State Of Washington, V Justin Moses And Aimee Moses , 193 Wash. App. 341 ( 2016 )

Filed
Washington State
Court of Appeals
Division Two
April 12, 2016
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 46357-1-II
Respondent,
v.
JUSTIN PURNELL MOSES, consolidated with
Appellant.
STATE OF WASHINGTON, No. 46377-6-II
Respondent,
v.
AIMEE MAXINE MOSES, PUBLISHED OPINION
Appellant.
MELNICK, J. — Justin Purnell Moses and Aimee Maxine Moses1 appeal their convictions
of criminal mistreatment in the second degree2 for causing substantial bodily harm by withholding
the basic necessities of life from M.A.
Justin argues the trial court erred when it (1) admitted redacted versions of Aimee’s
interview with Detective Thomas Catey in violation of his Sixth and Fourteenth Amendment rights
to confront witnesses, (2) denied his motion to sever, (3) applied the wrong legal standard in
admitting the child hearsay statements under RCW 9A.44.120, (4) instructed the jurors on the
1
To avoid confusion, we refer to Justin and Aimee by their first names. We intend no disrespect.
2
RCW 9A.42.030(1)(a), or (b).
46357-1-II / 46377-6-II
abuse of trust and particularly vulnerable victim aggravating factors and imposed an exceptional
sentence on that basis. He also argues that the cumulative effect of these errors requires reversal.
Aimee joins all of Justin’s arguments with the exception of issues 1 and 2. She further
argues that the trial court erred when it sustained the State’s objection in closing argument
regarding the presumption of innocence. Justin joins Aimee’s argument. We affirm.
FACTS
The State, by amended information, charged Aimee and Justin with criminal mistreatment
in the second degree. The State alleged they recklessly created an imminent and substantial risk
of death or great bodily harm to M.A., or in the alternative, recklessly caused substantial bodily
harm by withholding the basic necessities of life from M.A., during the period between December
1, 2011 and February 27, 2012. The State charged both Aimee and Justin with three aggravating
factors, including using their
position of trust, confidence, or fiduciary responsibility to facilitate the commission
of the current offense, and/or . . . [their] conduct during the commission of the
current offense manifested deliberate cruelty to the victim, and/or . . . [they] knew
or should have known that the victim . . . was particularly vulnerable or incapable
of resistance.
Clerk’s Papers (Aimee) (CP A) at 20, 21; Clerk’s Papers (Justin) (CP J) at 205, 206.3
I. OVERVIEW
M.A., born in 2007, had issues with overeating. M.A.’s mother is related to Justin and a
member of the Muckleshoot Tribe. In September 2011, the Muckleshoot Tribe’s Indian Child
Welfare program (ICW) removed M.A. and his sister, V.A., from their foster home and placed
3
Appellants’ designated separate clerk’s papers (CP) to this court. We reference Aimee’s
designated CPs as CP A and Justin’s designated CPs as CP J.
2
46357-1-II / 46377-6-II
them with Justin and Aimee because they were family. M.A. and V.A. lived with Justin, Aimee,
and their two children.
In late September 2011, M.A. enrolled in Daffodil Elementary School’s Early Childhood
Education and Assistance Program. Aimee told the school’s family support specialist, Vicki Jones,
that they were addressing M.A.’s eating issues, which included him eating chicken bones. Aimee
told Jones that she was trying to get M.A. a medical appointment for a well-child exam with the
tribe. In early October, the school completed M.A.’s health screening.
After Christmas break, M.A. stopped attending school. The school called Aimee, who said
she sprained her foot and was unable to take M.A. to school. When M.A. returned to school on
January 9, 2012, he appeared thinner to school employees. They weighed him and he was 8 pounds
lighter than his initial weigh-in approximately 3 months earlier. Concerned, the school called
Aimee. She said that M.A. was sick the week before, but she fed him PediaSure® to make sure
he received proper nutrition.
A few days later, Aimee told Jones that M.A. should only eat one serving of food and only
drink half a cup of water at each meal because he had a tear in his esophagus that existed before
he came to live with them. M.A. did not attend school again. On January 23, 2012, Jones called
Aimee again regarding M.A.’s attendance; Aimee said they were having transportation problems.
The school continued to call the Moseses and leave messages inquiring about M.A.
On February 27, 2012, M.A.’s case worker, Debbie Guerrero, called Claire O’Brien,
M.A.’s teacher. After the conversation, Guerrero called the Moseses and asked Justin to bring
M.A. to the ICW office for a visit. Later that day, Justin brought M.A. into the office. The staff
was shocked at M.A.’s emaciated appearance. Justin seemed unfazed and did not react to the
3
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concerns the staff expressed; he did not have answers to any questions the staff asked about MA’s
health.
The ICW staff called an ambulance to transport M.A. to Mary Bridge Children’s Hospital
for treatment. Mary Bridge admitted M.A. for severe malnourishment. M.A.’s tribal case workers
told one of M.A.’s doctors that they did not recognize M.A. because he had such a drastic weight
loss.
Cornelia Thomas, a child forensic interviewer, interviewed M.A. in the hospital with
Detective Catey and Sergeant Berg present. M.A. told Thomas that he did not go to school. When
he did attend, Aimee drove him and he ate lunch at school. M.A. said that Aimee would make
dinner, he would eat jalapenos and hot sauce all the time, but he did not like them. He said that he
had to eat the jalapenos and hot sauce even though the food would make him cry because Aimee
would spank him if he did not eat it. M.A. said Justin and Aimee would tell him to stop crying.
He denied that others ate hot sauce or jalapenos, except Justin.
M.A. remained hospitalized for approximately eight days. After his release, ICW placed
M.A. in an emergency foster home with his sister.
A few weeks after his release, Thomas interviewed M.A. again. In this interview, M.A.
told Thomas he was locked in his room behind a gate. If he got out from behind the gate, Aimee
would spank him. M.A. denied sneaking food. He told Thomas that he did eat breakfast at
Aimee’s house, but not lunch, and only a little food. He said Aimee and Justin gave him the
jalapenos and hot sauce. He said he would eat Indian tacos, but only he and Justin ate them with
jalapenos. He told Thomas that he did not want the jalapenos, but Justin and Aimee made him eat
them.
4
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On May 24, 2012, Detective Catey and Detective Darren Moss interviewed Aimee and
Justin in a joint interview at their home. Detective Catey advised them both of their Miranda4
rights, they each signed a waiver of their rights, and they both answered questions. Aimee spoke
throughout most of the interview and Justin’s answers were minimal. Aimee told Detective Catey
that the school allowed M.A. to eat off the floor. She said M.A. always wanted jalapenos. She
denied telling anyone M.A. had an issue with his esophagus. Justin said that when he brought
M.A. to ICW he was fine, and he did not notice any significant change. Aimee and Justin both
denied restricting M.A.’s food.
II. PROCEDURAL HISTORY
A. Pre-Trial Motions
The State provided notice that it intended to introduce hearsay statements of M.A. at trial.
Both Justin and Aimee filed motions to exclude any child hearsay statements because there was
no physical abuse or substantial bodily harm present in the case. The trial court heard the motions.
The State argued that the statements fell within the child hearsay statute5 because withholding food
and nutrition from a child that results in substantial bodily harm is an act of physical abuse.
The trial court relied on Black’s Law Dictionary for definitions and reasoned that the trial
court give words their ordinary and intended meaning. The trial court read the definition for
“abused and neglected children.” And it says, “Those that are suffering serious
physical, emotional injury inflicted on them including malnutrition. See abuse,
female child or child abuse.” So then that includes malnutrition. Under child abuse
it says, “Any form of cruelty to a child’s physical, moral or mental well being.”
4
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
5
RCW 9A.44.120: “A statement made by a child when under the age of ten . . . describing any
act of physical abuse of the child by another that results in substantial bodily harm . . . not otherwise
admissible by statute or court rule, is admissible in evidence in . . . criminal proceedings” after a
hearing.
5
46357-1-II / 46377-6-II
Report of Proceedings (RP) (Feb. 24, 2014) at 49. The trial court preliminarily determined that
Washington’s statute on child hearsay statements applied to the behavior that resulted in M.A.’s
malnutrition. However, it reserved making a ruling.
Both Justin and Aimee filed motions to sever their trials based on the marital privilege.
They argued that in a joint trial, one spouse could deny the other the right to testify. They also
moved to exclude statements they made to the police because the admission of their statements
would violate the confrontation clause under Crawford v. Washington, 541 U.S. 36, 124 S. Ct.
1354, 158 L. Ed. 2d 177 (2004). During a CrR 3.5 hearing, the trial court determined that the
statements, with redactions, would be admissible because the interview was not custodial. The
court did not rule on the confrontation issue at this time. Subsequently, Justin filed a brief in
support of his motion to sever the trial. He argued that Detective Catey’s interview of Aimee and
Justin could not be redacted in any meaningful way and that Justin’s silence should not be
considered an adoptive admission.6
Aimee made a motion to exclude child hearsay and argued the statements violated the
confrontation clause because they were testimonial in nature, even if they were generally
admissible under RCW 9A.44.120. After the State provided its proposed redacted transcripts of
Aimee and Justin’s interview, Aimee renewed her motion to sever. The trial court denied the
motions to sever.
The trial court held a hearing on Aimee’s and Justin’s motions to exclude child hearsay
statements. Following its earlier reasoning, the trial court stated that the ordinary meaning of
“physical” and “abuse” would include maltreatment that results in malnutrition and the meaning
of “physical abuse” encompassed this concept as the term was used in the child hearsay statute.
6
ER 801(d)(2)(ii).
6
46357-1-II / 46377-6-II
The trial court again reserved ruling on the child hearsay issue until trial. But, after hearing M.A.’s
testimony, it found that M.A. was competent to testify and the statements would be admissible as
long as M.A. testified at trial and was subject to cross-examination.
The trial court analyzed the reliability of the child hearsay statements under the Ryan7
factors. The trial court found that M.A.’s statements were reliable because he had no motive to
lie, the statements were spontaneous because they were not in response to leading questions, the
timing of the statements were not too long after the events, M.A. seemed to have a good memory,
and the circumstances surrounding the statements were appropriate in that M.A. had the ability to
receive information, make a memory of the information, and then relate it later.
B. Trial Testimony
At trial, M.A. testified as follows. He was kept in his room by a baby gate and if he left
his room, Justin and Aimee would “whoop” his bottom. RP (May 1, 2014) at 1027. He ate hot
sauce and jalapenos for dinner and did not like them. Only Justin and M.A. ate jalapenos. M.A.
only drank a little bit of water and did not drink any other beverages. Aimee never took him to
the doctor. M.A. said he was skinny “[b]ecause I was starved. . . . I didn’t get any food.” RP
(May 1, 2014) at 1023. He did not like living with Aimee and Justin because “[t]hey starved
[him].” RP (May 1, 2014) at 1025.
Mary Bridge admitted M.A. for treatment because he was severely malnourished. While
in the hospital, M.A.’s weight was around the tenth or fifth percentile, and the hospital ruled out
medical causes of the malnourishment. His resident doctor, Dr. Daniel Krebs, described M.A. as
having sunken eyes, “you could see his ribs mo[r]e so than you would even on a normally skinny
7
State v. Ryan, 103 Wash. 2d 165, 691 P.2d 197 (1984).
7
46357-1-II / 46377-6-II
child,” and he was unable to hop on one foot; “[h]e seemed weak.” 8 RP (May 1, 2014) at 933.
When he arrived at the hospital, M.A. weighed 33 pounds and was three feet, four inches tall. He
had a great deal of lower extremity muscle atrophy, described as cachectic or “wasting away.” RP
(May 1, 2014) at 937. His skin was “doughy” and “tented” when pulled which is a sign of
dehydration and malnutrition. RP (May 1, 2014) at 937. Dr. Krebs planned to refeed M.A., but
he worried that M.A. would be subject to “refeeding syndrome,” where the body has dangerous
disturbances in its electrolytes when it finally receives food after a long period of no food. RP
(May 1, 2014) at 940-41. Dr. Krebs acknowledged that M.A. had a normal white blood cell count,
normal temperature, but low protein and a protuberant belly—other signs of malnutrition.
The trial court admitted M.A.’s statements to Thomas at trial. Over defense objections, the
trial court also admitted redacted versions of Aimee’s and Justin’s statements to Detective Catey.
The redacted version of the interview included statements by Aimee where she used the words
“we” and “us;” references to Justin were replaced with “his.” The trial court instructed the jury
not to consider the statements made by Aimee in deciding Justin’s case.
C. Trial Motions, Jury Instructions, Closing Arguments, Verdicts, and Sentencings
Justin and Aimee moved to strike the aggravating factors related to the abuse of a position
of trust and the particular vulnerability of the victim because they were already encompassed
within the crime of criminal mistreatment. They moved to strike the third aggravating factor based
on insufficient evidence to prove deliberate cruelty. The trial court denied the motions.
8
M.A.’s doctor also testified that sunken eyes implied a loss of muscle mass in your face and can
also be a sign of dehydration. He testified that having a patient hop on one foot was something he
learned while working with a pediatrician in Africa with malnourished children; it is a way of
assessing normal muscle mass.
8
46357-1-II / 46377-6-II
After the State rested its case, Aimee and Justin again made severance motions. The trial
court denied them. Neither Aimee nor Justin testified at trial.
During closing argument, Justin’s counsel argued, “I would contend that being thin is not
the same as substantial disfigurement especially when you’re told, analyze the evidence while
presuming their innocence.” RP (May 13, 2014) at 1987. The State objected on the grounds that
the argument misstated the law; the trial court sustained the objection. In rebuttal, the State argued
that the presumption of innocence means “[t]hey are innocent up to and unless you find that the
State has overcome its burden and proven that they are guilty of a crime.” RP (May 13, 2014) at
1994.
The trial court instructed the jury on the presumption of innocence: “A defendant is
presumed innocent. This presumption continues throughout the entire trial unless during your
deliberations you find it has been overcome by the evidence beyond a reasonable doubt.” CP A at
73 (Instr. 3); CP J at 241 (Instr. 3). In addition, the trial court instructed the jury:
You may only consider statements made by defendant Aimee Moses as
evidence when determining whether the State has proven Aimee Moses committed
a crime. You may not consider statements made by defendant Justin Moses when
determining whether Aimee Moses committed a crime.
You may only consider statements made by defendant Justin Moses as
evidence when determining whether the State has proven Justin Moses committed
a crime. You may not consider statements made by Aimee Moses as evidence when
determining whether Justin Moses committed a crime.
CP A at 77 (Instr. 7); CP J at 245 (Instr. 7).
The trial court instructed the jury on aggravating factors for both Aimee and Justin. For
the particularly vulnerable victim aggravator, the court instructed the jury that “a victim is
‘particularly vulnerable’ if he or she is more vulnerable to the commission of the crime than the
typical victim of criminal mistreatment in the second degree. The victim’s vulnerability must also
9
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be a substantial factor in the commission of the crime.” CP A at 106 (Instr. 36); CP J at 274 (Instr.
36). The trial court instructed the jury on the abuse of trust aggravating factor:
A defendant uses a position of trust to facilitate a crime when the defendant
gains access to the victim of the offense because of the trust relationship. A
defendant need not personally be present during the commission of the crime, if the
defendant used a position of trust to facilitate the commission of the crime by
others.
In determining whether there was a position of trust, you should consider
the length of the relationship between the defendant and the victim, the nature of
the defendant’s relationship to the victim, and the vulnerability of the victim
because of age or other circumstance.
There need not be a personal relationship of trust between the defendant and
the victim. It is sufficient if a relationship of trust existed between the defendant
and someone who entrusted the victim to the defendant’s care.
CP A at 107 (Instr. 37); CP J at 275 (Instr. 37).
The jury found both Aimee and Justin guilty of criminal mistreatment in the second degree
by causing substantial bodily harm by withholding basic necessities of life. It also found Aimee
guilty of all three charged aggravating factors, and Justin guilty of two.
The trial court sentenced Aimee to an exceptional sentence of 60 months of confinement.
The trial court entered findings of fact and conclusions of law for Aimee’s exceptional sentence:
Aimee’s conduct manifested deliberate cruelty, she knew or should have known M.A. was
particularly vulnerable or incapable of resistance, and she used her position of trust or confidence
to facilitate the commission of the crime. The trial court found that these substantial and
compelling reasons justified the exceptional sentence.
The trial court sentenced Justin to an exceptional sentence of 40 months of confinement.
The trial court entered findings of fact and conclusions of law for Justin’s exceptional sentence:
Justin knew or should have known M.A. was particularly vulnerable or incapable of resistance,
10
46357-1-II / 46377-6-II
and he used his position of trust or confidence to facilitate the commission of the crime. The trial
court found that these substantial and compelling reasons justified the exceptional sentence.
Aimee and Justin appeal.
ANALYSIS
I. ADMISSION OF REDACTED VERSION OF AIMEE’S INTERVIEW WITH DETECTIVE CATEY
Justin argues that the trial court erred in admitting Aimee’s interview with Detective Catey
because the interview contained testimonial hearsay and violated his Sixth and Fourteenth
Amendment rights to confront witnesses.9 He argues that the statements inculpate him because
the use of plural pronouns like “we,” “us,” and “our” refer to him and Aimee and their joint role
as M.A.’s caretakers. We disagree.
A. Standard of Review
We review alleged violations of the Confrontation Clause de novo. United States v.
Mayfield, 189 F.3d 895, 899 (9th Cir. 1999); United States v. Hoac, 990 F.2d 1099, 1105 (9th Cir.
1993).
The Sixth Amendment to the United States Constitution states: “In all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against
him.” Under the confrontation clause, out-of-court testimonial statements by witnesses are barred
unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine the
witnesses. Crawford, 541 U.S. at 54-55.
9
Justin makes no separate legal argument relating to the Fourteenth Amendment; therefore, our
analysis is on the Sixth Amendment.
11
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B. No Confrontation Clause Violation
“[T]he United States Supreme Court held that the defendant was deprived of his
confrontation rights under the Sixth Amendment when he was incriminated by a pretrial statement
of a codefendant who did not take the stand at trial.” State v. Hoffman, 116 Wash. 2d 51, 75, 804
P.2d 577 (1991) (citing Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d. 476
(1968)). But in Richardson v. Marsh, 481 U.S. 200, 208, 107 S. Ct. 1702, 95 L. Ed. 2d 176 (1987),
the United States Supreme Court held that a confession redacted to omit all reference to the
codefendant fell outside Bruton’s prohibition because the statement was “not incriminating on its
face” and became incriminating “only when linked with evidence introduced later at trial (the
defendant’s own testimony).”
Bruton applies to inculpatory statements. 391 U.S. at 135-36. The Bruton Court
recognized the “powerfully incriminating” effect of the extrajudicial statements of a codefendant
“who stands accused side-by-side with the defendant.” 391 U.S. at 135-36. Not only are the
statements “devastating to the defendant, but their credibility is inevitably suspect.” Bruton, 391
U.S. at 135-36. Statements that do not incriminate a codefendant are not subject to the Bruton
rule. State v. Dent, 123 Wash. 2d 467, 487, 869 P.2d 392 (1994).
We have stated that a non-testifying codefendant’s statement violates the confrontation
clause unless certain criteria are met when redacting the statement. State v. Larry, 108 Wash. App.
894, 905, 34 P.3d 241 (2001). To fall outside the prohibition, “[r]edacted statements must be (1)
facially neutral, i.e., not identify the nontestifying defendant by name (Bruton[, 391 U.S. 123]);
(2) free of obvious deletions such as ‘blanks’ or ‘X’ (Gray [v. Maryland, 523 U.S. 185, 118 S.
Ct.1151, 140 L. Ed. 2d 294 (1998)]); and (3) accompanied by a limiting instruction (Richardson[,
481 U.S. 200]).” Larry, 108 Wash. App. at 905.
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Justin only challenged a few specific statements in his brief. We need not consider the
other instances from the interview because he did not properly raise them. RAP 10.3(a)(6). 10 In
reviewing the specific instances Justin cited in his brief, the use of the plural pronouns does not
involve inculpatory statements. For instance, Justin referenced a question by Detective Catey that
referred to both Justin and Aimee: “‘And when were they placed here with you?’” Br. of Appellant
at 9 (quoting Ex. 74). This question would not and did not provoke an incriminating response.
Many instances of the plural pronouns did not just refer to Justin and Aimee, but to the family as
a whole. For instance, another question by Detective Catey referred to the entire family and not
just Justin and Aimee: “‘Would the whole family eat together?’” Br. of Appellant at 9 (quoting
Ex. 74). Again, this question did not produce any inculpatory statements: Aimee responded “Um-
hm.” Ex. 74. Another example: “We all have dinner at the same time” and “when he moved in
with us, he was eating healthier.” Ex. 74. Eating together as a family is not inculpatory. Justin
also challenged both Detective Catey’s and Aimee’s use of the word “here” to refer to the Moses’s
household. Br. of Appellant at 10. Again, this information is not inculpatory and not prejudicial.
10
Justin generally argues that throughout the interview, the plural pronouns used, e.g. “we,” “us,”
and “our” refer to him and Aimee. Except for a few examples, he does not cite to the specific parts
of the record he challenges. It is Justin’s obligation to point to the specific parts of the record he
claims constitutes error. RAP 10.3(a)(6). “Without adequate, cogent argument and briefing, [we
will] not consider an issue on appeal.” Schmidt v. Cornerstone Invs., Inc., 115 Wash. 2d 148, 160,
795 P.2d 1143 (1990). Although appellate courts are not in business of searching the record to
discover the alleged deficiencies to which challenger may be referring, we have reviewed the entire
transcript. Cowiche Canyon Conservancy v. Bosley, 118 Wash. 2d 801, 819, 828 P.2d 549 (1992).
Because our independent review of the record shows that not all of the plural pronouns specified
by Justin refer only to him and Aimee, we confine our decision to those few examples Justin raised
that cite to the record.
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46357-1-II / 46377-6-II
Here, the redacted statements met the three criteria to fall outside the prohibition. First,
these statements were facially neutral in that none referred to Justin by name, and the plural
pronouns used in context could have referred to other members of the Moses family. Second, the
redactions did not leave obvious deletions. Third, the jury was instructed only to use Aimee’s
interview statements when considering the evidence against her, not against Justin. The trial court
specifically instructed the jury before the audio of the interview was played and again in instructing
the jury that they were “only [to] consider statements made by a defendant when evaluating the
evidence against that individual defendant.” RP (May 7, 2014) at 1595.
This case is analogous to Richardson, 481 U.S. 200, because the jury could likely surmise
that certain parts of Aimee’s interview referenced Justin when combined with other evidence
introduced at trial, particularly that they were a married couple on trial as codefendants. We hold
that the statements made by Aimee were not facially incriminating of Justin because her statements
were a general denial of the abuse, and therefore, redactions of the statements were proper and
alleviated any confrontation clause issues.
The admission of Aimee’s redacted statement did not violate Justin’s Sixth or Fourteenth
Amendment rights under the confrontation clause because the statements were not inculpatory,
they were properly redacted, and the trial court instructed the jury not to consider Aimee’s
statements when considering Justin’s charges.
II. MOTIONS TO SEVER
Justin argues that the trial court erred in denying his motions to sever because redacting
Aimee’s portion of their joint interview with Detective Catey did not eliminate all prejudice to him
when it was admitted at trial against Aimee. We disagree.
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A. Standard of Review
Separate trials are not favored in this State. Dent, 123 Wash. 2d at 484; State v. Campbell,
78 Wash. App. 813, 819, 901 P.2d 1050 (1995). “Severance of trials is also discretionary with the
trial court.” Larry, 108 Wash. App. at 911. We review a trial court’s decision on a motion for
severance under CrR 4.4(c) for a manifest abuse of discretion. State v. Rodriguez, 163 Wash. App.
215, 228, 259 P.3d 1145 (2011). The defendant “must be able to point to specific prejudice” to
support a claim that the trial court abused its discretion.11 State v. Wood, 94 Wash. App. 94 Wn.
App. 636, 641, 972 P.2d 552 (1999). “Defendants seeking severance have the burden of
demonstrating that a trial involving both counts would be so manifestly prejudicial as to outweigh
the concern for judicial economy.” State v. Bythrow, 114 Wash. 2d 713, 718, 790 P.2d 154 (1990).
Severance and joinder are analyzed in the same manner. State v. Embry, 171 Wash. App. 714, 731,
287 P.3d 648 (2012).
Specific prejudice may be demonstrated by showing:
“(1) antagonistic defenses conflicting to the point of being irreconcilable and
mutually exclusive; (2) a massive and complex quantity of evidence making it
almost impossible for the jury to separate evidence as it related to each defendant
when determining each defendant’s innocence or guilt; (3) a co-defendant’s
statement inculpating the moving defendant; (4) or gross disparity in the weight of
the evidence against the defendants.”
State v. Canedo-Astorga, 79 Wash. App. 518, 528, 903 P.2d 500 (1995) (quoting United States v.
Oglesby, 764 F.2d 1273, 1276 (7th Cir. 1985)) (citations omitted).
11
In so far as Justin is arguing the failure to sever violated his right to confront witnesses, we have
addressed that issue in a previous section.
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B. The Trial Court Did Not Abuse Its Discretion
“[A] motion to sever under CrR 4.4(b) addresses the issue of prejudice to the defendant
notwithstanding proper joinder.” State v. Gatalski, 40 Wash. App. 601, 606, 699 P.2d 804 (1985)
(footnote omitted). CrR 4.4(c), states in pertinent part:
(1) A defendant’s motion for severance on the ground that an out-of-court statement
of a codefendant referring to him is inadmissible against him shall be granted
unless: . . .
(ii) deletion of all references to the moving defendant will eliminate any
prejudice to him from the admission of the statement.
Defendants may be joined for trial, “[w]hen each of the defendants is charged with
accountability for each offense included.” CrR 4.3(b)(1). Here, the charges against Justin and
Aimee were connected in time, place, and occasion. The cross-admissibility of the evidence
supports their joint trial.
When Justin made his motions to sever, the trial court properly analyzed the issues, took
appropriate steps to ensure fairness at trial, and instructed the jury to not consider Aimee’s
statements against Justin. Justin has failed to demonstrate any specific prejudice. The trial court
did not abuse its discretion in denying the motion to sever.
III. ADMISSION OF CHILD HEARSAY
Justin and Aimee argue that the trial court erred by admitting child hearsay because the
legislature did not intend RCW 9A.44.120 to apply to this type of criminal mistreatment case. We
disagree.
A. Standard of Review
“Statutory interpretation involves questions of law that we review de novo.” State v.
Jacobs, 154 Wash. 2d 596, 600, 115 P.3d 281 (2005). “In construing a statute, the court’s objective
is to determine the legislature’s intent.” Jacobs, 154 Wash. 2d at 600. “‘[I]f the statute’s meaning is
16
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plain on its face, then the court must give effect to that plain meaning as an expression of legislative
intent.’” Jacobs, 154 Wash. 2d at 600 (quoting Dep’t of Ecology v. Campbell & Gwinn, LLC, 146
Wash. 2d 1, 9-10, 43 P.3d 4 (2002)). “‘[W]e may discern the plain meaning of nontechnical statutory
terms from their dictionary definitions.’” State v. Kintz, 169 Wash. 2d 537, 547, 238 P.3d 470 (2010)
(quoting State v. Cooper, 156 Wash. 2d 475, 480, 128 P.3d 1234 (2006)). We review the trial court’s
decision to admit child hearsay evidence for an abuse of discretion. State v. Borboa, 157 Wash. 2d
108, 121, 135 P.3d 469 (2006). “A trial court abuses its discretion ‘only when its decision is
manifestly unreasonable or is based on untenable reasons or grounds.’” Borboa, 157 Wash. 2d at
121 (quoting State v. C.J., 148 Wash. 2d 672, 686, 63 P.3d 765 (2003)).
