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State v. Jensen

The Court of Appeals of Washington, Division Two
Jul 22, 2008
146 Wn. App. 1003 (Wash. Ct. App. 2008)

Opinion

Nos. 35863-8-II; 35933-2-II.

July 22, 2008.

Appeals from a judgment of the Superior Court for Thurston County, No. 02-1-00447-8, Chris Wickham, J., entered January 11, 2007.


Affirmed by unpublished opinion per Houghton, J., concurred in by Bridgewater and Quinn-Brintnall, JJ .


UNPUBLISHED OPINION


Jonathan Jensen appeals his convictions of two counts of first degree child molestation and one count of indecent exposure. He argues that the trial court erred in denying his motion for a new trial because a juror committed misconduct and his trial counsel's failure to disclose a conflict of interest denied him a fair trial. We affirm.

FACTS

The State charged Jensen with two counts of first degree child molestation and two counts

of indecent exposure, based on allegations by his 11-year-old step-grand-daughter that he had repeatedly exposed himself to her and touched her inappropriately. The State later added two additional counts of first degree child molestation. By the time of his March 20 arraignment, he had retained an attorney to represent him.

On April 24, 2002, in an unrelated incident, defense counsel allegedly molested a child. Defense counsel later testified that by August, he knew that the State intended to file or had filed charges of third degree child molestation against him. Defense counsel failed to inform him that counsel faced criminal charges and continued to represent Jensen throughout Jensen's trial.

During the period of time leading up to Jensen's trial, defense counsel delegated much of the trial preparation work to an experienced private investigator, Susan Watts. Watts and Jensen and his wife all later testified that they had difficulty getting in touch with defense counsel from May until the days leading up to trial.

Watts interviewed the victim and other potential witnesses, visited Jensen's home (the alleged crime scene), and created trial exhibits using photographs and diagrams of the home. Watts's testimony indicates that she had some difficulty arranging to interview Jensen's victim but that eventually she did. Watts also interviewed the victim's sister, who eventually testified as a defense witness, but Watts did not locate the brother, who the State refused to produce from foster care absent a court order.

On the eve of trial, Jensen moved for a continuance to allow more time to locate the victim's brother. The trial court denied the motion, stating that it would only entertain such last-minute motions in the case of an emergency. The State then tried Jensen before a jury.

During trial, the victim testified that in one instance a mirror in Jensen's bedroom allowed her to see him expose himself to her. The trial court admitted into evidence defense exhibits that comprised a series of pictures and diagrams of the home's layout. Jensen argued that they demonstrated that the victim could not have seen him in the mirror, as she had described. According to defense counsel, because he felt so strongly about this argument and its effect on the victim's credibility, he then made the decision to rest Jensen's case without calling several additional available witnesses.

The jury deliberated until the end of the day, at which point the trial court sent them home for the evening. After a second day of deliberation, the jury returned a verdict of guilty on three of the four child molestation counts and one of the two indecent exposure counts but acquitted him on the remaining child molestation and indecent exposure counts. Jensen appealed the convictions.

During posttrial interviews, Watts learned that during the first evening after deliberations, Juror six had set up a mirror in her own home. She wanted to learn whether she could see anything in the mirror when standing a similar distance away.

When deliberations resumed the next morning, Juror six commented that she thought she could see a reflection. Not all of the jurors heard the comment, and the jurors did not discuss the comment further.

Jensen moved for a new trial, arguing juror misconduct. About this time, Jensen also learned of his counsel's pending criminal trial and retained different counsel to represent him at his sentencing hearing to argue his motion for a new trial. At Jensen's sentencing hearing, the trial court decided that Jensen's motion for a new trial raised issues sufficient to warrant an evidentiary hearing and agreed to subpoena the jurors.

Two months later, the trial court took the testimony of the eight jurors who responded to the subpoena. After questioning each of the jurors separately, the trial court concluded that the action of setting up a mirror in a juror's own home was a "reenactment" of evidence produced at trial, not an examination of extrinsic evidence, and thus no juror misconduct occurred. Report of Proceedings (RP) (Dec. 20, 2002) at 4. The trial court further concluded that even if misconduct had occurred, it did not prejudice Jensen and the court denied his motion for a new trial.

On June 23, 2003, Jensen filed a supplemental motion for a new trial, arguing that his counsel's own criminal charges created a conflict of interest and that because his counsel, the prosecutor, and the trial court all knew of the charges and did not inform him, he did not have a fair trial. The trial court ruled the motion untimely and directed Jensen to bring his claims in a personal restraint petition (PRP), which he did.

