State Of Washington, V. Danilo Distura

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,

No. 84750-3-I

Respondent,

DIVISION ONE

v.

UNPUBLISHED OPINION

DANILO DISTURA,

Appellant.

CHUNG, J. — Danilo Distura appeals his convictions for two counts of rape of a

child in the first degree and two counts of child molestation in the first degree. He claims

his jury included a biased juror, and he challenges the selection of his jury using remote

videoconferencing in violation of his right to a fair trial. He also claims the State

committed prosecutorial misconduct, the court impermissibly commented on the

evidence, and three of his community custody conditions are either unconstitutional or

unrelated to his crime. We affirm his convictions. However, we reverse his sentence and

remand to the trial court to correct a scrivener’s error and to strike the victim penalty

assessment (VPA) and a DNA fee because Distura was indigent when sentenced.

BACKGROUND

The State charged Distura with sex offenses related to his daughter, M.D.—

specifically, two counts of rape of a child in the first degree and two counts of child

molestation in the first degree, all four with domestic violence designations. After a trial

in September 2022, the jury hung on one of the counts for rape of a child but convicted

No. 84750-3-I/2

Distura of all the other counts as charged. Distura received an indeterminate sentence

of 170 months to life. The court also imposed the $500 VPA and a $100 DNA collection

fee. Distura timely appeals.

DISCUSSION

Distura raises multiple issues on appeal. First, he alleges his constitutional right

to a fair trial was violated because the court seated a biased juror and conducted jury

selection remotely via Zoom. 1 He alleges prosecutorial misconduct and that the court

commented on the evidence. He also alleges the community custody condition requiring

his consent to home searches is constitutionally overbroad and that two other conditions

regarding alcohol use and sexual contact are unrelated to his crime. Finally, Distura

challenges his sentence based on a scrivener’s error and for including VPA and a DNA

fee despite his indigence. We address each issue in turn.

I. Fair trial issues

A. Actual bias

Distura claims the court violated his constitutional rights by seating a juror who

expressed clear bias against him without that juror uttering “any subsequent curative

statement of impartiality.” The State argues the court acted within its discretion because

the juror “made an equivocal statement suggesting a possibility of bias.” We agree with

the State.

The Sixth Amendment to the United States Constitution and article I, section 22

of the Washington Constitution both guarantee a criminal defendant the right to trial by

an impartial jury. State v. Njonge, 181 Wn.2d 546, 553, 334 P.3d 1068 (2014). Seating

1 Zoom is a cloud-based videoconferencing software platform. State v. Wade, 28 Wn. App. 2d

100, 104 n.1, 534 P.3d 1221 (2023), review denied, 2 Wn.3d 1018 (2024).

2

No. 84750-3-I/3

a biased juror violates this right. State v. Guevara Diaz, 11 Wn. App. 2d 843, 851, 456

P.3d 869 (2020).

To protect this right, a party may challenge a juror for cause based on actual

bias, defined as “the existence of a state of mind . . . in reference to the action, or to

either party, which satisfies the court that the challenged person cannot try the issue

impartially and without prejudice to the substantial rights of the party challenging” the

potential juror. RCW 4.44.170(2). The fact that a juror expresses or forms an opinion is

insufficient to sustain a challenge. RCW 4.44.190. Instead, to sustain a challenge based

on actual bias, “the court must be satisfied, from all the circumstances, that the juror

cannot disregard such opinion and try the issue impartially.” Id. Thus, actual bias must

be established by proof beyond “a mere possibility.” State v. Sassen Van Elsloo, 191

Wn.2d 798, 808-09, 425 P.3d 807 (2018). “[T]he record must demonstrate ‘that there

was a probability of actual bias.’ ” Id. at 809 (quoting State v. Noltie, 116 Wn.2d 831,

838-39, 809 P.2d 190 (1991)).

“[E]quivocal answers alone do not require a juror to be removed when challenged

for cause, rather, the question is whether a juror with preconceived ideas can set them

aside.” Noltie, 116 Wn.2d at 839. Indeed, “ ‘[a] trial court need not excuse a juror with

preconceived ideas if the juror can set those ideas aside and decide the case on the

evidence presented at the trial and the law as provided by the court.’ ” Guevara Diaz, 11

Wn. App. 2d at 855-56 (quoting State v. Phillips, 6 Wn. App. 2d 651, 662, 431 P.3d

1056 (2018) (citing RCW 4.44.190; State v. Rupe, 108 Wn.2d 734, 748, 743 P.2d 210

(1987))). On the other hand, if the court “has only a ‘statement of partiality without a

subsequent assurance of impartiality,’ a court should ‘always’ presume juror bias.”

3

No. 84750-3-I/4

Guevara Diaz, 11 Wn. App. 2d at 854 (quoting Miller v. Webb, 385 F.3d 666, 674 (6th

Cir. 2004)).

Even if neither party challenges a juror, the trial court has an obligation to excuse

a juror where grounds for a challenge for cause exist. RCW 2.36.110 (it “shall be the

duty of a judge to excuse . . . any juror, who in the opinion of the judge, has manifested

unfitness as a juror by reason of bias, prejudice, indifference, inattention . . . .”); see

also CrR 6.4(c) (judge “shall excuse” a juror where the judge “is of the opinion that

grounds for challenge are present”); State v. Jorden, 103 Wn. App. 221, 227, 11 P.3d

866 (2000) (a trial court has “a continuous obligation . . . to excuse any juror who is unfit

and unable to perform the duties of a juror.”). But judges should “tread carefully” and

“exercise caution before injecting itself into the jury[-]selection process.’ ” In re Pers.

Restraint of Perry, 29 Wn. App. 2d 734, 747, 542 P.3d 168 (2024) (quoting State v.

Lawler, 194 Wn. App. 275, 284, 374 P.3d 278, review denied, 186 Wn.2d 1020 (2016)).

Otherwise, “a trial court that excuses a juror sua sponte risks disrupting counsel’s jury-

selection strategy.” Id.