Hearsay statements of a child under the age of ten are admissible in a criminal case when
the statements describe sexual or physical abuse of the child, the court finds that the time, content,
and circumstances of the statements provide sufficient indicia of reliability, and the child testifies
at the proceedings. RCW 9A.44.120. When determining the reliability of child hearsay, the trial
court considers nine factors. State v. Ryan, 103 Wash. 2d 165, 175-76, 691 P.2d 197 (1984).
B. The Trial Court Properly Interpreted RCW 9A.44.120
After a hearing, the trial court admitted the child hearsay evidence on tenable grounds. It
properly applied the Ryan factors. Nobody contests this aspect. Rather, Justin and Aimee contest
whether the statute permits the admission of child hearsay in this type of criminal mistreatment
case.
RCW 9A.44.120 provides in pertinent part:
A statement made by a child when under the age of ten . . . describing any act of
physical abuse of the child by another that results in substantial bodily harm as
defined by RCW 9A.04.110, not otherwise admissible by statute or court rule, is
admissible in evidence in . . . criminal proceedings.
(Emphasis added.).
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RCW 9A.44.120 allows for the admission of statements that describe physical abuse. The
issue in this case is whether the neglect of a child by withholding food and through other means
constitutes an “act of physical abuse.” See RCW 9A.44.120. Our legislature has defined “acted”
to include “omitted to act.” RCW 9A.04.110(1). It further defined an “omission” as a “failure to
act.” RCW 9A.04.110(14) In addition, Black’s Law Dictionary defines “abuse” as “physical or
mental maltreatment, often resulting in mental, emotional, sexual, or physical injury.” BLACK’S
LAW DICTIONARY 12 (10th ed. 2014).
The legislature did not require an “affirmative” act, just any act that would cause substantial
bodily harm. See RCW 9A.04.110(1), (4)(b). An act of maltreatment that leads to
malnourishment, like the withholding of food, could satisfy the requirement because it is a physical
omission. These definitions clearly demonstrate that the failure to provide food, sustenance, and
care to a child are acts of physical abuse. Because these acts fall within the meaning of RCW
9A.44.120, the trial court properly interpreted the statute and did not abuse its discretion by
admitting the child hearsay statements.
IV. SUSTAINING STATE’S OBJECTION REGARDING THE PRESUMPTION OF INNOCENCE
Justin and Aimee argue that the trial court violated their right to the presumption of
innocence when it sustained the State’s objection during closing arguments to defense counsel’s
presumption of innocence argument. We disagree.
A ruling on an objection during closing argument is an instructional error based on a legal
ruling that we review de novo. State v. Brett, 126 Wash. 2d 136, 171, 892 P.2d 29 (1995). Jurors are
presumed to follow the court’s instructions. State v. Kalebaugh, 183 Wash. 2d 578, 586, 355 P.3d
253 (2015). “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
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303, 307, 165 P.3d 1241 (2007). “[J]ury instructions must define reasonable doubt and clearly
communicate that the State carries the burden of proof.” Bennett, 161 Wash. 2d at 307.
The presumption of innocence is the “bedrock upon which the criminal justice system
stands.” Bennett, 161 Wash. 2d at 315. “The presumption of innocence does not stop at the beginning
of deliberations; rather, it persists until the jury, after considering all the evidence and the
instructions, is satisfied the State has proved the charged crime beyond a reasonable doubt.” State
v. Evans, 163 Wash. App. 635, 643, 260 P.3d 934 (2011).
Aimee and Justin argue that when the trial court sustained the prosecution’s objection in
the following exchange, it violated their presumption of innocence.
[DEFENSE COUNSEL]: So then you next come to was there substantial bodily
harm, and “substantial bodily harm” is defined in Instruction No. 26 and talks about
substantial disfigurement, and I would contend that being thin is not the same as
substantial disfigurement especially when you’re told, analyze the evidence while
presuming their innocence. So take the assumption that thin and—
[THE STATE]: Objection. That’s a misstatement of the law.
[THE COURT]: Sustained.
RP (May 13, 2014) at 1987.
The State argues that the presumption of innocence has no bearing on the legal or factual
issue of what constitutes “substantial disfigurement.” Br. of Resp’t at 22. We agree. The trial
court’s legal ruling on the objection did not violate the presumption of innocence.
