Opinion
No. 29168-5-III No. 29183-9-III
11-17-2011
STATE OF WASHINGTON, Respondent, v. BRIAN DEE WENZ, Appellant.
UNPUBLISHED OPINION
Brown, J. — Brian Wenz appeals his second degree child molestation and first degree child molestation convictions involving separate victims at different times. The trial court joined the two cases over his objection, ruling that the evidence was cross admissible under RCW 10.58.090. He contends RCW 10.58.090 is unconstitutional as a violation of the doctrine of separation of powers, the evidence was not cross admissible under RCW 10.58.090, and prosecutorial misconduct denied him a fair trial. We affirm.
FACTS
Mr. Wenz was charged with sex offenses in two separate cases. First, Mr. Wenz was charged with second degree rape of a child and second degree child molestation against N.B. N.B., a friend of Mr. Wenz's niece, R.H., alleged that in March 2007, Mr. Wenz fondled her while the two were at R.H.'s house watching television. N.B. was then 12 years old. Second, Mr. Wenz was charged with three counts of first degree rape of a child and three counts of first degree child molestation. In that case, Mr. Wenz's niece, T.W., claimed that between May and June 2006, Mr. Wenz forced his hands down her pants on several occasions while she and Mr. Wenz were watching television with other members of the family, including R.H. T.W. turned 10 years old in May 2006. T.W. first disclosed the allegations to R.H. after R.H. informed T.W. about N.B.'s allegations.
T.W. is the adopted daughter of Mr. Wenz's brother. She was adopted prior to trial but after the incident. In some portions of the record she is referred to as T.P.
Before trial, the State moved for joinder under CrR 4.3 and sought cross admissibility under RCW 10.58.090. And, the State argued the evidence was cross admissible under the res gestae doctrine and as evidence of a lustful disposition. Mr. Wenz objected, arguing RCW 10.58.090 was an unconstitutional violation of separation of powers and, alternatively, the evidence was not admissible under RCW 10.58.090. The trial court rejected his arguments and joined the cases.
After two mistrials, Mr. Wenz was convicted of second degree child molestation in the matter involving N.B., and one count of first degree child molestation in the matter involving T.W. The trial court dismissed the remaining counts for the State's failure to offer sufficient evidence. Mr. Wenz appealed.
ANALYSIS
A. Constitutionality of RCW 10.58.090
The issue is whether RCW 10.58.090 violates the separation of powers doctrine. Mr. Wenz contends RCW 10.58.090 conflicts with the judicial branch's authority to govern the admissibility of evidence and it thus violates the doctrine of separation of powers under the state and federal constitutions.
At the outset we note Division One of this court has addressed and rejected this exact issue. See State v. Scherner, 153 Wn. App. 621, 643, 225 P.3d 248 (2009); State v. Gresham, 153 Wn. App. 659, 665, 223 P.3d 1194 (2009). At the time of writing, our Supreme Court has granted review of both cases, but no decision has been rendered. See State v. Scherner, 168 Wn.2d 1036, 233 P.3d 888 (2010); State v. Gresham, 168 Wn.2d 1036, 233 P.3d 888 (2010).
We review challenges to the constitutionality of legislation de novo. City of Fircrest v. Jensen, 158 Wn.2d 384, 389, 143 P.3d 776 (2006). We must first presume the statute is constitutional. State v. Stevenson, 128 Wn. App. 179, 187, 114 P.3d 699 (2005).
When a party claims both state and federal constitutional violations, we first turn to our state constitution. State v. Patton, 167 Wn.2d 379, 385, 219 P.3d 651 (2009) (citing State v. Johnson, 128 Wn.2d 431, 443, 909 P.2d 293 (1996)). The Washington State Constitution does not contain a formal separation of powers clause. Carrick v. Locke, 125 Wn.2d 129, 134-35, 882 P.2d 173 (1994). Instead, the division of the government into different branches has been presumed to give rise to the separation of powers doctrine. Id. at 135. "The doctrine of separation of powers serves mainly to ensure that the fundamental functions of each branch remain inviolate." City of Spokane v. Spokane County, 158 Wn.2d 661, 680, 146 P.3d 893 (2006). "Though the doctrine is designed to prevent one branch from usurping the power given to a different branch, the three branches are not hermetically sealed and some overlap must exist." Fircrest, 158 Wn.2d at 393-94.
