Filed Washington State Court of Appeals Division Two IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON November 25, 2025 DIVISION II STATE OF WASHINGTON, No. 58957-5-II
Respondent,
v. UNPUBLISHED OPINION
RICHARD RAY BALL,
Appellant.
PRICE, J. — Richard R. Ball appeals his conviction and sentence for first degree child
molestation. Ball challenges his conviction, arguing that the State committed prosecutorial
misconduct during closing argument by relying on evidence outside the record. Ball challenges
his sentence, arguing that he was subjected to unconstitutional restraint during his sentencing
hearing. Ball also argues that two of his community custody conditions are unconstitutional.
Finally, Ball argues that a scrivener’s error in his judgment and sentence needs to be corrected,
and the victim penalty assessment (VPA) should be stricken.
We affirm Ball’s conviction, and we decline to consider Ball’s challenge to his restraint
during sentencing for the first time on appeal. But we remand for the trial court to reconsider the
language and imposition of the appealed community custody conditions, to correct the scrivener’s
error in the judgment and sentence, and to strike the VPA.
In a statement of additional grounds (SAG),1 Ball raises several additional claims
challenging his conviction and sentence. Ball’s SAG claims lack merit.
1 RAP 10.10. No. 58957-5-II
FACTS
I. BACKGROUND
Ball and his wife, Alicia,2 began dating in 2015 and both had children from prior
relationships. In 2016, they moved in together and began to integrate their families: Ball and his
two children, and Alicia and her daughter, W.S.B.
In October 2022, 10-year-old W.S.B. told her stepbrother, Gabe, that something
inappropriate had happened with Ball. Gabe took W.S.B. to Alicia and helped start their
conversation before leaving them to talk privately.
Alicia recorded her conversation with W.S.B. with her phone. In the recording, W.S.B.
said, “Dad was just sitting there,” referring to Ball, and then at “11:46 or something” he grabbed
her hand and “rubbed it onto his private.” Verbatim Rep. of Proc. (VRP) at 165-66. W.S.B. told
her mom that once he stopped, he moved her hand back under the blankets and went upstairs.
When W.S.B. heard Ball get into bed upstairs, she “immediately went to the bathroom. . . . and
. . . pinched [her]self to make sure [she] wasn’t dreaming . . . .” VRP at 166.
Based on W.S.B.’s disclosure, Alicia called the police. Deputy Brad Bauman arrived
shortly thereafter. He spoke briefly with Ball and suggested that Ball should arrange to sleep
elsewhere while the investigation continued. Ball agreed. While Ball packed a bag, Alicia played
the recording for the officer. Upon hearing W.S.B.’s recorded disclosure, Deputy Bauman arrested
Ball.
Ball was charged with first-degree child molestation. Ball waived his right to a jury, and
the case proceeded to a bench trial.
2 Richard R. Ball and Alicia Ball were married in 2019. For clarity, we refer to Alicia Ball by her first name in this opinion because she shares the same last name as the appellant.
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II. TRIAL
W.S.B., Alicia, and Deputy Bauman testified at the bench trial.
W.S.B. testified that she woke up about “11:40-something,” judging by the TV
screensaver, and Ball was next to her. While she pretended to be asleep, he grabbed her hand “soft
and gently” and “[h]e made [her] touch his private.” VRP at 53-54. He made her hand go in an
“up and down motion,” and her hands were “like a Lego figure’s hands,” and she felt a “speed
bump.” VRP at 54.
W.S.B. also testified that she told “Kristen” at the Children’s Justice and Advocacy Center
what happened. VRP at 61. W.S.B. also shared her account of the incident during a defense
interview with defense counsel and a private investigator. In her testimony, W.S.B. did not repeat
exactly what she said during these two interviews.
During cross-examination, Ball asked W.S.B. several questions to lay out alternative
motives and possible explanations for her allegations. Ball asked W.S.B. whether it was “even a
little bit possible” that the alleged incident was just a dream. VRP at 67. W.S.B. responded, “Just
a little bit.” VRP at 67. W.S.B. also testified that adults and, specifically, her mom sometimes
help her remember certain events, but when she was asked if her mom helped her remember the
alleged incident, W.S.B. said no.
