State Of Washington v. Brian G. Holloway ( 2015 )


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  •                                                                                                           FILED
    COURT OF APPEALS
    DIVISION 11
    2015 FE8 - 3     MI 8: 50
    IN THE COURT OF APPEALS OF THE STAINI9n4AR6VN
    DIVISION II                       BY
    DEPUTY
    STATE OF WASHINGTON,                                                                        No. 44453 -4 -II
    Respondent,
    v.
    BRIAN G. HOLLOWAY,                                                                 UNPUBLISHED OPINION
    Appellant.
    SUTTON, J. —            Brian G. Holloway appeals his 11 convictions for multiple charges and
    degrees of child rape, child molestation, and incest. He argues that ( 1) the trial court violated his
    Sixth Amendment            right   to   a   fair trial, to   present a   defense,   and   to   cross -examine witnesses; (    2) the
    State failed to      prove second and                third degree     child rape ( counts      IV   and   VIII); (3) the trial court
    and the State' s closing argument misstated the burden of proof; and ( 4) the sentences for three of
    his   convictions exceed           the statutory        maximum.         We hold that ( 1) the trial court did not violate
    Holloway' s Sixth Amendment right by excluding evidence of G. S. R.' s1 prior recantation as
    irrelevant for impeachment              under        ER 608( b), ( 2) the State presented sufficient evidence to support
    the   jury' s   guilty   verdicts on counts           IV   and   VIII, (3)   the trial court' s jury instruction and the State' s
    closing did not misstate the burden of proof as neither were improper, and ( 4) the trial court
    imposed         a sentence   that exceeds the statutory                 maximum       for   counts   II, III   and   X.   We affirm
    Holloway' s convictions, but remand to amend the community custody terms on counts II, III, and
    1
    We   use    initials in the    opinion      to   protect     the confidentiality   of   the juvenile involved.
    No. 44453 -4 -II
    X so that the total concurrent sentences for each of these counts does not exceed the statutory
    maximum.
    FACTS
    I. G. S. R.' S PRIOR ALLEGATION AND HOLLOWAY' S ABUSE
    When G. S. R. was seven years old and living with her biological mother in Montana, G.S. R.
    disclosed that her biological mother' s boyfriend' s brother had touched her vagina over her clothes
    while   she     was    sleeping.       The police department in Montana investigated before deciding not to
    pursue    the   case   because G. S. R. " recanted,"           lacked clarity, and made conflicting statements about
    the incident. Sealed Clerk' s Papers ( SCP) at 233.
    In 2007 when she was 10 years old, G.S. R. began living with her father, Brian Holloway,
    2
    and    her    stepmother,        Stephanie Phelps.            Shortly after G.S. R. came to live with him, Holloway
    began touching G. S. R. " in            a   way that   was not good."       3 Verbatim Report of Proceedings ( VRP) at
    337.    Holloway used his hand to touch G. S. R.' s bare butt, breasts, and vagina " fifty or more .. .
    times."       3 VRP       at   361.   The touching happened "[        a]    lot"   and " at   least   once a month."   3 VRP at
    337.
    After   an    incident    on    or   about   July   4, 2011,    G. S. R. became afraid that Holloway had
    impregnated her.               G. S. R. disclosed the incident to Stephanie and, with the aid of counseling, she
    2 We will refer to Stephanie Phelps ( previously known as Stephanie Holloway) by her first name
    for clarity. We         mean no       disrespect.
    No. 44453 -4 -II
    disclosed the full extent of Holloway' s abuse to the police.3 The State charged Holloway with 11
    offenses: (       1) first degree    child molestation ( count    I), ( 2) second degree child molestation ( counts
    II   and    III), (3)     second   degree   child rape ( counts   IV    and   V), ( 4) third degree child molestation
    counts      VI   and   VII), (5) third degree    child rape ( counts    VIII   and   IX), (6) first degree incest (count
    X),   and ( 7) second degree incest (count XI).4
    II. TRIAL
    A. Motions in Limine to Admit Evidence of G.S. R.' s Recanted Allegation of Abuse
    On the eve of trial, G.S. R.' s biological mother told Holloway' s counsel about G. S. R.' s
    prior allegation and recantation.              The trial court granted Holloway' s motion to continue the trial
    so   that   Holloway        could   investigate the issue.      Subsequently, the trial court reviewed in camera
    sealed records relating to G.S. R.' s prior allegation and the police report stating that G.S. R. recanted
    her allegation.
