State of Washington v. Troy Lee Steenhard aka Troy Lee Bloor ( 2019 )

FILED
JULY 23, 2019
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, )
) No. 35578-1-III
Respondent, )
)
v. )
)
TROY LEE STEENHARD also known as ) UNPUBLISHED OPINION
TROY LEE BLOOR, )
)
Appellant. )
FEARING, J. — Troy Steenhard appeals convictions for child rape and child
molestation primarily on the grounds that insufficient evidence supported the conviction
of rape and vouching for child witnesses and a noncorroboration jury instruction tainted
the convictions for molestation. We agree and reverse all three convictions. We dismiss
the charge of first degree rape of a child and remand for a new trial on the charges of first
degree child molestation.
FACTS
This prosecution arises from the alleged sexual abuse of twin sisters, Linda and
Marlene, born in 2011 to Molly Tresh. All three names are pseudonyms. Tresh worked
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fulltime, so Tresh’s mother cared for the twins after preschool. On April 10, 2016,
Tresh’s mother died, and Tresh needed a new afternoon caretaker for the twins. After
consulting with her boyfriend, David Holm, Tresh arranged for Troy Steenhard to babysit
Marlene and Linda through the rest of the school year.
Neighborhood children, including David Holm’s ten-year-old daughter, clustered
at Troy Steenhard’s home. Steenhard requested that all children call him “Uncle Troy.”
Report of Proceedings (RP) at 416-17. Molly Tresh viewed Steenhard’s interaction with
Linda and Marlene and had no concerns about leaving her daughters in his care. Tresh
paid Steenhard $100 per week to watch Linda and Marlene from 11:30 a.m. until David
Holm returned home from work at 4:00 p.m. each school day. Steenhard also oversaw
Holm’s daughter when she came home from school at 3:15 p.m.
Initially, Troy Steenhard watched Linda and Marlene at Molly Tresh’s home. One
week into the arrangement, Steenhard experienced car trouble and asked Tresh if he
could babysit the twins at his home. Tresh agreed.
Troy Steenhard lived with his 18-year-old nephew Vinny Embler and his pregnant
daughter, Whitney. The daughter lacked work. Steenhard testified at trial that Whitney,
Vinny, Vinny’s girlfriend, Shannon Williams, or Steenhard’s friend, Anita Brandon, were
present in his house while he babysat Linda and Marlene. According to Steenhard,
visitors entered the home without knocking. Molly Tresh testified that Steenhard was
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often the only adult present when she retrieved the twins, although other children were
present.
Two weeks after Troy Steenhard began overseeing Linda and Marlene, Molly
Tresh noticed her daughters clinging to her. The twins cried, begged her not to go to
work, and asked not to go to Steenhard’s house after school. Tresh believed the twins’
abnormal behavior resulted from their grandmother’s recent death. Linda and Marlene
continued this behavior throughout Steenhard’s tenure as babysitter, which lasted one
month. The twins did not then complain about Steenhard. Tresh and Steenhard
disagreed as to the reason for terminating Steenhard’s services.
In June 2016, Linda and Marlene’s behavior normalized. During the summer
break, David Holm’s other 13-year-old daughter babysat the twins. Holm’s daughter
soon notified Molly Tresh that Linda and Marlene played with Barbie dolls as if the dolls
engaged in sex. Tresh first believed the twins’ single father influenced the girls with his
many female friends visiting his house.
In December 2016, Molly Tresh retrieved Marlene early from school because of
Marlene’s temporary illness. While Molly Tresh and Marlene rode alone in a car,
Marlene spontaneously told her mother that she did not wish to go skating with Troy
Steenhard. Marlene added that Steenhard was “‘a bad man.’” Report of
Proceedings (RP) at 435. When the mother asked Marlene what she meant, Marlene
replied: “‘[h]e touches me in my privates.’” RP at 435. Tresh asked her daughter to
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describe the behavior. Marlene placed her hand under her dress, pulled her dress up,
wiggled her hand, and displayed an in-and-out motion with her hand near her vagina.
When Marlene and Tresh arrived home, Marlene repeated her statements to David Holm
and to Tresh’s friend, Leah Bias. On Bias’ advice, Tresh called the sheriff’s office and
spoke with a detective.
Later during the day of Marlene’s disclosure, Molly Tresh and Marlene attended a
doctor’s appointment previously scheduled for Marlene because of her illness. After
several questions by the doctor, Marlene stated that Troy Steenhard had touched her. The
doctor did not perform any gynecological examination.
