State Of Washington, Respondent V Stephen R. Jabs, Appellant

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 49466-3-II
Respondent,
v.
STEPHEN ROBERT JABS, UNPUBLISHED OPINION
Appellant.
MELNICK, J. — A jury convicted Stephen Robert Jabs of six counts of rape of a child in the
first degree, four counts of child molestation in the first degree, and one count of communicating
with a minor for an immoral purpose. It also found special allegations and aggravating factors.
Jabs argues the trial court abused its discretion by admitting child hearsay statements. He
also argues double jeopardy violations, ineffective assistance of counsel, and a lack of jury
unanimity. Jabs further argues, and the State concedes, the trial court violated his First
Amendment to the United States Constitution rights by restricting his access to public social
websites. Jabs also filed a statement of additional grounds (SAG) asserting a number of errors.1
We affirm the convictions but remand to the trial court to strike the challenged sentencing
condition.
1 Jabs also asks us to deny costs if he does not prevail on appeal because the trial court deemed
him indigent. Pursuant to RAP 14.2, we defer to the commissioner if the State files a cost bill and
Jabs objects.
Filed
Washington State
Court of Appeals
Division Two
July 10, 2018

49466-3-II
2
FACTS
Jabs babysat a number of children whose parents were friends with his daughters. Starting
in 2006, he babysat KH and EH almost every weekend. The next year he began babysitting his
granddaughter, JJ, and KH’s sister, HH. Jabs also babysat KK.
In 2009, another friend of Jabs’s daughters, Mandala took her children, CG and C, to parties
and barbecues at Jabs’s house. CG started spending the night at Jabs’s house when she was six
months old.
In February 2014, when CG was four, Mandala and her children began temporarily living
with Jabs. During this time, Jabs told Mandala he bought KK a vibrator after he caught her using
his back massager to masturbate. Two or three days after this discussion, CG told Mandala that
Jabs touched her vagina. When Mandala asked CG what happened, CG said it happened at night
when Jabs thought she was sleeping; Jabs moved her underwear, touched her with his fingers, and
“tried to put his finger in, but it hurt really bad, and it felt like a rip, and it stung.” 1 Report of
Proceedings (RP) at 175. CG added it happened a second time when Jabs and CG were in Jabs’s
hot tub and that “it didn’t hurt as bad because it was wet and warm in the water.” 1 RP at 175.
Mandala reported the abuse to the police the next day.
I. FORENSIC INTERVIEW OF CG
On March 18, Karen Sinclair, a child forensic interviewer, conducted a forensic interview
of then four-year-old CG. After ascertaining that CG knew the difference between telling the truth
and telling a lie, CG initially denied or avoided questions about abuse by Jabs and her disclosure
to her mother. Sinclair asked CG if she really did not know what she told her mother about Jabs
or just did not want to tell Sinclair, and CG said “I just don’t want to tell you.” Suppl. Clerk’s
Papers (CP) at 389.

49466-3-II
3
However, shortly thereafter, in response to a question from Sinclair about whether CG
knew places on the body that are okay to touch, CG said Jabs sometimes touched her vagina. CG
said Jabs touched her vagina more than once, including at night when she slept with him on the
couch. CG first said Jabs only touched the outside of her vagina, but later said he touched her on
the inside of her vagina. CG also said Jabs inserted his finger in her vagina while they were in
Jabs’s hot tub.
After CG’s interview with Sinclair, Detective Aaron Baker investigated the allegations
against Jabs.
The mothers of other children Jabs babysat heard about CG’s disclosure, but did not believe
CG, and their children continued going to Jabs’s home.
II. SEARCH OF JABS’S HOME
In September, Baker obtained a search warrant for Jabs’s home. Upon executing the
warrant, the police found a vibrator and lubricant. They also found pictures of the children Jabs
babysat. Some photos showed the children partially or fully naked.
During the search, Baker and another detective interviewed Jabs. Jabs admitted he bought
a vibrator for KK. Jabs also admitted to telling KK she could use the lubricant if the vibrator hurt.
Jabs told Baker he talked to the children he babysat about sex, telling them they could get pregnant
the first time they had sex. However, Jabs denied ever touching CG. The police arrested Jabs.
III. FORENSIC INTERVIEW OF KH, KK, HH, AND JJ
On September 26, Sinclair conducted forensic interviews of KK, then nine-years-old, and
KH, then eight-years-old.

49466-3-II
4
KK initially denied or avoided questions about Jabs; however, she eventually said Jabs
gave her a purple vibrator and told her it was for her vagina. KK made this disclosure in response
to Sinclair telling KK she heard Jabs’s white back massager “was used somewhere [other than
KK’s back, stomach, and legs,] on at least someone else.” CP at 427. Sinclair then asked if “there
[was] ever a time when [Jabs] was around” when KK used the vibrator, and KK said Jabs used the
vibrator on, but not inside, her vagina. CP at 437. KK also said Jabs would put lubricant on the
vibrator so it wouldn’t hurt.
KK also said she and HH did “inappropriate stuff” with Jabs in his bedroom. CP at 440.
When asked what she meant, KK started crying and said if her moms found out, she would never
go to Jabs’s house again. KK said she, HH, and Jabs watched videos of naked adults making out
or having sex and did what they saw. The first time she saw a video like that, EH showed it to her
on the computer in the girls’ room in Jabs’s home. KK indicated she watched similar videos on
the computer in Jabs’s dining room on other occasions.
Sinclair told KK she needed to hear about what happened in Jabs’s bedroom. KK said she
and HH would “sort of do the making out thing,” that “[KK] and [HH] would always be on top of
[Jabs,]” and that Jabs’s penis would go between their legs, but “not in” their vaginas. CP at 444.
KK also said HH would be in the room with her when these acts occurred, but Jabs never had her
and HH do these things at the same time. She said white stuff came out of Jabs’s penis and he
would always put it on either HH’s or her stomach; he did not put it other places, because Jabs
said it “would make you have a baby.” CP at 446. KK also said she and HH put their mouths on