    At trial,      Holloway moved to admit evidence of G.S. R.' s prior recanted allegation.
    Holloway argued that in order to present a defense the trial court must allow him to cross -examine
    G. S. R. about the recanted allegation and to ask Stephanie whether she had coached G. S. R. to lie.
    The trial court ruled that ( 1) the rape shield statute, RCW 9A.44. 020, barred evidence of G. S. R' s
    3 The State first charged Holloway with only 1 count each of 4 crimes based on G. S. R.' s initial
    limited disclosure: ( 1) Second degree             child molestation, (2)       third degree   child rape, ( 3)   first degree
    incest,      and (   4)    second   degree incest.        After G. S. R.' s full disclosure, the State amended its
    information, bringing the total crimes charged to 11, as detailed above.
    4 The State also charged Holloway with two aggravating factors on each charge, totaling 22
    aggravating factors: (
    1) The offense was part of an ongoing pattern of sexual abuse of the same
    victim under the age of 18 years and ( 2) Holloway used his position of trust or confidence to
    facilitate the       commission of      the   offenses.
    No. 44453 -4 -II
    prior recantation and ( 2)     this   evidence was        irrelevant for impeachment    under   ER 608( b). The trial
    court ruled that Holloway could not cross -examine either G.S. R. or Stephanie about the prior
    recanted allegation.
    B.    G. S. R.' s Trial Testimony
    GSR testified about multiple instances of abuse by Holloway. Holloway testified that he
    never touched G. S. R. inappropriately.
    1.   Count IV – Second degree child rape
    G. S. R. testified that Holloway touched her when she had a red, brown, and yellow plaid
    blanket    on   the bed   when she was      in the fifth    grade.   She said that his hand was on the skin of her
    vagina and "     in between it." 3 VRP        at   348.    When asked to clarify what she meant, she said:
    G. S. R.]:        I don' t want to say it.
    STATE]:           Did his [ Holloway' s] finger go inside you?
    G. S. R.]:        Not that I recall, but it was almost.
    STATE]:           And so when you say in between it, do you mean in between -
    G. S. R.]:        In the —
    STATE]: —            the folds of your vagina?
    G. S. R.]:        Yes.
    3 VRP at 348 -49. The State used this portion of G. S. R.' s testimony during its closing to argue it
    proved count IV, second degree child rape, beyond a reasonable doubt.
    2. Count VIII – Third degree child rape
    G. S. R. also testified that Holloway touched her when she had a new lava lamp and daybed
    in her    room.    She testified that      Holloway " was touching        the   inside —the —touching   the in- crease
    of   my   vagina and      rubbing it."     3 VRP     at   360.   The State used this portion of G. S. R' s testimony
    during its closing to argue it proved count VIII, third degree child rape, beyond a reasonable doubt.
    4
    No. 44453 -4 -II
    C. Reasonable Doubt Instruction and Closing Argument
    Both parties proposed a reasonable doubt instruction based on 11 Washington Practice:
    Washington Pattern               Jury   Instructions:         Criminal 4. 01,       at   85 ( 3d   ed.   2008) ( WPIC 4. 01).         The
    versions were            identical     except      the State'   s proposed    instruction included the              optional "   abiding
    belief' language in WPIC 4. 01,                    which read: "      If, from such consideration, you have an abiding
    belief in the truth         of   the   charge, you are satisfied          beyond         a reasonable     doubt."    CP   at   106.   The
    trial court' s instructions to the jury included the abiding belief language over Holloway' s
    objection.         The trial court commented that she always includes this optional sentence in the
    reasonable doubt instruction because this language mirrors her initial oral instructions to the jury
    at the start of the trial. 4A VRP at 572.
