IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 78045-0-I
Respondent, DIVISION ONE
v. UNPUBLISHED OPINION
ERIC SHAWN THOMAS,
Appellant. FILED: May 28, 2019
CHuN, J. — The State originally charged Eric Thomas with one count of
voyeurism. After obtaining a search warrant for Thomas’s cell phone, police
found video showing a separate incident of voyeurism, which gave rise to a
second charge. Thomas moved to suppress the video, claiming the warrant was
overbroad. The trial court denied the motion. Thomas appeals his conviction on
both counts of voyeurism, renewing the warrant issue and claiming ineffective
assistance of counsel and prosecutorial misconduct. Thomas also appeals the
imposition of certain community custody conditions. Because the warrant
provision provided clear parameters to the executing officer, and Thomas fails to
establish his other claims, we affirm.
BACKGROUND On May 1, 2017, K.H. and D.C. were engaging in sexual intercourse
inside the bedroom of K.H.’s apartment when K.H. saw someone looking through
her partially-closed blinds. K.H. screamed and D.C. pulled on pants and ran out No. 78045-0-1/2
the door. D.C. ran into the alley behind the apartment. D.C. looked over the
seven-foot fence adjacent to the apartment building, and saw Thomas crouching
on the other side with a cell phone in hand. Seeing the cell phone, D.C.
assumed Thomas had been filming them. D.C. told Thomas to jump over the
fence and Thomas complied. Thomas told D.C. he had been urinating behind
the building. The two had a verbal altercation.
K.H. came outside and called 911. During the call, D.C. provided a
physical description to the police. Thomas walked down the street and into
another apartment complex.
Seattle Police Officer Christopher Shoul responded to the call. Officer
ShouT took statements from D.C. and K.H., while another police unit patrolled the
area looking for Thomas. After Officer Shoul finished investigating at the scene,
he located Thomas sitting at a nearby bus stop. Thomas told Officer ShouT he
had been watching basketball playoffs and drinking at a bar with some friends.
After being told one of the victims would come by to identify him, Thomas
eventually told Officer Shoul that he had gone around the building to urinate and
heard two people “having sex.” Thomas said he looked and said “wow.”
Officer ShouT returned to the apartment and took D.C to the bus stop to
identify Thomas. D.C. positively identified Thomas. Another officer arrested and
transported Thomas to the police station, where his cell phone was placed into
evidence.
Seattle Police assigned Detective Scott Hatzenbuehler to the case.
Thomas told Detective Hatzenbuehler the following version of events: He had
2 No. 78045-0-113
been drinking beers and watching a playoff game with some friends at a bar in
the area. He walked to the bus stop after the game, but missed the bus. While
sitting at the bus stop, Thomas had to use the restroom and walked around the
back of an apartment building to relieve himself. While relieving himself, Thomas
heard ‘some sex going on.” Then Thomas heard someone at the window yelling.
Soon after, a man came running out and accused Thomas of watching them.
Thomas was not video recording and there was nothing of that nature on the
phone.
Detective Hatzenbuehler applied for and obtained a search warrant for
Thomas’s cell phone. The search warrant permitted a search of Thomas’s phone
to find evidence related to its use on May 1,2017 including calls, messages,
photographs, videos, and location data. The warrant also allowed for a search
for “[p]hotographs of [K.H.] or [D.C.], or any parts of a male or female that could
be [K.H.] or [D.C.], or of [K.H.’s] apartment building, whether the interior or
exterior of that building,” and “any other information that is evidence of the
above-listed crime(s),” without date restriction.
A specially-trained detective extracted the data from the cell phone. Upon
receiving the data, Detective Hatzenbuehler began looking for video1 or images
pursuant to the warrant. Looking for evidence of voyeurism, Detective
Hatzenbuehler first scrolled through the videos and saw a thumbnail image from
1 Despite the warrant provision’s limitation to photographs,” Detective Hatzenbuehler searched for videos. Thomas does not object to the search on this ground. Neither Thomas nor the State distinguishes between photographs and videos in their arguments. Because there is no meaningful difference between photographs and videos in this context, we also do not distinguish between them in our analysis.
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video 19 showing window blinds with what looked like a light on inside and
darkness outside. Detective Hatzenbuehler played the short, 20-second video.
The video, dated April 4, 2017 appeared to show voyeuristic activity on the part
of the person recording.