On January 11, 2005, we issued an opinion addressing both Jensen's direct appeal of his convictions and his PRP. State v. Jensen, 125 Wn. App. 319, 104 P.3d 717 (2005). We dismissed one count of child molestation for insufficient evidence and remanded the case to the trial court "for a hearing on the merits to determine whether [defense counsel] had an actual conflict of interest that adversely affected his representation of Jensen." Clerk's Papers (CP) at 101.

Over the course of three days in June 2006, the trial court heard testimony from Jensen, his wife, Watts, and his trial counsel on the conflict of interest issue. At the conclusion of the hearing, the trial court stated that there was no question that Jensen's counsel had violated the Rules of Professional Conduct in failing to disclose his criminal charges to Jensen. But the trial court explained that the evidence presented required it to speculate on the link between defense counsel's charges and the alleged deficiencies in representation. Therefore, the trial court ruled that Jensen had not met his burden of showing adverse impact.

The trial court entered written findings of fact and conclusions of law on both the juror misconduct and the conflict of interest issues. Jensen appeals.

ANALYSIS

We review challenged findings of fact to determine whether substantial evidence supports them. State v. Vickers, 148 Wn.2d 91, 116, 59 P.3d 58 (2002). Substantial evidence is that sufficient to persuade a fair-minded, rational person of the truth of the finding. Vickers, 148 Wn.2d at 116. We review conclusions of law de novo to determine whether the findings of fact support them. State v. Stevenson, 128 Wn. App. 179, 193, 114 P.3d 699 (2005).

We review the trial court's decision not to grant a new trial for an abuse of discretion. State v. Jackman, 113 Wn.2d 772, 777, 783 P.2d 580 (1989). Generally, a trial court abuses its discretion when it bases its decisions on untenable or unreasonable grounds. State v. Cunningham, 96 P.2d 31, 34, 633 P.2d 886 (1981).

A. Juror Misconduct

Jensen first contends that the trial court erred in denying his motion for a new trial based on juror misconduct. He argues that a juror improperly injected extrinsic evidence into the deliberation process by conducting an experiment in her own home and discussing it with other jurors.

Jensen does not challenge the trial court's findings of fact and we consider the pertinent ones verities on appeal:

We treat the trial court's findings of fact, from the evidentiary hearing on juror misconduct, all of which are unchallenged, as verities on appeal. State v. Levy, 156 Wn.2d 709, 733, 132 P.3d 1076 (2006).

2. There was evidence presented at trial indicating that the victim had observed certain conduct in a mirror, such conduct alleged to be the basis for one of the charges. Juror number 6, at home, set up a mirror in her hallway in an attempt to duplicate some of the evidence from trial to see if someone could, in fact, see what was claimed to have been seen in a mirror at a distance of about 30 to 31 feet. There is no evidence that this juror tried to duplicate the evidence more precisely than, perhaps, to utilize the same size mirror.

3. On the second day of jury deliberations, Juror 6 commented that she had set up the mirror in her hallway and opined that she thought she could see a reflection. One juror believed Juror 6 said that she could not see images in the mirror.

4. Juror 6's comment was heard by some but not all of the other jurors. Juror 6 did not expand upon her opinion and none of the other jurors asked any questions of Juror 6 as to what she did or what she saw. Additionally, Juror 6's opinion was not discussed among the other jurors.

CP at 107-08.

Jensen assigns error to the following conclusions of law related to the issue of juror misconduct:

1. Juror 6 did not commit misconduct. What Juror 6 did in her home was a reenactment of the evidence produced at trial. It was not novel or extrinsic evidence because it involved testimony and exhibits admitted and discussed at trial. This was not information that was "outside all the evidence." This reenactment done by Juror 6 in her home was nothing more than an application of everyday perceptions and common sense to the issues presented at trial.

2. Even if Juror 6's actions were misconduct, it was harmless beyond a reasonable doubt. The reenactment did not involve any sophisticated equipment, it did not raise any novel theories, it involved only what could be seen in a mirror, which are common sense everyday perceptions, and it was not discussed by the other jurors.

CP at 108.

The trial court may grant a new trial for jury misconduct when a juror introduces extrinsic evidence into the process of deliberation. CrR 7.5(a)(2); State v. Balisok, 123 Wn.2d 114, 118, 866 P.2d 631 (1994). Extrinsic evidence is evidence that was not subject to objection, cross-examination, explanation, or rebuttal at trial. Balisok, 123 Wn.2d at 118. Only a "strong, affirmative showing of misconduct . . . [will] overcome the policy favoring stable and certain verdicts and the secret, frank and free discussion of the evidence by the jury." Balisok, 123 Wn.2d at 117-18. A new trial is granted only if the misconduct resulted in prejudice. State v. Tigano, 63 Wn. App. 336, 341, 818 P.2d 1369 (1991).