A trial court is in the best position to evaluate a juror’s ability to be fair and

impartial because it can assess the juror’s “tone of voice, facial expressions, body

language, or other forms of nonverbal communication when making [their] statements.”

Lawler, 194 Wn. App. at 287. Therefore, we review a trial court’s decision not to dismiss

a juror for abuse of discretion. Guevara Diaz, 11 Wn. App. 2d at 856. A trial court

abuses its discretion when its decision is manifestly unreasonable or based on

untenable grounds. Sassen Van Elsloo, 191 Wn.2d at 807.

4

No. 84750-3-I/5

In this case, juror 8 2 answered “yes” to a query on the jury questionnaire: “Do you

have any concerns for any reason about your ability to be a fair and impartial juror in

this case?” The questionnaire then asked potential jurors answering yes to explain, and

juror 8 wrote: “Based on the information provided above, Danilo Distura has multiple

counts of sexual abuse against a child. I may be biased against Danilo for being

charged with such things. This may affect my ability to be fair.” Distura argues this

questionnaire answer is an “expression of bias against Mr. Distura.”

Distura relies on Guevara Diaz, in which this court reversed because “all that the

record clearly shows is that juror 23 said she could not be fair.” 11 Wn. App. 2d at 858.

The juror at issue in that case answered “no” to a jury questionnaire asking if she could

be fair to both sides, and “group-directed” questions could not rehabilitate the juror as

there was no record of the juror’s responses indicating that they could be fair. 3 But

unlike in Guevara Diaz, in the present case, juror 8 provided a written explanation for

his “yes” answer to the questionnaire: he explained that “I may be biased against Danilo

for being charged with such things. This may affect my ability to be fair.” (Emphasis

added). Juror 8’s statement is equivocal because the word “may” is not definite; rather,

it means to “be in some degree likely to.” W EBSTER’S THIRD NEW INTERNATIONAL

DICTIONARY 1396 (2002).

This case is more akin to Lawler. In that case, Lawler was accused of assaulting

his girlfriend, and juror 23 indicated multiple family members were victims of domestic

violence. Lawler, 194 Wn. App. at 278-79. The prosecutor asked juror 23 whether his

2 Juror number 8 was prospective juror number 21 during voir dire.

3 “[Q]uestions directed to the group cannot substitute for individual questioning of a juror who has

expressed actual bias.” State v. Irby, 187 Wn. App. 183, 196, 347 P.3d 1103 (2015) (citing Hughes v.

United States, 258 F.3d 453, 461 (6th Cir. 2001)).

5

No. 84750-3-I/6

life experiences would make it difficult for him to be fair and impartial. Id. at 279. Juror

23 responded, “I don’t see how I could be objective with all that past experience.” Id.

Then, asked if he could set those experiences aside and follow the court’s instructions,

juror 23 replied, “I don’t think I would be able to do that with all these experiences.” Id. at

280. He raised his hand when defense counsel asked if anyone would be uncomfortable

serving on the jury. Id. Neither the parties nor the court followed up on juror 23’s replies.

Id. On appeal, we held that juror 23’s statements were “at least slightly equivocal” and

not “ ‘unqualified statement[s] expressing actual bias’ ” because the statements

conveyed “a vague nonspecific discomfort . . . rather than a firm bias.” Id. at 287

(quoting State v. Irby, 187 Wn. App. 183, 188, 347 P.3d 1103 (2015)). Further, as the

trial court was “alert to the possibility of biased jurors,” it did not abuse its discretion by

failing to dismiss juror 23 sua sponte. Id. at 287, 289.

Even more than the “slightly equivocal” statement of the juror in Lawler—“I don’t

think I would be able to do that,” i.e., be fair and impartial—here, juror 8’s use of the

word “may” communicates equivocation. An equivocal answer does not require a juror

to be removed for cause. Noltie, 116 Wn.2d at 839. Nor does it demonstrate partiality

that requires a subsequent assurance of impartiality.

Juror 8 also did not express unequivocal bias at any other point in voir dire.

During group questioning, juror 8 raised his hand to indicate his agreement with other

panel members’ statements such as “I just don’t think a child would just make that up,”

“it would be hard to believe that a child would go to through this entire process . . . if it

were a lie,” questioning a child “might be a reason why [a child] wouldn’t disclose

immediately and why there wouldn’t be bodily fluids,” “physical evidence would be long,

6

No. 84750-3-I/7

long, long gone,” and how victims of sexual assault “might be . . . a little confused over

time.” While these are general comments favoring the prosecution’s theory, they do not

demonstrate actual bias as defined by RCW 4.44.170(2), i.e., “a state of mind . . . ,

which satisfies the court that the challenged person cannot try the issue impartially and

without prejudice to the substantial rights” of a defendant.

Moreover, juror 8 did not raise his hand to agree with statements posed to the

panel that could have indicated bias, such as “I can’t look at Danilo, and say, I can give

you a fair trial,” or “Danilo must have d[one] something wrong or we wouldn’t be here.”

The prosecutor asked juror 8’s panel this type of question three times. Five prospective

jurors raised their hands the first time, two more the second time, and one more the

third time. But juror 8 did not.

In addition to the group questioning, juror 8 was individually questioned once.

Defense counsel asked what juror 8 thought of “the Blackstone formula”4 and if it was

“better that 10 guilty people go free than one innocent person be convicted.” This

colloquy followed:

Juror 8: I think it depends on the, like, what the guilty people have

done. If like, did huge horrendous things, then I don’t think it’ll -- the 10

people getting away with that, that’s too much.

[Defense counsel]: Okay.

Juror 8: But yeah, it depends.

[Defense counsel]: So and if I’m understanding, you would look at it

and say, you know, that’s a nice thing to say, but if they’ve done really bad

things, I think it’s worth the cost of having some innocent people also

convicted?

Juror 8: Yeah. Yeah. Or to have one innocent person convicted.

4 “[B]etter that ten guilty persons escape, than that one innocent suffer.” 4 W ILLIAM BLACKSTONE,

COMMENTARIES ON THE LAWS OF ENGLAND *358 (1769).

7

No. 84750-3-I/8

[Defense counsel]: Okay. Fair enough.

Distura’s counsel did not ask juror 8 other questions. Juror 8’s responses to this line of

questioning were not unequivocal statements indicating actual bias. To the contrary,

juror 8 twice said “it depends” rather than indicating a preconceived idea that he could

not set aside.

The juror’s questionnaire responses, his responses to group questions, and

responses to individual questioning were not unequivocal statements that indicated bias

and required rehabilitation. We agree with the State that the court did not abuse its

discretion by failing to dismiss juror 8 sua sponte because the record shows the juror’s

questionnaire answer and explanation, group responses, and individual answers were

equivocal.

B. Zoom voir dire

Distura argues the court erred by conducting remote voir dire using Zoom

because he has “a state constitutional right to in-person jury selection” and because

Zoom “constrained [his] ability to accurately assess potential jurors.” We adhere to our

precedent and reject these arguments.

It is well settled that trial courts have discretion in determining how best to

conduct voir dire. State v. Davis, 141 Wn.2d 798, 825, 10 P.3d 977 (2000). “ ‘[A]bsent

an abuse of discretion and a showing that the rights of an accused have been

substantially prejudiced, a trial court’s ruling on the scope and content of voir dire will

not be disturbed on appeal.’ ” State v. Wade, 28 Wn. App. 2d 100, 111, 534 P.3d 1221

(2023) (citing Davis, 141 Wn.2d at 826), review denied, 2 Wn.3d 1018 (2024).

8

No. 84750-3-I/9

On the first day of Distura’s trial, the court stated it would be “a COVID trial”

following a “virtual hybrid” model. At that time, King County Superior Court was

operating under the Washington State Supreme Court’s fifth revised order regarding

court operations during the COVID-19 pandemic, which allowed jury selection using

remote technology. Ord. re: Fifth Revised & Extended Ord. Regarding Ct. Operations,

No. 25700-B-658, In re Statewide Response by Washington State Courts to the COVID-

19 Public Health Emergency, (Wash. Feb. 19, 2021),

https://www.courts.wa.gov/content/publicUpload/Supreme%20Court%20Orders/25700-

B-658.pdf [https://perma.cc/F2PD-LEXX]. The court then discussed trial mechanics for

voir dire with both parties. Most of the potential jurors for Distura’s trial elected to appear

by Zoom.

Distura argues that under article I, section 21 of the Washington State

Constitution, he has an “inviolate” right to a jury trial, or, alternatively, the court’s

“analysis on why it was choosing jury selection by video was insufficient.” But this court

has held that trial courts did not abuse their discretion when they relied on the

Washington Supreme Court’s orders during the COVID-19 pandemic and allowed voir

dire over Zoom, so the court here did not err by likewise allowing voir dire over Zoom

without stating specific reasons for doing so. Wade, 28 Wn. App. 2d at 116 (“the trial

court did not abuse its discretion when it . . . allowed voir dire over Zoom); see also

State v. Kiner, No. 83593-9-I, slip op. at 26, 2023 WL 3946837 (Wash. Ct. App. June

12, 2023) (unpublished), https://www.courts.wa.gov/opinions/pdf/835939.pdf (“The

9

No. 84750-3-I/10

orders promulgated by our Supreme Court . . . demonstrate that [COVID-19] was a valid

reason to conduct voir dire remotely.”). 5

Distura argues that “jury selection did not occur by telephone, telegram, or

written correspondence” at the time of the Code of 1881, so article I, section 21

“includes the right to in-person jury selection.” But to the contrary, as “past decisions

have shown,” the “jury function [that] receives constitutional protection from article 1,

section 21” is the determination of factual issues. Sofie v. Fibreboard Corp., 112 Wn.2d

636, 648, 771 P.2d 711 (1989). Furthermore, our Supreme Court has inherent authority

to administer justice and to ensure the safety of court personnel, litigants, and the

public, including by issuing orders such as those regarding court operations during

COVID-19, on which the trial court relied for its authority to proceed with a virtual hybrid

trial. Wade, 28 Wn. App. 2d at 115 (citing State v. Wadsworth, 139 Wn.2d 724, 741, 991

P.2d 80 (2000)). Finally, reading article I, section 21 to apply to jury selection in a

criminal case renders superfluous article I, section 22, which guarantees a criminal

defendant the right to trial by an impartial jury. State v. Booth, 24 Wn. App. 2d 586, 604,

521 P.3d 196 (2022), review denied, 526 P.3d 849 (2023). We conclude that by

conducting voir dire over Zoom, per the Supreme Court’s order, the court neither

abused its discretion nor violated article I, section 21.

Distura next argues that remote voir dire “unduly restricted Mr. Distura’s rights to

select a fair jury and to be physically present with the jury venire.” Distura does not

argue that he was denied presence at the critical stage of voir dire. He argues that he

has a right to require the venire to be physically present with him. He cites State v. Irby

5 When necessary to a reasoned decision, as here, we may cite an unpublished case. GR

14.1(c).

10

No. 84750-3-I/11

for this proposition. 170 Wn.2d at 880. But Irby states only that “[a]lthough the right to

be present is rooted to a large extent in the confrontation clause . . . , the United States

Supreme Court has recognized that this right is also ‘protected by the Due Process

Clause in some situations where the defendant is not actually confronting witnesses or

evidence against him.’ ” 170 Wn.2d at 880-81 (quoting United States v. Gagnon, 470

U.S. 522, 526, 105 S. Ct. 1482, 84 L. Ed. 2d 486 (1985)). Irby does not stand for the

proposition that a defendant’s due process right to be present—such as during voir

dire—encompasses a right to confront persons, such as jurors, who are not witnesses

providing evidence against them. 6 We therefore conclude that while Distura has a right

to be present during voir dire, he does not have a right to confront the venire in person.