Alicia testified consistently with W.S.B.’s testimony. Alicia emphasized that she only
encouraged W.S.B. to “tell her truths” and to “let [W.S.B.] tell her story.” VRP at 90-91, 95.
Deputy Bauman testified that on October 30, 2022, he responded to a report of child
molestation. Deputy Bauman explained that he used his county phone to record Alicia’s recording
of W.S.B.’s initial disclosure. The State moved to admit the deputy’s recording. Ball stated he
had no objection, and the recording was admitted into evidence.
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Deputy Bauman also testified that because W.S.B. said the incident took place on the
couch, he decided to take photos and collect evidence. The deputy provided the evidence to the
investigating detectives. In the year following the arrest and prior to trial, detectives never
followed up with Deputy Bauman and to the best of his knowledge, none of the evidence he
collected was tested for DNA or the presence of semen.
Even though there was no evidence admitted about what W.S.B. said at either the forensic
interview or the defense interview, in closing argument, the State mentioned that W.S.B. gave
these additional interviews and claimed that, each time, her statements were consistent:
You heard [W.S.B.] testify that once all this started, she went and got a forensic interview. . . . [S]he had a [d]efense interview conducted by [defense counsel] and his private investigator, there were no inconsistencies brought out from her [d]efense interview to her testimony today. . . . [T]he level of detail that was provided by W.S.B., described by her back right when the disclosure happened and in the testimony are very, very, very similar, and they’re very consistent. And that should go to the credibility of W.S.B. as much as the [d]efense tried to impeach her.
VRP at 154. Defense counsel did not object.
The State reinforced this assertion of W.S.B.’s credibility again later in its closing:
[T]hese are very serious allegations, and W.S.B. knew that going into this. And yet she still went into the forensic interview. She still testified in front of you today. She still did the [d]efense interview. She went through all these things, had been consistent throughout the entire time.
VRP at 156. Defense counsel did not object.
The trial court entered written findings of fact and conclusions of law. The trial court
recognized the State had the burden of proving a criminal case by proof beyond a reasonable doubt.
The trial court also made the following findings regarding the evidence presented at trial:
f. W.S.B. provided what the court would consider were several consistent statements between testimony and video audio. This included the time on the screensaver, that she noted said 11:46 or something, and in court indicated it was 11:40-something. She stated [Ball] returned from the bathroom and sat down. She
4 No. 58957-5-II
heard noises. He then grabbed her left wrist pulling it above her head and her hand touched his genitals; that this lasted a few minutes. She felt a speed bump at the top, fabric at the bottom. After she got up, she pinched herself to make sure she was not dreaming and washed her hands. No testimony was otherwise presented that showed the story has changed.
g. Defense counsel presented theories. That W.S.B. had been in trouble and wanted to make up with her mother. That she was coached. However, there was zero evidence there was collusion, or conspiracy to keep this façade of a story up for the last year.
Clerk’s Papers (CP) 43-44. The trial court concluded that the State had proved the elements of
first degree child molestation beyond a reasonable doubt.
III. SENTENCING HEARING
For sentencing, Ball appeared in a holding cell that was located inside of a Cowlitz County
courtroom. Neither Ball nor his counsel objected to appearing for sentencing in the holding cell.
Ball had an offender score of zero, which resulted in a standard indeterminate sentencing range of
51-68 months to life. The trial court imposed a sentence of 62 months to life and lifetime
community custody. Notwithstanding that Ball was found guilty after a bench trial, section 2.1 of
his judgment and sentence states that he pleaded guilty on September 15, 2023. CP at 12.
Additionally, section 2.5 of his judgment and sentence states that Ball was found indigent, but the
trial court imposed the $500 VPA.
Community custody conditions were attached to the judgment and sentence as Appendix
H. Condition 10 in Appendix H stated, “Do not have contact with minors (persons aged under 18
years of age).” CP at 27. Condition 14 in Appendix H stated:
You must not date or become involved romantically/sexually with individuals nor form relationships with families who have minor children, unless you receive prior approval from your [Community Corrections Officer (CCO)].
CP at 27.
Ball appeals.
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ANALYSIS
In his appeal, Ball argues that (1) the State committed prosecutorial misconduct during
closing argument by relying on evidence outside the record, (2) he was subject to unconstitutional
restraint during his sentencing hearing, (3) community custody conditions 10 and 14 are
unconstitutional, (4) a scrivener’s error on his judgment and sentence should be corrected on
remand, and (5) the VPA should be struck. Ball makes six additional claims in his SAG.
Ball’s arguments relating to prosecutorial misconduct and his sentencing have been
waived, and none of Ball’s SAG claims have merit. But we remand to the trial court to correct the
scrivener’s error, to strike the VPA, and to reconsider the community conditions 10 and 14.
I. PROSECUTORIAL MISCONDUCT
Ball argues that the State committed prosecutorial misconduct during closing argument.
Ball failed to object, but he contends that the misconduct was flagrant and ill-intentioned. We
disagree.
In a prosecutorial misconduct claim, the defendant bears the burden of showing that the
prosecutor’s conduct was both improper and prejudicial. In re Pers. Restraint of Sandoval,
189 Wn.2d 811, 832, 408 P.3d 675 (2018), see also State v. Emery, 174 Wn.2d 741, 756, 278 P.3d
653 (2012).
If the defendant fails to object to the State’s remarks at trial, any error regarding
prosecutorial misconduct is deemed to have been waived unless the misconduct was “so flagrant
and ill[-]intentioned that an instruction could not have cured the resulting prejudice.” Emery,
174 Wn.2d at 760-61. Washington courts have emphasized that the focus in such cases is less on
whether the prosecutor’s misconduct was flagrant or ill-intentioned and more on whether the
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resulting prejudice could have been cured by a timely objection or instruction. State v. Slater,
197 Wn.2d 660, 885, 486 P.3d 873 (2021).
Here, Ball claims the State committed misconduct in closing argument by suggesting that
the content of W.S.B.’s forensic interview and defense interview were consistent with her other
statements despite the fact that neither interview was admitted into evidence. Ball acknowledges
that he failed to object to the State’s remarks at trial, but he argues that the prosecutor “could not
have been confused” about the limited evidence presented at trial and, thus, the misstatements
could not have been good faith misstatements. Br. of Appellant at 20.
We are unpersuaded. The focus of this inquiry is on curability. See Slater, 197 Wn.2d
at 885. And we conclude that if Ball had raised a timely objection, any error would have been
cured. This was a bench trial before a judge, not a jury trial. Judges are better equipped to filter
out inadmissible evidence or argument, even if the information is seen or heard, than juries. See
State v. Read, 147 Wn.2d 238, 245, 53 P.3d 26 (2002). “ ‘In bench trials, judges routinely hear
inadmissible evidence that they are presumed to ignore when making decisions.’ ” Id. (quoting
Harris v. Rivera, 454 U.S. 339, 346, 102 S. Ct. 460, 70 L. Ed. 2d 530 (1981)). If Ball had objected
to the State’s suggestion of consistency, it strains reason to conclude that the trial court would have
continued to rely on the unsupported argument. See State v. Gower, 179 Wn.2d 851, 855,
321 P.3d 1178 (2014) (judges are presumed to know and follow the law). Thus, Ball has failed to
show the State’s conduct was so flagrant and ill-intentioned that an instruction could not have
cured it. Accordingly, Ball’s prosecutorial misconduct claim is waived.
II. APPEARANCE AT SENTENCING FROM A HOLDING CELL
Ball argues that his due process rights were violated when he appeared in an in-court
holding cell for his sentencing hearing. Citing to our Supreme Court’s recent decision in State v.
