Opinion
NO. 64598-6-I
10-10-2011
STATE OF WASHINGTON, Respondent, v. LESLIE W. STEPHENSON, Appellant.
UNPUBLISHED OPINION
Lau, J. — Leslie Stephenson challenges his jury trial conviction for first degree child molestation. Stephenson argues the trial court erred by admitting (1) previous sexual molestation evidence under the "open door" doctrine, (2) untimely and overly broad "fact of complaint" testimony, and (3) text messages Stephenson exchanged with the victim. He also argues that prosecutorial misconduct and cumulative error denied him a fair trial. Stephenson raises other arguments in his statement of additional grounds. Finding reversible error, we reverse and remand for a new trial.
FACTS
Witnesses testified to the following: Sixty-one-year-old Leslie Stephenson, befriended DA and her daughter MA at a street fair. Due to physical disabilities that prevent her from working, DA relies on public assistance. Stephenson purchased gifts for DA and MA. He took them out to dinner and attended events. Stephenson gave MA two cell phones for her use. Stephenson also occasionally bought groceries for DA and paid MA a weekly allowance. DA and MA visited Stephenson at his house and sometimes spent the night there. Occasionally, MA stayed alone with Stephenson at his home.
According to MA, Stephenson began molesting her in 2007 when she was 11 years old. While on Stephenson's bed watching a movie, Stephenson touched MA's breasts and vagina under her clothes. She also testified about baby-sitting a toddler with Stephenson. While MA was sitting on the floor with the toddler, Stephenson touched MA's vagina over her pants. Other times, he touched her vagina under her clothes. MA also testified that she and Stephenson had penis and vagina intercourse beginning when she was 11 and continuing until August 2008, when she was 12 years old. Stephenson told MA she would die if she reported the abuse.
On September 26, 2008, Stephenson and MA had an argument. Afterwards, MA sent text messages to her friend MK, stating that she had been "hit," "the world is a cruel place," she had suffered "sexual abuse," and "almost rape[ ]." Report of Proceedings (RP) (Oct. 14, 2009) at 83-86. She also exchanged text messages with Stephenson. She wrote, "go back to [O]hio," "I told [JS]," "u could go away for a long time," and "I'm a teenage[r] who hates life and u didn't make it any better." Exs. 13, 15, 16. She also sent Stephenson a text, "Stop texting me." Ex. 24. Stephenson sent MA the following text messages:
• "I can't take no chances, I am going to off myself," Ex. 27
• "Well I better go get my stomach pumped before I can't move." Ex. 29.
• "U hurt my feelings." Ex. 32.
• "U don't spend any time with me, u could cum ove[r] u no." Ex. 40
• "u only care about u and no one elses feelings." Ex. 41
• "I miss you." Ex. 43.
• "If you don't want to answer my calls then you don't need a phone, it will be turned off tomorrow morning, no ifs and buts about it." Ex. 49.
MA told her friend JS about the abuse, who then told her mother, LS. LS helped MA take a home pregnancy test, which showed negative results. LS told DA she needed to inform the police about the abuse.
LS and her fiance HA drove DA, JS, and MA to the police station. Officer Jessica Taylor took a report and then referred the case to Sexual Assault Unit Detective Christopher Young. When Detective Young interviewed MA at school, she gave him a cell phone that Stephenson had given her, containing the text messages described above.
Pediatrician Rebecca Wiester examined MA. She told Dr. Wiester that "[Leslie] touched [her] private parts, and he also raped" her. RP (Oct. 13, 2009) at 152. MA described the acts in detail and told Dr. Wiester that Stephenson threatened to take her and run away if she told anyone. Dr. Wiester found no physical evidence of sexual abuse.
When Stephenson learned that MA had reported the abuse, he went to LS's house. Stephenson told HA he was MA's legal guardian and demanded to take her with him. When HA refused, Stephenson became rude and then left. United States marshalls later arrested Stephenson at his sister's house in North Dakota.
The State charged Stephenson with two counts of child rape and one count of first degree child molestation. At trial, Stephenson testified that he would, "[n]ever, ever, ever, never" do something like raping a child. RP (Oct. 19, 2009) at 140. The court ruled this testimony opened the door to evidence of a 1983 child molestation trial that resulted in an acquittal. The court allowed the State to cross-examine Stephenson about the previous child molestation charge and call the complaining witness, who testified about the prior molestation. A jury convicted Stephenson on the child molestation count but failed to agree on the child rape charges.