    In its closing, the State discussed how and why the jury should evaluate and find G. S. R.' s
    testimony credible. The State first discussed each count against Holloway, detailing the points of
    testimony supporting             each count.          The State then explained the reasonable doubt instruction and
    said that " it comes down to if you have an abiding belief in the truth of the charge. The law allows
    you    to   convict   based      on   the   word of a child."        4B VRP    at   641.     The State urged the jury to convict
    Holloway          based    on   the truth     of   G. S. R.' s testimony    over    Holloway' s testimony,           saying, "[ I] f you
    sit there     in that     room, ...      and you       say, ` I believe [ G. S. R.].       I believe in the truth of what she is
    saying.      I have that abiding belief, a belief that lasts, that I know that this happened to that poor
    little   girl,'   then   you must      convict [Holloway]." 4B VRP at 650. The State argued that even though
    this     was a case of "[ h] e said, [ she]             said,"     the jury could look to corroborating evidence in the
    testimony of the other witnesses and also use their " gut" and " personal opinions" when deciding
    who      to believe.       4B VRP        at   643. "    If   you   believe [ G. S. R.], then [ the State]       met    that    burden   of
    No. 44453 -4 -II
    proof]      beyond    a reasonable         doubt."      4B VRP        at   643 -44.    In rebuttal, the State asked the jury to
    review the evidence and find Holloway guilty based on the evidence at trial, telling the jury to
    know what you know in your mind, in your hearts, in every part of you, that that man [ Holloway]
    is very guilty      of what       he did to that little       girl[   G. S. R.]."     4B VRP         at   702 -03.   The jury returned
    guilty verdicts on all 11 counts and all 22 aggravating factors.
    III. SENTENCING
    The trial court sentenced Holloway to 116 months on each count of second degree child
    molestation ( counts         II   and   III)   and   to 102   months       for first degree incest ( count X); these sentences
    were to be served concurrently with the sentences on the other eight counts. 5 The trial court also
    imposed 36         months of       community custody for                   counts    II, III   and   X.     The statutory maximum
    allowed for counts II, III, and X is 120 months. Holloway appeals.
    ANALYSIS
    I. ADMISSIBILITY OF RECANTATION EVIDENCE
    Every criminal defendant has the right to a fair trial, to confront the State' s witnesses, and
    to   present a     defense   under       the Washington        and    federal       constitutions.        WASH. CONST.       art.   I, § 22;
    U. S. CONST.        amend.    VI; State        v.   Jones, 
    168 Wn.2d 713
    , 720, 
    230 P. 3d 576
     ( 2010).                        The right to
    confront includes the right to meaningfully cross -examine the States' witnesses to cast doubt on
    their credibility.         State   v.   Darden, 
    145 Wn.2d 612
    , 620, 
    41 P. 3d 1189
     ( 2002).                                Where a jury' s
    5
    Holloway does not challenge the sentences on his other counts ( count I, IV, V, VI, VII, VIII, IX
    or   XI).   The trial court also sentenced Holloway to ( 1) 198 months for first degree child molestation
    count   I), ( 2) 280   months        for   each count of second           degree     child rape ( counts         IV   and   V), ( 3) 60
    months       for   each count of        third degree      child molestation ( counts            VI        and   VII), (4) 60 months for
    each count of        third degree        child rape ( counts      VIII      and   IX), and ( 5) 60 months for second degree
    incest ( count XI).        All of these sentences were to be served concurrently.
    6
    No. 44453 -4 -II
    decision to believe or not believe a single witness is particularly important to the outcome of the
    case,   the   witness' s    credibility " must be   subject   to   close   scrutiny."   State v. Roberts, 
    25 Wn. App. 830
    , 834, 
    611 P. 2d 1297
     ( 1980).              This right is limited by rules governing the admissibility of
    evidence.      State   v.   Finch, 
    137 Wn.2d 792
    , 825, 
    975 P. 2d 967
     ( 1999); see also State v. Donald, 
    178 Wn. App. 250
    , 263 -64, 31,
    6 P. 3d 1081
     ( 2013),         review     denied, 
    180 Wn.2d 1010
     ( 2014). The right
    to confront the State' s witnesses does not include the right to admit otherwise inadmissible
    evidence. State v. Aguirre, 
    168 Wn.2d 350
    , 362 -63, 
    229 P. 3d 669
     ( 2010).
    We normally review evidentiary rulings for an abuse of discretion. State v. Williams, 
    137 Wn. App. 736
    , 743, 
    154 P. 3d 322
     ( 2007). But we review de novo a defendant' s claim he has been
    denied his constitutional right to present a defense. Jones, 
    168 Wn.2d at 719
    . In Donald, Division
    One of our court recognized the conflict between these two standards when the defendant asserts
    a constitutional right to present a defense. Donald, 178 Wn. App. at 255. Our court did not resolve
    this conflict       because    we   held that the trial   court    did   not err under either standard.   Donald, 178
    Wn.     App.   at   255. We adopt that same approach here.
