Opinion
No. 38018-8-II.
October 20, 2009.
Appeal from the Superior Court, Lewis County, No. 07-1-00498-4, James W Lawler, J., entered July 17, 2008.
Affirmed by unpublished opinion per Armstrong, J., concurred in by Van Deren, C.J., and Bridgewater, J.
Barry Draggoo appeals the exceptional sentence imposed following his conviction of first degree child molestation. Draggoo argues that he is entitled to a retrial on the aggravating factors supporting his sentence because of witness misconduct and instructional error. We affirm.
Facts
Kristi and Barry Draggoo were married in February 1998. Kristi had a three-year-old daughter, D.E., and the family first lived in Rochester. The Draggoos had a daughter and moved to Centralia in 2000, where their son was born. The family moved to the Richland/Tri-Cities area in 2006. Draggoo often was responsible for the children when Kristi was at work.
We refer to Kristi Draggoo by her first name for clarity. We intend no disrespect.
In 2005, while the family was living in Centralia, Kristi found some things on the family computer that upset her. She asked Draggoo to leave the family home and asked her daughters whether he had touched them inappropriately. They said he had not. Within a few weeks, Draggoo moved back into the family home.
After the family moved to Richland, Kristi again became upset at what she found on the computer. She kicked Draggoo out of the house and filed for divorce. When Kristi again asked D.E. whether Draggoo had touched her inappropriately, D.E. responded that he had.
Kristi contacted the Lewis County Sheriff's Office, which charged Draggoo with seven counts of first degree child molestation against D.E., with each count allegedly occurring between June 1, 2000 and July 31, 2006. Each count also alleged that Draggoo committed multiple incidents of sexual abuse over a prolonged period of time, while acting from a position of trust.
Before trial, the court entered an order in limine prohibiting the mention of additional charges against Draggoo or the potential for other victims. During trial, a nurse at a sexual assault clinic testified that she took a patient history from D.E., who told her that Draggoo began touching her in the genital area when she was three or four years old, stopping only after he and her mother separated. D.E. said Draggoo sexually abused her whenever her mother was not present and told her not to tell.
D.E. testified that Draggoo touched her genital area multiple times in Rochester, Centralia, and the Tri-Cities. She said that her mother was absent every time, and that Draggoo told her not to tell "or else we might get separated." Report of Proceedings (RP) at 85. She also testified that she was three when the abuse started. Two therapists and D.E.'s sixth-grade teacher testified that D.E. exhibited symptoms of post-traumatic stress disorder.
Kristi also testified. When asked whether Draggoo had fathered any of her three children she replied, "He's the sperm donor on the last two[.]" RP at 216. The defense did not object. After Kristi testified that she and Draggoo married in 1998, she turned her head toward him and inaudibly mouthed a comment. The record does not describe the comment further, and there was no reaction from the court or the parties. Kristi then described seeing disturbing images on the
computer for the second time and asking Draggoo to leave. The following exchange occurred:
Q: After you asked him to leave, did you approach your daughters again?
A: Yeah, I did.
Q: And tell me how that went.
A: Actually, I asked them both together. And come to find out, neither one of them knew about each other, so . . .
RP at 223. The defense objected and requested a hearing. In the jury's absence, the defense requested a dismissal or mistrial, arguing that Kristi had just asserted that both daughters had disclosed abuse by Draggoo. The trial court declined to dismiss or grant a mistrial, ruling that Kristi's statement was "fairly innocuous" and could be interpreted in different ways. RP at 226.
The court offered to give the jury a limiting instruction that the defense declined.
After the lunch recess, the defense renewed its motion for a mistrial, stating that Kristi had mouthed the word "asshole" in Draggoo's direction when she was on the stand. RP at 228-29. The court denied seeing anything, but noted that the court reporter had seen Kristi mouth a comment in Draggoo's direction. "I don't know if anybody else saw it." RP at 228. The court again declined to order a mistrial but cautioned Kristi that further misconduct could jeopardize the case and result in her being found in contempt. When Kristi resumed testifying, she described finding Draggoo at D.E.'s bedside in 2005, with his hands moving off her breast and genital areas.
The final witness for the State was an inmate who was Draggoo's cellmate for two months after Draggoo's arrest. He said that Draggoo spoke in some detail about molesting D.E. from the time she was 4 until she was 11 or 12. The defense rested without offering any witnesses.