Opening the Door
Stephenson argues that his testimony did not open the door to a sexual molestation charge for an incident that occurred 26 years earlier for which he was acquitted. He also argues, "[E]vidence of the prior charge was substantially more prejudicial than probative," and therefore violates ER 403. Appellant's Br. at 24. The State responds that Stephenson "opened the door" when he testified that he would "[n]ever, ever, ever, never" do anything like raping a child.
ER 403 states, "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence."
[Defense Counsel]: Mr. Stephenson, in the time you have known [MA], have you ever touched her inappropriately?RP (Oct. 19, 2009) at 140.
[Stephenson]: No, ma'am.
Q. In a sexual way?
A. No, I would never do something like that, never.
Q. Have you ever seen [MA] naked?
A. No, ma'am.
Q. Mr. Stephenson, did you force [MA] to have intercourse with you?
A. No, ma'am. I would never do anything like that. Never, ever, ever, never.
This court will not reverse a trial court's decision to admit evidence absent an abuse of discretion, which occurs only when no reasonable person would take the view adopted by the trial court. State v. Atsbeha, 142 Wn.2d 904, 913-14, 16 P.3d 626 (2001). "The trial court has considerable discretion in administering this open-door rule." Ang v. Martin, 118 Wn. App. 553, 562, 76 P.3d 787 (2003).
A party may open the door during the questioning of a witness to otherwise inadmissible evidence. State v. Korum, 157 Wn.2d 614, 646, 141 P.3d 13 (2006). Our Supreme Court explained the rule in State v. Gefeller, 76 Wn. 2d 449, 455, 458 P.2d 17 (1969):
It would be a curious rule of evidence which allowed one party to bring up a subject, drop it at a point where it might appear advantageous to him, and then bar the other party from all further inquiries about it. Rules of evidence are designed to aid in establishing the truth. To close the door after receiving only a part of the evidence not only leaves the matter suspended in air at a point markedly advantageous to the party who opened the door, but might well limit the proof to half-truths. Thus, it is a sound general rule that, when a party opens up a subject of inquiry on direct or cross-examination, he contemplates that the rules will permit cross-examination or redirect examination, as the case may be, within the scope of the examination in which the subject matter was first introduced.The open door doctrine is an equitable evidentiary principle whereby a party may open the door to the introduction of otherwise inadmissible evidence by the adverse party. 5 Karl B. Tegland, Washington Practice: Evidence § 103.14, at 66-67 (5th ed. 2007). Under this well-established doctrine, the trial court has the discretion to admit evidence that otherwise would have been inadmissible when a party raises a material issue and the evidence in question bears directly on that issue. State v. Berg, 147 Wn. App. 923, 939, 198 P.3d 529 (2008). Put another way, "once a party has raised a material issue, the opposing party is permitted to explain, clarify, or contradict" the evidence regarding that issue. Berg, 147 Wn. App. at 939.
The State relies on State v. Warren, 134 Wn. App. 44, 138 P.3d 1081 (2006), aff'd, 165 Wn.2d 17, 195 P.3d 940 (2008). There, the defendant testified about applying lotion to the victim: "'Now, there is areas I wouldn't do because of, you know, being like she is a girl. But arms and back, those were areas that she couldn't reach that that was all right between me and my wife for her to have those—for me to help her there.'" Warren, 134 Wn. App at 64. "The [trial] court concluded that Warren's testimony did more than deny that he had sexual contact with NS when he put on lotion. Rather, Warren said he wasn't the type of person who would touch the sexual parts of a girl. Consequently, the court ruled that Warren could be impeached with the fact that he had been convicted of child molestation." Warren, 134 Wn. App at 64. We affirmed, citing the exception to ER 404 if a defendant puts his or her own character at issue. But unlike in Warren, Stephenson was acquitted of the prior child molestation charge. The State asserts, "[T]he fact that a defendant has been acquitted of charges associated with prior conduct does not preclude its admission for an appropriate purpose at a later trial." Resp't's Br. at 16. The State cites no relevant controlling authority on the admissibility of an acquittal after trial.
ER 404(a) states in part:
"(a) Character Evidence Generally. Evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:
"(1) Character of Accused. Evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same."