Distura also suggests his rights were violated because technical glitches

occurred during remote voir dire that prevented him from fully assessing the potential

jurors. But in each incident he cites, the technical glitch was momentary and was

resolved. For example, in one instance, the court helped the potential juror find a button

to enable video or join voir dire another way. In another, defense counsel asked if there

was a technical issue and the juror answered “no.” In still another, the prosecutor made

an audio adjustment, and the potential juror then stated, “[T]hat’s much better.” When

defense counsel told a potential juror he was “cutting out,” the juror simply repeated

their answer.

While we have “acknowledg[ed] the necessity that the parties be able to

ascertain bias” in potential jurors, we have held that a trial court does not abuse its

6 See also Kiner, No. 83593-9-I, slip op. at 25-26 (“But a defendant’s right to confront witnesses

against him is inherently different from his right to be present during jury voir dire where there are no

witnesses.”).

11

No. 84750-3-I/12

discretion by requiring jurors to wear face masks during jury selection. State v. Bell, 26

Wn. App. 2d 821, 835, 838, 529 P.3d 448, review denied, 1 Wn.3d 1035 (2023). The

Bell court recognized the “countervailing need to provide for safety of all participants in

the midst of a pandemic,” and reasoned that face masks deprived a defendant of “only a

small part of [a potential juror’s] demeanor.” 26 Wn. App. 2d at 835. Like jurors wearing

face masks, none of the technical glitches Distura relies on shows how his ability to

perceive bias or observe nonverbal communication was “restricted” by remote voir dire.

See Bell, 26 Wn. App. at 838. We therefore conclude the court did not abuse its

discretion by permitting remote voir dire.

C. Prosecutorial misconduct

Distura argues the prosecutor committed reversible misconduct by repeatedly

referring to the complaining witness as the “victim,” despite a preliminary order

precluding the use of the term. The State admits this “was technically improper [but] any

error was harmless.” We agree with the State.

The defendant bears the burden of proving on appeal that prosecutorial

misconduct was both improper and prejudicial. State v. Emery, 174 Wn.2d 741, 756,

278 P.3d 653 (2012) (citing State v. Thorgerson, 172 Wn.2d 438, 442, 258 P.3d 43

(2011)). If an appellant establishes a prosecutor’s statement or conduct was improper,

we determine whether the defendant below was prejudiced under one of two standards

of review. Emery, 174 Wn.2d at 760. If the defendant objected at trial, the defendant

must show that the prosecutor’s misconduct resulted in prejudice that had “a substantial

likelihood of affecting the jury’s verdict.” Emery, 174 Wn.2d at 760 (citing State v.

Anderson, 153 Wn. App. 417, 427, 220 P.3d 1273 (2009) (citation omitted)). If the

12

No. 84750-3-I/13

defendant did not object at trial, the defendant is deemed to have waived any error

unless the prosecutor’s misconduct was “so flagrant and ill intentioned that an

instruction could not have cured the resulting prejudice.” Emery, 174 Wn.2d at 760-61

(citing State v. Stenson, 132 Wn.2d 668, 727, 940 P.2d 1239 (1997)). Under this

heightened standard, the defendant must show that “(1) ‘no curative instruction would

have obviated any prejudicial effect on the jury’ and (2) the misconduct resulted in

prejudice that ‘had a substantial likelihood of affecting the jury verdict.’ ” Emery, 174

Wn.2d at 761 (quoting Thorgerson, 172 Wn.2d at 455).

Thus, we must first determine whether Distura waived any error by failing to

object such that the heightened standard applies. A party losing a pretrial motion has a

“standing objection” unless instructed by the court to continue to object. State v. Weber,

159 Wn.2d 252, 271, 149 P.3d 646 (2006) (citing State v. Kelly, 102 Wn.2d 188, 193,

685 P.2d 564 (1984) (other citation omitted)). A party who wins a pretrial motion does

not. Weber, 159 Wn.2d at 271. Instead, a “commonsense approach” dictates that a

party should object so that the trial court can cure any potential prejudice with an

instruction, unless “an unusual circumstance exists ‘that makes it impossible to avoid

the prejudicial impact’ ” of continuing to object. Weber, 159 Wn.2d at 272 (quoting State

v. Sullivan, 69 Wn. App. 167, 173, 847 P.2d 953 (1993)). Examples of unusual

circumstances include the “ ‘deliberate disregard of the trial court’s ruling’ ” or “ ‘an

objection [that] by itself would be so damaging as to be immune from any admonition or

curative instruction by the trial court.’ ” Weber, 159 Wn.2d at 272 (quoting Sullivan, 69

Wn. App. at 173); see also State v. Smith, 189 Wash. 422, 429, 65 P.2d 1075 (1937).

13

No. 84750-3-I/14

When we review whether prosecutorial misconduct requires reversal, we review the

misconduct “in the context of the entire case.” Thorgerson, 172 Wn.2d at 443.

Here, before trial, the court granted Distura’s motion to preclude using the word

“victim” to refer to his daughter, M.D. Nonetheless, during voir dire the next day, the

prosecutor used the word repeatedly. At times the prosecutor used the word generically,

i.e., “a victim,” or preceded by the word “alleged,” but most frequently the prosecutor

said “the victim” or “the victim in this case.” Distura did not object to any of these

references by the State. Regardless, when the prosecutor used the words “my victim,”

the court sua sponte intervened:

[Court]: Counsel, I’m going to have to interrupt you here. Ladies

and gentlemen and other persons who are on this call, I just want to make

sure that I assure you, this is an allegation alone, and counsel needs to

refer to the person as alleged victim. That is very important for you to keep

in mind. This is an accused person and alleged victim. It’s all a

determination to be made by the jury. So I just want to make sure that

those terms are clearly stated.

