Opinion
No. 29317-3-III.
Filed: July 14, 2011. UNPUBLISHED OPINION.
Appeal from a judgment of the Superior Court for Grant County, No. 09-1-00068-1, John M. Antosz, J., entered July 9, 2010.
Affirmed by unpublished opinion per Brown, J., concurred in by Kulik, C.J., and Korsmo, J.
Rodney Reedy appeals his two child molestation convictions, contending the trial court abused its discretion in denying his motion for a mistrial based on improper opinion testimony from the Guardian Ad Litem (GAL). We affirm.
FACTS
E.M., who was 10 years old, told her stepmother, while living with her mother and stepfather, her stepfather placed E.M. on her back on a bed, removed both his and her pants and underwear, and rubbed his erect penis between her thighs. She related a similar incident occurred one year later while they lived at a different house.
As a result of E.M.'s disclosures, the State charged Mr. Reedy in January 2009, with two counts of first degree child molestation. At trial, the prosecutor asked E.M.'s GAL how E.M. came across during their interview. The GAL answered, "All of the kids came across as very honest." Report of Proceedings (RP) at 246. Mr. Reedy objected and moved to strike the answer. The court sustained the objection, struck the answer, and instructed the jury to "disregard" it. Id.
The prosecutor rephrased the question asking, "What kind of demeanor" E.M. displayed during the interview. Id. The GAL responded, "She willingly spoke to me. She knew what my job was. I felt she was honest." Id. Mr. Reedy again objected. The trial court again sustained the objection, struck the answer, and instructed the jury to disregard it. The court admonished the jury, "Any witness's opinion about someone's honesty is to be always disregarded. That's your job. That's imposing upon your duty. So that's why I've done that. . . . And the witness will be admonished not to give an opinion about whether someone is honest or not." RP at 248.
Counsel unsuccessfully requested a mistrial based on the GAL's improper opinions on E.M.'s credibility. The jury found Mr. Reedy guilty of each molestation count. Mr. Reedy appealed.
ANALYSIS
The issue is whether the trial court erred by abusing its discretion in denying Mr. Reedy's request for a mistrial. Mr. Reedy contends the GAL offered improper opinion testimony.
A trial court's decision to deny a motion for mistrial is reviewed for an abuse of discretion. State v. Jackson, 150 Wn.2d 251, 276, 76 P.3d 217 (2003). A trial court abuses its discretion in denying a motion for a mistrial only if its decision is manifestly unreasonable or based on untenable grounds. State v. Allen, 159 Wn.2d 1, 10, 147 P.3d 581 (2006). To determine whether a trial irregularity warrants a new trial, we consider three factors: (1) the seriousness of the irregularity, (2) whether the testimony was cumulative of other evidence properly admitted, and (3) whether the irregularity could be cured by an instruction to the jury to disregard the remark or the testimony. State v. Escalona, 49 Wn. App. 251, 254, 742 P.2d 190 (1987) (citing State v. Weber, 99 Wn.2d 158, 165-66, 659 P.2d 1102 (1983)).
Relying on In re the Guardianship of Stamm, 121 Wn. App. 830, 837, 91 P.3d 126 (2004), Mr. Reedy argues the testimony, or irregularity, was serious because the GAL's status added persuasiveness to her testimony. But Stamm is inapposite. Stamm involved a GAL appointed under chapter 11.88 RCW, when children petitioned for guardianship of their father. At trial, the GAL described her role as the "eyes and ears of the court," testified about Mr. Stamm's alleged incapacity, and stated that she had found certain witnesses "to be credible." Id. at 840. Division One of this court held that while the GAL's testimony was improper, a trial court has the discretion under ER 702 to permit a GAL to testify to his or her opinions if those opinions would be of assistance to the trier of fact. Id. at 837.
Here, the court did not permit the testimony to which objection was made. The court instead sustained Mr. Reedy's objection and instructed the jury to disregard the testimony. "A trial court has wide discretion to cure trial irregularities resulting from improper witness statements." State v. Gamble, 168 Wn.2d 161, 177, 225 P.3d 973 (2010). One manner in which a trial court can address such an issue is to direct the jury as to the manner in which they are to consider or not consider such a statement, and juries are presumed to have followed the trial court's instructions. State v. Kirkman, 159 Wn.2d 918, 928, 155 P.3d 125 (2007).
Additionally, the testimony does not appear to be intentional. "An intentional introduction of inadmissible evidence relating to criminal history is more serious than an unintentional interjection of inadmissible testimony." Gamble, 168 Wn.2d at 178. The GAL appeared to interject the testimony spontaneously and unresponsively. Such testimony can easily be cured with an instruction, which the court provided. Kirkman, 159 Wn.2d at 928.
Given all, this is not a case in which nothing short of a new trial could ensure that Mr. Reedy was tried fairly. The trial court, therefore, properly denied Mr. Reedy's motion for a mistrial.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
KULIK, C.J. KORSMO, J., concur.