The State cited Dowling v. United States, 493 U.S. 342, 110 S. Ct. 668, 107 L. Ed. 2d 708 (1990). But Dowling is inapposite. There, the Court held that introduction of evidence relating to crime that defendant had previously been acquitted of committing did not violate double jeopardy or due process.
The open door rule only allows a party "to introduce evidence on the same issue to rebut any false impression created by the other party. United States v. Sine, 493 F.3d 1021, 1037 (9th Cir. 2007); State v. Fisher, 165 Wn.2d 727, 750, 202 P.3d 937 (2009) ("the State may pursue the subject to clarify a false impression"). Because Stephenson was acquitted of the prior molestation charge, he answered accurately when he denied any prior act of molestation. This denial created no false impression justifying rebuttal evidence.
We conclude the trial court abused its discretion by admitting testimony of the 1983 molestation charge. And we conclude this error was not harmless given the evidence in this case as discussed below.
We cannot conclude that the admission of a similar child sex offense had no substantial effect on the jury. The danger that the jury would conclude two child molestation charges involving Stephenson and two similarly aged girls as no mere coincidence is extremely high.
In addition, the record shows that the trial court conducted no ER 403 balancing. It merely concluded Stephenson's testimony opened the door and "is highly prejudicial to the defense." RP (Oct. 19, 2009) at 149. "In the end, the admissibility of evidence through the 'open door' often turns on Rule 403 and a balancing of the proponent's need to rebut the opponent's evidence against the risk of further prejudice that may result from the introduction of otherwise inadmissible evidence to rebut the opponent's evidence." 5 Tegland, supra, at 76.
As with other types of evidence, rebuttal evidence is inadmissible if its prejudicial effect outweighs its probative value. State v. Putzell, 40 Wn.2d 174, 184, 242 P.2d 180 (1952); ER 403. "A careful and methodical consideration of relevance, and an intelligent weighing of potential prejudice against probative value is particularly important in sex cases, where the prejudice potential of prior acts is at its highest." State v. Salterelli, 98 Wn.2d 358, 363, 655 P.2d 697 (1982).
Prosecutorial Misconduct
Stephenson argues that multiple incidents of prosecutorial misconduct deprived him of a fair trial. The State responds that the remarks were neither improper nor prejudicial.
Prosecutorial misconduct is grounds for reversal only when the conduct "was both improper and prejudicial in the context of the entire record and circumstances at trial." State v. Hughes, 118 Wn. App. 713, 727, 77 P.3d 681 (2003). Prejudice is established only if there is a substantial likelihood the misconduct affected the jury's verdict. State v. Pirtle, 127 Wn.2d 628, 672, 904 P.2d 245 1995). The defendant bears the burden of showing that the conduct was both improper and caused prejudice. Hughes, 118 Wn. App. at 727. When the defendant fails to object to a comment made by the prosecutor in closing argument, even a comment that touches on a constitutional right, the alleged misconduct will not be reviewed unless the comment is so flagrant and ill intentioned as to cause an enduring and resulting prejudice that could not have been remedied by a curative instruction to the jury. State v. Smith, 144 Wn.2d 665, 679, 30 P.3d 1245 (2001); State v. French, 101 Wn. App. 380, 386-88, 4 P.3d 857 (2000). In analyzing prejudice, we look to the context of the total argument, the issues, the evidence, and the instructions. Warren, 165 Wn.2d 17. In determining whether the misconduct warrants reversal, we consider its prejudicial nature and its cumulative effect. State v. Suarez-Bravo, 72 Wn. App. 359, 367, 864 P.2d 426 (1994).
Stephenson contends the prosecutor improperly appealed to emotion and inflamed the passions of the jury by alluding to MA's lost innocence. The prosecutor argued:
When [MA] looks back on her life as an 11- and 12-year-old child, she will not remember the things that little girls should remember, like trips to Disneyland or camping with her family or her birthday parties with her friends for her 11th and 12th birthday. For [MA] it won't be that simple. It won't be that sweet.RP (Oct. 20, 2009) at 59-60. "[T]he defendant Leslie Stephenson really took [MA]'s childhood from her. He took it away from her, and [MA] will never get that back." RP (Oct. 20, 2009) at 116. Stephenson did not object to this argument.
. . . .