Although Detective Hatzenbuehler believed the evidence was within the
scope of the warrant, he decided to obtain an addendum to the warrant in case
he found additional evidence.2 Upon examination, video 19 appeared to be shot
through a window and showed a woman sitting at a computer. The woman never
looked in the direction of the recording. Detective Hatzenbuehler later
determined the woman in the video was C.W., who lived in the same apartment
building as, and just next door to, K.H.
The State originally charged Thomas with one count of voyeurism. After
discovery of the video of C.W., the State amended the information to include a
second count of voyeurism.
In pretrial motions, Thomas attempted to suppress the video of C.W.,
arguing Detective Hatzenbuehler exceeded the scope of the warrant and
obtained the video pursuant to an overbroad warrant. The trial court denied the
motion.
During trial, Thomas moved for a mistrial due to admission of an audio
recording of the 911 call. The trial court also denied this motion. The jury found
Thomas guilty on both counts.3 Thomas now appeals.
2 Thomas does not raise any claims related to the warrant addendum. ~ Below, additional pertinent facts are introduced as needed for the individual issues.
4 No. 78045-0-1/5
ANALYSIS A. Search Warrant
Thomas argues the trial court erroneously admitted the video of C.W.,
because police obtained it through an overbroad search warrant.4 Thomas
claims this results in insufficient evidence to convict on Count II and prejudice as
to Count I, requiring reversal for both counts. The State contends police found
the video of C.W. pursuant to a sufficiently particular search warrant. Because
the warrant provided clear parameters to the executing officer, we agree with the
State.
Cell phones are ‘private affairs” under article I, section 7 of the
Washington State Constitution, requiring a warrant or an applicable exception for
a lawful search. State v. Samalia, 186 Wn.2d 262, 268, 375 P.3d 1082 (2016).
The Fourth Amendment to the United States Constitution requires a warrant to
describe with particularity the things to be seized. State v. Higgins, 136 Wn. App.
87, 91, 147 P.3d 659 (2006). This requirement exists to “make a general search
‘impossible and prevent[] the seizure of one thing under a warrant describing
another.” State v. McKee, 3 Wn. App. 2d 11, 22, 413 P.3d 1049 (2018) (quoting
Marron v. United States, 275 U.S. 192, 196, 48 S. Ct. 74, 72 L. Ed. 231 (1927)),
rev’d on other grounds, No. 96035-6 (Wash. Apr. 22, 201 9),
http://www.courts.wa.gov/opinions/pdf/960356.pdf). Particularity also eliminates
~ During oral argument, Thomas’s counsel noted that Detective Hatzenbuehler “arguably” did not act outside the warrant. Rather than argue Detective Hatzenbuehler acted outside the warrant, Thomas assigned error to the language of the warrant and argued overbreadth. Wash. Court of Appeals oral argument, State v. Thomas No. 78045-0-I (April 16, 2019), at 2 mm., 47 sec. through 2 mm., 59 sec. (on file with court).
5 No. 78045-0-116
unlimited discretion in the executing officer’s determination of what to seize, and
informs the person subject to the search of what items the officer may seize.
State v. Besola, 184 Wn.2d 605, 610-11 359 P.3d 799 (2015). The degree of
particularity depends on the nature of the materials sought and the facts of the
case. State v. Keodara, 191 Wn. App. 305, 313, 364 P.3d 777 (2015).
“In general, Washington courts have recognized that the search of
computers or other electronic storage devices gives rise to heightened
particularity concerns.” Keodara, 191 Wn. App. at 314. This heightened
particularity arises because advances in technology and the centrality of
computers in the lives of average people have rendered the computer hard drive
akin to a residence in terms of the scope and quantity of private information it
may contain.” United States v. Galpin, 720 F.3d 436, 446 (2nd Cir. 2013).
“A properly issued warrant ‘distinguishes those items the State has
probable cause to seize from those it does not,’ particularly for a search of
computers or digital storage devices.” Keodara, 191 Wn. App. at 314 (quoting
State v. Askham, 120 Wn. App. 872, 879, 86 P.3d 1224 (2004)). An overbroad
warrant lacks the requisite particularity. See Keodara, 191 Wn. App. at 312.
