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In Mansour, the Court rejected the defendant's claims that the use of the victim's initials in the to-convict instructions (1) constituted an impermissible judicial comment on the evidence, (2) relieved the State of its burden of proof, and (3) together with the use of the victim's initials in other court documents, amounted to a court closure in violation of defendant's right to a public trial.
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No. 78708-0-I
08-24-2020
STATE of Washington, Respondent, v. Eli Hikmat MANSOUR, Appellant.
Gregory Charles Link, Kate Benward, Washington Appellate Project, 1511 3rd Ave. Ste. 610, Seattle, WA, 98101-1683, for Appellant. Prosecuting Attorney Snohomish, Snohomish County Prosecuting Attorney, Seth Aaron Fine, Snohomish Co. Pros. Ofc., 3000 Rockefeller Ave. M/s 504, Everett, WA, 98201, for Respondent.
Gregory Charles Link, Kate Benward, Washington Appellate Project, 1511 3rd Ave. Ste. 610, Seattle, WA, 98101-1683, for Appellant.
Prosecuting Attorney Snohomish, Snohomish County Prosecuting Attorney, Seth Aaron Fine, Snohomish Co. Pros. Ofc., 3000 Rockefeller Ave. M/s 504, Everett, WA, 98201, for Respondent.
PUBLISHED IN PART
Smith, J. ¶1 Eli Mansour appeals his conviction of child molestation in the first degree for abusing his daughter, A.M. He contends that the trial court erred by using A.M.’s initials rather than her full name in the to-convict instruction, that the use of A.M.’s initials in various court filings violated Mansour's right to a public trial, that the prosecutor committed reversible misconduct, and that the trial court erred by denying Mansour's request for a Special Sex Offender Sentencing Alternative (SSOSA). He also challenges a number of community custody conditions imposed as part of his sentence.
¶2 In the published part of this opinion, we hold that contrary to Mansour's contentions, the use of A.M.’s initials in the to-convict instruction did not constitute a judicial comment on the evidence or relieve the State of its burden of proof. We also hold that the use of A.M.’s initials did not constitute a court closure and, thus, did not violate Mansour's public trial right.
¶3 In the unpublished part of this opinion, we hold that although some of the prosecutor's comments during closing were improper, they do not warrant reversal. We also hold that the trial court did not abuse its discretion by denying Mansour's request for a SSOSA sentence. But we hold that the community custody condition directing Mansour not to "form relationships" with families with minor children, except as approved by his community corrections officer (CCO), is unconstitutionally vague, and we accept the State's concession that the condition requiring Mansour to complete "identified interventions" should be stricken. We therefore remand to the trial court to revise appendix 4.2 to the judgment and sentence as follows: (1) strike "or form relationships with families" from condition 8 and (2) strike condition 25. Otherwise, we affirm.
FACTS
¶4 A.M. was born to Mansour and his then girlfriend, Roxanne Pinto, in August 2008. According to Pinto, she and Mansour fought a lot and "were drinking quite a bit" when A.M. was first born. Pinto later recalled that when A.M. was about two years old, she and Mansour "smoked pills and then eventually it turned to meth." Mansour's father, Joe Mansour, called Child Protective Services (CPS), and after a family planning meeting, A.M. was placed with Joe and Mansour's mother, Gail. A.M. lived with Joe and Gail from the time she was two and a half years old until she was just under five years old. Meanwhile, Mansour went to treatment, and eventually, A.M. moved back with Mansour. Joe believed that Pinto had her own place at the time but would also stay with Mansour and A.M.
Because Mansour and his parents share a last name, we refer to Mansour's parents by their first names for clarity.
¶5 Joe later testified that sometime in 2014, Mansour called him to tell him that Pinto had relapsed and that he needed Joe and Gail, who had since moved to Arizona, to "come back and help with [A.M.]" Joe asked Mansour whether he would be willing to let A.M. go to Arizona, and A.M. ultimately went to Arizona with Joe and Gail for a time. Meanwhile, Pinto went to California to help her mother and to try to "get clean."
¶6 According to Joe's later testimony, A.M. moved back to Washington at the end of May 2014. By that time, Mansour had begun dating Mary Barbour. In January 2015, Mansour, Barbour, and A.M. moved to Arizona. They stayed there until August 2015, when they moved back to Washington after Barbour became pregnant. A.M.’s half sister, L.M., was born in March 2016, when A.M. was seven years old. Eventually, Mansour, Barbour, A.M., and L.M. moved into a house in Mountlake Terrace that they rented from Joe and Gail.