So for [MA], there is always going to be this scar. It's not the kind of scar that people can see when they look at her, but it's a scar nonetheless, and it's a scar that's not going to go away.
The prosecutor has a duty to "seek a verdict free of prejudice and based on reason." State v. Huson, 73 Wn.2d 660, 663, 440 P.2d 192 (1968). It is improper to present argument not based on the evidence that appeals to the jury's passion and prejudice. State v. Echevarria, 71 Wn. App. 595, 598, 860 P.2d 420 (1993) ("Appeals to the jury's passion and prejudice are improper."). The State may properly comment on the evidence presented at trial. State v. Fleming, 83 Wn. App. 209, 215 n.3, 921 P.2d 1076 (1996).
The prosecutor's remarks about MA's lost innocence find no basis in the evidence presented at trial and were improper. Our Supreme Court "agree[d] with the Court of Appeals that, in drawing attention to [a 12-year-old girl]'s lost innocence, the deputy prosecutor went too far in her effort to exploit defense counsel's theme . . ." and held the argument improper but not prejudicial. State v. McKenzie, 157 Wn.2d 44, 60, 134 P.3d 221 (2006). But here, the prosecutor also urged the jurors to "imagine this, we are talking about a 12-year-old child here who has just taken a pregnancy test. Imagine what that must have been like" and "imagine what that [sexual assault examination] must have been like for a 12-year-old girl to have to participate in that sort of examination and how embarrassing and humiliating that exam must have been for [MA]." RP (Oct. 20, 2009) at 73-74.
Imagine what it was like, the relationship between the defendant and [MA] over that entire year and a half.RP (Oct. 20, 2009) at 79.
Imagine -- we are only talking about a short period of time -- imagine what the manipulation and the gifts and the guilt trips and the threats and the promises. Imagine the period of time that you don't have text messages for and what that must have been like for [MA].
The prosecutor's repeated requests to the jury impermissibly invited the jury to step into MA's shoes and decide the case on sympathy rather than on a rational assessment of MA's credibility. Moreover, this argument asks the jury to depart from their duty to decide the case objectively. It also asks the jury to decide the case from the perspective of the victim and permits it to consider sympathy or prejudice. Such an argument is improper. This argument is also contrary to the instruction to the jury: "You must not let your emotions overcome your rational thought process. You must reach your decision based on the facts proved to you and on the law given to you, not on sympathy, prejudice, or personal preference. . . ." Like the "lost innocence" argument discussed above, Stephenson did not object.
In civil cases, statements by counsel urging jurors "to place themselves in the position of one of the parties to the litigation, or to grant the party the recovery they would wish themselves if they were in the same position," constitute an improper argument. Adkins v. Aluminum Co. of Am., 110 Wn.2d 128, 139, 750 P.2d 1257, 756 P.2d 142 (1988). Such argument, often referred to as a "golden rule" argument is improper because it encourages jurors to depart from neutrality and decide the case based on personal interest rather than on the evidence. Adkins, 110 Wn.2d at 139. See also State v. Borboa, 157 Wn.2d 108, 124 n.5, 135 P.3d 469 (2006) (discussing "golden rule" argument in the criminal context as more correctly an improper "appeal[ ] to the sympathy or passions of the jury" (quoting People v. Fields, 35 Cal.3d 329, 362, 673 P.2d 680, 197 Cal. Rptr. 803 (1983)). And courts in other jurisdictions have disapproved of "golden rule" arguments in the criminal context. See, e.g., Gomez v. State, 751 So. 2d 630, 632 (Fla. Dist. Ct. App. 1999); Hayes v. State, 512 S.E.2d 294, 297 (Ga. App. 1999); State v. Carlson, 559 N.W.2d 802, 812 (N.D. Ct. App. 1997); United States v. Kirvan, 997 F.2d 963 (1st Cir. 1993).
The State relies solely on State v. Borboa, 157 Wn.2d 108, 123, 135 P.3d 469 (2006), to argue, "[I]t is not improper for a prosecutor to describe a horrible crime as 'horrible,' and to discuss its impact on the victim." Resp't's Br. at 43. But the court explained, "In this case, the crime was horrible, and the witnesses did react emotionally;" and "it may be proper argument for the prosecutor to reference the nature of the crime and the effect on the victim." Borboa, 157 Wn.2d at 123 (emphasis added). We reject the State's expansive reading of Borboa.
