State Of Washington, Respondent V. John Thomas Tyler, Appellant (Majority)

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Filed Washington State Court of Appeals Division Two July 19, 2016 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II STATE OF WASHINGTON, No. 46426-8-II Respondent, v. JOHN THOMAS TYLER, UNPUBLISHED OPINION Appellant. SUTTON, J. — John Thomas Tyler appeals his 11 convictions for first degree child rape, two convictions for second degree child rape, and two convictions for first degree child molestation. The three victims of Tyler’s crimes were his biological daughter and two stepdaughters,1 whom he allegedly abused from the time they were ages four or five to when the oldest was 12 years old. Tyler argues that his convictions should be reversed and we should remand for a new trial because (1) the State presented insufficient evidence to support three of the convictions for first degree child rape and his conviction for first degree child molestation as to victim JAR,2 (2) the trial court impermissibly commented on the evidence, (3) the trial court admitted irrelevant and unduly prejudicial evidence, (4) the prosecutor committed misconduct during closing argument, and (5) the State filed a deficient information by not factually differentiating between all of the charges. Tyler also argues that we should (6) remand to correct his judgment and sentence 1 All three victims testified that Tyler was either their mother’s ex-boyfriend or their father. 2 Counts II, IV, VI, and VIII. No. 46426-8-II because the State did not present any evidence of his prior convictions and (7) that we should remand for resentencing because the trial court did not consider whether he had the ability to pay the discretionary legal financial obligations (LFOs). We hold that (1) the State presented sufficient evidence to support the three convictions for first degree child rape and the conviction for first degree child molestation as to JAR, (2) the trial court impermissibly commented on the evidence by including the victims’ birthdates in the toconvict jury instructions, but the error was harmless, (3) the trial court properly admitted evidence of Tyler’s physical abuse of the victims, (4) the prosecutor engaged in several instances of misconduct but the comments were not so flagrant and ill-intentioned that no limiting instruction could have cured the error, (5) Tyler waived his ability to challenge the information for vagueness on appeal, (6) the State failed to prove Tyler’s prior criminal history at sentencing, and (7) we exercise our discretion to reach the merits of Tyler’s LFO challenge. We affirm Tyler’s convictions, remand for resentencing under RCW 9.94A.530(2), and remand for the sentencing court to make an individualized inquiry into Tyler’s ability to pay the discretionary LFOs as required under RCW 10.01.160(3) and Blazina.3 3 State v. Blazina, 182 Wn.2d 827, 344 P.3d 680 (2015). 2 No. 46426-8-II FACTS I. AMENDED CHARGES JAR, HMR, and EMK disclosed that Tyler had sexually abused them repeatedly for many years.4 At the time of their disclosures, JAR was 13 years old, 4 months, HMR was 11 years old and 11 months, and EMK was 9 years old. The State charged Tyler with 20 counts of child rape and molestation, 5 of which were charged in the alternative. 5 As to JAR, the State charged Tyler with two counts of first degree child rape for the period September 25, 1992, through January 31, 1995 (counts I and II), one count of first degree child rape for the period January 1, 1995, through February 28, 1995 (count III), two counts of first degree child rape for the period February 1, 1995, through September 24, 2000 (count IV and VI), and one count of first degree child molestation for the period February 1, 1995 through September 24, 2000 (count VIII).6 For counts IV and VI, first degree child rape, the State charged Tyler in the alternative with second degree child rape for the period September 25, 2000, and February 16, We use the minor victims’ initials and redact their birthdates to protect their privacy. Gen. Order 2011-1 of Division II, In re the Use of Initials of Pseudonyms for Child Witnesses in Sex Crime Cases (Wash. Ct. App.), available at http://www.courts.wa.gov/appellate_trial_courts/. 4 5 An alternative charge is not a lesser included offense but allows the jury to consider the most serious charge before considering the alternative charge. State v. Peterson, 94 Wn. App. 1, 6, 966 P.2d 391 (1998). 6 Counts I and II were based on allegations that Tyler had intercourse with JAR when she was five years old, in kindergarten, and lived in an apartment. Count IV was based on sexual intercourse that Tyler had with JAR one night when her mother worked at the fair. Count VI was based on one incident of anal sex by Tyler with JAR and count VIII was based on a separate incident where Tyler put JAR’s hand on his penis, and both counts alleged that JAR was under 12 years old because she turned 13 on September 25, 2000. 3 No. 46426-8-II 2002 (counts V and VII). For count VIII, first degree child molestation, the State charged Tyler in the alternative with second degree child molestation for the period September 24, 2000, through February 16, 2002 (count IX).7 As to JAR, the State also charged Tyler with two additional counts of first degree child rape (counts XI and XIII) or in the alternative, second degree child rape (counts XII and XIV) and one additional count of second degree child rape (count X). As to HMR, the State charged Tyler with four counts of first degree child rape (counts XV, XVI, XVII, and XVIII). As to EMK, the State charged Tyler with one count of first degree child molestation (count XIX) and one count of first degree child rape (count XX). The structure of each of the State’ charges in the information was identical, with a date range that the alleged criminal act occurred, the victim’s name and birthdate, and the victim’s age compared to Tyler’s age. For example, count I alleged in relevant part as follows: That he, [Tyler], in the County of Clark, State of Washington between September 25, 1992 and January 31, 1995, on an occasion separate from that charged in Counts 2 and 3, did have sexual intercourse with another, to-wit: J.A.R. (female, DOB: []), who is less than twelve years old and not married to the perpetrator and the perpetrator is at least twenty-four months older than the victim, in violation of RCW 9A.44.073, contrary to the statutes in such cases made and provided, and against the peace and dignity of the State of Washington. Clerk’s Papers (CP) at 15. The charging language for several counts was identical, except that each count stated that it was based “on an occasion separate from that charged” in the other counts. E.g., CP at 15-17 (counts I, II, IV, and VI). Tyler did not object to the vagueness of the charging language below or request a bill of particulars as to the specific facts supporting each count. 