State Of Washington, V. Adalberto Lopez Vicente

Filed Washington State Court of Appeals Division Two October 20, 2026 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II STATE OF WASHINGTON, No. 59391-2-II Respondent, v. ADALBERTO LOPEZ VICENTE, UNPUBLISHED OPINION Appellant. GLASGOW, J.—EC accused her older sister’s boyfriend, Adalberto Lopez Vicente, of sexually abusing her when she was 12 and 13 years old. The State charged Lopez Vicente with one count of second degree rape of a child and one count of second degree child molestation. At trial, EC testified to four distinct incidents, one of which involved a brief touching over EC’s shorts when they were swimming. Lopez Vicente testified and denied that any inappropriate contact ever occurred. During opening and closing arguments, the prosecutor speculated repeatedly about EC’s feelings and motivations for accusing Lopez Vicente; used “you” and “I” statements to talk about the thought process of EC or a hypothetical victim; said that he felt bad for EC’s mother and told the jury that they should too; talked about the prevalence of unreported sexual abuse of children in connection with an argument the jury should validate EC’s decision to report and participate in the prosecution; and characterized defense counsel’s interview of EC as an interrogation. Lopez Vicente objected to only two of these comments. The jury convicted Lopez Vicente of both charges. No. 59391-2-II Lopez Vicente appeals, claiming that the prosecutor committed repeated misconduct that cumulatively denied him a fair trial, that his trial counsel performed deficiently by failing to object to many of the prosecutor’s improper comments, and that two of the conditions of community custody the trial court imposed violate his constitutional rights. In his statement of additional grounds for review (SAG), Lopez Vicente argues that there was insufficient evidence to convict him of child molestation based on the swimming incident. We hold that almost all of the prosecutor’s challenged comments were improper, but that all the improper comments could have been cured with an instruction or were not prejudicial in light of the strength of EC’s testimony and her consistency. Lack of prejudice also defeats Lopez Vicente’s ineffective assistance of counsel claim. We also hold that there was sufficient evidence of sexual gratification to support convicting Lopez Vicente of second degree child molestation. Thus, we affirm Lopez Vicente’s convictions. And we affirm the condition of community custody requiring Lopez Vicente to remain within a geographic boundary set by the community corrections officer. But we remand for the trial court to amend its community custody condition regarding polygraph testing to add limiting language that the State concedes is appropriate. FACTS I. BACKGROUND Around 2019, Adalberto Lopez Vicente moved in with his romantic partner, LC, to her family home in Battle Ground, where LC’s mother and younger sisters also lived. One of those sisters was EC, who was 11 years old at the time. Lopez Vicente was around 21 years old and his partner LC was around 16 or 17 years old. 2 No. 59391-2-II When EC was 12 or 13, she told her close friend, ICM, that someone was sexually touching her while she slept at night. EC specifically told ICM about an incident that occurred at Lopez Vicente’s brother’s house where her assailant rubbed her vagina and put her hands in his pants. EC told ICM that she was not ready to report the abuse and ICM agreed not to tell anyone. In November 2021, a couple days before EC’s 14th birthday, EC and her family moved out of the home in Battle Ground and into an apartment in Vancouver, Washington. Around the same time, Lopez Vicente and LC moved into their own apartment. In December 2021, when EC was 14, EC’s mother took EC to the doctor after noticing that she had begun crying regularly and having mood swings and trouble sleeping. EC told the doctor that her older sister’s boyfriend had touched her inappropriately multiple times, “with the last time being the summer of 2021 when [EC] was thirteen.” 