Opinion
No. 57172-9-I.
June 4, 2007.
Appeal from a judgment of the Superior Court for King County, No. 04-1-09112-4, William L. Downing, J., entered November 1, 2005.
Karl Tobey was found guilty of two counts of first degree child rape. He appeals, asserting that the evidence was insufficient to support his conviction on count II; the prosecutor made improper remarks; and that several State witnesses improperly vouched for the victim's credibility. We affirm.
I.
Jason Fults and Jennifer Fults had a daughter, MF. They divorced when MF was three years old. After the divorce, MF lived with her mother and brother until she was eight years old, at which time she moved in with her father and his fiancé, Leilani Smith.
Relations between MF and Leilani were not always smooth, although in the beginning, they got along well. One evening in December 2003, Leilani was having a particularly hard time with what she described as MF's "attitudes and her fits and just being a little brat." Leilani was concerned that she might be unintentionally antagonizing MF, and pressed MF repeatedly to tell her if she was doing something to make her mad. MF kept assuring her there was nothing wrong. Then, after Leilani abandoned the discussion and resumed reading a book, MF said, "my dad was right about Karl," referring to the appellant, Karl Tobey. Both Leilani and MF knew that her father did not trust Tobey.
Report of Proceedings (RP) (Sept. 14, 2005) at 104.
RP (Sept. 14, 2005) at 105.
Leilani asked her what she meant. MF was silent for a minute and then began to cry. Struggling to catch her breath, she told Leilani, "He took me in his room and licked my privates."
RP (Sept. 14, 2005) at 106.
Jason Fults called the police, and on their advice he and Leilani took MF to a hospital for examination. The following morning, they met with the Seattle police. MF was subsequently interviewed by a child interview specialist. The interview, during which MF described how Tobey raped her, was recorded on DVD. The DVD was later played for the jury.
MF was also examined at the King County Sexual Assault Resource Center. During that examination, which was medically inconclusive, MF told the examining nurse that Tobey had licked her privates and put his "thing" in her "thing." She also told the nurse that she sometimes felt sore, "because of what happened."
RP (Sept. 19, 2005) at 35.
RP (Sept. 19, 2005) at 36.
Detective Donna Stangeland of the Seattle Police Department observed MF's interview by the child interview specialist, and determined that there was probable cause to arrest Tobey. She and another detective went to Tobey's apartment to make contact with him. Although Tobey's car was parked in front and the detectives could hear movement inside his apartment, their repeated knocks on his door went unanswered. Later that afternoon, Detective Stangeland left a voice mail message for Tobey, asking him to call her immediately. The following morning, she found that Tobey had returned her call the previous evening, and left three messages for her.
Tobey called the detective again that morning. During that brief call, Detective Stangeland informed Tobey that he was a suspect in a crime, that she anticipated a warrant being issued for his arrest in the near future, and suggested he make arrangements to turn himself in. Tobey was arrested later that day by patrol officers.
Tobey was charged with three counts of first degree rape of a child. Following trial, the jury was unable to reach a unanimous verdict, and the court declared a mistrial. He appeals from his second trial.
MF was a preschooler when she first met Tobey. She, her brother, and her mother moved into an apartment complex in Kent where Tobey was living. MF's mother, Jennifer Fults, soon developed a romantic relationship with Tobey. While their romantic relationship lasted only a few months, they remained friends.
Tobey was very involved in the children's lives. He would baby-sit them, and take them swimming. He took them to the store, to movies, parks, and entertainment centers. He often bought MF gifts, including toys, books, a radio, a journal, and clothing. Once, he bought her Capri pants and a top. Her father and Leilani considered the clothes too skimpy and revealing, and would not allow her to wear them.
Even after Tobey moved to an apartment in Ballard, he continued to visit MF, taking her out and giving her presents.
At Tobey's second trial, MF testified that Tobey had raped her "a lot — whenever we were over at his house." She said she had been to his apartment about nine or ten times altogether. She had been there with her mother about two or three times, and occasionally with her brother as well.
RP (Sept. 13, 2005) at 41.