Jensen argues that because Juror six conducted her "`experiment'" using evidence not admitted at trial (a mirror), it constituted misconduct. Appellant's Br. at 13. But as the trial court noted, the juror based her reenactment on testimony and exhibits admitted and discussed at trial. The trial court stated that though there was no actual mirror in evidence, what someone can see in a mirror is a question of "everyday perceptions" and, thus, there was nothing novel or extrinsic about the reenactment. RP (Dec. 20, 2002) at 5.

Reenactment of a crime in accordance with a juror's recollection of testimony is nothing more than an allowable "`application of everyday perceptions and common sense to the issues presented in the trial.'" Balisok, 123 Wn.2d at 118 (quoting People v. Harris, 84 A.D.2d 63, 105, 445 N.Y.S.2d 520, 546 (1981)) (internal quotation marks omitted). Because the juror merely used her own perceptions to draw a conclusion about whether the victim could have used a mirror to see Jensen exposing himself to her, the trial court's unchallenged findings support its conclusion that no misconduct occurred.

Jensen also argues that because the reenactment occurred outside the presence of all of the jurors, misconduct occurred. He fails to cite case law that addresses such factors. Instead, he cites two cases where an experiment at issue did not occur in the jury room and derives from that a requirement exists that all experiments must occur in the jury room. Neither case includes any discussion of a location requirement for jury experimentation, and we reject Jensen's argument as unsupported by his briefing. See State v. Thomas, 150 Wn.2d 821, 868-69, 83 P.3d 970 (2004) (holding that an appellate court need not address issues inadequately briefed).

But even assuming that the juror's experiment was misconduct, Jensen cannot demonstrate prejudice. He argues that because the case turned on an assessment of the credibility of the victim, any information influencing that credibility "calls into doubt the verdicts found by the jury." Appellant's Br. at 14.

Here, the trial court held an independent evidentiary hearing to question jurors and found that Juror six made only a single, brief mention of the reenactment during deliberations, that many of the jurors did not hear the comment, and that the jury did not further discuss the experiment. No prejudice occurred and the trial court did not abuse its discretion in denying Jensen's motion for a new trial.

B. Conflict of Interest

Jensen also argues that the trial court erred in failing to grant his motion for a new trial based on his counsel's failure to disclose a conflict of interest. As noted, we previously remanded Jensen's PRP claim to hold a fact-finding hearing to allow him an opportunity to demonstrate that the conflict "`adversely affected [the attorney's] performance.'" Jensen, 125 Wn. App. at 331 (quoting State v. Dhaliwal, 150 Wn.2d 559, 571, 79 P.3d 432 (2003)). He assigns error to each of the trial court's post-remand findings of fact and to one conclusion of law:

FINDINGS OF FACT

1. The primary arguments asserted by the defendant in this hearing were: (a) that the defendant had difficulty communicating with defense counsel during the time leading up to trial; (b) that defense counsel did not interview a minor named David as a potential defense witness; and (c) that defense counsel failed to call certain witnesses to testify at trial.

2. While the defendant may have had some difficulty contacting defense counsel during the period of time leading up to the trial of this Cause, resulting in the defendant having feelings of anxiety and frustration, there has been no showing that this difficulty in communication had a prejudicial impact on defense counsel's performance.

3. Defendant's trial counsel relied significantly upon investigator Susan Watts for the defense investigation in preparation for trial, including contact with potential witnesses. On September 10, 2002, Watts became aware for the first time that the State would not divulge the whereabouts of a minor named David, whom Watts was seeking to interview as a possible defense witness.

4. Watts apparently had no difficulty communicating with defense counsel about this problem with contacting David, since a motion to continue the trial because of this problem was filed by defense counsel three days later.

5. The defense motion to continue the trial was denied. Thereafter, neither

Watts nor defense counsel was able to contact David prior to the trial of this cause, nor did David testify at the trial. However, nothing in the record shows that David would have had important evidence to present to the jury.

6. Defendant's counsel did prepare for trial, did discuss with the defendant a defense to present at trial, did put together that defense, and did have appropriate defense witnesses available at the trial to testify.

7. During the presentation of the defense case at trial, defendant's counsel became convinced that the jury was prepared to find in favor of the defendant, and therefore made the tactical decision not to call a number of potential defense witnesses to testify. While this decision may have been a mistake, no evidence has been shown indicating that this decision was the result of the charges pending against defense counsel. Rather, the decision was based on defense counsel's sense of the jury.

