State Of Washington, Resp v. Christopher Tory Nolen, App ( 2018 )

FILED
r;OURT,OF APPEAL- 01Y' I
'STATE OF WASHINGTON
2018 APR 16 Jul 8:35
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
THE STATE OF WASHINGTON,
No. 75677-0-1
Respondent,
DIVISION ONE
V.
UNPUBLISHED OPINION
CHRISTOPHER T. NOLEN,
Appellant. FILED: April 16, 2018
APPELWICK, J. — Nolen was convicted of three counts of first degree child
molestation for acts against his daughter. The trial court allowed victim impact
evidence and testimony that Nolen's mother had tried to intimidate the victim's
mother. Nolen argues that the trial court abused its discretion, asserting that in
both cases the prejudicial effect outweighed the probative value. He also claims
the prosecutor made an impermissible comment on the credibility of the
complaining witness during closing argument. We find no error on these issues.
Finally, Nolen challenges conditions of community custody, arguing that they are
unauthorized and not reasonably related to his offenses. We accept the State's
concession that two conditions are not related to the crimes and must be stricken
or clarified. We affirm in part, reverse in part, and remand.
No. 75677-0-1/2
FACTS
Around 2004, Christopher Nolen and his then wife, Tina Nolen, moved to
Arlington, Washington with their two children.' Their daughter, A.N., who was
about eight, and younger son, C.N., went to the Boys and Girls Club after school
while their parents worked. The Nolens separated in 2006 and finalized their
divorce in 2009. A.N. remained active with the Boys and Girls Club, and was
recognized as Student of the Year when she was a senior in high school. After the
recognition ceremony for the award, A.N. told her mother that her father had
sexually abused her in the past.
A.N. testified that when Nolen still lived with her, he molested her while she
was alone with him in her parents' bedroom. At the time, A.N. was nine or ten.
A.N. testified about two other times Nolen molested her in her bedroom. And, after
her parents separated, A.N. testified that when she was 14 years old Nolen raped
her when they were alone together in a hotel room.
In the amended information, the State charged Nolen with first degree rape
of a child (count I), first degree child molestation (counts II-1V), and third degree
rape of a child (count V). The jury returned verdicts of not guilty on counts I and
V. It convicted the defendant of first degree child molestation as charged in counts
II-1V. The court sentenced Nolen to 130 months to life in confinement and imposed
community custody conditions. Nolen appeals.
'Because several witnesses share the same surname, unless otherwise
indicated, we use first names for clarity. We refer to the appellant as "Nolen."
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DISCUSSION
I. Admitted Evidence
Nolen argues that the trial court twice abused its discretion in admitting
evidence that had a prejudicial effect that outweighed its probative value. First, he
contends that the trial court abused its discretion in admitting testimony of how
A.N. suffered as a result of Nolen's offenses. Second, he argues that the trial court
abused its discretion in allowing the State to ask Nolen's mother about a
conversation she had with A.N.'s mother, Tina.
A trial court's decision to admit or exclude evidence is reviewedfor an abuse
of discretion. State v. Gunderson, 181 Wn.2d 916, 922, 337 P.3d 1090 (2014). A
court abuses its discretion when its decision is manifestly unreasonable, or based
on untenable grounds or reasons. Id.A. Victim Impact Evidence
Nolen first argues that evidence of the impact of the alleged abuse on A.N.
was not relevant to the issues at trial, and, therefore, the evidence's prejudicial
effect outweighed its probative value.
Before trial, Nolen moved to exclude evidence of the impact on A.N. of the
alleged abuse. The court denied the motion, balancing the probative value against
the prejudice of the evidence on the record:
The objection was under ER 403. With regard to that, generally the
analysis that is supposed to take place is a balancing process, where
you balance probative value against prejudice of the evidence. And
the burden is on the moving party to show the prejudice. And what
you are basically looking at is. . . whether the evidence is designed
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to illicit [sic] an emotional response versus a rational response. In
other words, the problem is it inflammatory towards the jury? Is it
intended to inflame them or confuse them?
In this situation, the impact of the crime on the victim, I don't see
how, given what I've heard in terms of offer of proof, how it would be
inflammatory at all.