    Holloway argues that the trial court violated his right to confront the State' s witnesses when
    it erroneously excluded evidence of G.S. R.' s prior recanted allegation under the rape shield statute
    7
    No. 44453 -4 -II•
    6
    and       found this          evidence       was    irrelevant for impeachment          under   ER 608( b).       The trial court
    improperly          excluded          this   evidence under     the   rape shield statute.   But the trial court did not abuse
    its discretion in excluding this                    evidence as      irrelevant for impeachment       under   ER 608( b); nor did
    the trial court violate Holloway' s Sixth Amendment right.
    A. Rape Shield Statute Not Applicable
    Holloway sought to cross -examine G.S. R. about her prior recanted allegation, made when
    G.S. R. was seven years old involving another male adult, to imply she has a propensity to " cry
    rape."          State   v.   Harris, 
    97 Wn. App. 865
    , 872, 
    989 P. 2d 553
     ( 1999). The trial court ruled that this
    evidence was not admissible under RCW 9A.44. 020, the rape shield statute. The rape shield statute
    does not prohibit admission of evidence of past sexual abuse because the rape shield statute is
    concerned with using a victim' s past consenting behavior to discredit a current allegation of sexual
    misconduct.              State   v.   Kilgore, 
    107 Wn. App. 160
    , 177, 
    26 P. 3d 308
     ( 2001),    aff'd, 
    147 Wn.2d 288
    ,
    
    53 P. 3d 874
     ( 2002).                 But    consent   is   not an   issue in   child sexual abuse.    State v. Carver, 
    37 Wn. App. 122
    , 124, 
    678 P. 2d 842
     ( 1984).               The trial court erred in applying the rape shield statute to
    exclude evidence of G. S. R.' s prior recanted allegation of sexual abuse.
    6
    ER 608( b)          provides       that "[   s] pecific instances of the conduct of a witness, for the purpose of
    attacking or supporting the witness' credibility, other than conviction of crime as provided in rule
    609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court,
    if probative of truthfulness or untruthfulness, be inquired into on cross examination of the witness
    1)    concerning the witness' character for truthfulness or untruthfulness, or ( 2) concerning the
    character for truthfulness or untruthfulness of another witness as to which character the witness
    being cross -examined has testified."
    7
    Subject to         certain exceptions,         the   rape shield statute,    RCW 9A.44. 020      provides    that "[   e] vddence
    of       the   victim' s past sexual          behavior ...     is inadmissible on the issue of credibility."
    8
    No. 44453 -4 -II
    B.    Credibility Evidence Must Be Relevant
    We next review whether the trial court erred when it excluded G. S. R' s recantation as
    irrelevant for impeachment                   under   ER 608( b).         Holloway argues that G. S. R.' s prior recanted
    allegation of sexual abuse at age seven was relevant to her sexual abuse allegation against him.
    Holloway wanted to impeach G.S. R. by cross- examination at trial with her prior recanted
    allegation,        which    Holloway         believed to be false.           Holloway argues this excluded potential
    testimony would have cast doubt on G.S. R.' s credibility which was essential to the State' s case.
    ER 608 allows a party to cross -examine a witness about specific instances of past conduct
    in   order   to   cast   doubt   on   the   witness' s   credibility. ER 608( b).       Credibility impeachment questions
    must be relevant to the truthfulness of the witness' s present testimony. State v. Benn, 
    120 Wn.2d 631
    , 651 -52, 
    845 P. 2d 289
     ( 1993).                    Such evidence is relevant if it casts doubt on the witness' s
    credibility, or the witness' s credibility is " a fact of consequence" to the trial. State v. Allen S., 
    98 Wn. App. 452
    , 459 -60, 
    989 P. 2d 1222
     ( 1999).              A defendant'      s proffered evidence "`   must be of at
    least   minimal          relevance '        and he or she cannot avoid this requirement simply because that
    evidence is about a past abuse accusation with some relation to the victim' s credibility. Jones, 
    168 Wn.2d at 720
     ( quoting Darden, 
    145 Wn.2d at 622
    ).   A trial court may exclude evidence of specific
    instances      of conduct        for impeachment if it is          remote   in time.    State v. Wilson, 
    60 Wn. App. 887
    ,
    893, 
    808 P. 2d 754
     ( 1991).