At the next break, outside the jury’s presence, the court stated:

[Court]: Counsel, it’s really not my preference to interrupt, but your

use of the term “my victims”, several times raised a great deal of concern.

[State]: Sure, I’m sorry.

[Distura’s counsel]: Thank you, Your Honor.

[Court]: I’m sure it’s just habit, but it needs to be a constant, and

that’s extremely important, especially now when we’re talking about

burden of proof.

The prosecutor used the approved phrase “alleged victim” during voir dire the next day.

Immediately before trial began the next week, following a discussion of the use of

names and initials in the case, the court “urge[d]” the prosecutor to use the term

14

No. 84750-3-I/15

“alleged victim.” Then, the following exchange occurred during the prosecutor’s direct

examination of M.D.:

[State]: Your Honor, with the court’s permission may the witness

step off the stand and use the easel?

The court: You may. Go ahead.

[State]: And actually I think I will, Your Honor, permission to actually

remain probably next to the victim and hold up the microphone just to

make sure that we hear her while she’s describing things up at the easel?

The court: Yes, the witness may have the microphone near her,

yes.

Distura did not object to this reference by the prosecutor to “the victim.” Nevertheless, at

the next break, after hearing other objections, the court sua sponte admonished the

prosecutor:

The other thing, counsel, I need to warn you once more. Do not

refer to her as the victim. You did it again at the top of the afternoon

session. You asked in front of the jury, Your Honor, can the victim step

down and come up to the board? Unless you want me to correct you on

the record in front of the jury, which I don’t think you want to and I don’t

want to do that, you need to stop. It needs to be the witness.

The prosecutor did not use the word “victim” in her closing argument. She used

the words “alleged victim” twice in her rebuttal to the defense’s closing argument.

Because Distura prevailed on his pretrial motion in limine, he did not have a

standing objection. Thus, under Weber’s “commonsense approach,” he was required to

object to the use of the word “victim” so the court could cure any prejudice. However,

Distura argues that because the prosecutor deliberately disregarded the court’s order,

he was not required to contemporaneously object and that “prejudice is presumed”

when “a prosecutor deliberately disregards a motion in limine ruling,” citing Smith, 189

Wash. at 429. But Smith, a 1937 case, was decided before Weber, which considered

15

No. 84750-3-I/16

Smith and limited it, instead adopting the “commonsense approach” from Sullivan.

Weber, 159 Wn.2d at 271 (“the rule from Smith should apply only in limited

circumstances” involving “deliberate disregard” or where an objection “was likely more

damaging than almost any answer”). The State concedes the prosecutor’s use of the

word “victim,” particularly preceded by the word “my,” as in “my victim,” was error

because it violated the court’s pretrial motion, yet contends this was not “a deliberate

snub of the court’s ruling” but “mere lapsus linguae.”7

Because Distura did not object during voir dire or during the trial when the

prosecutor used the word “victim,” he must establish that 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. The prosecutor used the term several times

during the first day of voir dire. She did not do so the second day of voir dire in front of

another panel. During trial, the prosecutor used the term only once. After referring to

M.D. as “the witness,” the prosecutor asked the court’s permission to “remain . . . next

to the victim and hold up the microphone.” The court answered without repeating the

prohibited term: “Yes, the witness may have the microphone near her, yes.” The

prosecutor did not use the term in her closing argument, and used the approved phrase

“alleged victim” only two times in her rebuttal.

This record does not show deliberate disregard, nor that “ ‘no curative instruction

would have obviated any prejudicial effect on the jury.’ ” Emery, 174 Wn.2d at 761

(quoting Thorgerson, 172 Wn.2d at 455). Rather, it shows the prosecutor listened and

responded to the court’s sua sponte admonitions during voir dire and later during trial to

7 Slip of the tongue. State v. Hujus, 73 Wn.2d 240, 243, 438 P.2d 212 (1968).

16

No. 84750-3-I/17

adhere to its pretrial order and, as a result, changed her word choice. This record does

not demonstrate a “ ‘substantial likelihood’ ” that a single use of the prohibited term in

discussing an administrative issue—the prosecutor asking permission to hold the

microphone for the testifying witness—“ ‘affect[ed] the jury verdict.’ ” Id.

Finally, Distura argues that, even if prejudice is not presumed, “the prosecutor’s

repeated use of the word ‘victim’ cannot be held harmless” because M.D.’s credibility

was the primary issue before the jury, pointing to cases from foreign jurisdictions

holding that the word “victim” is prejudicial. 8 However, in the context of the entire case,

the prosecutor used the precluded term only once during trial in the presence of the

seated jury. All other instances of the prohibited term occurred during voir dire, before

trial began. The prosecutor did not use the precluded term during closing. The court’s

instructions to the jury stated that the jurors were “the sole judges of the credibility of

each witness” and that “the lawyers’ statements are not evidence.” 9 Distura made no

objections to the prosecutor’s use of the term “victim” and did not move for a mistrial on

that basis.

While the prosecutor’s use of the term “victim” violated the pretrial order, the

record does not show that in doing so, she deliberately disregarded the court’s order.

Moreover, the trial court recognized the statements’ impropriety and sua sponte

provided curative admonishments to enforce its pretrial order. Distura did not object

either to the prosecutor’s use of the term during voir dire or to the single use of the word

8 None of the cited cases are binding authority for this court. Jackson v. State, 600 A.2d 21, 25

(Del. 1991); State v. Mundon, 292 P.3d 205, 230 (Haw. 2012); State v. Sperou, 442 P.3d 581, 590 (Or.

2019); State v. Albino, 24 A.3d 602, 615 (Conn. 2011); State v. Devey, (2006 UT App, 138 P.3d 90, 95) .

Even if considered for persuasive value, the cases do not help answer whether, in the context of Distura’s

trial, the prosecutor’s use of the precluded word resulted in incurable prejudice or affected the jury’s

verdict.

9 Jurors are presumed to follow the court’s instructions. Emery, 174 Wn.2d at 766.

17

No. 84750-3-I/18

during trial. We agree with the State that this record fails to show a substantial likelihood

that the error affected the jury’s verdict.