¶7 On September 17, 2016, after a morning of shopping with Barbour, L.M., Barbour's sister Carolyn Wilson, and Wilson's daughter, A.M. asked if she could spend the night with Wilson. Wilson later testified that during the lengthy drive to her home in Redmond, A.M. disclosed to Wilson that Mansour had sexually abused her. Wilson later called 9-1-1 to report A.M.’s disclosure. ¶8 On February 20, 2017, the State charged Mansour by information with one count of first degree rape of a child. The State later added one count of first degree child molestation. Trial took place over more than two weeks in April and early May 2018. Mansour's defense theory was that A.M.’s disclosure was false and resulted from a "perfect storm" of influences. These included Pinto, with whom A.M. had recently gotten back in touch by phone and who, according to Mansour, "desperately wanted her daughter back." The "perfect storm" also included A.M.’s "tough childhood"; A.M.’s feeling replaced by L.M.; A.M.’s decision to talk to Wilson, who Mansour argued was "prone to fabrication ... [and] to sensationalism"; the presence of guests, including men, who had recently spent the night at the house where Mansour, Barbour, A.M., and L.M. lived; A.M.’s access to cable television; and an inadequate investigation by law enforcement. ¶9 The jury was ultimately deadlocked as to the charge of first degree rape of a child, and the trial court later dismissed that charge. The jury found Mansour guilty of first degree child molestation. The trial court sentenced Mansour to an indeterminate term of 64 months to life in confinement and imposed a lifetime term of community custody. Mansour appeals. Additional facts relevant to the issues on appeal are set forth in the discussion of those issues below.
ANALYSIS
Use of A.M.’s Initials
¶10 Mansour contends that the use of A.M.’s initials, instead of her full name, in the to-convict instruction (1) constituted an impermissible judicial comment on the evidence, (2) relieved the State of its burden of proof, and (3) together with the use of A.M.’s initials in other court documents, amounted to a court closure in violation of Mansour's right to a public trial. We disagree. Use of Initials as Judicial Comment on the Evidence
¶11 Article 4, section 16 of the Washington Constitution provides that "[j]udges shall not charge juries with respect to matters of fact, nor comment thereon, but shall declare the law." This constitutional provision prohibits a judge "from ‘conveying to the jury his or her personal attitudes toward the merits of the case’ or instructing a jury that ‘matters of fact have been established as a matter of law.’ " State v. Levy, 156 Wash.2d 709, 721, 132 P.3d 1076 (2006) (quoting State v. Becker, 132 Wash.2d 54, 64, 935 P.2d 1321 (1997) ). A claimed error alleging an improper judicial comment on the evidence may be raised for the first time on appeal. Levy, 156 Wash.2d at 719-20, 132 P.3d 1076. We review de novo whether a jury instruction constituted an improper comment on the evidence "within the context of the jury instructions as a whole." Levy, 156 Wash.2d at 721, 132 P.3d 1076.
¶12 Here, the to-convict instruction for the child molestation charge provided in relevant part:
To convict the defendant of the crime of Child Molestation in the First Degree, ... each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about the 1st day of May, 2016, through on or about the 17th day of September, 2016, ... the defendant had sexual contact with A.M.;
(2) That A.M. was less than twelve years old at the time of the sexual contact and was not married to the defendant;
(3) That A.M. was at least thirty-six months younger than the defendant; and
(4) That this act occurred in the State of Washington.
Mansour contends that the trial court's use of A.M.’s initials in this to-convict instruction constituted a judicial comment on the evidence because it "conveyed to the jury that the court considered her a victim."
¶13 But the name of the victim of child molestation is not a factual issue requiring resolution. Therefore, identifying A.M. in the to-convict instruction, whether by full name or initials, did not impermissibly instruct the jury that a matter of fact had been established as a matter of law. See Levy, 156 Wash.2d at 722, 132 P.3d 1076 (concluding that court's use of a robbery victim's name in the to-convict instruction was not a comment on the evidence because the victim's name is not an element of robbery). And a juror would likely not presume that A.M. was a victim—or believe the court considered her one—merely because the court chose to use A.M.’s initials. Indeed, we have observed that even the court's use of the term "victim" has "ordinarily been held not to convey to the jury the court's personal opinion of the case." State v. Alger, 31 Wash. App. 244, 249, 640 P.2d 44 (1982). Therefore, we are unpersuaded that the use of A.M.’s initials in the to-convict instruction conveyed anything to the jury about the judge's " ‘personal attitudes toward the merits of the case,’ " much less that the judge considered A.M. a victim. Levy, 156 Wash.2d at 721, 132 P.3d 1076 (quoting Becker, 132 Wash.2d at 64, 935 P.2d 1321 ).
