parties do not dispute they were admissible for that purpose. Id. at 758, 761-62. To the extent the Demery court discussed the statement’s context, it was not because that context was in dispute. Id. at 761-62. The defendant in Demery argued that the tapes should not have been admitted because they were improper opinion testimony. Id. at 758. Therefore, the court had to review whether the court abused its discretion in admitting the officer’s statements in the tape as improper opinion testimony. Id.

In the instant case, Konkel, like in Edwards, disputes whether the statements are necessary for their context. In Edwards, the court reviewed de novo whether the detective’s statements were hearsay or necessary for context. 131 Wn. App. at 614. As a result, we also review de novo whether K.S.’ statements are hearsay or necessary for context. Id.; State v. Carte, 27 Wn. App. 2d 861, 876-78, 534 P.3d 378 (2023).

“‘Hearsay’” is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” ER 801(c). Hearsay statements are not typically admissible. ER 802. Additionally, a party- opponent’s statement offered against that party is not hearsay. ER 801(d)(2). If the proponent uses a party’s statement made during a conversation with the party-opponent to add “context” to a party-opponent’s statement that otherwise “would not make sense,” the party’s statement is not offered for the truth of the matter asserted and, therefore, not hearsay. State v. Athan, 160 Wn.2d 354, 385, 158 P.3d 27 (2007); see also In re

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Pers. Restraint of Lui, 188 Wn.2d 525, 555, 397 P.3d 90 (2017) (a testifying officer “may repeat statements made during interrogation accusing a defendant of lying if such testimony provides context for the interrogation”). “To determine whether the [declarant’s] statements were offered for their truth or some other nonhearsay purpose, we must look closely at the events that unfolded at trial to evaluate the context in which the statements were actually offered and used.” State v. Mohamed, 186 Wn.2d 235, 241-42, 375 P.3d 1068 (2016). B. Exhibit 6A Konkel first argues that K.S.’ statement in exhibit 6A, “ur hand inside me ur lips was so soft baby” is inadmissible hearsay. The State offered K.S.’ statement not to prove the truth of the matter asserted (i.e., that Konkel digitally penetrated K.S. or that his lips were soft), but rather to provide context to Konkel’s response: “Your lips are soft too and your pussy i was like dam i was tryna taste it.” Konkel specifically argues that K.S.’ statement is not admitted for context because in State v. Rocha, 21 Wn. App. 2d 26, 33, 503 P.3d 233 (2022), the court explained that, “[i]f the proponent of the hearsay statement was to acknowledge the statement to be false and if this acknowledgment would favor the statement’s opponent, then the hearsay statement is probably being offered for its truth and it should be excluded.” (Emphasis added.) Rocha was not a case about providing context to a defendant’s statement that was part of a conversation. Id. at 32. The State in Rocha convinced the trial court to allow two officers to testify that dispatch told them a caller had reported an argument between a father and a son near a gas station. Id. at 27-28. The trial court allowed the admission of this double hearsay to

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explain why the officers went to the gas station, which Division Three held was not relevant. Id. at 32.

To prove arson in the second degree in Rocha, the State had to prove that the defendant acted “maliciously,” which means with an evil intent to vex or annoy another person. Id. at 27. The strongest evidence of that was the hearsay that was improperly admitted for a non-relevant purpose. Id. at 27-28. It was in this context that Division Three suggested examining if the hearsay statements would retain their purpose if the statements offered were untrue. Id. at 33. Division Three offered this cautionary language while observing that “[t]rial courts too often admit hearsay evidence for a nonhearsay purpose even when that purpose is irrelevant.” Id. The language Konkel relies on from Division Three was articulated in different circumstances than the instant case. The Washington Supreme Court’s holding in Athan is still good law.

Konkel also argues that the State introduced K.S.’ hearsay statements for their truth because “nothing in Mr. Konkel’s response requires explanation.” Konkel argues that his statement—“Your lips are soft too and your pussy i was like dam i was tryna taste it”—“describes sexual contact, but not penetration” and “K.S.’s statements are not necessary to understand Mr. Konkel’s statements.” This argument ignores the danger of taking statements out of context. Viewing Konkel’s statement in isolation leaves a possible interpretation that Konkel was only referring to what his mouth did. But in context of understanding what statement he was responding to— “ur hand inside me ur lips was so soft baby”— changes the reasonable understanding of what Konkel’s statement could be referring to, digital penetration. Said another way, viewing K.S.’ statement in context with Konkel’s reply creates a reasonable inference that Konkel

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digitally penetrated K.S. K.S.’ statement “ur hand inside me” paired with Konkel’s reply, “your pussy i was like dam i was tryna taste it” creates a reasonable inference that Konkel digitally penetrated K.S. because his reply infers that he admits to digitally penetrating K.S. and wanted to “taste it.”

