State Of Washington, / Cross- App. v. Jeffrey Michael Kinzle, / Cross-res.

FILED

COURT OF APPEALS DiV

STATE OF WASHINGTON

2013 NAY 13 AH 3= 26

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, NO. 68158-3-1

Respondent, DIVISION ONE

v.

UNPUBLISHED OPINION

JEFFREY M.KINZLE,

Appellant. FILED: May 13, 2013

Leach, C.J. — Jeffrey Kinzle appeals his conviction for indecent liberties

by forcible compulsion. He challenges the court's decision to deny his motion to

substitute counsel, the court's determination that it had no reason to doubt his

competence to stand trial, and the sufficiency of the evidence. He also alleges

prosecutorial misconduct, that his indeterminate sentence is unconstitutional,

evidence fabrication, juror bias, witness perjury, erroneously excluded evidence,

and violation of his Miranda1 rights. Finding no merit in Kinzle's arguments, we

affirm the conviction. Because we accept the State's concession that the court

improperly imposed seven of the community custody conditions, we remand for

striking the offending conditions from Kinzle's judgment and sentence.

1 Miranda v. Arizona. 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694

(1966).

NO. 68158-3-1/2

FACTS

On March 13, 2011, the complaining witness2 was working alone in a

small grocery store when two males, whom she had not seen before, entered the

store. At that time, there were no other customers in the store. One of the men,

Jeffrey Kinzle, asked her to show him where to find the cans of jalapefio peppers.

As she led the men toward the canned food area, Kinzle grabbed her buttocks.3

She asked Kinzle what was going on, and he responded with laughter. The

complaining witness told him to pay for the jalapenos and to leave the store. She

and Kinzle walked to the cash register.

Shortly afterward, the other man, Nathan Wood, asked the complaining

witness to show him where the chipotle peppers were located. As she neared

that area of the store, Kinzle grabbed her from behind and took her to the canned

food area. He held her around the waist, squeezed her buttocks and breast,

pulled on her clothing, kissed her neck, and rubbed his penis against her. As she

tried to resist, she ended up face-to-face with Kinzle. She tried to push him away

and yelled in Spanish for him to let her go. During the incident, Wood remained

in a separate area of the aisle and did not observe what took place. After Wood

heard the complaining witness scream, "like [Kinzle] was attacking her," Wood

2 The court granted Kinzle's motion to prohibit the State or witnesses from

referring to the "victim." Instead, the court directed the parties to refer to her as

the "store employee" or "complaining witness."

3The charges in this case do not concern this act.

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NO. 68158-3-1/3

saw Kinzle run out of the store. The complaining witness ran out of the store and

yelled for help. A bystander helped her call the police.

When the police arrived, Wood told them that Kinzle, his roommate,

attacked the complaining witness. Wood escorted the police to their apartment.

The police questioned Kinzle, arrested him, and transported him to the store.

After viewing Kinzle outside the store, the complaining witness said that she was

confused and did not know whether he was the person who attacked her.

The State charged Kinzle with indecent liberties by forcible compulsion.

Before trial, Kinzle moved to substitute counsel. After two hearings on the matter

in July 2011, the court denied the motion.

In August 2011, the State moved to clarify a potential conflict of interest

between Kinzle and his attorney. The State received information that Kinzle

threatened his attorney and threatened to blow up government buildings and to

kill various people, including the president, police officers, and corrections

deputies. In its motion, the State cautioned, "The State has also considered that

the Defendant may be deliberately manufacturing a situation that would compel

replacement of his attorney." Kinzle's attorney expressed confidence in her

ability to continue representing him. On October 31, 2011, during motions in

limine, the court raised the issue presented in the State's earlier motion. After a

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colloquy with Kinzle and his attorney, the court decided that Kinzle's attorney

would continue to represent him.

Kinzle did not testify at trial. The complaining witness testified through an

interpreter. She testified that when Kinzle entered the store, he had brown hair

and blue eyes and wore a hat, blue pants, a jacket, brown shoes, and a red or

burgundy sweatshirt. He also had "a little bit of a beard." When the police

brought Kinzle to the store later that evening, he was clean-shaven. Her

testimony at trial included details that she did not reveal to police during earlier

interviews. At trial, she stated that Kinzle asked her if she wanted to feel his

penis, that his fly was down during the incident, and that she could feel that he

had an erection when he rubbed himself against her.

Wood testified that Kinzle did not appear differently when he was arrested

than he appeared at the time of the incident. Michael Flavin, Kinzle's other

roommate, testified that before the police arrived at the apartment, Kinzle shaved

and removed his hat and a gray fleece jacket that had dark sleeves and put on a

sweatshirt. Brent Vannoy, who was in jail with Kinzle, also testified for the State.

He told the court that Kinzle planned to "beat[] his charge" by shaving after the

incident and by acting "crazy and stuff for the Court so they thought he was

looney and get away with what he did."

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A jury convicted Kinzle as charged. He had an offender score of five, a

total standard range of 77-102 months, and a maximum life term. The court

sentenced Kinzle to an indeterminate sentence, with a minimum sentence of 102

months of confinement and a maximum sentence of life imprisonment. The

sentence included 21 conditions of community custody. Kinzle appeals.

ANALYSIS

Motion To Substitute Counsel

Kinzle first claims that the trial court denied him effective assistance of

counsel when it denied his motion for new counsel. He asserts that he and his

attorney had "an ongoing, intractable conflict" that "amounted to a total

breakdown in communications." He argues that "instead of inquiring into that

conflict," the court improperly focused its inquiry on trial counsel's competence.

The State counters that Kinzle's concerns "related primarily to tactics, strategy

and his lost confidence in his attorney."

We review for abuse of discretion a trial court's decision to deny a motion

to substitute counsel4 If the attorney-client relationship "completely collapses,

the refusal to substitute new counsel violates the defendant's Sixth Amendment

right to effective assistance of counsel."5 A defendant "'must show good cause'"

4 State v. Stenson. 132 Wn.2d 668, 733, 940 P.2d 1239 (1997) (Stenson

5 In re Pers. Restraint of Stenson. 142 Wn.2d 710, 722, 16 P.3d 1 (2001)

(Stenson II) (citing United States v. Moore, 159F.3d 1154, 1158 (9th Cir. 1998)).