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Luthi, Ball argues that appearing in this in-court holding cell violated his right to “ ‘appear in court
free from unjustified restraints.’ ” Br. of Appellant at 22 (quoting State v. Luthi, 3 Wn.3d 249,
256, 549 P.3d 712 (2024)). The State argues that this claim cannot be raised for the first time on
appeal because the claim does not constitute a manifest error affecting a constitutional right under
RAP 2.5(a)(3). We agree with the State.
Appellate courts may refuse to review claims of error which were not first raised in the
trial court. RAP 2.5(a). However, a party may raise a “manifest error affecting a constitutional
right” for the first time on appeal. RAP 2.5(a)(3). An error is manifest if the appellant shows
actual prejudice. State v. J.W.M., 1 Wn.3d 58, 91, 524 P.3d 596 (2023). The appellant must make
a plausible showing that the claimed error had practical and identifiable consequences. Id. “[T]o
determine whether an error is practical and identifiable, the appellate court must place itself in the
shoes of the trial court to ascertain whether, given what the trial court knew at that time, the [trial]
court could have corrected the error.” State v. O’Hara, 167 Wn.2d 91, 100, 217 P.3d 756 (2009).
Under this standard, the error was not manifest. At the time of Ball’s sentencing, Luthi had
not yet been decided. And no Washington court had held that a defendant’s appearance at nonjury
proceedings in an in-court holding cell constituted a restraint subject to due process protections.
See Luthi, 3 Wn.3d at 258-61. Indeed, Luthi recognized that it was an issue of first impression.
Id. at 260-61 (“We have not previously considered the due process implications of routinely
confining defendants to an in-court holding cell for nonjury hearings.”). Therefore, the trial court’s
error was not obvious on the record, and given what the trial court knew “at that time,” it could
not have corrected the error. See O’Hara, 167 Wn.2d at 100.
Because Ball has not shown the alleged sentencing error was manifest, we decline to
consider Ball’s argument regarding the in-court holding cell under RAP 2.5(a).
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III. COMMUNITY CUSTODY CONDITIONS
Ball argues community custody conditions 10 and 14 are unconstitutional. Because both
community custody conditions have actual or potential defects, we remand to the trial court to
reconsider their language and imposition.
A. COMMUNITY CUSTODY CONDITION 10–RIGHT TO PARENT
As noted above, community custody condition 10 states simply, “Do not have contact with
minors (persons aged under 18 years of age).” CP at 27. Ball argues that this community custody
condition unconstitutionally interferes with his right to parent because it prevents him from being
able to contact his own children.
We review community custody conditions for abuse of discretion and will reverse only if
they are “ ‘manifestly unreasonable.’ ” State v. Irwin, 191 Wn. App. 644, 652, 364 P.3d 830 (2015)
(internal quotation marks omitted) (quoting State v. Sanchez Valencia, 169 Wn.2d 782, 791-92,
239 P.3d 1059 (2010)). It is manifestly unreasonable to impose an unconstitutional condition of
community custody. State v. Hai Minh Nguyen, 191 Wn.2d 671, 678, 425 P.3d 847 (2018).
Courts may impose conditions that interfere with the right to parent if it is reasonably
necessary to prevent harm to a child. State v. DeLeon, 11 Wn. App. 2d 837, 841, 456 P.3d
405 (2020). But before the trial court can impose a condition that effectively prohibits a defendant
from ever contacting their children, it “must expressly, i.e., on the record, (a) consider the
constitutional right to parent, (b) explain why the no-contact provision is necessary, and (c) explore
whether any viable less restrictive alternatives exist.” State v. Reedy, 26 Wn. App. 2d 379, 392,
527 P.3d 156, review denied, 1 Wn.3d 1029 (2023). If the trial court fails to conduct this analysis
on the record, remand is necessary for the trial court to make findings and revisit the condition
before prohibiting all contact with their children. DeLeon, 11 Wn. App. at 842.