We conclude that the challenged statement was not hearsay because it was admitted to provide context to Konkel’s response. C. Exhibit 7: Lying to the Police Konkel also challenges the admission of K.S.’ statement that she was going to lie to police for Konkel in the May 24, 2017, chat messages in exhibit 7. In this conversation, Konkel expressed concern that he was going to get in trouble. Ex. 7. K.S.’ statements were needed to provide context to understand that Konkel’s statements were statements of great concern. Konkel responded, “Yo wtf????” Ex. 7. Without any context it would be difficult to understand the meaning of that response. But that statement takes on meaning when it is understood that it was in response to K.S. saying, “I can’t see u I got std tested the school snitched I’m trying to make up lies so u won’t go to jail.” Ex. 7. Similarly, when reading Konkel’s statements—“U shouldnt have even been talking about me at all” “To anyone”—in isolation, it is unclear who the “U” is and why Konkel is concerned. But placing that statement in context provides understanding to that statement:

[K.S.:] I don’t càre about me getting busted [Konkel:] Im the one who will get in trouble not u [K.S.:] I know u don’t believe me when I say that I am I iying [sic] to people even the cops for you [Konkel:] U shouldnt have even been talking about me at all To anyone

Ex. 7.

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We conclude that these statements are not hearsay because they were offered for another purpose, to provide context to Konkel’s responses. D. Exhibit 7: Suicidal Ideation Konkel also argues that K.S.’ statements contemplating suicide were not needed for context. But viewing Konkel’s response—“Stop i cant be with someone if people at ur school gonna be talking shit”—in isolation leaves a question as to what he is saying “Stop” to. Ex. 7. Understanding that it is in response to K.S. writing “I really don’t care if I die as long as I get to be with you” provides meaning to Konkel’s response. 7 Similarly, when Konkel wrote, “No not if ur talking to cops and stuff,” it is unclear what he is saying “No” to unless it is read in context as a response to K.S.’ statement, “I CANT GET YOU OUT OF MY FUCKING HEAD imam c you today period.” Ex. 7.

Lastly, Konkel takes issue with the admission of K.S.’ final message to Konkel on June 30, 2017, “imma end my life for real c u in heven.” The conversation ends here; so, there is no response from Konkel that needs to be explained through the context of K.S.’ last chat message to him. Ex. 7. In fact, the message Konkel wrote to K.S. right before this was, “Stop plz.” Ex. 7. Thus, we conclude that this last challenged statement was not needed to provide context and was inadmissible hearsay. E. Harmless Error Although K.S.’ final message to Konkel was inadmissible hearsay, the error is harmless.

7 The State suggests that Konkel’s reply corroborates that the two met up for the first time at K.S.’ school. It does not, but Konkel’s argument is not that this evidence is not relevant, it is that K.S.’ statement is not needed to provide context to Konkel’s statement.

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Non-constitutional errors in the admission of evidence are reversible only if “within reasonable probabilities, the outcome of the trial would have been materially affected had the error not occurred.” State v. Doerflinger, 170 Wn. App. 650, 665, 285 P.3d 217 (2012).

It is concerning that the statement was improperly admitted, but also that the State referred to it during closing argument: “Then he terrorizes this 14-year-old by telling her, no, I’m not dealing with this bullshit. And this 14-year-old is so emotional about what has occurred between the two of them, the last thing she says to him: I’m going to end my life for real, see you in heaven.”

However, this chat message was not the only evidence that referred to suicide.

Vandermolen testified that the school was “worried that [K.S.] had been citing suicidal ideation.” Though Konkel objected to this testimony on relevance grounds, the objection was overruled and he does not assign error to this ruling. We observe that the State introduced this testimony during Vandermolen’s explanation as to how it came to be that she was concerned and called the police. Thus, the jury was aware that K.S. previously referenced suicide which drew the concern of adults. Despite hearing this evidence, the jury was able to compartmentalize the evidence and find Konkel not guilty of two counts.

As to count 1, K.S. testified that she met Konkel in person at her school and that he digitally penetrated her vagina. In addition to her direct testimony, the jury could make a reasonable inference from Konkel’s own statements in his conversation with K.S. on May 20, 2017:

[Konkel:] What felt good [K.S.:] ur hand inside me ur lips was so soft baby [Konkel:] Your lips are soft too and your pussy i was like dam i was tryna taste it.

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Ex. 6.

We are not persuaded that it is within reasonable probabilities that the outcome of the trial would have been materially affected had the error not occurred. Accordingly, we conclude that the error in admitting K.S.’ final chat message to Konkel was harmless.

Prosecutorial Misconduct

Konkel claims several instances of prosecutorial misconduct, none of which he objected to during trial. Konkel argues that the State relied on K.S.’ out-of-court statements for their truth and improperly inflamed the passions of the jury.

“Allegations of prosecutorial misconduct are reviewed under an abuse of discretion standard.” State v. Brett, 126 Wn.2d 136, 174, 892 P.2d 29 (1995). To prevail, the defendant must establish that the prosecutor’s conduct was both improper and prejudicial. State v. Emery, 174 Wn.2d 741, 756, 278 P.3d 653 (2012).

When proving whether a prosecutor’s conduct is improper, the prosecutor has “some latitude to argue facts and inferences from the evidence,” but a prosecutor is not “permitted to make prejudicial statements unsupported by the record.” State v. Jones, 144 Wn. App. 284, 293, 183 P.3d 307 (2008) (citing State v. Weber, 159 Wn.2d 252, 276, 149 P.3d 646 (2006)); see also Miller v. Pate, 386 U.S. 1, 6-7, 87 S. Ct. 785, 17 L. Ed. 2d 690 (1967) (holding that a prosecutor commits misconduct by misrepresenting the facts in the record). It is improper for a prosecutor to violate a motion in limine. State v. Barker, 103 Wn. App. 893, 903, 14 P.3d 863 (2000); State v. Kassahun, 78 Wn. App. 938, 952, 900 P.2d 1109 (1995).