49466-3-II
5
Jabs’s penis, and that Jabs said it felt good. KK and HH would suck on Jabs’s penis while
he licked the outside of their vaginas, and Jabs would sometimes lick their vaginas while they were
in the hot tub. KK said these acts happened more than once, and she was eight-years-old the last
time it happened.
During the interview, KK said she had been in the interview room before. Sinclair did not
know it at the time, but KK was referring a prior false accusation of sexual abuse she had made
against her mom’s ex-boyfriend.
On the way home from her interview with Sinclair, KK told her mother for the first time
about Jabs abusing her.
KH also initially denied or avoided questions about abuse by Jabs. CP at 460-536.
However, after Sinclair asked if Jabs used his white back massager, KH eventually disclosed he
used it on the outside of her vagina; she said he did the same thing to KK, HH, and JJ. KH said
Jabs used the back massager on the children’s vaginas when they told him their vaginas were sore.
KH also said she saw Jabs’s penis when she, HH, and JJ sucked on it while Jabs slept on
the couch. KH knew Jabs was sleeping because “if [her] teeth were rubbing on him, he would
have w[oken] up, but he didn’t.” CP at 558. When asked if anything came out of Jabs’s penis
when they sucked on it, KH said no. Sinclair asked how they knew when to stop sucking, and KH
said they stopped when they were “tired of shaking [their] heads up and down.” KH said the girls
sucked on Jabs’s penis more than once. KH thought she was four-years-old when these incidents
happened.
KH told Sinclair that Jabs was awake when HH and JJ sucked on his penis while they were
in the hot tub. She added that Jabs kept on telling HH to stop.
Sinclair also interviewed HH and JJ, but they did not accuse Jabs of sexually abusing them.

49466-3-II
6
IV. CHARGING
The State charged Jabs with six counts of rape of a child in the first degree, four counts of
child molestation in the first degree, and two counts of communicating with a minor for an immoral
purpose.2 The named victims were CG, KH, HH, JJ, and KK. The State also charged Jabs with
special allegations and aggravating factors.
V. CHILD HEARSAY HEARING3
Pretrial, the trial court held a hearing to determine the admissibility of statements made by
CG and KK to their mothers, and made by CG, KH, and KK to Sinclair.
CG, KH, and KK testified regarding a variety of topics to demonstrate their competence,
including their names, birth dates, mothers’ names, the difference between the truth and a lie, and
details about Jabs’s home and the incidents of abuse. CG, KH, and KK gave substantially the
same testimony as provided in their disclosures to Sinclair.
Sinclair testified and opined that her forensic interview methods did not result in any false
disclosures.
Jabs’s expert witness, Mark Whitehill, a licensed psychologist, opined that Sinclair’s
questioning likely tainted CG’s, KH’s, and KK’s statements, making them unreliable. Whitehill
said Sinclair engaged in repeated questioning, and displayed dogged persistence that came close
to badgering. Whitehill opined that Sinclair’s technique interjected facts into the interview, RP at
596, and that CG, KH, and KK denied any abuse until after Sinclair introduced outside
2 The trial court dismissed one of the communicating charges.
3 The court held the hearing pursuant to pursuant to RCW 9A.44.120 and State v. Ryan, 103 Wn.2d
165, 691 P.2d 197 (1984).

49466-3-II
7
information. However, Whitehill also opined that Sinclair’s interview technique of using narrow,
leading questions at the end of the interviews was appropriate.
At the conclusion of the child hearsay hearing, the trial court addressed the children’s
competency on the record. The parties agreed the children were competent and available to testify
at trial. The court did not enter specific findings on the Allen4 factors.
The trial court analyzed each Ryan factor, as discussed later in this opinion, and concluded
that the hearsay statements were reliable and admissible. The trial court’s written findings of fact
stated that CG’s, KH’s, and KK’s statements either satisfied each Ryan factor or, when not
satisfied, that the factors did not weigh against the reliability of the statements. The court found
there was no evidence of a motive for the children to lie or of any untruthful character. It found
that CG disclosed to multiple people and the disclosure to her mother was spontaneous. Further,
the lack of spontaneity in KH’s and KK’s interviews with Sinclair did not weigh against reliability
nor did the timing of the disclosures or past assertions of fact. When cross-examined, the children
did not show a lack of knowledge. Finally, the court found that the chance of faulty recollection
was remote, and that imprecise recollection at times did not detract from reliability.
The trial court was not convinced by Whitehill’s opinion that the children’s statements
were tainted by unduly suggestive or leading questioning or by badgering. Additionally, the court
found inconsistencies in the children’s statements did not detract from reliability, because without
some inconsistency “the statements might seem contrived [ ] or premeditated.” CP at 302.
4 State v. Allen, 70 Wn.2d 690, 424 P.2d 1021 (1967).

49466-3-II
8
VI. PRETRIAL ORDER ON PHOTOGRAPHS
The trial court denied Jabs’s pretrial motion to preclude photos seized by the police from
Jabs’s home. Jabs argued the photos depicting nude or partially nude children were irrelevant
when viewed in context of other normal family photos and, in the alternative, that the photos were
unduly prejudicial if admitted out of context of the thousands of other photos seized. The court
concluded the photos were admissible to show opportunity because they showed Jabs at home with
the children. They also could impeach the child victims’ hearsay denial that they were nude in
Jabs’s home. The court said Jabs could offer other photos seized to provide context for the nude
or partially nude photos of children.
VII. TRIAL TESTIMONY AND EXHIBITS
At trial, Baker, CG, KK, KH, HH, JJ, and Jabs provided relevant testimony as follows.
Baker testified that Jabs said he bought KK a vibrator, and offered lubricant to KK if the
vibrator felt uncomfortable. Baker told the jury about the photos recovered from Jabs’s home,
depicting nude or partially nude children. He also told the jury that the police seized thousands of
photos and reviewed all of them. The majority of the photos depicted normal family activity, and
none of the photos was sexually explicit.
The trial court granted Jabs’s motion to admit two full photo albums. The trial court set
aside an hour for the jury to review the photo albums to gain a clearer understanding of the context
from which the police selected photos of nude or partially nude children. The judge also permitted
Randall Karstetter, Jabs’s witness, to give testimony on the quantity of photos seized, and allowed
him to opine on the nature of a sample of the photos.

49466-3-II
9
KK and KH testified substantially similar to their disclosures to Sinclair. HH and JJ again
denied that Jabs abused them or any of the other children.
Jabs testified that he never observed any of the children sucking on his penis. When asked
if the children sucked on his penis, Jabs responded “‘not to [his] knowledge.’” 19 RP at 3333.
Jabs also testified that, if the children sucked on his penis multiple times, he slept through it
multiple times. He sleeps soundly.
Jabs admitted he bought KK a vibrator. He said KK asked him what the vibrator was, and
he told her it “[did] the same thing as the back massager.” 19 RP at 3352, 3354, 3395. Jabs further
testified he saw KK looking at pornography on his computer, and talked to her about sex. Jabs
also testified that he told KK and the other children about “the facts of sex” in response to one of
the children saying that a woman could not get pregnant until she was a certain age. 19 RP at
3340. Jabs admitted to talking to the girls about sex when they were between the ages of seven
and nine. He felt discussing topics of a sexual nature with a seven year old was acceptable.
VII. JURY INSTRUCTIONS
Jabs proceeded to trial. The court instructed the jury:
In alleging that the defendant committed rape of a child in the first degree
as charged in Counts I and II, the State relies upon evidence regarding a single act
constituting each count of the alleged crime. To convict the defendant on any
count, you must unanimously agree that this specific act was proved.
The State alleges that the defendant committed acts of rape of a child in the
first degree, and child molestation in the first degree, in Counts III, IV, V, VI, VII,
VIII, IX, and X on multiple occasions. To convict the defendant of rape of a child
in the first degree or child molestation in the first degree, one particular act of rape
of a child in the first degree or child molestation in the first degree must be proved
beyond a reasonable doubt as to each respective count, and you must unanimously
agree as to which act has been proved. You need not unanimously agree that the
defendant committed all the alleged acts of rape of a child in the first degree or
child molestation in the first degree.
CP at 256 (Instr. 8).

49466-3-II
10
The court also instructed the jury that: “A separate crime is charged in each count. You
must decide each count separately. Your verdict on one count should not control your verdict on
any other count.” CP at 255 (Instr. 7).
The first paragraph is a modification of WPIC 4.26,5 and the second paragraph is a
modified Petrich6 instruction (WPIC 4.25). Defense counsel argued the communicating charge
should be included in the instruction. The trial court disagreed because the State elected an
ongoing course of conduct in support of that charge. The court instructed the jury that, to convict,
the State had to prove beyond a reasonable doubt that Jabs communicated with KK, a minor, for
immoral purposes between November 30, 2008, and September 29, 2014, and the act occurred in
Washington. The trial court also instructed the jury that the communication could be by words or
conduct, and that the immoral purposes had to be of a sexual nature.
IX. CLOSING ARGUMENT
During closing argument, the State elected separate and distinct acts for each count. As
we explain in more detail below, the State gave a detailed description of the underlying act that
supported each count and to which victim each count pertained. The prosecutor grouped the counts
by victim.
The State also invited the jury to consider different acts that constituted “an overall
behavior” of communicating, including giving KK a vibrator, talking to KK about masturbation,
showing KK pornographic videos, and talking to KK about sex. 20 RP at 3526. Specifically the
prosecutor said:
5 11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTION: CRIMINAL 4.26, at 115
(3r ed. 2008).
6 State v. Petrich, 101 Wn.2d 566, 683 P.2d 173 (1984).

49466-3-II
11
Count XI, this is the Communicating With a Minor For Immoral Purposes,
and this is more of a span of time. This is more of an overall behavior. This is the
talking to the seven or eight or nine year old about sex, about using condoms, about
keeping your legs together, about the myth that you won’t get pregnant the first
time you have sex, that conversation he had with [KK] in the hot tub. It also
includes the videos that she describes him showing her. It also includes the
vibrator. All of this behavior is Communicating With a Minor For Immoral
Purposes.
And you don’t have to . . . find that, yes, he had the sex talk; yes, he showed
her videos; yes, he gave her a vibrator. The point is, this is all an overarching
behavior, and he is communicating to her about things like masturbation, which,
obviously, are sexual in nature. And when we’re talking about a man who’s over
40 years older than this seven, eight, nine year old, I think we can all agree that
that’s an immoral purpose.
20 RP at 3525-26.
During closing argument, the prosecutor made a number of statements Jabs now
challenges. Jabs did not object during the prosecutor’s closing argument.
X. VERDICT AND SENTENCE
The jury convicted Jabs on all counts. The jury also convicted Jabs on all aggravating
factors. The court sentenced Jabs to an exceptional sentence above the standard range. The court
also ordered that Jabs could not join or peruse any public social websites.
Jabs appeals.
ANALYSIS
I. CHILD HEARSAY STATEMENTS
A. Legal Principles
Jabs argues the trial court abused its discretion in admitting child hearsay statements of
CG, KH, and KK to Sinclair because their hearsay statements were not reliable. We disagree.
“RCW 9A.44.120 governs the admissibility of out-of-court statements made by putative
child victims of sexual abuse.” State v. Brousseau, 172 Wn.2d 331, 351 259 P.3d 209 (2011).
RCW 9A.44.120 provides that statements of a child under the age of ten describing acts of, or

49466-3-II
12
attempts at, “sexual conduct performed with or on the child” are admissible in criminal
proceedings, if the trial court concludes, after a hearing, “that the time, content, and circumstances
of the statement provide sufficient indicia of reliability[,]” and the child “[t]estifies at the
proceedings.”
We review a trial court’s determination that child hearsay statements were reliable for
abuse of discretion. State v. Borboa, 157 Wn.2d 108, 121, 135 P.3d 469 (2006). “A trial court
abuses its discretion ‘only when its decision is manifestly unreasonable or is based on untenable
reasons or grounds.’” Borboa, 157 Wn.2d at 121 (quoting State v. C.J., 148 Wn.2d 672, 686, 63
P.3d 765 (2003)). Trial courts are “necessarily vested with considerable discretion in evaluating
the indicia of reliability” in a child victim’s hearsay statements. C.J., 148 Wn.2d at 686.
In determining the reliability of child hearsay statements, the trial court considers nine
factors. State v. Ryan, 103 Wn.2d 165, 175-76, 691 P.2d 197 (1984). They are
(1) whether there is an apparent motive to lie; (2) the general character of the
declarant; (3) whether more than one person heard the statements; (4) whether the
statements were made spontaneously; [] (5) the timing of the declaration and the
relationship between the declarant and the witness[; . . . (6)] the statement contains
no express assertion about past fact[; (7)] cross-examination could not show the
declarant’s lack of knowledge[; (8)] the possibility of the declarant’s faulty
recollection is remote[;] and [(9)] the circumstances surrounding the statement . . .
are such that there is no reason to suppose the declarant misrepresented defendant’s
involvement.
Ryan, 103 Wn.2d at 175-76. “No single Ryan factor is decisive and the reliability assessment is
based on an overall evaluation of the factors.” State v. Kennealy, 151 Wn. App. 861, 881, 214
P.3d 200 (2009).

49466-3-II
13
A trial court does not abuse its discretion where it follows the requirements of RCW
9A.44.120 and the Ryan factors in concluding that a child’s hearsay statements are reliable. C.J.,
148 Wn.2d at 686. “The abuse of discretion standard, as applied in child hearsay cases, . . .
acknowledges the obvious, that the trial court is the only court that sees the children and listens to
them and to the other witnesses in such a case.” State v. Swan, 114 Wn.2d 613, 667, 790 P.2d 610
(1990).
B. Finding of Facts
Jabs assigned error to the conclusion that CG’s, KH’s, and KK’s statements to Sinclair
were reliable. Jabs did not assign error to any of the trial court’s findings on the Ryan factors in
his opening brief. However, in the body of his brief, Jabs argued the court erred in its findings on
Ryan factors two, four, five, and nine. Although the State argues Jabs has not preserved the issue
on appeal, we address this issue on the merits.
1. Undisputed Findings
Jabs does not challenge the trial court’s findings that the first, third, sixth, seventh, and
eighth Ryan factors were met. We accept these findings as verities. State v. O'Neill, 148 Wn.2d
564, 571, 62 P.3d 489 (2003). The court concluded that the factors favored reliability and
admission, except factor six, which was neutral.
2. Challenged Findings
Jabs argues the court erred in making findings on the general character of the children
(factor two), on the spontaneity of the statements to Sinclair (factor four), on the timing of the
statements to Sinclair and the relationship between the children and Sinclair (factor five), and that
the circumstances surrounding the statements to Sinclair do not show the children misrepresented
Jabs’s involvement (factor nine).

49466-3-II
14
We review whether substantial evidence supports the findings of fact and, if so, whether
the findings support the conclusions of law. State v. Homan, 181 Wn.2d 102, 105-06, 330 P.3d
182 (2014). We review challenges to conclusions of law de novo. Homan, 181 Wn.2d at 106.
Our review of the record on these contested findings of fact demonstrate that substantial
evidence supports the court’s findings of fact. Further, the conclusions of law flow from the
supported findings of fact. The trial court examined all nine Ryan factors. It correctly applied the
law and, because no one factor is determinative, determined that the factors favored reliability.
The trial court did not abuse its discretion. We uphold the admission of the child hearsay
statements.
II. DOUBLE JEOPARDY
Jabs argues the jury instructions violated his double jeopardy rights because they did not
require the jury to convict him of separate and distinct acts, and the jury could have convicted him
multiple times for the same act. We disagree.
“We review double jeopardy claims de novo.” State v. Wilkins, 200 Wn. App. 794, 805,
403 P.3d 890 (2017), review denied, 190 Wn.2d 1004 (2018). “‘The constitutional guaranty
against double jeopardy protects a defendant . . . against multiple punishments for the same
offense.’” State v. Mutch, 171 Wn.2d 646, 661, 254 P.3d 803 (2011) (quoting State v. Noltie, 116
Wn.2d 831, 848, 809 P.2d 190 (1991)); U.S. CONST. amend. V; WASH. CONST. art. I, § 9. However,
if each of a defendant’s convictions “arises from a separate and distinct act,” the offenses are
factually different, and there is no double jeopardy violation. State v. Fuentes, 179 Wn.2d 808,
824, 318 P.3d 257 (2014).

49466-3-II
15
Jury instructions may result in a double jeopardy violation if they allow a jury to convict a
defendant on multiple counts based on a single act. Fuentes, 179 Wn.2d at 824. Such instructions
create the potential for multiple punishments for the same offense. Mutch, 171 Wn.2d at 663.
To determine whether a double jeopardy violation actually occurred, we consider whether
“the evidence, arguments, and instructions” made it “‘manifestly apparent to the jury’” that the
State sought a single punishment for each offense, “and that each count was based on a separate
act.” Mutch, 171 Wn.2d at 664 (quoting State v. Berg, 147 Wn. App. 923, 931, 198 P.3d 529
(2008)).
In Mutch, a “separate crime instruction . . . fail[ed] to ‘inform[] the jury that each ‘crime’
required proof of a different act.’” 171 Wn.2d at 663 (quoting State v. Borsheim, 140 Wn. App.
357, 367, 165 P.3d 417 (2007)). The jury instruction stated:
[A] separate crime is charged in each count. You must decide each count
separately. Your verdict on one count should not control your verdict on any other
count.
Mutch, 171 Wn.2d at 662. In Mutch, none of the instructions “expressly stated that the jury must
find that each charged count represents an act distinct from all other charged counts.” 171 Wn.2d
at 662. However, the court concluded no double jeopardy violation occurred because “despite
deficient jury instructions, it [wa]s nevertheless manifestly apparent that the jury found [the
defendant] guilty of five separate acts of rape to support five separate convictions.” Mutch, 171
Wn.2d at 665. The victim testified to five separate rapes. These incidents corresponded to the “to
convict” instructions. The State discussed all five episodes in its closing arguments and elected
those incidents upon which it relied for each count. The defendant did not argue insufficient
evidence as to the number of events but argued the victim lacked credibility on the issue of consent.
Mutch, 171 Wn.2d at 665.

