Opinion
No. 57369-5-II
06-25-2024
STATE of Washington, Respondent, v. David Alan ROHLEDER, Appellant.
Jennifer J. Sweigert, Nielsen Koch & Grannis, PLLC, 2200 6th Ave. Ste. 1250, Seattle, WA, 98121-1820, Pllc Koch & Grannis, Attorney at Law, The Denny Building, 2200 Sixth Avenue, Suite 1250, Seattle, WA, 98121, for Appellant Lauren Ruth Boyd, Attorney at Law, 1013 Franklin St., Vancouver, WA, 98660-3039, for Respondent
Appeal from Clark Superior Court, Docket No: 21-1-01076-4, Honorable David E. Gregerson, Judge
Jennifer J. Sweigert, Nielsen Koch & Grannis, PLLC, 2200 6th Ave. Ste. 1250, Seattle, WA, 98121-1820, Pllc Koch & Grannis, Attorney at Law, The Denny Building, 2200 Sixth Avenue, Suite 1250, Seattle, WA, 98121, for Appellant
Lauren Ruth Boyd, Attorney at Law, 1013 Franklin St., Vancouver, WA, 98660-3039, for Respondent
PART PUBLISHED OPINION
Maxa, P.J.
¶1 David Rohleder appeals his convictions of first degree child rape, three counts of first degree child molestation, and second degree child molestation. The convictions were based on the testimony of 12-year-old MC, the granddaughter of Rohleder’s longtime girlfriend. MC testified that Rohleder sexually assaulted her for seven years.
¶2 The trial court gave a "no corroboration" jury instruction, which stated that in order to convict a person of the charged offenses, "it is not necessary that the testimony of the alleged victim be corroborated." Clerk’s Papers (CP) at 40. Rohleder argues that the trial court erred in giving a no corroboration instruction because it constituted a comment on the evidence and violated his right to a jury trial under article I, section 21 of the Washington Constitution.
¶3 We hold that (1) even though Rohleder’s argument that the no corroboration instruction constitutes a comment on the evidence has merit and the better practice is not to give the instruction, we are constrained by the Supreme Court’s opinion in State v. Clayton, 32 Wash.2d 571, 202 P.2d 922 (1949) to conclude that giving such an instruction was not a comment on the evidence; and (2) the instruction did not violate Rohleder’s right to a jury trial. We reject Rohleder’s additional arguments except for challenges to legal financial obligations in an unpublished portion of this opinion. Accordingly, we affirm Rohleder’s convictions, but we remand for the trial court to strike the crime victim penalty assessment (VPA) and the DNA collection fee from the judgment and sentence.
FACTS
¶4 Rohleder and Sherri Hood dated for 15 years and lived together in Vancouver, Washington. In 2018, Hood’s daughter Joanne Howard, Howard’s son, and Howard’s daughter, MC, moved in with Rohleder and Hood and lived with them for about two and a half years. Before moving in with Rohleder and Hood, Howard would bring MC to their house every week while Howard worked.
¶5 In May 2021, when MC was 12 years old, she told Howard that Rohleder had been sexually assaulting her for the past seven years. The Vancouver Police Department initiated an investigation and MC participated in a forensic interview. The State charged Rohleder with first degree child rape, three counts of first degree child molestation, and second degree child molestation.
¶6 At trial, the State proposed a no corroboration jury instruction. Rohleder objected, arguing that the instruction was "too easy to conflate with proof beyond a reasonable doubt," and that it was "prejudicial to the defense." Rep. of Proc.(RP) at 388-89.
¶7 The trial court ruled that it would give the no corroboration instruction. Rohleder then -asked to add to the instruction a sentence stating, "It is also not necessary that the testimony of the defendant be corroborated." RP at 392. The court denied the request, stating that "it might invite some sort of burden shifting about something that [Rohleder] has a duty to prove." RP at 393.
¶8 The trial court gave the following no corroboration jury instruction:
In order to convict a person of the crimes of Rape of a Child in the First Degree, or Child Molestation in the First Degree, or Child Molestation in the Second Degree as defined in these instructions, it is not necessary that the testimony of the alleged victim be corroborated.
CP at 40.
¶9 The jury found Rohleder guilty of first degree child rape, three counts of first degree child molestation, and second degree child molestation. Rohleder appeals his convictions and sentence.
ANALYSIS
A. Comment on the Evidence
¶10 Rohleder argues that the trial court erred in instructing the jury that no corroboration of MC’s testimony was needed to convict him of the charged offenses. He claims that giving this no corroboration jury instruction without additional language clarifying the jury’s role in evaluating evidence and without instructing that no corroboration of his testimony was needed constituted a comment on the evidence. Although we believe that Rohleder’s arguments have merit, we are constrained by Clayton to conclude that this instruction was not a comment on the evidence.
1. Legal Principles
[1–3] ¶11 Article IV, section 16 of the Washington Constitution states, "Judges shall not charge juries with respect to matters of fact, nor comment thereon, but shall declare the law." A trial court makes an improper comment on the evidence if it gives a jury instruction that conveys to the jury his or her personal attitude on the merits of the case. State v. Levy, 156 Wash.2d 709, 721, 132 P.3d 1076 (2006). But because it is the trial court’s duty to declare the law, a jury instruction that does no more than accurately state the law pertaining to an issue is proper. State v. Brush, 183 Wash.2d 550, 557, 353 P.3d 213 (2015). We review the instructions de novo to determine if the trial court has improperly commented on the evidence. Levy, 156 Wash.2d at 721, 132 P.3d 1076.
¶12 The trial court’s no corroboration instruction was based on RCW 9A,44.020(1), which provides: "In order to convict a person of any crime defined in this chapter[,] it shall not be necessary that the testimony of the alleged victim be corroborated."
¶13 Significantly, the Washington Pattern Criminal Jury Instructions (WPIC) do not propose a no corroboration instruction. Instead, a WPIC comment recommends against giving such an instruction:
The matter of corroboration is really a matter of sufficiency of the evidence. An instruction on this subject would be a negative instruction. The proving or disproving of such a charge is a factual problem, not a legal problem. Whether a jury can or should accept the uncorroborated testimony of the prosecuting witness or the uncorroborated testimony of the defendant is best left to argument of counsel.
11 Washington Practice: Washington Pattern Jury Instructions: Criminal 45.02 cmt., at 1004 (5th ed. 2021).
¶14 Nevertheless, Court of Appeals cases have upheld no corroboration instructions for sexual offenses as correct statements of the law under RCW 9A.44.020(1). E.g., State v. Chenoweth, 188 Wash. App. 521, 537, 354 P.3d 13 (2015); State v. Johnson, 152 Wash. App. 924, 936-37, 219 P.3d 958 (2009); State v. Zimmerman, 130 Wash. App. 170, 182-83, 121 P.3d 1216 (2005).
¶15 However, the concurring opinion in Chenoweth stated, "If the use of the noncorroboration instruction were a matter of first impression, I would hold it is a comment on the evidence and reverse the conviction." 188 Wash. App. at 538, 354 P.3d 13 (Becker, J., concurring). And this court in Zimmerman expressed misgivings about the no corroboration instruction, but believed that it was bound by the Supreme Court’s holding decades earlier in Clayton, 32 Wash.2d 571, 202 P.2d 922, that the instruction was not an improper comment on the evidence. Zimmerman, 130 Wash. App. at 182-83, 121 P.3d 1216.
¶16 In Clayton, the trial court gave the following instruction:
You are instructed that it is the law of this State that a person charged with attempting to carnally know a female child under the age of eighteen years may be convicted upon the uncorroborated testimony of the prosecutrix alone. That is, the question is distinctly one for the jury, and if you believe from the evidence and are satisfied beyond a reasonable doubt as to the guilt of the defendant, you will return a verdict of guilty, notwithstanding that there be no direct corroboration of her testimony as to the commission of the act.
32 Wash.2d at 572, 202 P.2d 922. The defendant argued that the instruction was a comment on the evidence because "the instruction singles out the prosecutrix from all the other witnesses and tells the jury that the weight of her testimony is such that a conviction can be based upon it alone." Id. at 573, 202 P.2d 922.
¶17 The Supreme Court rejected this argument, holding that the trial court did not commit reversible error in giving the no corroboration instruction. Id. at 578, 202 P.2d 922. The court stated,
It is true that, in the instruction of which complaint is here made, the trial court in a sense singled out the testimony of the prosecutrix. However, what the court thereby told the jury was not that the uncorroborated testimony of the prosecutrix in the instant case was sufficient to convict the appellant of the crime with which he was charged, but, rather, that in cases of this particular character, a defendant may be convicted upon such testimony alone, provided the jury should believe from the evidence, and should be satisfied beyond a reasonable doubt, that the defendant was guilty of the crime charged. That was a correct statement of law.
Id. at 574, 202 P.2d 922.
2. Absence of Additional Language
[4] ¶18 Rohleder argues that the no corroboration instruction was an improper comment on the evidence because it did not include additional clarifying language affirming the jury’s role in assessing evidence like the instruction in Clayton did. On this basis, he claims that Clayton does not control the result in this case.
¶19 In Clayton, the instruction at issue stated that a person "may" be convicted based on uncorroborated testimony of the victim. 32 Wash.2d at 572, 202 P.2d 922. The instruction also stated, "[T]he question is distinctly one for the jury, and if you believe from the evidence and are satisfied beyond a reasonable doubt as to the guilt of the defendant, you will return a verdict of guilty" notwithstanding the absence of corroboration. Id.
¶20 No case has held that this additional language is necessary to avoid a comment on the evidence challenge. This court in Johnson rejected this argument, stating, "We see no clear pronouncement from our Supreme Court on whether the additional language is necessary to prevent an impermissible comment on the evidence under article 4, section 16, and we hold that the trial court’s corroboration instruction was not an erroneous statement of the law." 152 Wash. App. at 936, 219 P.3d 958. But the court also stated,
When giving this instruction, however, trial courts should consider instructing the jury that it is to decide all questions of witness credibility as part of the instruction. Without this specific inclusion, the instruction stating that no corroboration is required may be an impermissible comment on the alleged victim’s credibility.
Id. at 936-37, 219 P.3d 958.
¶21 In addition, in State v. Galbreath, the trial court gave a similar instruction informing the jury "that a person charged with indecent exposure may be convicted upon the uncorroborated testimony of the complaining witness" while omitting language "that such testimony must satisfy the jury of guilt beyond a reasonable doubt." 69 Wash.2d 664, 669, 419 P.2d 800 (1966). Although the Supreme Court held that the instruction did not amount to an unconstitutional comment on the evidence, it stated that it could not "commend it as a model instruction in cases such as this." Id. at 670, 419 P.2d 800.
¶22 Finally, language similar to the additional language included in the Clayton instruction already was included in the trial court’s instructions. Instruction 1 stated, "You are the sole judges of the credibility of each witness. You are also the sole judges of the value or weight to be given to the testimony of each witness." CP at 20. And the to-convict instructions all stated, "If you find from the evidence that each of these elements has been proved beyond a reasonable doubt, then it will be your duty to return a verdict of guilty." CP at 35-37, 39.
¶23 We conclude that we cannot distinguish Clayton on the basis that the no corroboration instruction did not contain additional language similar to the language in the Clayton instruction.
3. Absence of No Corroboration Instruction Regarding the Defendant
[5 ] ¶24 Rohleder argues in the alternative that giving the no corroboration jury instruction was improper without a corresponding instruction telling the jury that his testimony did not need corroboration. As Rohleder points out, the no corroboration instruction seems to favor the alleged victim’s testimony over the defendant’s testimony.
¶25 No case has held that a no corroboration instruction should address both the victim’s and the defendant’s testimony. However, a number of cases in other jurisdictions have disapproved of giving no corroboration instructions on the basis that the instruction favors the victim’s testimony. E.g., State v. Stukes, 416 S.C. 493, 499-500, 787 S.E.2d 480 (2016); Gutierrez v. State, 177 So.3d 226, 23034 (Fla. 2015); Ludy v. State, 784 N.E.2d 459, 461-63 (Ind. 2003).
¶26 In Stakes, the South Carolina Supreme Court reversed criminal sexual conduct and first degree burglary convictions because the trial court gave a no corroboration instruction based on a statute similar to RCW 9A.44.020(l). Stakes, 416 S.C. at 495, 787 S.E.2d 480. The court stated,
By addressing the veracity of a victim’s testimony in its instructions, the trial court emphasizes the weight of that evidence in the eyes of the jury. The charge invites the jury to believe the victim, explaining that to confirm the authenticity of her statement, the jury need only hear her speak. Moreover, it is inescapable that this charge confused the jury. Specifying this qualification applies to one witness creates the inference the same is not true for the others.
Id. at 499-500, 787 S.E.2d 480 (emphasis added). The court overruled its precedent condoning the use of the South Carolina statute as a jury instruction. Id. at 500, 787 S.E.2d 480.
¶27 In Gutierrez, the court stated:
[A]ny statement by the judge that suggests one witness’s testimony need not be subjected to the same tests for weight or credibility as the testimony of others has the unfortunate effect of bolstering that witness’s testimony by according it special status. The instruction in this case did just that, and in the process effectively placed the judge’s thumb on the scale to lend an extra element of weight to the victim’s testimony.
177 So.3d at 231-32 (emphasis added).
[6 ] ¶28 Like our colleagues in the earlier cases discussed above, we have strong concerns about the giving of the no corroboration instruction. We emphasize that there is no need for a no corroboration instruction, and the better practice is for trial courts not to give one.
¶29 However, despite being over 90 years old, Clayton remains good law. Until the Supreme Court addresses this issue, we are constrained by Clayton to conclude that giving a no corroboration instruction is not a comment on the evidence.
¶30 We hold that the trial court did not err in instructing the jury that no corroboration of MC’s testimony was needed to convict Rohleder of first degree child rape, first degree child molestation, or second degree child molestation.
B. Right to a Jury Trial
[7] ¶31 Rohleder argues that the no corroboration instruction violated his right to a jury trial under article I, section 21 of the Washington Constitution. He claims that the instruction appears to foreclose a factual basis on which the jury could find the evidence insufficient. We disagree. [8, 9] ¶32 Article I, section 21 of the Washington Constitution states, "The right of trial by jury shall remain inviolate." "The right to have factual questions decided by the jury is crucial to the right to trial by jury. To the jury is consigned under the constitution "the ultimate power to weigh the evidence and determine the facts.’ " State v. Montgomery, 163 Wash.2d 577, 590, 183 P.3d 267 (2008) (citation omitted) (quoting James v. Robeck, 79 Wash.2d 864, 869, 490 P.2d 878 (1971)).
¶33 Rohleder argues that the no corroboration instruction violated the right to a jury trial because it suggested that jurors were required to believe MC without corroboration. But the language of the instruction does not support this argument. The corroboration instruction stated that in order to convict, "it is not necessary that the testimony of the alleged victim be corroborated." CP at 40. This language clearly allows jurors to believe MC without corroboration, but does not require that result. And as noted above, a separate jury instruction stated, "You are the sole judges of the credibility of each witness. You are also the sole judges of the value or weight to be given to the testimony of each witness." CP at 20. The instructions allowed the jury to decide whether to believe MC, with or without corroboration.
¶34 The no corroboration instruction did not comment on credibility and did not mislead the jury about their role as sole judges of witness credibility. The instruction did not state that MC’s uncorroborated testimony required the jury to convict Rohleder. The instruction merely stated generally that a victim’s testimony need not be corroborated to convict.
¶35 We hold that the no corroboration jury instruction did not violate Rohleder’s right to a jury trial under article I, section 21.
CONCLUSION
¶36 We affirm Rohleder’s convictions, but remand for the trial court to strike the VPA and the DNA collection fee from the judgment and sentence.
¶37 A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder shall be filed for public record in accordance with RCW 2.06.040, it is so ordered.
We concur:
LEE, J.
CHE, J.