1 Verbatim Rep. of Proc. (VRP) at 311. In February 2022, EC underwent a forensic interview at the Children’s Justice Center. EC disclosed in detail several instances of sexual abuse by Lopez Vicente, telling the interviewer that the events had occurred when she was 12 and 13 years old. Later that month, EC saw another doctor for a physical examination. EC told the doctor that Lopez Vicente had touched her vagina and breasts under her clothes several times and put his penis in her vagina once. EC’s exam was normal and the doctor did not identify any physical signs of sexual abuse. Police arrested Lopez Vicente and the State charged him with one count of second degree rape of a child and one count of second degree child molestation. For both charges, the State alleged aggravating circumstances: that Lopez Vicente “used his . . . position of trust, confidence, or fiduciary responsibility to facilitate the . . . offense” and that “[t]he offense was part of an ongoing pattern of sexual abuse of the same victim.” Clerk’s Papers (CP) at 7. 3 No. 59391-2-II II. TRIAL A. Opening Statements Before opening statements, the trial court instructed the jury that “the lawyer’s statements are not evidence or the law” and that the jury “must disregard anything the lawyers say that is at odds with the evidence or the law.” 1 VRP at 202. The prosecutor gave an opening statement that began as follows: Good morning, ladies and gentleman. May it please the Court and counsel. When you are a thirteen or fourteen-year-old girl and you have been sexually abused by your older sister’s boyfriend, not once, but multiple times over the course of over a year, when do you tell somebody about it? When is the right time to disclose what this person did to you? This person was your sister’s boyfriend at the time. They had been together for a long time. They in fact lived with you and your family for a period of time. So you spent time alone with this person because this person was your sister’s -- your older sister’s boyfriend, who was a trusted member of or beginning to be a member of the family. And then finally you find out that your sister is now pregnant with this person’s child. So being thirteen, fourteen-year-old teenager, how do you process that information and figure out what you should do? Ladies and gentlemen, in this case you’ll hear testimony from a number of witnesses who you will learn about all the facts surrounding the alleged sexual abuse of the victim in this case, [EC], by her older sister’s boyfriend Adalberto Lopez-Vicente, the defendant. 1 VRP at 211-12. Defense counsel did not object to these comments. B. Testimony About the Incidents EC testified that the first time Lopez Vicente touched her sexually was when she was 12 years old. The incident occurred while they were swimming at a river or lake in Vancouver with EC’s sisters, including LC, and several of Lopez Vicente’s family members. EC said that while she was swimming, Lopez Vicente went underwater and “rub[bed]” her vagina over her shorts with his hands as he swam past her. 1 VRP at 342. The contact “was just really quick” and at first, EC “thought it was a mistake.” 1 VRP at 338, 342. 4 No. 59391-2-II EC testified that the next incident occurred when she was staying overnight with LC and Lopez Vicente at Lopez Vicente’s brother’s house in Longview, again when she was 12 years old. She stated that the three of them were sleeping on a mattress with LC in the middle. According to EC, Lopez Vicente reached over LC and put his finger inside EC’s vagina underneath her clothing and then touched her breasts. With his other hand, Lopez Vicente grabbed EC’s arm and put her hand in his pants, forcing her to hold his penis. EC stated that she unsuccessfully tried to push Lopez Vicente away, and that Lopez Vicente tried to “shush” her and told her “to be quiet.” 1 VRP at 350. LC did not wake up while this was happening. EC told the jury that Lopez Vicente stopped when she moved away from him to sleep on the floor. EC testified about another incident that occurred at her family’s apartment in Battle Ground. She stated that she was watching a movie with LC and Lopez Vicente, and that Lopez Vicente began touching her after LC fell asleep. Lopez Vicente again penetrated her vagina with his fingers underneath her clothing and touched her breasts. EC detailed a fourth incident that occurred when she was at the Battle Ground apartment alone when she was 13 years old. EC recounted that Lopez Vicente called her and asked her to come downstairs to help him get LC, who was drunk, inside. LC vomited and then passed out on the couch, and EC then went back to her room. EC told the jury that Lopez Vicente came into her bedroom and penetrated her vagina with his fingers before pulling his pants down and putting his penis in her vagina. EC tried to push Lopez Vicente off of her but could not. She explained that Lopez Vicente eventually stopped and told EC to come to his room because he was