On December 31, 2016, Linda and Molly Tresh drove near Troy Steenhard’s home
while visiting Tresh’s ex-husband at a grocery store. Linda grew teary-eyed and
remarked: “‘you’re not taking us to Troy’s.’” RP at 461-62. When Tresh said no, Linda
exclaimed: “‘Troy is a bad man. He touched our privates.’” RP at 462. After the return
home, Linda disclosed that Steenhard touched her privates on his couch. Linda refused to
speak further on the subject. We do not know if Linda had earlier learned of Marlene’s
accusations against Troy Steenhard.
At some unidentified time and place, Leah Bias spoke with Marlene. Bias held a
Barbie doll and asked Marlene to show her the “bad places” where Troy Steenhard
touched her. RP at 536. Marlene pointed to a part of the doll between the lower chest
and upper thighs, which included the vaginal area. When Bias turned the doll around and
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asked Marlene whether Steenhard touched her on the buttocks, Marlene said no.
On January 3, 2017, child forensic interview specialist Tatiana Williams, of
Partners with Families & Children, separately interviewed the twins. During trial, the
State played for the jury a video disk of each interview. In the interviews, both Linda and
Marlene mixed fantastical stories with descriptions of molestation by Troy Steenhard.
During her interview, Marlene commented that Troy Steenhard made her touch his
penis all day long. According to Marlene, she tickled and squeezed Steenhard’s privates
after he showed her how. Steenhard required Marlene to touch his penis while he
urinated. Marlene added that, on numerous occasions, Steenhard touched her privates
with his hand, did not stop when she requested, and told her not to tell or he would
ground her. Marlene described an incident when her vaginal area bled due to Steenhard’s
sharp nails.
During the January 3 interview, Marlene stated that Troy Steenhard urinated onto
her mouth on more than one occasion. She vomited each time. Marlene described an
incident when Steenhard put a bunny into her vagina. She told the interviewer that the
bunny was real. Marlene elaborated that Steenhard inserted the smooth bunny into her
privates with a knife handle. According to Marlene, she took a picture of the bunny
inside her privates with Steenhard’s phone, but Marlene’s mother deleted the photograph
from the phone. Marlene also stated that Troy Steenhard pulled her pants off while ice
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skating and the whole town saw the incident. Marlene added that one day she bled all
day and her blood went from red to pink to purple to rainbow.
During her interview by Tatiana Williams, Linda only mentioned Troy Steenhard
toward the end of the interview. She denied that Steenhard served as her babysitter.
Linda asserted that Steenhard touched her and Marlene on their respective vaginas at his
house with his bare hand. She added that her mother then slapped Steenhard. Like
Marlene, Linda knew that a private part is used for going to the bathroom.
After the interview, Marlene occasionally related more details. She described
being forced into Troy Steenhard’s bedroom and Steenhard taping her hands and feet.
She stated that she did not tell anyone about Steenhard’s behavior sooner because
Steenhard threatened to hurt her family and predicted he would go to jail. Marlene told
law enforcement about Steenhard’s sharp finger nails, which description matched
photographs of Steenhard’s hands taken by law enforcement.
On January 11, 2017, the twins underwent separate physical examinations at
Partners with Families & Children. A forensic nurse conducted a genital exam on both
Marlene and Linda and found no aberrations. During each physical examination,
Marlene and Linda respectively disclosed inappropriate touching by Troy Steenhard.
PROCEDURE
The State of Washington charged Troy Steenhard with one count of raping
Marlene, a child, in the first degree. The State also charged Steenhard with two counts of
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child molestation in the first degree, one count with Marlene as victim and one count with
Linda as victim.
The trial court conducted a child hearsay hearing under RCW 9A.44.120(1) in
order to assess whether to show, during trial, the recorded interviews of Linda and
Marlene to the forensic interviewer and whether to admit comments uttered to their
mother Molly Tresh and statements made to Leah Bias. The trial court ruled all
interviews and statements to be admissible under the factors enumerated in State v. Ryan,
103 Wash. 2d 165, 691 P.2d 165 (1984).
Marlene testified at trial. The trial court ruled Linda incompetent to testify at trial.
The prosecution began the examination of Marlene as follows:
Q. [DEPUTY PROSECUTOR]: Does your mom have rules about
telling the truth?
