State Of Washington, Respondent V. John Thomas Tyler, Appellant

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 46426-8-II
Respondent,
v.
JOHN THOMAS TYLER, UNPUBLISHED OPINION
Appellant.
SUTTON, J. — John Thomas Tyler appeals his 11 convictions for first degree child rape,
two convictions for second degree child rape, and two convictions for first degree child
molestation. The three victims of Tyler’s crimes were his biological daughter and two step-
daughters,1 whom he allegedly abused from the time they were ages four or five to when the oldest
was 12 years old. Tyler argues that his convictions should be reversed and we should remand for
a new trial because (1) the State presented insufficient evidence to support three of the convictions
for first degree child rape and his conviction for first degree child molestation as to victim JAR,2
(2) the trial court impermissibly commented on the evidence, (3) the trial court admitted irrelevant
and unduly prejudicial evidence, (4) the prosecutor committed misconduct during closing
argument, and (5) the State filed a deficient information by not factually differentiating between
all of the charges. Tyler also argues that we should (6) remand to correct his judgment and sentence
1 All three victims testified that Tyler was either their mother’s ex-boyfriend or their father.
2 Counts II, IV, VI, and VIII.
Filed
Washington State
Court of Appeals
Division Two
July 19, 2016

No. 46426-8-II
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because the State did not present any evidence of his prior convictions and (7) that we should
remand for resentencing because the trial court did not consider whether he had the ability to pay
the discretionary legal financial obligations (LFOs).
We hold that (1) the State presented sufficient evidence to support the three convictions for
first degree child rape and the conviction for first degree child molestation as to JAR, (2) the trial
court impermissibly commented on the evidence by including the victims’ birthdates in the to-
convict jury instructions, but the error was harmless, (3) the trial court properly admitted evidence
of Tyler’s physical abuse of the victims, (4) the prosecutor engaged in several instances of
misconduct but the comments were not so flagrant and ill-intentioned that no limiting instruction
could have cured the error, (5) Tyler waived his ability to challenge the information for vagueness
on appeal, (6) the State failed to prove Tyler’s prior criminal history at sentencing, and (7) we
exercise our discretion to reach the merits of Tyler’s LFO challenge. We affirm Tyler’s
convictions, remand for resentencing under RCW 9.94A.530(2), and remand for the sentencing
court to make an individualized inquiry into Tyler’s ability to pay the discretionary LFOs as
required under RCW 10.01.160(3) and Blazina.3
3 State v. Blazina, 182 Wn.2d 827, 344 P.3d 680 (2015).

No. 46426-8-II
3
FACTS
I. AMENDED CHARGES
JAR, HMR, and EMK disclosed that Tyler had sexually abused them repeatedly for many
years.4 At the time of their disclosures, JAR was 13 years old, 4 months, HMR was 11 years old
and 11 months, and EMK was 9 years old. The State charged Tyler with 20 counts of child rape
and molestation, 5 of which were charged in the alternative. 5
As to JAR, the State charged Tyler with two counts of first degree child rape for the period
September 25, 1992, through January 31, 1995 (counts I and II), one count of first degree child
rape for the period January 1, 1995, through February 28, 1995 (count III), two counts of first
degree child rape for the period February 1, 1995, through September 24, 2000 (count IV and VI),
and one count of first degree child molestation for the period February 1, 1995 through September
24, 2000 (count VIII).6 For counts IV and VI, first degree child rape, the State charged Tyler in
the alternative with second degree child rape for the period September 25, 2000, and February 16,
4 We use the minor victims’ initials and redact their birthdates to protect their privacy. Gen. Order
2011-1 of Division II, In re the Use of Initials of Pseudonyms for Child Witnesses in Sex Crime
Cases (Wash. Ct. App.), available at http://www.courts.wa.gov/appellate_trial_courts/.
5 An alternative charge is not a lesser included offense but allows the jury to consider the most
serious charge before considering the alternative charge. State v. Peterson, 94 Wn. App. 1, 6, 966
P.2d 391 (1998).
6 Counts I and II were based on allegations that Tyler had intercourse with JAR when she was five
years old, in kindergarten, and lived in an apartment. Count IV was based on sexual intercourse
that Tyler had with JAR one night when her mother worked at the fair. Count VI was based on
one incident of anal sex by Tyler with JAR and count VIII was based on a separate incident where
Tyler put JAR’s hand on his penis, and both counts alleged that JAR was under 12 years old
because she turned 13 on September 25, 2000.

No. 46426-8-II
4
2002 (counts V and VII). For count VIII, first degree child molestation, the State charged Tyler
in the alternative with second degree child molestation for the period September 24, 2000, through
February 16, 2002 (count IX).7 As to JAR, the State also charged Tyler with two additional counts
of first degree child rape (counts XI and XIII) or in the alternative, second degree child rape (counts
XII and XIV) and one additional count of second degree child rape (count X).
As to HMR, the State charged Tyler with four counts of first degree child rape (counts XV,
XVI, XVII, and XVIII). As to EMK, the State charged Tyler with one count of first degree child
molestation (count XIX) and one count of first degree child rape (count XX).
The structure of each of the State’ charges in the information was identical, with a date
range that the alleged criminal act occurred, the victim’s name and birthdate, and the victim’s age
compared to Tyler’s age. For example, count I alleged in relevant part as follows:
That he, [Tyler], in the County of Clark, State of Washington between
September 25, 1992 and January 31, 1995, on an occasion separate from that
charged in Counts 2 and 3, did have sexual intercourse with another, to-wit: J.A.R.
(female, DOB: []), who is less than twelve years old and not married to the
perpetrator and the perpetrator is at least twenty-four months older than the victim,
in violation of RCW 9A.44.073, contrary to the statutes in such cases made and
provided, and against the peace and dignity of the State of Washington.
Clerk’s Papers (CP) at 15. The charging language for several counts was identical, except that
each count stated that it was based “on an occasion separate from that charged” in the other counts.
E.g., CP at 15-17 (counts I, II, IV, and VI). Tyler did not object to the vagueness of the charging
language below or request a bill of particulars as to the specific facts supporting each count.
7 The dates pertaining to the remaining 11 charges as to JAR are not at issue in this appeal.