afraid EC’s other older sister, VC, would be home soon. EC said no, and Lopez Vicente told EC not to tell 5 No. 59391-2-II anybody before leaving the room. EC testified that the following morning she noticed white liquid in her underwear. Finally, EC described an incident that occurred after she moved to Vancouver, when she was 14. EC was in the backseat of a car with Lopez Vicente, with LC driving and VC in the passenger seat. Lopez Vicente tried to unbuckle her pants and touch her vagina, but EC got him to stop by punching his penis, so he did not manage to actually touch her. EC said that this was the last incident she could recall. The State did not argue that this was the basis for either of the charges. EC’s mother testified that when Lopez Vicente lived at the family home, EC would often spend time with LC and Lopez Vicente and that the three of them would “go out to the park, . . . go to see [Lopez Vicente’s] family,” and sometimes stay the night with Lopez Vicente’s family. 1 VRP at 248. EC’s mother told the jury that the family took trips to the river, including EC and Lopez Vicente, but that she “never saw him do anything to [EC] at the river.” 1 VRP at 264. She also said that LC and EC would go to the river without EC’s mother “often.” 1 VRP at 271. C. Testimony About EC’s Disclosures and Symptoms The jury heard testimony from ICM, EC’s close friend. ICM testified that around the time the girls were in seventh grade, she noticed EC would “get really quiet when [LC’s] boyfriend would walk in” even if EC and ICM were speaking or laughing “before he entered the room.” 1 VRP at 285. ICM reported that in fall 2020, when EC was 12 or 13, ICM asked EC if something was going on, and EC made a disclosure that “involved rape.” 1 VRP at 286. ICM stated that EC “gave a few examples” of what had been done to her and identified her assailant, who was someone ICM knew. 1 VRP at 287. ICM explained that although the girls were together at the time, EC 6 No. 59391-2-II made the disclosure over a messaging app because EC did not want to “‘start crying and . . . make a whole scene.’” Id. ICM said she encouraged EC to tell the police or a doctor, but EC said she was not ready to do so and asked ICM “not to tell anybody.” 1 VRP at 289. EC testified that she told ICM about the abuse when she was still living at the family apartment in Battle Ground. She said that she described to ICM the incident that occurred at Lopez Vicente’s brother’s house, where her assailant put her hands in his pants and rubbed her vagina. EC did not say that she told ICM the identity of her assailant. EC’s mother testified that EC was a “quiet and reserved” person who did not ordinarily “[do] things to get attention.” 1 VRP at 250. She stated that shortly after EC turned 14, she noticed that EC was having mood swings, crying, “having trouble sleeping at night,” and complaining of headaches. Id. EC would not tell her mother what was wrong. A few weeks after noticing these changes, EC’s mother took her to an urgent care clinic. Urgent care clinic notes that were read to the jury stated that EC had complained of “‘headache and feeling tearful and sad.’” 1 VRP at 308 (quoting record). The notes said that EC did not want to discuss her reasons for feeling upset, but that after EC’s mother and sister left the room, EC told the urgent care provider that “‘her sister’s boyfriend . . . had molested her’” when “‘she was only twelve or thirteen years old,’” causing her “‘a lot of anxiety and sadness.’” 1 VRP at 309 (quoting record). The urgent care notes stated that EC wanted to “‘wait to talk to her mom’” but that the provider told EC it was “‘important to talk to her mother as she has younger sisters’” who “‘need to be protected.’” Id. Rachel Hart, a physician’s assistant, testified that she saw EC 11 days after the initial urgent care appointment. Hart said that in her own medical notes, she wrote that EC “‘report[ed] being 7 No. 59391-2-II touched in her genital area by her older sister’s boyfriend’” and that EC “‘told the urgent care provider but has not yet told her mom or her sister.’” 1 VRP at 310 (quoting record). Hart’s notes further stated, “This happened more than once with the last time being the summer of 2021 when [EC] was thirteen years old. And it happened when she was staying with her sister, and her boyfriend was also staying there, and she said she was safe now because she doesn’t see her sister’s boyfriend.” 1 VRP at 311 (quoting record). Hart explained that EC “seemed very anxious, . . . wasn’t sleeping, [and] she was . . . extremely stressed by this whole situation.” 1 VRP at 312. Hart believed that the fact EC had not yet felt able to disclose the abuse to her mother and sister was “really weighing on her.” 1 VRP at 313. Hart told EC that Hart had to make a report to child protective services because she was a mandatory reporter, and that she and EC needed to tell EC’s mother. Hart told EC’s mother about the abuse because EC was too upset to do it. In EC’s telling, she went for a checkup at the doctor’s office because she kept getting “bad headaches every day” and was “sleeping late and not wanting to get up for school.” 1 VRP at 378. EC stated that the urgent care doctor asked her if “anything was going on” after her mother left the examination room, and that EC told the doctor “about the stuff that ha[d] been happening . . . [b]ecause [EC] didn’t want it to be going on anymore.” 1 VRP at 379. Specifically, she testified that she “told the doctor that this person would touch [her] and that he raped [her].” 1 VRP at 380. She stated that she “[told] the doctor about all the incidents that [she] described” at trial and told the doctor the identity of her assailant. 1 VRP at 380. EC and the doctor then called EC’s mother back into the room and told her about the abuse. EC’s mother similarly told the jury that the urgent care provider called her in after speaking to EC alone and told her that EC had reported being raped. 8 No. 59391-2-II EC’s mother testified that EC later admitted she was scared that her mother would “lecture” her or that the disclosure would hurt LC but “that she had to tell someone because she couldn’t hold it in anymore.” 1 VRP at 257. EC explained to the jury that she told her mother she was “too scared to tell her, so that’s why [she] didn’t.” 1 VRP at 381. EC did not mention feeling guilty for the impact her disclosure was having on her family. EC stated that she later met with a representative at the Children’s Justice Center alone, and voluntarily told them “everything that happened.” 1 VRP at 383. Deedee Pegler, a forensic interviewer at the Children’s Justice Center, testified about this meeting with EC, which occurred in February 2022. Pegler said that during their meeting, EC’s demeanor was “serious” and “there were times that her voice cracked [] [and] [i]t appeared as though she was crying.” 1 VRP at 448. Pegler stated that EC disclosed “incidents of sexual abuse” in detail and identified the perpetrator. 1 VRP at 449. Pegler understood that EC was 12 or 13 years old when the abuse occurred. EC told the jury that after her meeting with Pegler, she went for another checkup at a hospital, where a medical professional did a physical examination. EC stated the medical professional “already knew” about the abuse and that EC did not remember whether she told this medical professional “about what happened.” 1 VRP at 384. Karis Kerbs, the nurse practitioner who conducted EC’s physical examination, testified that EC told her that when [EC] was twelve years old, her older sister’s boyfriend who, she gave . . . the name Adalberto Lopez, . . . he had touched her breast with his hands, he had touched. . . her vagina, and he had also put his penis inside of her vagina. [EC] said that . . . the touching to her breasts and to her vagina had happened previous times, and then she talked about one time when he had put his penis in her vagina. 1 VRP at 476-77. Kerbs also reported that EC told her that EC had “white stuff” in her underwear after the incident when Lopez Vicente put his penis in her vagina, and that it happened when she 9 No. 59391-2-II was twelve years old. 1 VRP at 477. Kerbs said that EC told her that when Lopez Vicente touched her breasts and vagina, it was “under clothing, skin to skin.” 1 VRP at 478. According to Kerbs, EC reported “that she had felt depressed for months” and had “low energy.” 1 VRP at 479. EC disclosed to Kerbs that she had self-harmed by cutting her arm with a razor blade and “had had thoughts about wanting to overdose on pills in the past.” 1 VRP at 478. Kerbs said she observed “healed scars on [EC’s] left inner forearm.” Id. Kerbs observed “no physical signs of sexual abuse” but that the absence of physical signs was “common” and “not significant.” 1 VRP at 486. EC testified that she had been interviewed by defense counsel about a week before trial, that defense counsel had asked her about the incidents, and that she had told him about the same incidents in that interview. EC’s mother reported that as of the time of trial, EC continued to have difficulty sleeping and “a lot of headaches in the evenings.” 