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“Once a defendant establishes that a prosecutor’s statements are improper, we determine whether the defendant was prejudiced under one of two standards of review.” Emery, 174 Wn.2d at 760. “If the defendant objected at trial, the defendant must show that the prosecutor’s misconduct resulted in prejudice that had a substantial likelihood of affecting the jury’s verdict.” Id. “If 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)).

“Reviewing courts should focus less on whether the prosecutor’s misconduct was flagrant or ill intentioned and more on whether the resulting prejudice could have been cured.” Emery, 174 Wn.2d at 762. The inquiry is “whether the defendant received a fair trial in light of the prejudice caused by the violation of existing prosecutorial standards and whether that prejudice could have been cured with a timely objection.” State v. Walker, 182 Wn.2d 463, 478, 341 P.3d 976 (2015). This must be assessed in the “context of the total argument.” Emery, 174 Wn.2d at 762 n.13 (citing State v. Warren, 165 Wn.2d 17, 27, 195 P.3d 940 (2008)). A. Exhibit 6A Konkel argues that the State relied on K.S.’ hearsay statements in closing to argue they corroborated K.S.’ testimony that Konkel digitally penetrated her. However, in closing, the State went through both parties’ statements in exhibit 6A then said, “you

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have the corroboration in the form of the defendant’s own statements.” Therefore, the State argued K.S.’ statements in exhibit 6A within their admitted purpose, to provide context to Konkel’s statements. We hold that there was no misconduct in the State’s references to exhibit 6A in closing. B. Exhibit 7: K.S.’ statements about lying Konkel argues that the State improperly relied on K.S.’ hearsay statements in exhibit 7 when it argued in closing:

Any bias or prejudice that the witness might have shown and, again, [K.S.]

told you that at the time that this occurred, she had feelings for Mr. Konkel.

Her bias was in his favor. She did not want this reported to the police and, in fact, she told the defendant multiple times she was going to lie to the police so that he wouldn’t get in trouble.

While it appears the third sentence references K.S.’ statements in exhibit 7, K.S.’ own testimony supports the first and second sentences. When confronted that she made statements during her child forensic interview that were inconsistent with her testimony at trial, she explained, “I was on his side at the time because I didn’t want him to get into trouble.” She also confirmed that she was lying to her parents and the police when they first questioned her. Thus, the jury heard admissible evidence that K.S. had lied to the police and her parents. Any argument that relied on K.S.’ out-of-court statements for the truth of the matter asserted that she told Konkel that she was going to lie to police so he would not get in trouble could have been cured with an instruction.

Konkel also challenges the State’s reference in closing to K.S. messaging Konkel that she went to the hospital where they took blood and samples as well as her messages that she did not talk to the police. The State argued:

She’s talking with the defendant. She tells him I went to the hospital, and we know she went to the hospital because that is

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corroborated through the other testimony as well as her testimony. She tells him they took blood and samples. These conversations continue, and each screenshot, you’ll notice, will contain the last statement from the last screenshot so that you can follow along.

So, like here, we have the last: I’m going to have a good lie so you won’t go to jail. Then that will start at the next one, so you can see this is a continuous conversation. Each of these messages here is date-stamped.

The State further argued:

These messages also corroborate that the two of them had penile-vaginal sex and that the defendant used a condom, which is exactly what [K.S.

testified to] yesterday. She tells him she went to the hospital. He’s asking her why. She’s saying do you have any STD. He said no, I don’t, plus I used the condom, so - - so what do we have? We have corroboration of penile-vaginal sex, the incident at the apartment that occurred prior to the police being called and the defendant corroborating that, okay?

(Emphasis added.) The State relied on these statements for their admitted purpose: to the extent they provide context for Konkel’s responses.

Additionally, the State later argues

He’s asking her you’re talking to the cops. She is telling him she did not talk to the cops, which is actually true; she spoke to the school hospital and child forensic specialist. He continues to ask who she’s talking to.

She’s telling him her laptop has been taken away, she does not have internet. And you’ll see, you will see, that she continues to try to meet up with Mr. Konkel.

(Emphasis added.) In context, the State referred to K.S.’ statements to provide context for Konkel’s statements. We hold that there was no misconduct during closing when the State referenced K.S.’ messages to Konkel in exhibit 7 that she went to the hospital and was lying to the police for him. C. Exhibit 7: Suicidal Ideation Finally, Konkel argues that the State improperly inflamed the passions of the jury during closing argument when it referenced K.S.’ thoughts of suicide in exhibit 7.

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“Prosecutors have a duty to seek verdicts free from appeals to passion or prejudice.” State v. Perez-Mejia, 134 Wn. App. 907, 915, 143 P.3d 838 (2006) (citing State v. Belgarde, 110 Wn.2d 504, 507, 755 P.2d 174 (1988)). Therefore, inflammatory remarks or appeals to prejudice are forbidden. Id. at 916.