The fact that a person was assaulted and was injured by that and
the injury was primarily psychological, it is sort of a common thing to
be expected in these types of situations. And I think that the
probative value of the evidence outweighs the prejudicial value so
far, and so that motion is denied.
Under ER 403, the only question is whether the evidence's probative value
is outweighed by its prejudicial effect. Carson v. Fine, 123 Wn.2d 206, 222, 867
P.2d 610 (1994). Unfair prejudice is caused by evidence likely to arouse an
emotional response rather than a rational decision among the jurors. Id. at 223.
Evidence is relevant if it has any tendency to make the existence of any fact
that is of consequence to the determination of the action more or less probable
than it would be without the evidence. ER 401. Evidence bearing on a witness's
credibility is relevant when there has been an attack on her credibility. State v.
Bourgeois, 133 Wn.2d 389, 401, 945 P.2d 1120 (1997). Where the State can
reasonably anticipate such an attack, it need not wait until after the witness has
been cross-examined. Id. at 402. The credibility of a witness often is " 'an
inevitable, central issue'" in cases in which the witness is a child victim of sexual
molestation. State v. Hakimi, 124 Wn. App. 15, 25, 98 P.3d 809 (2004)(quoting
State v. Petrich, 101 Wn.2d 566, 575, 683 P.2d 173 (1984)). Cases involving
crimes against children generally put in issue the credibility of the complaining
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No. 75677-0-1/5
witness, especially if the defendant denies the acts charged and the child asserts
their commission. Id. An attack on the credibility of these witnesses, however
slight, may justify corroborating evidence. Id.Here, the defense's theory of the case, of which it notified the court before
trial, was that the alleged abuse was a fabrication. In support of admitting the
impact evidence, the State argued,
[T]he disclosure was a late disclosure. . . . I expect [A.N.] to testify
that when she ultimately did disclose it was because it had been
having quite an emotional impact on her, and she couldn't keep it in
anymore. I think that is certainly relevant, especially considering the
defense is that she made it up. I think circumstances surrounding
when she did ultimately disclose are key to this case, especially in
light of the defense.
She also then has had difficulty talking about it with different
people and I think she should be allowed to talk about how hard it is
to talk about and what she was feeling at the time when she was
having various discussions with various people.
And ultimately she did seek counselors and she saw counselors
as a result of this. These are counselors I think [defense counsel] is
calling as her own witness.
So all of it is part and parcel of the way this came about, how it's
affected her, why she told, who she told, when she told, and how --
how her emotions were significantly affecting those things. So I do
think that's relevant.
Nolen argues that A.N.'s testimony about her counseling and the techniques
she used to cope with her challenges was inflammatory and invoked undue
sympathy, and did not connect to the elements of the offense. He cites to where
A.N. testified that she was feeling overwhelmed, and that her second counselor
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No. 75677-0-1/6
helped her with methods to overcome her emotions, enabling her to talk about
what happened.
Throughout trial, Nolen's defense was that A.N.'s allegations were false.
On cross, Nolen called A.N.'s credibility into question, asking why she was now
able to remember things that she had previously told a detective she could not
remember. Thus,testimony about the impact of the abuse and the techniques she
learned from counseling was relevant to why A.N. disclosed more information
about the abuse over time. The trial court did not abuse its discretion in allowing
testimony of how the abuse affected A.N.
B. Witness Bias Testimony
Second, Nolen argues that the trial court abused its discretion in allowing
the State to elicit testimony from Nolen's mother that was overly prejudicial.
Before trial, Nolen moved to exclude testimony that Elizabeth "Kay" Nolen,
Nolen's mother, told Tina that she had money and was able to hire a good lawyer.
In evaluating the defense's motion, the trial court read from the defense witness
list and the accompanying summary of anticipated testimony from Kay. That
summary included that "Kay will describe . . . Tina's persistent pleas for money
from her." The court noted that since the defense planned on attacking the
credibility of another witness by bringing up the money issue, it would be fair to
allow the State to inquire into Kay's bias on cross-examination. The trial court
denied the motion to exclude Kay's statements.
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No. 75677-0-1/7
Although the court did not bar the State from asking Kay if she told Tina that
she could hire a good lawyer, the State did not explicitly ask this at trial. Instead,
in cross-examination the State asked,
Q. And didn't you intercede on [Nolenrs behalf when you tried to
manipulate Tina into not supporting this prosecution?