She described how Tobey would take her into his bedroom, put her on his bed and touch her "private areas" with his hands and mouth. When asked what she meant by "private areas," she indicated her crotch and chest. She told the court how Tobey would take his pants down so that she could see his privates, and how he would put his privates into her privates. She described it as weird and painful. When he would put his mouth on her privates, she said it did not hurt but still felt weird.
RP (Sept. 13, 2005) at 39-42.
As MF described it, Tobey would lie on his back on the bed, and have MF straddle him as he held her legs. She said that was the way he always put his privates into hers. Although she could not remember how many times he had done so, she said it was more than four. MF was able to recall one specific incident around Thanksgiving of 2002, when the defendant took her to a movie called Brother Bear, then to Toys-R-Us where he bought her more gifts, and from there to his apartment where he raped her again. She could not remember the first time it happened, but all the incidents occurred before she moved in with her father and Leilani when she was eight.
Tobey did not testify at his second trial. He was convicted on counts I and II, acquitted on count III, and was sentenced to 120 months confinement.
II.
Evidence to Convict
Tobey contends that the evidence was insufficient to support his conviction for count II, arguing that the State relied upon undifferentiated evidence to support the charge. He asserts that this undifferentiated evidence prevented him from exercising his right to appeal, prevented him from mounting an effective defense, violated his right to a unanimous verdict, and violated the prohibition against double jeopardy.
Evidence is sufficient to support a conviction if, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. A reviewing court will draw all reasonable inferences from the evidence in favor of the State, and interpret the evidence most strongly against the defendant. We defer to the trier of fact to resolve any conflicts in testimony, to weigh the persuasiveness of evidence, and to assess the credibility of the witnesses.
State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980).
State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
State v. Boot, 89 Wn. App. 780, 791, 950 P.2d 964 (1998).
Tobey was charged with three counts of rape of a child in the first degree. He was convicted on counts I and II, and acquitted on count III. The statute provides:
A person is guilty of rape of a child in the first degree when the person has sexual intercourse with another 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.
Due process requires that a defendant in a criminal case not be convicted absent proof beyond a reasonable doubt of every element of the charged crime. A defendant may be convicted only when a unanimous jury concludes beyond a reasonable doubt that the criminal act charged in the information has been committed. To convict a criminal defendant in cases where multiple acts are alleged, any one of which could constitute the crime charged, the jury must unanimously agree on the act or incident that constitutes the crime.
U.S. Const. amend. XIV; Wash. Const. art. I, § 22;Jackson v. Virginia, 443 U.S. 307, 315, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979).
State v. Petrich, 101 Wn.2d 566, 569, 683 P.2d 173 (1984).
Petrich, 101 Wn.2d at 572.
In multiple acts cases, either the State must elect the particular criminal act upon which it will rely for conviction, or the trial court must instruct the jury that all of them must agree that the same underlying criminal act has been proven beyond a reasonable doubt. In sexual abuse cases where multiple counts are alleged to have occurred within the same charging period, the State need not elect particular acts associated with each count so long as the evidence clearly delineates specific and distinct incidents of sexual abuse during the charging periods.
State v. Hayes, 81 Wn. App. 425, 430-31, 914 P.2d 788 (1996).
Hayes, 81 Wn. App. at 431.
The jury was given almost identical element instructions for each of the three counts of child rape. The only difference in the instructions was the requirement laid out in counts II and III that, in order to convict, the jury had to find the act charged occurred on a different date than the other counts. The jury was additionally instructed that although the charges were joined for trial, the jury was required to decide each count separately, and that its verdict on one count should not control its verdict on any other count. The jury was further instructed that to convict the defendant on the separate counts, at least one specific, different act of child rape must be proved beyond a reasonable doubt and the jury must unanimously agree as to which act had been proved beyond a reasonable doubt for each count.
MF was unable to testify as to specific dates on which Tobey raped her, other than the day he took her to see Brother Bear, but said he did it "a lot" — at least four times. Tobey argues that her generic, undifferentiated testimony was not sufficient to support his second conviction. However, multiple count sexual assault charges have been affirmed under Washington case law even where the State relied on "generic" child testimony.
Hayes, 81 Wn. App. at 435.