During closing argument, the State asked the jury to review the messages in exhibit 7 and “remind yourself that [K.S.] is a child, and she’s dealing with some pretty significant emotional issues here as well as emotional swings.” Then, the State says that Konkel “terrorizes this 14-year-old by telling her, no, I’m not dealing with this bullshit. And this 14-year-old is so emotional about what has occurred between the two of them, the last thing she says to him: I’m going to end my life for real, see you in heaven.” The State expressly quoted K.S.’ statement that was improperly admitted.

During oral argument, the State argued that K.S.’ statements referring to suicide are admissible because they are not hearsay. Wash. Ct. of Appeals oral arg., State v. Konkel, No. 87825-5-I (April 15, 2026), at 13 min., 12 sec. through 13 min., 16 sec., video recording by TVW, Washington State’s Public Affairs Network, https://tvw.org/video/division-1-court-of-appeals-2026041030/?eventID=2026041030. Specifically, the State referred to the trial court’s statement during motions in limine, that K.S.’ statements in exhibit 7 were admissible because “[s]ome of these are questions, some of these are expressions of her mood, which isn’t being offered for the truth of what her mood was at the time.”

When Vandermolen testified at trial that K.S. had been citing suicidal ideation, defense counsel objected on relevance grounds, which the court “[o]verruled on that ground.” Under ER 403, “[a]lthough relevant, evidence may be excluded if its probative

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value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” When applying ER 403, the burden is on the party seeking to exclude the evidence. Carson v. Fine, 123 Wn.2d 206, 225, 867 P.2d 610 (1994). Defense counsel did not ask the court to conduct an ER 403 evaluation and does not argue on appeal that he requested this or that the court should have applied ER 403.

To the extent the court said that some of K.S.’ statements were expressions of her mood, it specifically indicated that her statements are not “being offered for the truth of what her mood was at the time.” However, in closing, it is apparent that the State offered K.S.’ statements for the truth of her mood at that time. Specifically, the State asked the jury to view all the messages and remind themselves that K.S. is a child and is dealing with significant emotional swings. (Emphasis added.) Then, the State says that Konkel “terrorizes” K.S. when he tells her no. (Emphasis added.) Finally, the State ends its argument with “And this 14-year-old is so emotional about what has occurred between the two of them, the last thing she says to him: I’m going to end my life for real, see you in heaven.” (Emphasis added.) The State relied on K.S.’ statements for the truth of the matter asserted because it specifically asked the jury to look at her emotional statements, such as her threatening suicide, in combination with her age, to find Konkel guilty. Finally, to the extent the State backtracks its argument to claim that K.S.’ statements are for context, as already explained, the record shows that K.S.’ final statement to Konkel was not needed to provide any context to a statement by Konkel. Wash. Ct. of Appeals oral arg., supra, at 13 min., 35 sec. through 13 min., 45 sec.

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We conclude that the State improperly appealed to the passions of the jury when it referenced K.S.’ “see you in heaven” statement. However, we focus more on whether the resulting prejudice could have been cured with a timely objection while assessing the statement in the context of the total argument, rather than whether the prosecutor’s misconduct was flagrant or ill intentioned. Emery, 174 Wn.2d at 762. In closing, the State made two references to K.S.’ suicidal ideation. The first reminded the jury that Vandermolen testified to being concerned about suicidal ideation, which was based on admitted evidence. The second quoted K.S.’ message “see you in heaven.” But the State emphasized throughout its closing that the evidence supporting Konkel’s conviction was K.S.’ own testimony at trial and Konkel’s corroborating statements made in the chat messages to K.S. The State specifically argued that Konkel said:

What felt good. She says: Your hand inside me, your lips was so soft, baby. He confirms and says: Your lips are soft, too, and your pussy, I was, like, damn, I was trying to taste it.

So, this corroborates again the digital penetration.

After the reference to the “see you in heaven” message, the State argued to the jury that “[t]he testimony of [K.S.] is enough, but not only that, we have the corroborative evidence; we have the defendant’s own statements in each of these three incidents that these acts occurred.” The State made no further reference to the “see you in heaven” statement in rebuttal. In considering the prejudice of the challenged argument, we also consider the fact that the jury was able to compartmentalize the evidence by finding Konkel not guilty of two counts, while finding him guilty of count 1, digital penetration.

On this record, we conclude Konkel has not met his burden to show that any prejudice from the challenged statement could not have been cured with a timely objection.

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D. Cumulative Error Finally, Konkel argues that the State’s collective misconduct prejudiced him and requires a new trial. “Cumulative error may warrant reversal, even if each error standing alone would otherwise be considered harmless.” State v. Weber, 159 Wn.2d 252, 279, 149 P.3d 646 (2006). “The doctrine does not apply where the errors are few and have little or no effect on the outcome of the trial.” Id. Because the only misconduct that occurred was the State’s improper appeal to the passions of the jury, we conclude that the cumulative error doctrine does not apply.