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before the trial court will allow substitution of counsel, "'such as a conflict of

interest, an irreconcilable conflict, or a complete breakdown in communication

between the attorney and the defendant.'"6

A defendant is not entitled to a particular lawyer with whom he thinks he

can have a meaningful attorney-client relationship.7 A general loss of confidence

or trust alone is insufficient to substitute new counsel.8 The attorney and the

defendant must be "so at odds as to prevent presentation of an adequate

defense."9 To determine whether the trial court properly denied Kinzle's motion

to substitute counsel, we consider (1) the nature and extent of the alleged

conflict, (2) the adequacy of the court's inquiry, and (3) the timeliness of the

motion.10 We hold that the trial court did not abuse its discretion when it denied

Kinzle's motion.

Regarding the first factor, we analyze both (1) the nature and extent of the

breakdown in communication between the attorney and the client and (2) the

breakdown's effect on the representation that the client actually received.11

6 State v. Varga, 151 Wn.2d 179, 200, 86 P.3d 139 (2004) (quoting

Stenson I. 132 Wn.2d at 734).

7 Moore, 159 F.3d at 1158.

8Varga, 151 Wn.2d at 200 (citing Stenson I, 132Wn.2d at 734).

9 Stenson I, 132 Wn.2d at 734.

10 Stenson II, 142 Wn.2d at 723-24.

11 Stenson II, 142 Wn.2d at 724.

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NO. 68158-3-1/7

Kinzle fails to show that any alleged breakdown in communications satisfies the

first factor.

Kinzle addressed the trial court during two hearings on the motion. He

stated his belief that he would not receive "fair representation." He asserted,

"I've asked her to obtain various bits of evidence, having swabs retested on our

own, speaking with several people, things that would be of value to my case. I've

been told on several of them that either she doesn't have time or it wouldn't be

worth it in trial."12 Furthermore, he explained, "And in regards to the

communication, I've never refused to speak with her. I—we have had a lot of

communication problems and I will be the first to say I—there's times where I get

angry ... I give up on talking right now." Although Kinzle told the court that his

attorney acted in "an almost strong-arm manner" to convince him to accept a

plea deal, the court noted that he did not accept a plea offer. Kinzle also

physically threatened his attorney and told the court that he believed "she works

for the same fucking people that are trying to give me life [in prison]."

After the court granted a continuance for Kinzle and his attorney to "work

this out," Kinzle told the court that he had spoken with his attorney. When the

trial court denied the motion to substitute counsel, it noted that Kinzle's attorney

was investigating all of his witnesses in the matter and that she and Kinzle were

12 During motions in limine, the court granted the State's motion to exclude

any evidence related to this incident that Kinzle sought to address.

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NO. 68158-3-1/8

able to communicate at that point. The court explained, "There may be some

differences getting ready for trial tactics and whatnot, but that's not a reason to

switch horses in midstream." Later, at a hearing on the State's motion to clarify a

potential conflict of interest, the court determined that it "simply would treat any

threats made as a product of somebody being upset at the moment" and that no

evidence suggested that Kinzle's attorney would be unable to adequately

represent him. Moreover, the court noted, "He's indicated today that he's

comfortable having Ms. Trueblood continue to represent him."

Counsel has wide latitude to control trial strategy and tactics.13 "'Counsel

is not, at the risk of being charged with incompetence, obliged to raise every

conceivable point, however frivolous, damaging or inconsequential it may appear

at the time, or to argue every point to the court and jury which in retrospect may

seem important to the defendant.'"14 Posttrial scrutiny of an attorney's trial tactics

would cause the attorney to "'lose the very freedom of action so essential to a

skillful representation ofthe accused.'"15

Kinzle told the court that he would only temporarily refuse to communicate

with his attorney when he would become angry. He did not accept a plea deal,

and nothing in the record indicates any communication problems during trial. His

13 Stenson II, 142 Wn.2d at 733.

14 Stenson II, 142 Wn.2d at 735 (quoting State v. Piche. 71 Wn.2d 583,

590, 430 P.2d 522 (1967)).

15 Stenson II, 142 Wn.2d at 735 (quoting Piche, 71 Wn.2d at 590).

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NO. 68158-3-1/9

remaining arguments that he offered to support his motion pertained merely to

his attorney's unwillingness to offer all of the evidence that he desired. When the

court addressed the State's concern about the alleged threats, it determined that

the threats were likely due to Kinzle's anger at the moment and that he did not

object at that time to having his attorney continue to represent him. For these

reasons, the nature and extent of the alleged conflict weighs against finding an

abuse of discretion.

The second factor, the adequacy of the trial court's inquiry, appears

sufficient. At two separate hearings, the court allowed Kinzle to state his

concerns and allowed both his attorney and the prosecutor to respond. Despite

Kinzle's assertion that the court did not address his concerns meaningfully, the

court explained clearly that his lack of cooperation with his attorney was not a

sufficient basis to fire her and that he had to show good cause. Kinzle's attorney

told the court that she had "done substantial investigation," that she thought she

was "more than competent to handle this case," and that at that point she "ha[d]

done everything that is required." Because the court allowed Kinzle to express

his concerns fully, inquired into them appropriately, and properly concluded that

his attorney was investigating the case adequately, Kinzle fails to show that the

court's inquiry was insufficient.

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NO. 68158-3-1/10

Finally, we consider the third factor, the motion's timeliness. Kinzle's

motion was timely. To assess the timeliness of a motion to substitute counsel,

we balance the "'resulting inconvenience and delay against the defendant's

important constitutional right to counsel of his choice.'"16 Because Kinzle moved

over three months before trial, the court had adequate time to investigate the

matter and to appoint new counsel, if necessary.17

Having reviewed the three relevant factors, we conclude that the trial court

did not err when it denied Kinzle's request for substitute counsel.