No. 46426-8-II
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II. TRIAL TESTIMONY
Over Tyler’s objections, the trial court ruled that evidence of Tyler’s physical abuse of the
victims would be admissible to explain the delay in the disclosure of the sexual abuse. Each victim
testified that Tyler had sexual intercourse and sexual contact with them on multiple occasions. All
three victims and JR, another child who lived in the home, testified that Tyler either spanked or
hit them and that they were afraid of Tyler.
Janice Blakemore, a sexual assault nurse who interviewed JAR, testified that JAR
“revealed a longstanding pattern of sexual abuse” by Tyler that occurred “every week or two.”
3 Verbatim Report of Proceedings (VRP) at 356-57. JAR made similar statements to Dr. John
Stirling, a medical doctor who interviewed and examined JAR, HMR, and EMK. Stirling testified
that HMR revealed Tyler had sexually abused her since she was five or six years old and that EMK
revealed Tyler’s abuse of her started when she was in kindergarten or the year before. HMR also
told Stirling that she was afraid Tyler would “beat her up” if she told anyone what was happening.
3 VRP at 380.
During the time period charged in counts I and II, between September 25, 1992 and January
31, 1995, JAR was between four and six years old. JAR’s mother, Kimberly Kohlschmidt, testified
that she and her children lived in an apartment when JAR was five, but moved to a house in
February 1995. JAR testified that when she was five years old and in kindergarten, she lived in
an apartment. While she lived there, Tyler started to touch her in a way that made her

No. 46426-8-II
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uncomfortable by putting his penis in her vagina.8 JAR also testified to several other incidents of
sexual contact between September 25, 1992 and January 31, 1995. JAR testified as to the general
frequency that “it” happened more than one time during this time period.
Dr. Stirling testified that JAR disclosed that Tyler sexually abused her at least every other
week since she was in kindergarten. Blakemore testified that JAR disclosed that Tyler performed
oral, vaginal, or anal sex on her every week or two.
At the time of trial, JAR testified that she was 13 years old, that her birthday was later that
year, and that she was entering eighth grade. The State argued that JAR was less than 12 years old
during the time periods charged in counts IV and V (September 25, 2000, and February 16, 2002).
JAR testified that Tyler had sexual intercourse with her “a lot.” 2 VRP at 140. Her testimony
about this incident followed her affirmative answers that Tyler had sexual intercourse with her in
her mother’s room when she was 9 and 11 years old, and that she remembered it happening one
time when her mother was working at the fair. She also testified that “last year,” in seventh grade
(after September 25, 2000), he told her “to be bare-butt naked” in her mother’s or Tyler’s bedroom,
and then she should take her clothes off. 2 VRP at 136-37. When asked what he would do, she
testified that “[h]e would put his penis in my vagina.” 2 VRP 138. She confirmed that this
happened when her mother worked at the fair at “nighttime.” 2 VRP at 138. JAR also testified
that Tyler told her she should find a boyfriend so that if he impregnated her they could blame it on
the boyfriend.
8 JAR testified that he touched her “bottom part” referring to it as “[a] pussy” or “vagina;” he put
his “penis in there;” he told her to go somewhere, pull her pants down, and get on the bed. 2 VRP
at 123-25.

No. 46426-8-II
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Kohlschmidt also testified that she worked “a couple of the fairs” during the summer that
JAR was in eighth grade. 2 VRP at 263. The State asked JAR if she remembered Tyler touching
her “last year” when she was in the seventh grade and she agreed. 2 VRP at 136-137. JAR also
testified that Tyler sexually abused her one night when her mom was working at a fair and
described a specific incident that had been painful. JAR was unsure how old she was when Tyler
made her place her hands on his penis.
JAR also testified to an incident of anal sex, but was not sure how old she was or what
grade she was in at school. But she testified that the act took place in her room, during the
afternoon, and when Tyler put the clear stuff on his penis from a tube, that it hurt really badly, she
cried, and he told her to shut up. When asked how often this happened, she testified that this
happened multiple times, but it did not happen “that much.” 9 2 VRP at 140. Blakemore testified
that Tyler “used baby oil, especially during rectal penetration.” 3 VRP at 357.
Tyler moved to dismiss counts I, II, III, VIII, and XI for lack of evidence as to the dates
JAR testified that she was abused. The trial court denied Tyler’s motion.
III. JURY INSTRUCTIONS
The trial court instructed the jury that “[t]he attorneys’ remarks, statements[,] and
arguments are intended to help you understand the evidence and apply the law. They are not
evidence. Disregard any remark, statement[,] or argument that is not supported by the evidence of
9 “[State]: How many times did he do that to you? [JAR]: Not that much. [State]: How come?
[JAR]: Because it hurts.” 2 VRP at 140.

No. 46426-8-II
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the law as stated by the court.”10 CP at 24. The trial court also instructed the jury to disregard any
apparent comment on the evidence by the trial court. Each to-convict jury instruction included the
birthdate of the victim to which the instruction for the particular charge pertained.
IV. CLOSING ARGUMENT, DELIBERATIONS, AND THE JURY VERDICT
The State opened its closing argument with the following statements:
You’ve just learned firsthand about one of the most horrifying experiences any
child could endure . . . . But you, as the jury, are fortunate, and the reason for that
is because you can find [Tyler] guilty. You can hold him accountable for torturing
these little girls. You get to take the evidence, you get to apply it to the facts of the
case, and apply that to the information, to every element, and find [Tyler] guilty of
raping and molesting [JAR, HMR, and EMK].
4 VRP at 486-87. The State then described the elements of each charged crime and the evidence
supporting each of them. The State argued that specific incidents to which JAR testified supported
each charge as to her, but also that JAR’s generic testimony that the abuse happened over many
years supported the charges and supported the fact that she was under 12 years of age. When
discussing the evidence supporting count VI, the State recounted JAR’s testimony about a specific
incident when her mother was working at the fair at “nighttime” and that JAR testified that “[Tyler]
would put his penis in [her vagina].” 4 VRP at 503-04.
After reviewing the counts and supporting evidence pertaining to JAR, the State recounted
JAR’s testimony that Tyler told her she should find a boyfriend so that if he impregnated her they
could blame it on the boyfriend. The State characterized this statement as “calculating” behavior.
The State also said that JAR testified that Tyler abused her every week, and the State then said,
10 At the beginning of trial, the trial court orally instructed the jury that the attorneys’ remarks,
statements, and arguments were not evidence.

No. 46426-8-II
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“[T]hese girls were abused whenever [Tyler] felt like it. I mean, he had his own little harem there
in the house.” 4 VRP at 524.
The State argued that the victims’ fear of Tyler, which all three testified about, explained
why they did not report the sexual abuse, and why they complied with his requests. The State
exclaimed, “Thank God there aren’t any more [victims] that we know of” and characterized one
of the victims as Tyler’s “own flesh-and-blood.” 4 VRP at 540.
The State also argued that for count IV, if the jury was not sure that JAR was under 12
years of age, then they could convict on the alternative lesser included charge in count V, child
rape in the second degree, because the only difference between the counts was that Tyler told JAR
to go in to the bedroom bare-butt naked after September 25, 2000. Tyler did not object to any
portion of the State’s closing argument.
During deliberations, the jury asked the trial court to clarify as to count IV:
Please clarify whether Count 4 pertains to a specific incident or just an additional
incident within the timeframe given. Also, if we can’t all agree that she is under 12
in Count 4—do we automatically vote for Count 5 or do we all have to agree she is
12 or older?
CP at 67. The trial court responded that the jury should “[r]ead carefully instruction #16 and
instruction #3111 as pertains [sic] to counts 4 & count 5.” CP 67.
The jury found Tyler guilty as charged with one exception. The jury did not find Tyler
guilty of count XIII, which alleged that Tyler committed first degree child rape of JAR between
11 Instruction no. 16 was the to-convict instruction for count IV and the alternative lesser included
count V. Instruction no. 31 instructs the jury on how to complete the verdict forms and defines
the lesser-included alternative charges.

No. 46426-8-II
10
February 1, 1995 and September 24, 2000. Instead, the jury found Tyler guilty of count XIV,
second degree child rape for the time period September 25, 2000, through February 16, 2002.
V. SENTENCING AND TIMELY APPEAL
The State did not present evidence of Tyler’s prior criminal history at sentencing or at the
presentation hearing to enter the judgment and sentence. However, the judgment and sentence
signed by the sentencing court listed five prior convictions in Tyler’s criminal history.12 Tyler did
not object.
The trial court also imposed mandatory and discretionary legal financial obligations. The
trial court did not inquire on the record regarding Tyler’s current or future ability to pay the
discretionary LFOs. Tyler did not object.
Tyler was convicted and sentenced in October 2002. At sentencing, the court advised him
of his right to appeal and at his request appointed him an appellate attorney. However, Tyler’s
notice of appeal was not filed and he was not assigned appellate counsel. Tyler brought the issue
to the trial court’s attention in July 2011. In June 2014, the Clark County Superior Court entered
an order allowing Tyler to appeal his case, finding him indigent, and appointing him appellate
counsel.
ANALYSIS
Tyler argues that the State presented insufficient evidence of sexual intercourse as to count
II, first degree child rape of JAR during the time period of September 25, 1992, through January
31, 1995 and did not distinguish the act of sexual intercourse charged in count I for the same time
12 Tyler had five prior convictions for burglary, theft, attempted robbery, escape, and forgery.

No. 46426-8-II
11
period. Tyler also argues that the State presented insufficient evidence that JAR was younger than
12 years old during the commission of count IV, first degree child rape for the period between
February 1, 1995, through September 24, 2000, because JAR “testified that the incident had
happened ‘last year,’ which was after her twelfth birthday.” Br. of App. at 11. Tyler also argues
that the State presented insufficient evidence related to count VI, first degree child rape for the
period between February 1, 1995, through September 24, 2000, and count VIII, first degree child
molestation during the same period as count VI, because JAR could not remember how old she
was when the incidents occurred. We disagree and hold that sufficient evidence supports the
convictions for counts II, IV, VI, and VIII.
I. SUFFICIENCY OF EVIDENCE
A. LEGAL PRINCIPLES
Due process requires the State to prove every element of the charged crimes beyond a
reasonable doubt. State v. Kalebaugh, 183 Wn.2d 578, 584, 355 P.3d 253 (2015). We review
sufficiency of evidence claims for whether, when viewing the evidence in the light most favorable
to the State, any rational trier of fact could have found the essential elements of the charged crime
beyond a reasonable doubt. State v. Homan, 181 Wn.2d 102, 105, 330 P.3d 182 (2014). In a
challenge to the sufficiency of the evidence, the defendant admits the truth of the State’s evidence
and all reasonable inferences that can be drawn from it. Homan, 181 Wn.2d at 106.
To convict a defendant of first degree child rape, the jury must find, beyond a reasonable
doubt, that the defendant had “sexual intercourse with another who is less than twelve years old
and not married to the [defendant] and the [defendant] is at least twenty-four months older than
the victim.” RCW 9A.44.073. Sexual intercourse “occurs upon any penetration, however slight”

No. 46426-8-II
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of the “vagina or anus” and also includes “sexual contact between persons involving the sex organs
of one person and the mouth or anus of another.” RCW 9A.44.010(1).
To convict a defendant of first degree child molestation, the jury must find, beyond a
reasonable doubt, that the defendant had “or knowingly cause[d] another person under the age of
eighteen to have, sexual contact with another who is less than twelve years old and not married to
the [defendant] and the [defendant] is at least thirty-six months older than the victim.”
RCW 9A.44.083. Sexual contact “means any touching of the sexual or other intimate parts of a
person done for the purpose of gratifying sexual desire of either party or a third party.”
RCW 9A.44.010(2).
In a case involving a resident child molester, the “victim’s generic testimony can be used
to support multiple counts.” State v. Jensen, 125 Wn. App. 319, 327, 104 P.3d 717 (2005).
Generic testimony is, for example, a victim’s estimation that the abuse occurred “‘once a month
for three years,’” which “‘outlines a series of specific, albeit undifferentiated, incidents each of
which amounts to a separate offense, and each of which could support a separate criminal
sanction.’” State v. Hayes, 81 Wn. App. 425, 437, 914 P.2d 788 (1996) (internal quotation marks
omitted) (quoting People v. Jones, 51 Cal. 3d 34, 792 P.2d 643 (1990)). For generic testimony to
support multiple counts of sexual abuse, the victim must be able to describe:
(1) the kind of act or acts with sufficient specificity for the jury to determine which
offense, if any, has been committed; (2) the number of acts committed with
sufficient certainty to support each count alleged by the prosecution; and (3) the
general time period in which the acts occurred.
Jensen, 125 Wn. App. at 327.

No. 46426-8-II
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B. COUNT II—FIRST DEGREE CHILD RAPE OF JAR
As to count II, Tyler first argues that JAR testified only that “it” happened more than once
without specifying what “it” meant. JAR was between four and six years old during the time
period September 25, 1992 and January 31, 1995 stated in counts I and II for first degree child
rape between. Kohlschmidt testified that she and her children lived in an apartment when JAR
was five, but moved to a house in February 1995. JAR testified that she lived in an apartment for
half of kindergarten and that, during that time period, Tyler put his penis in her vagina. Such
conduct satisfies the definition of sexual intercourse and JAR described this conduct as “it” several
questions later. RCW 9A.44.010(1) (requiring any penetration). Thus, Tyler is incorrect that the
State presented insufficient evidence for the jury to find that sexual intercourse occurred as to
count II.
Tyler next argues that JAR’s testimony did not specify that “it” happened more than once
at the apartment so as to distinguish between conduct supporting count I, first degree child rape
during the time period September 25, 1992, through January 31, 1995, and conduct supporting
count II, first degree child rape for the same time period.
Sufficient evidence supports count II. JAR testified that Tyler touched her in a way that
made her uncomfortable by putting his penis in her vagina while she lived in the apartment. Later,
JAR stated that she remembered “it” happening “more than once” while she lived in the apartment.
2 VRP at 125. This generic testimony satisfies the three part test in Jensen to support a conviction
for count II. Jensen, 125 Wn. App. at 327.
First, JAR’s testimony specifically identified the offense that had been committed when,
she testified that Tyler would touch her by putting his penis in her vagina and then stated that “it”

No. 46426-8-II
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happened more than one time. Second, JAR’s testimony sufficiently indicated the number of acts
of vaginal and anal intercourse while she lived at the apartment. Lastly, JAR described the general
time period in which these acts occurred by stating that it began when she was five years old and
attended Head Start and lived in the apartment, and that she lived there until the middle of
kindergarten. Thus, a rational jury could have found that the State proved every essential element
of count II, first degree child rape, during the period of September 25, 1992, through January 31,
1995.
C. FIRST DEGREE CHILD RAPE OF JAR (COUNT IV)
As to count IV, JAR testified that she was 13 at the time of trial, August 20, 2002, and that
her birthday would be later that year. She was entering eighth grade that year. On September 24,
2000, JAR was less than 12 years old. JAR testified that Tyler had sexual intercourse with her “a
lot.” 2 VRP at 130.
JAR’s testimony about this incident followed her affirmative answers that Tyler had sexual
intercourse with her in her mother’s room when she was 9 and 11 years old, and that she
remembered it happening one time when her mother was working at the fair. Kohlschmidt testified
that she worked “a couple of the fairs” during the summer. 2 VRP at 263. Tyler correctly states
that the State asked JAR if she remembered Tyler touching her “last year” when she was in the
seventh grade and she agreed. 2 VRP at 136. He is also correct that JAR testified about an incident
that occurred when her mom was working at a fair, and the State argued that this incident, in
addition to JAR’s general testimony, supported a conviction for count IV. Taken in the light most
favorable to the State, a rational jury could have found that JAR was less than 12 years old as to
count IV.

No. 46426-8-II
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D. FIRST DEGREE CHILD RAPE OF JAR (COUNTS VI & VIII)
Like the evidence supporting count II, JAR’s generic testimony as to counts VI and VIII
satisfy the Jensen test. Jensen, 125 Wn. App. at 327. JAR testified to several acts of anal sex and
her language indicated that Tyler did this on more than one occasion.13 JAR also testified to several
other incidents of sexual contact. JAR testified as to the general frequency that these things
happened as well as the time frame. Furthermore, Dr. Stirling testified that JAR disclosed to him
that Tyler had been sexually abusing her since she was in kindergarten. Thus, taken in the light
most favorable to the State, a rational jury could find beyond a reasonable doubt that JAR was less
than 12 years old at the commission of the crimes charged in counts VI and VIII. Tyler’s claims
of insufficient evidence fail.
II. TRIAL COURT’S COMMENT ON THE EVIDENCE
Tyler argues that the trial court impermissibly commented on the evidence when it included
each of the victims’ birthdates in the to-convict jury instructions. The State concedes this error,
but argues that the error was not prejudicial. We hold that Tyler was not prejudiced by the trial
court’s impermissible comment.
A. STANDARD OF REVIEW
We review challenged jury instructions de novo in the context of the jury instructions as a
whole. State v. Jackman, 156 Wn.2d 736, 743, 132 P.3d 136 (2006). A trial court may not instruct
the jury on an issue of fact or comment on facts. Wash. Const. art. IV, § 16. A jury instruction
that references a victim’s birthdate, when the victim’s age is an element of the crime, is an
13 “[State]: How many times did he do that to you? [JAR]: Not that much. [State]: How come?
[JAR]: Because it hurts.” 2 VRP at 140.

No. 46426-8-II
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impermissible judicial comment on the evidence. State v. Zimmerman, 135 Wn. App. 970, 973,
146 P.3d 1224 (2006) (citing Jackman, 156 Wn.2d at 744).
We presume that a trial court’s comment on the evidence is prejudicial. Zimmerman,
135 Wn. App. at 973. The State bears the burden to show that the defendant was not prejudiced
by an improper comment on the evidence, “unless the record affirmatively shows that no prejudice
occurred.” Zimmerman, 135 Wn. App. at 973-974 (holding that, though improper, the trial court’s
inclusion of the victim’s birthdate in the to-convict jury instruction was not prejudicial).
B. TO-CONVICT JURY INSTRUCTION
For each charge of first degree child rape and first degree child molestation, the State was
required to prove beyond a reasonable doubt the victim’s age at the time of the offense as an
element of the crimes. See RCW 9A.44.073 and 9A.44.083. The to-convict jury instruction for
each count included the birthdate of the victim. Thus, under Jackman, the to-convict instructions
constituted the trial court’s improper comment on the evidence. However, the record shows that
Tyler was not prejudiced by the improper comment.
Tyler relies on Jackman to argue that he was prejudiced because the victims’ ages at the
time of each of the offenses were disputed. In Jackman, the court held that the to-convict
instructions with the victims’ birthdates were prejudicial because the defendant testified that he
did “everything he could” to determine the victims’ ages, and it was conceivable that the jury could
have found that the victims were not minors at the time of the charged crime if it were not for the
trial court’s improper comments in the court’s instructions. Jackman, 156 Wn.2d at 745.
Conversely, in Zimmerman, this court reasoned that the reference to victim’s birth date in
jury instruction was not prejudicial because the record demonstrated that no jury could have

No. 46426-8-II
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concluded that the victim was over the age of 12 at the time of the offense. Zimmerman, 135 Wn.
App. at 975. “Critical” to that conclusion was the fact that Zimmerman was the victim’s biological
father and that “he knew and never disputed knowing her age.” Zimmerman, 135 Wn. App.
at 975. In addition, the victim and the victim’s mother testified, as well as defense witnesses, about
the victim’s birthdate. Zimmerman, 135 Wn. App. at 975. Thus, the trial court’s comment was
harmless. Zimmerman, 135 Wn. App. at 975-76.
Here, JAR, HMR, and EMK testified as to their birthdates. EMK testified that Tyler was
her biological father and JAR and HMR testified that Tyler was their mother’s ex-boyfriend who
had lived with them for many years. Although Tyler disputed the sufficiency of the State’s
evidence relating to JAR’s age for the time period February 1, 1995 through September 24, 2000
as charged in counts IV, VI and VIII, he did not dispute the ages of HMR or EMK at the time of
the charged crimes relating to them, nor did he dispute JAR’s age at the time of the remaining
charges for first and second degree child rape (counts I, II, III, XI, XIII, X). Tyler never disputed
the basic fact of the victims’ birthdates. Thus, like Zimmerman, we hold that the trial court’s
to-convict instruction containing each victim’s birthdate was not prejudicial.
III. EVIDENCE OF TYLER’S PHYSICAL ABUSE OF THE VICTIMS
Tyler argues that the trial court erred by admitting evidence that he physically abused the
victims because it was irrelevant and unduly prejudicial under ER 403 and 404(b). We disagree.
A. STANDARD OF REVIEW
We review the trial court’s interpretation of ER 404(b) de novo as a matter of law. State
v. Fisher, 165 Wn.2d 727, 745, 202 P.3d 937 (2009). If the trial court interprets the rule correctly,
we review the trial court’s ruling to admit evidence of misconduct for abuse of discretion. Fisher,

No. 46426-8-II
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165 Wn.2d at 745. A trial court abuses its discretion if admitting the evidence was contrary to
law, or when the decision was manifestly unreasonable or based on untenable grounds or reasons.
State v. Quaale, 182 Wn.2d 191, 196-97, 340 P.3d 213 (2014). We may affirm the trial court’s
evidentiary rulings on any proper basis. State v. Gresham, 173 Wn.2d 405, 419, 269 P.3d 207
(2012).
B. EVIDENCE OF TYLER’S PHYSICAL ABUSE
ER 403 provides that relevant evidence may be excluded “if its probative value is
substantially outweighed by the danger of unfair prejudice.” A danger of unfair prejudice exists
“‘[w]hen evidence is likely to stimulate an emotional response rather than a rational decision.’”
State v. Beadle, 173 Wn.2d 97, 120, 265 P.3d 863 (2011) (quoting State v. Powell, 126 Wn. 2d
244, 264, 893 P.2d 615 (1995)). ER 404 generally prohibits admission of evidence of a person’s
character for the purpose of showing propensity to act according to that character. “Evidence of
other crimes, wrongs, or acts . . . . may, however, be admissible for other purposes.” ER 404(b).
Before the trial court may properly admit evidence of prior misconduct under ER 404(b),
it must “(1) find by a preponderance of the evidence [that] the misconduct actually occurred,
(2) identify the purpose of admitting the evidence, (3) determine the relevance of the evidence to
prove an element of the crime, and (4) weigh the probative value against the prejudicial effect of
the evidence.” Fisher, 165 Wn.2d at 745. The third and fourth elements of this rule ensure that
admission of the evidence does not violate ER 403. Gresham, 173 Wn.2d at 421. The party
seeking to admit the evidence in question has the burden to prove the first three prongs of the test.
Gresham, 173 Wn.2d at 421.

No. 46426-8-II
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Evidence of prior misconduct is presumptively inadmissible. Gresham, 173 Wn.2d at 421.
However, in sexual abuse cases, Washington courts allow admission of evidence of misconduct
“to prove the alleged victim’s state of mind,” and to explain the victim’s delay in reporting the
sexual abuse. Fisher, 165 Wn.2d at 744-45.
Here, the State moved to admit evidence of Tyler’s physical abuse for the purpose of
explaining the victims’ delayed reporting under ER 404(b). The trial court granted the motion and
explained:
[T]his case has got nineteen counts of child rape in various degrees or molestation
in various degrees. I think the jury is going to be impacted by simply the statement
of what the charges are and I think that the—when you talk about delayed
disclosure to explain those things, I think I’m going to permit some of that to come
in because it doesn’t seem like it’s going to inflame [the jury] any worse than the
case itself will.
1 VRP at 19-20. Tyler argues that the trial court abused its discretion in admitting evidence that
Tyler had physically abused the victims because the State did not present evidence linking the
abuse to delayed reporting, and the trial court did not give a limiting instruction or conduct an
explicit ER 404(b) inquiry on the record. Tyler is correct that the trial court did not conduct an
explicit analysis of the four-factor ER 404(b) test on the record. He is also correct that the trial
court did not give the jury a limiting instruction, but Tyler waives this argument because he did
not request one.14
The record demonstrates that the trial court properly admitted evidence of Tyler’s physical
abuse of the victims because Tyler’s threats that he would “beat [them] up if they told anyone”
14 Generally, an issue cannot be raised for the first time on appeal unless it is a "manifest error
affecting a constitutional right." RAP 2.5(a)(3). To establish manifest error, the appellant must
show actual prejudice. State v. Munguia, 107 Wn. App. 328, 340, 26 P.3d 1017 (2001).

No. 46426-8-II
20
and each victim’s testimony that they were afraid of Tyler explained why the victims did not report
the sexual abuse for so many years, and showed that the sexual abuse actually occurred. 3 VRP at
380; See Fisher, 165 Wn.2d at 745-46; see also State v. Wilson, 60 Wn. App. 887, 890, 808 P.2d
754 (1991) (in sexual abuse of a minor case, evidence of physical assaults was properly admitted
under ER 404(b) to explain delay in reporting the abuse and to rebut inference that the sexual abuse
did not occur). All three victims testified that Tyler would hit or spank them and that they were
afraid of him. In her closing argument, the prosecutor tied the victims’ fear of Tyler to the victims
delayed disclosure of the sexual abuse and why the victims complied with Tyler’s requests. Thus,
the trial court did not abuse its discretion when it admitted evidence of Tyler’s physical abuse
because the State linked that evidence to the victims’ delay in disclosure of the sexual abuse and
Tyler did not request a limiting instruction.
C. HARMLESS ERROR
The State argues that even if the trial court improperly admitted evidence of Tyler’s
physical abuse, there was overwhelming evidence of Tyler’s guilt and no reasonable possibility
exists that excluding it would have changed the outcome. We agree.
An erroneous evidentiary ruling that is not of constitutional magnitude is not prejudicial
unless, within reasonable probabilities, the trial’s outcome would have been different had the error
not occurred. State v. Brockob, 159 Wn.2d 311, 351, 150 P.3d 59 (2006). An evidentiary ruling
is harmless error if “‘the evidence is of minor significance’” compared to the “‘overwhelming
evidence [of guilt] as a whole.’” Brockob, 159 Wn.2d at 351 (internal quotation marks omitted)
(quoting State v. Bourgeois, 133 Wn. 2d 389, 403, 945 P.2d 1120 (1997)).

No. 46426-8-II
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JAR, HMR, and EMK each testified that Tyler had sexual intercourse and sexual contact
with them on more than one occasion. Their testimonies included graphic and detailed descriptions
of Tyler’s actions over a period of eight years. They described specific incidents and generic
testimony about its frequency. Two medical professionals, who interviewed and physically
examined the victims, testified that the victims revealed Tyler’s long pattern of vaginal, anal, and
oral sexual intercourse over many years since each victim was four or five years old; Dr. Stirling
testified about the physical evidence on JAR’s and EMK’s bodies that evidenced sexual
intercourse had occurred at least three years prior to trial. There is no reasonable probability that
the outcome of the trial would have been different had the trial court not admitted this evidence.
IV. PROSECUTORIAL MISCONDUCT
Tyler argues that the prosecutor committed misconduct several times during closing
argument. We agree with Tyler that some of the prosecutor’s comments were improper, but
disagree that they were so prejudicial that no limiting instruction could have cured the error.
A. STANDARD OF REVIEW
The U.S. Constitution and the Washington State Constitution grant citizens the right to a
fair trial. U.S. Const. amend. IV, VI; Const. art. I § 22; Pers. Restraint of Glasmann, 175 Wn.2d
696, 703, 286 P.3d 673 (2012). Prosecutorial misconduct jeopardizes that right. Glasmann, 175
Wn.2d at 703-04. A defendant claiming prosecutorial misconduct must show both improper
conduct and resulting prejudice. Fisher, 165 Wn.2d at 747. Prejudice exists when there is a
“‘substantial likelihood [that] the misconduct affected the jury’s verdict.’” State v. McKenzie, 157
Wn.2d 44, 52, 134 P.3d 221 (2006) (quoting State v. Brown, 132 Wn. 2d 529, 561, 940 P.2d 546
(1997)). Because Tyler did not object to the prosecutor’s allegedly improper conduct, we must

No. 46426-8-II
22
determine whether the prosecutor’s misconduct was “so flagrant and ill-intentioned” that it caused
an “enduring and resulting prejudice” incurable by a jury instruction. State v. Stenson, 132 Wn.2d
668, 719, 940 P.2d 1239 (1997).
Under this heightened standard of review, Tyler must show that “(1) ‘no curative
instruction would have obviated any prejudicial effect on the jury and (2) the misconduct resulted
in prejudice that ‘had a substantial likelihood of affecting the jury verdict.’” State v. Emery,
174 Wn.2d 741, 761, 278 P.3d 653 (2012) (quoting State v. Thorgerson, 172 Wn.2d 438, 455, 258
P.3d 43 (2011)). In analyzing a prosecutorial misconduct claim, we “focus less on whether the
prosecutor’s misconduct was flagrant or ill-intentioned and more on whether the resulting
prejudice could have been cured.” Emery, 174 Wn.2d at 762. “‘The criterion always is, has such
a feeling of prejudice been engendered or located in the minds of the jury as to prevent a
[defendant] from having a fair trial?’” Emery, 174 Wn.2d at 762 (alteration in original) (quoting
Slattery v. City of Seattle, 169 Wash. 144, 148, 13 P.2d 464 (1932).
B. STATE’S CLOSING ARGUMENT
Tyler claims several instances of the State’s closing argument amounted to improper
prosecutorial misconduct. First, Tyler argues that the prosecutor referenced facts not in the record
by arguing that Tyler physically abused the victims to gain their compliance and that he was
“calculating.” Second, Tyler argues that the prosecutor improperly appealed to the jury’s passion
and prejudice by saying the jury was “fortunate” to be able to convict Tyler, expressing thanks that
there were no more known victims, characterizing the victims’ experience as horrifying, and by
emphasizing legally irrelevant evidence, such as the physical pain JAR testified about and
characterizing the victims as Tyler’s “harem.” Br. of App. at 23-24. The State concedes that the

No. 46426-8-II
23
prosecutor’s statement that the jury was “fortunate,” its reference to the victims as Tyler’s “harem,”
and its expression of thanks that there were no more known victims were improper.
A prosecutor’s argument that is unsupported by the evidence is improper. Pers. Restraint
of Yates, 177 Wn.2d 1, 58, 296 P.3d 872 (2013). However, a prosecutor has “‘wide latitude’” in
its closing argument and may draw reasonable inferences from the evidence admitted at trial.
Yates, 177 Wn.2d at 58 (internal quotation marks omitted) (quoting Fisher, 165 Wn.2d at 747). A
prosecutor may reference the nature of the crime and its effect on the victims. State v. Borboa,
157 Wn.2d 108, 123, 135 P.3d 469 (2006) (prosecutor’s comment that the crime was horrible and
referencing witnesses’ emotional reactions not improper or prejudicial). On the other hand, a
prosecutor may not appeal to the jury’s passion and prejudice or encourage the jury to base its
verdict on the improper argument, rather than the properly admitted evidence. Glasmann,
175 Wn.2d at 711. We review the prosecutor’s conduct within the full context of closing argument.
Yates, 177 Wn.2d at 58.
Here, several of the prosecutor’s statements that Tyler now claims were misconduct were
not improper because the comment recounted, or was a reasonable inference from, the evidence at
trial or referenced the nature of Tyler’s crimes. The argument that Tyler used physical abuse to
gain compliance from the victims was based on the evidence presented at trial. All three victims
and JR testified that Tyler either hit or spanked them and that they were afraid of Tyler. HMR told
Stirling that she was afraid Tyler would physically harm her if she told anyone what was happening
to her. Likewise, JAR testified about the physical pain of Tyler’s conduct. Thus, the portion of
the State’s closing argument referencing this evidence was not improper.

No. 46426-8-II
24
Additionally, the prosecutor’s comment during closing argument that Tyler was
“calculating” was a reasonable inference from the evidence and a characterization of the nature of
Tyler’s conduct. The State characterized Tyler as “calculating” after recounting JAR’s testimony
that Tyler told her that she needed to get a boyfriend so that if Tyler ever impregnated her he would
be able to “blame it on [the boyfriend].” 2 VRP at 150. Likewise, the prosecutor’s characterization
of these acts as a horrifying experience for a child was a reasonable characterization of the nature
of the crime. See Borboa, 157 Wn.2d at 123 (holding the prosecutor’s description of the charges
as “horrible” in his closing statement was not improper). Thus, these comments did not constitute
improper prosecutorial argument.
The State concedes that the prosecutor’s statement that the jury was “fortunate,” its
reference to the victims as Tyler’s “harem,” and its expression of thanks that there were no more
known victims were improper. However, these comments were not so flagrant and ill-intentioned
that no jury instruction could have cured the error.
Given the context of the prosecutor’s closing argument, the jury’s instruction that the
attorneys’ remarks were not evidence, and the overwhelming evidence of Tyler’s guilt, we cannot
say that these comments created such a feeling of prejudice against Tyler that he was denied a fair
trial or that the remarks were incurable. Had Tyler objected and the trial court given the jury a
limiting instruction to not consider these improper remarks, any prejudice would have been

No. 46426-8-II
25
obviated. Therefore, we hold that the prosecutor’s closing argument did not constitute incurable
prosecutorial misconduct that warrants reversal for a new trial.15
V. SUFFICIENT CHARGING DOCUMENT
Tyler argues that the State’s information was deficient because it did not differentiate
between all of the charges by including relevant facts for each charge. We decline to address the
merits of this issue because Tyler argues only that the information was vague and he did not request
a bill of particulars below under CrR 2.1(c).16
A charging document that states the essential elements of a crime, but is vague on some
other significant matter, may be corrected under a bill of particulars. State v. Leach, 113 Wn.2d
679, 687, 782 P.2d 552 (1989). “The function of a bill of particulars is ‘to amplify or clarify
particular matters considered essential to the defense.’” State v. Allen, 116 Wn. App. 454, 460,
66 P.3d 653 (2003) (quoting State v. Noltie, 116 Wn.2d 831, 845, 808 P.2d 190 (1991)). “A
defendant may not challenge a charging document for vagueness on appeal” if he or she did not
request a bill of particulars. Leach, 113 Wn.2d at 687 (internal quotation marks omitted).
Here, Tyler does not allege that the State’s information omitted essential elements of any
of the charged crimes. Rather, he argues that the information failed to include “the facts necessary”
to differentiate between the charges. See Br. of Appellant at 26, 28. In other words, he argues that
15 Tyler argues that the cumulative effect of instances of misconduct requires reversal. Because
the misconduct was not so flagrant and ill-intentioned that no jury instruction could have cured the
error, we need not consider this argument.
16 CrR 2.1(c) provides that the “court may direct the filing of a bill of particulars. A motion for a
bill of particulars may be made before arraignment or within 10 days after arraignment or at such
later time as the court may permit.”

No. 46426-8-II
26
the information does not “describe the facts with great specificity.” State v. Winings, 126 Wn.
App. 75, 85, 107 P.3d 141 (2005). This argument goes to the vagueness of the charging document
and not to any constitutional insufficiency. Leach, 113 Wn.2d at 686-87. Tyler never requested a
bill of particulars to resolve any vagueness in the information. Thus, he cannot challenge the
information for vagueness on appeal.
VI. EVIDENCE OF PRIOR CONVICTIONS
Tyler argues, and the State concedes, that the State failed to present evidence of Tyler’s
prior convictions at sentencing. We accept the State’s concession and remand for resentencing to
allow both parties to present relevant evidence regarding Tyler’s criminal history under
RCW 9.94A.530(2), including any criminal history not previously presented.
A trial court must conduct a sentencing hearing before imposing a sentence on a convicted
defendant. RCW 9.94A.500(1); State v. Hunley, 175 Wn.2d 901, 908, 287 P.3d 584 (2012). A
defendant’s criminal history is based upon a defendant’s offender score which is generally
calculated by adding together the defendant’s current offenses and prior convictions.
RCW 9.94A.589(1)(a); Hunley, 175 Wn.2d at 908-09. At sentencing, the State must prove any
prior convictions by a preponderance of the evidence and must “introduce ‘evidence of some kind
to support the alleged criminal history.’” Hunley, 175 Wn.2d at 910 (quoting State v. Ford, 137
Wn.2d 472, 479-80, 973 P.2d 452 (1999)).
Tyler argues that the correct remedy is to remand to correct the judgment and sentence.
We disagree. Under State v. Cobos,17 we remand for resentencing to allow both parties to present
17 State v. Cobos, 178 Wn. App. 692, 700-01, 315 P.3d 600 (2013).

No. 46426-8-II
27
relevant evidence regarding Tyler’s criminal history under RCW 9.94A.530(2),18 including any
criminal history not previously presented.
VII. IMPOSITION OF DISCRETIONARY LFO’S
Lastly, Tyler argues that the trial court erred by imposing discretionary LFOs without
inquiring into his ability to pay them per RCW 10-01-160(3). The State argues that because Tyler
did not object to imposition of the LFOs below and no compelling reason exists for us to reach the
issue, this court should not exercise its discretion to reach the issue. However, because we are
remanding for resentencing, we exercise our discretion under RAP 2.5(a) to review the LFO issue.
State v. Blazina, 182 Wn.2d 827, 830, 344 P.3d 680 (2015).
“A defendant who makes no objection to the imposition of discretionary LFOs at
sentencing is not automatically entitled to review.” Blazina, 182 Wn.2d at 832. Generally, we may
refuse to review a claim of error raised for the first time on appeal. RAP 2.5(a). In State v. Blazina,
we declined to reach the defendant’s argument regarding the imposition of LFOs at his sentencing
because he failed to object and preserve the matter for appeal. 174 Wn. App. 906, 911, 301 P.3d
492 (2013).
As our Supreme Court noted, an appellate court may use its discretion to reach unpreserved
claims of error. Blazina, 182 Wn.2d at 830. Tyler argues that the sentencing court necessarily
failed to consider his ability to pay because, if it had, it would not have imposed them based on
Tyler’s lengthy sentence, his indigent status, and the trial court’s knowledge that Tyler received
18 RCW 9.94A.530(2) states: “On remand for resentencing following appeal or collateral attack,
the parties shall have the opportunity to present and the court to consider all relevant evidence
regarding criminal history, including criminal history not previously presented.”

No. 46426-8-II
28
Supplemental Security Income (SSI). However, the record indicates that Tyler was currently
employed in addition to receiving SSI in March 2002.
Because we are remanding for resentencing on the prior convictions, the trial court is
directed to inquire into Tyler’s ability to pay the discretionary LFOs as required under
RCW 10.01.160(3) and Blazina.
CONCLUSION
We hold that (1) the State presented sufficient evidence to support Tyler’s three convictions
for first degree child rape and his conviction for first degree child molestation as to JAR (counts
II, IV, VI, and VIII), (2) the trial court impermissibly commented on the evidence by including the
victims’ birthdates in the to-convict jury instructions, but the error was harmless, (3) the trial court
properly admitted evidence of Tyler’s physical abuse for a purpose other than proving his prior
bad acts, (4) the prosecutor engaged in misconduct, but the comments were not so flagrant and ill-
intentioned that no limiting instruction could have cured the error, (5) Tyler waived his ability to
challenge the information for vagueness on appeal, (6) the State failed to prove Tyler’s prior
criminal history at sentencing, and (7) we exercise our discretion to reach the merits of Tyler’s

No. 46426-8-II
29
LFO challenge. We affirm all of Tyler’s convictions, remand for resentencing under
RCW 9.94A.530(2) at which hearing the State may present evidence of Tyler’s criminal history,
and remand and order the sentencing court to make an individualized inquiry into Tyler’s ability
to pay the discretionary LFOs as required under RCW 10.01.160(3) and Blazina.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,
it is so ordered.
SUTTON, J.
We concur:
BJORGEN, C.J.
MELNICK, J.