Three factors assist in determining whether a warrant suffers from overbreadth: “(1) whether probable cause exists to seize all items of a particular type described in the warrant, (2) whether the warrant sets out objective standards by which executing officers can differentiate items subject to seizure from those which are not, and (3) whether the government was able to describe the items more particularly in light of the information available to it at the time the warrant was issued.”~5~
~ This opinion refers to these as the ‘Higgins factors.”
6 No. 78045-0-1/7
Higgins, 136 Wn. App. at 91-92 (internal quotation marks omitted) (quoting
United States v. Mann, 389 F.3d 869, 878 (9th Cir. 2004)).
Courts evaluate search warrants “in a commonsense, practical manner,
rather than in a hypertechnical sense.” State v. Perrone, 119 Wn.2d 538, 549,
834 P.2d 611 (1992) (citing United States v. Turner, 770 F.2d 1508, 1510 (gth Cir.
1985) cert. denied, 475 U.S. 1026 (1096)). “The underlying measure of
adequacy in a description is whether, given the specificity of the warrant, a
violation of personal rights is likely.” Keodara, 191 Wn. App. at 313. “A search
warrant must be definite enough that the executing officer can identify the
property sought with reasonable clarity and eliminate the chance that the
executing officer will exceed the permissible scope of the search.” State v.
McKee, 3 Wn. App.2d at 28-29.
Appellate courts review de novo a trial court’s probable cause and
particularity determinations on a motion to suppress. Keodara, 191 Wn. App. at
312. Admission of evidence obtained in violation of the state or federal
constitution amounts to an error of constitutional magnitude. Keodara, 191 Wn.
App. at 317.
Here, Thomas alleges overbreadth based on the provision of the original
warrant authorizing a search of Thomas’s cell phone for ‘[p]hotographs of [K.H.]
or [D.C.], or any parts of a male or female that could be [K.H.] or [D.C.], or of
[K.H.’s] apartment building, whether the interior or exterior of that building.”6 This 6 During oral argument, counsel raised an issue of overbreadth as to an additional
warrant provision allowing search of the cell phone for “[a]ny other information that is evidence of the above-listed crimes(s).” Wash. Court of Appeals oral argument, State v. Thomas No. 78045- 0-I (April 16, 2019), at 3 mm., 1 sec. through 3 mm., 29 sec. (on file with court). However,
7 No. 78045-0-118
provision of the warrant did not limit the search to the specific date of the
incident. Thomas argues the lack of a date restriction caused the warrant to fail
the Higgins factors and allowed for search and seizure of data without regard to
its connection to the crime on May 1, 2017.
Thomas likens this case to Keodara, which involved a fatal shooting at a
bus stop. 191 Wn. App. at 311. Five weeks after the shooting and based on an
unrelated incident, the police obtained a search warrant authorizing search of the
defendant’s cell phone for a broad range of cell phone data, including all call
activity, photographs, videos, documents, and internet activity, based on the
police officer’s belief that gang members’ phones often contain evidence of
criminal activity. Keodara, 191 Wn. App. at 309-10. The cell phone contained
images of the defendant wearing clothes similar to those of the bus stop shooter
and the State charged the defendant with murder. Keodara, 191 Wn. App. at
311.
The defendant moved to suppress all evidence from the phone for lack of
probable cause. Keodara, 191 Wn. App. at 311. The supporting affidavit relayed
only the officer’s knowledge of gang members’ use of their phones to document
their activities. Keodara, 191 Wn. App. at 310-11. The warrant authorized the
search for stored information, and “any and all other evidence suggesting the
crimes listed above [assault in the fourth degree, unlawful possession of
firearms, possession with intent to deliver or sell narcotics.]” Keodara, 191 Wn.
Thomas’s briefing addresses only the specific photograph provision. We do not consider arguments made outside the briefing. RAP 10.3.
8 No. 78045-0-1/9
App. at 309-10. This court found the warrant overbroad because, “{t]here was no
limit on the topics of information for which the police could search. Nor did the
warrant limit the search to information generated close in time to the incidents for
which the police had probable cause.” Keodara, 191 Wn. App. at 316.
Similarly, McKee, 3 Wn. App.2d at 29, involved a warrant authorizing a
“physical dump” of the phone’s memory. During an investigation of sexual
exploitation of a minor and dealing in depictions of a minor engaged in sexually
explicit conduct, police obtained a warrant authorizing a search for all images,
videos, documents, calendars, call logs, and other data. McKee, 3 Wn. App.2d
at 29. “The warrant gives the police the right to search the contents of the cell
phone and seize private information with no temporal or other limitations.”
McKee, 3 Wn. App.2d at 29. This allowed a search of general categories of data
without objective standards to guide the police executing the warrant. McKee, 3
Wn. App.2d at 29. As a result, the warrant failed to meet the particularity
requirement of the Fourth Amendment. McKee, 3 Wn. App.2d at 29.
In Keodara and McKee, the warrants lacked particularity because they
allowed for searches of a broad range of data without a data or date restriction.
However, neither Keodara nor McKee hold that a warrant must include both data
and date restrictions to satisfy the particularity requirement. Rather, the warrants
in the cases lacked either limitation, and therefore suffered from overbreadth. As
noted in McKee, the warrant gave police “the right to search the contents of the
cell phone and seize private information with no temporal or other limitation.”
3 Wn. App.2d at 29 (emphasis added).
9 No. 78045-0-I/iC
Unlike the wide-ranging warrants in Keodara and McKee, the warrant in
this case provided specific, case-related limits to the search. Most of the warrant
provisions limited the search to digital information from May 1,2017. The
provision at issue lacked a date restriction but included a data restriction that
limited the search only to images depicting D.C., K.H., K.H.’s apartment building,
or “any parts of a male or female that could be” K.H. or D.C. With this data
restriction, the warrant resembles the one upheld in Askham. 120 Wn. App. at
879. In Askham, the warrant allowed for seizure of a wide range of digital
storage, including computers, drives, disks, and other memory storage. 120 Wn.
App. at 879, While the warrant allowed search of a broad category of material, it
specified the files and applications for search. Askham, 120 Wn. App. at 879.
The warrant listed text files related to the victim, specific internet sites, graphic
images and image files, and text files relating to manipulation of digital images.
Askham, 120 Wn. App. at 879. With these established parameters, “[t]he
warrant’s description left no doubt as to which items were to be seized and was
‘not a license to rummage for any evidence of any crime.” Keodara, 1 91 Wn.
App. at 314 (quoting Askham, 120 Wn. App. at 880). As a result of this
specification of files subject to search, the warrant satisfied the particularity
requirement.
With its limitation to photographs of D.C., K.H., K.H.’s building, and “any
parts of a male or female that could be” K.H. or D.C., the warrant provision at
issue in this case includes even more restrictive language than in Askham. The
warrant allowed Detective Hatzenbuehler to search solely for those particular
10 No. 78045-0-Ill I
images on the cell phone. The search was more akin to the physical search of a
box of photographs than an examination of the entire digital contents of a cell
phone as found in Keodara and McKee. Rather than allowing law enforcement
to rummage through a wide range of private information that Thomas might have
had on his phone, the provision focused on the category of images.
In examining these images, “[a] degree of flexibility is required.” See
United States v. Abboud, 438 F.3d 554, 576 n.7 (6th Cir. 2006). This includes
flexibility as to dates as “evidence that date{s] from outside of the time period’
described in the warrant affidavit ‘may be relevant to the activity within the time
period.” United States v. Manafort, 313 F.Supp.3d 213, 235, (D.D.C. 2018)
(quoting Abboud, 438 F.3d at 576, n.7). The United States Supreme Court has
recognized that ‘proof of similar acts is admissible to show intent or the absence
of mistake.” Andresen v. Maryland, 427 U.S. 463, 483, 96 5. Ct. 2737, 49
L.Ed.2d 627 (1976). In this case, images of K.H., D.C., and K.H.’s building from
prior dates are relevant to the crime charged for this very reason. The State
relied on the April video of C.W. to argue that Thomas purposefully went behind
to building to look in the windows.7
Here, the warrant did not allow for a broad search of files for photographs
or videos unrelated to the crime at issue or violate the Higgins factors. The
warrant provided clear parameters to the executing officer. Detective
Hatzenbuehler could not legally search for images depicting other people in other
~ The defense did not object to the State’s use of this evidence during closing argument and rebuttal.
11 No. 78045-0-1/12
places; if video 19 depicted C.W. in a different building, the evidence would have
been outside the original warrant. Therefore, the warrant was not overbroad.