49466-3-II
16
In Fuentes, the challenged jury instructions for two counts of child molestation specified
each conviction required a separate and distinct act; however, they did not specify that the child
rape count must be based on a separate and distinct act from the counts of child molestation. 179
Wn.2d at 823. The court concluded it was “manifestly apparent that the convictions were based
on separate acts because [in closing argument] the prosecution made a point to clearly distinguish
between the acts that would constitute rape of a child and those that would constitute child
molestation.” Fuentes, 179 Wn.2d at 825. “[T]he prosecutor clearly used ‘rape’ and ‘child
molestation’ to describe separate and distinct acts.” Fuentes, 179 Wn.2d at 825. The prosecutor
also divided the elected acts “into two categories—the acts involving penetration, which
constituted rape, and the other inappropriate acts, which constituted molestation.” Fuentes, 179
Wn.2d at 825.
Here, the State concedes that the jury instructions given did not clearly distinguish the acts
jurors could consider for each count against Jabs. We accept the State’s concession.
However, as Jabs conceded at oral argument, in closing argument, the State elected an
underlying act for each count of child rape and child molestation. This election made it manifestly
apparent to the jury that it must unanimously find one act per count. But Jabs argues that we
should conclude that the election was insufficient to protect his double jeopardy rights based on
State v. Kier, 164 Wn.2d 798, 808, 811, 814, 194 P.3d 212 (2008).
In Kier, the court held that assault and robbery in the first degree merge when assault is the
charge that elevated the robbery charge to robbery in the first degree. 164 Wn.2d at 801-02. There,
a single carjacking gave rise to the charges of assault and robbery in the first degree. Kier, 164
Wn.2d at 805. Both charges involved two victims and, during closing argument, the prosecutor
elected “the driver [of the carjacked vehicle] as the victim of the robbery and the passenger as the

49466-3-II
17
victim of the assault.” Kier, 164 Wn.2d at 805. The court rejected the State’s argument “that the
assault and robbery convictions [did] not merge because these crimes were committed against
separate victims.” Kier, 164 Wn.2d at 814. The court concluded that the prosecutor’s election of
a victim was unclear because “evidence presented to the jury identified [both the victims] as
victims of the robbery,” and that an ambiguous verdict resulted. Kier, 164 Wn.2d at 812-13.
The facts in Kier are distinguishable from the facts presently before us. In Kier, the court
considered whether two offenses that arose from the same act merge. Here, Jabs conceded at oral
argument that the child rape and child molestation charges do not merge, and that Kier was “not
directly analogous.” Wash. Court of Appeals oral argument, State v. Jabs, No. 46466-3-II (April
3, 2018), at 9 min., 38 sec. through 9 min., 40 sec. (on file with court). In this case, the charges
arise from separate acts with separate victims. The State elected a separate and distinct criminal
act for each count. Unlike in Kier, where the assault and robbery arose from one occurrence, each
of the acts of sexual assault for each victim occurred at different points in time.
It was manifestly apparent in this case what acts supported each count. The State provided
a detailed description of each act that supported each count. The State argued the counts by victim.
The State argued the two counts of child rape involving CG were based on Jabs penetrating CG’s
vagina on the couch, and Jabs penetrating CG’s vagina in the hot tub, respectively. The State
argued the child rape and child molestation involving KH were based KH’s oral-genital contact
with Jabs on the couch, and Jabs using the back massager on KH, respectively. The State argued
the child rape and child molestation involving HH were based on HH’s oral-genital contact with
Jabs on the couch, and Jabs putting his penis on HH in his bedroom, respectively. The State argued
the child rape and child molestation involving JJ were based on JJ’s oral-genital contact with Jabs
on the couch, and on Jabs using the back massager on JJ, respectively. The State argued the child

49466-3-II
18
rape and child molestation involving KK were based on KK’s oral-genital contact with Jabs in the
bedroom, and on Jabs putting his penis on KK in the bedroom, respectively.
The State’s election during closing argument, along with the jury instructions, made it
manifestly apparent that each count was based on a separate and distinct act. No double jeopardy
violation occurred.
III. INEFFECTIVE ASSISTANCE OF COUNSEL
Jabs argues his defense counsel at trial was ineffective for failing to request a lack of
volition jury instruction. He asserts substantial evidence supported Jabs’s claim that he was asleep
when KH, HH, and JJ sucked on his penis while he was on the couch.7 We disagree.
We review claims of ineffective assistance of counsel de novo. State v. Sutherby, 165
Wn.2d 870, 883, 204 P.3d 916 (2009). To prevail on an ineffective assistance of counsel claim,
the defendant must show both that defense counsel’s representation was deficient and that the
deficient representation prejudiced the defendant. State v. Grier, 171 Wn.2d 17, 32–33, 246 P.3d
1260 (2011). If a defendant fails to prove either prong, the claim fails. State v. Lord, 117 Wn.2d
829, 884, 822 P.2d 177 (1991).
Representation is deficient if after considering all the circumstances, it “falls ‘below an
objective standard of reasonableness.’” Grier, 171 Wn.2d at 33(quoting Strickland v. Washington,
466 U.S. 668, 691, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Prejudice exists if there is a
reasonable probability that except for counsel’s errors, the result of the proceeding would have
differed. Grier, 171 Wn.2d at 34.
7 Jabs argues his conviction for rape of KK was also based on oral-genital contact on the couch,
but the prosecution elected the act of oral-genital contact in Jabs’s bedroom to support that
conviction. No evidence supports a claim that Jabs was asleep during the incidents in the bedroom.

49466-3-II
19
We begin with a strong presumption that counsel’s representation was effective. Grier,
171 Wn.2d at 33. To demonstrate deficient performance the defendant must show that, based on
the record, there are no legitimate strategic or tactical reasons for the challenged conduct. State v.
Emery, 174 Wn.2d 741, 755, 278 P.3d 653 (2012). Trial counsel has wide latitude in the choice
of tactics. In re Pers. Restraint of Stenson, 142 Wn.2d 710, 736, 16 P.3d 1 (2001). Legitimate
trial strategy or tactics cannot serve as the basis for a claim of ineffective assistance of counsel.
State v. Kyllo, 166 Wn.2d 856, 863, 215 P.3d 177 (2009).
Defense counsel’s failure to request a jury instruction on an affirmative defense can be
strategic. State v. Coristine, 177 Wn.2d 370, 379, 300 P.3d 400 (2013); State v. Frost, 160 Wn.2d
765, 775, 161 P.3d 361 (2007). In raising an affirmative defense, the defendant admits the charged
“act, but pleads an excuse.” State v. Riker, 123 Wn.2d 351, 367-68, 869 P.2d 43 (1994). If a
decision to forgo an affirmative defense could be based on a reasonable determination that the
defense is inconsistent with the defense’s theory that the act did not occur, counsel’s decision is
strategic. See Frost, 160 Wn.2d at 775. Lack of volition is an “affirmative defense” to child rape,
which a defendant must prove by “a preponderance of the evidence.” State v. Deer, 175 Wn.2d
725, 740-41, 287 P.3d 539 (2012).
Here, the decision to forego a lack of volition instruction was purely tactical. Jabs’s
counsel did not perform deficiently. In this context, a jury instruction on the affirmative defense
of lack of volition was inconsistent with the defense theory denying that any of the alleged acts
occurred.
In raising the affirmative defense of lack of volition, Jabs would have admitted the sexual
assault on the couch occurred. Riker, 123 Wn.2d at 367-68. However, Jabs was able to elicit
evidence that those acts never occurred. Defense counsel explicitly referred to the children’s

49466-3-II
20
accounts of Jabs sleeping during the couch incident as inconsistent and contradictory to the defense
theory that it never happened.
By raising the affirmative defense, Jabs also would have taken on the burden of proving
that he was asleep when the children sucked on his penis, but that the other incidents did not occur.
This strategy would have weakened Jabs’s denial on the other counts. Jabs’s counsel made a
reasonable tactical decision and was not deficient.
IV. UNANIMITY INSTRUCTION
Jabs argues the trial court violated his constitutional right to juror unanimity on the charge
of communicating with a minor for an immoral purpose by denying his request for a Petrich
instruction on that count. He argues that the State elected several distinct acts to support the count,
and the jury was not unanimous as to any one act. We disagree.
“Criminal defendants have a right to a unanimous jury verdict in Washington.” State v.
Armstrong, 188 Wn.2d 333, 340, 394 P.3d 373 (2017); WASH. CONST. art. I, § 21. We review such
constitutional issues de novo. State v. Jorgenson, 179 Wn.2d 145, 150, 312 P.3d 960 (2013).
The Petrich rule ensures juror unanimity when the prosecution alleges several acts in
support of a single count charged against a defendant. State v. Craven, 69 Wn. App. 581, 587, 849
P.2d 681 (1993). The prosecution must elect the underlying act, or the court must instruct the jury
that it must unanimously agree on a single criminal act underlying the conviction. Petrich, 101
Wn.2d at 572. “Where there is neither an election nor a unanimity instruction in a multiple acts
case, omission of the unanimity instruction is presumed to result in prejudice.” State v. Coleman,
159 Wn.2d 509, 512, 150 P.3d 1126 (2007). “The presumption of error is overcome only if no
rational juror could have a reasonable doubt as to any of the incidents alleged.” Coleman, 159
Wn.2d at 512.

49466-3-II
21
Where a prosecutor elects a continuing course of conduct for a particular count, the Petrich
rule is inapplicable. Craven, 69 Wn. App. at 587-88. “Evidence that multiple acts were intended
to secure the same objective supports a finding that the defendant's conduct was a continuing
course of conduct.” State v. Rodriquez, 187 Wn. App. 922, 937, 352 P.3d 200 (2015). “Courts
also consider whether the conduct occurred at different times and places or against different
victims.” Rodriquez, 187 Wn. App. at 937.
However, “‘one continuing offense’ must be distinguished from ‘several distinct acts,’ each
of which could be the basis for a criminal charge.” State v. Barrington, 52 Wn. App. 478, 480,
761 P.2d 632 (1988) (quoting Petrich, 101 Wn.2d at 571). “‘To determine whether one continuing
offense may be charged, the facts must be evaluated in a commonsense manner.’” Barrington, 52
Wn. App. at 480 (quoting Petrich, 101 Wn.2d at 571).
RCW 9.68A.090(1) prohibits communication with a minor for an immoral purpose.
Communication under RCW 9.68A.090 may involve either a course of conduct or spoken words.
State v. Falco, 59 Wn. App. 354, 358, 796 P.2d 796 (1990)); State v. Schimmelpfennig, 92 Wn.2d
95, 100-01, 594 P.2d 442 (1979). As such, a continuing course of conduct can support one count
of communication with a minor for immoral purposes. Barrington, 52 Wn. App. at 482
(communicating conviction where a defendant promoted prostitution of one minor during a 3-
month period); State v. Gooden, 51 Wn. App. 615, 620, 754 P.2d 1000 (1988) (communicating
conviction where a defendant promoted prostitution of two minors during a 10-day period)). The
trial court does not violate the defendant’s rights to a unanimous jury verdict by omitting a Petrich
instruction if the prosecutor elects a continuing course of conduct underlying a count of
communication with a minor for immoral purposes. Petrich, 101 Wn.2d at 571.

49466-3-II
22
Here, Jabs objected to the exclusion of the communicating with a minor count from the
modified Petrich instruction given. The trial court ruled it did not need to be included because the
State elected “an ongoing course of conduct” to support that count. 20 RP at 3453.8
In closing argument, the State invited the jury to consider different acts that constituted “an
overall behavior” of communicating, including giving KK a vibrator, talking to KK about
masturbation, showing KK pornographic videos, and talking to KK about sex. 20 RP at 3526.
We conclude that a series of acts by Jabs were intended to serve a single objective. In
evaluating them in a commonsense manner, the communication charge involved one continuing
course of conduct.
V. RESTRICTED ACCESS TO SOCIAL WEBSITES AS A SENTENCING CONDITION
Jabs argues the court violated his First Amendment rights by restricting his access to public
social websites as a sentencing condition. Jabs relies on Packingham v. North Carolina, ___ U.S.
___, 137 S. Ct. 1730, 198 L. Ed. 2d 273 (2017), where a statute making it a felony for registered
sex offenders to access certain websites was held to facially violate the First Amendment. The
State concedes the trial court erred in prohibiting Jabs from accessing social websites as a
sentencing condition, and concedes the sentencing condition should be stricken.
We accept the State’s concession, and remand with instructions to strike the challenged
sentencing condition.
8 Instead, the court instructed the jury that, to convict, the State must prove, beyond a reasonable
doubt, Jabs communicated with KK, a minor, for immoral purposes between November 30, 2008,
and September 29, 2014, and the act occurred in Washington.

49466-3-II
23
VI. SAG CLAIMS
A. Competency of Child Witnesses
Jabs asserts the trial court abused its discretion in ruling that CG, KK, and KH were
competent. Jabs asserts CG was incompetent because she did not understand the obligation to
speak the truth when Sinclair interviewed her. He next asserts the court abused its discretion
because CG, KH, and KK gave too broad of a timespan for the alleged abuse for the court to
determine the second Allen factor. Last, Jabs contends the court abused its discretion because
Sinclair’s allegedly suggestive and leading questions, corrupted CG’s, KH’s, and KK’s memories.
We disagree.
Witness competency hinges on whether the witness, at the time of testifying had the
capacity to accurately perceive, had the capacity to accurately recall, and had the capacity to
accurately relate. State v. S.J.W., 170 Wn.2d 92, 99-100, 239 P.3d 568 (2010). A competency
determination is “relevant only to [a child witness’s] ability to testify at trial and not the
admissibility of [the child’s] out of court statements.” Borboa, 157 Wn.2d at 120 (emphasis
added). Even “where the court is reviewing a pretrial competency determination, the inquiry is
always whether the child is competent to testify at trial.” Brousseau, 172 Wn.2d at 341 n.5.
Every person is presumed competent to testify, including children. Brousseau, 172 Wn.2d
at 341. “A child’s competency is now determined by the trial judge within the framework of RCW
5.60.050, while the Allen factors serve to inform the judge’s determination.” S.J.W., 170 Wn.2d
at 100. The challenging party has the burden of proving incompetence of a witness “by a
preponderance of evidence,” usually with evidence indicating the child is incapable of receiving
just impressions of the facts, or incapable of relating facts truly. Brousseau, 172 Wn.2d at 341;

49466-3-II
24
RCW 5.60.050. “[R]ecitation of the Allen factors, without more, [will] not constitute a sufficient
offer of proof of incompetency.” Brousseau, 172 Wn.2d at 345
The “bar for competency is low.” Brousseau, 172 Wn.2d at 347. Inconsistencies in a
child’s testimony do not necessarily call into question witness competency. State v. Carlson, 61
Wn. App. 865, 874, 812 P.2d 536 (1991). Inconsistencies generally relate to the witness’s
credibility and the weight to give his or her testimony, not competence. Carlson, 61 Wn. App. at
874.
While criminal defendants have a constitutional due process right to be convicted on
competent evidence, we give “significant deference to the trial judge’s competency
determination,” and “disturb such a ruling only upon a finding of manifest abuse of discretion.”
Brousseau, 172 Wn.2d at 340. This standard of review is especially applicable to child witnesses
because “[t]he competency of a youthful witness is not easily reflected in a written record, and [an
appellate court] must rely on the trial judge who sees the witness, notices the witness’s manner,
and considers his or her capacity and intelligence.” State v. Woods, 154 Wn.2d 613, 617, 114 P.3d
1174 (2005). “There is probably no area of law where it is more necessary to place great reliance
on the trial court’s judgment than in assessing the competency of a child witness.’” Woods, 154
Wn.2d at 617.
Here, the trial court found CG, KH, and KK were competent to testify at trial after
conducting a child hearsay hearing under RCW 9A.44.120. Jabs concurred with the court’s
assessment that CG, KH, and KK were competent. Additionally, at the child hearsay hearing, CG,

49466-3-II
25
KH, and KK testified regarding a variety of topics illustrating competence, including the children’s
names, birth dates, mothers’ names, the difference between the truth and a lie, and details about
Jabs’s house and the incidents of abuse.
The court did not abuse its discretion in finding these child witnesses were competent.
B. Communicating with a Minor for Immoral Purposes
Jabs asserts the statute prohibiting communication with a minor for immoral purposes,
RCW 9.68A.090, is unconstitutionally vague as applied to his conduct. Jabs seems to also assert
that insufficient evidence supports his conviction under RCW 9.68A.090. We disagree.
Jabs contends his discussions with KK about sex were “informative,” that he only bought
KK a vibrator so she would stop masturbating with his back massager, and denies that he ever
showed KK pornography.
We construe Jabs’s assertion on this point as a claim that the jury instruction defining
“immoral purposes” was unconstitutionally vague because it failed to provide an ascertainable
standard by which the jury could evaluate the alleged misconduct.
“The vagueness standard . . . [asks] whether persons of common intelligence and
understanding have fair notice of the conduct prohibited, and ascertainable standards by which to
guide their conduct.” Schimmelpfennig, 92 Wn.2d at 102. “[W]hen [“immoral purposes”] is read
in context with RCW 9.68A, it clearly provides persons of common intelligence and understanding
with fair notice of and ascertainable standards of the conduct sought to be prohibited.” State v.
Danforth, 56 Wn. App. 133, 136, 782 P.2d 1091 (1989), overruled on other grounds in State v.
McNallie, 120 Wn.2d 925, 846 P.2d 1358 (1993).

49466-3-II
26
To the extent Jabs asserts the jury based his conviction on conduct that was not carried out
with immoral purpose, his argument is without merit. State v. Gladden, 116 Wn. App. 561, 566,
66 P.3d 1095 (2003).
Here, the court instructed the jury that “immoral purposes” means “immoral purposes of a
sexual nature.” CP at 273 (Instr. 24). McNallie, 120 Wn.2d at 933, upheld an identically worded
instruction. There, the court held that the communication statute “prohibits communication with
children for the predatory purpose of promoting their exposure to and involvement in sexual
misconduct.” McNallie, 120 Wn.2d at 933 (emphasis added). McNallie “expressly rejected a
detailed delineation of the requisite misconduct and led to a holding that ‘sexual misconduct’ was
a sufficient context for the ‘immoral purposes’ contemplated by the communications with a minor
statute.” 120 Wn.2d at 932–33. Thus, the jury instruction defining “immoral purposes” was not
unconstitutional vague.
Additionally, to the extent Jabs argues that there is insufficient evidence to support the
communication conviction, the record shows sufficient evidence exists.
Evidence is sufficient when, after viewing the evidence in the light most favorable to the
State, any rational trier of fact could have found guilt beyond a reasonable doubt. State v. Green,
94 Wn.2d 216, 220–22, 616 P.2d 628 (1980). “[W]hen the sufficiency of the evidence is
challenged in a criminal case, all reasonable inferences from the evidence must be drawn in favor
of the state and interpreted most strongly against the defendant.” State v. Partin, 88 Wn.2d 899,
906-07, 567 P.2d 1136 (1977), overruled on other grounds by State v. Lyons, 174 Wn.2d 354, 365,
275 P.3d 314 (2012). A claim of insufficiency “admits the truth of the State's evidence and all

