FILED
SEPTEMBER 10, 2026
In the Office of the Clerk of Court WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
STATE OF WASHINGTON, ) No. 40494-3-III )
Respondent, )
)
v. ) UNPUBLISHED OPINION )
JOSHUA WILLIAM FROMM, )
)
Appellant. )
MURPHY, J. — A jury found Joshua William Fromm guilty of two counts of first degree child rape, two counts of first degree child molestation, two counts of first degree incest, and two counts of second degree incest. Fromm appeals arguing (1) the trial court abused its discretion by admitting his statement to law enforcement denying a prior accusation of sexual assault, (2) the prosecutor committed misconduct during opening statements and closing arguments by appealing to the jury’s passion and prejudice, and arguing facts not in evidence, and (3) the trial court erred by ordering community custody supervision fees and imposing an unconstitutionally vague community custody condition allowing the Department of Corrections to set geographic boundaries.
State v. Fromm
We affirm Fromm’s convictions. The trial court did not abuse its discretion in admitting Fromm’s statement as its probative value was not substantially outweighed by the danger of unfair prejudice or confusion of the issues. The prosecutor’s comments in opening statements and closing arguments did not constitute misconduct. We accept the State’s concession that the community custody supervision fees condition should be struck and remand for that to occur. We affirm the imposition of the community custody condition as to geographic boundaries as it is not unconstitutionally vague.
BACKGROUND
In 2022, Fromm was charged with various sex crimes based on disclosures made by his stepdaughter, R.S.F., 1 who was under 12 years old at the time of the alleged incidents.
Around 2020, R.S.F. disclosed to her Mother that Fromm inappropriately touched her. Mother confronted Fromm, with R.S.F. recanting stating she had not meant what she said. Mother did not report the incident to law enforcement.
In September 2022, Mother had a conversation with R.S.F. about “good touch”
and “bad touch,” and asked if anything had happened to her. Rep. of Proc. (RP) at 364-
1 To protect the privacy interests of the minor children referenced in this opinion, we identify them by their initials. Gen. Order 2012-1 of Division III, In re Use of Initials or Pseudonyms for Child Victims or Child Witnesses (Wash. Ct. App. June 18, 2012), https://www.courts.wa.gov/appellate_trial_courts/?fa=atc.genorders_orddisp&ordnumber =2012_001&div=III.
3
State v. Fromm
65. R.S.F. told Mother she had been telling the truth in 2020. Mother contacted law enforcement.
Law enforcement arrested and questioned Fromm. In a recorded interview, the investigator asked Fromm whether he previously had been accused of sexual assault, to which Fromm replied, no.
The State charged Fromm, by amended information, with eight criminal counts:
two counts of first degree child rape, two counts of first degree child molestation, two counts of first degree incest, and two counts of second degree incest. Pretrial motions In pretrial motions, defense counsel objected to the admission of the portion of the law enforcement interview in which Fromm denied any prior accusation of sexual assault. Counsel argued that because R.S.F. recanted her 2020 accusation, it was reasonable for Fromm to honestly believe he had not previously been accused. Therefore, because there was a reasonable explanation for Fromm’s denial, admitting the denial was prejudicial and would confuse the jury. The State responded that the statement went to Fromm’s credibility.
The trial court ruled the statement admissible, determining that its probative value outweighed any prejudicial effect given the totality of the circumstances. However, the
4
State v. Fromm
trial court prohibited the State from expressly arguing that Fromm was deceptive or lied based on this denial.
Fromm’s case proceeded to trial.
Opening statements During opening statements, the State stated its trial theme, “Beware of keeping secrets, because surely what is done in the dark will eventually come to light.” RP at 158. Defense counsel did not object.
Defense counsel did object to the following comment in the State’s opening statement, with that objection being sustained by the trial court:
[THE STATE]: No crime is more horrendous than the abuse of a child. It should come as no surprise, then, that these type[s] of allegations—
[DEFENSE COUNSEL]: Your Honor, I’m going to object to that commentary on the type of crime.
THE COURT: I’m going to sustain that.
Let’s move on. Go ahead.
[THE STATE]: These type[s] of allegations are going to be difficult.
These are emotionally charged cases. But the [S]tate asks that you listen to evidence, that you listen to the testimony, and use that to base your decision off, not emotion.
RP at 158-59. Testimony At trial, the State presented four witnesses: R.S.F., her younger sister, her Mother, and the investigating detective. The State also admitted the video of Fromm’s interview with law enforcement. Fromm did not present witnesses and did not testify.