Borboa was convicted of kidnapping, beating, and vaginally raping a two-year-old girl. The court ruled her incompetent to testify at trial.
The State acknowledges, "In this case, [MA's] credibility was a pivotal issue." Resp't's Br. at 45. Because MA's credibility was highly contested at trial, the repeated requests to "imagine" by stepping into MA's shoes impermissibly appealed to the jury to decide the case on sympathy rather than a request to assess her credibility. Under these circumstances, the arguments were flagrant and ill intentioned.
In rebuttal closing argument, the prosecutor argued:
As a juror, your job is to search for the truth and the testimony of the witnesses in this case, and the evidence in this case is what will guide you and help you find your way to the truth.RP (Oct. 20, 2009) at 115-16. Stephenson did not object.
Sometimes the search for the truth and for justice can take a long time. Sometimes, as in the case here, justice can be kind of slow. It can take years of pain and silence and confusion until justice arrives.
. . . .
Today is about justice for [MA], and justice for [MA] comes with verdicts of guilty . . . . Today the State of Washington is placing its trust in you to do the right thing . . . .
Urging the jury to render a just verdict that is supported by evidence is not misconduct. Moreover, courts frequently state that a criminal trial's purpose is a search for truth and justice. See, e.g., Strickler v. Greene, 527 U.S. 263, 281, 119 S. Ct. 1936, 144 L. Ed. 2d 286 (1999) (stating that an attorney's interest "'in a criminal prosecution is not that it shall win a case, but that justice shall be done'" (quoting Berger v. United States, 295 U.S. 78, 88, 55 S. Ct. 629, 79 L. Ed 1314 (1935))); State v. Gakin, 24 Wn. App. 681, 686, 603 P.2d 380 (1979) (stating that the "search for the truth" is the "ultimate objective of a criminal trial").State v. Curtiss, 161 Wn. App. 673, 701-02, 250 P.3d 496 (2011).
But here, the prosecutor's repeated "justice" comments went beyond a mere request to render a just verdict. Rather, these comments invite the jury to render its verdict based on sympathy for MA, enduring years of pain and silence as she waited for justice to arrive. See, e.g., Diaz v. State, 508 A.2d 861, 866 (Del. 1986) ("[trial] is [victim]'s only shot at achieving justice"). We conclude the prosecutor's repeated "justice" comments were flagrant and ill intentioned.
Because Stephenson did not object to any arguments by the prosecutor, the inquiry is whether the misconduct was "so flagrant and ill intentioned that it causes an enduring and resulting prejudice that could not have been neutralized by a curative instruction to the jury." State v. Brown, 132 Wn.2d 529, 564-65, 940 P.2d 546 (1997).
The State asserts it was not. We disagree. In State v. Case, 49 Wn.2d 66, 73, 298 P.2d 500 (1956), the court held, "[T]here comes a time . . . when the cumulative effect of repetitive prejudicial error becomes so flagrant that no instruction or series of instructions can erase it and cure the error." While the individual remarks arguably are curable, the collective effect of the prosecutor's remarks was improper and too severe and frequent to be overcome by a curative instruction. The prosecutor indulged in an appeal to the jury wholly irrelevant to any facts or issues in the case, the purpose and effect of which could only have been to arouse passion and prejudice.
In this case, the jury's verdict turned almost entirely on the credibility of MA and Stephenson. There were no witnesses or physical evidence to corroborate MA's testimony about the abuse. Other witnesses testified about MA's abuse disclosure. And the evidence arguably supported either party's version of the events. We cannot conclude that a rational jury would have returned the same verdict without the improper remarks. The improper remarks here constitute reversible error.
And our Supreme Court's recent decision in State v. Thorgerson, _____ Wn.2d _____ , 258 P.3d 43,¶ 7 (2011), concerning whether a "prosecuting attorney improperly vouched for [the victim's] credibility and bolstered her testimony, shifted the burden of proof to the defendant, and impugned defense counsel" is inapposite.
But even if this error, standing alone, is insufficient to justify reversal, the cumulative effect of the trial court's erroneous admission of the 1983 child molestation evidence denied Stephenson a fair trial. Accordingly, we reverse and remand for a new trial.
Given our disposition, we need not address Stephenson's remaining contentions.
--------
WE CONCUR: