State Of Washington v. Danny C. Park ( 2015 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON cro COO
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STATE OF WASHINGTON, )
No. 72262-0-1
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Respondent, ]
DIVISION ONE
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DANNY C. PARK, UNPUBLISHED OPINION
Appellant. j FILED: November 16, 2015
Becker, J. — Appellant's right to a fair trial was not violated when the trial
court allowed the child victim to testify holding her mother's driver's license. And
the prosecutor's closing arguments did not misstate the law or express a
personal opinion. We affirm the conviction.
A jury found appellant Danny Park guilty of one count of luring a minor
with sexual motivation. This appeal followed.
Child witness
The trial court allowed the 10-year-old child witness to hold her mother's
driver's license while testifying before the jury. Park contends this was a violation
of his due process right to a fair trial. A trial court has "broad discretion to make
a variety of trial management decisions." State v. Dye, 178 Wash. 2d 541, 547, 309
P.3d 1192 (2013). This broad discretion includes "control over the mode and
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order of interrogating witnesses and presenting evidence so as to (1) make the
interrogation and presentation effective for the ascertainment of the truth, (2)
avoid needless consumption of time, and (3) prevent witnesses from harassment
or undue embarrassment." ER 611(a). We review for abuse of discretion. Dye.
178 Wash. 2d at 547-48.
In State v. Hakimi, 124 Wash. App. 15. 98 P.3d 809 (2004), review denied,
154 Wash. 2d 1004 (2005), this court found that the trial court did not abuse its
discretion in allowing two child victims to hold a doll while testifying. In Dye, the
Washington Supreme Court held that the trial court acted within its broad
discretion in allowing a severely developmentally disabled man, who functioned
at the mental capacity of a child, to testify with a facility dog provided by the
prosecutor's office. Dye, 178 Wash. 2d 541.
Here, when first attempting to testify at trial, the child became upset,
started to cry, and was unable to continue testifying. The judge conducted an
off-the-record sidebar with both parties and then allowed her to testify while
holding her mother's driver's license. The judge later described this sidebar
discussion for the record: "We discussed the fact that I believe it was the
Supreme Court had indicated that a dog is not inappropriate if the dog serves to
comfort a vulnerable witness, and the court indicated that that card was the
equivalent of the dog and that it was helping the witness to calm down and to
provide her with reassurances and justice. With a dog situation, the court didn't
feel that the card crossed the line in the sense that it would unduly inflame the
passions of the jury."
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Park argues that the trial court failed to balance the child's needs with the
risk of prejudice to him before allowing her to testify holding her mother's driver's
license. In Dye, the trial judge reasoned that the victim was a "'developmentally
disabled individual who has . . . significant emotional trauma'" and that the dog
would be "'very unobtrusive, will just simply be next to the individual, not be
laying [sic] in his lap, and if we can accommodate somebody who has a
developmental disability when they're testifying in the courtroom I think it's
appropriate to do so.'" Dye, 178 Wash. 2d at 546 (alterations in original). This was
an appropriate balancing of competing interests. Dye, 178 Wash. 2d at 557 ("the
trial court balanced the competing factors appropriately"). In Hakimi, this court
approved the trial judge's reasoning that "'children do present different issues
and different considerations in terms of being witnesses in different cases. They
have a peculiar need to find some security in an otherwise insecure setting, I
suspect. I don't think the doll unduly prejudices, to the extent it prejudices
anyone at all; so I will allow it.'" Hakimi. 124 Wash. App. at 20-21. The trial judge's
balancing of competing interests in this case was very similar to the balancing
approved in Dye and Hakimi. Thus, the balancing was proper.
Park also argues that the trial court failed to take sufficient measures to
reduce the risk of prejudice to him. The child was briefly questioned regarding
the driver's license at the beginning of her testimony. There is no evidence in the
record that the driver's license was brought to the attention of the jury again. It is
"the responsibility of a party alleging error to create a record of that error.. . .
This court is not in a position to speculate about what might have happened at
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trial." Dye, 178 Wash. 2d at 556. We conclude that the trial court properly
minimized jury exposure to the license.
Park suggests that a limiting jury instruction should have been given as a
safeguard against potential prejudice. In Dye, the trial court instructed the jury
not to "'make any assumptions or draw any conclusions based on the presence
of this service dog.'" Dye, 178 Wash. 2d at 556. However, Dye did not hold that a
limiting jury instruction was required, nor did its decision hinge on the fact that
such an instruction was given. The comfort item in this case—a small plastic
driver's license—was inherently less prejudicial than the "adorable" golden
retriever in Dye. Dye. 178 Wash. 2d at 559 (Gordon McCloud, J., concurring). In
Hakimi. although the trial court did not give the jury a limiting instruction, this
court upheld the decision to allow the child victims to testify holding a doll.
Holding her mother's driver's license calmed the child and allowed her to
testify, which enhanced the truth-seeking goal of the trial and permitted the trial
to move forward. The trial court considered potential prejudice to Park and
properly minimized it. We find no abuse of discretion.
Prosecutor's closing argument
Park contends the prosecutor committed misconduct in closing argument.
An appellant claiming prosecutorial misconduct must establish both improper
conduct and resulting prejudice. State v. McKenzie. 157 Wash. 2d 44, 52, 134 P.3d
221 (2006). Prejudice exists only where there is a substantial likelihood that the
misconduct affected the jury's verdict. State v. Pirtle. 127 Wash. 2d 628, 672, 904
P.2d 245 (1995), cert denied, 518 U.S. 1026 (1996). We review a prosecutor's
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arguments during closing argument in the context of the total argument, the
issues in the case, the evidence addressed in the argument, and the jury
instructions. State v. Russell. 125 Wash. 2d 24, 85-86, 882 P.2d 747 (1994), cert-
denied. 514 U.S. 1129 (1995). Failure to object to alleged prosecutorial
misconduct at trial waives any error unless the misconduct is so flagrant and ill-
intentioned that no instruction could have cured the prejudice. State v. Emery.
174 Wash. 2d 741, 760-61, 278 P.3d 653 (2012).
The prosecutor told the jury, "I do not need to prove to you beyond a
reasonable doubt. . . whether Mr. Park did this act knowingly or with intent,
which is a different type of crime." Park claims that these remarks misstated the
law regarding the mental state required for a luring conviction.
A person commits the crime of luring if he "orders, lures, or attempts to
lure a minor" into or away from specified areas. RCW 9A.40.090(1 )(a). The
plain language of the statute does not include any intent or specific mens rea.
Our courts have already held that the luring offense does not require proof of
intent. See State v. Homan. 181 Wash. 2d 102, 107, 330 P.3d 182 (2014) ("RCW
9A.40.090 does not require proof of unlawful purpose or intent."); State v. Dana.
84 Wash. App. 166, 177, 926 P.2d 344 (1996) ("there is no intent element to
luring."), review denied. 133 Wash. 2d 1021 (1997). The legislative history of the
luring statute also indicates that luring is a strict liability crime. Dana. 84 Wn.
App. at 166n.28.
Park was convicted under the "attempts to lure" language of the statute.
He argues that "attempt" requires an intentional or goal-oriented mindset.
No. 72262-0-1/6
Where the word "attempt" in the statute has nothing to do with criminal
attempt, it must be given its ordinary meaning of "to try." State v. Gallegos. 73
Wash. App. 644, 650, 871 P.2d 621 (1994). Black's Law Dictionary defines attempt
as the "act or an instance of making an effort to accomplish something, esp.
without success." Black's Law Dictionary 152 (10th ed. 2014). This definition
does not require an intentional or knowing mental state. Rather, it refers to the
"act" or "instance" of trying. Because the luring statute does not require the State
to prove that one who "attempts to lure" has any specific mens rea, the
prosecutor did not misstate the law.
Park also claims that the prosecutor argued his personal opinion. In
closing, the defense argued that this "is not a luring case." In rebuttal, the
prosecutor stated that it "sounds like a luring case to me."
To simply say that this is not a luring case, you maybe ask the next
question which is sort of what is that based upon. Why would we
say this is a luring case? Right. You sort of have to ask yourself
the next question. Well, if I remember the evidence and the
testimony, I'm sure there was discussion of beer and cigarettes
from Lucas Schmidt who we also know directly from [E.H.] that
there was mention of cigarettes and candy.
What else do we know? We also know that this man asked
that little fourth-grader if she would have sex with him. And where
would this take place? He asked her to go back to his place, to his
house as described by [E.H.]. It sounds like a luring case to me.
Misconduct occurs when the prosecutor expresses an "independent,
personal opinion" regarding defendant's guilt. McKenzie, 157 Wash. 2d at 53. But
this must be distinguished from an opinion based upon or inferred from the
evidence in the case. McKenzie. 157 Wash. 2d at 53. Prejudicial error does not
occur until it is clear and unmistakable that the prosecutor is expressing a
No. 72262-0-1/7
personal opinion rather than arguing an inference from the evidence. McKenzie.
157Wn.2dat54.
In this case, the prosecutor was directly responding to the defense's
closing argument that "this is not a luring case." The prosecutor's question, "Why
would we say this is a luring case?" and conclusion that it "sounds like a luring
case to me" was a rhetorical reply, not a personal opinion. The prosecutor
referred to testimony from two witnesses about what Park said to the victim. The
prosecutor then argued that based on this testimony it was, in fact, a luring case.
This was a direct inference from the testimony just mentioned, not an
independent personal opinion divorced from the evidence in the record.
Even assuming that the prosecutor's remarks constituted misconduct,
defense counsel failed to object. Any error was waived unless the misconduct
was so flagrant and ill-intentioned that no instruction could have cured the
prejudice. Emery. 174 Wash. 2d at 760-61. The prosecutor's alleged misconduct in
this case does not meet that test. Park waived any error when he failed to
object.
Sexual assault protection order
The trial court entered a sexual assault protection order with a duration of
three years. By statute, a sexual assault protection order entered pursuant to a
criminal conviction may remain in effect for a period of two years. RCW
7.90.150. Park argues, and the State concedes, that the three-year order
exceeded the court's authority. We accept the concession.
No. 72262-0-1/8
Park's conviction is affirmed. The case is remanded for correction of the
expiration date on the sexual assault protection order.
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WE CONCUR:
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