D. Comment on the evidence

Distura argues that the court’s use of M.D.’s initials in its to-convict jury

instructions for each charge “conveyed to the jury [that] the court believed [she] was a

crime victim who needed protection.” The State argues this court “should adhere to its

prior decision[ ]” in State v. Mansour, 14 Wn. App. 2d 323, 330, 470 P.3d 543

(2020), review denied, 196 Wn.2d 1040 (2021). We agree with the State.

Article IV, section 16 of the Washington Constitution provides that “[j]udges shall

not charge juries with respect to matters of fact, nor comment thereon, but shall declare

the law.” “This constitutional provision prohibits a judge ‘from conveying to the jury

[their] personal attitudes toward the merits of the case’ or instructing a jury that ‘matters

of fact have been established as a matter of law.’ ” Mansour, 14 Wn. App. 2d at 329

(internal quotation marks omitted) (quoting State v. Levy, 156 Wn.2d 709, 721, 132 P.3d

1076 (2006)).

A claimed error alleging an improper judicial comment on the evidence may be

raised for the first time on appeal. Levy, 156 Wn.2d at 719-20. “We review de novo

whether a jury instruction constituted an improper comment on the evidence ‘within the

context of the jury instructions as a whole.’ ” Mansour, 14 Wn. App. 2d at 329 (quoting

Levy, 156 Wn.2d at 721). We presume a comment on the evidence is prejudicial and

the State bears the burden of showing no prejudice occurred. Levy, 156 Wn.2d at 725.

In Mansour, this court considered the same argument Distura makes here and

held that the use of initials to identify a child victim in the to-convict instructions is not a

18

No. 84750-3-I/19

judicial comment on the evidence. 14 Wn. App. 2d at 330. In Mansour, we explained

that the name of the victim of child molestation is not a factual issue requiring resolution,

so the use of initials in the to-convict instruction “did not impermissibly instruct the jury

that a matter of fact had been established as a matter of law.” Id. at 329-30. Nor is a

juror likely to presume that a complainant is a victim—or that the court considers them

to be—merely because the court chooses to use their initials. Id. at 330. We observed

that “even the court’s use of the term ‘victim’ has ‘ordinarily been held not to convey to

the jury the court’s personal opinion of the case.’ ” Id. (quoting State v. Alger, 31 Wn.

App. 244, 249, 640 P.2d 44 (1982)).

Here, Distura nonetheless argues that Mansour was wrongly decided. He cites

the same cases and makes arguments similar to those made by Mansour. The federal

cases he cites are neither binding nor persuasive. All four are civil cases in which

plaintiffs sought to use pseudonyms to conceal their identities throughout judicial

proceedings. 10 By contrast, here, like the child victim in Mansour, M.D. was referred to

by her full name throughout the trial. 14 Wn. App. 2d at 330.

State v. Jackman, also cited by Distura, is inapposite. 156 Wn.2d 736, 132 P.3d

136 (2006). In Jackman, the age of the victim was an element of the crime charged,

communication with a minor for immoral purposes. 156 Wn.2d at 743. Thus, the victims’

ages were a factual issue for the jury to resolve, and when the trial court included the

victims’ birth dates in the to-convict instructions, it conveyed to the jury that those dates

10 Jane Doe v. Cabrera, 307 F.R.D. 1, 2 n.2 (D.D.C. 2014) (permitting use of a pseudonym

throughout the pretrial process); James v. Jacobsen, 6 F.3d 233, 240-41 (4th Cir. 1993) (considering

pseudonym use throughout trial for parents to protect identity of their minor children); Does I through XXIII

v. Advanced Textile Corp., 214 F.3d 1058, 1068 (9th Cir. 2000) (considering pseudonym use throughout

pretrial proceedings); Jane Doe v. Rose, No. CV-15-07503-MWF-JCx, 2016 WL 9150620, at *1 (C.D. Cal.

2016) (order reserving for pretrial conference whether plaintiff would be permitted to use a pseudonym at

trial).

19

No. 84750-3-I/20

had been proven true. Id. at 744. This was an impermissible judicial comment on the

evidence because it allowed the jury to infer that the age element had been proved by

the State. Id. The same is not true here because M.D.’s name is not an element of the

crime of rape of a child in the first degree.

We agree with the State, follow Mansour, and conclude that the use of M.D.’s

initials in the to-convict instructions did not convey anything to the jury about the judge’s

personal attitudes on the merits of the case and were not a judicial comment on the

evidence.

II. Conditions of community custody

Distura argues his sentence contains community custody conditions that must be

stricken because they are either unconstitutional or unrelated to his crime.

“Broadly speaking,” community custody is authorized, and its conditions are

governed, by the Sentencing Reform Act of 1981 (SRA). 11 State v. Hubbard, 1 Wn.3d

439, 446, 527 P.3d 1152 (2023). RCW 9.94A.703 specifies mandatory, waivable,

discretionary, and special conditions that a court “shall impose” if a sentence includes

community custody. Hubbard, 1 Wn.3d at 446. Certain sex offenses, like those for

which the jury convicted Distura, require a court to sentence the offender to an

indeterminate sentence and impose community custody “for any period of time the

person is released from total confinement before the expiration of the maximum

sentence.” RCW 9.94A.507(5).

We review community custody conditions for an abuse of discretion. State v.

Nguyen, 191 Wn.2d 671, 678, 425 P.3d 847 (2018) (citing State v. Bahl, 164 Wn.2d

11 Chapter 9.94A RCW.

20

No. 84750-3-I/21

739, 753, 193 P.3d 678 (2008) (citation omitted)). It is an abuse of discretion to impose

a community custody condition in violation of the legal parameters set by RCW

9.94A.703 or to impose an unconstitutional condition. State v. Geyer, 19 Wn. App. 2d

321, 326, 496 P.3d 322 (2021). However, “[w]e will not overturn a community custody

condition simply because we think the court should have acted differently,” as the lawful

exercise of discretion is a broad power. Id. at 326-27.