5
State v. Fromm
Relevant to issues on appeal, R.S.F. testified that the first time Fromm touched her, she was in her bed at nighttime. Fromm told R.S.F. not to tell anyone.
The State asked R.S.F. if Fromm ever touched her breasts. R.S.F. responded she did not have any yet. The State followed up and asked if Fromm touched “[w]here your breasts would be,” and R.S.F. answered, no. RP at 197.
R.S.F. testified that in 2020, she told her Mother that Fromm touched her. R.S.F.
testified that her Mother was upset, but R.S.F. did not remember her Mother yelling at Fromm. When her Mother held a family meeting, R.S.F. recanted. R.S.F. testified she said nothing happened because, at the time, she did not want Fromm to leave. After R.S.F.’s recantation, Fromm began touching her again.
Mother testified that in late 2020, R.S.F.’s younger sister told Mother she had seen Fromm in R.S.F.’s bed. Mother asked R.S.F. about this. R.S.F. told her Mother that Fromm had “licked and kissed her lady parts and that he poked her butt.” RP at 357. Upset, Mother confronted Fromm, shoving and yelling at him. Mother believed she was loud enough that R.S.F. could have heard it from her bedroom. R.S.F. approached Mother crying, and recanted. Mother did not ask any more questions of R.S.F. and did not report the incident in 2020.
6
State v. Fromm
Jury instructions The trial court told the jurors that they were “the sole judges of the credibility of each witness” and only they could decide the “value or weight to be given to the testimony of each witness.” RP (Apr. 15, 2024) at 148; CP 202.
Jury instructions also included:
The lawyers’ remarks, statements, and arguments are intended to help you understand the evidence and apply the law. It is important, however, for you to remember that the lawyers’ statements are not evidence. The evidence is the testimony and the exhibits. The law is contained in my instructions to you. You must disregard any remark, statement, or argument that is not supported by the evidence or the law in my instructions.
RP (Apr. 15, 2024) at 149; CP at 203. Additionally, the trial court instructed:
As jurors, you are officers of this Court. You must not let your emotions overcome your rational thought process. You must reach your decision based on the facts proved to you and on the law given to you, not on sympathy, prejudice, or personal preference. To assure that all parties receive a fair trial, you must act impartially with an earnest desire to reach a proper verdict.
RP (Apr. 15, 2024) at 150-51. Closing arguments The State restated its case theme in closing arguments: “Beware of keeping secrets, because surely what is done in the dark will eventually come to light.” RP (Apr. 15, 2024) at 164-65. Defense counsel did not object.
7
State v. Fromm
The State summarized the evidence from trial:
[R.S.F.] described to you multiple incidents of the defendant licking her vagina that occurred in her bedroom before 2020, the late 2020 disclosures. [Mother] told you she thought that conversation had happened in the Fall of 2020. Well, [R.S.F.] told you it happened many times. That he put his mouth on her vagina, that he touched her, he rubbed her vagina.
Touched her chest where her breasts would be if she had them then.
She told you about a few times she couldn’t even remember how many in the bathroom that he licked her, that he used a toy on her. She told you about multiple instances in the bedroom.
RP (Apr. 15, 2024) at 179-80 (emphasis added). Defense counsel did not object to the italicized comment made by the State about Fromm touching R.S.F.’s chest.
At the end of closing argument, the State reminded the jury that “[t]he Court has told you that what the lawyers say in opening or closing argument, that is not evidence.” RP (Apr. 15, 2024) at 180. The prosecutor suggested the jurors review their notes, as it was up to them “to make the determination.” RP (Apr. 15, 2024) at 180. Verdict and sentencing The jury found Fromm guilty of all eight charged criminal counts.
The trial court entered an indeterminate sentence plus community custody conditions. Among the community custody conditions, the trial court ordered Fromm to “[p]ay supervision fees as determined by the Department of Corrections” and to “[r]emain within geographic boundaries, as set forth in writing by the Department of Correction Officer.” Clerk’s Papers (CP) at 304.
Fromm appeals.
8
State v. Fromm
ANALYSIS
1. Admission of Fromm’s statement under ER 403 Fromm argues the trial court abused its discretion by admitting his denial of a prior accusation of sexual assault. He contends the statement lacked probative value and was unfairly prejudicial, particularly because R.S.F. recanted. Fromm also contends the statement was confusing because the jury could have concluded the evidence showed he was either (1) deceptive or (2) reasonably did not believe he was previously accused of sexual assault. Fromm argues that because the only correct explanation was that he reasonably believed he had not previously been accused of sexual assault, the trial court should have excluded the statement under ER 403. We disagree.