    The trial     court excluded        this    evidence as     irrelevant.    The trial court found that G.S. R.' s
    recanted allegation made when she was 7 years old was not probative of whether G.S. R. was
    credible at 15 years old, when she alleged Holloway had sexually abused her for 4 years. We agree
    that G. S. R.' s prior recanted allegation was not probative of her truthfulness or untruthfulness as to
    9
    No. 44453 -4 -II
    the   current   charges    against   Holloway.    This evidence was irrelevant and inadmissible for
    impeachment        under   ER 608( b).   The trial court did not abuse its discretion in excluding this
    evidence. Because evidence of G. S. R.' s prior recanted allegation was irrelevant, and the right to
    confront does not include the right to admit inadmissible evidence, the trial court did not violate
    Holloway' s constitutional right to confront witnesses.
    II. SUFFICIENT EVIDENCE OF PENETRATION
    To properly convict a criminal defendant, the jury must decide that the State proved every
    element    beyond    a reasonable    doubt. WASH. CONST.     art.   I, §§   3, 22; Apprendi v. New Jersey, 
    530 U. S. 466
    , 477, 
    120 S. Ct. 2348
    , 
    147 L. Ed. 2d 435
     ( 2000). We decide whether the State presented
    sufficient evidence on      the   charges of second and   third   degree    child rape   by   asking "` whether any
    rational fact finder could have found the essential elements of the crime beyond a reasonable
    doubt ' based upon the evidence the State presented on the record. State v. Drum, 
    168 Wn.2d 23
    ,
    34 -35, 
    225 P. 3d 237
     ( 2010) (      quoting State v. Wentz, 
    149 Wn.2d 342
    , 347, 
    68 P. 3d 282
     ( 2003)).
    We review the evidence in the light most favorable to the State, drawing all reasonable inferences
    most favorably to the State and interpreted most strongly against the defendant. Drum, 
    168 Wn.2d at
    34 -35.
    A person commits second degree child rape when he or she has sexual intercourse with a
    child who is at least 12 years old but less than 14 years old; a person commits third degree child
    rape when he or she has sexual intercourse with a child who is at least 14 years old but less than
    16    years old.   RCW 9A.44. 076; RCW 9A.44. 079. The difference between these two degrees of
    child rape is the age of the victim and the difference in age of the perpetrator. RCW 9A.44. 076;
    RCW 9A.44. 079. "'         Sexual intercourse '   has its ordinary meaning and includes " any penetration
    10
    No. 44453 -4 -II
    of   the vagina ...     however       slight,     by   an object,"   when committed on one person by another. RCW
    9A.44. 010( 1)(   a) -( b).
    Holloway argues that the State did not prove he committed second or third degree child
    rape as charged in counts IV and VIII because the State did not present sufficient evidence of
    vaginal penetration.8 He argues that G.S. R. described Holloway touching, at most, G.S. R.' s labia
    minora, which,         according to         Holloway,      is   not part of   the   definition   of "vagina."   Br. of Appellant
    at   20.   The State argues that even if Holloway' s characterization of G. S. R.' s testimony is true, it
    presented sufficient evidence of sexual intercourse because the labia is part of the legal definition
    of "vagina."      Br.   of   Resp' t   at    20 -21.    We agree with the State.
    Washington courts have long held that the labia minora are part of the female sex organ,
    the vagina, and have rejected Holloway' s specific argument at least three times. State v. Snyder,
    
    199 Wash. 298
    , 300, 
    91 P. 2d 570
     ( 1939);                       State v. Weaville, 
    162 Wn. App. 801
    , 813, 
    256 P. 3d 426
    2011); State     v.    Delgado, 
    109 Wn. App. 61
    , 65 -66, 
    33 P. 3d 753
     ( 2001), rev 'd in part on other
    grounds,     
    148 Wn.2d 723
    , 
    63 P. 3d 792
     ( 2003);                     State v. Montgomery, 
    95 Wn. App. 192
    , 200 -01,
    
    974 P. 2d 904
     ( 1999); State                v.   Bishop,   
    63 Wn. App. 15
    , 19, 
    816 P. 2d 738
     ( 1991).       We decline
    Holloway' s invitation to reexamine the law on this point.
    The State     provided sufficient evidence of vaginal penetration.                        Viewed in the light most
    favorable to the State9, a rational jury could decide that the State presented proof beyond a
    8 The jury convicted Holloway of two counts of second degree child rape ( counts IV and V) and
    two counts of third degree child                  rape ( counts     VIII   and   IX).   Holloway appeals only two of these
    four   rape convictions:           One second degree child rape conviction ( count IV) and one third degree
    child rape conviction (count VIII).