Competence

Kinzle also contends that the trial court should have conducted a

competency hearing because "the judge had substantial evidence before trial of

Mr. Kinzle's questionable competency." He points to his statement during the

hearing on the motion to substitute counsel that he had a "past mental health

history." He also highlights the prosecutor's statement during the hearing on the

State's motion to clarify a potential conflict that Kinzle, while speaking to other

inmates, made a series of threats to blow up government buildings and to kill

various people.

16 Moore, 159 F.3d at 1161 (quoting United States v. D'Amore, 56 F.3d

1202, 1206 (9th Cir. 1995)).

17 See Moore, 159 F.3d at 1161 (motions were timely when made over

one month and over two weeks before trial); D'Amore, 56 F.3d at 1206 (motion

on eve of trial was timely when defendant attempted to contact the court 10 days

before the hearing).

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NO. 68158-3-1/11

We review for abuse of discretion a trial court's threshold determination

about the existence of any reason to doubt a defendant's competence to stand

trial.18 Under RCW 10.77.050, an incompetent person may not be tried,

convicted, or sentenced for committing an offense so long as the incapacity

continues. Under RCW 10.77.010(15), "incompetency" means that a person

"lacks the capacity to understand the nature of the proceedings against him or

her or to assist in his or her own defense as a result of mental disease or defect."

When a reason exists to doubt the defendant's competence,

the court on its own motion or on the motion of any party shall

either appoint or request the secretary [of the department of social

and health services] to designate at least two qualified experts or

professional persons, one of whom shall be approved by the

prosecuting attorney, to examine and report upon the mental

condition of the defendant^191

These procedures are mandatory.20 If the court fails to follow the procedures to

protect an accused's right not to be tried while incompetent, it denies the

accused his due process rights.21

A trial court generally maintains discretion in assessing whether or not to

order a competency examination.22 In making such a determination, the court

18 City of Seattle v. Gordon, 39 Wn. App. 437, 442-43, 693 P.2d 741

(1985).

19 Former RCW 10.77.060(1)(a) (2004).

20 In re Pers. Restraint of Fleming, 142 Wn.2d 853, 863, 16 P.3d 610

(2001) (citing State v. Wicklund, 96 Wn.2d 798, 805, 638 P.2d 1241 (1982)).

21 Fleming, 142 Wn.2d at 863 (citing State v. O'Neal, 23 Wn. App. 899,

901, 600 P.2d 570 (1979)).

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may consider such factors as the defendant's appearance, demeanor, conduct,

personal and family history, past behavior, medical and psychiatric reports, and

counsel's statements.23 It should give "considerable weight" to the defense

attorney's opinion regarding a client's competence and ability to assist in his

defense.24 "Washington cases have taken the position that a trial court does not

abuse its discretion if competency issues are raised."25

We hold that the trial court did not abuse its discretion when it did not

order a competency examination. At sentencing, the court recognized that Kinzle

suffered from mental health issues. But no evidence suggests that, during trial,

Kinzle was unable to understand the nature of the proceedings or to assist in his

own defense. In fact, when Kinzle addressed the court, the opposite appeared

true. Additionally, during trial, Brent Vannoy testified that while he and Kinzle

were in jail together, Kinzle sought to act "crazy and stuff" to "beat[] his charge."

Despite Kinzle's argument that this testimony occurred "after the judge had

22 Fleming. 142 Wn.2d at 863 (citing State v. Thomas. 75 Wn.2d 516, 518,

452 P.2d 256 (1969)).

23 Fleming. 142 Wn.2d at 863 (quoting State v. Dodd. 70 Wn.2d 513, 514,

424 P.2d 302 (1967)).

24 Gordon. 39 Wn. App. at 442.

25 Fleming. 142 Wn.2d at 864; see also State v. Lord. 117 Wn.2d 829,

901-04, 822 P.2d 177 (1991) (defendant's statements about his conversations

with the devil and conflicts with his attorney do not create a reason to doubt

defendant's competence); State v. Walker. 13 Wn. App. 545, 549, 536 P.2d 657

(1975) (uncommunicated history of prior mental health treatment did not warrant

reversal).

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significant reason to doubt Mr. Kinzle's competency," the alleged threats did not

provide a sufficient factual basis to conclude that Kinzle was incompetent.

Moreover, Kinzle's attorney did not file a motion for an examination or otherwise

indicate that Kinzle was incompetent, although she had many opportunities to

confer with Kinzle before trial and to assess his competence.

Sufficiency of the Evidence

For his third claim, Kinzle contends that the record contains insufficient

evidence for a rational juror to find forcible compulsion beyond a reasonable

doubt. Under RCW 9A.44.100(1)(a), a person is guilty of indecent liberties when

he knowingly causes another person who is not his spouse to have sexual

contact with him by forcible compulsion. "Forcible compulsion" is physical force

that overcomes resistance, or a threat, express or implied, that places a person

in fear of death or physical injury to herself, or in fear that she will be

kidnapped.26 It is "not the force inherent in any act of sexual touching, but rather

is that 'used or threatened to overcome or prevent resistance by the female.'"27

Whether the evidence establishes resistance is "a fact sensitive determination

based on the totality of the circumstances, including the [complaining witness's]

26RCW9A.44.010(6).

27 State v. Ritola. 63 Wn. App. 252, 254-55, 817 P.2d 1390 (1991)

(quoting State v. McKnight. 54 Wn. App. 521, 527, 774 P.2d 532 (1989)).

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words and conduct."28 "Indecent liberties by forcible compulsion is a class A

felony."29

In a challenge to the sufficiency of the evidence, we view all facts and

reasonable inferences in the light most favorable to the State to determine

whether any rational trier of fact could have found the elements of the charged

crime beyond a reasonable doubt.30 We defer to the trial court on issues of

conflicting testimony, witness credibility, and persuasiveness of the evidence.31

The State may establish a crime's elements by either direct or circumstantial

evidence, one being no more or less valuable than the other.32 A challenge to

the sufficiency ofthe evidence admits the truth ofthe State's evidence.33

Kinzle asserts that "both [the complaining witness's] testimony and that of

Mr. Wood show that the encounter between Mr. Kinzle and [the complaining

witness] ended as soon as she began to resist." He compares this case to State

v. Ritola.34 In Ritola, the State charged a juvenile resident of Toutle River Boys

Ranch with one count of indecent liberties by forcible compulsion after he

28 McKnight. 54 Wn. App. at 526.

29RCW9A.44.100(2)(b).

30 State v. Embrv. 171 Wn. App. 714, 742, 287 P.3d 648 (2012) (citing

State v. Yarbrough. 151 Wn. App. 66, 96, 210 P.3d 1029 (2009)), petition for

review filed, No. 88162-6 (Wash. Mar. 11, 2013).

5TlTtate v. Raleigh. 157 Wn. App. 728, 736-37, 238 P.3d 1211 (2010)

(citing State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004)).

32 State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980).

33 State v. Salinas. 119 Wn.2d 192, 201, 829 P.2d 1068(1992).

34 63 Wn. App. 252, 817 P.2d 1390 (1991).

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"suddenly grabbed" a female counselor's breast, "squeezed it, then

'instantaneously' removed his hand," and said, "Nice tits."35 The court held this

evidence insufficient to prove forcible compulsion.36 There was no evidence of

an express or implied threat.37 Additionally, it was "undisputed that Ritola used

the force necessary to touch the counselor's breast, but as noted, that is not

enough for forcible compulsion. There is no evidence that the force he used

overcame resistance, for he caught the counselor so much by surprise that she

had no time to resist."38 The force Ritola used was not directed at overcoming

39

resistance and was not more than necessary to accomplish sexual touching.

Here, it is undisputed that Kinzle did not threaten the complaining witness.

The facts in this case, however, are distinguishable from Ritola. Wood testified

that he saw Kinzle run away after hearing the complaining witness scream.

Because he was in a separate area of the store during the incident, he did not

actually see Kinzle touch her. The complaining witness testified,

[H]e grabbed me from my back. He—he held me by force. He was

behind me. He was pulling me as I tried to turn and be in front of

him, but he—he put me by the can area.

35 Ritola. 63 Wn. App. at 253.

36 Ritola. 63 Wn. App. at 255.

37 Ritola. 63 Wn. App. at 255.

38 Ritola. 63 Wn. App. at 255.

39 Ritola. 63 Wn. App. at 255-56.

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At that moment, he was touching my buttocks, my breast, he

was pulling my clothing. He was trying to kiss me. He was rubbing

his penis against me.

She told the court, "[H]e grab me, and he was behind me grabbing me. And at

that moment, I tried—I resist, but I turn around and I—I ended up facing face-to-

face." She also testified, "One hand—it was right here by my waist. The other

hand he was touching my—both of my breast, and he was pulling my clothes.

Then I was pushing him away, and I told him to let me go." Finally, she stated

that the incident ended "because I push him away as much as I could. I tried to

push him back," and that it was difficult to push him.

Viewing the facts and reasonable inferences from them in the light most

favorable to the State, Wood's testimony would not require a rational trier of fact

to reasonably doubt that the interaction ended as soon as the complaining

witness began to resist. Unlike Ritola. the complaining witness's testimony does

not establish that Kinzle "instantaneously" released her. Rather, her testimony

supports the State's theory that Kinzle overcame her resistance as she initially

tried to break free, when she ended up facing him. He also directed his acts at

overcoming her resistance. Kinzle took her to a separate location from where he

grabbed her, touched her, pulled on her clothing, and rubbed himself against her

as she tried to push him away. Although she eventually broke free, her

testimony would allow a rational trier of fact to find forcible compulsion beyond a

reasonable doubt.

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Prosecutorial Misconduct

Kinzle also alleges that the prosecutor "compensated for the State's lack

of evidence of forcible compulsion by using inflammatory, prejudicial argument

during closing" by "improperly argu[ing] facts not in evidence." The prosecutor

stated,

We're not here accusing the defendant of rape, but we could have

been had she not got away. We're not alleging some assault with

serious injury. That could have happened too.

What I said yesterday morning is it was fortunate that she

got away and that it wasn't actually worse than it was. But a crime

had already been committed. Crime I'm talking about is indecent

liberties. That's what the defendant's charged with. And there may

have been small crime before that with a butt grab. And it could

have been worse crimes after that; fortunately, that's not what

happened.

Kinzle contends that because there was no evidence that he intended to injure

the complaining witness or to commit "worse crimes" against her, the prosecutor

urged the jury to convict him based upon a fear of what could have happened.

He claims that the comments were prejudicial because "the argument the

prosecutor used allowed the jury to overlook the facts and convict Mr. Kinzle

based on the belief that he was more dangerous than the evidence showed."

Kinzle also asserts that the conduct was repetitive based on the prosecutor's

comment, "What I said yesterday morning."

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To succeed on a claim of prosecutorial misconduct made for the first time

on appeal, the appellant must show that the prosecutor's behavior was "so

flagrant and ill-intentioned that it evinces an enduring and resulting prejudice that

could not have been neutralized by an admonition to the jury."40 To prove

prosecutorial misconduct, an appellant must show both improper conduct and

resulting prejudice.41 Conduct is not flagrant and ill-intentioned where a curative

instruction could have cured any error.42 "But the cumulative effect of repetitive

prejudicial prosecutorial misconduct may be so flagrant that no instruction or

series of instructions can erase their combined prejudicial effect."43 "Mere

appeals to a jury's passion and prejudice are inappropriate."44 Prejudice exists

where there is a substantial likelihood that the misconduct affected the verdict.45

We review a prosecutor's comments during closing argument in the context of

the total argument, the issues in the case, the evidence addressed in the

argument, and the jury instructions.46

Even if the prosecutor's statements were improper, Kinzle fails to show a

substantial likelihood that they affected the verdict. Viewed in the context of the

40 State v. Gentry. 125 Wn.2d 570, 596, 888 P.2d 1105 (1995).

41 State v. Fisher. 165 Wn.2d 727, 747, 202 P.3d 937 (2009).

42 State v. Walker. 164 Wn. App. 724, 737, 265 P.3d 191 (2011).

43 Walker. 164 Wn. App. at 737.

44 State v. Smith. 144 Wn.2d 665, 679, 30 P.3d 1245, 39 P.3d 294 (2001).

45 State v. McKenzie. 157 Wn.2d 44, 52, 134P.3d221 (2006).

46 State v. Dhaliwal. 150 Wn.2d 559, 578, 79 P.3d 432 (2003).

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total argument, the prosecutor recited the law directly from the jury instructions

and noted that the State bears the burden of proof. He properly discussed the

"beyond a reasonable doubt" standard. The State also presented a very strong

case. Wood, who was with Kinzle in the store, and Kinzle's roommate, Michael

Flavin, identified Kinzle. A witness who was in jail with Kinzle testified that Kinzle

planned to "beat[] his charge" by acting crazy and by changing his appearance

after the incident. The contrary evidence primarily showed that the complaining

witness provided a statement that she was not positive about her identification

and gaps in her memory regarding details of the incident. Because Kinzle fails

to demonstrate prejudice, we reject his prosecutorial misconduct claim.

Kinzle's Indeterminate Sentence

Kinzle also argues that his indeterminate sentence violates the Eighth

Amendment's ban on cruel and unusual punishment47 and the prohibition against

cruel punishment in article I, section 14 of the Washington Constitution. Kinzle

does not challenge on its face the constitutionality of the "sentencing of sex

offenders" statute, RCW 9.94A.507. Rather, he claims that the nature of his

crime is disproportionate to his sentence, which subjects him to lifetime

confinement or supervision. He states that he "received this life sentence for an

47 U.S. Const, amend. VIII.

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incident in which no one was raped and no one was seriously injured, and which

lasted two minutes or less."

Article I, section 14 of the Washington Constitution provides greater

protection than the Eighth Amendment to the United States Constitution.48

Therefore, if Kinzle's sentence does not violate the Washington provision, it also

does not violate the federal provision.49 "A sentence violates article I, section 14

when it is grossly disproportionate to the crime for which it is imposed."50 It is

grossly disproportionate "if it is clearly arbitrary and shocking to the sense of

justice."51 We consider the four Fain52 factors to determine whether a sentence

is grossly disproportionate: (1) the nature of the offense, (2) the legislative

purpose behind the statute, (3) the punishment the defendant would have

received in other jurisdictions for the same offense, and (4) the punishment

imposed for other offenses in the same jurisdiction.53 No single factor is

dispositive.54

48 State v. Witherspoon. 171 Wn. App. 271, 301, 286 P.3d 996 (2012)

(citing State v. Flores. 114 Wn. App. 218, 223, 56 P.3d 622 (2002)), petition for

review filed, No. 88118-9 (Wash. Nov. 27, 2012).

49~Witherspoon. 171 Wn. App. at 301 (citing Flores. 114 Wn. App. at 223).

50 Witherspoon. 171 Wn. App. at 301 (citing Flores. 114 Wn. App. at 223).

51 Witherspoon. 171 Wn. App. at 301 (citing State v. Smith. 93 Wn.2d 329,

344-45, 610 P.2d 869 (1980)).

52 State v. Fain. 94 Wn.2d 387, 397, 617 P.2d 720 (1980).

53 Witherspoon. 171 Wn. App. at 301 (citing Fain. 94 Wn.2d at 397).

54 Witherspoon. 171 Wn. App. at 301 (citing State v. Gimarelli. 105 Wn.

App. 370, 380-81, 20 P.3d 430 (2001)).

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Under the first Fain factor, we consider the facts of the case and "whether

the crime is a violent crime and whether it is a crime against a person or

property."55 In Fain, the defendant's life sentence for his third conviction for using

fraud to obtain less than $470 was unconstitutional.56 Fain committed a

nonviolent property crime.57 In contrast, in State v. Gimarelli,58 the defendant's

sentence was constitutional where he repeatedly touched a child's abdominal

region, even after she pushed his hand away. There, Gimarelli was convicted of

a violent sex offense against a child.59 RCW 9.94A.030(54)(a)(v) defines

"indecent liberties by forcible compulsion" as a "violent offense." It must be

committed against a person. Kinzle had physical contact with the complaining

witness, grabbing her, rubbing against her, pulling on her clothes, and squeezing

her breast and buttocks. Because of the similarity between the facts in this case

and those in Gimarelli. this factor supports the sentence's constitutionality.

Under the second Fain factor, the legislative purpose of RCW 9.94A.507

also supports the sentence's constitutionality. The Washington Supreme Court

55 Gimarelli, 105 Wn. App. at 381 (citing State v. Morin. 100 Wn. App. 25,

30, 31, 995 P.2d 113 (2000)).

56 Fajn, 94 Wn.2d at 402.

57 Fain, 94 Wn.2d at 398.

58 105 Wn. App. 370, 381, 20 P.3d 430 (2001).

59 Gimarelli. 105 Wn. App. at 381.

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discussed this matter in State v. Clarke.60 The legislative history establishes that

RCW 9.94A.507 intends an indeterminate sentencing scheme.61 When the

legislature adopted the Sentencing Reform Act of 1981,62 it replaced

Washington's indeterminate sentencing system with determinate sentencing.63

In 2001, the legislature enacted RCW 9.94A.712 as part of an act concerned with

managing sex offenders in the community.64 The legislature redesigned the

determinate sentencing system for some sex offenders because of concerns that

determinate sentencing "does not allow the state to return a person under

supervision in the community to prison beyond the end of his or her defined

term."65

The law's structure also supports indeterminate sentencing.66 Unlike

determinate sentencing, RCW 9.94A.507(3)(a) requires the sentencing court to

impose both a maximum and a minimum term. Additionally, RCW 9.94A.507

repeatedly references chapter 9.95 RCW, which governs indeterminate

sentencing.

60 156 Wn.2d 880, 888-89, 134 P.3d 188 (2006). The court addressed

RCW 9.94A.712, which the legislature recodified in 2008 as RCW 9.94A.507.