A. [MARLENE]: She says to always don’t lie and always tell the
truth.
Q. [DEPUTY PROSECUTOR]: What happens if you don’t tell the
truth in your home?
A. [MARLENE]: You get in big trouble.
....
Q. [DEPUTY PROSECUTOR]: Whenever you talked about Troy,
did you tell the truth?
A. [MARLENE]: Yes.
Q. [DEPUTY PROSECUTOR]: Did your mom tell you anything
about telling the truth today in court in front of these people?
A. [MARLENE]: No.
Q. [DEPUTY PROSECUTOR]: Did the judge tell you anything?
A. [MARLENE]: Yes.
Q. [DEPUTY PROSECUTOR]: Did he tell you to tell the truth?
A. [MARLENE]: Yeah.
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Q. [DEPUTY PROSECUTOR]: If I told you right now that I was
wearing a purple hat on my head, would that be a true thing or not a true
thing?
A. [MARLENE]: Not a true thing.
Q. [DEPUTY PROSECUTOR]: If I told you right now that you
were wearing a blue dress, would that be a true thing or not a true thing?
A. [MARLENE]: A true thing.
RP at 525-27.
At trial, Marlene identified Troy Steenhard as her former babysitter and testified
that she did not like his touching her privates with his hand. She identified the locus of
the touching as being Steenhard’s bedroom.
During trial, the prosecutor asked the twins’ mother, Molly Tresh, about her
discussion with Linda and Marlene prior to the forensic interview. The following
exchange then occurred without objection:
Q. [DEPUTY PROSECUTOR]: And why did you choose not to talk
to the girls about what had happened between when you learned about it
and the forensic interview?
A. [TRESH]: Because I knew—the detective had explained to me
what a forensic interview was, and I didn’t want to cloud—cloud Marlene’s
mind, because at the time, it was just Marlene that we had at the
appointment for. I didn’t want any adult verbiage. I didn’t want her to be
influenced by my feelings. I wanted them to be able to tell what was
actually on their mind and what truly happened without any influence from
anybody.
....
Q. [DEPUTY PROSECUTOR]: Did you have some kind of—any
concerns about the possibility of making a false accusation against Mr.
Steenhard?
A. [TRESH]: No, no. I knew that my children—I mean, if given the
opportunity, they’re going to tell the truth. They’re not going to lie. They
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don’t even understand what they’re even saying in regards to any type of
that.
RP at 466-67.
The prosecution asked Leah Bias similar questions. The following exchange
occurred without objection:
Q. [DEPUTY PROSECUTOR]: In terms of their honesty, have you
had a chance to observe that in the girls?
A. [BIAS]: Yeah.
Q. [DEPUTY PROSECUTOR]: Let’s start with Marlene. Is
Marlene an honest girl?
A. [BIAS]: Yes, she is.
Q. [DEPUTY PROSECUTOR]: Are you aware whether they have
any rules in the house or does she ever talk to you about rules regarding
telling the truth?
A. [BIAS]: Basic rules, just like any kid. You need to tell me the
truth. Our children play together so that’s—you know, we have the same
values in that.
Q. [DEPUTY PROSECUTOR]: What about Linda?
[A. BIAS]: The same.
RP at 538-39. Leah Bias testified at trial as to Marlene identifying on a Barbie doll the
bodily parts at which Troy Steenhard touched her.
Tatiana Williams, the child interviewer, testified that a child age five and under
often incorporates some fantasy when describing historical events in his or her life.
Forensic nurse Teresa Forshag of Partners with Families & Children testified that more
than ninety percent of the time a female child suffering from sexual abuse shows no
physical evidence in the vagina since actual penetration may not leave marks. Troy
Steenhard testified at trial and denied ever touching the twins inappropriately.
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The trial court gave the standard first instruction to the jury at the close of the
case. One paragraph of the instruction 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 in the
outcome or the issues; any bias or prejudice that the witness may 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.
Clerk’s Papers (CP) at 11. The trial court instructed the jury regarding the elements of
rape of a child in the first degree as charged in count 1. Jury instruction no. 7 reads, in
pertinent part:
To convict the defendant of the crime of RAPE OF A CHILD IN
THE FIRST DEGREE as charged in Count I, each of the following
elements of the crime must be proved beyond a reasonable doubt:
(1) That between about April 1, 2016 and May 31, 2016, the
defendant had sexual intercourse with [Marlene];
(2) That [Marlene] was less than twelve years old at the time of the
sexual intercourse and was not married to the defendant;
(3) That [Marlene] was at least twenty-four months younger than
the defendant; and
(4) That this act occurred in the State of Washington.
CP at 18 (emphasis added). Instruction no. 8 read:
Sexual intercourse means any act of sexual contact between persons
involving the sex organs of one person and the mouth or anus of another.
CP at 19. Neither party objected to either instruction.
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Jury instruction no. 14 declared:
In order to convict a person of the crime of RAPE OF A CHILD IN
THE FIRST DEGREE or CHILD MOLESTATION IN THE FIRST
DEGREE, it shall not be necessary that the testimony of the alleged victims
be corroborated.
CP at 25. Troy Steenhard objected that the instruction partially relieved the State of its
burden of proof.
During deliberations, the jury submitted the trial court an inquiry requesting
clarification on the definition of sexual intercourse:
The jury requests additional clarification on ‘sexual intercourse’ as
defined by WA law. The definition presented does not seem to apply to
any testimony presented during trial.
CP at 33. After consultation with counsel, the court decided not to supplement the
definitional instruction. The judge instructed the jury to rely on the instructions already
provided.
The jury convicted Troy Steenhard on all three charged counts. Steenhard moved
for judgment notwithstanding the verdict or for a new trial on count 1, rape of a child in
the first degree. He argued insufficient evidence supported a conviction. The trial court
denied the motion while concluding that a reasonable jury could have found all elements
of the charge beyond a reasonable doubt.
LAW AND ANALYSIS
Troy Steenhard asks that we reverse his conviction for first degree rape of Marlene
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and dismiss the charges because of insufficient evidence. He also asks that we reverse all
three convictions because of instructional error and vouching of the twin sisters. We
grant all requests. We first address the conviction for rape.
Sufficiency of Evidence for First Degree Rape of a Child
Troy Steenhard contends insufficient evidence supports his conviction for rape of
a child in the first degree because the State failed to prove the element of sexual
intercourse as required by a jury instruction. According to Steenhard, under the law
stated in jury instruction 8, the jury could not convict him of rape of a child without
finding oral or anal contact with sexual organs. He highlights that, under Marlene’s
testimony, he never placed his penis against Marlene’s mouth or anus and he never
touched Marlene’s vagina with his mouth. The State responds that the jury could employ
a definition of “sexual intercourse” other than given in instruction no. 8 and could have
applied the term’s ordinary meaning. The State asserts that a rational trier of fact could
have found sexual intercourse as a result of Steenhard inserting his fingers or the ersatz
bunny into Marlene’s vagina. We agree with Steenhard.
To convict Troy Steenhard, the jury had to find that he engaged in “sexual
intercourse with another who is less than twelve years old and not married to [him] and
[he] is at least twenty-four months older than the victim.” RCW 9A.44.073(1). RCW
9A.44.010 defines sexual intercourse, in pertinent part:
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(1) “Sexual intercourse” (a) has its ordinary meaning and occurs
upon any penetration, however slight, and
(b) Also means any penetration of the vagina or anus however slight,
by an object, when committed on one person by another, whether such
persons are of the same or opposite sex, except when such penetration is
accomplished for medically recognized treatment or diagnostic purposes,
and
(c) Also means any act of sexual contact between persons involving
the sex organs of one person and the mouth or anus of another whether such
persons are of the same or opposite sex.
Jury instruction 8 did not follow the definition of “sexual intercourse” implanted
in RCW 9A.44.010(1). Rather than including the entire definition of sexual intercourse
under the statute, the trial court’s instruction read that “sexual intercourse” means any act
of sexual contact between persons involving the sex organs of one person and the mouth
or anus of another. The State did not submit an instruction that included subsection (1)(a)
or (1)(b) of RCW 9A.44.010 or propose 11 WASHINGTON PRACTICE: WASHINGTON
PATTERN JURY INSTRUCTION: CRIMINAL 45.01, at 915 (4th ed. 2016).
The State urges this court to hold that the jury was not limited to the definition of
sexual intercourse as given in instruction no. 8 when assessing whether Troy Steenhard
committed rape of a child. We agree with the State that, assuming the jury could employ
the general definition of intercourse, the jury could rationally have found Troy Steenhard
guilty. Nevertheless, we conclude we must assess the evidence in light of jury instruction
8.