A. Okay.
Is that regarding after we heard about it and that 1 e-mailed her
and asked her why she was doing this, is that what you mean?
Q. You asked her why she was doing it?
A. Uh-hum.
Q. And you said we have money behind our case, did you not?
A. I did.
Nolen asserts that the admitted testimony was irrelevant and a burden on
his Sixth Amendment right to counsel. The law allows cross-examination of a
witness into matters that will affect credibility by showing bias, ill will, interest, or
corruption. State v. Russell, 125 Wn.2d 24, 92, 882 P.2d 747(1994). The scope
of such cross-examination is within the discretion of the trial court. Id. The State
may not draw adverse inferences from the exercise of a constitutional right. State
v. Gregory, 158 Wn.2d 759,806, 147 P.3d 1201 (2006)overruled on other grounds
12y State v. W.R., 181 Wn.2d 757, 336 P.3d 1134 (2014). But, not all arguments
touching upon a defendant's constitutional rights are impermissible comments on
the exercise of those rights. Id. Where the focus of a prosecutor's question is not
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No. 75677-0-1/8
on the right itself, the comment does not violate the defendant's constitutional right
at issue. Id. at 807.
Here, after the State asked Kay if she told Tina that she had money behind
the case, the State asked, "And you said we are going to bring you down with
charges, it's a felony, correct?" The focus of the prosecutor's line of questioning
was to show Kay's attempt to intimidate Tina and to establish witness bias. It did
not focus on the defendant's right to counsel. The trial court did not abuse its
discretion in admitting the testimony.
II. Prosecutorial Misconduct
Nolen argues that the prosecutor improperly commented on the credibility
of the complaining witness in closing argument, denying him a fair trial.
Prosecutorial misconduct is grounds for reversal only if the prosecutor's
conduct was both improper and prejudicial. State v. Monday, 171 Wn.2d 667,675,
257 P.3d 551 (2011). We evaluate a prosecutor's conduct in the full trial context,
including the evidence presented, the total argument, the issues in the case, the
evidence addressed in argument, and the jury instructions. Id. It is misconduct for
a prosecutor to state a personal belief as to the credibility of a witness. State v.
Warren, 165 Wn.2d 17, 30, 195 P.3d 940(2008). But, a statement is misconduct
only if it is a clear and unmistakable expression of a personal opinion. State v.
Brett, 126 Wn.2d 136, 175, 892 P.2d 29 (1995). Otherwise, the prosecutor
remains free to argue an inference from the evidence. Id. When there is an
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No. 75677-0-1/9
objection, an improper argument is prejudicial if there is a substantial likelihood it
affected the verdict. State v. Emery, 174 Wn.2d 741, 760, 278 P.3d 653(2012).
Absent a timely objection, reversal is required only if the conduct is 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. Warren, 165
Wn.2d at 43.
Here, in closing argument, the prosecutor focused on A.N.'s credibility. At
one point, about A.N., she stated,
Ultimately you are here to decide what's reasonable and what's not
reasonable, what makes sense, what doesn't make sense, in light of
what you heard. . . . [If s]he sat up there and every time she talked
about it, she talked about it the same way, used the same words,
didn't show any emotion, that would certainly have you wondering,
wouldn't it? That would make it clear that she was reciting some sort
of script. But that's not what happened here.
Then, she recounted A.N.'s testimony about the incident in her parents' bedroom:
And he ended up pushing her down onto the bed. . . . And what did
he say, I asked her. It's fine, it's fine.
What were you thinking? Well, I didn't understand. I was
confused. I thought - - I guess it was okay.
That's scripted? I don't think so.
Nolen argues that the prosecutor improperly vouched for her witness when
she asked and answered her own question with "'That's scripted? I don't think
so.' " In Warren, our Supreme Court found that a prosecutor's comment that a
witness's statements had a"'ring of truth' "was not improper. 165 Wn.2d at 30.
It found that it was not an explicit statement of personal opinion, and stated that
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No. 75677-0-1/10
prosecutors have wide latitude to argue reasonable inferences from the facts
concerning witness credibility. Id. Likewise here, the prosecutor's comment was
an argued inference about A.N.'s testimony, not a clear and unmistakable
expression of a personal opinion.