See Laws of 2008, ch. 231, § 56.

61 Clarke. 156 Wn.2d at 888.

62 Ch. 9.94A RCW.

63 Clarke. 156 Wn.2d at 888.

64 Laws of 2001, 2d Spec. Sess., ch. 12, § 303; Clarke, 156 Wn.2d at 888.

65 2001 Final Legislative Report, 57th Wash. Leg. at 233; Clarke. 156

Wn.2dat888.

66 See Clarke. 156 Wn.2d at 889.

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NO. 68158-3-1/23

Furthermore, just before the end of the offender's minimum term, the

Indeterminate Sentence Review Board (ISRB) holds a hearing "to determine

whether it is more likely than not that the offender will engage in sex offenses if

released on conditions to be set by the board."67 The ISRB must release the

offender unless it determines by a preponderance of the evidence that the

offender will commit sex offenses if released.68 If the ISRB decides not to

release the offender, it imposes a new minimum term.69 This design is "'akin to

Washington's former indeterminate sentencing scheme, where the trial court

imposed the maximum sentence and the parole board set a minimum

sentence.'"70 If the ISRB releases the offender, he or she remains in community

custody until his maximum sentence expires, subject to conditions that the court,

the department of corrections, or the ISRB imposes.71 We follow the Supreme

Court's conclusion in Clarke that "[t]he manner in which this sentencing regime

operates indicates that sentences imposed under [RCW 9.94A.507] are

indeterminate."72

67RCW9.95.420(3)(a).

68RCW9.95.420(3)(a).

69RCW9.95.420(3)(a).

70 Clarke. 156 Wn.2d at 889 (quoting State v. Clarke. 124 Wn. App. 893,

899, 103 P.3d 262 (2004)).

71 RCW9.94A.507(5), (6).

72 Clarke. 156 Wn.2d at 890.

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The third consideration is the punishment that Kinzle would receive in

other jurisdictions. "Washington's two strikes law as applied to the crime of

indecent liberties by forcible compulsion may be one of the most stringent"

sentences for sex offenders.73 But a number of other states impose life

sentences on those twice convicted of sex offenses.74 This factor also weighs in

favor of the sentence's constitutionality.

Fourth, we consider the punishment imposed for other offenses in this

jurisdiction. Kinzle compares his sentence to that imposed for other offenses

with the same seriousness level, as defined in RCW 9.94A.515, Table 2. We

consider it more accurate, however, to compare his sentence to that imposed for

other offenses included in RCW 9.94A.507.75 The other sex offenses included in

this two strikes law are first and second degree rape and first degree child

molestation.76 The law also includes certain nonsexual offenses when those

offenses involve a sexual motivation: first and second degree murder, homicide

73 Morin. 100 Wn. App. at 32.

74 See Ga. Code Ann. § 17-10-7(b)(2) (West 2010) (second offense of

rape or aggravated child molestation results in life sentence without parole); S.C.

Code Ann. § 17-25-45 (2010) (second offense of criminal sexual conduct with

minor results in life sentence without parole); N.M. Stat. Ann. § 31-18-25 (1997)

(mandating life in prison for a second conviction of criminal sexual penetration

and not allowing parole if the victim of each offense is under 13); Mont. Code

Ann. § 46-18-219(1)(a) (2001) (mandating the death penalty or life imprisonment

without the possibility of parole for second offense of sexual abuse of children).

75 See Morin. 100 Wn. App. at 33.

76RCW9.94A.507(1)(a)(i).

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NO. 68158-3-1/25

by abuse, first and second degree kidnapping, first and second degree assault,

and first degree burglary.77 All of these offenses are class A felonies and are

most serious offenses under former RCW 9.94A.030(29) (2009), serious violent

offenses under former RCW 9.94A.030(41) (2009), or violent offenses under

former RCW 9.94A.030(50) (2009). Based on these classifications, we cannot

meaningfully distinguish the crime of indecent liberties by forcible compulsion

from the other crimes to which the two strikes law applies.78

Considering the four Fain factors, we hold that Kinzle's sentence is

constitutional. The nature of his crime, the legislative purpose and the

classification system for crimes included in the two strikes law, and the facts of

this case all support his punishment. Kinzle's first strike was first degree child

rape, which is a class A felony and a serious violent offense.79 To commit the

crime here, his second strike, he grabbed a store clerk, squeezed her breasts

and buttocks, rubbed himself against her, and pulled on her clothes, despite her

resistance. His punishment was not grossly disproportionate to the offense in

this case.

77RCW9.94A.507(1)(a)(ii).

78 Morin. 100 Wn. App. at 33.

79 RCW 9A.44.073(b); former RCW 9.94A.030(41)(vii) (2009).

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Community Custody Conditions

Kinzle challenges—and the State concedes—that the trial court lacked

authority to impose 7 of the 21 community custody conditions that it imposed on

Kinzle. Those conditions are:

8. Do not possess or control sexual stimulus material for your

particular deviancy as defined by the supervising Community

Corrections Officer and therapist except as provided for

therapeutic purposes.

10. Do not date women or form relationships with families who

have minor children, as directed by the supervising

Community Corrections Officer.

15. Do not possess or consume controlled substances unless

you have a legally issued prescription.

16. Do not associate with known users or sellers of illegal drugs.

17. Do not possess drug paraphernalia.

23. You must subject to searches or inspections of any

computerequipment to which you have regular access.

24. You may not posses or maintain access to a computer,

unless specifically authorized by your supervising

Community Corrections Officer. You may not possess any

computer parts or peripherals, including but not limited to

hard drives, storage devices, digital cameras, web cams,

wireless video devices or receivers, CD/DVD burners, or any

device to store or reproduce digital media or images.