A. Home search consent conditions

“Probationers have a reduced expectation of privacy because they are ‘persons

whom a court has sentenced to confinement but who are serving their time outside the

prison walls.’ ” State v. Olsen, 189 Wn.2d 118, 124-25, 399 P.3d 1141 (2017) (quoting

State v. Jardinez, 184 Wn. App. 518, 523, 338 P.3d 292 (2014) (citation omitted)).

Consequently, a person on probation is subject to searches founded upon a

“reasonable suspicion” instead of a warrant supported by probable cause. State v.

Winterstein, 167 Wn.2d 620, 628, 220 P.3d 1226 (2009); see also RCW 9.94A.631(1)

(“reasonable cause”). But RCW 9.94A.631 “permits a warrantless search of the property

of an individual on probation only where there is a nexus between the property

searched and the alleged probation violation.” State v. Cornwell, 190 Wn.2d 296, 306,

412 P.3d 1265 (2018).

Distura’s sentence includes special community custody conditions relating to sex

offenses. Distura challenges condition 8, which states:

8. Consent to [Department of Corrections] home visits to monitor

compliance with supervision. Home visits include access for the

purposes of visual inspection of all areas of the residence in which

the offender lives or has exclusive/joint control/access.

21

No. 84750-3-I/22

Distura argues this condition is ripe for review and unconstitutionally overbroad

because it requires his consent to random, suspicionless searches. The State argues

Distura’s challenge is not ripe. We agree with the State.

A claim is ripe for review on direct appeal “ ‘if the issues raised are primarily

legal, do not require further factual development, and the challenged action is final.’ ”

State v. Sanchez Valencia, 169 Wn.2d 782, 786, 239 P.3d 1059 (2010) (internal

quotation marks omitted) (quoting Bahl, 164 Wn.2d at 751)). “ ‘The court must also

consider the hardship to the parties of withholding court consideration.’ ” Sanchez

Valencia, 169 Wn.2d at 786 (internal quotation marks omitted) (quoting Bahl, 164

Wn.2d at 751)).

Distura argues condition 8 raises an issue that “is purely legal and does not

require further factual development” because “condition 8 does not comport with . . .

Cornwell.” He argues the condition is final because his judgment and sentence is final,

citing Hubbard, 1 Wn.3d at 452, and State v. Cates, 183 Wn.2d 531, 534, 354 P.3d 832

(2015). And he argues that a hardship will be worked against him if he waits to bring his

challenge “only to find that Hubbard precludes his right to challenge it.” 12

In Cates, the court held that a challenge to a similar condition was primarily legal

and a final action. 183 Wn.2d at 534. The court “thus consider[ed] only whether further

factual development [wa]s required and the risk of hardship to Cates if [it] decline[d] to

address the merits of his challenge at this time.” Id. at 534-35. The court held that the

challenge was not ripe because the “condition as written does not authorize any

searches, and . . . the State’s authority is limited to that needed ‘to monitor [Cates’s]

12 Hubbard held that the one-year time bar on collateral attacks of a judgment and sentence

applies to CrR 7.8 motions. 1 Wn.3d at 451.

22

No. 84750-3-I/23

compliance with supervision.’ ” Id. at 535 (citing RCW 9.94A.631). 13 Additionally, the

Cates court decided that the risk of hardship to Cates was insufficient to justify review

prior to such factual development because “[c]ompliance here does not require Cates to

do, or refrain from doing, anything upon his release until the State requests and

conducts a home visit.” Id. at 536. Thus, the court held Cates’s preenforcement

challenge was not ripe and declined to review the merits. Id.

Distura argues that “this court should follow the lead of its recent unpublished

cases and adjudicate the constitutionality of special condition 8.”14 But, as in Cates,

while condition 8 at issue here is primarily a legal challenge and the challenged action is

final, the issues require further factual development. Also, compliance with the condition

does not require Distura immediately “to do, or refrain from doing, anything upon his

release,” id. at 536, so the risk of hardship to Distura is insufficient to justify review

before such factual development. Thus, we follow Cates and hold that condition 8 is not

ripe for review. See also State v. Holmes, __ Wn. App. 2d __, 548 P.3d 570, 584 (2024)

(same condition not ripe for review under Cates).

13 While Cates’s challenge primarily concerned an oral comment by the sentencing court that was

not incorporated into the written condition, the Supreme Court’s analysis of the need for further factual

development and the risk of hardship to Cates applies to the written condition there as well. The written

condition in Cates was similar to condition 8 here and stated as follows: “You must consent to

[Department of Corrections] home visits to monitor your compliance with supervision. Home visits include

access for the purposes of visual inspection of all areas of the residence in which you live or have

exclusive/joint control/access, to also include computers which you have access to.” Cates, 183 Wn.2d at

533.

14 Distura cites State v. Daniels, No. 54094-1-II (Wash. Ct. App. Aug. 3, 2021) (unpublished),

https://www.courts.wa.gov/opinions/pdf/D2%2054094-1-II%20Unpublished%20Opinion.pdf and State v.

Franck, No. 51994-1-II (Wash. Ct. App. Feb. 4, 2020) (unpublished)

https://www.courts.wa.gov/opinions/pdf/D2%2051994-1-II%20Unpublished%20Opinion.pdf.

23

No. 84750-3-I/24

B. Alcohol-related conditions

Distura’s sentence also contains two conditions relating to the consumption of

alcohol. Those conditions state:

9. Do not consume alcohol.

10. Be available for and submit to urinalysis and/or breathanalysis upon

request of the [community custody officer] and/or chemical

dependency treatment provider.

Distura argues that no evidence links drugs or alcohol to the crimes he

committed so it was error for the court to impose these conditions. The State does not

argue alcohol contributed to Distura’s crime, but responds that RCW 9.94A.703(3)(e)

does not require any specific connection to the crime of conviction and Distura does not

claim a constitutional right to use drugs or alcohol. 15 We affirm both conditions 9 and 10.