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Here, the trial court imposed a condition prohibiting contact with all minors despite Ball
having his own minor children. The record does not demonstrate the trial court considered any
State interest in restricting Ball’s contact with his biological children rather than with minors
generally. The trial court also did not consider whether the condition is narrowly tailored. Because
the trial court failed to make a record that supports imposing a community custody condition that
limits Ball’s contact with his biological children, we remand for the trial court to make appropriate
findings or to revise community custody condition 10.
B. COMMUNITY CUSTODY CONDITION 14–DATING AND SEXUAL RELATIONSHIPS
Ball argues condition 14 is unconstitutionally vague and overbroad. Condition 14 compels
Ball to obtain approval from his CCO prior to forming relationships with anyone with minor
children in their family. Community custody condition 14 states:
You must not date or become involved romantically/sexually with individuals nor form relationships with families who have minor children, unless you receive prior approval from your CCO.
Ball argues the condition’s language, specifically “become involved romantically,” and
“form relationships,” are vague. Br. of Appellant at 33-35.
A legal prohibition, like a community custody condition, is unconstitutionally vague 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. Padilla, 190 Wn.2d 672, 677, 416 P.3d 712 (2018). But “ ‘a
community custody condition is not unconstitutionally vague merely because a person cannot
predict with complete certainty the exact point at which [certain] actions would be classified as
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prohibited conduct.’ ” Id. (internal quotation marks omitted) (quoting Sanchez Valencia,
169 Wn.2d at 793).
We are unpersuaded by some of Ball’s argument. The prohibition on “form[ing]
relationships” is not unconstitutionally vague. Our Supreme Court has found that, in context, an
ordinary person could understand that a condition prohibiting a sex offender from “form[ing]
relationships with persons/families with minor children” is aimed at preventing easy access to
children, which is a possibility in any relationship. In re Pers. Restraint of Ansell, 1 Wn.3d 882,
897, 533 P.3d 875 (2023). Context shows that such a condition would prohibit the offender from
accessing children through a myriad of relationships—friendly, professional, neighborly, among
others. Id. Using this type of context, condition 14 is not unconstitutionally vague because a
person of ordinary intelligence would understand that when Ball forms relationships, even merely
friendly and non-intimate ones, with people who have minor children, he must first get CCO
approval. Id.
However, Ball is correct that other parts of community custody condition 14 present a
problem. The condition also prohibits becoming “involved romantically” with an individual with
minor children. Our Supreme Court has found the word “romantic” in a community custody
condition to be “highly subjective.” Nguyen, 191 Wn.2d at 683. Therefore, prohibiting “romantic”
relationships is unconstitutionally vague. Id. Accordingly, we agree with Ball that this portion of
community custody condition 14 is unconstitutionally vague.
11 No. 58957-5-II
Thus, because the word “romantic” is unconstitutionally vague, we remand for the trial
court to reconsider the language and imposition of this condition.3 State v. Casimiro,
8 Wn. App. 2d 245, 251, 438 P.3d 137 (2019).
IV. SCRIVENER’S ERROR
Ball argues that his judgment and sentence contains a scrivener’s error: section 2.1 states
that he pleaded guilty. A scrivener’s error is a clerical mistake that, when amended, would
correctly convey the trial court’s intention as expressed in the record at trial. State v. Davis,
160 Wn. App. 471, 478, 248 P.3d 121 (2011). The remedy for a scrivener’s error in a judgment
and sentence is to remand to the trial court for correction. State v. Makekau, 194 Wn. App. 407,
421, 378 P.3d 577 (2016).
The State concedes that because Ball’s conviction followed a bench trial, not a guilty plea,
his judgment and sentence should be remanded for correction. We accept the State’s concession,
and we remand to the trial court to correct the scrivener’s error.
V. VPA
Ball argues that the VPA should be stricken because it is no longer authorized by statute.
The State concedes the VPA should be stricken because Ball was found indigent.