The law of the case doctrine provides that jury instructions not objected to become
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the law of the case. State v. Johnson, 188 Wash. 2d 742, 762, 399 P.3d 507 (2017); State v.
Willis, 153 Wash. 2d 366, 374, 103 P.3d 1213 (2005); State v. Jussila, 197 Wash. App. 908,
930, 392 P.3d 1108 (2017), review denied, 191 Wash. 2d 1019, 428 P.3d 1188 (2018). In
criminal cases, the State assumes the burden of proving otherwise unnecessary elements
of the offense when a jury instruction includes such elements without objection. State v.
Hickman, 135 Wash. 2d 97, 102, 954 P.2d 900 (1998). The trial court rendered instructions
no. 7 and 8 without objection. Thus, we conclude that the two instructions became the
law of the case.
The State argues that definitional instructions do not become the law of the case.
In support of this contention, the State cites decisions that hold definitional statutes do
not create additional alternative means to committing an offense. We do not consider
such decisions helpful. State v. Johnson, 188 Wash. 2d 742 (2017) and State v. Hickman,
135 Wash. 2d 97 (1998) demand that the State prove the crime as stated in the jury
instructions. The rationale behind this demand extends to definitions of terms delineating
the crime. The State forwards no decision rejecting the application of the law of the case
doctrine to definitional instructions.
The State also maintains that, in essence, Troy Steenhard contends that the trial
court committed instructional error when delivering jury instruction 8 because the
instruction failed to properly define “sexual intercourse.” The State further argues that,
since Steenhard did not object to the instruction at trial, he cannot claim error on appeal.
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Nevertheless, the State cites no decision that holds an accused must object to an
instruction that imposes a higher burden on the State beyond a statute’s description of the
crime. We know of no purpose behind an accused objecting to a favorable, but
erroneous, instruction, and we surmise that defense counsel would have engaged in
ineffective assistance of counsel if counsel interposed an objection. If the State’s
contention was correct, the Washington courts would have erroneously decided State v.
Johnson, 188 Wash. 2d 742 (2017), State v. Willis, 153 Wash. 2d 366 (2005), State v.
Hickman, 135 Wash. 2d 97 (1998), and State v. Jussila, 197 Wash. App. 908 (2017), because
in each case the accused failed to object to a jury instruction that increased the State’s
burden of proof.
A criminal defendant may always challenge the sufficiency of the evidence
supporting a conviction for the first time on appeal. RAP 2.5(a); State v. Hickman, 135
Wash. 2d at 103 n.3 (1998). When evaluating the sufficiency of evidence to convict, this
court must draw all reasonable inferences from the evidence in favor of the State. State v.
Salinas, 119 Wash. 2d 192, 201, 829 P.2d 1068 (1992).
The only evidence of possible contact between Troy Steenhard’s penis and
Marlene’s mouth or anus is her statement that he peed on her mouth. Nevertheless,
Marlene never declared that the penis touched her mouth, let alone entered her mouth.
In statements to Leah Bias, Marlene denied ever being touched in the buttocks area and
failed to describe any oral contact. The State does not contend that, assuming we adjudge
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the sufficiency of the evidence based on jury instruction 8, sufficient evidence supports
the conviction.
During deliberations, the jury told the trial court that the instruction defining
“sexual intercourse” did not fit any testimony presented during trial. The jury’s question
bolsters our conclusion.
If the reviewing court finds insufficient evidence to prove a crime’s element added
by jury instruction, reversal is required. State v. Jussila, 197 Wash. App. at 932 (2017).
Retrial following reversal for insufficient evidence is unequivocally prohibited and
dismissal is the remedy. State v. Hickman, 135 Wash. 2d at 103 (1998). Therefore, we
remand to the trial court for dismissal of the charge against Troy Steenhard of child rape
in the first degree.
Noncorroboration Jury Instruction
We must still consider whether to grant Troy Steenhard a new trial on the two
remaining convictions of child molestation in the first degree. Steenhard seeks a new
trial on various grounds, including jury instruction 14 that told the jury that no witness
needed to corroborate either Marlene’s or Linda’s testimony in order to convict Steenhard
of the respective charges. Based on precedent, we find no error in the trial court’s
delivery of the jury instruction, but we later hold that, when viewing the instruction in
light of other witnesses’ vouching for the victims, the instruction contributed to error
prejudicing Troy Steenhard.
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Jury instruction 14 informed the jury that, to convict Troy Steenhard of any of the
charged crimes, the jury need not find that any third party witness observed the assaultive
contact between Steenhard and a twin. This instruction correctly stated the law. RCW
9A.44.020(1) provides:
In order to convict a person of any crime defined in this chapter
[9A.44 RCW] it shall not be necessary that the testimony of the alleged
victim be corroborated.
RCW 9A.44.083 creates the crime of child molestation in the first degree.
Troy Steenhard argues that, despite the noncorroboration instruction following
established law, the jury instruction impermissibly commented on the evidence and
erroneously shifted the burden of proof to him. According to Steenhard, jury instruction
1 correctly instructed the jury on how to assess the credibility of witnesses and instruction
1 sufficed for covering all witness testimony, including the testimony of Marlene and
Linda. Steenhard highlights that jury instruction 14, the noncorroboration instruction,
unfairly emphasized the testimony of the twins and suggested to the jury that factors in
weighing the credibility of other witnesses did not apply to the children. According to
Steenhard, the instruction posed a danger of the jury concluding that the trial court
deemed the twins to be telling the truth. The instruction precluded the option of the jury
wanting some corroborating testimony to convict because of some of the fantastical
stories uttered by the children. The instruction also suggested that Troy Steenhard’s
testimony lacked believability since the trial court did not inform the jury that his
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testimony need not be corroborated. Steenhard underscores that the Washington
Supreme Court Committee on jury instructions recommends against a noncorroboration
instruction. Steenhard also contends that, assuming a trial court may deliver a
noncorroboration instruction, the instruction should add qualifying language such that the
victim’s testimony is entitled to no greater weight than other testimony or that the jury
must still employ the beyond a reasonable doubt standard of proof.
We first address the argument that the instruction commented on the evidence. A
statement by the court constitutes a comment on the evidence if the court’s attitude
toward the merits of the case or the court’s evaluation relative to the disputed issue is
inferable from the statement. State v. Lane, 125 Wash. 2d 825, 838, 889 P.2d 929 (1995).
But an instruction that accurately states the applicable law is not a comment on the
evidence. State v. Ciskie, 110 Wash. 2d 263, 282-83, 751 P.2d 1165 (1988); State v.
Hughes, 106 Wash. 2d 176, 193, 721 P.2d 902 (1986).
Despite these principles precluding a court’s comment on the evidence,
Washington case law upholds the propriety of a noncorroboration instruction. In State v.
Clayton, 32 Wash. 2d 571, 202 P.2d 922 (1949), the high court addressed use of a
noncorroboration jury instruction in a child sexual abuse case. The instruction read:
“You are instructed that it is the law of this State that a person
charged with attempting to carnally know a female child under the age of
eighteen years may be convicted upon the uncorroborated testimony of the
prosecutrix alone. That is, the question is distinctly one for the jury, and if
you believe from the evidence and are satisfied beyond a reasonable doubt
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as to the guilt of the defendant, you will return a verdict of guilty,
notwithstanding that there be no direct corroboration of her testimony as to
the commission of the act.”
State v. Clayton, 32 Wash. 2d at 572. The state Supreme Court held that the trial
court expressed no opinion as to the truth or falsity of the testimony of the alleged
victim or as to the weight that the court attached to her testimony, but properly
submitted all questions involving the weight and credibility of the evidence to the
jury for its decision.
Since State v. Clayton, Washington courts have followed Clayton’s holding. State
v. Galbreath, 69 Wash. 2d 664, 419 P.2d 800 (1966); State v. Chenoweth, 188 Wash. App.
521, 536-37, 354 P.3d 13 (2015); State v. Zimmerman, 130 Wash. App. 170, 182, 121 P.3d
1216 (2005), remanded on other grounds, 157 Wash. 2d 1012, 138 P.3d 113 (2006).
Washington allows the instruction on the rationale that one commits a sex crime rarely in
the presence of a third person. State v. Galbreath, 69 Wash. 2d at 670.
Despite affirming the validity of a noncorroboration jury instruction, we hold the
same misgivings over the instruction expressed by this court in State v. Zimmerman, 130
Wash. App. 170 (2005), by Judge Becker concurring in State v. Chenoweth, 188 Wash. App.
at 538 (2015), and by other jurisdictions. The Washington Supreme Court Committee on
jury instructions recommends against giving noncorroboration instructions:
The matter of corroboration is really a matter of sufficiency of the
evidence. An instruction on this subject would be a negative instruction.
The proving or disproving of such a charge is a factual problem, not a legal
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problem. Whether a jury can or should accept the uncorroborated
testimony of the prosecuting witness or the uncorroborated testimony of the
defendant is best left to argument of counsel.
11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL §
45.02, cmt., at 917 (4th ed. 2016). The Indiana Supreme Court found the no-
corroboration instruction misleading because:
Jurors may interpret this instruction to mean that baseless testimony
should be given credit and that they should ignore inconsistencies, accept
without question the witness’s testimony, and ignore evidence that conflicts
with the witness’s version of events.
Ludy v. State, 784 N.E.2d 459, 462 (Ind. 2003). The Florida Supreme Court commented:
It cannot be gainsaid that any statement by the judge that suggests
one witness’s testimony need not be subjected to the same tests for weight
or credibility as the testimony of others has the unfortunate effect of
bolstering that witness’s testimony by according it special status. The
instruction in this case did just that, and in the process effectively placed
the judge’s thumb on the scale to lend an extra element of weight to the
victim’s testimony.
Gutierrez v. State, 177 So. 3d 226, 231-32 (Fla. 2015).
Troy Steenhard also argues that the noncorroboration instruction subtly shifts the
burden of proof by suggesting a different standard applies to other witnesses, including
himself. According to Steenhard, a jury may consider his testimony, unlike Marlene and
Linda’s testimony, worthless unless corroborated. Steenhard fails to cite any authority
for this assertion, however. We do not consider conclusory arguments unsupported by
citation to authority. Joy v. Department of Labor & Industries, 170 Wash. App. 614, 629,
20
No. 35578-1-III
State v. Troy Steenhard, aka Bloor
285 P.3d 187 (2012).
Vouching
Troy Steenhard next argues that testimony affirming the honesty of Marlene and
Linda violated his right to a fair trial. He refers to Molly Tresh’s and Leah Bias’
testimony that Linda and Marlene tell the truth. He argues that an opinion on the twins’
credibility amounted to an opinion on guilt and caused actual prejudice to him.
Steenhard asserts that the prosecutor committed misconduct when he inquired whether
the twins were honest and, because his defense counsel failed to object, he suffered
ineffective assistance of counsel. He also avows manifest constitutional error.
During examination of Molly Tresh by the prosecution, Tresh declared that her
twins, if given the chance, will tell the truth. They will not lie. Leah Bias testified that
both Marlene and Linda are honest girls.
No reliable test for truthfulness exists, such that a witness is not qualified to judge
the truthfulness of a child’s story. United States v. Azure, 801 F.2d 336, 341 (8th Cir.
1986); State v. Dunn, 125 Wash. App. 582, 594, 105 P.3d 1022 (2005). This rule
particularizes the general rule that no witness may give an opinion on another witness’
credibility. State v. Neidigh, 78 Wash. App. 71, 76-77, 895 P.2d 423 (1995); State v.
Wright, 76 Wash. App. 811, 821-22, 888 P.2d 1214 (1995); State v. Suarez-Bravo, 72 Wn.
App. 359, 366, 864 P.2d 426 (1994); State v. Padilla, 69 Wash. App. 295, 299, 846 P.2d
564 (1993); State v. Walden, 69 Wash. App. 183, 186-87, 847 P.2d 956 (1993); State v.
21
No. 35578-1-III
State v. Troy Steenhard, aka Bloor
Smith, 67 Wash. App. 838, 846, 841 P.2d 76 (1992); State v. Stover, 67 Wash. App. 228, 231,
834 P.2d 671 (1992); State v. Casteneda-Perez, 61 Wash. App. 354, 362, 810 P.2d 74
(1991). Lay opinion of the truthfulness of another is not helpful within the meaning of
ER 701, because the jury can assess credibility as well or better than the lay witness.
State v. Carlson, 80 Wash. App. 116, 123, 906 P.2d 999 (1995).
In most sexual abuse cases, the respective credibility of the victim and the
defendant becomes crucial because the testimony of each directly conflicts and the two
are the only percipient witnesses. State v. Alexander, 64 Wash. App. 147, 154, 822 P.2d
1250 (1992); State v. Fitzgerald, 39 Wash. App. 652, 657, 694 P.2d 1117 (1985).