In State v. Hayes, the victim testified that the defendant "put his private part in mine" at least "four times" and some "two or three times a week" during the charging period. The defendant argued that such generic testimony was insufficiently specific to sustain a multiple count conviction. The court was unwilling to hold that generic testimony is insufficient to sustain a conviction of a child molester, because doing so would risk unfairly immunizing from prosecution offenders who subject young victims to multiple assaults.
81 Wn. App. 425, 914 P.2d 788 (1996).
Hayes, 81 Wn. App. at 435.
Hayes, 81 Wn. App. at 438.
The Hayes court adopted a three-part test to balance the due process rights of the accused against the inability of the young accuser to give extensive details regarding multiple alleged assaults. The alleged victim must (1) describe the kind of act or acts with sufficient specificity to allow the trier of fact to determine what offense, if any, has been committed; (2) describe the number of acts committed with sufficient certainty to support each of the counts alleged by the prosecution; and (3) be able to describe the general time period in which the acts occurred.
Hayes, 81 Wn. App. at 438.
The Hayes court held that the victim's generic testimony was sufficiently specific to sustain each of the four counts charged. Her testimony that he "put his private part in mine" along with her description of the usual course of conduct satisfied the first prong; her testimony that he did this at least "four times" and up to "two or three times a week" satisfied the second prong; and her testimony that the incidents occurred during the charging period satisfied the third prong.
Hayes, 81 Wn. App. at 438-39.
The circumstances in Hayes are quite similar to those in the present case. MF testified that Tobey put his privates in hers, that he did it at least four times, and that the rapes occurred during the charging period. Her testimony satisfied the three-part test laid out in Hayes.
The Hayes court also held that a defendant is not deprived of his or her due process right to present a defense when a child victim's testimony fails to indicate specific dates. As long as the jury is correctly instructed on the unanimity requirement, the evidence need only be sufficiently specific under the three-part test described above.
Hayes, 81 Wn. App. at 441.
See Hayes, 81 Wn. App. 425.
Whether single or multiple incidents of sexual contact are charged, a defendant has no due process right to a reasonable opportunity to raise an alibi defense. The requirement that the defendant be proved guilty beyond a reasonable doubt adequately protects the defendant's rights. The trier of fact hears both that the child witness cannot specify a date and that the defendant is thereby precluded from raising an alibi defense. Both are considered in the deliberations that require guilt to be found beyond a reasonable doubt.
State v. Cozza, 71 Wn. App. 252, 259, 858 P.2d 270 (1993).
Cozza, 71 Wn. App. at 259-60.
Tobey argues that reliance on undifferentiated evidence is inherently incompatible with the Petrich requirement that a conviction requires a unanimous jury conclusion beyond a reasonable doubt that the criminal act charged has been committed.
State v. Petrich, 101 Wn.2d 566, 683 P.2d 173 (1984).
Petrich, 101 Wn.2d at 569.
The undifferentiated, "generic" evidence presented at trial did not deny Tobey of a unanimous verdict. We hold that a rational trier of fact could have found the essential elements of the crimes charged beyond a reasonable doubt.
Green, 94 Wn.2d at 221.
Tobey asserts that the lack of specificity in the evidence does not adequately protect him from the risk of double jeopardy.
The double jeopardy clause of the Fifth Amendment provides that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb." Article I, section 9 of the Washington Constitution provides that no person shall "be twice put in jeopardy for the same offense." The state constitution provides the same protection against double jeopardy as its federal counterpart.
Wash. Const. art. I, § 9.
State v. Gocken, 127 Wn.2d 95, 107, 896 P.2d 1267 (1995).
A defendant charged with multiple counts is adequately protected from the risk of double jeopardy when the evidence is sufficiently specific as to each of the acts charged. If one crime is completed before another charged crime is committed, and different evidence is used to prove the second crime, then the two crimes are not the same offense. Thus, the perpetrator may be punished separately for each crime without violating double jeopardy. No double jeopardy violation results when the information, instructions, testimony, and argument clearly demonstrate that the State was not seeking to impose multiple punishments for the same offense.
Hayes, 81 Wn. App. at 439.