    9
    Drum, 
    168 Wn.2d at
      34 -35.
    No. 44453 -4 -II
    reasonable doubt through G. S. R.' s testimony that Holloway committed every element of second
    and third degree child rape as charged. We affirm Holloway' s convictions on counts IV and VIII.
    III. REASONABLE DOUBT JURY INSTRUCTION AND STATE' S CLOSING ARGUMENT
    Holloway argues that the trial court' s instruction on reasonable doubt, combined with the
    State' s closing, diluted the State' s burden of proof He also argues that this instruction and the
    State' closing deprived him            of   due   process   and warrant reversal of all    of   his   convictions.   We
    disagree.
    A. Burden of Proof Jury Instruction
    Due process requires that jury instructions clearly inform the jury that the State bears the
    burden to prove every essential element of a crime beyond a reasonable doubt. State v. Bennett,
    
    161 Wn.2d 303
    , 307, 317, 
    165 P. 3d 1241
     ( 2007). It is reversible error when an instruction fails to
    do so by relieving the State of its burden. Bennett, 
    161 Wn.2d at 307
    . We review challenged jury
    instructions de novo. Bennett, 
    161 Wn.2d at 307
    .
    WPIC 4. 01 includes optional " abiding belief' language that instructs the jury as follows:
    If,from such consideration, you have an abiding belief in the truth of the charge, you are satisfied
    beyond         a reasonable     doubt."     WPIC 4. 01 (    emphasis   omitted).   The   optional "     abiding belief'
    language in WPIC 4. 01 is bracketed and is not mandatory on trial courts. Washington courts have
    upheld the traditional " abiding belief" instruction multiple times, as has the United States Supreme
    Court. See,        e. g.,   Victor v. Nebraska, 
    511 U. S. 1
    , 
    114 S. Ct. 1239
    , 
    127 L. Ed. 2d 583
     ( 1994) and
    State    v.   Pirtle, 127 Wn12d 628, 658, 
    904 P. 2d 245
     ( 1995) (          upholding the " abiding belief" phrase
    in the   pattern    instruction because it does       not "   diminish" the definition   of reasonable     doubt),   cert.
    denied, 
    539 U. S. 916
     ( 2003).
    12
    No. 44453 -4 -II
    Holloway      cites    State    v.   Emery,     
    174 Wn.2d 741
    , 
    278 P. 3d 653
     ( 2012) to support his
    argument. But that case is distinguishable: Emery held that the State made an improper argument
    by telling   the   jury   that its      verdict     needed   to "'     speak   the truth, '               analyzing the issue under
    prosecutorial misconduct rules rather than an instructional error. Emery, 
    174 Wn.2d at 751, 756
    .
    Contrary to Holloway' s argument, the Washington State Supreme Court in Bennett
    instructed trial courts to use WPIC 4. 01 in every criminal case because the concept of reasonable
    doubt is   so   fundamental that it           requires   Washington trial           courts          to   adhere   to   a " clear,   simple,
    accepted, and uniform          instruction."        Bennett, .
    161 Wn.2d at
      317 -18.             Failure to use WPIC 4. 01 is
    error unless    the   proposed    instruction " proved to be better than the WPIC."                             State v. Castillo, 
    150 Wn. App. 466
    , 472 -73, 
    208 P. 3d 1201
     ( 2009).
    The reasonable doubt instruction in Holloway' s trial told the jury that it must " fully, fairly,
    and   carefully"   consider all    the   evidence or      lack    of evidence.       CP        at   106 ( Instruction 3).      After this
    consideration, the jury was instructed that if they had an " abiding belief' in the truth of the charge,
    then   they "[ were]   satisfied   beyond      a reasonable       doubt." CP        at   106 ( Instruction 3).           The reasonable
    doubt instruction did not infer or tell the jury, as Holloway argues, to disregard the evidence and
    decide the case based on what they thought was true. The trial court' s reasonable doubt instruction,
    which included the " abiding belief' language, did not relieve the State of its burden of proof and
    this instruction did not violate Holloway' s constitutional rights.