We review a trial court’s ER 403 ruling for abuse of discretion giving “a great deal of deference” to the trial court. State v. Luvene, 127 Wn.2d 690, 707, 903 P.2d 960 (1995). Under ER 403, relevant evidence “may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.” Unfair prejudice arises when the evidence is more likely to provoke “ʻan emotional response than a rational decision by the jury.’” State v. Bellerouche, 33 Wn. App. 2d 877, 889, 565 P.3d 604 (2025) (internal quotation marks omitted) (quoting City of Auburn v. Hedlund, 165 Wn.2d 645, 654, 201 P.3d 315 (2009)). The party seeking to exclude the evidence bears the burden of showing unfair prejudice. Id.
9
State v. Fromm
As an initial matter, the State asserts Fromm did not preserve the objection based on probative value because at trial the objection was based exclusively on prejudice and jury confusion. Contrary to the State’s assertion, defense counsel’s objection encompassed probative value. ER 403 requires a balancing of probative value against the risk of confusion or unfair prejudice. State v. Norlin, 134 Wn.2d 570, 584, 951 P.2d 1131 (1998). Therefore, a challenge to probative value is inherent in an objection based on the risk of prejudice or confusion.
Fromm’s statement was probative to his credibility. Fromm denied being the subject of a prior accusation of sexual assault, which went to his truthfulness in responding to the current allegations. The trial court carefully weighed the relevance of the statement against its prejudicial effect and reasonably concluded that the probative value outweighed any prejudice.
Fromm argues the trial court’s ruling, which prohibited the State from arguing Fromm was deceptive or lied, substantially reduced the statement’s probative value relative to its risk of prejudice. We disagree. The statement was not stripped of probative value simply because the State was not permitted to expressly argue Fromm was deceptive or had lied. The jury was permitted to review the statement and draw its own conclusions. While the jury could have reached more than one conclusion after hearing Fromm’s statement, it was within the jury’s province to make such a decision. See State v. Grimes, 92 Wn. App. 973, 981, 966 P.2d 394 (1998) (“Considering the two possible
10
State v. Fromm
interpretations of the statement here—one innocent and one inculpatory—we find that the court did not abuse its discretion in admitting it.”). The trial court minimized potential prejudice by placing a boundary on the State. The potential for prejudice was further minimized in the context of the whole trial in which R.S.F. and her Mother repeatedly testified that R.S.F. recanted. The jury therefore knew that while Fromm may have previously been accused of sexual assault, that accusation had been recanted. Fromm’s denial was presented to the jury once. The jury was instructed they were the “sole judges of the credibility of each witness.” RP (Apr. 15, 2024) at 148. Based on the context of the evidence presented at trial and the court’s instruction, any potential prejudice was limited and did not outweigh the probative value.
The trial court did not err when admitting Fromm’s statement denying a previous accusation of sexual assault. 2. Prosecutorial misconduct To prevail on a claim of “prosecutorial misconduct, a defendant must show that the prosecutor’s conduct was both improper and prejudicial in the context of the entire record and the circumstances at trial.” State v. Slater, 197 Wn.2d 660, 681, 486 P.3d 873 (2021) (internal quotation marks omitted) (quoting In re Pers. Restraint of Glasmann, 175 Wn.2d 696, 704 P.3d 673 (2012)) (plurality opinion). “Prejudice is established only if there is a substantial likelihood [that] the instances of misconduct affected the jury’s verdict.” State v. Pirtle, 127 Wn.2d 628, 672, 904 P.2d 245 (1995).
11
State v. Fromm
To determine whether prosecutorial misconduct occurred, we first examine “ʻwhether the defendant objected to the alleged misconduct.’” In re Pers. Restraint of Pheth, 20 Wn. App. 2d 326, 340, 502 P.3d 920 (2021) (quoting State v. Magers, 164 Wn.2d 174, 191, 189 P.3d 126 (2008)). If an objection was made to the statement, then the defendant must establish the “misconduct resulted in prejudice that had a substantial likelihood of affecting the jury’s verdict.” State v. Emery, 174 Wn.2d 741, 760, 278 P.3d 653 (2012). If no objection was made to the offending statement, then the error is considered waived “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.” Russell, 125 Wn.2d at 86.