Neither party objected or took exception to the jury instructions. The trial court instructed the jury that it had to be unanimous on each count of child molestation to find the defendant guilty and that it had to unanimously agree on each aggravating factor alleged in the special verdict forms. The jury entered a guilty verdict on count one and answered "yes" on each special verdict relating to that count. RP at 365, 373. The jury could not reach a verdict on the remaining counts, however, so the trial court granted a mistrial on those counts.
At sentencing, the trial court imposed an exceptional sentence of 120 months based on the jury's findings in the special verdicts. The trial court observed that any of the three aggravating factors would justify the exceptional sentence.
Draggoo now appeals that sentence.
Analysis I. Witness Misconduct
Draggoo first contends that the trial court deprived him of a fair trial when it denied his motion for a mistrial based on witness misconduct.
Because the trial judge is in the best position to determine the prejudice of circumstances at trial, we review the decision to deny a mistrial for abuse of discretion. State v. Babcock, 145 Wn. App. 157, 163, 185 P.3d 1213 (2008). A trial court should grant a mistrial when an irregularity in trial proceedings is so prejudicial, viewed in light of all the evidence, that it deprives the defendant of a fair trial. State v. Post, 118 Wn.2d 596, 620, 826 P.2d 172, 837 P.2d 599 (1992). In determining whether an irregularity deprived the defendant of a fair trial, we consider the seriousness of the irregularity; whether the statement in question was cumulative of other evidence properly admitted; and whether the irregularity could be cured by an instruction to disregard the remark. State v. Condon, 72 Wn. App. 638, 647, 865 P.2d 521 (1993).
Draggoo contends that a serious irregularity occurred when his wife defied the trial court's pretrial order and testified that he had molested their other daughter. He cites several cases explaining the prejudice that results when the State elicits evidence that the defendant previously committed the type of offense for which he is currently charged. See State v. Acosta, 123 Wn. App. 424, 438, 98 P.3d 503 (2004) (doctor's testimony regarding defendant's prior arrests and convictions was highly prejudicial because the offenses were similar to some of the current charges); State v. Pogue, 104 Wn. App. 981, 984, 17 P.3d 1272 (2001) (court accepted State's concession that eliciting admission from defendant that he had possessed cocaine in the past was prejudicial error in his trial for cocaine possession); State v. Escalona, 49 Wn. App. 251, 256, 742 P.2d 190 (1987) (court abused its discretion in denying mistrial where witness testified that defendant, who was on trial for assault with a knife, had a prior conviction for having stabbed someone).
The comment at issue here does not compare to the highly prejudicial testimony described above. As the trial court noted, Kristi's statement was ambiguous and did not, contrary to Draggoo's assertions on appeal, inform the jury that he had assaulted her other daughter. The court offered to give the jury a limiting instruction, but the defense rejected that offer. We conclude that the trial court properly addressed this irregularity.
Draggoo argues further, however, that the prejudicial effect of this statement was exacerbated by Kristi's "sperm donor" remark and her mouthing of the word "asshole" in his direction. He argues that this conduct improperly communicated Kristi's opinion that he was guilty to the jury. See State v. Carlin, 40 Wn. App. 698, 701, 700 P.2d 323 (1985) (witness's opinion as to defendant's guilt is improper because determination of guilt is solely for the trier of fact), overruled on other grounds, City of Seattle v. Heatley, 70 Wn. App. 573, 854 P.2d 658 (1993). The defense made no objection to the "sperm donor" remark at trial, and we do not see it as a definitive statement of guilt. Accordingly, we decline to address it here. See State v. Kirkman, 159 Wn.2d 918, 926-27, 155 P.3d 125 (2007) (improper to invade the jury's province by holding that unobjected-to opinion testimony is manifest error absent explicit witness statement of guilt).
Draggoo did object to Kristi's mouthing of the word "asshole," though not when it occurred. Indeed, neither party nor the trial court observed it, though the court reporter did note it in the record. Accordingly, we cannot assume that the jury saw it and was affected thereby. Even if the jury did see it, Kristi testified that she had filed for divorce from Draggoo and that she harbored animosity toward him. Both the "sperm donor" and "asshole" comments were additional evidence of animosity rather than a belief in guilt, and thus were merely cumulative of other evidence. We do not see that the irregularities in Kristi's testimony deprived Draggoo of a fair trial, in light of all the evidence, and we see no abuse of discretion in the trial court's decision to deny his motions for a mistrial.