B. Ineffective Assistance of Counsel
Thomas argues ineffective assistance of trial counsel based on the
proposal of an incorrect jury instruction and the inadvertent admission of
potentially damaging evidence from a 911 call. While counsel erred in both
respects, Thomas cannot demonstrate prejudice as a result of those errors.
Effective assistance of counsel is guaranteed by the Sixth Amendment of
the United States Constitution and article I, section 22 of the Washington
Constitution. State v. Hendrickson, 129 Wn.2d 61, 77, 917 P.2d 563 (1996). To
prevail on a claim of ineffective assistance of trial counsel, a defendant must
prove both deficient performance and prejudice. State v. Jones, 183 Wn.2d 327,
339, 352 P.3d 776 (2015).
Establishing deficient performance requires a showing that counsel’s
representation fell below an objective standard of reasonableness based on all
the circumstances. State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816
(1987). Prejudice sufficient to support a claim of ineffective assistance of
counsel occurs when counsel’s errors were so serious as to deprive the
defendant of a fair trial. Hendrickson, 129 Wn.2d at 78. The defendant must
show a ‘reasonable probability that, but for counsel’s errors, the result of the trial
would have been different.” Hendrickson, 129 Wn.2d at 78.
A claim of ineffective assistance of counsel is a mixed question of law and
fact that an appellate court reviews de novo. Jones, 1 83 Wn.2d at 338-39.
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1. Jury Instruction
Thomas alleges trial counsel provided ineffective assistance of counsel by
proposing inaccurate and incomplete lesser included offense instructions. The
State argues Thomas cannot establish the prejudice necessary to support an
ineffective assistance claim. We agree with the State.
Jury instructions must not be misleading and must properly inform the trier
of fact. State v. Grimes, 92 Wn. App. 973, 978, 966 P.2d 394 (1998). “The jury
is presumed to read the court’s instructions as a whole, in light of all other
instructions.” Statev. Hutchinson, 135 Wn.2d 863, 885, 959 P.2d 1061 (1998).
Additionally, the appellate court reviews individual jury instructions in the context
of the instructions as a whole. State v. Tyler, 191 Wn.2d 205, 216, 422 P.3d 436
(2018). Here, the trial court issued instruction 10, defining voyeurism: A person commits the crime of voyeurism when, for the purposes of arousing or gratifying the sexual desire of any person, the person knowingly views or photographs or films a second person without the second person’s knowledge and consent, and while the second person is being viewed or photographed or filmed, the second person is in a place where he or she would have a reasonable expectation of privacy. (Emphasis added.) The trial court also gave a to-convict instruction for
voyeurism as instruction 15.
Defense counsel proposed lesser included offense instructions for
attempted voyeurism in the first degree.8 The trial court subsequently provided
8 Although counsel proposed the instruction, the invited error doctrine does not bar
Thomas’s argument for ineffective assistance based on this issue. State v. Kyllo, 166 Wn.2d 856, 861, 215 P.3d 177 (2009). ‘If instructional error is the result of ineffective assistance of counsel, the invited error doctrine does not preclude review.” ~ 166 Wn.2d at 861. In other words, the
13 No. 78045-0-1/14
the suggested instructions on attempted voyeurism in the first degree. The trial
court instructed, “A person commits the crime of attempted Voyeurism in the first
degree when, with the intent to commit that crime, [they do] any act that is a
substantial step toward the commission of that crime.” (Emphasis added.) The
court also gave the following to-convict instruction: To convict the defendant of the crime of attempted voyeurism in the first degree, each of the following elements of the crime must be proved beyond a reasonable doubt: (1) That on or about May 1, 2017, the defendant did an act that was a substantial step toward the commission of voyeurism in the first degree; (2) That the act was done with the intent to commit voyeurism in the first degree; and (3) That the act occurred in the State of Washington. (Emphasis added.)
However, when Thomas committed the crimes in April and May 2017,
voyeurism in the first degree did not exist. Former RCW 9A.44. 115 established
only the single crime of voyeurism. The legislature amended ROW 9A.44. 115
and divided the crime of voyeurism into first and second degree offenses in 2017,
effective July 23, 2017. LAws OF 2017, ch. 292, sec. 1. Thomas’s trial occurred
in 2018, after the effective date of the statute establishing the crime of voyeurism
in the first degree. Therefore, defense counsel successfully proposed jury
instructions for a crime that existed at the time of trial but did not pertain to
Thomas based on the dates of his offenses. Additionally, the lesser included
offense instructions refer to voyeurism in the first degree, while the main offense
invited error doctrine does not apply where the error at issue serves as the basis for an ineffective assistance claim.