8. To the extent that there were deficiencies in defense counsel's representation of the defendant, there has been no showing that any such deficiency was caused by the existence of charges pending against defense counsel.

CONCLUSION OF LAW

3. The defendant has failed to meet his burden of showing an adverse impact on defense counsel's performance resulting from the charges pending against defense counsel.

CP at 109-11.

We first note that although Jensen assigned error to the trial court's eight findings, his brief does not question findings 1, 3, or 4. Thus, we do not address whether substantial evidence supports those findings. See Thomas, 150 Wn.2d at 868-69 (holding that an appellate court need not address issues inadequately briefed).

Regarding finding 2, the evidence showed that Jensen, his wife, and his private investigator each found defense counsel to be increasingly difficult to reach by phone or to set up an appointment with during the period between Jensen's arraignment and trial. But our review of the record reveals nothing to show that this difficulty affected defense counsel's performance.

Defense counsel testified that it was common for him not to be immediately available to address clients' concerns due to "the nature of the practice." RP (June 28, 29, 30, 2006) at 108.

As the trial court noted in its oral ruling, difficulty in contacting an attorney is "not uncommon and is often not prejudicial . . ." absent some further showing. RP (June 28, 29, 30, 2006) at 209. We find that substantial evidence supports this finding of fact.

Jensen's argument regarding finding 5 and the testimony of the victim's brother addresses neither the information that he might have provided, nor the importance of that information. Because the record reveals no indication of or an offer of proof as to what the brother might have testified to, substantial evidence supports this finding of fact.

There is also no evidence that the victim's brother was present during any of the incidents of abuse.

Concerning finding 6, the record demonstrates that Jensen's strategy at trial was to attack the victim's credibility. With that in mind, defense counsel had Watts, an experienced investigator in whom he had great confidence, interview several witnesses and photograph the alleged crime scene. He had several witnesses prepared and available to testify at trial. He also met with Jensen to discuss trial strategy before trial. Substantial evidence supports the finding that defense counsel was prepared for trial.

Finding 7 arose from defense counsel's uncontradicted testimony that during trial, he became convinced that the jury was set to find in Jensen's favor and decided not to call a number of witnesses. Jensen presented no evidence to indicate that the decision was the result of charges pending against defense counsel.

Regarding finding 8, that Jensen failed to demonstrate that defense counsel's own pending charges caused any deficiency, Jensen presented no evidence or testimony connecting his counsel's performance to his counsel's own pending charges. Substantial evidence supports the trial court's finding that there was no showing that defense counsel's pending charges caused any inadequate representation.

Finally, Jensen assigns error to the trial court's conclusion that the defendant failed to meet his burden of showing that the charges against defense counsel caused an adverse impact on his performance in defending Jensen. Jensen best summarizes his argument in his statement that defense counsel's "failure to properly investigate Jensen's case? demonstrates how his counsel's actual conflict adversely affected his performance. . . ." Appellant's Br. at 17. As Jensen's own counsel acknowledged to the trial court during arguments, his case was based on circumstantial evidence and would require a court to make the "reasonable assumption" that any lack of preparedness is, in and of itself, evidence that defense counsel's own charges affected his preparation. RP (June 28, 29, 30, 2006) at 204.

The primary difficulty with Jensen's argument is that, as detailed above, substantial evidence supports the trial court's finding that defense counsel's performance and preparation were not substandard. Furthermore, even if we assume that defense counsel was ill-prepared for trial, Jensen's argument does not show that he was ill-prepared because of his conflict of interest.

As we noted previously, Jensen had the burden of stating "particular facts, which, if proved, would entitle him to relief" and that those facts must amount to "more than speculation, conjecture, or inadmissible hearsay." Jensen, 125 Wn. App. at 332. Because he has not provided such evidence, Jensen fails to show the existence of "an actual conflict of interest that adversely affected [defense counsel's] representation of Jensen." Jensen, 125 Wn. App. at 335. Substantial evidence supports the findings of fact and they, in turn, support its conclusion of law.

Affirmed.

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 pursuant to RCW 2.06.040, it is so ordered.

BRIDGEWATER, J. and QUINN-BRINTNALL, J., concur.


Summaries of

State v. Jensen

The Court of Appeals of Washington, Division Two
Jul 22, 2008
146 Wn. App. 1003 (Wash. Ct. App. 2008)
Case details for

State v. Jensen

Case Details

Full title:THE STATE OF WASHINGTON, Respondent, v. JONATHAN J. JENSEN, Appellant

Court:The Court of Appeals of Washington, Division Two

Date published: Jul 22, 2008

Citations

146 Wn. App. 1003 (Wash. Ct. App. 2008)
146 Wash. App. 1003