II. Unanimity on Aggravating Factors
Draggoo also argues that the trial court failed to adequately instruct the jury that it had to be unanimous as to the aggravating sentencing factors, thereby violating his constitutional right to a unanimous jury verdict. U.S. Const. amend. VI; Wash. Const. art. I, § 21. Draggoo may raise this issue for the first time on appeal. See State v. Davis, 141 Wn.2d 798, 866, 10 P.3d 977 (2000) (alleged error in jury instruction is of sufficient constitutional magnitude to be raised for first time on appeal). We review Draggoo's challenge to the court's instructions de novo. State v. Price, 126 Wn. App. 617, 646, 109 P.3d 27 (2005).
The State alleged three aggravating factors: that Draggoo used his position of trust or confidence to facilitate the crime; that the offense involved a family or household relationship and was part of an ongoing pattern of sexual abuse manifested by multiple incidents over a prolonged period of time; and that the offense was part of an ongoing pattern of sexual abuse of the same victim under age 18 manifested by multiple incidents over a prolonged period of time. In addition to the three special verdict forms asking whether each aggravating factor was proven, the court gave the jury the following instruction:
You will also be given special verdict forms for the crimes of Child Molestation in the First Degree as charged in count I to VII. If you find the defendant not guilty of these crimes, do not use the special verdict forms. If you find the defendant guilty of any count of Child Molestation in the First Degree, you will then use the special verdict form with the corresponding letter and fill in the blank with the answer "yes" or "no" according to the decision you reach. In order to answer the special verdict forms "yes," you must unanimously be satisfied beyond a reasonable doubt that "yes" is the correct answer. If any one of you has a reasonable doubt as to the question, you must answer "no." If you unanimously have a reasonable doubt as to this question, you must answer "no."
Clerk's Papers (CP) at 81 (emphasis added). The jury answered "yes" on each special verdict form pertinent to count one. CP at 52-54.
Although an aggravating factor is not an element of the underlying crime, it must be proved to a trier of fact as if it were an element. State v. Roswell, 165 Wn.2d 186, 193, 196 P.3d 705 (2008). A jury thus must be unanimous in finding an aggravating factor proven, as RCW 9.94A.537(3) explains: "The facts supporting aggravating circumstances shall be proved to a jury beyond a reasonable doubt. The jury's verdict on the aggravating factor must be unanimous, and by special interrogatory."
Draggoo maintains that the unanimity requirement means that the jury was required to unanimously agree on which acts of abuse constituted the aggravating factors. He maintains that while each juror may have been convinced that the State proved multiple acts over an extended period of time, they may have disagreed on which acts were proven and on when they occurred. He asserts, without citation to authority, that the jury instructions were inadequate because they did not require this additional layer of unanimity.
The trial court addressed the evidence supporting the aggravating factors in observing that the lack of unanimity on six of the seven counts charged did not preclude the jury from finding the aggravating factors concerning multiple offenses proven.
The fact that there was only a finding of guilty on one does not preclude a finding of this — of these aggravating circumstances. That could be found, even if there is only one case charged. I am satisfied and the jury was satisfied that there was evidence to prove the ongoing pattern of abuse over a prolonged period of time and that is the basis.
RP (July 9, 2008) at 14-15. In the absence of authority to support his position, we reject Draggoo's argument that the jury had to be unanimous as to which acts constituted the ongoing pattern of abuse alleged in two of the aggravating factors. The evidence was more than sufficient to support these factors.
Draggoo also argues that the jury could have disagreed on when, during the several years of abuse, he was acting from a position of trust or confidence. Draggoo was D.E.'s stepfather during the entire period he lived with her, and the testimony showed that she trusted him and considered him to be her father. There was no need for any additional finding of unanimity regarding this aggravating factor.
The trial court stated that any of the three aggravating factors would support the exceptional sentence it imposed. Consequently, the abuse of a position of trust factor justifies Draggoo's sentence without regard to the remaining aggravating factors. See State v. Cardenas, 129 Wn.2d 1, 12, 914 P.2d 57 (1996) (reviewing court may uphold exceptional sentence if only one of multiple aggravating factors is valid, if it is satisfied that the trial court would have imposed the same sentence based solely on valid factor).
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 VAN DEREN, C.J., concur.