To determine whether a particular action violates separation of powers, the court looks not to whether two branches of government engage in coinciding activities, but rather whether the activity of one branch threatens the independence or integrity or invades the prerogatives of another. Brown v. Owen, 165 Wn.2d 706, 718, 206 P.3d 310 (2009). But as the State argues, both the court and the legislature have authority to enact rules of evidence. Fircrest, 158 Wn.2d at 394; State v. Sears, 4 Wn.2d 200, 215, 103 P.2d 337 (1940). Our Supreme Court has acknowledged that the adoption of the rules of evidence is a legislatively delegated power of the judiciary. Fircrest, 158 Wn.2d at 394. The State correctly asserts: "Historically, the legislature and the courts have shared the responsibility for enacting rules of evidence; representatives of both the legislature and the judiciary drafted the current rules of evidence." Br. of Resp't at 7 (citing 5 Karl B. Tegland, Washington Practice: Evidence Law and Practice Chairman's Intro. to the Wash. Rules of Evidence at V-IX (2d ed. 1982)). The State directs our attention to numerous statutes that currently supplement the evidence rules on various issues and specifically for evidence and testimony in sex offense cases.
RCW 5.45.020 (business records); RCW 5.46.010 (copies of business and public records); RCW 5.60.060 (evidentiary privileges); RCW 5.66.010 (admissibility of expressions of apology, sympathy, fault).
RCW 9A.44.020 (rape shield); RCW 9A.44.120 (child hearsay statute); RCW 9A.44.150 (child witness testimony concerning sexual or physical abuse).
The legislature's enactment of RCW 10.58.090 is consistent with its history of enacting evidentiary rules. Still, Mr. Wenz insists the statute conflicts with ER 404(b). But as the State contends "when considering a separation of powers challenge to a statute, our Supreme Court has repeatedly held that 'apparent conflicts between a court rule and a statutory provision should be harmonized, and both given effect if possible.'" Br. of Resp't at 8 (quoting State v. Ryan, 103 Wn.2d 165, 178, 691 P.2d 197 (1984)). The inability to harmonize a court rule with a statute occurs solely when the statute directly and unavoidably conflicts with the court rule. City of Spokane, 158 Wn.2d at 679.
ER 404(b) prohibits the use of evidence of other crimes, wrongs, or acts to show action in conformity therewith. RCW 10.58.090(1) states: "In a criminal action in which the defendant is accused of a sex offense, evidence of the defendant's commission of another sex offense or sex offenses is admissible, notwithstanding Evidence Rule 404(b)." It is not difficult to harmonize ER 404(b) with RCW 10.58.090 and give effect to both. While ER 404(b) generally prohibits evidence of a defendant's prior bad acts, it contains a list of exceptions for which evidence of past acts is admissible.
This list of other purposes for which past acts evidence may be admitted includes "proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." ER 404(b).
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The list of exceptions is not exclusive. State v. Hepton, 113 Wn. App. 673, 688, 54 P.3d 233 (2002). Many are creatures of common law. See State v. Lane, 125 Wn.2d 825, 831, 889 P.2d 929 (1995) (discussing the "res gestae" exception to ER 404(b)). One of the well-settled common law exceptions to ER 404(b), lustful disposition, allows for the admission of the same type of evidence as in RCW 10.58.090. See State v. Ray, 116 Wn.2d 531, 547, 806 P.2d 1220 (1991); State v. Ferguson, 100 Wn.2d 131, 133-34, 667 P.2d 68 (1983). Under the lustful disposition exception, evidence of a defendant's prior sexual misconduct against the same victim is admissible in order to show the defendant's lustful disposition toward that victim. Ray, 116 Wn.2d at 547; Ferguson, 100 Wn.2d at 133-34.
Given that ER 404(b)'s prohibition against prior bad acts evidence is not absolute and this state's recognition of numerous exceptions to the rule, we harmonize the statute as creating but another rule exception. The statute and rule do not irreconcilably conflict. Moreover, RCW 10.58.090 is not a mandatory rule of admission—it leaves the determination whether to admit such evidence to trial court discretion. The statute directs the court to consider a variety of factors in deciding whether, under ER 403, the probative value of the evidence is outweighed by the danger of unfair prejudice. Given that the judiciary retains the final say on whether such evidence is admitted, the existence of RCW 10.58.090 does not threaten court independence or integrity. In short, the separation of powers doctrine is not violated because the legislature did not invade a fundamental judicial function by enacting RCW 10.58.090.
B. Joinder and Cross Admissibility
The next issue is whether the trial court erred by joining Mr. Wenz's two cases for trial and in allowing evidence of cross admissibility.
The question of whether two offenses are properly joined is a question of law reviewed de novo. State v. Bryant, 89 Wn. App. 857, 864, 950 P.2d 1004 (1998). CrR 4.3(a)(1) permits two or more offenses to be joined in a single charging document when the offenses "[a]re of the same or similar character, even if not part of a single scheme or plan." The parties agree that the two offenses are of the same or similar character.
"Offenses properly joined under CrR 4.3(a), however, may be severed if 'the court determines that severance will promote a fair determination of the defendant's guilt or innocence of each offense.'" State v. Bythrow, 114 Wn.2d 713, 717, 790 P.2d 154 (1990) (quoting CrR 4.4(b)). We review a trial court's denial of a motion to sever counts for abuse of discretion. Bryant, 89 Wn. App. at 864-65. Mr. Wenz did not move to sever the offenses, so the issue is waived on appeal. Id. Nonetheless, because joinder and severance are "based on the same underlying principle, that the defendant receive a fair trial untainted by undue prejudice, . . . the 'pure' legal issue of joinder" cannot be decided without considering prejudice. Id. at 865.
Joinder carries the potential for prejudice if (1) the defendant may have to present separate, possibly conflicting, defenses; (2) the jury may infer guilt on one charge from evidence of another charge; or (3) the cumulative evidence may lead to a guilty verdict on all charges when, if considered separately, the evidence would not support every charge. Bythrow, 114 Wn.2d at 718. On the other hand, the prejudice from joinder is mitigated by (1) the strength of the evidence on each count; (2) the clarity of the separate defenses; (3) instructions directing the jury to consider each count separately; and (4) the admissibility of the evidence of one charge in a separate trial of the other charge. State v. Russell, 125 Wn.2d 24, 63, 882 P.2d 747 (1994).
Mr. Wenz solely challenges the court's determination that the evidence of each charge would be admissible in a separate trial on the other charge. He argues the court misapplied ER 404(b) and RCW 10.58.090 to allow the cross admissibility of evidence. We review de novo whether a trial court correctly interpreted an evidentiary rule when admitting evidence. State v. DeVincentis, 150 Wn.2d 11, 17, 74 P.3d 119 (2003).
As discussed, although ER 404(b) prohibits the use of evidence of other crimes, wrongs, or acts to show action in conformity therewith, RCW 10.58.090 allows evidence of the defendant's commission of another sex offense, notwithstanding ER 404(b), in a criminal action in which the defendant is accused of a sex offense. RCW 10.58.090(1). But under RCW 10.58.090(1), the evidence still must be excluded if it is inadmissible under ER 403 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." ER 403.
When evaluating whether such evidence should be excluded pursuant to ER 403, the trial court
shall consider the following factors:
(a) The similarity of the prior acts to the acts charged;RCW 10.58.090(6).
(b) The closeness in time of the prior acts to the acts charged;
(c) The frequency of the prior acts;
(d) The presence or lack of intervening circumstances;
(e) The necessity of the evidence beyond the testimonies already offered at trial;
(f) Whether the prior act was a criminal conviction;
(g) Whether the 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; and
(h) Other facts and circumstances.
Thus, RCW 10.58.090 allows the cross admissibility of evidence of other sex offenses if, after considering the factors, a trial court judge concludes the evidence is "not inadmissible" pursuant to ER 403. RCW 10.58.090(1). A trial court has wide discretion in balancing probative value versus prejudice under ER 403. State v. Stein, 140 Wn. App. 43, 67, 165 P.3d 16 (2007).