Community Custody Conditions Konkel challenges his community custody conditions 6, 10, 12, and 15. We review de novo the trial court’s authority to impose a particular community custody condition. State v. Armendariz, 160 Wn.2d 106, 110, 156 P.3d 201 (2007). Otherwise, we review community custody conditions for an abuse of discretion, reversing only if the conditions are “manifestly unreasonable.” State v. Valencia, 169 Wn.2d 782, 791-92, 239 P.3d 1059 (2010). An unconstitutional condition is always “manifestly unreasonable.” Id. at 792. We do not presume that community custody conditions are constitutional. Id.

Konkel did not object to any of his community custody conditions at sentencing.

Community custody conditions may be reviewed for the first time on appeal if there is a manifest constitutional error or the condition is “illegal or erroneous” as a matter of law, and the condition is ripe for review. State v. Peters, 10 Wn. App. 2d 574, 583, 455 P.3d 141 (2019) (quoting State v. Blazina, 182 Wn.2d 827, 833, 334 P.3d 680 (2015)).

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A. Community Custody Condition 6 Konkel first challenges part of his community custody condition 6, requiring

Within 90 days of release from confinement (or sentencing if no confinement ordered), obtain a sexual deviancy evaluation with a State certified therapist approved by your [CCO]. Participate and make progress in sexual deviancy treatment. Abide by all programming rules, regulations, requirements, and financial obligations. Follow all requirements, conditions, and instructions related to the recommended treatment contract. Do not change therapists without advanced permission of the sentencing Court.

Konkel specifically argues that this condition imposes an unlawful supervision fee. In response, the State argues that this condition is not ripe for review.

Community custody conditions are ripe for review on direct appeal “if the issues raised are primarily legal, do not require further factual development, and the challenged action is final.” State v. Bahl, 164 Wn.2d 739, 751, 193 P.3d 678 (2008) (internal quotation marks omitted). We should also consider whether the parties will experience hardship if they are forced to wait. Valencia, 169 Wn.2d at 790. Our state Supreme Court has held that a challenge to a trial court’s imposition of a discretionary legal financial obligation satisfies the prerequisites for ripeness. Blazina, 182 Wn.2d at 832 n.1. Here, Konkel’s condition is ripe because he is challenging the imposition of a financial obligation contained within condition 6.

Trial courts may no longer impose community custody supervision fees on indigent defendants. Laws of 2022, ch. 29 § 8(2)(d). See RCW 9.94A.703; State v. Jefferson, 192 Wn.2d 225, 246, 429 P.3d 467 (2018). While Konkel did not object to this condition, “appellate courts ‘regularly exercise their discretion to reach the merits of unpreserved [legal financial obligation (LFO)] arguments’ because LFOs can create a significant hardship for indigent defendants and severely hinder their reintegration into

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society.” State v. Ortega, 21 Wn. App. 2d 488, 498, 506 P.3d 1287 (2022) (quoting State v. Glover, 4 Wn. App. 2d 690, 693, 423 P.3d 290 (2018)).

At sentencing, the court found Konkel indigent and waived all nonmandatory LFOs. Thus, it appears that the court mistakenly ordered Konkel to abide by financial obligations of non-mandatory LFOs related to condition 6. We remand for the court to strike this portion of community custody condition 6. B. Community Custody Condition 10 Konkel contends that community custody condition 10 is unconstitutionally vague. The State does not dispute that the challenge to condition 10 is reviewable for the first time on appeal. Condition 10 requires Konkel to “[r]eceive prior approval from [his] supervising [CCO] for [his] residence location, living arrangements, and employment. Immediately notify [his] supervising [CCO] of any change in [his] residence location, living arrangements, or employment.” The court “shall” order this condition unless waived. RCW 9.94A.703(2)(b), (d).

The Due Process Clause, contained in the Fourteenth Amendment of the United States Constitution and article I, section 3 of the Washington Constitution, requires that laws are not vague. Bahl, 164 Wn.2d at 752-53. “The laws must (1) provide ordinary people fair warning of proscribed conduct, and (2) have standards that are definite enough to protect against arbitrary enforcement.” State v. Irwin, 191 Wn. App. 644, 652- 53, 364 P.3d 830 (2015) (citing Bahl, 164 Wn.2d at 752-53) (internal quotation marks omitted). Failure to meet these two requirements renders a community custody condition unconstitutionally vague. Bahl, 164 Wn.2d at 753. However, “a community custody condition is not unconstitutionally vague merely because a person cannot

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predict with complete certainty the exact point at which his actions would be classified as prohibited conduct.” Valencia, 169 Wn.2d at 793 (internal quotation marks omitted). A community custody condition is unconstitutionally vague when (1) it does not define the proscribed conduct with sufficient definiteness so an ordinary person can understand what is proscribed or (2) it does not have sufficiently ascertainable standards to safeguard against arbitrary enforcement. State v. Wallmuller, 194 Wn.2d 234, 238-39, 449 P.3d 619 (2019). To determine whether a term is unconstitutionally vague, we consider the term in the context it is actually used, rather than in a vacuum. City of Spokane v. Douglass, 115 Wn.2d 171, 180, 795 P.2d 693 (1990). Accordingly, if a person of ordinary intelligence can understand what the law proscribes, notwithstanding possible disagreement, the law is sufficiently definite. Bahl, 164 Wn.2d at 754.

Konkel argues that condition 10 “is unconstitutionally vague because it vests DOC with unlimited discretion to deny Mr. Konkel housing or employment.” Indeed, “the more important aspect of [the] vagueness doctrine ‘is not actual notice, but the other principal element of the doctrine—the requirement that a legislature establish minimal guidelines to govern law enforcement.’” Kolender v. Lawson, 461 U.S. 352, 357-58, 103 S. Ct. 1855, 75 L. Ed. 2d 903 (1983) (quoting Smith v. Goguen, 415 U.S. 566, 574, 94 S. Ct. 1242, 39 L. Ed. 2d 605 (1974)). Language having “a standardless sweep” impermissibly “allows police…, prosecutors, and juries to pursue their personal predilections.” Smith, 415 U.S. at 575.

Konkel’s argument conflates whether a vague condition can be fairly enforced by deferring to the CCO’s subjective assessment of what is meant to be prohibited (it

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cannot) with whether state law may grant the DOC the authority to establish conditions in the first instance (here, it does). Konkel relies on Bahl to argue that a condition cannot defer to the CCO. In Bahl, the court rejected as impermissibly vague a community custody condition that the defendant not “possess or access pornographic materials, as directed by the supervising [CCO].” 164 Wn.2d at 743. Courts have held that such conditions are unconstitutionally vague because “pornography” has “never been given a precise legal definition.” Id. at 754. Therefore, granting the CCO authority to define “pornography” “only makes the vagueness problem more apparent, since it virtually acknowledges that on its face it does not provide ascertainable standards for enforcement.” Id. at 758. Notably, the vagueness in the court’s prohibition against pornography could not be cured by inviting CCOs to supply their own, subjective interpretation of what the court had prohibited.

Similarly, in Irwin, this court applied Bahl to a community custody condition prohibiting the defendant from “‘frequent[ing] areas where minor children are known to congregate, as defined by the supervising CCO.”’ 191 Wn. App. at 652, 654. We held that the condition did not give ordinary people sufficient notice to understand what was proscribed “[w]ithout some clarifying language or an illustrative list of prohibited locations.” Id. at 655. Therefore, as in Bahl, we stated that deferring to a CCO to define what the court prohibited would “leave the condition vulnerable to arbitrary enforcement.” Id.

Bahl and Irwin illustrate that the “void for vagueness” doctrine invalidates “two kinds” or criminal laws, “laws that define criminal offenses and laws that fix the

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permissible sentences for criminal offenses.” Beckles v. United States, 580 U.S. 256, 262, 137 S. Ct. 866, 197 L. Ed. 2d 145 (2017). Bahl and Irwin involve the former.

In the instant case, condition 10 does not prohibit Konkel from any residence location, living arrangement, or employment. Instead, it requires Konkel to obtain prior approval. Konkel’s concerns with the CCO’s alleged “unlimited discretion” does not involve the discretion at issue in Bahl and Irwin. There, the court prohibited an undefined term, leaving the CCO to interpret what was prohibited. See, e.g., Bahl, 164 Wn.2d at 758; Irwin, 191 Wn. App. at 655. In the instant case, the court has not imposed any residence location, living arrangement, or employment, but only a requirement to receive CCO approval of it. Deferring to a CCO’s statutory authority to set a condition in the first instance does not implicate the vagueness doctrine. Said another way, the void for vagueness doctrine prohibits putting a vague condition at a CCO’s disposal that is amenable to arbitrary enforcement, but it does not by itself bar state law from granting the CCO the authority to set a proper condition in the first instance.

Konkel also argues that condition 10 is unconstitutionally vague because “[i]t gives DOC absolute power to restrict Mr. Konkel from any job and any housing arrangement” and “to render Mr. Konkel homeless.” However, the statutory framework sets parameters that limit the CCO’s authority to impose conditions. See RCW 9.94A.703.

At sentencing, Washington’s Sentencing Reform Act of 1981, ch. 9.94A RCW (SRA), authorizes the court to set certain conditions, and requires the court to set certain others. RCW 9.94A.703(1)-(3). The court must “[r]equire the offender to comply

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with any conditions imposed by the [DOC] under RCW 9.94A.704.” RCW 9.94A.703(1)(b). The SRA then authorizes the DOC to establish and modify additional community custody conditions based on the risk to community safety. RCW 9.94A.704(2)(a). Under RCW 9.94A.704(7)(b), a CCO can validly impose a condition only if it is “reasonably related” to at least one of either the crime of conviction, the offender’s risk of reoffending, or the safety of the community. Therefore, the CCOs can only impose conditions on Konkel’s residence location, living arrangement, or employment that are related to one of those categories.

Additionally, when the DOC sets a condition, it “shall notify the offender in writing.” RCW 9.94A.704(7)(a). Should Konkel disagree with the CCO’s decision to deny his residence, living arrangement, or employment, he can, within a specified time, “request an administrative review” of the condition. RCW 9.94A.704(7)(b). Those sufficiently ascertainable standards protect against arbitrary enforcement and provide that the DOC does not have “absolute power” to deny Konkel “any” job or housing or render him homeless. A void for vagueness problem is not present because Konkel’s condition amounts to authorizing the CCO to deny his residence location, living arrangement, or employment “from within a statutory range.” Beckles, 580 U.S. at 264. When placed in its statutory context, the challenged condition does not pose a risk of arbitrary enforcement.

The first prong of the void for vagueness test asks whether a condition defines the proscribed conduct with sufficient definiteness so an ordinary person can understand what is proscribed. Douglass, 115 Wn.2d at 178. Konkel does not argue that the condition is unconstitutionally vague because it does not tell him when the CCO

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can deny his residence location, living arrangement or employment. Indeed, Konkel’s condition does not tell him what residence location, living arrangement, or employment to avoid. Instead, it only requires that Konkel receive CCO approval for these categories. An ordinary person can understand this requirement.

Finally, a CCO could impermissibly deny Konkel’s residence location, living arrangement, or employment if it is not related to the crime of conviction, the offender’s risk of reoffending, or the safety of the community. RCW 9.94A.704(7)(b). Should this occur, the denial would fail administrative review under RCW 9.94A.704(7)(b). Additionally, even if the condition escaped administrative review, there would remain a backstop of post-enforcement relief. See State v. Sansone, 127 Wn. App. 630, 641, 643, 111 P.3d 1251 (2005) (reversing finding of community custody violation because of unconstitutional vagueness and remanding for imposition of a compliant condition). Therefore, we hold that the condition requiring Konkel to receive CCO approval for his residence location, living arrangement, and employment is not unconstitutionally vague. C. Community Custody Condition 12 Community custody condition 12 requires Konkel “consent to DOC home visits to monitor [his] compliance with supervision. Home visits include access for purposes of visual inspection of all areas of the residence in which [Konkel] live[s] or ha[s] exclusive or joint control and/or access.”

Konkel argues that this condition is unconstitutionally vague because it grants unlimited discretion to DOC to decide the frequency, timing, and scope of searches in violation of his right to privacy under article I, section 7. The State argues that a pre-

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enforcement challenge to this condition is not ripe for review. We disagree with the State.

In State v. Cates, the defendant’s community custody condition required him to “consent to [DOC] home visits to monitor your compliance with supervision. Home visits include access for the purposes of visual inspection of all areas of the residence in which you live or have exclusive/joint control/access, to also include computers which you have access to.” 183 Wn.2d 531, 533, 354 P.3d 832 (2015). The court held that this condition was not ripe for review because it required further factual development, explaining that “[s]ome future misapplication of the community custody condition might violate article I, section 7, but that ‘depends on the particular circumstances of the attempted enforcement.’” Id. at 535 (quoting Valencia, 169 Wn.2d at 789). Additionally, the court concluded that the risk of hardship to the defendant was insufficient to justify review because “[c]ompliance here does not require Cates to do, or refrain from doing, anything upon his release until the State requests and conducts a home visit.” Id. at 536. Therefore, the court held that the defendant’s pre-enforcement challenge was not ripe. Id.

Recently, in State v. Haas, 36 Wn. App. 2d 656, 661-63, 586 P.3d 645 (2026), the court addressed a pre-enforcement challenge to a community custody condition when the defendant is released from custody but subject to his community custody conditions. The defendant had a community custody condition requiring him to “consent to allow home visits by [the DOC] to monitor compliance with supervision. This includes search of the defendant’s person, residence, automobile, or other personal property, and home visits include access for the purposes of inspection of all areas the defendant

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lives or has exclusive/joint control or access.” Id. at 659 (alteration in original). The Haas court distinguished Cates, holding that the defendant’s challenge was ripe because he was released from confinement. Id. at 662-63. Therefore, the defendant raised a legal issue regarding constitutional rights that is final because it was set during the defendant’s judgment and sentence and currently creates hardship for the defendant because it was imposed upon his release. Id.

We apply the reasoning from Haas to the instant case and conclude the matter is ripe for review. The parties do not dispute that Konkel is released from custody and subject to his community custody conditions. In fact, the State acknowledged that the defendant was released from custody and present during oral argument. Wash. Ct. of Appeals oral arg., supra, at 16 min., 49 sec. through 16 min., 52 sec.

Our state Supreme Court in State v. Cornwell addressed a post-enforcement challenge to a probation condition. 190 Wn.2d 296, 301, 412 P.3d 1265 (2018). In Cornwell, the police searched the defendant’s vehicle without a search warrant after a traffic stop revealed he had an outstanding arrest warrant for a probation violation. Id. at 298-99. The defendant had a probation condition stating, “I am aware that I am subject to search and seizure of my person, residence, automobile, or other personal property if there is reasonable cause on the part of the [DOC] to believe that I have violated the conditions/requirements or instructions above.” Id. at 298. The defendant argued that the search of his vehicle violated his right to privacy because there was no nexus between his car and the alleged probation violation. Id. at 302-03. The court agreed, reasoning that “[l]imiting the scope of a CCO’s search to property reasonably believed to have a nexus with the suspected probation violation protects the privacy and dignity

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of individuals on probation while still allowing the State ample supervision.” Id. at 306. Therefore, the court held that “article I, section 7 permits a warrantless search of the property of an individual on probation only where there is a nexus between the property searched and the alleged probation violation.” Id. In addition, “a CCO must have ‘reasonable cause to believe’ a probation violation has occurred before conducting a search at the expense of the individual’s privacy.” Id. at 304. And any search must diminish an individual’s privacy interests only “to the extent necessary for the State to monitor compliance with the particular probation condition that gave rise to the search.” Id.