7 The dates pertaining to the remaining 11 charges as to JAR are not at issue in this appeal. 4 No. 46426-8-II II. TRIAL TESTIMONY Over Tyler’s objections, the trial court ruled that evidence of Tyler’s physical abuse of the victims would be admissible to explain the delay in the disclosure of the sexual abuse. Each victim testified that Tyler had sexual intercourse and sexual contact with them on multiple occasions. All three victims and JR, another child who lived in the home, testified that Tyler either spanked or hit them and that they were afraid of Tyler. Janice Blakemore, a sexual assault nurse who interviewed JAR, testified that JAR “revealed a longstanding pattern of sexual abuse” by Tyler that occurred “every week or two.” 3 Verbatim Report of Proceedings (VRP) at 356-57. JAR made similar statements to Dr. John Stirling, a medical doctor who interviewed and examined JAR, HMR, and EMK. Stirling testified that HMR revealed Tyler had sexually abused her since she was five or six years old and that EMK revealed Tyler’s abuse of her started when she was in kindergarten or the year before. HMR also told Stirling that she was afraid Tyler would “beat her up” if she told anyone what was happening. 3 VRP at 380. During the time period charged in counts I and II, between September 25, 1992 and January 31, 1995, JAR was between four and six years old. JAR’s mother, Kimberly Kohlschmidt, testified that she and her children lived in an apartment when JAR was five, but moved to a house in February 1995. JAR testified that when she was five years old and in kindergarten, she lived in an apartment. While she lived there, Tyler started to touch her in a way that made her 5 No. 46426-8-II uncomfortable by putting his penis in her vagina.8 JAR also testified to several other incidents of sexual contact between September 25, 1992 and January 31, 1995. JAR testified as to the general frequency that “it” happened more than one time during this time period. Dr. Stirling testified that JAR disclosed that Tyler sexually abused her at least every other week since she was in kindergarten. Blakemore testified that JAR disclosed that Tyler performed oral, vaginal, or anal sex on her every week or two. At the time of trial, JAR testified that she was 13 years old, that her birthday was later that year, and that she was entering eighth grade. The State argued that JAR was less than 12 years old during the time periods charged in counts IV and V (September 25, 2000, and February 16, 2002). JAR testified that Tyler had sexual intercourse with her “a lot.” 2 VRP at 140. Her testimony about this incident followed her affirmative answers that Tyler had sexual intercourse with her in her mother’s room when she was 9 and 11 years old, and that she remembered it happening one time when her mother was working at the fair. She also testified that “last year,” in seventh grade (after September 25, 2000), he told her “to be bare-butt naked” in her mother’s or Tyler’s bedroom, and then she should take her clothes off. 2 VRP at 136-37. When asked what he would do, she testified that “[h]e would put his penis in my vagina.” 2 VRP 138. She confirmed that this happened when her mother worked at the fair at “nighttime.” 2 VRP at 138. JAR also testified that Tyler told her she should find a boyfriend so that if he impregnated her they could blame it on the boyfriend. JAR testified that he touched her “bottom part” referring to it as “[a] pussy” or “vagina;” he put his “penis in there;” he told her to go somewhere, pull her pants down, and get on the bed. 2 VRP at 123-25. 8 6 No. 46426-8-II Kohlschmidt also testified that she worked “a couple of the fairs” during the summer that JAR was in eighth grade. 2 VRP at 263. The State asked JAR if she remembered Tyler touching her “last year” when she was in the seventh grade and she agreed. 2 VRP at 136-137. JAR also testified that Tyler sexually abused her one night when her mom was working at a fair and described a specific incident that had been painful. JAR was unsure how old she was when Tyler made her place her hands on his penis. JAR also testified to an incident of anal sex, but was not sure how old she was or what grade she was in at school. But she testified that the act took place in her room, during the afternoon, and when Tyler put the clear stuff on his penis from a tube, that it hurt really badly, she cried, and he told her to shut up. When asked how often this happened, she testified that this happened multiple times, but it did not happen “that much.” 9 2 VRP at 140. Blakemore testified that Tyler “used baby oil, especially during rectal penetration.” 3 VRP at 357. Tyler moved to dismiss counts I, II, III, VIII, and XI for lack of evidence as to the dates JAR testified that she was abused. The trial court denied Tyler’s motion. III. JURY INSTRUCTIONS The trial court instructed the jury that “[t]he attorneys’ remarks, statements[,] and arguments are intended to help you understand the evidence and apply the law. They are not evidence. Disregard any remark, statement[,] or argument that is not supported by the evidence of “[State]: How many times did he do that to you? [JAR]: Not that much. [State]: How come? [JAR]: Because it hurts.” 2 VRP at 140. 9 7 No. 46426-8-II the law as stated by the court.”10 CP at 24. The trial court also instructed the jury to disregard any apparent comment on the evidence by the trial court. Each to-convict jury instruction included the birthdate of the victim to which the instruction for the particular charge pertained. IV. CLOSING ARGUMENT, DELIBERATIONS, AND THE JURY VERDICT The State opened its closing argument with the following statements: You’ve just learned firsthand about one of the most horrifying experiences any child could endure . . . . But you, as the jury, are fortunate, and the reason for that is because you can find [Tyler] guilty. You can hold him accountable for torturing these little girls. You get to take the evidence, you get to apply it to the facts of the case, and apply that to the information, to every element, and find [Tyler] guilty of raping and molesting [JAR, HMR, and EMK]. 