49466-3-II
27
inferences that can reasonably be drawn therefrom.” State v. Theroff, 25 Wn. App. 590, 593, 608
P.2d 1254 (1980). We do not review credibility determinations, and we defer to the trier of fact
on issues of conflicting testimony and the persuasiveness of the evidence. State v. Thomas, 150
Wn.2d 821, 874–75, 83 P.3d 970 (2004).
Sufficient evidence supported Jabs conviction for communicating with KK, a minor for
immoral purposes. The jury had to find that there was communication constituting an ongoing
course of conduct by Jabs with KK of a sexual nature. Viewing the evidence in the light most
favorable to the State, a rational trier of fact could have found Jabs was guilty beyond a
reasonable doubt.
C. Admission of Photos
Jabs challenges the trial court’s evidentiary rulings admitting photos of the children and of
Jabs’s home.9 He claims the photos were irrelevant to the charged crimes, had negligible probative
value, and were unduly prejudicial. Jabs also asserts he was tried on matters extraneous to the
charged offenses when the photos were admitted. We disagree.
We review a trial court’s admissibility of evidence determinations for an abuse of
discretion. State v. Cayetano–Jaimes, 190 Wn. App. 286, 295, 359 P.3d 919 (2015). A trial court
abuses its discretion when its evidentiary ruling is manifestly unreasonable or based on untenable
grounds. Cayetano–Jaimes, 190 Wn. App. at 295. “Allegations that a ruling violated the
defendant’s right to a fair trial does not change the standard of review.” State v. Dye, 178 Wn.2d
541, 548, 309 P.3d 1192, 1196 (2013).
9 Jabs never specifies which photos he is basing this assertion on.

49466-3-II
28
Here, Jabs moved to exclude all photos seized in the search of his house as irrelevant when
viewed in context and, in the alternative, as unduly prejudicial if admitted out of context. The
court denied the motion and concluded the State offered the photos either to show opportunity, or
to impeach the child victim’s hearsay statements about nudity in Jabs’s home. The court also
concluded “the photos [we]re relevant for a variety of purposes[,]” and that Jabs could offer photos
other than those proffered by the State for context. 6 RP at 932.
At trial, Baker testified about the photos depicting rooms in the home and children who
were partially clothed or naked. Baker testified that there were thousands of photos taken from
Jabs’s home, that the police reviewed all the photos, that the majority depicted normal family
activity, and that none were sexually explicit.
Additionally, the trial court granted Jabs’s motion to admit two full photo albums. The
trial court set aside an hour for the jury to review the photo albums so it could gain a clearer
understanding of the context from which the police selected photos of nude or partially nude young
girls. The judge also permitted Randall Karstetter, Jabs’s witness, to give testimony on the quantity
of photos reviewed by the police, and allowed him to opine on the nature of a sample of the photos.
Because the trial court did not abuse its discretion, Jabs’s argument fails.
D. Prosecutorial Misconduct
Jabs argues the prosecutor improperly offered personal opinions on the veracity of
witnesses and misled the jury by misstating the evidence during cross-examination and closing
argument. We disagree.
Prosecutorial misconduct is grounds for reversal if the defendant shows the prosecuting
attorney’s conduct was both “improper and prejudicial in the context of the entire record and the
circumstances at trial.” State v. Thorgerson, 172 Wn.2d 438, 442, 258 P.3d 43 (2011). Generally,

49466-3-II
29
a prosecutor’s improper comments are prejudicial only where “‘there is a substantial likelihood
[that] the instances of misconduct affected the jury’s verdict.’” Thorgerson, 172 Wn.2d at 442–
43 (quoting State v. Magers, 164 Wn.2d 174, 191, 189 P.3d 126 (2008)).
When the defendant fails to object to the challenged portions of the prosecutor’s argument,
he “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. The defendant must show that no curative instruction would have eliminated the
prejudicial effect, and “the misconduct resulted in prejudice that ‘had a substantial likelihood of
affecting the verdict.’” Emery, 174 Wn.2d at 761 (quoting Thorgerson, 172 Wn.2d at 455).
A prosecutor has wide latitude to comment on a witness’s credibility in closing argument.
State v. Stenson, 132 Wn.2d 668, 727, 940 P.2d 1239 (1997). The prosecutor also may argue
reasonable inferences from the evidence regarding the credibility of a witness. Thorgerson, 172
Wn.2d at 448. For example, a prosecutor may argue the jury should believe one witness over
another because one witness’s version of the events is more credible based on the evidence
presented. Thorgerson, 172 Wn.2d at 448. However, “[i]mproper vouching occurs when the
prosecutor expresses a personal belief in the veracity of a witness or indicates that evidence not
presented at trial supports the testimony of a witness.” Thorgerson, 172 Wn.2d at 443.
Here, Jabs did not object during the prosecutor’s closing argument. None of the challenged
statements during closing argument were flagrant or ill-intentioned, and the defendant fails to
make any showing that a curative instruction would not have eliminated any prejudicial effect.
Jabs’s prosecutorial misconduct challenge fails.

49466-3-II
30
E. Cumulative Error
Jabs argues that, cumulatively, effects of the errors at trial were so prejudicial that they
denied him his right to a fair trial. We disagree.
“Under the cumulative error doctrine, we may reverse a defendant’s conviction when the
combined effect of errors during trial effectively denied the defendant [his] right to a fair trial,
even if each error standing alone would be harmless.” State v. Venegas, 155 Wn. App. 507, 520,
228 P.3d 813 (2010). Cumulative error does not apply where the errors are few and have little or
no effect on the outcome of the trial. Venegas, 155 Wn. App. at 520.
Because the trial court did not err, we conclude that Jabs is not entitled to relief under the
cumulative error doctrine.
We affirm the convictions but remand to the trial court to strike the challenged sentencing
condition.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,
it is so ordered.
Melnick, J.
We concur:
Maxa, C.J.
Lee, J.