When a court sentences someone to a term of community custody, the

Sentencing Reform Act, RCW 9.94A.703(1), requires it to impose certain

conditions. RCW 9.94A.505(8) also permits a sentencing court to impose and

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NO. 68158-3-1/27

enforce crime-related prohibitions and affirmative conditions as a part of any

sentence. Conditions of community custody may include "crime-related

treatment or counseling services," participation in "rehabilitative programs," and

compliance with "any crime-related prohibitions."80 A "crime-related prohibition"

is "an order of a court prohibiting conduct that directly relates to the

circumstances of the crime for which the offender has been convicted."

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

will reverse a sentence "only if it is 'manifestly unreasonable' such that 'no

reasonable man would take the view adopted by the trial court.'"83 We accept the

State's concession. In State v. Ban!,84 the Washington Supreme Court held that

language similar to condition 8 was unconstitutionally vague: "The condition

cannot identify materials that might be sexually stimulating for a deviancy when

no deviancy has been diagnosed, and this record does not show that any

deviancy has yet been identified. Accordingly, the condition is utterly lacking in

any notice of what behavior would violate it." Similar to Bahl, the record here

contains no evidence of any deviancy. Thus, the trial court improperly imposed

condition 8.

80 RCW 9.94A.703(3)(c), (d), (f).

81 RCW9.94A.030(10).

82 State v. Riley. 121 Wn.2d 22, 37, 846 P.2d 1365 (1993).

83 Riley. 121 Wn.2d at 37 (quoting State v. Blight. 89 Wn.2d 38, 41, 569

P.2d 1129 (1977)).

84 164 Wn.2d 739, 761, 193 P.3d 678 (2008).

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NO. 68158-3-1/28

The court also abused its discretion when it imposed condition 10 because

Kinzle's offense did not involve minor children and the circumstances of the

crime were not related to minor children. The court improperly imposed

conditions 15, 16, and 17 because the record contains no evidence that

controlled substances were related to the circumstances of Kinzle's offense. The

court also abused its discretion when it imposed conditions 23 and 24 because

Kinzle's offense did not involve computers, nor was there a direct relationship

between the circumstances of the crime and Kinzle's use of computers. Because

the trial court lacked authority under the Sentencing Reform Act to impose these

seven conditions of community custody, we accept the State's concession and

hold that the court abused its discretion by imposing them on Kinzle. As such,

we reverse and remand for resentencing that portion of Kinzle's sentence

addressing the improper conditions.

Fabricated Evidence

At trial, the State introduced evidence that Kinzle tore the complaining

witness's bra when he attacked her. The incident occurred on March 13, 2011.

The complaining witness did not bring this evidence to law enforcement's

attention until an interview on March 21. She did not mention it in an earlier

written statement that she gave to police. In a statement of additional grounds,

Kinzle alleges that the court should have questioned evidence of the complaining

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NO. 68158-3-1/29

witness's damaged bra. He alleges that the court had a duty to "at least

investigate the validity" of this evidence because "it could be a reasonable

conclusion" that the complaining witness or the State fabricated the evidence.

At trial, Kinzle did not object to this evidence. Because the failure to timely

object to the admission of evidence at trial generally precludes appellate review,

we decline to review his claim.85

Juror Bias

Kinzle also claims that an FBI (Federal Bureau of Investigation)

investigator's presence on the jury violated his right to a fair trial. He argues that

a member of the FBI would have easy access to his criminal record and would

believe that law enforcement officials rarely suspect the wrong person. Further,

he contends that as an FBI investigator, the juror "would have his views and

opinion held in a high standard" and would have the ability to "sway[] the whole

jury vote regardless of what the actual evidence shows."

Under Washington law, the right to a jury trial includes the right to an

unprejudiced and unbiased jury.86 The mere fact that the juror worked for the FBI

did not compromise Kinzle's right to a fair jury trial. Kinzle does not identify any

85 State v. O'Neil. 91 Wn. App. 978, 993, 967 P.2d 985 (1998).

86 State v. Jackson. 75 Wn. App. 537, 543, 879 P.2d 307 (1994); see also

U.S. Const, amend. VI, XIV; Wash. Const, art. I, § 3, § 22 (amend. 10).

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NO. 68158-3-1/30

facts in the record that indicate prejudice or actual bias. Therefore, his claim

fails.

Witness Perjury

Kinzle alleges that the court and the prosecutor violated his right to a fair

trial by "knowingly letting the jury" consider perjured testimony. He states that

the complaining witness's testimony at trial conflicted with Mr. Wood's testimony

concerning Wood's location when Kinzle grabbed the complaining witness's

buttocks, where that incident and the incident at issue took place, whether the

complaining witness left the store, and what Kinzle wore at the time of the

incident at issue.

Under RCW 9A.72.020(1), a person is guilty of first degree perjury if, while

under oath and in an official proceeding, he or she makes a materially false

statement that he or she knows to be false. A statement is material if it "could

have affected the course or outcome of the proceeding."87 Contradictory oral

statements are insufficient to prove the falsity of a witness's testimony;

independent evidence is required.88

87 RCW 9A.72.010(1); In re Recall of Pearsall-Stipek. 141 Wn.2d 756,

772, 10 P.3d 1034 (2000). In State v. Abrams. 163 Wn.2d 277, 285, 178 P.3d

1021 (2008), the Washington Supreme Court held unconstitutional the provision

in RCW 9A.72.010(1) requiring the court to determine as a matter of law the

materiality of a false statement. It also held that the provision was severable.

Abrams. 163 Wn.2d at 290.

8"8 State v. Wallis. 50 Wn.2d 350, 354-55, 311 P.2d 659 (1957).

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NO. 68158-3-1/31

Both the complaining witness and Wood testified that Wood was standing

near Kinzle when Kinzle first grabbed the complaining witness's buttocks. Both

also testified that the complaining witness left the store after Kinzle attacked her.

Because they testified to the same facts on these two points, there is no basis to

conclude that either committed perjury.

The differences in the testimonies about the exact locations in the store

where Kinzle grabbed the complaining witness's buttocks and where this incident

took place were not material; any discrepancies in the witnesses' statements

could not have affected the course or outcome of the proceeding. Wood and the

complaining witness both testified that the events took place inside the store, that

Wood was near Kinzle when Kinzle first grabbed her buttocks, and that Wood

and Kinzle were in separate but close areas of the store at the time of the attack.