4 VRP at 486-87. The State then described the elements of each charged crime and the evidence supporting each of them. The State argued that specific incidents to which JAR testified supported each charge as to her, but also that JAR’s generic testimony that the abuse happened over many years supported the charges and supported the fact that she was under 12 years of age. When discussing the evidence supporting count VI, the State recounted JAR’s testimony about a specific incident when her mother was working at the fair at “nighttime” and that JAR testified that “[Tyler] would put his penis in [her vagina].” 4 VRP at 503-04. After reviewing the counts and supporting evidence pertaining to JAR, the State recounted JAR’s testimony that Tyler told her she should find a boyfriend so that if he impregnated her they could blame it on the boyfriend. The State characterized this statement as “calculating” behavior. The State also said that JAR testified that Tyler abused her every week, and the State then said, At the beginning of trial, the trial court orally instructed the jury that the attorneys’ remarks, statements, and arguments were not evidence. 10 8 No. 46426-8-II “[T]hese girls were abused whenever [Tyler] felt like it. I mean, he had his own little harem there in the house.” 4 VRP at 524. The State argued that the victims’ fear of Tyler, which all three testified about, explained why they did not report the sexual abuse, and why they complied with his requests. The State exclaimed, “Thank God there aren’t any more [victims] that we know of” and characterized one of the victims as Tyler’s “own flesh-and-blood.” 4 VRP at 540. The State also argued that for count IV, if the jury was not sure that JAR was under 12 years of age, then they could convict on the alternative lesser included charge in count V, child rape in the second degree, because the only difference between the counts was that Tyler told JAR to go in to the bedroom bare-butt naked after September 25, 2000. Tyler did not object to any portion of the State’s closing argument. During deliberations, the jury asked the trial court to clarify as to count IV: Please clarify whether Count 4 pertains to a specific incident or just an additional incident within the timeframe given. Also, if we can’t all agree that she is under 12 in Count 4—do we automatically vote for Count 5 or do we all have to agree she is 12 or older? CP at 67. The trial court responded that the jury should “[r]ead carefully instruction #16 and instruction #3111 as pertains [sic] to counts 4 & count 5.” CP 67. The jury found Tyler guilty as charged with one exception. The jury did not find Tyler guilty of count XIII, which alleged that Tyler committed first degree child rape of JAR between 11 Instruction no. 16 was the to-convict instruction for count IV and the alternative lesser included count V. Instruction no. 31 instructs the jury on how to complete the verdict forms and defines the lesser-included alternative charges. 9 No. 46426-8-II February 1, 1995 and September 24, 2000. Instead, the jury found Tyler guilty of count XIV, second degree child rape for the time period September 25, 2000, through February 16, 2002. V. SENTENCING AND TIMELY APPEAL The State did not present evidence of Tyler’s prior criminal history at sentencing or at the presentation hearing to enter the judgment and sentence. However, the judgment and sentence signed by the sentencing court listed five prior convictions in Tyler’s criminal history.12 Tyler did not object. The trial court also imposed mandatory and discretionary legal financial obligations. The trial court did not inquire on the record regarding Tyler’s current or future ability to pay the discretionary LFOs. Tyler did not object. Tyler was convicted and sentenced in October 2002. At sentencing, the court advised him of his right to appeal and at his request appointed him an appellate attorney. However, Tyler’s notice of appeal was not filed and he was not assigned appellate counsel. Tyler brought the issue to the trial court’s attention in July 2011. In June 2014, the Clark County Superior Court entered an order allowing Tyler to appeal his case, finding him indigent, and appointing him appellate counsel. ANALYSIS Tyler argues that the State presented insufficient evidence of sexual intercourse as to count II, first degree child rape of JAR during the time period of September 25, 1992, through January 31, 1995 and did not distinguish the act of sexual intercourse charged in count I for the same time 12 Tyler had five prior convictions for burglary, theft, attempted robbery, escape, and forgery. 10 No. 46426-8-II period. Tyler also argues that the State presented insufficient evidence that JAR was younger than 12 years old during the commission of count IV, first degree child rape for the period between February 1, 1995, through September 24, 2000, because JAR “testified that the incident had happened ‘last year,’ which was after her twelfth birthday.” Br. of App. at 11. Tyler also argues that the State presented insufficient evidence related to count VI, first degree child rape for the period between February 1, 1995, through September 24, 2000, and count VIII, first degree child molestation during the same period as count VI, because JAR could not remember how old she was when the incidents occurred. We disagree and hold that sufficient evidence supports the convictions for counts II, IV, VI, and VIII. I. SUFFICIENCY OF EVIDENCE A. LEGAL PRINCIPLES Due process requires the State to prove every element of the charged crimes beyond a reasonable doubt. State v. Kalebaugh, 183 Wn.2d 578, 584, 355 P.3d 253 (2015). We review sufficiency of evidence claims for whether, when viewing the evidence in the light most favorable to the State, any rational trier of fact could have found the essential elements of the charged crime beyond a reasonable doubt. State v. Homan, 181 Wn.2d 102, 105, 330 P.3d 182 (2014). In a challenge to the sufficiency of the evidence, the defendant admits the truth of the State’s evidence and all reasonable inferences that can