Here, the trial court discussed most of these factors on the record. Additionally, the trial court explained it had considered the factors. And, the court explained it had read the parties' briefs addressing the factors before it ruled the probative value of the evidence was not outweighed by the danger of its prejudice. The court then determined the evidence was cross admissible under RCW 10.58.090.
Mr. Wenz next argues the trial court improperly considered the evidence cross admissible under the res gestae and lustful disposition exceptions to ER 404(b). While the court considered other exceptions to ER 404(b), it clearly based its decision on RCW 10.58.090. The trial court did not misinterpret or misapply the statute or rules of evidence in deciding to join the cases.
C. Prosecutorial Misconduct
The issue is whether the trial court erred by allowing the prosecutor to use the term "abuse of trust" in closing arguments. Mr. Wenz contends the prosecutor's conduct denied him a fair trial.
A defendant claiming prosecutorial misconduct must establish both an improper comment and the resulting prejudicial effect. State v. McKenzie, 157 Wn.2d 44, 52, 134 P.3d 221 (2006). Comments "'calculated to appeal to the jury's passion and prejudice and encourage it to render a verdict on facts not in evidence are improper.'" State v. Stith, 71 Wn. App. 14, 18, 856 P.2d 415 (1993) (quoting State v. Stover, 67 Wn. App. 228, 230-31, 834 P.2d 671 (1992)). We consider the alleged comment in the context of the total argument, the issues in the case, the evidence addressed in the argument, and the instructions given to the jury. McKenzie, 157 Wn.2d at 52. Comments may be deemed prejudicial solely if there is a substantial likelihood that misconduct affected the jury's verdict. Id.
In closing argument, a prosecutor is afforded wide latitude in drawing and expressing reasonable inferences from the evidence, including commenting on the credibility of witnesses and arguing inferences based on evidence in the record. State v. Millante, 80 Wn. App. 237, 250, 908 P.2d 374 (1995).
Here, before closing argument, Mr. Wenz moved to prevent the State from saying he breached a trust relationship, noting that the prosecutor had argued in closing argument in the second trial that Mr. Wenz breached a trust relationship. Report of Proceedings (Apr. 15, 2010) (RP) at 116. The trial court denied the motion, explaining it was merely argument.
During closing argument, the prosecutor said:
Let's talk about what this case is about. As [co-counsel] said in his opening, this case is about abuse of trust. . . .Id. at 132-33.
. . . .
He's doing similar stuff, Mr. Brian Wenz is, the defendant, as an uncle. Another adult in a position that a kid should be able to trust.
Mr. Wenz argues the prosecutor misstated the law because "abuse of trust" is a legal term of art. Mr. Wenz is correct that "[i]n the area of criminal law, the Legislature has determined it may be an aggravating factor which may serve as the basis for an exceptional sentence above the standard range." Br. of Appellant at 26 (citing RCW 9.94A.535(3)(n)). He is also correct that "Washington law is clear that before an abuse of trust can be used as an aggravating factor, the evidence must indicate that the position of trust was used to facilitate the crime." Id. (citing State v. Stevens, 58 Wn. App. 478, 500, 794 P.2d 38 (1990)).
However, as Mr. Wenz acknowledges, he was not charged with abusing a position of trust. Therefore, the question of whether Mr. Wenz abused a position of trust, as it is defined by law, was not before the jury. The trial court explained:
But just to be a little bit more specific in my response, a statutory definition of "breaching the trust" might be different than the dictionary definition. And certainly the prosecutor in closing can use words—can be using words in their ordinary meaning, not just the statutory meaning. And there's no elements here, meaning any of these crimes, of breaching of the trust that we have to cross that bridge of is there evidence to support those words.RP at 117. Thus, the prosecutor did not misstate the law. Given all, the comment was not improper and therefore did not constitute misconduct. Therefore, the court did not err in allowing it.
Affirmed.
A majority of the panel has determined that 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.
Brown, J.
WE CONCUR:
Korsmo, A.C.J.
Sweeney, J.