1 VRP at 262. D. LC’s Interview and Her Testimony at Trial Detective Neil Seifert with the Battle Ground Police Department testified that LC asked to speak with him after Lopez Vicente’s arrest. At the time, Seifert had not told LC the details about any of the incidents EC had alleged, but LC was aware that EC had accused Lopez Vicente of raping and molesting her. Seifert testified that LC provided details about the circumstances surrounding EC’s allegation that Lopez Vicente raped her after LC had been drinking. Seifert stated that LC “described her condition as drunk” and not “tipsy.” 2 VRP at 560. And he said that LC volunteered to him that she had seen messages from Lopez Vicente to EC that now “seem[ed] strange” in light of EC’s allegations. 2 VRP at 563. Seifert also explained that he told LC about 10 No. 59391-2-II the incident at the Longview house and that he asked LC about “their sleeping arrangements at that time.” 2 VRP at 562. In her response, LC did not tell Seifert that EC had never spent the night at the Longview house. LC testified at trial that she never saw Lopez Vicente molest or touch EC and that EC had never slept in a bed with LC and Lopez Vicente together. She also stated that Lopez Vicente rarely joined the family when they would go swimming because he did not know how to swim. She denied that EC had ever watched a movie with her and Lopez Vicente in their bedroom and stated that the TV in their bedroom was broken. She also denied ever coming home so drunk that she vomited. The State asked LC about the voluntary interview she had with Detective Seifert in February 2022. LC told the jury that her answers to the detective in that interview were not “truthful.” 2 VRP at 504. The State sought to clarify whether LC had lied to the detective: Q. So you’re saying that you lied to this detective back on . . . February 18th, 2022? A. So, there’s some things that I was -- at the moment I was mad and I like said stuff like overboard, like because I had like that -- I don’t know, I was just like confused and I was just like mad, so I -- Q: Okay. What were you mad about? A: I don’t know. I was just pregnant and I was -- I don’t know, a lot of things were going through my head. 2 VRP at 505. LC acknowledged that she told the detective that EC had come over to the Longview house with her and Lopez Vicente but claimed she did not tell the detective EC had stayed overnight. LC testified that when she spent the night at the Longview house, she slept in the living room on a couch that turned into a bed. But when the State asked her what she told the detective about where she slept during the February 2022 interview, LC gave conflicting testimony, acknowledging that 11 No. 59391-2-II she told the detective they slept on a mattress on the floor, while also insisting “we’ve never slept on the floor.” 2 VRP at 508. The State then asked LC about the incident where she allegedly got drunk and passed out at the family home in Battle Ground, the same night EC alleged Lopez Vicente raped her. Contrary to what she told the detective, LC denied being drunk, saying she was just “tipsy.” 2 VRP at 514. When confronted with the inconsistency, LC said, “And I [Indiscernible] just said things that weren’t true in that moment. Since I said in the beginning, I was just saying my feelings.” 2 VRP at 515. She denied telling the detective she was drunk enough to be sick. The State went on to ask LC about other statements she made to the detective about Lopez Vicente and her sister: Q. Okay. Did you tell this detective back then that you heard your husband making strange comments to you the next day? A. No. .... Q. Okay. And did you tell this detective that your husband told you that [EC] had helped him take a shower? Did you say that? A. No. Q. Did you tell this detective that your husband told you [EC] was mad? A. No. Q. Okay. And did you tell this detective that your husband asked you if [EC] had told you anything about last night? Last night being the night that you were drunk. A. No. Q. You never said that to him? A. I’m saying no because that’s not true and -- .... Q. My question is, did you say those things to this detective back on February 18th, 2022? A. Yes. .... A. I said all of that, but that’s not true. 12 No. 59391-2-II 2 VRP at 516-17. 1 LC also retracted her prior statement to the detective about a suspicious message Lopez Vicente sent to EC the morning after the alleged rape: Q. . . . The text message stated “Can I please talk to you? I don’t want to have any issues.” Does that sound about right? A. Yes. Q. Okay. Was that the . . . message that you saw your husband send . . . to [EC] back when you talked to this detective? A. Yes, I told him that. Q. Okay. And your testimony today is that all those things that you told this detective . . . are completely untrue. Is that correct? A. Correct. 2 VRP at 519-20. Thus, LC generally denied the statements she had previously made to the detective around the time Lopez Vicente was arrested. E. Testimony from Lopez Vicente’s Brother and Lopez Vicente The defense presented testimony from Lopez Vicente’s brother, Juan Carlos Lopez Vicente. Juan Carlos explained that he lived in Longview with his wife and five children from approximately 2018 through 2020 before moving to the neighboring city of Kelso. He told the jury that Lopez Vicente and LC had come to visit his home in Longview or Kelso and had brought one of LC’s siblings on at least one occasion. Juan Carlos testified that Lopez Vicente and LC had stayed the night at his house but that none of LC’s siblings had ever done so. He explained that Lopez Vicente and LC would have slept in the living room on a sofa bed, not a mattress on the floor. Juan Carlos also stated that he had on at least one occasion gone to a river or lake with his family, Lopez Vicente, LC, and LC’s sisters. According to Juan Carlos, Lopez Vicente was not “a 1 At trial, LC referred to Lopez Vicente as her husband. LC and Lopez Vicente married about a year before trial. 13 No. 59391-2-II good swimmer” and Juan Carlos had to pull Lopez Vicente out of the water to prevent him from drowning on one occasion. 2 VRP at 580. Finally, Lopez Vicente testified on his own behalf. He denied that many of the events EC described had ever happened. For instance, he stated that LC had never come home drunk and that he had never shared a bed with EC or watched a movie with her in his bedroom. Lopez Vicente explained that he did sometimes go to the river with EC and her other family members, but said he was not a good swimmer and denied touching EC either accidentally or on purpose on any of those occasions. He also stated that he had once gone with LC to pick up VC from the pizza place where she worked, but he could not recall whether EC was in the car, and he denied that he had attempted to touch her if she was. Lopez Vicente categorically denied that he had ever touched EC’s vagina or breasts, kissed EC, “[h]ad sex” with EC, or otherwise “done anything sexually inappropriate to” EC. 2 VRP at 605. F. Jury Instructions and Closing After the close of evidence, the trial court reiterated to the jury that “the lawyers’ statements are not evidence” and directed the jury to “disregard any remark, statement[,] or argument that is not supported by the evidence or the law.” 2 VRP at 642. The prosecutor then gave his closing argument. First, he discussed the “long, arduous process” that EC went through after making the allegations, emphasizing the loss of EC’s privacy. 2 VRP at 657. He described how EC had undergone a forensic interview and then a physical examination, which he described as “necessary” but “not a pleasant experience.” 2 VRP at 658. He then characterized defense counsel’s participation: [Lopez Vicente’s] defense attorney had the chance [or] opportunity to interview [or] essentially interrogate [EC] in preparation for trial. So, again, she had to 14 No. 59391-2-II submit to being questioned in detail about all of these terrible things that the defendant did to her. Then finally yesterday in Court, she came in here, . . . a fifteen- year old teenager in open Court in front of a bunch of total strangers she’s never seen before, . . . about these minute details of a very intimate sexual nature and tell all that in open Court for everybody, and then being cross-examined by defense attorney. He questioned about her memory and her experience and these little details that happened years ago, that she’s expected to answer all that. So like I said, she lost . . . her own privacy by coming forward and going through this arduous process. Id. (emphasis added). Defense counsel did not object to these comments. The prosecutor told the jury that in addition to her privacy, EC lost her innocence and her close relationship with LC. He then stated: Along with that, I get the sense that she feels she has a sense of guilt that by coming forward she has caused all of the angst and stress and pressure and pain in her family. You