be drawn from it. Homan, 181 Wn.2d at 106. To convict a defendant of first degree child rape, the jury must find, beyond a reasonable doubt, that the defendant had “sexual intercourse with another who is less than twelve years old and not married to the [defendant] and the [defendant] is at least twenty-four months older than the victim.” RCW 9A.44.073. Sexual intercourse “occurs upon any penetration, however slight” 11 No. 46426-8-II of the “vagina or anus” and also includes “sexual contact between persons involving the sex organs of one person and the mouth or anus of another.” RCW 9A.44.010(1). To convict a defendant of first degree child molestation, the jury must find, beyond a reasonable doubt, that the defendant had “or knowingly cause[d] another person under the age of eighteen to have, sexual contact with another who is less than twelve years old and not married to the [defendant] and the [defendant] is at least thirty-six months older than the victim.” RCW 9A.44.083. Sexual contact “means any touching of the sexual or other intimate parts of a person done for the purpose of gratifying sexual desire of either party or a third party.” RCW 9A.44.010(2). In a case involving a resident child molester, the “victim’s generic testimony can be used to support multiple counts.” State v. Jensen, 125 Wn. App. 319, 327, 104 P.3d 717 (2005). Generic testimony is, for example, a victim’s estimation that the abuse occurred “‘once a month for three years,’” which “‘outlines a series of specific, albeit undifferentiated, incidents each of which amounts to a separate offense, and each of which could support a separate criminal sanction.’” State v. Hayes, 81 Wn. App. 425, 437, 914 P.2d 788 (1996) (internal quotation marks omitted) (quoting People v. Jones, 51 Cal. 3d 34, 792 P.2d 643 (1990)). For generic testimony to support multiple counts of sexual abuse, the victim must be able to describe: (1) the kind of act or acts with sufficient specificity for the jury to determine which offense, if any, has been committed; (2) the number of acts committed with sufficient certainty to support each count alleged by the prosecution; and (3) the general time period in which the acts occurred. Jensen, 125 Wn. App. at 327. 12 No. 46426-8-II B. COUNT II—FIRST DEGREE CHILD RAPE OF JAR As to count II, Tyler first argues that JAR testified only that “it” happened more than once without specifying what “it” meant. JAR was between four and six years old during the time period September 25, 1992 and January 31, 1995 stated in counts I and II for first degree child rape between. Kohlschmidt testified that she and her children lived in an apartment when JAR was five, but moved to a house in February 1995. JAR testified that she lived in an apartment for half of kindergarten and that, during that time period, Tyler put his penis in her vagina. Such conduct satisfies the definition of sexual intercourse and JAR described this conduct as “it” several questions later. RCW 9A.44.010(1) (requiring any penetration). Thus, Tyler is incorrect that the State presented insufficient evidence for the jury to find that sexual intercourse occurred as to count II. Tyler next argues that JAR’s testimony did not specify that “it” happened more than once at the apartment so as to distinguish between conduct supporting count I, first degree child rape during the time period September 25, 1992, through January 31, 1995, and conduct supporting count II, first degree child rape for the same time period. Sufficient evidence supports count II. JAR testified that Tyler touched her in a way that made her uncomfortable by putting his penis in her vagina while she lived in the apartment. Later, JAR stated that she remembered “it” happening “more than once” while she lived in the apartment. 2 VRP at 125. This generic testimony satisfies the three part test in Jensen to support a conviction for count II. Jensen, 125 Wn. App. at 327. First, JAR’s testimony specifically identified the offense that had been committed when, she testified that Tyler would touch her by putting his penis in her vagina and then stated that “it” 13 No. 46426-8-II happened more than one time. Second, JAR’s testimony sufficiently indicated the number of acts of vaginal and anal intercourse while she lived at the apartment. Lastly, JAR described the general time period in which these acts occurred by stating that it began when she was five years old and attended Head Start and lived in the apartment, and that she lived there until the middle of kindergarten. Thus, a rational jury could have found that the State proved every essential element of count II, first degree child rape, during the period of September 25, 1992, through January 31, 1995. C. FIRST DEGREE CHILD RAPE OF JAR (COUNT IV) As to count IV, JAR testified that she was 13 at the time of trial, August 20, 2002, and that her birthday would be later that year. She was entering eighth grade that year. On September 24, 2000, JAR was less than 12 years old. JAR testified that Tyler had sexual intercourse with her “a lot.” 2 VRP at 130. JAR’s testimony about this incident followed her affirmative answers that Tyler had sexual intercourse with her in her mother’s room when she was 9 and 11 years old, and that she remembered it happening one time when her mother was working at the fair. Kohlschmidt testified that she worked “a couple of the fairs” during the summer. 2 VRP at 263. Tyler correctly states that the State asked JAR if she remembered Tyler touching her “last year” when she was in the seventh grade and she agreed. 