Hayes, 81 Wn. App. at 439 (citing State v. Noltie, 116 Wn.2d 831, 848, 809 P.2d 190 (1991)).
Hayes, 81 Wn. App. at 440 (citingNoltie, 116 Wn.2d at 848).
In light of the unanimity instructions given the jury, and the sufficiency of MF's generic testimony, we hold that Tobey's conviction did not place him in double jeopardy.
Prosecutorial Misconduct
In determining whether a prosecutor's comments constitute misconduct, a reviewing court first decides whether such comments were improper and, if so, whether a substantial likelihood exists that the comments affected the jury. If the prejudice could have been cured by a jury instruction, but the defense did not request one, reversal is not required. "`If misconduct is so flagrant that no instruction can cure it, there is, in effect, a mistrial and a new trial is the only and the mandatory remedy.'"
State v. Dhaliwal, 150 Wn.2d 559, 578, 79 P.3d 432 (2003).
State v. Russell, 125 Wn.2d 24, 85, 882 P.2d 747 (1994).
State v. Belgarde, 110 Wn.2d 504, 508, 755 P.2d 174 (1988) (quoting State v. Case, 49 Wn.2d 66, 74, 298 P.2d 500 (1956)).
The prejudicial effect of a prosecutor's improper comments is not determined by looking at the comments in isolation, but by placing the remarks "in the context of the total argument, the issues in the case, the evidence addressed in the argument, and the instructions given to the jury."
State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997).
It may be proper argument for the prosecutor to reference the nature of the crime and the effect on the victims. A prosecutor is not rendered mute because the acts committed arouse natural indignation.
State v. Borboa, 157 Wn.2d 108, 123, 135 P.3d 469 (2006).
In closing, the prosecutor discussed the impact of the crime on MF, and referred to MF's lost innocence:
Ladies and gentlemen of the jury, [MF] was born on August 2nd of 1994. She's 11 years old now, growing by every second. She's growing out of her clothes, growing out of her toys. She's growing out of her innocence. And it's this innocence that shields her from the knowledge and from an understanding of knowing exactly what Karl Tobey did to her when she was seven, eight, and nine. . . . And nothing is obviously going to stop that moment from coming when she comes to realize that Karl Tobey was the first person that she was ever intimate with.
RP (Sept. 19, 2005) at 70.
RP (Sept. 19, 2005) at 70.
Tobey contends that the prosecutor's comments were so flagrant and ill-intentioned as to warrant reversal. In support of his argument he cites to State v. McKenzie, in which a prosecutor, responding to defense counsel's theme that the defendant would have to be satisfied with the phrase "not guilty," rather than "innocent," began her rebuttal closing argument by saying she was going to focus on the word "innocence." She then inferred that the 12-year-old victim was sexually inexperienced, that her belief that the sexual assault upon her was something that happened to everybody, and that defense counsel even theorized that her account of the defendant's unvarying sexual act was the fabrication of a sexually inexperienced child.
157 Wn.2d 44, 134 P.3d 221 (2006).
McKenzie, 157 Wn.2d at 60.
McKenzie, 157 Wn.2d at 60.
On appeal, the court held that in drawing attention to the victim's lost innocence, the deputy prosecutor went too far in her effort to exploit defense counsel's theme that the defendant had to be content with the phrase "not guilty," instead of the word "innocent." Nevertheless, it concluded that, although the prosecutor's comments were improper, they were not so flagrant and ill-intentioned that their prejudicial effect could not have been cured by the trial court's instruction to the jury.
McKenzie, 157 Wn.2d at 60.
McKenzie, 157 Wn.2d at 60.
Tobey also cites to State v. Claflin, a case where the prosecutor read a poem during closing. The poem, written by an anonymous rape victim, had no direct bearing on the case, was not introduced at trial, and was objected to by defense counsel. It made vivid reference to the anonymous victim's thoughts about being raped, and described a razor blade being held to the victim's throat. The comparison is not illuminating. In the present case, the prosecutor did not introduce inflammatory material from outside the record, but confined himself to discussing the repercussions of Tobey's rape of MF. Tobey did not object to the prosecutor's statement at trial.
38 Wn. App. 847, 690 P.2d 1186 (1984).
Claflin, 38 Wn. App. at 850.
The prosecutor's statements here cannot be construed as being so flagrant and ill-intentioned that a curative instruction could not have neutralized them.
More troubling was another of the prosecutor's comments at closing:
So, essentially, when you cut through all of the defense in this case, all of the things that [defense counsel] says, you do come down to one thing. This girl who knows that what she is saying is getting this man in trouble is either telling the truth or she is evil.
RP (Sept. 19, 2005) at 182-83.
RP (Sept. 19, 2005) at 182-83.
The State argues that the prosecutor was deconstructing the defense argument, rebutting the defense assertion that MF's memory might have been implanted, or that she was lying to get out of trouble or to get attention. That may be so, but it also misrepresented the task before the jury by suggesting that in order to acquit Tobey, the jury had to find that MF was evil.
Our courts have repeatedly held that it is misconduct for a prosecutor to argue that in order to acquit a defendant, the jury must find that the State's witnesses are either lying or mistaken. The jury need not find that a witness was mistaken or lying in order to acquit; instead, it is required to acquit unless it has an abiding conviction in the truth of the testimony.
State v. Fleming, 83 Wn. App. 209, 213, 921 P.2d 1076 (1996).
Fleming, 83 Wn. App. at 213.
The defense did not object. A timely objection and curative instruction would have sufficed to admonish the prosecutor for the improper remark. The issue has thus not been preserved for review on appeal.
Tobey also argues that the prosecutor improperly stated the number of times MF had told her story the same way. In closing, the prosecutor told the jury that MF had "talked about this in official terms six times now." He repeated the comment on several occasions. Again, defense counsel did not object.
RP (Sept. 19, 2005) at 86.
The jury was told that MF had discussed her abuse on six occasions. The prosecutor's statement, if incorrect, was not misconduct, certainly not misconduct of such magnitude that it could not have been cured by instruction.
Tobey further asserts that the prosecutor improperly suggested Tobey must be guilty because of his role as a father figure in MF's life.
In his closing arguments, the prosecutor described how Tobey gave gifts to MF, bought her candy and ice cream, and took her to movies and the park. Tobey asserts this description invited the jury to conclude Tobey was guilty because he acted as a "father figure" to MF. He argues that the State may not present testimony that a defendant is more likely to have committed a sexual offense because of his paternalistic relationship to the victim, or that most people are molested by people they know. This mischaracterizes the prosecutor's comments. What the prosecutor was describing was classic "grooming behavior." He was not, in any way, describing Tobey as being father-like. A prosecutor is free to argue all reasonable inferences that can be drawn from the evidence. His comments did not constitute misconduct.
Petrich, 101 Wn.2d at 576.
See In re Personal Restraint of Arseneau, 98 Wn. App. 368, 377, 989 P.2d 1197 (1999).
State v. Smith, 104 Wn.2d 497, 510, 707 P.2d 1306 (1985).
Testimony Regarding MF's Credibility
Tobey asserts that several State's witnesses improperly vouched for MF's credibility. He did not object to any of the comments he now declares improper.
If a defendant does not object at trial, the defendant cannot challenge testimony for the first time on appeal. Appellate courts are and should be reluctant to conclude that questioning, to which no objection was made at trial, gives rise to "manifest constitutional error" reviewable for the first time on appeal. The failure to object deprives the trial court of an opportunity to prevent or cure the error.
State v. Warren, 134 Wn. App. 44, 56-57, 138 P.3d 1081 (2006).
State v. Madison, 53 Wn. App. 754, 762-63, 770 P.2d 662 (1989).
If a court determines a claim of error raises a manifest constitutional error, it may still be subject to harmless error analysis. We hold that, if any testimony may have been admitted in error, such error was harmless.
State v. Kirkman, No. 76833-1, No. 77596-6, 2007 Wash. LEXIS 210, at *10 (April 5, 2007).
Tobey assigns several additional errors in his statement of additional grounds for review. Those errors are largely subsumed in the errors contained in his counsel's brief, and are not of manifest constitutional importance. The remainder of his arguments lack merit, and are not addressed.
AFFIRMED.
WE CONCUR: