State Of Washington, V Michael Joe Severson ( 2016 )

Filed
Washington State
Court of Appeals
Division Two
March 29, 2016
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 46359-8-II
Respondent,
v.
MICHAEL JOE SEVERSON, UNPUBLISHED OPINION
Appellant.
WORSWICK, J. — Michael Joe Severson appeals his convictions for four counts of first
degree child molestation of K.C.-J. and J.N.K.1 Severson makes copious arguments including
that (1) K.C.-J. was not competent to testify, (2) K.C.-J.’s hearsay statements were inadmissible,
(3) the State committed several instances of prosecutorial misconduct, and (4) trial counsel
rendered ineffective assistance. We affirm.
FACTS
Michael Severson met S.C., the mother of K.C.-J. and J.N.K., through a mutual friend.
S.C. was working a graveyard shift and needed help taking care of K.C.-J. and J.N.K. who were
four and ten years old, respectively. Severson eventually moved into S.C.’s apartment. The
children referred to Severson as “Mikey.” V Verbatim Report of Proceedings (VRP) (April 15,
2014) at 383. S.C., who was taking methadone, spent most of the day in her bedroom sleeping.
1
We use initials to identify the minor victims and certain witnesses under this court’s General
Order 2011–1 to protect the victims’ privacy.
No. 46359-8-II
Bill Campbell lived in another apartment in the same complex and eventually moved in
with S.C., the children, and Severson. Campbell saw interactions between Severson and the girls
that concerned him. One night Campbell witnessed J.N.K. hugging Severson and sitting on the
couch “[l]ike a boyfriend and girlfriend would,” around 1:00 AM. IV VRP (April 14, 2014) at
291. Campbell also witnessed K.C.-J. straddling Severson on the couch several times. At trial,
Campbell testified, “The hair stood up on my neck, and it just bothered me. I won’t even lay
with my own kid like that. Not that it’s inappropriate, but in my opinion, it was inappropriate.”
IV VRP (April 14, 2014) at 293-94.
Mike Thomas was friends with S.C., the girls, and Severson. One day, while Thomas
was watching K.C.-J. play in his yard he saw her hit herself repeatedly in her groin area. He
asked her why she was hitting herself, and K.C.-J. responded, “Mikey does it.” V VRP (April
15, 2014) at 457. Thomas described K.C.-J.’s action as mimicking male masturbation. After
that episode, Thomas began paying close attention to Severson’s interactions with the girls and
noticed that Severson would rub K.C.-J.’s upper inner thigh while she sat on his lap and
frequently seemed possessive and controlling of the girls. Shortly thereafter, Thomas expressed
his concerns about Severson’s interactions with the girls to S.C., stating that he thought Severson
was “grooming” the girls. V VRP (April 15, 2014) at 458.
After Thomas expressed his concerns to S.C., S.C. talked to Campbell, and then she sat
each girl down individually and asked if Severson had ever made them feel uncomfortable.
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K.C.-J. told S.C. that Severson made her uncomfortable and disclosed that Severson had rubbed
her “no-no.”2,3 V VRP (April 15, 2014) at 402.
After her conversation with the girls, S.C. called law enforcement which started an
investigation. Each child underwent a medical examination and a forensic interview. Keri
Arnold conducted video-recorded forensic interviews with each girl. The State charged Severson
with two counts of first degree child molestation of J.N.K., and two counts of first degree child
molestation of K.C.-J.
At a pretrial hearing, the State asked the trial court to rule three out-of-court statements
made by K.C.-J. to S.C., Thomas, and during the forensic interview, admissible as child hearsay
under RCW 9A.44.120, and to find K.C.-J. competent to testify at trial.4 Severson made no
objection to the admission of the three statements under RCW 9A.44.120 or to K.C.-J.’s
competency to testify at trial. The trial court ultimately found the statements satisfied the Ryan
reliability test, and found K.C-J. competent to testify at trial. State v. Ryan, 103 Wash. 2d 165, 173-
77, 691 P.2d 197 (1984).
2
S.C. testified that K.C.-J. and J.N.K. refer to their vaginal area as a “no-no” because nobody is
supposed to touch it.
3
J.N.K.’s comments to Carter were not admitted at trial.
4
The primary purpose of the pretrial hearing was to determine whether K.C.-J.’s three
statements were sufficiently reliable under the Ryan test to be admitted as child hearsay. State v.
Ryan, 103 Wash. 2d 165, 173-77, 691 P.2d 197 (1984). To be admissible at trial, RCW 9A.44.120
requires that the child hearsay be sufficiently reliable and that the child either testify at the
proceedings, or if the child is unavailable as a witness that there be corroborative evidence of the
act(s) mentioned in the hearsay statements. To satisfy the second requirement for the
admissibility of K.C.-J.’s hearsay statements, the court addressed K.C.-J.’s competency to stand
trial, applied the requisite five-factor Allen test, and determined K.C.-J. was competent. State v.
Allen, 70 Wash. 2d 690, 692, 424 P.2d 1021 (1967).
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No. 46359-8-II
At trial, Campbell and Thomas testified as described above. K.C.-J. testified that a “bad
thing” had happened to her with Severson in their living room, describing that Severson touched
her “no-no” and would not stop when she asked him to. IV VRP (April 14, 2014) at 164. J.N.K.
also testified that Severson had done “bad things” such as touching her “no-no.” IV VRP (April
14, 2014) at 207. Arnold testified about the forensic interviews she conducted with K.C.-J. and
J.N.K., and the video recording of her interview with K.C.-J. was admitted into evidence.
Severson testified in his defense, and denied inappropriately touching either K.C.-J. or
J.N.K. Severson also testified that he may have accidentally touched the girls’ vaginal areas.
A jury later returned a verdict of guilty on all counts. Severson appeals.
ANALYSIS
I. K.C.-J’S COMPETENCY
Severson argues that the trial court erred by finding K.C.-J. competent to testify.
Severson failed to preserve the issue of K.C.-J.’s competency for appeal by conceding it at the
pretrial hearing.
We generally will not consider a claimed error that was not raised in the trial court. RAP
2.5(a).5 This allows the trial court to correct any error called to its attention, thus avoiding
needless appeals and retrials. State v. O’Hara, 167 Wash. 2d 91, 98, 217 P.3d 756 (2009).
At the pretrial hearing regarding K.C.-J.’s hearsay statements, Severson made no
objection to K.C.-J.’s competency. Rather, Severson’s counsel stated:
5
RAP 2.5(a) excepts “manifest error[s] affecting a constitutional right,” however Severson
makes no argument, nor presents any facts, suggesting any such error occurred.
4
No. 46359-8-II
I don’t have any specific objections to the finding that [K.C.-J.] is competent. I
think she is certainly able to relate her memory and facts and answer questions, so
I believe she is competent. She is available.
....
You know, again, I don’t object. I don’t dispute that she is not [sic] competent. I
believe she is competent, but I think we need to make that finding.
....
I believe she was competent . . . in my judgment at least.
II VRP (April 9, 2014) at 123, 129-30.
K.C.-J. testified at the pretrial hearing and again at trial. Severson made no objection at
any time to K.C.-J.’s competence, and as his comments at the pretrial hearing show, he conceded
that K.C.-J. was competent to testify. As a result, Severson failed to preserve this issue for
appeal and we do not address it.6
II. K.C.-J.’S OUT-OF-COURT STATEMENTS
Severson argues that the trial court erred by admitting K.C.-J’s three out-of-court
statements made to S.C., to Arnold, and to Thomas, as child hearsay under RCW 9A.44.120. We
hold that Severson failed to preserve the issue of K.C.-J.’s out-of-court statements’ admissibility
by failing to object to them at the pretrial hearing.
As explained above, an appellate court generally will not consider a claimed error that
was not raised in the trial court. RAP 2.5(a).7 A party objecting to the admission of evidence
6
We address Severson’s ineffective assistance of counsel arguments below.
7
Although RAP 2.5(a) excepts “manifest error[s] affecting a constitutional right,” there is no
constitutional violation in admitting child hearsay statements when, as here, the child testifies at
trial and is available for cross-examination. State v. Leavitt, 111 Wash. 2d 66, 71, 758 P.2d 982
(1988); State v. Stevens, 58 Wash. App. 478, 486, 794 P.2d 38, review denied, 115 Wash. 2d 1025
(1990).
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No. 46359-8-II
must make a timely and specific objection in the trial court. ER 103. Failure to object precludes
raising the issue on appeal.
Here, the trial court held a pretrial hearing outside the jury’s presence regarding the
admissibility of K.C.-J’s out-of-court statements. At the hearing, Severson’s counsel explained:
I’m going to be frank with the Court. I would just ask the court to go through the
Ryan factors. I don’t have any specific arguments that these statements should not
be admitted. I think the Court can go through the analysis of these factors and just
make a record, but I don’t have any specific objections.
II VRP (April 9, 2014) at 122-23. The court found the Ryan factors were satisfied and ruled the
out-of-court statements admissible.
Because Severson did not timely object to the admission of K.C.-J’s out-of-court
statements, he failed to preserve this issue and we do not address it.
III. DETECTIVE EGGLESTON’S TESTIMONY
Severson argues the trial court erred by admitting improper perpetrator profile testimony
from Detective Eggleston. We disagree because Severson did not object to Detective
Eggleston’s testimony as improper profile testimony, and therefore he did not properly preserve
this issue for appeal.
As a general rule, perpetrator profile testimony is improper because it carries with it the
“implied opinion that the defendant is the sort of person who would engage in the alleged act,
and therefore did it in this case too.” State v. Braham, 67 Wash. App. 930, 939, n.6, 841 P.2d 785
(1992). However, Severson did not object to Detective Eggleston’s testimony on this basis at
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No. 46359-8-II
trial. Instead, he objected to the relevance of the State’s line of questioning.8 A party may only
assign error on appeal based on the specific ground of the evidentiary objection at trial. State v.
Guloy, 104 Wash. 2d 412, 422, 705 P.2d 1182 (1985), cert. denied, 475 U.S. 1020, 106 S. Ct. 1208,
89 L. Ed. 2d 321 (1986). An objection to the admission of evidence based on relevance fails to
preserve the issue for appellate review based on improper perpetrator testimony. See Guloy, 104
Wash. 2d at 422. Consequently, we hold that Severson did not preserve this issue for appeal.
IV. PROSECUTORIAL MISCONDUCT
Severson argues that the State committed several instances of prosecutorial misconduct
including improperly eliciting witnesses’ opinions of guilt, violating motions in limine, and by
making improper closing argument. We disagree.
To prevail on a prosecutorial misconduct claim, a defendant must show that the
prosecutor’s conduct was both improper and prejudicial. State v. Thorgerson, 172 Wash. 2d 438,
442, 258 P.3d 43 (2011). To show prejudice, a defendant must show a substantial likelihood that
the misconduct affected the verdict. 172 Wash. 2d at 442-43. In analyzing prejudice, we do not
look at the comment in isolation, but in the context of the total argument, the issues in the case,
the evidence, and the instructions given to the jury. State v. Yates, 161 Wash. 2d 714, 774, 168
P.3d 359 (2007).
A defendant who fails to object to the prosecutor’s improper act at trial waives any error,
unless the act was so flagrant and ill-intentioned that an instruction could not have cured the
8
Severson objected that the line of questioning was irrelevant and asked that it be excluded. The
State responded that the questioning provides context for Severson’s inconsistent statements and
establishes the rapport between Severson and Detective Eggleston. The trial court ruled, “I will
allow just a little bit more, Counsel.” VI VRP (April 21, 2014) at 665.
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No. 46359-8-II
resulting prejudice. Thorgerson, 172 Wash. 2d at 443. In this instance, a defendant must show that
(1) no curative instruction would have obviated any prejudicial effect on the jury, and (2) the
misconduct resulted in prejudice that had a substantial likelihood of affecting the jury verdict.
172 Wash. 2d at 455.
A. Improper Opinion of Guilt Testimony
Severson argues the State committed prosecutorial misconduct by twice eliciting
improper opinion testimony as to Severson’s guilt. Specifically, he argues the prosecutor
improperly asked Campbell to give his opinions about Severson’s interactions with the children,
and asked Thomas about his concerns for the children and why he did not want to talk about the
allegations in front of the girls. Because Campbell’s testimony was not an improper opinion of
guilt, and a timely objection to Thomas’s testimony would have allowed the trial court to cure
any potential prejudice, we disagree.
A witness expresses opinion testimony if the witness testifies to beliefs or ideas rather
than the facts at issue. State v. Demery, 144 Wash. 2d 753, 760, 30 P.3d 1278 (2001). Generally,
no witness may offer opinion testimony regarding the guilt or veracity of the defendant or the
credibility of a witness; such testimony is unfairly prejudicial “because it ‘[invades] the
exclusive province of the [finder of fact].’” 144 Wash. 2d at 759 (internal quotation marks omitted)
(quoting City of Seattle v. Heatley, 70 Wash. App. 573, 577, 854 P.2d 658 (1993)).
1. Campbell’s Testimony
On direct examination, the prosecutor asked Campbell about the interactions he
witnessed between Severson and the children. Campbell described a time he walked by their
open apartment door and saw Severson and J.N.K. sitting together on the couch. The prosecutor
8
No. 46359-8-II
asked, “So at that time, that just made you just take a double look?” IV VRP (April 14, 2014) at
291. Campbell responded, “Yeah. That—kind of concerning and kind of creeped out about it. I
backed up and looked.” IV VRP (April 14, 2014) at 291. Later, the prosecutor asked, “What
else did you see?” IV VRP (April 14, 2014) at 292. Campbell described other instances, after he
had moved into the same apartment as Severson, S.C., and the children, where K.C.-J. would lie
on top of Severson on the couch. The prosecutor asked, “And why did seeing that make you
uncomfortable?” To which Campbell responded, “Because—I don’t know. Because he—it
just—I don’t know. The hair stood up on my neck, and it just bothered me. I won’t even lay
with my own kid like that. Not that it’s inappropriate, but in my opinion, it was inappropriate.”
IV VRP (April 14, 2014) at 293-94.
Severson argues that these statements constituted improper opinions of guilt, and he cites
State v. Olmedo, 112 Wash. App. 525, 49 P.3d 960 (2002) to support his argument. There,
Division Three of this court held that a witness’s testimony as to whether a propane tank was
approved by the United States Department of Transportation was improper opinion of guilt
testimony because whether the tank was approved was a core element of the charges against the
appellants. 112 Wash. App. at 532. But nothing about Campbell’s testimony goes directly to a
core element of the charges against Severson. Campbell simply relayed what he had seen, and
noted that he felt the way Severson sat with K.C.-J. was inappropriate. That Campbell
interpreted what he saw as inappropriate does not equate to Campbell stating that Severson
appeared to be making sexual contact as required to be guilty of child molestation. See RCW
9A.44.083.
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No. 46359-8-II
Severson cannot show that Campbell’s statements were improper opinions of guilt. Thus,
the prosecutor did not commit misconduct in eliciting these statements and Severson’s claim on
this ground fails.
2. Thomas’s Testimony
Severson also argues the prosecutor committed misconduct by eliciting improper opinion
of guilt testimony from Thomas. Severson failed to preserve this issue.
During Thomas’s testimony, both Severson and the prosecutor asked Thomas several
questions about any conversations he had with S.C., Campbell, or others about Severson’s
alleged abuse and whether they talked about it in front of the girls. On redirect, the prosecutor
asked Thomas the following:
[State]: Even in your mention of the defendant’s name, would that cause the girls
to be upset?
[Thomas]: Well, they would make faces and didn’t want to talk about him.
[State]: Okay. Because it didn’t make them happy to talk about being abused?
[Thomas]: That’s the way it seemed, yes.
[State]: I have nothing further.
V VRP (April 15, 2014) at 481. Severson did not object.
Severson argues that Thomas’s comment “that’s the way it seemed, yes” constitutes
improper opinion of guilt testimony. Br. of Appellant 40. Severson is correct that this statement
constituted improper opinion of guilt because the prosecutor’s question and affirmative answer
necessarily presume that the children were abused. Whether the children were abused was an
ultimate issue of fact in the case.
However, Severson fails to show that the prosecutor’s actions engendered an incurable
feeling of prejudice in the minds of the jury. Had counsel objected at trial, the court could have
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No. 46359-8-II
issued a curative instruction to obviate any potential prejudice. Moreover, the jury was properly
instructed that it was the sole judge of witness credibility and was not bound by witness opinions
or the lawyer’s statements.9 State v. Montgomery, 163 Wash. 2d 577, 595-96, 183 P.3d 267 (2008).
Absent evidence that the jury was unfairly influenced, we presume that the jury followed the
court’s instructions. 163 Wash. 2d at 596. Severson makes no showing that Thomas’s answer to
the prosecutor’s improper question engendered an incurable feeling of prejudice in the minds of
the jury that a curative instruction would not have obviated, and therefore his prosecutorial
misconduct claim on this ground fails.
B. “Grooming” Testimony
Severson also argues the State committed prosecutorial misconduct by improperly
eliciting Thomas’s opinion, in violation of a motion in limine, that Severson was “grooming” the
children. We disagree.
9
Jury instruction 1, in part, read:
You are the sole judges of the credibility of each witness. You are also the sole
judges of the value or weight to be given to the testimony of each witness. In
considering a witness’s testimony, you may consider these things: the opportunity
of the witness to observe or know the things he or she testifies about; the ability of
the witness to observe accurately; the quality of a witness’s memory while
testifying; the manner of the witness while testifying; any personal interest that the
witness might have shown; the reasonableness of the witness’s statements in the
context of all of the other evidence; and any other factors that affect your evaluation
or belief of a witness or your evaluation of his or her testimony. . . . It is important,
however, for you to remember that the lawyers’ statements are not evidence. The
evidence is the testimony and the exhibits. The law is contained in my instructions
to you. You must disregard any remark, statement, or argument that is not
supported by the evidence or the law in my instructions.
Clerk’s Papers (CP) at 29.
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No. 46359-8-II
During motions in limine, Severson moved to exclude any testimony regarding the term
“grooming” or any other behavioral terms used to describe preparatory conduct in child sex
offenders. The State explained it did not intend to elicit opinion testimony about grooming, but
was planning to introduce Thomas’s statement to S.C. that he thought Severson was grooming
the girls as the basis for S.C. then questioning the girls about Severson. The court granted the
motion in part, explaining:
I will allow you to elicit the word “grooming” only in the conversation between the
witness and the mother with the limiting instruction that it’s not being offered for
the truth of the matter asserted but simply as a description of what he believes was
occurring. Because there has to be some reason that—I mean, whether we used
“grooming” or believed he was acting inappropriately, I think the State’s entitled
to bring that out because you can’t look at these two gentlemen’s observation in a
vacuum. . . . I don’t want them giving opinions as to the fact that they believed he
was grooming these children as part of their general testimony but only to the
mother in terms of why they had these concerns.
I VRP (April 8, 2014) at 26-27.
At trial, the State asked one question of Thomas involving the word “grooming.” V VRP
(April 15, 2014) at 458. The questioning was as follows:
[State]: When you talked to [S.C.], did you express your concerns about the
defendant’s interactions with the girls?
[Thomas]: Yes.
[State]: At that time, did you express any concern over grooming?
[Thomas]: Yes, I did.
V VRP (April 15, 2014) at 458. This questioning came shortly after S.C. testified that Thomas’s
“grooming” comment was the catalyst for her decision to question her daughters. The question
was precisely within the trial court’s ruling on Severson’s pretrial motion regarding “grooming.”
The State asked Thomas only what he did, not his opinion as to whether Severson was
“grooming” the children.
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No. 46359-8-II
We hold that Severson’s prosecutorial misconduct claim based on the State’s violation of
the trial court’s order in limine fails because the prosecutor’s questions to Thomas did not violate
the order.
C. Closing Argument
Severson further contends that the prosecutor committed prosecutorial misconduct during
closing argument by referencing uncharged criminal conduct, and by inviting the jury to convict
on improper grounds. We agree that some of the prosecutor’s comments were improper, but
hold that they were not so flagrant and ill-intentioned as to be incurable.
We review a prosecutor’s comments 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. Dhaliwal, 150 Wash. 2d 559, 578, 79 P.3d 432 (2003). We focus less on
whether the prosecutor’s misconduct was flagrant or ill-intentioned and more on whether the
resulting prejudice could have been cured. State v. Emery, 174 Wash. 2d 741, 762, 278 P.3d 653
(2012). In closing argument, prosecutors are afforded wide latitude to draw and express
reasonable inferences from the evidence. State v. Reed, 168 Wash. App. 553, 577, 278 P.3d 203.
First, Severson contends the prosecutor referenced uncharged criminal conduct by
stating:
And remember, as [Arnold] told you, disclosing sexual abuse, it’s not a moment in
time. You don’t disclose and it’s over. It’s a process. It’s an ongoing process.
And you probably haven’t even heard everything the defendant did because it is a
process, and it’s a process that these two little girls are going to have to live with
for the rest of their life.
VII VRP (April 22, 2014) at 699. Severson argues that this statement is similar to what
happened in State v. Boehning, 127 Wash. App. 511, 519-23, 111 P.3d 899 (2005).
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No. 46359-8-II
In Boehning, the prosecutor told the jury that several other charges were dropped prior to
trial because the child victim witness was not comfortable talking about it with a group of
strangers. 127 Wash. App. at 519. There, the prosecutor made the previous disclosures of other
sexual acts a central theme in his closing argument, using it to bolster his argument that the
child’s testimony was consistent and arguing that more serious sexual crimes had occurred. 127
Wash. App. at 519-21.
Unlike in Boehning, here the prosecutor’s comment about the process of disclosure was
not a reference to concrete disclosures to other parties or uncharged crimes which were
inadmissible at trial. Rather, the prosecutor was referencing the testimony of Arnold that, for
many children, disclosing sexual abuse is a process that happens over the course of many years.
The prosecutor’s argument was based on reasonable inferences drawn from the evidence
presented at trial and was not improper.
Severson also argues that during the State’s closing argument the prosecutor improperly
encouraged the jury to rely on Thomas’s and Campbell’s testimonies as evidence of guilt. We
agree that this line of argument was improper, but hold that it was not incurable and did not
affect the jury’s verdict.
The prosecutor referenced Thomas’s and Campbell’s testimony and used it to argue
Severson’s guilt:
This is a man who looks at these little girls as sexual beings, as things that he can
use as his sexual toys. And that’s why Mike Thomas’[s] radar went off, and that’s
why Bill Campbell’s radar went off. . . .
When you look at each and every thing the defendant has done, and you
consider Mike’s concerns and you consider Bill Campbell’s concerns, and you
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No. 46359-8-II
consider what these girls who loved the defendant have described enduring, it all
adds up to the same thing. The defendant is guilty of molesting those little girls.
VII VRP (April 22, 2014) at 711, 724. In rebuttal, the prosecutor used the expression, “Where
there’s smoke, there’s fire,” arguing, “[t]here is a lot of smoke from Mr. Severson. There’s
smoke in the form of Bill Campbell and Mike Thomas, and they just knew something was off.
And when [S.C.] sat those girls down, they disclosed one after the other.” VII VRP (April 22,
2014) at 749.
These arguments went beyond the evidence and inferred that Thomas and Campbell had
valid opinions that Severson was molesting the children. This was improper. However, in light
of all the evidence, Severson cannot show that the prosecutor’s misconduct resulted in a
substantial likelihood of affecting the jury verdict. The State’s case against Severson did not
heavily rely on Thomas’s or Campbell’s testimony. Rather, the jury heard direct testimony from
both K.C.-J. and J.N.K. describing their molestation. The jury also watched the video recording
of K.C.-J.’s forensic interview where she recounted the molestation in detail. As both Severson
and the prosecutor ultimately recognized in their closing arguments, this case turned on the
credibility of K.C.-J., J.N.K., and Severson. The feelings and opinions of Thomas and Campbell
were not central pieces of evidence in proving Severson guilty beyond a reasonable doubt.
Additionally, the record shows that the prosecutor repeatedly reminded the jury that
proving every element of the crime beyond a reasonable doubt was the State’s burden to bear.
As we stated above, the jury was properly instructed that it was the sole judge of witness
credibility and was not bound by witness opinions or the lawyer’s statements.
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No. 46359-8-II
Given the strength of the State’s evidence and the court’s instructions to the jury, there is
no substantial likelihood that the prosecutor’s comments caused prejudice to Severson that could
not have been cured by a curative instruction, or that any misconduct materially affected the
outcome of the trial. Accordingly, we hold that Severson’s claim of prosecutorial misconduct on
this ground fails.
D. Cumulative Prosecutorial Misconduct
Finally, Severson argues that cumulative instances of prosecutorial misconduct violated
his right to a fair trial. We disagree.
Although “‘[t]he cumulative effect of repetitive prejudicial prosecutorial misconduct may
be so flagrant that no instruction or series of instructions can erase their combined prejudicial
effect,’” such is not the case here. State v.Lindsay, 180 Wash. 2d 423, 443, 326 P.3d 125 (2014)
(internal quotation marks omitted) (quoting In re Personal Restraint of Glasmann, 175 Wash. 2d
696, 707, 286 P.3d 673 (2012)). “[T]he doctrine does not apply where the defendant fails to
establish how claimed instances of prosecutorial misconduct affected the outcome of the trial or
how combined claimed instances affected the outcome of the trial.” Thorgerson, 172 Wash. 2d at
454. As discussed above, although we find some of the prosecutor’s conduct troublesome, given
the strength of the State’s evidence and the court’s jury instructions, we conclude that the
prosecutor’s limited instances of misconduct did not deny Severson his right to a fair trial.
V. INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS
Severson makes several ineffective assistance of counsel claims. These claims fail.
To show ineffective assistance of counsel, a defendant must show (1) that defense
counsel’s conduct was deficient and (2) that the deficient performance resulted in prejudice.
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No. 46359-8-II
State v. Reichenbach, 153 Wash. 2d 126, 130, 101 P.3d 80 (2004); see also Strickland v.
Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). To show deficient
performance, Severson must show that defense counsel’s performance fell below an objective
standard of reasonableness. Reichenbach, 153 Wash. 2d at 130. To show prejudice, Severson must
show a reasonable probability that, but for counsel’s purportedly deficient conduct, the outcome
of the trial would have differed. 153 Wash. 2d at 130. If Severson fails to establish either prong of
the ineffective assistance of counsel test, we need not inquire further. State v. Foster, 140 Wn.
App. 266, 273, 166 P.3d 726 (2007).
To demonstrate ineffective assistance of counsel based on the failure to object, the
defendant must show (1) that the trial court would have sustained the objection if raised, (2) an
absence of legitimate strategic or tactical reasons for failing to object, and (3) that the result of
the trial would have been different. See State v. Johnston, 143 Wash. App. 1, 20, 177 P.3d 1127
(2007). Because ineffective assistance of counsel claims present mixed questions of law and
fact, we review them de novo. State v. Sutherby, 165 Wash. 2d 870, 883, 204 P.3d 916 (2009).
A. Defense Counsel Was Not Ineffective For Conceding K.C.-J.’s Competency
Severson argues that to the extent trial counsel conceded K.C.-J’s competency, counsel
rendered ineffective assistance. We disagree. Because any objection to K.C.-J.’s competency
would have been futile, Severson’s claim fails. See Johnston, 143 Wash. App. at 18.
The threshold for witness competency is very low. Washington courts presume that all
witnesses are competent until proved otherwise by a preponderance of the evidence. State v.
Brousseau, 172 Wash. 2d 331, 341, 259 P.3d 209 (2011). Anyone who is incapable of receiving
just impressions of the facts or relating them truly is not competent to testify. RCW 5.60.050(2);
17
No. 46359-8-II
CrR 6.12(c); State v. S.J.W., 170 Wash. 2d 92, 100, 239 P.3d 568 (2010). Although a child’s age is
not determinative of her capacity as a witness, five factors must be found before a child can be
declared competent to testify:
(1) an understanding of the obligation to speak the truth on the witness stand; (2)
the mental capacity at the time of the occurrence concerning which [she] is to
testify, to receive an accurate impression of it; (3) a memory sufficient to retain an
independent recollection of the occurrence; (4) the capacity to express in words
[her] memory of the occurrence; and (5) the capacity to understand simple
questions about it.
In re Dependency of A.E.P., 135 Wash. 2d 208, 223, 956 P.2d 297 (1998) (quoting State v. Allen,
70 Wash. 2d 690, 692, 424 P.2d 1021 (1967)). Intelligence, not age, is the proper criterion to use in
determining the competency of a young child.10 Allen, 70 Wash. 2d at 692; see also State v. Bailey,
52 Wash. App. 42, 757 P.2d 541 (1988) (child who was three at time of abuse was competent),
aff’d, 114 Wash. 2d 340 (1990); State v. Hunsaker, 39 Wash. App. 489, 693 P.2d 724 (1984)
(children who were four and a half and two and a half at time of alleged molestation were
competent to testify a year later).
Determining a child’s ability to meet the five Allen factors rests primarily with the trial
judge who sees the child, notices her manner, and considers her capacity and intelligence. Allen,
70 Wash. 2d at 692. “There is probably no area of law where it is more necessary to place great
reliance on the trial court’s judgment than in assessing the competency of a child witness.” State
v. Borland, 57 Wash. App. 7, 11, 786 P.2d 810 (1990), disapproved on other grounds by State v.
Rohrich, 132 Wash. 2d 472, 939 P.2d 697 (1997). These matters are not reflected in the written
10
K.C.-J. was six years old at the time she testified.
18
No. 46359-8-II
record, and their determination will not be disturbed absent a manifest abuse of discretion.11
Allen, 70 Wash. 2d at 692; see also State v. Swan, 114 Wash. 2d 613, 645, 790 P.2d 610 (1990).
Severson argues that K.C.-J. failed to meet three Allen factors: that K.C.-J. understood
her obligation to speak the truth, that K.C.-J. had the mental capacity to receive an accurate
impression of the molestation, and that K.C.-J. had sufficient memory to retain an independent
recollection the molestation.
1. K.C.-J. Understood Her Obligation To Speak the Truth
Severson argues that K.C.-J. gave inconsistent accounts in her forensic interview and at
the pretrial hearing, and therefore that she lacked the ability to understand what “truth” means.
Br. of Appellant at 20.
Inconsistencies in a child’s testimony do not necessarily call into question witness
competency. State v. Carlson, 61 Wash. App. 865, 874, 812 P.2d 536 (1991). Instead, such
inconsistencies generally relate to the witness’s credibility and the weight to give his or her
testimony. 61 Wash. App. at 874.
Additionally, the trial court and the State questioned K.C.-J. at length, providing
ample opportunity to observe her demeanor and her ability to answer questions.
After hearing K.C.-J.’s testimony at the pretrial hearing, the trial court opined:
11
Severson argues that we should review the trial court’s ruling on K.C.-J’s competency de novo
because we have access to the video-recording of K.C.-J’s pretrial interview that was viewed at
the pretrial hearing. We disagree because (1) the video was not included in the record on appeal
and (2) the video-recording was not the only evidence the trial court relied on in determining
K.C.-J’s competency. K.C.-J. testified at the pretrial hearing and although we have a transcript
of that proceeding, the written record does not provide the same insight into K.C.-J.’s manner or
intelligence that the trial court was able to discern in person. Allen, 70 Wash. 2d at 692.
19
No. 46359-8-II
[B]ased on her testimony here today and the colloquy that the Court went into in
regards to her taking an oath and understanding the difference between telling the
truth and telling a lie, I do find she is competent to stand trial.
II VRP (April 9, 2014) at 130.
2. K.C.-J. Had Mental Capacity To Receive an Accurate Impression of the Molestation
and Had Sufficient Memory To Recollect It
Severson further argues that K.C.-J. did not have “the mental capacity at the time of the
occurrence ‘to receive an accurate impression of it,’ and/or lacked ‘a memory sufficient to retain
an independent recollection.’” Br. of Appellant 24 (quoting Allen, 70 Wash. 2d at 692). Again, we
disagree.
The charging document alleged that the sexual abuse happened during the time Severson
lived with S.C. and the girls. At the pretrial hearing, K.C.-J. was asked several questions about
other things that happened around the time of the alleged incidents. If a child can relate
contemporaneous events, the court can infer the child is competent to testify about the abuse
incidents as well. A.E.P., 135 Wash. 2d at 225. Here, K.C.-J. was able to describe the types of
activities she and her sister would do with Severson; she could recall playing with Thomas’s dog,
and talking to S.C. and Arnold about the alleged incidents. Thomas testified that K.C.-J. would
often play with his dog during that time period. Thus the evidence supports that K.C.-J. could
receive accurate impressions during the period in which the events occurred.
During a pretrial hearing concerning K.C.-J.’s statements and competence, the court
considered testimony and discussed the Allen factors appropriately. Ultimately, the trial court
found that K.C.-J. was testimonially competent in that she understood the obligation to speak the
20
No. 46359-8-II
truth on the witness stand, she had appropriate mental capacity and memory, she had the capacity
to express her memories in words, and she had the capacity to understand and answer questions.
There is nothing in the record to suggest that had counsel not conceded K.C.-J.’s
competency and rather objected to it, that the trial court would have come to a different
conclusion. As such, Severson cannot show any deficiency or prejudice from his trial counsel’s
decision to concede K.C.-J.’s competency. Therefore, we hold that Severson’s ineffective
assistance of counsel claim on this ground fails.
B. Defense Counsel Was Not Ineffective for Failing To Contest the Introduction of K.C.-J.’s
Out-of-Court Statements.
Severson argues his trial counsel rendered ineffective assistance by failing to object to the
proffered child hearsay statements. We disagree.
RCW 9A.44.120 provides for the admission of child hearsay statements when (1) the
statements describe sexual abuse of the child; (2) the trial court finds, in a hearing conducted
outside the jury’s presence, that the time, content, and circumstances of the statements provide
sufficient indicia of reliability; and (3) the child either testifies at the proceedings or is
unavailable as a witness. State v. Woods, 154 Wash. 2d 613, 623, 114 P.3d 1174 (2005) (plurality
opinion).
Because K.C.-J testified and was available for cross-examination, the issue is whether her
statements were sufficiently reliable.12 In State v. Ryan, 103 Wash. 2d at 173-77, our Supreme
12
Severson also claims that because K.C.-J was not competent, she was “unavailable,” and
corroboration was necessary to admit her hearsay statements. Br. of Appellant 28, n.10.
Because K.C.-J was competent to testify, we do not reach the issue of corroboration because
21
No. 46359-8-II
Court set forth nine factors for the trial court to consider in determining whether child hearsay
statements have sufficient indicia of reliability: (1) whether there was an apparent motive to lie,
(2) the declarant’s general character, (3) whether more than one person heard the statements, (4)
the statements’ spontaneity, (5) the declaration’s timing and the relationship between the
declarant and the witness, (6) whether the statements contained express assertions of past fact,
(7) whether cross-examination could show the declarant’s lack of knowledge, (8) the remoteness
of the possibility of the declarant’s recollection being faulty, and (9) whether the surrounding
circumstances suggested the declarant misrepresented the defendant’s involvement.13 103
Wash. 2d at 173-77. Not every factor need be satisfied; it is enough that the factors are
“substantially met.” Woods, 154 Wash. 2d at 624.
Severson argues in a footnote that the trial court should have applied the Ryan factors to
each statement individually, rather than collectively. The plain language of the child hearsay
statute contemplates consideration of the reliability of each individual statement. State v.
Stevens, 58 Wash. App. 478, 486-87, 794 P.2d 38 (1990). Therefore, we review the reliability of
the statements to S.C., the video-recorded forensic interview, and the statements to Thomas
individually.
RCW 9A.44.120(2)(b) requires corroboration only when the child does not testify. Woods, 154
Wash. 2d at 623, n.1.
13
Factors six and seven no longer apply. See State v. Leavitt, 111 Wash. 2d 66, 75, 758 P.2d 982
(1988) (Every statement a child makes concerning sexual abuse will be a statement relating a
past fact.); State v. Stange, 53 Wash. App. 638, 647, 769 P.2d 873, review denied, 113 Wash. 2d 1007
(1989) (cross-examination could in every case possibly show error in the child hearsay
statement).
22
No. 46359-8-II
1. K.C.-J’s Statements to S.C.
Severson argues that K.C.-J.’s statements to S.C. were unreliable because they failed to
meet several Ryan factors. We disagree.
a. No Motive To Lie and General Good Character14
Severson argues that the motive to please her mother undermines the truthfulness of
K.C.-J.’s statements.
The trial court found that K.C.-J. had no apparent motive to lie. The record supports the
trial court’s finding. K.C.-J. testified that she had fun with Mikey, and that he cooked for her
and played with her. After hearing K.C.-J. testify at the pretrial hearing, the trial court noted:
[T]here is certainly no apparent motive to lie. She even today spoke of [Severson]
not in a negative term or with negative thoughts necessarily, and I think she is
trustworthy in the sense that I didn’t find her as someone who had been coached or
had that kind of indicia of someone who had been propped up to say certain
statements because she was—did not use sophisticated language or clich[és] in
terms of her testimony.
II VRP (April 9, 2014) at 130-31.
Contrary to Severson’s assertion, nothing in the record suggests that S.C.’s emotions
gave K.C.-J. motive to fabricate her statements to S.C.
Severson also argues that K.C.-J.’s young age and variations in her narrative indicates she
was not of good general character.
Any inconsistencies in K.C.-J.’s accounts affect the weight of her evidence, not its
admissibility. Woods, 154 Wash. 2d at 621. We rely on the fact-finder, before whom the witness
14
The court may consider these two factors collectively because they inquire about a declarant’s
apparent motive to lie and general character.
23
No. 46359-8-II
appeared, to consider “the manner in which the child recounts the events, the child’s memory
regarding other events (including current events), and the child’s demeanor,” as well as the
child’s capacity and intelligence. 154 Wash. 2d at 624, 617.
The trial court and the State questioned K.C.-J. at length, providing ample opportunity to
observe her demeanor and her ability to answer questions. The trial court was in the best
position to observe K.C.-J. and to assess her character and whether she had any motive to lie.
The trial court ultimately found that K.C.-J. was generally of good character. As previously
discussed, the court found, and the record reflects, that K.C.-J. was testimonially competent in
that she understood the obligation to speak the truth on the witness stand.
We hold that the evidence supports that K.C.-J. had no apparent motive to lie and had
good general character.
b. More Than One Person Heard K.C.-J.’s Statements
Severson also argues that K.C.-J.’s statements are unreliable because there is conflicting
testimony as to whether Campbell was present during S.C.’s conversation with K.C.-J.15
Even assuming that no one other than S.C. heard K.C.-J.’s statements, the statements
were nonetheless reliable. In State v. Kennealy, 151 Wash. App. 861, 883, 214 P.3d 200 (2009) we
held that when more than one person hears a similar story of abuse from a child, the hearsay
statement is more reliable. There, while the children’s initial hearsay statements were heard by
only one person, each child told the same accusations about Kennealy to more than one person
over time. 151 Wash. App. at 883. Similarly here, the evidence shows, that K.C.-J.’s statements to
There were inconsistencies in Carter and Campbell’s testimony as to whether or not Campbell
15
was present when Carter talked to the girls about Severson.
24
No. 46359-8-II
her mother, Thomas, and Arnold, though at different times with different purpose, were
generally consistent.
We hold the evidence supports that the statements were reliable.
c. K.C.-J’s Statements Were Spontaneous
Severson argues that because S.C. sat K.C.-J. down and questioned her about Severson,
that K.C.-J.’s statements to her were not spontaneous.
Statements made in response to questioning are spontaneous so long as the questions are
not leading or suggestive. Kennealy, 151 Wash. App. at 883. In Kennealy, we addressed the
spontaneity of child hearsay statements almost identical to K.C.-J.’s statements to S.C. 151 Wn.
App. at 883.
Here, as in Kennealy, S.C. merely asked if Severson had ever made K.C.-J. feel
uncomfortable, and K.C.-J. answered. While the setting of the statements was not spontaneous,
the details K.C.-J. offered were not suggested and were “spontaneously” volunteered. See State
v. Madison, 53 Wash. App. 754, 759, 770 P.2d 662 (1989).
We hold the evidence supports that K.C.-J.’s statements were spontaneous as defined by
the case law.
d. The Timing of K.C.-J’s Statements and Her Relationship to S.C. Support a Reliability
Finding
Severson argues that the relationship between K.C.-J. and S.C.—mother and child—cuts
against the reliability of K.C.-J.’s statements to S.C. Severson further argues that because S.C.’s
conversation with K.C.-J. happened the same day that S.C. allegedly argued with Severson and
Thomas told S.C. about his concerns, S.C. was predisposed to confirm what she had been told.
25
No. 46359-8-II
First, courts apply the Ryan factors to assess the reliability of the child’s statements, not
the recollection of the statement-relating witness. State v. McKinney, 50 Wash. App. 56, 62, 747
P.2d 1113 (1987). Secondly, Severson had ample opportunity at trial to challenge S.C.’s
recollection on cross-examination.
Moreover, we have held when the witness is in a position of trust with a child, this factor
is likely to enhance the reliability of the child’s statements, not detract from it. Kennealy, 151
Wash. App. at 884. Here, K.C.-J. made her statements to her mother with whom she was in a
relationship of trust.
The evidence shows that there was nothing about the timing of K.C.-J.’s statements nor
anything about the relationship between K.C.-J. and her mother to suggest an improper motive.
This Ryan factor weighed in favor of admitting K.C.-J.’s child hearsay statements.
We hold that the record supports the trial court’s findings that K.C.-J.’s child hearsay
statements to S.C. substantially satisfied the Ryan factors, particularly that her statements were
reliable. Therefore, had counsel objected, his objection would likely have been overruled. Thus,
Severson’s ineffective assistance of counsel claim on this ground fails.
2. K.C.-J.’s Statements During the Video-Recorded Interview
Severson argues that K.C.-J.’s statements in the video-recorded forensic interview failed
to meet several Ryan factors and therefore were unreliable and would not have been admitted
had counsel objected. We disagree.
a. No Motive To Lie and General Good Character
Severson argues that K.C.-J.’s motive to please her mother endured and tainted K.C.-J.’s
truthfulness in the forensic interview.
26
No. 46359-8-II
As discussed above, the trial court found, and the record supports, that K.C.-J. had no
apparent motive to lie and was a person of general good character.
b. K.C.-J’s Statements Were Spontaneous
Severson argues that “the video-recorded interview was not a spontaneous utterance.”
Br. of Appellant 32.
As previously discussed, statements made in response to questioning are spontaneous so
long as the questions are not leading or suggestive. Kennealy, 151 Wash. App. at 883. Here,
Arnold described in detail, and the trial court saw on video, the method of questioning utilized
during the forensic interview. Arnold described the technique as “always to ask very open-ended
questions and then simple follow-up questions to clarify the details.” II VRP (April 9, 2014) at
114.
We hold that the record supports that K.C.-J.’s recorded statements were spontaneous as
defined by case law.
c. The Surrounding Circumstances Do Not Show Misrepresentation
Severson appears to argue that the surrounding circumstances showed misrepresentation,
but argues only that “the child’s mutually exclusive stories are flat-out alarming.” Br. of
Appellant 33. The trial court found that based on the totality of the circumstances surrounding
the making of K.C.-J.’s statements, there is no reason to believe K.C.-J. misrepresented
Severson’s involvement. As we previously discussed, the record supports that while K.C.-J.’s
description of events varied, they were generally consistent. We hold that the record supports
that surrounding circumstances do not show misrepresentation.
27
No. 46359-8-II
Because the Ryan factors are substantially satisfied, we hold that had counsel objected to
the admission of K.C.-J.’s hearsay statements during the forensic interview, his objection would
likely have been overruled, and therefore Severson’s ineffective assistance of counsel claim on
this ground fails.
3. K.C.-J.’s Statements to Thomas
Severson argues that K.C.-J.’s statement to Thomas that “Mikey does it,” after he asked
her why she repeatedly hit herself in the crotch, does not describe the kind of act contemplated
by RCW 9A.44.120.16 Br. of Appellant 33. We disagree.
RCW 9A.44.010(2) defines sexual contact as “any touching of the sexual or other
intimate parts of a person done for the purpose of gratifying sexual desire of either party or a
third party.” Severson relies heavily on Thomas’s interpretation of the hitting as a “male
masturbatory gesture,” and argues that this does not constitute sexual contact as defined by RCW
9A.44.010(2). Whether Thomas’s interpretation of K.C.-J.’s gesture as a male masturbatory
gesture was accurate, or whether her statement meant that Severson made such contact with
K.C.-J., the statement can be reasonably interpreted as describing an act of sexual contact, as
defined by RCW 9A.44.010(2).
We hold that had counsel objected to the admission of K.C.-J.’s statements to Thomas it
would not have been sustained, and therefore counsel was not ineffective on this ground.
16
In his final sentence addressing the issue, Severson contends the “statement was not reliable,”
but offers no argument or analysis to support his claim. Br. of Appellant 33. We do not address
it. See State v. Stubbs, 144 Wash. App. 644, 652, 184 P.3d 660 (2008), rev’d on other grounds,
170 Wash. 2d 117 (2010) (“Passing treatment of an issue or lack of reasoned argument is
insufficient to allow for our meaningful review.”); RAP 10.3.
28
No. 46359-8-II
Counsel’s decisions not to pursue what would have been futile objections to the
admission of K.C.-J.’s three out–of-court statements did not fall below an objective standard of
reasonableness and were therefore not deficient. We hold that Severson’s ineffective assistance
of counsel claim on these grounds fails.
C. Failure To Object to Evidence of an Uncharged Physical Assault
Severson argues defense counsel rendered ineffective assistance by failing to object to the
introduction of K.C.-J.’s video-recorded statement that Severson physically assaulted her while
she was riding her bike.
Because this claim relies on facts outside the record on appeal we do not consider it.17
State v. McFarland, 127 Wash. 2d 322, 335, 899 P.2d 1251 (1995).
D. Failure To Object to Impeachment Evidence.
Severson argues that defense counsel rendered ineffective assistance by failing to object
to Arnold’s testimony that J.N.K. “‘disclosed witnessing some abuse with [K.C.-J.], as though
[sic] it was different, to some degree, from what [K.C.-J.] disclosed.’” Br. of Appellant 55
(alteration in original) (quoting V VRP (April 15, 2014) at 350). We disagree.
Severson contends that Arnold’s statement that J.N.K. told Arnold she had witnessed
some abuse with K.C.-J. constituted impeachment evidence because when J.N.K. testified she
was asked, “Did you ever see anything happen with [K.C.-J.]?” and she responded, “No.” Br. of
17
Severson did not include the video-recorded interview in the record on appeal. The party
presenting an issue for review has the burden of providing an adequate record to establish such
error. See RAP 9.2(b). We may decline to address a claimed error when faced with a material
omission in the record. State v. Wade, 138 Wash. 2d 460, 465, 979 P.2d 850 (1999). There was no
discussion of any physical assault during a bike ride during live witness testimony or in any
closing argument.
29
No. 46359-8-II
Appellant 55 (quoting IV VRP (April 14, 2014) at 215). Severson argues that had counsel
objected, a limiting instruction would have been given, cautioning the jury to limit its
consideration of the statement to J.N.K.’s credibility, and there was no strategic or tactical reason
not to object and request such a limiting instruction.
Contrary to Severson’s argument, there are two obvious tactical reasons trial counsel did
not object to Arnold’s statement. First, counsel may have not objected in order to avoid bringing
undue attention to the statement. Our courts have specifically recognized that such a strategy can
be described as a legitimate trial tactic. State v. Gladden, 116 Wash. App. 561, 568, 66 P.3d 1095
(2003); see also State v. Kloepper, 179 Wash. App. 343, 356, 317 P.3d 1088, review denied 180
Wash. 2d 1017 (2014) (“The decision to not object to or seek a cure for damaging evidence is a
classic tactical decision.”). Second, counsel may have allowed the testimony to show another
example of the inconsistencies in the children’s accounts. Counsel’s defense theory centered on
the inconsistencies of the children’s testimony and arguing that they were not credible. In
closing, counsel specifically brought up Arnold’s statement that J.N.K. told her she had
witnessed K.C.-J.’s abuse as an example of an inconsistent and therefore not credible statement.
We hold that not objecting to Arnold’s statement was a legitimate trial tactic and
therefore Severson’s ineffective assistance claim on this ground fails.
E. Failure To Object to Opinion of Guilt Testimony at Trial
Severson also contends that his counsel was ineffective for failing to object to several
instances of allegedly improper opinion testimony.
Counsel’s choice of whether to object is a classic example of trial tactics, and only in
egregious circumstances will failure to object constitute incompetence of counsel justifying
30
No. 46359-8-II
reversal. Kloepper, 179 Wn. app. at 355-56. As previously noted, to demonstrate ineffective
assistance of counsel based on the failure to object, the defendant must show (1) that the trial
court would have sustained the objection if raised, (2) an absence of legitimate strategic or
tactical reasons for failing to object, and (3) that the result of the trial would have been different.
See Johnston, 143 Wash. App. at 19-20.
It is improper for a witness to express a personal opinion regarding the guilt of the
accused. State v. Kirkman, 159 Wash. 2d 918, 937, 155 P.3d 125 (2007). Such impermissible
opinion testimony about a defendant’s guilt may constitute reversible error because it violates the
defendant’s constitutional right to a jury trial, which includes an independent determination of
the facts by the jury. See 159 Wash. 2d at 935-37. In order to determine whether statements
constitute impermissible opinion testimony, we consider the circumstances of the case,
including: (1) the type of witness involved, (2) the specific nature of the testimony, (3) the nature
of the charges, (4) the type of defense, and (5) the other evidence before the trier of fact.
Demery, 144 Wash. 2d at 759. “[T]estimony that is not a direct comment on the defendant’s guilt
or on the veracity of a witness, is otherwise helpful to the jury, and is based on inferences from
the evidence is not improper opinion testimony.” City of Seattle v. Heatley, 70 Wash. App. 573,
578, 854 P.2d 658 (1993)).
1. Campbell’s Testimony
Severson argues that his counsel was ineffective for failing to object to Campbell’s
improper opinion of guilt testimony. As previously discussed, Campbell’s statements did not
constitute improper opinion of guilt testimony and therefore Severson cannot show that the trial
31
No. 46359-8-II
court would have sustained the objection had it been raised. Therefore Severson’s ineffective
assistance of counsel claim on this ground fails.
2. Thomas’s Testimony
Severson also argues that counsel rendered ineffective assistance by failing to object to
Thomas’s improper opinion of guilt testimony.
As previously discussed, the prosecutor’s question, “Because it didn’t make them happy
to talk about being abused?” and Thomas’s answer, “That’s the way it seemed, yes,” constituted
improper opinion of guilt testimony. V VRP (April 15, 2014) at 481. Had counsel objected, the
trial court likely would have sustained the objection.
However, to succeed on his ineffective assistance of counsel claim, Severson must still
show prejudice. To prove prejudice, Severson must show a reasonable probability that, but for
counsel’s purportedly deficient conduct, the outcome of the trial would have differed.
Reichenbach, 153 Wash. 2d at 130. Severson cannot meet his burden.
In light of all the evidence presented at trial, Thomas’s testimony was a relatively minor
piece of evidence. The jury heard direct testimony from both J.N.K. and K.C.-J. giving first-
hand accounts of similar incidents of molestation. The jury also saw video of K.C.-J.’s forensic
interview wherein she recounted the abuse. Severson testified in his own defense and explained
some accidental touching occurred over the girls’ vaginal areas, but denied any inappropriate
sexual touching. Ultimately this case turned on the credibility of J.N.K., K.C.-J., and Severson.
Given the direct testimony heard by the jury, Thomas’s opinion testimony cannot reasonably be
said to have changed the jury’s verdict.
32
No. 46359-8-II
Additionally, the trial court properly instructed the jury that it was the sole judge of
witness credibility and not bound by witness opinions. Absent evidence that the jury was
unfairly influenced, we presume that the jury followed the court’s instructions. Montgomery,
163 Wash. 2d at 596. Severson makes no showing that Thomas’s answer to the prosecutor’s
improper question unfairly influenced the jury verdict.
Severson cannot prove that he was prejudiced by the prosecution’s elicitation of
Thomas’s opinion of guilt testimony, and therefore his ineffective assistance claim on this
ground fails.
3. “Grooming” Testimony
Severson argues that counsel rendered ineffective assistance by failing to object when
S.C. said that Thomas had told her Severson was “grooming” the girls, and when Thomas
confirmed that is what he told S.C.
As previously discussed, the grooming testimony at trial was well within the trial court’s
ruling on the motion in limine excluding all “grooming” evidence. Severson cannot show that
the trial court would have sustained the objection had it been raised, and thus Severson cannot
prove prejudice. Therefore, Severson’s claim on this ground fails.
4. S.C.’s Testimony
Severson argues that his counsel was ineffective for failing to object to S.C.’s improper
opinion of guilt testimony when she testified that other people had expressed concern about the
way Severson talked to the kids, and that it seemed there was more that K.C.-J. was not telling
her when S.C. asked K.C.-J. about Severson.
33
No. 46359-8-II
Both of these statements were minor moments in S.C.’s testimony. Severson fails to
show that counsel’s decision not to object was not a legitimate and intentional decision not to
emphasize innocuous evidence. Kloepper, 179 Wash. App. at 355. Moreover, given the
abundance of other evidence put before the jury describing Severson’s actions, there is nothing
to suggest that had the jury not heard these inconsequential statements the outcome of trial would
have differed.
We hold that counsel did not render ineffective assistance by not objecting to S.C.’s
statements.
F. Eliciting Detective Eggleston’s Opinion of Guilt
Severson argues that his counsel rendered ineffective assistance by eliciting Detective
Eggleston’s opinion that Severson was guilty. We disagree.
On cross-examination, Severson’s counsel tried to minimize the impact of Detective
Eggleston’s testimony that Severson’s story changed over the course of the interrogation by
highlighting the length and repetitive nature of the questioning, and by suggesting that Detective
Eggleston’s interrogation tactics were results oriented. Counsel asked, “Do you think it’s
possible for a person to finally give the answer that they think the person wants to hear to make
the inquiry stop; do you think that ever happens?” VI VRP (April 21, 2014) at 679. Counsel
continued, “And that’s part of the purpose of interrogation, isn’t it, to get to the answer that you
want to hear?” VI VRP (April 21, 2014) at 681. When Detective Eggleston disagreed, counsel
continued to suggest that because Detective Eggleston had already talked to S.C. and had seen
the forensic interviews of the children that he was focused on getting a confession from
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Severson. Counsel asked, “You thought you had your guy; you wanted to get a confession out of
Mr. Severson. Isn’t that the purpose for the interrogation?” VI VRP (April 21, 2014) at 681.
On appeal, Severson argues this question was a direct elicitation of Detective Eggleston’s
opinion of Severson’s guilt. As is clear from the record, this question was not an improper
elicitation of opinion of guilt, but rather counsel’s clear strategy to undermine the impact of the
lead detective in the case’s testimony about his interrogation.
Because Severson cannot show that counsel’s cross-examination of Detective Eggleston
constituted anything other than a legitimate trial tactic, he cannot show deficient performance
and we hold that his ineffective assistance of counsel claim on this ground fails.
G. Failure To Impeach S.C.
Severson argues counsel rendered ineffective assistance by conceding that S.C.’s
previous convictions for theft and falsification of insurance were inadmissible for impeachment
under ER 609. We disagree.
Under ER 609, evidence that a witness previously committed a crime of dishonesty can
be admissible for impeachment purposes. In general, evidence of a prior conviction is
admissible if (1) the crime was punishable by more than one year in prison and the court
determines that its probative value outweighs the prejudice to the party against whom the
evidence is offered, or (2) the crime involved dishonesty or a false statement. ER 609(a).
Crimes of theft involve dishonesty and are per se admissible for impeachment purposes. State v.
Ray, 116 Wash. 2d 531, 545, 806 P.2d 1220 (1991).
In pretrial motions the parties discussed a motion to exclude the criminal histories of the
State’s witnesses. It appears S.C.’s record reflected a theft crime from Tacoma Municipal in
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2008 and a conviction for falsification of insurance. Severson’s counsel noted, “I think at this
point, Your Honor, I don’t see any crimes that are admissible under 609. I’ll do a little research
between now and then.” I VRP (April 8, 2014) at 19. Counsel ultimately did not attempt to use
S.C.’s criminal history as impeachment evidence.
Severson cannot demonstrate that counsel’s failure to use S.C.’s past crimes to impeach
her prejudiced him. The extent of counsel’s cross-examination put S.C.’s credibility before the
jury even without evidence of her past crimes. He repeatedly asked S.C. about her use of
methadone and its effects, including the significant time she spent in her bedroom or sleeping,
implying she was an absent parent. Additionally, the record provides no information about the
circumstances of S.C.’s prior convictions, and we cannot speculate that its admission would have
substantially affected the jury’s opinion of her credibility.
S.C.’s credibility was not central to Severson’s case as he argues on appeal. She was not
an eyewitness to any abuse. Her most impactful testimony was reiterating K.C.-J.’s hearsay
statements about Severson’s alleged actions, and these statements were corroborated by K.C.-J.’s
own testimony and the forensic interview. S.C.’s credibility was neither pure nor imperative to
the jury finding Severson guilty in this case, and had counsel admitted evidence of her past theft
conviction the outcome of the case would not have changed.
Because Severson cannot show prejudice because of counsel’s failure to impeach S.C.
with her past convictions we reject his ineffective assistance claim on this ground.
H. Failure To Object to Prosecutor’s Improper Closing Argument
Severson argues that he received ineffective assistance of counsel because of his defense
counsel’s failure to object to the prosecutor’s statements during closing argument. Insofar as the
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prosecutor’s statements during her closing argument were improper, counsel’s failure to object
constitutes deficient performance.
However, Severson’s claim for ineffective assistance of counsel can succeed only if he
can show that counsel’s failure to object to the prosecutor’s improper statements prejudiced him.
Severson cannot meet this burden.
Considering the prosecutor’s closing argument in its entirety, her improper emphasis of
Thomas and Campbell’s testimony was not the focus of her argument. That “something was off”
about Severson’s interactions with the girls was certainly a theme she utilized, but even the
prosecutor herself recognized that such speculations were insufficient to find Severson guilty
beyond a reasonable doubt. Instead, she focused primarily on K.C.-J. and J.N.K.’s testimony and
their disclosure of abuse. As previously discussed, the case turned on the credibility of K.C.-J.,
J.N.K., and Severson. Considering all the evidence presented at trial and the instructions given
the jury, there is no reasonable probability that had counsel objected the result of the proceeding
would have been different.
Although some of the prosecutor’s statements during closing argument were improper,
taking all circumstances into account, counsel’s failure to object does not undermine our
confidence in the outcome of Severson’s trial. Thus, because Severson fails to establish
prejudice, he fails to establish ineffective assistance of counsel on this ground.
I. Cumulative Ineffective Assistance of Counsel
Finally, Severson argues that these alleged instances of ineffective assistance, taken
together, cumulatively deprived him of a fair trial. We disagree.
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Ultimately, the case came down to the credibility of J.N.K., K.C.-J., and Severson. The
jury was properly instructed that they alone were the judges of witness credibility and that the
State bore the burden of proving every element of the charges beyond a reasonable doubt. Both
K.C.-J. and J.N.K. testified to specific instances of sexual abuse. Additionally, the jury saw the
video-recorded forensic interview of K.C.-J. detailing Severson’s abuse, and heard S.C. testify to
the initial disclosure made by K.C.-J. The deficiencies of counsel’s performance did not change
the fact that the jury heard detailed testimony of abuse from the witnesses and was properly
instructed on its duty in weighing the evidence.
Because Severson cannot show that any possible errors by his trial counsel prejudiced the
result of the proceeding, Severson cannot establish that cumulative ineffective of assistance
deprived him of a fair trial.
VI. CUMULATIVE ERROR
Severson also argues that the overall cumulative effect of the trial court’s errors,
prosecutorial misconduct, and ineffective assistance of counsel denied him his right to a fair trial.
We disagree.
The cumulative error doctrine applies where a combination of trial errors denies the
accused a fair trial even where any one of the errors, taken individually, may not justify reversal.
State v. Greiff, 141 Wash. 2d 910, 929, 10 P.3d 390 (2000). The defendant bears the burden of
proving an accumulation of error of sufficient magnitude that retrial is necessary. State v.
Yarbrough, 151 Wash. App. 66, 98, 210 P.3d 1029 (2009) (citing In re Pers. Restraint of Lord, 123
Wash. 2d 296, 332, 868 P.2d 835, 870 P.2d 964). But the doctrine does not apply where the errors
are few and have little or no effect on the outcome of the trial. State v. Weber, 159 Wash. 2d 252,
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279, 149 P.3d 646 (2006). As previously discussed, the jury heard an abundance of evidence and
was properly instructed on how to weigh that evidence. None of Severson’s claimed errors by
the trial court, the prosecutor, or his trial counsel undermined his right to a fair trial or the
validity of his convictions. In light of all the evidence, we reject Severson’s argument that the
cumulative effect of these errors supports reversal of his conviction. Accordingly, we affirm
Severson’s conviction.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2.06.040, it is so ordered.
Worswick, J.
We concur:
Johanson, C.J.
Sutton, J.
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