2 VRP at 136. He is also correct that JAR testified about an incident that occurred when her mom was working at a fair, and the State argued that this incident, in addition to JAR’s general testimony, supported a conviction for count IV. Taken in the light most favorable to the State, a rational jury could have found that JAR was less than 12 years old as to count IV. 14 No. 46426-8-II D. FIRST DEGREE CHILD RAPE OF JAR (COUNTS VI & VIII) Like the evidence supporting count II, JAR’s generic testimony as to counts VI and VIII satisfy the Jensen test. Jensen, 125 Wn. App. at 327. JAR testified to several acts of anal sex and her language indicated that Tyler did this on more than one occasion.13 JAR also testified to several other incidents of sexual contact. JAR testified as to the general frequency that these things happened as well as the time frame. Furthermore, Dr. Stirling testified that JAR disclosed to him that Tyler had been sexually abusing her since she was in kindergarten. Thus, taken in the light most favorable to the State, a rational jury could find beyond a reasonable doubt that JAR was less than 12 years old at the commission of the crimes charged in counts VI and VIII. Tyler’s claims of insufficient evidence fail. II. TRIAL COURT’S COMMENT ON THE EVIDENCE Tyler argues that the trial court impermissibly commented on the evidence when it included each of the victims’ birthdates in the to-convict jury instructions. The State concedes this error, but argues that the error was not prejudicial. We hold that Tyler was not prejudiced by the trial court’s impermissible comment. A. STANDARD OF REVIEW We review challenged jury instructions de novo in the context of the jury instructions as a whole. State v. Jackman, 156 Wn.2d 736, 743, 132 P.3d 136 (2006). A trial court may not instruct the jury on an issue of fact or comment on facts. Wash. Const. art. IV, § 16. A jury instruction that references a victim’s birthdate, when the victim’s age is an element of the crime, is an “[State]: How many times did he do that to you? [JAR]: Not that much. [State]: How come? [JAR]: Because it hurts.” 2 VRP at 140. 13 15 No. 46426-8-II impermissible judicial comment on the evidence. State v. Zimmerman, 135 Wn. App. 970, 973, 146 P.3d 1224 (2006) (citing Jackman, 156 Wn.2d at 744). We presume that a trial court’s comment on the evidence is prejudicial. Zimmerman, 135 Wn. App. at 973. The State bears the burden to show that the defendant was not prejudiced by an improper comment on the evidence, “unless the record affirmatively shows that no prejudice occurred.” Zimmerman, 135 Wn. App. at 973-974 (holding that, though improper, the trial court’s inclusion of the victim’s birthdate in the to-convict jury instruction was not prejudicial). B. TO-CONVICT JURY INSTRUCTION For each charge of first degree child rape and first degree child molestation, the State was required to prove beyond a reasonable doubt the victim’s age at the time of the offense as an element of the crimes. See RCW 9A.44.073 and 9A.44.083. The to-convict jury instruction for each count included the birthdate of the victim. Thus, under Jackman, the to-convict instructions constituted the trial court’s improper comment on the evidence. However, the record shows that Tyler was not prejudiced by the improper comment. Tyler relies on Jackman to argue that he was prejudiced because the victims’ ages at the time of each of the offenses were disputed. In Jackman, the court held that the to-convict instructions with the victims’ birthdates were prejudicial because the defendant testified that he did “everything he could” to determine the victims’ ages, and it was conceivable that the jury could have found that the victims were not minors at the time of the charged crime if it were not for the trial court’s improper comments in the court’s instructions. Jackman, 156 Wn.2d at 745. Conversely, in Zimmerman, this court reasoned that the reference to victim’s birth date in jury instruction was not prejudicial because the record demonstrated that no jury could have 16 No. 46426-8-II concluded that the victim was over the age of 12 at the time of the offense. Zimmerman, 135 Wn. App. at 975. “Critical” to that conclusion was the fact that Zimmerman was the victim’s biological father and that “he knew and never disputed knowing her age.” Zimmerman, 135 Wn. App. at 975. In addition, the victim and the victim’s mother testified, as well as defense witnesses, about the victim’s birthdate. Zimmerman, 135 Wn. App. at 975. Thus, the trial court’s comment was harmless. Zimmerman, 135 Wn. App. at 975-76. Here, JAR, HMR, and EMK testified as to their birthdates. EMK testified that Tyler was her biological father and JAR and HMR testified that Tyler was their mother’s ex-boyfriend who had lived with them for many years. Although Tyler disputed the sufficiency of the State’s evidence relating to JAR’s age for the time period February 1, 1995 through September 24, 2000 as charged in counts IV, VI and VIII, he did not dispute the ages of HMR or EMK at the time of the charged crimes relating to them, nor did he dispute JAR’s age at the time of the remaining charges for first and second degree child rape (counts I, II, III, XI, XIII, X). Tyler never disputed the basic fact of the victims’ birthdates. Thus, like Zimmerman, we hold that the trial court’s to-convict instruction containing each victim’s birthdate was not prejudicial. III. EVIDENCE OF TYLER’S PHYSICAL ABUSE OF THE VICTIMS Tyler argues that the trial court erred by admitting evidence that he physically abused the victims because it was irrelevant and unduly prejudicial under ER 403 and 404(b). We disagree. A. STANDARD OF REVIEW We review the trial court’s interpretation of ER 404(b) de novo as a matter of law. State v. Fisher, 165 Wn.2d 727, 745, 202 P.3d 937 (2009). If the trial court interprets the rule correctly, we review the trial court’s ruling to admit evidence of misconduct for abuse of discretion. Fisher, 17 No. 46426-8-II 165 Wn.2d at 745. A trial court abuses its discretion if admitting the evidence was contrary to law, or when the decision was manifestly unreasonable or based on untenable grounds or reasons. State v. Quaale, 182 Wn.2d 191, 196-97, 340 P.3d 213 (2014). We may affirm the trial court’s evidentiary rulings on any proper basis. State v. Gresham, 173 Wn.2d 405, 419, 269 P.3d 207 (2012). B. EVIDENCE OF TYLER’S PHYSICAL ABUSE ER 403 provides that relevant evidence may be excluded “if its probative value is substantially outweighed by the danger of unfair prejudice.” A danger of unfair prejudice exists “‘[w]hen evidence is likely to stimulate an emotional response rather than a rational decision.’” State v. Beadle, 173 Wn.2d 97, 120, 265 P.3d 863 (2011) (quoting State v. Powell, 126 Wn. 2d 244, 264, 893 P.2d 615 (1995)). ER 404 generally prohibits admission of evidence of a person’s character for the purpose of showing propensity to act according to that character. “Evidence of other crimes, wrongs, or acts . . . . may, however, be admissible for other purposes.” ER 404(b). Before the trial court may properly admit evidence of prior misconduct under ER 404(b), it must “(1) find by a preponderance of the evidence [that] the misconduct actually occurred, (2) identify the purpose of admitting the evidence, (3) determine the relevance of the evidence to prove an element of the crime, and (4) weigh the probative value against the prejudicial effect of the evidence.” Fisher, 165 Wn.2d at 745. The third and fourth elements of this rule ensure that admission of the evidence does not violate ER 403. Gresham, 173 Wn.2d at 421. The party seeking to admit the evidence in question has the burden to prove the first three prongs of the test. Gresham, 173 Wn.2d at 421. 