We also note that the court’s instructions to the jury correctly instructed it on the
presumption of innocence: “A defendant is presumed innocent. This presumption continues
throughout the entire trial unless during your deliberations you find it has been overcome by the
evidence beyond a reasonable doubt.” CP A at 73 (Instr. 3); CP J at 241 (Instr. 3).
The trial court did not err.
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V. AGGRAVATING FACTORS
The jury found beyond a reasonable doubt that both Aimee and Justin knew or should have
known that M.A. was particularly vulnerable or incapable of resistance. Justin and Aimee argue
that insufficient evidence existed to support this finding. We disagree.
A. Standard of Review
Washington courts may impose exceptional sentences outside the standard range if “there
are substantial and compelling reasons justifying an exceptional sentence.” RCW 9.94A.535.
Whenever an exceptional sentence is imposed, the court must state its reasons in written findings
of fact and conclusions of law. RCW 9.94A.535.
To reverse a sentence which is outside the standard sentence range, the reviewing
court must find: (a) Either that the reasons supplied by the sentencing court are not
supported by the record which was before the judge or that those reasons do not
justify a sentence outside the standard sentence range for that offense; or (b) that
the sentence imposed was clearly excessive or clearly too lenient.
RCW 9.94A.585(4).
Where the reviewing court is satisfied that the trial court would have imposed the same
sentence based upon one valid factor, it may uphold the exceptional sentence rather than
remanding for resentencing. State v. Jackson, 150 Wash. 2d 251, 276, 76 P.3d 217 (2003). This rule
is particularly appropriate when the trial court expressly states that the same exceptional sentence
would be imposed based on any one of the aggravating factors standing alone. See State v. Nysta,
168 Wash. App. 30, 54, 275 P.3d 1162 (2012).
The trial court’s written findings from Aimee and Justin’s sentencing stated that it would
have sentenced them both the same way even if the jury had only found one of the aggravating
factors. Therefore, we need only determine if substantial evidence supports one of the factors and
whether it justifies a sentence outside the standard range. Jackson, 150 Wash. 2d at 276.
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B. Sufficient Evidence Supports Aggravating Factor of Particularly Vulnerable Victim
The facts supporting an aggravating factor must be proved to a jury beyond
a reasonable doubt. We use the same standard of review for the sufficiency of the
evidence of an aggravating factor as we do for the sufficiency of the evidence of
the elements of a crime. Under this standard, we review the evidence in the light
most favorable to the State to determine whether any rational trier of fact could
have found the presence of the aggravating circumstances beyond a reasonable
doubt.
State v. Zigan, 166 Wash. App. 597, 601-02, 270 P.3d 625 (2012) (statute omitted) (citation omitted).
“In order for the victim’s vulnerability to justify an exceptional sentence, the State must
show (1) that the defendant knew or should have known (2) of the victim’s particular vulnerability
and (3) that vulnerability must have been a substantial factor in the commission of the crime.”
State v. Suleiman, 158 Wash. 2d 280, 291-92, 143 P.3d 795 (2006) (emphasis in original).
M.A. was a five-year-old boy, who was completely dependent upon Aimee and Justin to
care for him, feed him, and assist in his education and growth. He could not attend school if not
taken there. M.A. went to live with Aimee and Justin after begin removed from a prior foster
placement. He could not live on his own. He was particularly vulnerable because of his needs. A
reasonable jury, when viewing the evidence in the light most favorable to the State, could find
beyond a reasonable doubt the aggravating factor of particular vulnerability. 12
VI. CUMULATIVE EFFECT OF ERRORS
Justin and Aimee argue that the combined effect of errors at trial was prejudicial, and
therefore, requires a new trial. We disagree.
12
Because of this decision, we need not address the other aggravating factors. The trial court
found it would have imposed the same sentence even if only one aggravating factor existed.
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The defendant bears the burden of proving an accumulation of error of sufficient magnitude
that retrial is necessary. In re Pers. Restraint of Lord, 123 Wash. 2d 296, 332, 868 P.2d 835 (1994).
Where no prejudicial error is shown to have occurred, cumulative error cannot be said to have
deprived the defendant of a fair trial. State v. Stevens, 58 Wash. App. 478, 498, 794 P.2d 38 (1990).
Aimee and Justin’s claim of cumulative error fails.
VII. APPELLATE COSTS
Aimee and Justin have filed a supplemental brief raising the issue of whether or not they
should be held responsible for paying appellate costs. Because the State’s time for filing a cost
bill with us and serving a copy on the parties has not passed pursuant to RAP 14.4, we decline to
decide this issue at this time. If the State does request appellate costs, we will address the issue
after that occurs.
We affirm.
Melnick, J.
We concur:
Bjorgen, C.J.
Maxa, J.
22