14 No. 78045-0-1115
instructions, instructions 10 and 15, refer to voyeurism rather than voyeurism in
the first degree.
Despite the erroneous instructions on attempted voyeurism in the first
degree, Thomas cannot demonstrate a “reasonable probability that, but for
counsel’s errors, the result of the trial would have been different.” Hendrickson,
129 Wn.2d at 78. The elements for voyeurism under former ROW 9A.44. 115 are
identical to those for voyeurism in the first degree under the amended statute
ROW 9A.44. 11 5(2)(a). Regardless of the name, the jury received the correct
definition and elements for the lesser included offense.
Furthermore, the jury instructions included only the single definition of
voyeurism given in instructions 10 and 15. The jury had no other definition of
voyeurism before t. Because the only definition provided the correct elements of
the law, the likelihood of confusion was minimal. Taking the jury instructions as a
whole, the only definition given for voyeurism properly informed the jury of the
applicable law. Thomas has not shown that the instructions created any
confusion for the jury. As a result, his ineffective assistance claim on this ground
fa i Is.
2. 911 Oall
Prior to trial, Thomas brought a motion in limine to preclude the witnesses
from testifying that he, or anyone else, looked through K.H.’s window on prior
occasions. The State did not object, and the trial court granted the motion.
During trial, the State played the entirety of the recorded 911 call placed
by K.H. during the incident. On the recording, K.H. states, “I’ve seen him before
15 No. 78045-0-1/16
in our window,” and “he watches me.” D.C. also says, ‘[H]e’s done this before.” ~
After the jury heard the audio recording, defense counsel requested a sidebar
and moved for a mistrial. The trial court subsequently denied the mistrial and
admonished counsel, “I was a little taken aback, because I feel that it was
incumbent on the counsels to know the evidence that’s being presented before
the court.” Defense counsel declined a curative instruction for fear it would call
attention to the statements. The parties agreed to redact the recording in case
the jury requested to listen to it again. The trial court admitted the redacted
version into evidence to substitute for the original, but the jury did not ask to hear
the call again.
Thomas argues ineffective assistance due to trial counsel’s failure to
review the 911 call for potentially damaging statements and object to its
admission on proper grounds. The State contends Thomas cannot demonstrate
the requisite prejudice because the jury may not have heard the statements and
the statements were essentially cumulative of the video of C.W. We agree with
the State.
Through muffled statements on the 911 call, the jury potentially learned
that Thomas had been outside K.H.’s apartment prior to May 1, 2017. However,
C.W. and K.H. have neighboring windows in the apartment building. Admission
of video of C.W., taken from the same location outside their neighboring
apartment windows on April 4, 2017, provided essentially the same information to
~ The trial court did not hear the statements when the recording was played for the jury. The trial court only discerned the statements after listening again outside of proceedings.
16 No. 78045-0-1/17
the jury. The State repeatedly referred to the April date of the video. Therefore,
admissible evidence placed Thomas outside of C.W. and K.H.’s bedroom
windows within the month prior to the incident.
Additionally, the video of C.W. and the erroneous evidence from the 911
call both negated Thomas’s defense of happenstance. The video of C.W.
demonstrated that Thomas had been behind the building on a prior occasion,
making his presence on May 1, 2017 less likely related to his emergent need to
find a place to urinate. The statements from the 911 call established that
Thomas watched K.H. on prior occasions, allowing for the conclusion that he did
not randomly decide to urinate in that location. As a result, the 911 call provided
redundant evidence to negate Thomas’s claims.
Because the video of C.W. taken from outside their neighboring windows
demonstrated Thomas’s prior presence outside of K.H.’s window and negated
any claim of mistake, the statements in the 911 call amounted to cumulative
evidence. Thomas fails to demonstrate ‘reasonable probability that, but for
counsel’s errors, the result of the trial would have been different.” Hendrickson,
129 Wn.2d at 78. Therefore, Thomas cannot show prejudice to support
ineffective assistance of counsel on this ground.
C. Prosecutorial Misconduct
Thomas claims the prosecutor committed misconduct during closing
argument by undermining the presumption of innocence. The State argues that
an objection and instruction from the court would have cured any prejudice
resulting from the prosecutor’s comment. While we agree that the prosecutor’s
17 No. 78045-0-1118
statements amount to an error of law, Thomas fails to demonstrate the prejudice
required for a successful claim of prosecutorial misconduct.
To prevail on a claim of prosecutorial misconduct, the defendant must
prove that the prosecutor’s comments were improper and prejudicial. State v.
Yates, 161 Wn.2d 714, 774, 168 P.3d 359 (2007). “The burden to establish
prejudice requires the defendant to prove that ‘there is a substantial likelihood
[that] the instances of misconduct affected the jury’s verdict.” State v.
Thorgerson, 172 Wn.2d 438, 442-43, 258 P.3d 43(2011) (quoting State v.
Maqers, 164 Wn.2d 174, 191, 189 P.3d 126 (2008)).
Failure to object to a prosecuting attorney’s improper remark constitutes a
waiver of the error unless the remark is so flagrant and ill-intentioned that the
resulting prejudice could not have been neutralized by a curative instruction.
State v. Elmore, 139 Wn.2d 250, 292, 985 P.2d 289 (1999). “Any allegedly
improper statements should be viewed within the context of the prosecutor’s
entire argument, the issues in the case, the evidence discussed in the argument,
and the jury instructions.” State v. Dhaliwal, 150 Wn.2d 559, 578, 79 P.3d 432
(2003).
During closing argument, the prosecutor told the jury, “Now, the defendant
carries the presumption of innocence in this case and that presumption continues
until you go back to the jury room.” Thomas contends the prosecutor’s statement
denied him a fair trial by suggesting to the jury that the presumption of innocence
“evaporates” once deliberation begins.
18 No. 78045-0-1/1 9
Indeed, the prosecutor’s statement that the presumption of innocence
“continues until you go back to the jury room” misstated the law. See State v.
Reed, 168 Wn. App. 553, 578, 278 P.3d 203 (2012); State v. Evans, 163 Wn.
App. 635, 643, 260 P.3d 934 (2011); State v. Veneqas, 155 Wn. App. 507, 524-
25, 228 P.3d 813 (2010). Rather than ending at the jury room door, “The
presumption of innocence continues throughout the entire trial and may be
overcome, if at all, only during deliberations.” Evans, 163 Wn. App. at 643. Any
statement that invites the jury to disregard the presumption upon deliberation
“seriously dilutes the State’s burden of proof.” Evans, 163 Wn. App. at 644.
To the extent that the prosecutor’s comment suggested the presumption
of innocence continued only until the jurors began deliberations, it constituted an
improper remark. However, because Thomas did not object to this statement
during trial, he has waived the error “unless the remark is so flagrant and ill
intentioned that it causes an enduring and resulting prejudice that could not have
been neutralized by an admonition to the jury.” State v. Russell, 125 Wn.2d 24,
86, 882 P.2d 747 (1994).
Thomas argues the misconduct incurably prejudiced him because the
prosecutor urged the jurors to treat Thomas’s out-of-court statements as any
other witness statement, requiring temporary coexistence with the presumption of
innocence. According to Thomas, the prosecutor’s argument suggested the
jurors cast aside the presumption of innocence. While the statement suggested
that jurors could disregard the presumption of innocence upon deliberation, this
19 No. 78045-0-1/20
court recently addressed a similar statement and found a curative instruction
would have neutralized any resulting prejudice. See Reed, 168 Wn. App. at 579.
In Reed, the prosecutor stated ‘the presumption of innocence ‘does last
all the way until you walk into that [jury] room and start deliberating.” 168 Wn.
App. at 578. Reed did not object to this statement during trial. Reed,168 Wn.
App. at 578. There, as here, the statement amounted to an incorrect statement
of the law by suggesting the presumption of innocence dissipated at the
beginning of deliberations. Reed, 168 Wn. App. at 578. The court concluded the
defendant failed to demonstrate enduring prejudice: “We have no doubt that a
simple instruction from the trial court indicating that the presumption of innocence
may be overcome, if at all, only during the jury’s deliberations would have been
sufficient to overcome any prejudice resulting from the prosecutor’s remark.”
Reed, 168 Wn. App. 579.
Given the similarity of the statements, the Reed court’s conclusion holds
equally true for the case at hand. Had Thomas objected to the prosecutor’s
statements, the court could have issued an instruction to correct the
misstatement of the law and remind the jury that the presumption of innocence
persisted until the State proved the charged crime beyond a reasonable doubt.
See Evans, 163 Wn. App. at 642-43. As a result, Thomas fails to establish the
prosecutor’s error as so flagrant and ill-intentioned that a curative instruction
could not neutralize the resulting prejudice and cannot prevail on his claim of
prosecutorial misconduct.
20 No. 78045-0-1/21
D. Community Custody Conditions
Thomas appeals the imposition of certain community custody prohibitions.
Specifically, Thomas alleges (1) the community custody condition prohibiting him
from entering sex-related businesses is not crime-related; and (2) the conditions
prohibiting possession of sexually explicit materials and requiring that he inform
the community custody officer (CCC) and treatment provider of any dating
relationship are unconstitutionally vague. The State contends the trial court
properly exercised its discretion in imposing these conditions. Because State v.
Nguyen, 191 Wn.2d 671, 425 P.3d 847 (2018) recently upheld these community
custody conditions against the same claims, the trial court properly imposed the
conditions.
1. Crime-Related Prohibition
Here, the court imposed a community custody condition prohibiting
Thomas from “enter{ingj sex-related businesses, including: x-rated movies, adult
bookstores, strip clubs, and any location where the primary source of business is
related to sexually explicit material.” Thomas contends this prohibition is not
crime related and amounts to an abuse of the court’s discretion. Nguyen says
otherwise.
As a condition of community custody, a sentencing court has the
discretion to impose “crime-related prohibitions,” proscribing “conduct that
directly relates to the circumstances of the crime for which the offender has been
convicted.” RCW 9.94A.703(3)(f); RCW 9.94A.030(10). “The prohibited conduct
need not be identical to the crime of conviction, but there must be ‘some basis for
21 No. 78045-0-1122
the connection.” Nguyen, 191 Wn.2d at 684 (quoting State v. Irwin, 191 Wn.
App. 644, 657, 364 P.3d 830 (2015)).
An appellate court reviews community custody conditions for an abuse of
discretion. Nguyen, 191 Wn.2d at 678. A court does not abuse its discretion if a
reasonable relationship exists between the community custody condition and the
crime of conviction. Nguyen, 191 Wn.2d at 684. “So long as it is reasonable to
conclude that there is a sufficient connection between the prohibition and the
crime of conviction, we will not disturb the sentencing court’s community custody
conditions.” Nguyen, 191 Wn.2d at 685-86.
Thomas was convicted of two counts of voyeurism. Voyeurism is a sex
offense involving viewing, photographing, or filming without consent for the
purposes of arousal or gratification of sexual desire. Former RCW 9A.44.115(2).
Commission of a sex offense establishes an inability to control sexual urges.
Nguyen, 191 Wn.2d at 686. Therefore, ‘fi]t is both logical and reasonable to
conclude that a convicted person who cannot suppress sexual urges should be
prohibited from accessing ‘sexually explicit materials,’ the only purpose of which
is to invoke sexual stimulation.” Nguyen, 191 Wn.2d at 686. As a result, the trial
court did not abuse its discretion in limiting Thomas’s access to sexually explicit
materials by prohibiting entrance to sex-related businesses.
2. Vagueness Challenge
Thomas argues unconstitutional vagueness as to the community custody
provisions requiring him to inform the CCO and treatment provider of any dating
22 No. 78045-0-1/23
relationship and prohibiting him from possessing or viewing sexually explicit
material. Based on Nguyen, we disagree.
The Fourteenth Amendment to the United States Constitution and article I,
section 3 of the Washington State Constitution require fair warning of proscribed
conduct. State v. BahI, 164 Wn.2d 739, 752, 193 P.3d 678 (2008). A community
custody provision suffers from vagueness if it does not define the criminal
offense with sufficient definiteness such that ordinary people can understand the
conduct proscribed, or does not provide ascertainable standards of guilt.
Nguyen, 191 Wn.2d at 678. In Nguyen, the Washington State Supreme Court
explicitly concluded that the two provisions appealed here—the requirement of
informing the CCO and treatment provider of any dating relationship and
prohibition against sexually explicit material—were not unconstitutionally vague.
191 Wn.2d at 681-83. Therefore, the sentencing court did not abuse its
discretion by imposing these community custody conditions.
We affirm.
WE CONCUR:
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