Effective July 1, 2023, the VPA is no longer authorized for indigent defendants. LAWS OF
2023, ch. 449 § 1; RCW 7.68.035(4). Because the trial court found Ball indigent, we accept the
State’s concession and remand to the trial court to strike the VPA.
3 Ball also argues that community custody condition 14 infringes on his freedom of intimate association. Because this condition is being remanded, the trial court is not foreclosed from considering issues related to this argument.
12 No. 58957-5-II
VI. SAG
Ball raises numerous claims in his SAG. Ball’s SAG claims lack merit.
A. GROUND 1
In his first ground, Ball actually makes two claims—a sufficiency of the evidence claim
and an evidentiary claim. First Ball claims the State failed to prove the crime took place because
it relied solely on testimony from Deputy Bauman, Alisha, and W.S.B., and the State did not call
any expert witnesses or rely on physical evidence. Evidence is sufficient to support a guilty verdict
if, after viewing the evidence in the light most favorable to the State, any rational trier of fact could
find that all of the elements of the crime charged were proven beyond a reasonable doubt. State v.
Cardenas-Flores, 189 Wn.2d 243, 265, 401 P.3d 19 (2017). We defer to the trier of fact on issues
of conflicting testimony, witness credibility, and the persuasiveness of evidence. State v. Ague-
Masters, 138 Wn. App. 86, 102, 156 P.3d 265 (2007). Here, the trial court found W.S.B.’s
testimony credible and W.S.B.’s testimony was sufficient to establish that Ball had sexual contact
with her. Ball’s claim about the sufficiency of the evidence fails.
Second, Ball claims that the State did not initially intend to use the audio recording but
then later did, so its admission constituted a procedural error. However, Ball did not object to the
admission of the audio recording. Ball cannot raise this claim for the first time on appeal. See
RAP 2.5(a). Thus, to the extent Ball claims the trial court erred by admitting the audio recording,
we decline to consider this claim.
B. GROUND 2
In his second ground, Ball identifies numerous statements from the State’s closing
argument that he claims were improper. However, Ball did not object to any of these comments.
As explained above, if the defendant fails to object to the State’s remarks at trial, any error
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regarding prosecutorial misconduct is deemed to have been waived unless the misconduct was “so
flagrant and ill[-]intentioned that an instruction could not have cured the resulting prejudice.”
Emery, 174 Wn.2d at 760-61. Here, as discussed above, a timely objection could have cured any
potential improper statement by the prosecutor, especially when the finder of fact was a judge.
Accordingly, Ball’s additional claims of prosecutorial misconduct are waived.
C. GROUND 3
In his third ground, Ball appears to claim that his arrest violated his Fourteenth Amendment
right to equal protection because Deputy Bauman arrested Ball without sufficient probable cause.
Ball appears to claim that the deputy wrongfully arrested him because the deputy did not get a
direct statement from W.S.B. or have any physical evidence or appearance of “a violent action.”
SAG at 11-12. “Probable cause” for a warrantless arrest exists if facts and circumstances within
the arresting officer’s knowledge, and of which he has reasonably trustworthy information, are
sufficient to permit a person of reasonable caution to believe that an offense has been or is being
committed. State v. Conner, 58 Wn. App. 90, 265, 791 P.2d 261, review denied, 115 Wn.2d 1020
(1990); see generally U.S. CONST. amend. IV. The recording of W.S.B.’s disclosure of the abuse
was sufficient to establish that an offense had been committed. Thus, Deputy Bauman had
probable cause to arrest Ball, and Ball’s claim of an equal protection violation fails.
D. GROUND 4
Ball’s fourth ground also includes two different claims related to the audio recording of
W.S.B. First, Ball claims the recording was improperly admitted. As explained above, we decline
to address the admission of the audio recording for the first time on appeal.