In the instant case, the community custody condition is vague because none of the safeguards set forth in Cornwell are included in the language of the condition, and Konkel is required to consent to a condition with plain language permitting arbitrary enforcement. Thus, we remand to the trial court to readdress community custody condition 12 to make clear in the language of the condition that DOC’s authority to search is consistent with the safeguards articulated in Cornwell. D. Community Custody Condition 15 Finally, Konkel argues that condition 15, prohibiting him from “seek[ing]

employment or volunteer positions which place [him] in contact with, control over, or hold any position of authority or trust involving minor children,” is unconstitutionally vague. Specifically, Konkel argues that this condition does not provide notice of what is prohibited, comparing his case to Irwin.

Again, in Irwin, the defendant challenged his community custody requiring him not to “frequent areas where minor children are known to congregate, as defined by the

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supervising CCO.” 191 Wn. App. at 650. This court compared Irwin to Bahl and State v. Sansone, 127 Wn. App. 630, 638, 111 P.3d 1251 (2005), which addressed conditions requiring the CCO to define “pornography.” Irwin, 191 Wn. App. at 654. Both Bahl and Sansone explained that “community custody conditions that required further definition from CCOs were unconstitutionally vague.” Id. “While Bahl and Sansone involved the intractably undefinable term ‘pornography,’ [Irwin] simply requires ordinary people to understand where ‘children are known to congregate.’” Id. However, this court highlighted that the defendant in Irwin pointed out that it is not immediately clear whether public places such as “public parks, bowling alleys, shopping malls, theaters, churches, [and] hiking trails” are where children are known to congregate. Id. As a result, the defendant’s trial counsel requested the court to list prohibited places as examples. Id. The trial court explained that the defendant “should not frequent areas of high concentration of children,” but did not include this clarification in the final condition. Id. at 654-55 (internal quotation marks omitted). As a result, the Irwin court held that “[w]ithout some clarifying language or an illustrative list of prohibited locations (as suggested by trial counsel), the condition does not give ordinary people sufficient notice to ‘understand what conduct is proscribed.’” Id. at 655 (citing Bahl, 164 Wn.2d at 753).

The court also clarified that “[i]t may be true that, once the CCO sets locations where, ‘children are known to congregate’ for [the defendant, he] will have sufficient notice of what conduct is proscribed.” Id. And, “although that would help the condition satisfy the first prong of the vagueness analysis, it would leave the condition vulnerable to arbitrary enforcement.” Id. (citing Bahl, 164 Wn.2d at 753; Sansone, 127 Wn. App. at 639). Therefore, the Irwin court ordered the trial court to strike the condition as void for

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vagueness because the potential for arbitrary enforcement renders the condition unconstitutional under the vagueness analysis’ second prong. Id.

The community custody condition in Irwin is distinguishable from the condition in the instant case. Unlike Bahl, Sansone, and Irwin, Konkel’s condition does not require the CCO to define vague terms such as locations where “children are known to congregate.” Instead, it states that Konkel cannot “seek employment or volunteer positions which place [him] in contact with, control over, or hold any position of authority or trust involving minor children.” Although Konkel’s condition 15 did not list specific employment positions he cannot seek, his condition is specific enough to understand what is prohibited. See Bahl, 164 Wn.2d at 754 (stating that the law is sufficiently definite if a person of ordinary intelligence can understand what the law proscribes).

Konkel argues that the condition “simply” prohibits him from working in jobs that would place him in contact with minors and “many form[s] of employment occasionally place an employee into proximity to a minor.” We disagree. Condition 15 does not prevent him from pursuing employment or volunteer positions where he may be in “proximity to a minor.” Condition 15 prohibits him from seeking such positions that would place him in contact with, in control over, or hold any position of authority or trust over a minor. We hold that condition 15 is not unconstitutionally vague. 8

8 Our holding that community custody condition 15 is not unconstitutionally vague is not inconsistent with State v. Alex, No. 86887-0-I (Wash. Ct. App. July 21, 2025) (unpublished), https://www.courts.wa.gov/opinions/pdf/868870.pdf (review denied, 5 Wn.3d 1028, 581 P.3d 628 (2026)). In Alex, the State conceded that a community custody condition similar to Konkel’s community custody condition 15 was unconstitutionally vague and should be struck. Id. at 7-8. The State then recommended “clarification by specifying that Alex may not have ‘unsupervised contact’ with minors or including a non-exclusive, illustrative list of prohibitions.” Id. at 8. Consistent with the State’s concession, we remanded the matter to the trial court to amend the community custody condition. Id. Here, in contrast, the State has not conceded that community custody condition 15 is unconstitutionally vague. And while we agree that adding a non-

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CONCLUSION

We remand for the trial court to strike the portion of community custody condition 6 that requires Konkel to abide by LFOs related to that condition, and for the trial court to readdress community custody condition 12 consistent with this opinion. We otherwise affirm.

WE CONCUR:

exclusive illustrative list of prohibitions could be helpful, doing so is not mandated by due process principles.