2.1 Statement of prosecutor in opening statement—objection sustained
Fromm claims the prosecutor committed misconduct in opening statement by improperly appealing to the jury’s passion and prejudice when she referred to the “horrendous” crime of child abuse:
[THE STATE]: No crime is more horrendous than the abuse of a child. It should come as no surprise, then, that these type[s] of allegations—
[DEFENSE COUNSEL]: Your Honor, I’m going to object to that commentary on the type of crime.
THE COURT: I’m going to sustain that.
Let’s move on. Go ahead.
[THE STATE]: These type[s] of allegations are going to be difficult.
These are emotionally charged cases. But the [S]tate asks that you listen to
12
State v. Fromm
evidence, that you listen to the testimony, and use that to base your decision off, not emotion.
RP at 158-59 (emphasis added).
Fromm argues the State’s reference to the nature of the crime had a substantial likelihood of affecting the jury’s verdict even though the trial court sustained the objection. He argues additional weight should be allotted to the damage caused by the prosecutor’s statement because sex cases are already prone to high emotions.
We disagree. While the statement was improper, Fromm fails to meet his burden to show the comment had a substantial likelihood of affecting the jury’s verdict. The comment was made in opening statements before the presentation of evidence. In context, the State addressed the nature of the alleged crime to admonish the jury to focus solely on the evidence rather than their emotions. Moreover, it is presumed jurors followed the instructions of the court. The trial court instructed the jury that “the lawyers’ statements are not evidence. . . . You must disregard any remark, statement, or argument that is not supported by the evidence or the law in my instructions.” RP (Apr. 15, 2024) at 149; CP at 203. While the statement was improper, the objection was sustained, and Fromm has not shown a substantial likelihood it affected the jury’s verdict.
2.2 Statements of prosecutor—no objection Fromm raises several claims of prosecutorial misconduct that were not objected to at trial.
13
State v. Fromm
First, Fromm asserts the prosecutor improperly appealed to the jurors’ passions and prejudices during opening and closing arguments when she repeated the theme “[b]eware of keeping secrets, because surely what is done in the dark will eventually come to light.” RP at 158; RP (Apr. 15, 2024) at 164-65. Fromm argues this statement made in opening and closing engendered a sense of fear and improperly inferred someone had been keeping secrets.
We do not find the statement of the State’s theme to be so flagrant and ill intentioned that it engendered a prejudice so strong that it could not be cured by any instruction. Rather, the State’s theme incorporated facts from testimony. The jury heard evidence Fromm told R.S.F. not to tell anyone he inappropriately touched her. R.S.F. testified that at least one incident occurred at night. The trial court instructed the jury to rely only on presented evidence and to “not let your emotions overcome your rational thought process” such that the “decision [is] based on the facts proved to you and on the law given to you, not on sympathy, prejudice, or personal preference.” RP (Apr. 15, 2024) at 150-51.
We see no error in the prosecutor’s reference to “secrets” and the “dark,” much less error that is so flagrant and ill intentioned that they could not have been cured by instruction. See State v. McKenzie, 157 Wn.2d 44, 60, 134 P.3d 221 (2006). The State’s case theme does not constitute prosecutorial error.
14
State v. Fromm
2.3 Facts not in evidence Second, Fromm argues the prosecutor committed misconduct by referring to facts not in evidence during closing argument. Specifically, Fromm argues the State improperly stated R.S.F. testified that Fromm touched her chest where her breasts would be if she had them. The State concedes R.S.F. did not testify that Fromm touched her chest but argues Fromm did not object at trial and cannot show prejudice. We agree with the State.
During direct examination, the State asked R.S.F. if Fromm touched “[w]here your breasts would be,” and R.S.F. responded, no. RP at 197. However, during closing argument, the State specifically argued R.S.F. testified that Fromm “[t]ouched her chest where her breasts would be if she had them.” RP (Apr. 15, 2024) at 179. The State improperly referred to facts not in evidence.
Fromm cannot show this error was so flagrant and ill intentioned that it caused prejudice that could not be cured by the trial court’s instruction. When viewed in context, the State made the challenged comment in the midst of a string of references to R.S.F.’s testimony. All other references made by the State were based on facts in evidence. The unsupported statement itself was short and not repeated. Further, the trial court instructed the jury to “decide the facts of this case based upon the evidence presented to you . . . during this trial.” RP (Apr. 15, 2024) at 147. Therefore, based on the brief nature of the remark and the context of the whole trial, including the trial court’s instructions, this remark did not so prejudice Fromm as to require reversal.