Second, Ball claims that the prosecution used the recording maliciously to “bias [the]
verdict” based on “emotional persuasion.” SAG at 14. Ball appears to claim that the State
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committed prosecutorial misconduct by attempting to “inflame the passions” of the decision-
maker. It is improper for prosecutors to use arguments calculated to inflame the passions or
prejudices of the jury. State v. Thierry, 190 Wn. App. 680, 690, 360 P.3d 940 (2015), review
denied, 185 Wn.2d 1015 (2016). However, this was a bench trial, and trial courts are presumed to
know and apply the law when hearing a bench trial. See Read, 147 Wn.2d at 245. “ ‘In bench
trials, judges routinely hear inadmissible evidence that they are presumed to ignore when making
decisions.’ ” Id. (quoting Harris, 454 U.S. at 346). Therefore, even if the State made inflammatory
arguments based on the audio recording, Ball cannot show they caused prejudice by causing the
trial court to reach its verdict based on considerations other than the evidence presented. See State
v. Thorgerson, 172 Wn.2d 438, 442-43, 258 P.3d 43 (2010) (appellant must show State’s conduct
was prejudicial in order to prevail on a claim of prosecutorial misconduct).
E. GROUND 5
In his fifth ground, Ball claims the trial court erred by shifting the burden of proof to the
defendant. Ball appears to rely on the trial court’s finding that there was no evidence supporting
the defense theories of collusion or conspiracy to fabricate the accusations. Due process requires
the prosecution to prove every element of a crime beyond a reasonable doubt. U.S. CONST. amend.
XIV; WASH. CONST. art. I, § 3; State v. Johnson, 188 Wn.2d 742, 750, 399 P.3d 507 (2017).
Here, the trial court did find that Ball failed to support his allegations of conspiracy or
collusion. However, in the context of the record as a whole, the trial court did not relieve the State
of its burden to prove the charges beyond a reasonable doubt. The trial court correctly identified
the State’s burden in its findings and identified the evidence, particularly W.S.B.’s testimony,
which supported the findings. Further, the trial court concluded that it was “convinced beyond a
reasonable doubt” that the elements of the crime were proved. CP at 44. Therefore, Ball has failed
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to demonstrate that the trial court applied the incorrect standard, improperly shifted the burden to
the defendant, or relieved the State of its burden to prove all elements of the crime beyond a
reasonable doubt.
F. GROUND 6
In his sixth additional ground, Ball claims the trial court imposed an excessive sentence
that violated his Eighth Amendment right. Ball does not identify any specific error in determining
his sentence, only that, given this is his first offense and he has otherwise been a good father and
positive community member, a standard range based on offense seriousness level of 10 is
excessive.4 The Eighth Amendment prohibits cruel and unusual punishment. Miller v. Alabama,
567 U.S. 460, 469, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012). “Subject to limits imposed by the
[E]ighth [A]mendment to the United States Constitution, the legislature has the power to define
criminal conduct and set out the appropriate punishment.” In re Pers. Restraint of Percer,
150 Wn.2d 41, 49, 75 P.3d 488 (2003). The seriousness level is set by the legislature relating to
the crime itself, not the offender, and the legislature has determined first degree child molestation
has a seriousness level of 10. RCW 9.94A.515. Ball does not support his claim that his punishment
violates the Eighth Amendment with anything besides this being his first offense, which is already
accounted for in his offender score. Because Ball received the punishment prescribed by the
legislature for his offense, his claim lacks merit.
4 To the extent that Ball claims it is a constitutional violation to subject him to the jurisdiction of the Indeterminate Sentencing Review Board (ISRB) because the ISRB will not release him unless he admits his guilt, this claim relies on facts outside the record, including the decision-making process of the ISRB, and will not be considered on direct appeal. State v. McFarland, 127 Wn.2d 322, 338, 899 P.2d 1251 (1995).
16 No. 58957-5-II
CONCLUSION
We affirm Ball’s conviction, but we remand to the trial court to reconsider the language
and imposition of community custody conditions 10 and 14, to correct the scrivener’s error in the
judgment and sentence, and to strike the VPA.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,
it is so ordered.
PRICE, J. We concur:
MAXA, P.J.
LEE, J.