Opinion
No. 62743-1-I.
January 25, 2010.
Appeal from a judgment of the Superior Court for Snohomish County, No. 08-1-00877-5, Ronald L. Castleberry, J., entered December 8, 2008.
Affirmed by unpublished opinion per Lau, J., concurred in by Schindler, C.J., and Appelwick, J.
Kevin Gratias challenges his convictions for second degree child molestation and communication with a minor for immoral purposes. He contends the trial court erred in denying his mistrial motion after a detective referred to a witness interview despite a ruling in limine not to do so. Because Gratias fails to show the detective's reference was a serious trial irregularity that prejudiced the outcome of the trial, we affirm.
FACTS
In the summer of 2007, J.D. began baby-sitting for her stepuncle, Kevin Gratias. She was 13 years old at the time and Gratias's daughter, A.G., was 9 or 10. J.D. was eager to earn money to buy a cell phone, and Gratias offered to pay her $100 a week. She started baby-sitting in late June or early July. She stayed at Gratias's house during the week and generally slept on the couch.
After J.D. arrived, Gratias offered her another job, massaging his feet for $10 an hour. He also began a series of "sex advice" conversations with J.D. He suggested that premarital sex was good because men like women with experience. He also told her they could not watch a movie because it starred Jennifer Lopez and she "made him horny." 1 Verbatim Report of Proceedings (VRP) (Oct. 14, 2008) at 37. On one occasion when J.D. was massaging his feet, Gratias watched a pornographic video until she told him to turn it off.
Three weeks after J.D. began staying with Gratias, he switched to the night shift and offered to let J.D. stay in his bed while he was at work. On the first night, Gratias came home in the early hours of the morning and joined J.D. in the bed. At one point, Gratias put his hand on J.D.'s upper thigh and began groping her crotch. She estimated that this continued for between three and five minutes before he stopped.
After this incident, J.D. avoided Gratias until she left his house four or five days later. Over the course of the next several weeks, she told her mother about her stepuncle's actions, and her mother called the police. Detective Peter Barrett interviewed J.D. and A.G. A.G. said she did not see anything unusual between Gratias and J.D. and that her father had never abused her.
Detective Barrett also conducted two interviews with Gratias. In the second interview, Gratias admitted that J.D. slept in his bed and at one point, he discovered his hand was on top of her underwear. He told Detective Barrett that his fingers were moving with a rubbing motion but that it was not intentional. At another point in the interview Gratias admitted that the touching "wasn't a complete accident." VRP (Oct. 14, 2008) at 166.
The State charged Gratias with two counts of second degree child molestation and one count of communication with a minor for immoral purposes. Before trial, the State made several motions in limine, including the following:
That the defense be precluded from mentioning or attempting to elicit evidence that the defendant's child(ren) have not disclosed any abuse, that he is still allowed to see them (or any other child), that they were interviewed, or that he has not been accused of child molestation in the past. This evidence is irrelevant and inadmissible as propensity evidence.
Defensecounsel agreed and specifically requested that there be no mention of the interview with A.G. because "if the jury hears that there was an interview but didn't hear that she didn't disclose anything . . ., I think they'll just make assumptions and I think that's prejudicial." VRP (Oct. 13, 2008) at 10. The State agreed, and the court ruled that there would be no mention of the interview with A.G.
At trial, J.D. testified about the "sex advice," the "love taps," and the incident in Gratias's bed. Her mother testified about what J.D. told her. Detective Barrett testified about his investigation. During his testimony, the following exchange took place:
Q. Did you make a phone call to set up a child interview or anything like that?
A. I did, actually, that's correct.
Q. When was that?
A. I ended up setting up two interviews, actually. In fact, the first place I spoke with [J.D.'s mother], now that I look at in report, was actually in August, August 7, 2000. But I set up two different interviews. The first one was an interview to have [A.G.] interviewed. The second one was the one I spoke with [J.D's mother] at the beginning of August to have [J.D.] interviewed by Pierce County Sheriff's Office.
VRP(Oct. 14, 2008) at 134-35.
Gratias immediately requested that the jury be excused and then moved for a mistrial. The deputy prosecuting attorney conceded that the inadvertent reference to the interview with A.G. violated the order in limine but argued that a mistrial was not warranted. She noted that there had never been any suggestion that A.G. alleged abuse and concluded, "[A]n instruction to disregard would be sufficient, if anything is really needed." VRP (Oct. 14, 2008) at 136. Defense counsel disagreed, arguing, "[I]t's incredibly prejudicial to my client to hear that and not know what was the outcome of the interview." VRP (Oct. 14, 2008) at 137. The court ruled,
THE COURT: Well, the way to easily cure this is to have the detective testify that in fact [A.G.] said that she didn't see anything. End of interview. End of testimony.
. . . .
That takes care of any inference of anything else. There is no prejudice to the defendant. In fact, it's what [A.G.] said.
[DEPUTY PROSECUTING ATTORNEY]: So we'll just focus that it was about this case, rather than —
THE COURT: You won't even mention did he ever touch you or anything else like that. The question will be from you, in the interview with [A.G.], did she indicate that she had ever seen anything with the defendant and [J.D]. His answer will be she said she never saw anything.
VRP(Oct. 14, 2008) at 136. When the jury returned, Detective Barrett testified that A.G. did not report witnessing anything unusual between J.D. and her father. He went on to discuss his interviews with Gratias, including Gratias's admission that he "unintentionally" rubbed J.D.'s crotch. Gratias renewed his mistrial motion, but the court denied his request.
The jury convicted Gratias of one count of second degree child molestation and one count of communication with a minor for immoral purposes. Gratias appeals.
The court dismissed the second child molestation count after the State rested.
ANALYSIS
Gratias contends the court erred in denying his request for a mistrial after Detective Barrett referred to arranging an interview with A.G. despite the pretrial order not to do so. We review the denial of a motion for mistrial for an abuse of discretion. State v. McKenzie, 157 Wn.2d 44, 51, 134 P.3d 221 (2006). We will find an abuse of discretion only when "`no reasonable judge would have reached the same conclusion.'" State v. Hopson, 113 Wn.2d 273, 284, 778 P.2d 1014 (1989) (quoting Sofie v. Fibreboard Corp., 112 Wn.2d 636, 667, 771 P.2d 711, 780 P.2d 260 (1989)). Because declaration of a mistrial is a "drastic measure," trial courts should grant mistrial requests only "when the defendant has been so prejudiced that nothing short of a new trial can ensure that the defendant receives a fair trial." State v. Jungers, 125 Wn. App. 895, 901-02, 106 P.3d 827 (2005); State v. Falk, 17 Wn. App. 905, 908, 567 P.2d 235 (1977). And "the trial court is in the best position to determine if an irregularity at trial caused prejudice. . . ." State v. Ford, 151 Wn. App. 530, 538, 213 P.3d 54 (2009). Ultimately, we will reverse the trial court only if there is a substantial likelihood the trial irregularity prompting the mistrial motion affected the jury's verdict. State v. Rodriguez, 146 Wn.2d 260, 269-70, 45 P.3d 541 (2002).
Here, Gratias argues the detective's reference to the interview with A.G. prejudiced his right to a fair trial because the jury could have inferred that when interviewed, his daughter accused him of abusing her even though there were no such allegations before them. If the jury inferred this from the interview reference, they could have concluded Gratias had a propensity for molesting young girls and unfairly convicted him of molesting J.D. on that basis.
To support his argument, Gratias relies on State v. Escalona, 49 Wn. App. 251, 742 P.2d 190 (1987), where we held the trial court abused its discretion in denying the defendant's mistrial motion. But in that case, a witness improperly testified that the defendant had previously committed a similar crime to the one with which he was charged. Escalona, 49 Wn. App. at 253. We held that "the jury undoubtedly would use [this testimony] for its most improper purpose, that is, to conclude that Escalona acted on this occasion in conformity with the assaultive character he demonstrated in the past." Escalona, 49 Wn. App. at 256.
Here, in contrast, there was no testimony that Gratias committed sexual crimes in the past or that he had been accused of molesting anyone but J.D. It is purely speculative to assume the jury would infer Gratias abused A.G. merely from the fact that Detective Barrett arranged an interview with her. Further, the trial court immediately took steps to minimize the risk of such an inference by having the deputy prosecuting attorney frame the interview as one in which the information sought was whether A.G. witnessed anything unusual between Gratias and J.D. This remedy alleviated the possibility of prejudice from the detective's inadvertent reference.
In any event, the State's case against Gratias was overwhelming. J.D.'s description of what happened was not impeached with inconsistent statements, and the jury heard of Gratias's own admission that he rubbed J.D.'s underwear and that it "wasn't a complete accident." VRP (Oct. 14, 2008) at 163. Under these circumstances, there is not a substantial likelihood that Detective's Barrett's interview reference affected the jury's verdict.
For the foregoing reasons, we affirm.