The complaining witness first told police that Kinzle wore a gray fleece

jacket, stated at trial that he wore a brown jacket, and stated later in the trial that

it was brown and grayish. She did not commit perjury when she conceded this

inconsistency on cross-examination. First, nothing in the record shows that

these statements were material. Second, her statement to police that Kinzle

wore a gray fleece jacket constituted a prior inconsistent statement, which Kinzle

could use only to impeach her credibility.89

89 State v. Garland. 169 Wn. App. 869, 885, 282 P.3d 1137 (2012)

(quoting State v. Burke. 163Wn.2d204, 219, 181 P.3d 1 (2008)).

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NO. 68158-3-1/32

Simply identifying differences in recollections about the location of the two

incidents and Kinzle's clothing does not establish that one witness testified

falsely. Conflicts in eyewitness testimony are well known to those who study the

field. We defer to the trier of fact's credibility determinations on issues of

conflicting testimony, credibility of witnesses, and the persuasiveness of the

evidence.90 Because the jury had a full opportunity to consider each witness's

testimony, we do not disturb its credibility determinations.

Evidence of Wood's Prior Bad Act

Before trial, the court granted the State's motions in limine seeking to

exclude evidence of Wood's prior bad act. The court prohibited Kinzle from

introducing evidence of Wood's alleged sexual misbehavior in a different store on

the same day as the incident at issue.91 Kinzle's attorney agreed to this relief,

and the court granted it. For the first time on appeal, Kinzle challenges the

court's decision to exclude this evidence. He has not preserved this issue for

appellate review. Even if he had, it lacks merit.

We review for abuse of discretion a trial court's evidentiary

determinations.92 "A trial court abuses its discretion when its decision is

90 Raleigh. 157 Wn. App. at 736-37 (citing Thomas. 150 Wn.2d at 874-75).

91 See ER 608(b) (prohibiting the use of extrinsic evidence of specific

instances of a witness's conduct to attack or to support a witness's credibility).

92 Embry. 171 Wn. App. at 737 (citing Stenson I, 132 Wn.2d at 701).

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NO. 68158-3-1/33

manifestly unreasonable or exercised on untenable grounds or for untenable

reasons."93

The trial court did not abuse its discretion when it granted the State's

motion. Because Kinzle did not make an offer of proof at trial, as ER 103(a)(2)

requires, he waived any claim of error.94 Kinzle also fails to demonstrate that this

evidence was relevant to the incident at issue.95

Miranda Violation

Finally, in his statement of additional grounds, Kinzle claims that following

the incident, police officers should have advised him of his Miranda rights before

questioning him at his home. Accordingly, he contends that the court should not

have permitted the officers to testify about "the things they observed" while

questioning him, such as his demeanor, attitude, fear, anger, physical

appearance, and nervousness.

Police officers must advise an individual of his or her Miranda rights "when

the individual is first subjected to police interrogation while in custody at the

station or otherwise deprived of his freedom of action in any significant way."96

93 Embry. 171 Wn. App. at 737 (citing State v. Lord. 161 Wn.2d 276, 283-

84, 165 P.3d 1251 (2007)).

94 Seattle First Nat'l Bank v. W. Coast Rubber. Inc.. 41 Wn. App. 604, 609,

705 P.2d 800 (1985).

95 See ER 402 (irrelevant evidence is inadmissible).

96 Miranda. 384 U.S. at 477; State v. Lewis. 32 Wn. App. 13, 17, 645 P.2d

722(1982).

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NO. 68158-3-1/34

Once officers have probable cause to believe that an individual has committed a

crime, interrogation becomes custodial, and the officers must advise the

individual of his Miranda rights.97 Police officers have probable cause to make a

warrantless arrest "when there is a reasonable ground for suspicion, supported

by circumstances within the knowledge of the arresting officer to warrant a

cautious person in believing that the accused was guilty of a crime."98 "Mere

suspicion, before the facts are reasonably developed, is not enough to turn the

questioning into a custodial interrogation."99

Here, the police did not subject Kinzle to a custodial interrogation when

they questioned him at his apartment. The record contains no information about

the exact conversations that took place between Kinzle and the officers. Wood

told the officers that Kinzle committed the attack, informed them that they could

find Kinzle at the apartment where he and Kinzle lived, and then accompanied

them to that location. Based on the information that Wood provided, the officers

had grounds to suspect that Kinzle could provide information about the incident

and justifiably saw the need to inquire further. Nothing in the record indicates

that the officers had probable cause to make an arrest but delayed doing so to

97 State v. Creach. 77 Wn.2d 194, 198, 461 P.2d 329 (1969), overruled in

part on other grounds by State v. Russell. 125Wn.2d24, 882 P.2d 747 (1994).

"State v. Hilliard. 89 Wn.2d 430, 435, 573 P.2d 22 (1977) (citing State v.

Parker. 79 Wn.2d 326, 328, 485 P.2d 60 (1971)).

"Hilliard, 89 Wn.2d at 436.

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NO. 68158-3-1/35

avoid a Miranda warning.100 Therefore, we conclude that the court did not err in

admitting the officers' testimony.

CONCLUSION

Kinzle fails to show an irreconcilable conflict, a complete breakdown in

communication, or a conflict of interest with his attorney. No evidence before the

court would have provided a reason to doubt Kinzle's competence to stand trial.

The complaining witness's testimony provided sufficient evidence for a rational

juror to find forcible compulsion beyond a reasonable doubt. Kinzle fails to

establish that the prosecutor's statements during closing were prejudicial or that

his sentence is grossly disproportionate to his crime. The State concedes that

seven of the community custody provisions are improper. No evidence in the

record supports the claims that Kinzle asserts in his statement of additional

grounds. For these reasons, we affirm Kinzle's conviction and remand for

100 See Hilliard. 89 Wn.2d at 435.

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NO. 68158-3-1/36

striking that portion of Kinzle's judgment and sentence containing the improper

community custody provisions.

WE CONCUR:

<^X,J*

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