¶14 Furthermore, the federal cases on which Mansour relies are not persuasive. Both were civil cases in which the respective plaintiffs sought to use pseudonyms to conceal their identities throughout trial. See Doe v. Cabrera, 307 F.R.D. 1, 2 n.2 (D.D.C. 2014) ("[T]he plaintiff will be permitted to use a pseudonym throughout the pretrial process, but not at trial, if there is a trial in this case."); Doe v. Rose, No. CV-15-07503-MWF-JCx, 2016 WL 9150620, at *1 (C.D. Cal. Sept. 22, 2016) (court order) ("The Court reserved for the pretrial conference the question of whether Plaintiff would be permitted to use a pseudonym at trial."). Here, by contrast, A.M. was referred to by her full name throughout trial; her identity was not concealed. For these reasons, we hold that the use of A.M.’s initials in the to-convict instruction was not a judicial comment on the evidence. Use of Initials as Relieving State of its Burden of Proof
¶15 Mansour next contends that "[t]he use of [A.M.]’s initials in the ‘to convict’ instruction ... undermined the presumption of innocence by preemptively telling the jury that the court was protecting her as a victim" and that "[t]his was a powerful shifting of the burden onto Mr. Mansour to prove [A.M.] was not in fact his victim." He contends further that "[t]his deprived Mr. Mansour of his constitutional right to due process and to a fair and impartial jury." We disagree.
¶16 "Instructions must convey to the jury that the State bears the burden of proving every essential element of a criminal offense beyond a reasonable doubt." State v. Bennett, 161 Wash.2d 303, 307, 165 P.3d 1241 (2007). "It is reversible error to instruct the jury in a manner relieving the State of its burden to prove every element of a crime beyond a reasonable doubt." Bennett, 161 Wash.2d at 307, 165 P.3d 1241. An allegation that a jury instruction relieved the State of its burden is an error of constitutional magnitude reviewable for the first time on appeal. State v. Ridgley, 141 Wash. App. 771, 779, 174 P.3d 105 (2007). We review challenged jury instructions de novo in the context of the instructions as a whole. Bennett, 161 Wash.2d at 307, 165 P.3d 1241.
¶17 Here, as discussed, a juror would likely not presume that A.M. was a victim simply because of the use of her initials. Furthermore, the jury was specifically instructed that Mansour was presumed innocent and that the State must prove all elements of child molestation beyond a reasonable doubt. In short, the instructions, when viewed as a whole, did not undermine the presumption of innocence or relieve the State of its burden of proof. Therefore, we hold that the use of A.M.’s initials in the to-convict instruction did not deprive Mansour of due process or his right to a fair and impartial jury. Use of Initials as Court Closure
¶18 Finally, Mansour contends that the use of A.M.’s initials in the to-convict instruction and in various court documents violated Mansour's right to a public trial. We disagree.
¶19 "Both our federal and state constitutions guarantee a criminal defendant's right to a public trial." State v. Turpin, 190 Wash. App. 815, 818, 360 P.3d 965 (2015). And "[a]rticle I, section 10 of the Washington Constitution provides an additional guaranty of open court proceedings." Turpin, 190 Wash. App. at 818, 360 P.3d 965. "An alleged violation of the right to a public trial presents a question of law that this court reviews de novo." Turpin, 190 Wash. App. at 818, 360 P.3d 965. A public trial claim may be raised for the first time on appeal. Turpin, 190 Wash. App. at 819, 360 P.3d 965.
¶20 Here, Mansour asserts that the use of A.M.’s initials constituted a court closure for which the trial court was required to conduct an on-the-record analysis applying the framework set forth in Seattle Times Co. v. Ishikawa, 97 Wash.2d 30, 640 P.2d 716 (1982). He argues further that because the trial court did not conduct that analysis, reversal is required.