15
State v. Fromm
Fromm cannot show a substantial likelihood that any of the alleged errors affected the jury verdict. We affirm. 3. Community custody conditions Fromm challenges the imposition of two community custody conditions: (1)
community custody supervision fees, and (2) the requirement that he “[r]emain within geographic boundaries, as set forth in writing by the Department of Correction Officer.” CP at 304.
3.1 Supervision fees Fromm first argues the trial court lacked authority to impose the community custody supervision fees condition. The State concedes remand is necessary for the trial court to strike the supervision fees condition. We agree.
RCW 9.94A.703 provides the community custody conditions that a trial court must impose and those it may waive or use its discretion to impose. In 2022, the legislature removed the trial court’s authority to authorize supervision fees. See RCW 9.94A.703; see also State v. Wemhoff, 24 Wn. App.2d 198, 200, 519 P.3d 297 (2022). The trial court was not authorized to impose the community custody supervision fees condition when Fromm was sentenced in 2024. We remand for the trial court to strike the community custody condition requiring Fromm to pay supervision fees.
16
State v. Fromm
3.2 Geographic boundaries Next, Fromm challenges, as unconstitutionally vague, the community custody condition ordering him to “[r]emain within geographic boundaries, as set forth in writing by the Department of Correction Officer.” CP at 261. The State argues the geographic boundaries condition is constitutional. We agree with the State.
A community custody condition is unconstitutionally vague under the due process clause of the Fourteenth Amendment to the United States Constitution and article I, section 3, of the Washington Constitution “‘if (1) it does not sufficiently define the proscribed conduct so an ordinary person can understand the prohibition or (2) it does not provide sufficiently ascertainable standards to protect against arbitrary enforcement.’” State v. Wallmuller, 194 Wn.2d 234, 238-39, 449 P.3d 619 (2019) (quoting State v. Padilla, 190 Wn.2d 672, 677, 416 P.3d 712 (2018)). “ʻ[A] community custody condition is not unconstitutionally vague merely because a person cannot predict with complete certainty the exact point at which [their] actions would be classified as prohibited conduct.’” State v. Sanchez Valencia, 169 Wn.2d 782, 793, 239 P.3d 1059 (2010) (internal quotation marks omitted) (quoting State v. Sanchez Valencia, 148 Wn. App. 302, 321, 198 P.3d 1065 (2009)).
The Washington Supreme Court has recognized that “[w]hile the right to travel is recognized as a fundamental right of citizenship, this right is affected by a criminal conviction.” In re Pers. Restraint of Winton, 196 Wn.2d 270, 274, 474 P.3d 532 (2020).
17
State v. Fromm
Infringement on an offender’s right to travel is authorized while the offender is serving community custody. Id. at 275.
Recently, in State v. Lundstrom, Division One of this court held that the same geographic boundary community custody condition that was imposed on Fromm was not unconstitutionally vague. 34 Wn. App. 2d 977, 982-83, 572 P.3d 1243 (2025). The court in Lundstrom noted that the condition was authorized under RCW 9.94A.703(1)(b), (3)(a), and RCW 9.94A.704(3)(b). Id. at 980, 983. Under RCW 9.94A.703(3)(a) the trial court is authorized to order an offender to “[r]emain within, or outside of, a specified geographical boundary.” Similarly, RCW 9.94A.704(3)(b) states when DOC supervises an offender, “the department shall at a minimum instruct the offender to . . . [r]emain within prescribed geographical boundaries.”
The Lundstrom court noted that the community corrections officer’s authority to impose conditions is limited and must be “‘reasonably related to . . . [t]he crime of conviction, the offender’s risk of reoffending, or the safety of the community.’” 34 Wn. App. 2d at 981 (alteration in original) (quoting RCW 9.94A.704(7)(b)). Further, if an offender believes a geographic restriction is not related to one of these categories, the offender has the right to pursue administrative review. Id. at 981.
We follow the reasoning in Lundstrom. The condition mandating that Fromm stay within a geographic boundary prescribed by his community corrections officer is not unconstitutionally vague as the statute authorizes the Department of Corrections to set
18
State v. Fromm
geographic boundaries and such restrictions are limited in application and are subject to review.
CONCLUSION
We affirm Fromm’s conviction and the community custody condition imposing geographic boundaries. We remand for the trial court to strike the community custody supervision fees condition.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
_________________________________
Murphy, J.
WE CONCUR:
_________________________________
Lawrence-Berrey, J.
_________________________________
Staab, C.J.