don’t think that’s weighed on her? So please consider that. 2 VRP at 660. Defense counsel did not object to these comments even though EC did not mention feeling guilt when she testified. The prosecutor then argued that “[o]n the flip side,” EC had nothing to gain by accusing Lopez Vicente. Id. He stated: I submit to you that the only thing she gained by coming forward and going through with this long, arduous process is for vindication and validation for her own sense of being that finally I get to let the world know what he did to me and that he could be held responsible for what he did to me. 2 VRP at 660-61 (emphasis added). Defense counsel did not object to this comment, even though EC never stated this was her motivation when testifying. Later, the prosecutor discussed the credibility of the witnesses who had testified, including EC’s mother. He stated: “Then you saw [EC’s mother] testify. . . . And I mean, I just feel so bad for her.” 2 VRP at 667. Defense counsel objected to this comment. The trial court did not explicitly rule on the objection, but said to the prosecutor, “[j]ust a reminder, counsel, you’re not supposed 15 No. 59391-2-II -- yeah, there’s ethical prohibitions you’re familiar with.” Id. The trial court allowed the prosecutor to continue, and the prosecutor told the jury, “[a]s an observer, you should feel bad for [EC’s mother].” 2 VRP at 667.2 Defense counsel did not object to this second comment. The prosecutor went on to discuss the elements of each of the charged crimes, telling the jury how the State believed each element was met. When discussing the child molestation charge, the prosecutor explained that the jury had to find that Lopez Vicente acted for the purpose of sexual gratification in order to convict and stated, [W]hen the defendant either touched, put his hands on [EC] and molested her, touched her breast, and then reached down and touch her vagina at the lake or river that’s in Vancouver or during the other instances, those were all sexual contact. And why was it for sexual gratification? Mainly for him, it’s obvious, especially considering that at least one time he had full-blown full-on sexual intercourse with his penis in [EC’s] vagina. Clearly that was for sexual gratification. And on one occasion he even had her grab her hand and place it inside his own pants to touch his own penis. There’s only one reasonable explanation for that. That’s for sexual gratification. 2 VRP at 683. In his closing statement, the defense attorney reminded the jury of the State’s burden of proving the elements of each charged crime beyond a reasonable doubt. He walked through each of EC’s allegations, emphasizing that in each case, she testified that other people were around but that “somehow no one ever noticed” any abuse. 2 VRP at 691. Defense counsel then argued there were several other factors that should convince the jury that there was reasonable doubt that the incidents occurred, including that EC had “only recently” mentioned that she had disclosed the abuse to ICM, that EC’s depression and changes in behavior “could have been explained by a 2 Although the transcript in our record attributes this comment to the trial court, this appears to be a transcription error. Both parties agree it was the prosecutor who made this statement as part of the closing argument. 16 No. 59391-2-II number of reasons,” and that forensic interviews like the one EC underwent with Pegler can be suggestive. 2 VRP at 696-97. In response to the prosecutor’s arguments about EC’s motivations, the defense attorney stated, “it’s somewhat of a misleading proposition to say that [EC] signed up for all this knowing . . . what was about to follow[;] the forensic interview, . . . the medical exam, the defense interview, the jury trial. She had no idea that that[] was going to happen.” 2 VRP at 699-700. He argued that EC may have accused Lopez Vicente because she wanted to “get[] this guy that she’s never liked out of her sister’s life.” 2 VRP at 700. The prosecutor then returned for a rebuttal. Toward the end of his rebuttal, the prosecutor made the following remarks about unreported child sexual abuse: I just want [to] pick a couple comments towards the end. Unfortunately, ladies and gentlemen, all too often a child . . . sexually abused by a family member, by a trusted member of the family . . . unfortunately, a lot of times those crimes never get reported. They never see the light of day for a number of reasons. Shame, guilt, fear of not being believed, fear of ruining a family, any number of other reasons. And they are countless. And when a child -- and that’s sad. I mean, it’s absolutely sad that a child who has been sexually abused does not report what happened. Sometimes it never gets reported, but that’s a hard truth, it does happen. 2 VRP at 713. The prosecutor went on to discuss instances when abuse is reported: And fortunately, sometimes the child does find the courage to report it, and when they do report it, you have seen or experienced what the child has to go through in order to find some measure of justice for themselves. They get put through the wringer. They may not know it at that point because all they know is that I need to tell somebody. But from that point on, every step of the way, they are being tested and questioned, their motive, you know, they’re always under scrutiny by the entire process and by the entire system. And sometimes they say, I’m done, I don’t want to do this anymore. But there are those children who stick it through, and this is one of those cases, where [EC] decided, you know what, enough is enough, I’m going to stick it through. 2 VRP at 713-14. Defense counsel did not object to any of these comments. Shortly afterward, the prosecutor characterized EC’s motivations for the jury as follows: 17 No. 59391-2-II [O]bviously [EC] believed that the right thing to do was to come forward and tell you all what happened and put her faith in this criminal justice system. The only thing that she is seeking, obviously, is to see that the person who caused her all this trauma, all this pain, is convicted of the crime that he committed and to seek some validation for her experience in this pain. 2 VRP at 714. Defense counsel objected to this comment. Without explicitly ruling on the objection, the trial court stated: I am a little concerned, counsel. I think we just need to wrap it up. Appeals to -- yeah, ladies and gentlemen, you’ve been instructed not to let your emotions overcome your rational thought process. . . . I’ll just caution you again, we’re getting close there. 2 VRP at 715. The prosecutor then briefly wrapped up his rebuttal remarks. The State never specifically elected one instance of child rape and one instance of child molestation for the jury to rely on when deliberating. The jury found Lopez Vicente guilty on both counts. For each count, the jury found that Lopez Vicente “use[d] his position of trust to facilitate the commission of the crime” and that the crime was “part of an ongoing pattern of sexual abuse of the same victim.” CP at 66, 68. III. SENTENCING The trial court sentenced Lopez Vicente to 41 months in prison for the second degree child molestation conviction. For the second degree child rape conviction, the trial court sentenced him to an indeterminate sentence with a minimum of 110 months and a maximum of life in prison. The sentences were to run concurrently. The trial court also sentenced Lopez Vicente to a community custody term of 36 months. The community custody sentence included a mandatory condition that Lopez Vicente “[r]emain within geographic boundary, as set forth in writing by the Community Corrections Officer.” CP at 128. It also included a condition that Lopez Vicente “[s]ubmit to polygraph examinations at the direction of the Community Corrections Officer.” CP at 129. 18 No. 59391-2-II Lopez Vicente timely appeals his convictions and sentence. ANALYSIS I. PROSECUTORIAL MISCONDUCT Lopez Vicente claims that the prosecutor committed misconduct repeatedly throughout his opening and closing arguments. And he claims that even if none of the comments merits reversal on its own, the cumulative effect of all the allegedly improper comments denied him a fair trial. We agree that there were several instances when the prosecutor made improper comments but we conclude that Lopez Vicente has failed to show that he was deprived of a fair trial or that reversal is required. When a prosecutor commits misconduct, the “defendant may . . . [be] deprived of the constitutional right to a fair trial” State v. Gouley, 19 Wn. App. 2d 185, 200, 494 P.3d 458 (2021). To prevail on a claim of prosecutorial misconduct, a defendant must show “‘that the prosecutor’s conduct was both improper and prejudicial’” in the context of all the circumstances of the trial. Id. (quoting State v. Emery, 174 Wn.2d 741, 756, 278 P.3d 653 (2012)). To prove prejudice, a defendant who objected to the alleged misconduct at trial must show “a substantial likelihood the misconduct affected the verdict.” Id. But if the defendant failed