¶21 But an Ishikawa analysis is required only if the public trial right has been implicated and if a closure has occurred. Specifically, to determine whether a closure was justified, courts apply a three-part test. State v. Smith, 181 Wash.2d 508, 513-14, 334 P.3d 1049 (2014). First, the court asks whether the proceeding at issue implicates the public trial right. Smith, 181 Wash.2d at 514, 334 P.3d 1049. If the answer is yes, the court next asks whether there was a closure. Smith, 181 Wash.2d at 520, 334 P.3d 1049. Finally, and only if the answer to that question is also yes, the court must determine whether the closure was justified by applying the framework set forth in Ishikawa. See State v. Bone-Club, 128 Wash.2d 254, 258-59, 906 P.2d 325 (1995) (courts apply and weigh the five factors set forth in Ishikawa when determining whether to close a courtroom).
¶22 With regard to the second part of the test, our Supreme Court has recognized two types of courtroom closures: First, " ‘when the courtroom is completely and purposefully closed to spectators so that no one may enter and no one may leave,’ " and second, "where a portion of a trial is held someplace ‘inaccessible’ to spectators." State v. Love, 183 Wash.2d 598, 606, 354 P.3d 841 (2015) (quoting State v. Lormor, 172 Wash.2d 85, 93, 257 P.3d 624 (2011) ).
¶23 Here, A.M. testified using her full name in open court and was consistently referred to by her full name throughout the proceedings. Furthermore, A.M.’s name was fully accessible to spectators and open to any member of the public who appeared in court or read a transcript of the court proceedings. In short, no closure occurred, and thus, no Ishikawa analysis was required.
¶24 Mansour disagrees and relies on Hundtofte v. Encarnacion, 181 Wash.2d 1, 330 P.3d 168 (2014) (plurality opinion), to argue that the use of A.M.’s initials constituted a closure. But Hundtofte is distinguishable because it involved a motion to alter an existing court record by replacing the defendants’ full names with their initials. 181 Wash.2d at 12, 330 P.3d 168 (Madsen, C.J., concurring). Here, by contrast, Mansour challenges the use of A.M.’s initials in the first instance. Furthermore, Hundtofte was a plurality opinion in which the justice concurring on the narrowest grounds concluded that no Ishikawa analysis was necessary because the issue was entirely controlled by GR 15. See Hundtofte, 181 Wash.2d at 12, 330 P.3d 168 (Madsen, C.J., concurring); see also Kitsap All. of Prop. Owners v. Cent. Puget Sound Growth Mgmt. Hr'gs Bd., 152 Wash. App. 190, 197, 217 P.3d 365 (2009) ("When dealing with a plurality opinion, the holding of the court is the position of the justice(s) concurring on the narrowest grounds."). For these reasons, Hundtofte does not support the proposition that an Ishikawa analysis was required here. ¶25 Mansour also relies on Allied Daily Newspapers of Washington v. Eikenberry, 121 Wash.2d 205, 848 P.2d 1258 (1993), to argue that the use of A.M.’s initials constituted a closure. But Allied Daily Newspapers involved a challenge to a statute that required courts "to ensure that information identifying child victims of sexual assault is not disclosed to the public or press during the course of judicial proceedings or in any court records ." 121 Wash.2d at 207, 848 P.2d 1258 (emphasis added). Here, by contrast, the public did have access to information identifying A.M. by her full name.
¶26 Finally, Mansour cites Doe G v. Department of Corrections, in which our Supreme Court concluded an Ishikawa analysis was required to determine whether litigants should be allowed to proceed with litigation using pseudonyms. 190 Wash.2d 185, 198-99, 410 P.3d 1156 (2018). But like the federal pseudonyms cases on which Mansour relies, Doe G is distinguishable because A.M. was not a party seeking to conceal her identity entirely by litigating under a pseudonym. Therefore, Doe G does not control.
¶27 For the reasons set forth above and discussed below in the unpublished part of this opinion, we affirm in part and remand to the trial court to revise appendix 4.2 to the judgment and sentence as follows: (1) strike "or form relationships with families" from condition 8 and (2) strike condition 25.
¶28 The remainder of this opinion has no precedential value. Therefore, it will be filed for public record in accordance with the rules governing unpublished opinions. See RCW 2.06.040.
WE CONCUR:
Chun, J.
Dwyer, J.