Even if we had instead concluded the prosecutor's comment was improper,
Nolen did not object below. The prosecutor's comment was not so flagrant and ill
intentioned that it caused an enduring and resulting prejudice that could not have
been neutralized by a curative jury instruction. The comment does not constitute
a basis for reversa1.2
III. Cumulative Error
Next, Nolen argues that he is entitled to a new trial because during his trial
"several critical errors occurred which unfairly prejudiced the jury against him and
their cumulative impact affected the outcome of the case."
The cumulative error doctrine is limited to instances when there have been
several trial errors that standing alone may not be sufficient to justify reversal but
when combined may deny a defendant a fair trial. State v. Greiff, 141 Wn.2d 910,
929, 10 P.3d 390 (2000).
2Nolen also identifies another potential error, stating that the "prosecution's
use of extraneous allegations of poor parenting further tipped the scales against
[Nolen] and his hope for a fair trial." But, he does not provide any citation to the
record, nor to any authority that the evidence was erroneously admitted. Therefore
we do not review his claim. See State v. C.B., 195 Wn. App. 528, 535, 380 P.3d
626 (2016)(we will not review issues inadequately argued or mentioned only in
passing).
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No. 75677-0-1/1 1
Nolen contends that the errors at trial were the admission of two types of
prejudicial evidence and an improper comment during the State's closing. We
found above that these were not errors, so the cumulative error doctrine does not
apply.
IV. Community Custody Conditions
Finally, Nolen argues that the trial court exceeded its authority by imposing
community custody conditions that were not reasonably related to his offenses,
overbroad, and vague.
The trial court lacks authority to impose a community custody condition
unless authorized by the legislature. State v. Warnock, 174 Wn. App. 608, 611,
299 P.3d 1173 (2013). RCW 9.94A.505(9) provides, "As a part of any sentence,
the court may impose and enforce crime-related prohibitions and affirmative
conditions as provided in this chapter." Community custody conditions are within
the court's discretion and will be reversed only if manifestly unreasonable. State
v. Valencia, 169 Wn.2d 782, 791-92, 239 P.3d 1059(2010).
Nolen first challenges condition 7, which states,"Do not access the Internet
on any computer in any location, unless such access is approved in advance by
the supervising Community Corrections Officer and your treatment provider. Any
computer to which you have access is subject to search." We accept the State's
concession that there is no evidence that using a computer or accessing the
internet was related to Nolen's offenses. We remand to the trial court to strike
condition 7 based on the lack of the requisite nexus between the crime and the
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No. 75677-0-1/12
prohibited activity. See State v. O'Cain, 144 Wn. App. 772, 775, 184 P.3d 1262(2008)(holding that a prohibition on internet access without preapproval must be
crime related).
Nolen next challenges condition 13, requiring him to "[p]articipate in
urinalysis, [breath], and polygraph examinations as directed by the supervising
Community Corrections Officer, to monitor compliance with conditions of
community custody." The State concedes that there was no evidence that alcohol
contributed to the circumstances of the offense, and that the part of condition 13
requiring Nolen to participate in breath tests should be stricken.
But, the State argues that requiring Nolen to undergo urinalysis tests is not
unlawful. Citing Warnock, Nolen argues that, absent the finding that chemical
dependency contributed to his offense, the court lacked authority to order him to
submit to tests monitoring substance abuse.
As conditions of his community custody, Nolen was ordered to "not
consume controlled substances except pursuant to lawfully issued prescriptions"
and to "not unlawfully possess controlled substances while on community
custody." This condition was properly issued under RCW 9.94A.703(2)(c), which
states that as a condition of community placement the offender shall "refrain from
possessing or consuming controlled substances except pursuant to lawfully issued
prescriptions." This condition is required unless the trial court waives it, regardless
of the offense committed. RCW 9.94A.703(2). Stemming from this statutory
authority, it follows that the trial court has the ability to enforce these conditions.
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State v. Vant, 145 Wn. App. 592, 604, 186 P.3d 1149 (2008). As such, the trial
court's imposition of random urinalysis tests to ensure compliance with its
conditions does not constitute an abuse of discretion. Only the breath
examinations must be stricken from condition 13.
We affirm in part and reverse in part, and remand.
WE CONCUR:
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