    B.   State' s Closing Argument
    Holloway also argues that the State " further diluted" the burden of proof during closing by
    asking the jury to rely on their gut, intuition, experiences, hearts, and own feelings when deciding
    whether    to believe G. S. R.' s       testimony. Br.       of   Appellant     at       31.    Holloway argues that the State
    13
    No. 44453 -4 -II
    appealed to the jury to " find the truth, rather than to determine whether the State had proved each
    element of each charged offense               beyond       a reasonable   doubt." Br.      of   Appellant   at   33.   Holloway
    never    objected     to the State' s closing         or   the "    abiding belief' language, nor ask for a curative
    instruction. We hold that the State' s closing was not improper.
    To prove prosecutorial misconduct, the defendant on appeal must establish that the State' s
    statements were improper and prejudicial in the context of the entire record. Emery, 
    174 Wn.2d at 760, 761
    .   If a defendant does not object during closing, the defendant waives any error unless
    the misconduct was so flagrant and ill-intentioned that a curative instruction could not have cured
    the resulting prejudice and there is a substantial likelihood that the misconduct affected the jury' s
    verdict. Emery, 
    174 Wn.2d at
    760 -61.
    Credibility is     within     the   sole   determination       of   the finder   of   fact.   State v. Thomas, 
    150 Wn.2d 821
    , 874, 
    83 P. 3d 970
     ( 2004).                  During closing, the State urged the jury to find G.S. R.
    credible and to believe her testimony over Holloway' s testimony. By explaining various sources
    the jury could use to find G.S. R. credible, the State' s closing was intended to guide the jury in its
    credibility determination. The State never told the jury to find the truth, speak the truth, or infer
    to the   jurors that   was    their   role.   The State reviewed each count, discussed every element of each
    crime,    detailing    the   testimony    and evidence         to   support each count.         The State asked the jury to
    convict Holloway based on the evidence and the events that G. S. R. testified to and the State
    referred to the " abiding belief' language in the reasonable doubt instruction. The State implored
    the jury to convict based on the evidence it presented, not, as Holloway argues, in order to find the
    truth.
    14
    No. 44453 -4 -II
    Our court has already held that closing argument statements similar to the State' s closing
    here did not constitute prosecutorial misconduct. State v. Curtiss, 
    161 Wn. App. 673
    , 701 -02, 
    250 P. 3d 496
     ( 2011) (    holding that the prosecutor did not engage in misconduct by telling the jurors to
    examine     their "` gut   '    and    their "` hearts '   to find the defendant guilty).           The State' s closing did not
    relieve the State of its burden of proof.
    IV. THREE SENTENCES EXCEED THE STATUTORY MAXIMUM
    Holloway argues that the sentencing court erred in imposing sentences that exceed the
    1°
    statutory   maximum        for his      convictions on counts       II, III,   and   X.        The State concedes this issue.
    A term of confinement, combined with a term of community custody, cannot exceed the
    statutory maximum for the crime as provided in RCW 9A.20. 021; the trial court must reduce the
    term of community custody                   if the   combined     total   is beyond the           maximum     sentence.   RCW
    9. 94A.701( 9); State          v.   Boyd, 
    174 Wn.2d 470
    , 472 -73, 
    275 P. 3d 321
     ( 2012).                 Holloway' s sentences
    on counts II, III, and X were for class B felonies, which carry a statutory maximum confinement
    sentence    of   120   months.           RCW 9A.20. 021( 1)( b).          The trial court sentenced Holloway to 116
    months on count II, 116 months on count III, and 102 months on count X, and 36 months of
    community custody              on each of      these   counts,   exceeding the statutory           maximum.      We remand to
    amend the community custody terms in the judgment and sentence so that the total concurrent
    sentences for these three convictions do not exceed the 120 month statutory maximum.
    1° Counts II and III are for second degree child molestation; count X is for first degree incest.
    15
    No. 44453 -4 -II
    CONCLUSION
    We hold that ( 1) the trial court properly excluded evidence of G. S. R.' s prior recantation as
    irrelevant, ( 2)   the State presented sufficient evidence of vaginal penetration to support the jury' s
    guilty    verdicts   on counts   IV   and   VIII, ( 3)   the trial court' s inclusion of "abiding belief" in the
    reasonable doubt instruction and the State' s closing did not misstate the burden of proof because
    neither were improper, and ( 4) the trial court imposed a sentence that exceeds the statutory
    maximum for three of Holloway' s convictions. Accordingly, we affirm Holloway' s convictions,
    but remand to amend the community custody terms on counts II, III, and X so that the total
    concurrent sentences for each of these counts does not exceed the statutory maximum.
    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.
    We concur:
    Lee, J.
    16