18 No. 46426-8-II Evidence of prior misconduct is presumptively inadmissible. Gresham, 173 Wn.2d at 421. However, in sexual abuse cases, Washington courts allow admission of evidence of misconduct “to prove the alleged victim’s state of mind,” and to explain the victim’s delay in reporting the sexual abuse. Fisher, 165 Wn.2d at 744-45. Here, the State moved to admit evidence of Tyler’s physical abuse for the purpose of explaining the victims’ delayed reporting under ER 404(b). The trial court granted the motion and explained: [T]his case has got nineteen counts of child rape in various degrees or molestation in various degrees. I think the jury is going to be impacted by simply the statement of what the charges are and I think that the—when you talk about delayed disclosure to explain those things, I think I’m going to permit some of that to come in because it doesn’t seem like it’s going to inflame [the jury] any worse than the case itself will. 1 VRP at 19-20. Tyler argues that the trial court abused its discretion in admitting evidence that Tyler had physically abused the victims because the State did not present evidence linking the abuse to delayed reporting, and the trial court did not give a limiting instruction or conduct an explicit ER 404(b) inquiry on the record. Tyler is correct that the trial court did not conduct an explicit analysis of the four-factor ER 404(b) test on the record. He is also correct that the trial court did not give the jury a limiting instruction, but Tyler waives this argument because he did not request one.14 The record demonstrates that the trial court properly admitted evidence of Tyler’s physical abuse of the victims because Tyler’s threats that he would “beat [them] up if they told anyone” 14 Generally, an issue cannot be raised for the first time on appeal unless it is a "manifest error affecting a constitutional right." RAP 2.5(a)(3). To establish manifest error, the appellant must show actual prejudice. State v. Munguia, 107 Wn. App. 328, 340, 26 P.3d 1017 (2001). 19 No. 46426-8-II and each victim’s testimony that they were afraid of Tyler explained why the victims did not report the sexual abuse for so many years, and showed that the sexual abuse actually occurred. 3 VRP at 380; See Fisher, 165 Wn.2d at 745-46; see also State v. Wilson, 60 Wn. App. 887, 890, 808 P.2d 754 (1991) (in sexual abuse of a minor case, evidence of physical assaults was properly admitted under ER 404(b) to explain delay in reporting the abuse and to rebut inference that the sexual abuse did not occur). All three victims testified that Tyler would hit or spank them and that they were afraid of him. In her closing argument, the prosecutor tied the victims’ fear of Tyler to the victims delayed disclosure of the sexual abuse and why the victims complied with Tyler’s requests. Thus, the trial court did not abuse its discretion when it admitted evidence of Tyler’s physical abuse because the State linked that evidence to the victims’ delay in disclosure of the sexual abuse and Tyler did not request a limiting instruction. C. HARMLESS ERROR The State argues that even if the trial court improperly admitted evidence of Tyler’s physical abuse, there was overwhelming evidence of Tyler’s guilt and no reasonable possibility exists that excluding it would have changed the outcome. We agree. An erroneous evidentiary ruling that is not of constitutional magnitude is not prejudicial unless, within reasonable probabilities, the trial’s outcome would have been different had the error not occurred. State v. Brockob, 159 Wn.2d 311, 351, 150 P.3d 59 (2006). An evidentiary ruling is harmless error if “‘the evidence is of minor significance’” compared to the “‘overwhelming evidence [of guilt] as a whole.’” Brockob, 159 Wn.2d at 351 (internal quotation marks omitted) (quoting State v. Bourgeois, 133 Wn. 2d 389, 403, 945 P.2d 1120 (1997)). 20 No. 46426-8-II JAR, HMR, and EMK each testified that Tyler had sexual intercourse and sexual contact with them on more than one occasion. Their testimonies included graphic and detailed descriptions of Tyler’s actions over a period of eight years. They described specific incidents and generic testimony about its frequency. Two medical professionals, who interviewed and physically examined the victims, testified that the victims revealed Tyler’s long pattern of vaginal, anal, and oral sexual intercourse over many years since each victim was four or five years old; Dr. Stirling testified about the physical evidence on JAR’s and EMK’s bodies that evidenced sexual intercourse had occurred at least three years prior to trial. There is no reasonable probability that the outcome of the trial would have been different had the trial court not admitted this evidence. IV. PROSECUTORIAL MISCONDUCT Tyler argues that the prosecutor committed misconduct several times during closing argument. We agree with Tyler that some of the prosecutor’s comments were improper, but disagree that they were so prejudicial that no limiting instruction could have cured the error. A. STANDARD OF REVIEW The U.S. Constitution and the Washington State Constitution grant citizens the right to a fair trial. U.S. Const. amend. IV, VI; Const. art. I § 22; Pers. Restraint of Glasmann, 175 Wn.2d 696, 703, 286 P.3d 673 (2012). Prosecutorial misconduct jeopardizes that right. Glasmann, 175 Wn.2d at 703-04. A defendant claiming prosecutorial misconduct must show both improper conduct and resulting prejudice. Fisher, 165 Wn.2d at 747. Prejudice exists when there is a “‘substantial likelihood [that] the misconduct affected the jury’s verdict.’” State v. McKenzie, 157 Wn.2d 44, 52, 134 P.3d 221 (2006) (quoting State v. Brown, 132 Wn. 2d 529, 561, 940 P.2d 546 (1997)). Because Tyler did not object to the prosecutor’s allegedly improper conduct, we must 21 No. 46426-8-II determine whether the prosecutor’s misconduct was “so flagrant and ill-intentioned” that it caused an “enduring and resulting prejudice” incurable by a jury instruction. State v. Stenson, 132 Wn.2d 668, 719, 940 P.2d 1239 (1997). Under this heightened standard of review, Tyler must show that “(1) ‘no curative instruction would have obviated any prejudicial effect on the jury and (2) the misconduct resulted in prejudice that ‘had a substantial likelihood of affecting the jury verdict.’” State v. Emery, 174 Wn.2d 741, 761, 278 P.3d 653 (2012) (quoting State v. Thorgerson, 172 Wn.2d 438, 455, 258 P.3d 43 (2011)). In analyzing a prosecutorial misconduct claim, we “focus less on whether the prosecutor’s misconduct was flagrant or ill-intentioned and more on whether the resulting prejudice could have been cured.” Emery, 174 Wn.2d at 762. “‘The criterion always is, has such a feeling of prejudice been engendered or located in the minds of the jury as to prevent a [defendant] from having a fair trial?’” Emery, 174 Wn.2d at 762 (alteration in original) (quoting Slattery v. City of Seattle, 169 Wash. 144, 148, 13 P.2d 464 (1932). B. STATE’S CLOSING ARGUMENT Tyler claims several instances of the State’s closing argument amounted to improper prosecutorial misconduct. First, Tyler argues that the prosecutor referenced facts not in the record by arguing that Tyler physically abused the victims to gain their compliance and that he was “calculating.” Second, Tyler argues that the prosecutor improperly appealed to the jury’s passion and prejudice by saying the jury was “fortunate” to be able to convict Tyler, expressing thanks that there were no more known victims, characterizing the victims’ experience as horrifying, and by emphasizing legally irrelevant evidence, such as the physical pain JAR testified about and characterizing the victims as Tyler’s “harem.” Br. of App. at 23-24. The State concedes that the 22 No. 46426-8-II prosecutor’s statement that the jury was “fortunate,” its reference to the victims as Tyler’s “harem,” and its expression of thanks that there were no more known victims were improper. A prosecutor’s argument that is unsupported by the evidence is improper. Pers. Restraint of Yates, 177 Wn.2d 1, 58, 296 P.3d 872 (2013). However, a prosecutor has “‘wide latitude’” in its closing argument and may draw reasonable inferences from the evidence admitted at trial. Yates, 177 Wn.2d at 58 (internal quotation marks omitted) (quoting Fisher, 165 Wn.2d at 747). A prosecutor may reference the nature of the crime and its effect on the victims. State v. Borboa, 157 Wn.2d 108, 123, 135 P.3d 469 (2006) (prosecutor’s comment that the crime was horrible and referencing witnesses’ emotional reactions not improper or prejudicial). On the other hand, a prosecutor may not appeal to the jury’s passion and prejudice or encourage the jury to base its verdict on the improper argument, rather than the properly admitted evidence. Glasmann, 175 Wn.2d at 711. We review the prosecutor’s conduct within the full context of closing argument. Yates, 177 Wn.2d at 58. Here, several of the prosecutor’s statements that Tyler now claims were misconduct were not improper because the comment recounted, or was a reasonable inference from, the evidence at trial or referenced the nature of Tyler’s crimes. The argument that Tyler used physical abuse to gain compliance from the victims was based on the evidence presented at trial. All three victims and JR testified that Tyler either hit or spanked them and that they were afraid of Tyler. HMR told Stirling that she was afraid Tyler would physically harm her if she told anyone what was happening to her. Likewise, JAR testified about the physical pain of Tyler’s conduct. Thus, the portion of the State’s closing argument referencing this evidence was not improper. 23 No. 46426-8-II Additionally, the prosecutor’s comment during closing argument that Tyler was “calculating” was a reasonable inference from the evidence and a characterization of the nature of Tyler’s conduct. The State characterized Tyler as “calculating” after recounting JAR’s testimony that Tyler told her that she needed to get a boyfriend so that if Tyler ever impregnated her he would be able to “blame it on [the boyfriend].” 2 VRP at 150. Likewise, the prosecutor’s characterization of these acts as a horrifying experience for a child was a reasonable characterization of the nature of the crime. See Borboa, 157 Wn.2d at 123 (holding the prosecutor’s description of the charges as “horrible” in his closing statement was not improper). Thus, these comments did not constitute improper prosecutorial argument. The State concedes that the prosecutor’s statement that the jury was “fortunate,” its reference to the victims as Tyler’s “harem,” and its expression of thanks that there were no more known victims were improper. However, these comments were not so flagrant and ill-intentioned that no jury instruction could have cured the error. Given the context of the prosecutor’s closing argument, the jury’s instruction that the attorneys’ remarks were not evidence, and the overwhelming evidence of Tyler’s guilt, we cannot say that these comments created such a feeling of prejudice against Tyler that he was denied a fair trial or that the remarks were incurable. Had Tyler objected and the trial court given the jury a limiting instruction to not consider these improper remarks, any prejudice would have been 24 No. 46426-8-II obviated. Therefore, we hold that the prosecutor’s closing argument did not constitute incurable prosecutorial misconduct that warrants reversal for a new trial.15 V. SUFFICIENT CHARGING DOCUMENT Tyler argues that the State’s information was deficient because it did not differentiate between all of the charges by including relevant facts for each charge. We decline to address the merits of this issue because Tyler argues only that the information was vague and he did not request a bill of particulars below under CrR 2.1(c).16 A charging document that states the essential elements of a crime, but is vague on some other significant matter, may be corrected under a bill of particulars. State v. Leach, 113 Wn.2d 679, 687, 782 P.2d 552 (1989). “The function of a bill of particulars is ‘to amplify or clarify particular matters considered essential to the defense.’” State v. Allen, 116 Wn. App. 454, 460, 66 P.3d 653 (2003) (quoting State v. Noltie, 116 Wn.2d 831, 845, 808 P.2d 190 (1991)). “A defendant may not challenge a charging document for vagueness on appeal” if he or she did not request a bill of particulars. Leach, 113 Wn.2d at 687 (internal quotation marks omitted). Here, Tyler does not allege that the State’s information omitted essential elements of any of the charged crimes. Rather, he argues that the information failed to include “the facts necessary” to differentiate between the charges. See Br. of Appellant at 26, 28. In other words, he argues that 15 Tyler argues that the cumulative effect of instances of misconduct requires reversal. Because the misconduct was not so flagrant and ill-intentioned that no jury instruction could have cured the error, we need not consider this argument. CrR 2.1(c) provides that the “court may direct the filing of a bill of particulars. A motion for a bill of particulars may be made before arraignment or within 10 days after arraignment or at such later time as the court may permit.” 16 25 No. 46426-8-II the information does not “describe the facts with great specificity.” State v. Winings, 126 Wn. App. 75, 85, 107 P.3d 141 (2005). This argument goes to the vagueness of the charging document and not to any constitutional insufficiency. Leach, 113 Wn.2d at 686-87. Tyler never requested a bill of particulars to resolve any vagueness in the information. Thus, he cannot challenge the information for vagueness on appeal. VI. EVIDENCE OF PRIOR CONVICTIONS Tyler argues, and the State concedes, that the State failed to present evidence of Tyler’s prior convictions at sentencing. We accept the State’s concession and remand for resentencing to allow both parties to present relevant evidence regarding Tyler’s criminal history under RCW 9.94A.530(2), including any criminal history not previously presented. A trial court must conduct a sentencing hearing before imposing a sentence on a convicted defendant. RCW 9.94A.500(1); State v. Hunley, 175 Wn.2d 901, 908, 287 P.3d 584 (2012). A defendant’s criminal history is based upon a defendant’s offender score which is generally calculated by adding together the defendant’s current offenses and prior convictions. RCW 9.94A.589(1)(a); Hunley, 175 Wn.2d at 908-09. At sentencing, the State must prove any prior convictions by a preponderance of the evidence and must “introduce ‘evidence of some kind to support the alleged criminal history.’” Hunley, 175 Wn.2d at 910 (quoting State v. Ford, 137 Wn.2d 472, 479-80, 973 P.2d 452 (1999)). Tyler argues that the correct remedy is to remand to correct the judgment and sentence. We disagree. Under State v. Cobos,17 we remand for resentencing to allow both parties to present 17 State v. Cobos, 178 Wn. App. 692, 700-01, 315 P.3d 600 (2013). 26 No. 46426-8-II relevant evidence regarding Tyler’s criminal history under RCW 9.94A.530(2),18 including any criminal history not previously presented. VII. IMPOSITION OF DISCRETIONARY LFO’S Lastly, Tyler argues that the trial court erred by imposing discretionary LFOs without inquiring into his ability to pay them per RCW 10-01-160(3). The State argues that because Tyler did not object to imposition of the LFOs below and no compelling reason exists for us to reach the issue, this court should not exercise its discretion to reach the issue. However, because we are remanding for resentencing, we exercise our discretion under RAP 2.5(a) to review the LFO issue. State v. Blazina, 182 Wn.2d 827, 830, 344 P.3d 680 (2015). “A defendant who makes no objection to the imposition of discretionary LFOs at sentencing is not automatically entitled to review.” Blazina, 182 Wn.2d at 832. Generally, we may refuse to review a claim of error raised for the first time on appeal. RAP 2.5(a). In State v. Blazina, we declined to reach the defendant’s argument regarding the imposition of LFOs at his sentencing because he failed to object and preserve the matter for appeal. 174 Wn. App. 906, 911, 301 P.3d 492 (2013). As our Supreme Court noted, an appellate court may use its discretion to reach unpreserved claims of error. Blazina, 182 Wn.2d at 830. Tyler argues that the sentencing court necessarily failed to consider his ability to pay because, if it had, it would not have imposed them based on Tyler’s lengthy sentence, his indigent status, and the trial court’s knowledge that Tyler received RCW 9.94A.530(2) states: “On remand for resentencing following appeal or collateral attack, the parties shall have the opportunity to present and the court to consider all relevant evidence regarding criminal history, including criminal history not previously presented.” 18 27 No. 46426-8-II Supplemental Security Income (SSI). However, the record indicates that Tyler was currently employed in addition to receiving SSI in March 2002. Because we are remanding for resentencing on the prior convictions, the trial court is directed to inquire into Tyler’s ability to pay the discretionary LFOs as required under RCW 10.01.160(3) and Blazina. CONCLUSION We hold that (1) the State presented sufficient evidence to support Tyler’s three convictions for first degree child rape and his conviction for first degree child molestation as to JAR (counts II, IV, VI, and VIII), (2) the trial court impermissibly commented on the evidence by including the victims’ birthdates in the to-convict jury instructions, but the error was harmless, (3) the trial court properly admitted evidence of Tyler’s physical abuse for a purpose other than proving his prior bad acts, (4) the prosecutor engaged in misconduct, but the comments were not so flagrant and illintentioned that no limiting instruction could have cured the error, (5) Tyler waived his ability to challenge the information for vagueness on appeal, (6) the State failed to prove Tyler’s prior criminal history at sentencing, and (7) we exercise our discretion to reach the merits of Tyler’s 28 No. 46426-8-II LFO challenge. We affirm all of Tyler’s convictions, remand for resentencing under RCW 9.94A.530(2) at which hearing the State may present evidence of Tyler’s criminal history, and remand and order the sentencing court to make an individualized inquiry into Tyler’s ability to pay the discretionary LFOs as required under RCW 10.01.160(3) and Blazina. 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. SUTTON, J. We concur: BJORGEN, C.J. MELNICK, J. 29

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