RCW 9.94A.703(3) pertains to discretionary conditions that a court “may” order.

While some of those conditions must be crime-related, some “need only have a more

loose connection” to the crime of conviction, and some do “not require any specific

connection” to the offender’s crime. Geyer, 19 Wn. App. 2d at 325-26. In particular,

RCW 9.94A.703(3)(e), “[r]efrain from possessing or consuming alcohol,” does not

require any connection to the crime of conviction. Geyer, 19 Wn. App. 2d at 326; see

also State v. Jones, 118 Wn. App. 199, 206-07, 76 P.3d 258 (2003) (a court may

impose the condition prohibiting consumption of alcohol regardless of connection to the

crime). Consequently, we conclude that the court did not abuse its discretion by

imposing condition 9 that prohibits Distura from consuming alcohol.

15 Both parties refer to conditions relating to drug and alcohol use. However, here, the court did

not impose any specific prohibition on controlled substances, though it had the authority to do. See RCW

9.94A.703(2)(c) (unless waived, “the court shall order an offender to . . . [r]efrain from possessing or

consuming controlled substances”).

24

No. 84750-3-I/25

While the State makes no argument for condition 10, which requires Distura to be

available for urinalysis and/or breathanalysis, we conclude the court also acted within its

discretion in imposing this condition. The trial court has the authority to impose testing

to monitor and enforce compliance with a valid probation condition. See Olsen, 189

Wn.2d at 135 (rejecting constitutional challenge to community custody condition

allowing random urinalysis testing); see also State v. Vant, 145 Wn. App. 592, 603-04,

186 P.3d 1149 (2008) (holding that the sentencing court has authority to impose

random urinalysis and breathanalysis to monitor compliance with valid conditions). As

condition 9 prohibiting the consumption of alcohol is valid, so too is condition 10, which

allows monitoring for compliance with that condition.

C. Sexual contact conditions

The court imposed condition 5 related to sexual contact by Distura:

5. Inform the supervising [community custody officer] and sexual

deviancy treatment provider of any dating relationship. Disclose sex

offender status prior to any sexual contact. Sexual contact in a

relationship is prohibited until the treatment provider approves of

such.

Distura argues this condition does not relate to his crime and infringes on his

constitutional rights to speech, to marry, and to be intimate, so it must be stricken. While

Distura lists constitutionally protected rights, he “disregards his status as a parolee with

reduced rights,” State v. Lee, 12 Wn. App. 2d 378, 403, 460 P.3d 701 (2020), and “[a]n

offender’s usual constitutional rights during community placement are subject to SRA-

authorized infringements.” State v. Hearn, 131 Wn. App. 601, 607, 128 P.3d 139 (2006)

(citing State v. Ross, 129 Wn.2d 279, 287, 916 P.2d 405 (1996) (other citation omitted)).

25

No. 84750-3-I/26

We have previously addressed similar arguments and rejected them. See In re

Pers. Restraint of Sickels, 14 Wn. App. 2d 51, 60, 469 P.3d 322 (2020). First, condition

5 is not a “crime-related prohibition” under RCW 9.94A.703(3)(f), as it does not prohibit

conduct. Rather, because it requires affirmative conduct, it is governed by RCW

94.94A.703(3)(d), under which a court may order an offender to “otherwise perform

affirmative conduct reasonably related to the circumstances of the offense, the

offender’s risk of reoffending, or the safety of the community.”

Distura reasons that he did not rape an adult, so there is no need for him to

inform adults about his offender status. Similarly, Distura reasons there is no need for

him to inform his community custody officer or therapist about a dating relationship

because he did not “gain[ ] access to a child by dating a parent. Rather [his crimes]

stemmed from a preexisting familial relationship.” However, under RCW

94.94A.703(3)(d), condition 5 is reasonably related to the safety of children in the

community in whatever way Distura may come into contact with them, including through

a dating relationship. Sickels, 14 Wn. App. 2d at 60; see also State v. Autrey, 136 Wn.

App. 460, 468, 150 P.3d 580 (2006) (rejecting argument that consensual sexual contact

with an adult was unrelated to his crime of rape of a child because “potential [adult]

romantic partners may be responsible for the safety of live-in or visiting minors.”). We

conclude condition 5 is not an abuse of the court’s discretionary authority to order

affirmative conduct reasonably related to the offender’s offense, the risk of reoffending,

or the safety of the community.

26

No. 84750-3-I/27

III. VPA and DNA fee

Distura argues he was indigent when sentenced so the court should not have

imposed the VPA or a DNA fee because of a recent amendment to the relevant statute.

Under RCW 7.68.035(4), which became effective in July 2023, trial courts are required

to waive the VPA if a defendant is indigent as defined in RCW 10.01.160(3). The same

law eliminated the DNA fee entirely. LAWS OF 2023, ch. 449, § 4. This court has applied

the VPA waiver to cases pending direct appeal when the law went into effect. See State

v. Ellis, 27 Wn. App. 2d 1, 16, 530 P.3d 1048 (2023) (citing State v. Ramirez, 191

Wn.2d 732, 748-49, 426 P.3d 714 (2018)). Here, the court found Distura indigent the

same day it sentenced him, and he timely appealed his conviction in December 2022.

The State agrees that remand to strike the VPA and DNA fee is required, and we accept

the State’s concession.

Distura also argues his sentence contains a scrivener’s error because the State

requested that he obtain a sexual deviancy evaluation within 60 days, and a handwritten

note on his sentence states the same, but a written condition conflicts and states

“[w]ithin 30 days.” The State has no objection, and we accept the concession.

CONCLUSION

We affirm Distura’s convictions but remand to correct a scrivener’s error and to

strike the imposition of the VPA and a DNA collection fee.

27

No. 84750-3-I/28

WE CONCUR:

28