Therefore, declaring the victim to be telling the truth in essence marks the defendant with
guilt. Opinions on guilt are improper whether made directly or inferentially. State v.
Quaale, 182 Wash. 2d 191, 199, 340 P.3d 213 (2014); State v. Montgomery, 163 Wash. 2d
577, 594, 183 P.3d 267 (2008).
Troy Steenhard did not object at trial to Molly Tresh’s or Leah Bias’ vouching for
the truthfulness of the twins. Failure to object to the admissibility of evidence at trial
precludes appellate review of that issue unless the alleged error involves manifest error
affecting a constitutional right. State v. Lynn, 67 Wash. App. 339, 342, 835 P.2d 251
(1992); State v. Stevens, 58 Wash. App. 478, 485-86, 794 P.2d 38 (1990). The Washington
Supreme Court has issued several formulations for manifest constitutional error, one of
which is the showing of prejudice. State v. Kirkman, 159 Wash. 2d 918, 926-27, 155 P.3d
22
No. 35578-1-III
State v. Troy Steenhard, aka Bloor
125 (2007). Along these lines, manifest constitutional error involves a constitutional
error that had practical and identifiable consequences in the trial of the case. State v.
Lynn, 67 Wash. App. at 345 (1992).
Vouching creates constitutional ramifications. Lay witness testimony about the
victim’s credibility implicates the accused’s guilt or innocence and thus implicates the
accused’s right to a fair trial and impartial jury under article I, section 21 of the
Washington State Constitution and the Sixth Amendment to the United States
Constitution. State v. Johnson, 152 Wash. App. 924, 934, 219 P.3d 958 (2009). The
admission of testimony vouching for a witness is constitutional error because such
evidence violates the defendant’s constitutional right to a jury trial, which includes the
independent determination of the facts by the jury. State v. Quaale, 182 Wash. 2d at 199
(2014); State v. Kirkman, 159 Wash. 2d at 927 (2007); State v. Florczak, 76 Wash. App. 55,
74, 882 P.2d 199 (1994). Vouching testimony is also manifest error because the
erroneous evidence actually affects an accused’s right to a fair trial. State v. Johnson,
152 Wash. App. at 934.
Four Washington decisions entail reversals of convictions because of vouching for
the credibility of a witness. In State v. Sutherby, 138 Wash. App. 609, 158 P.3d 91 (2007),
aff’d on other grounds, 165 Wash. 2d 870, 204 P.3d 916 (2009), a jury convicted Randy
Sutherby of child rape and child molestation, among other charges. This court reversed
because the trial court allowed the victim’s mother to testify that her daughter was telling
23
No. 35578-1-III
State v. Troy Steenhard, aka Bloor
the truth. The mother stated she could determine if her daughter lied because of a half-
smile that appeared on the child’s face on prevarication. The mother impliedly suggested
to the jury to judge the daughter’s truthfulness, when the daughter testified before the
jury, by her facial expression.
In State v. Alexander, 64 Wash. App. 147 (1992), the prosecution questioned the
victim’s counselor, David Bennett, about whether the victim gave any indication that she
was lying about the abuse. Bennett testified he did not believe the victim lied. This court
reversed the conviction of Robert Alexander for child rape. By declaring the victim to be
speaking the truth, Bennett essentially opined on the guilt of Alexander. An expert’s
opinion as to the defendant’s guilt invades the jury’s exclusive function to weigh the
evidence and determine credibility. Without analysis, this court also concluded that the
error, combined with other error, was not harmless beyond a reasonable doubt.
Another important decision is State v. Dunn, 125 Wash. App. 582 (2005). This
court reversed another conviction for rape of a child on the ground of inadmissible
testimony. Physician’s assistant James Kramer testified that, despite an absence of any
physical evidence of rape, he concluded that sexual abuse occurred because of the
detailed story told him by the victim. The impermissible testimony was prejudicial
because the only evidence of sexual abuse was the child’s own testimony and hearsay
statements to others. The evidence was sufficient to convict Larry Dunn of rape, but still
not harmless. The trial presented a credibility contest between the alleged victim and the
24
No. 35578-1-III
State v. Troy Steenhard, aka Bloor
accused.
A final compelling decision is State v. Johnson, 152 Wash. App. 924 (2009). The
State charged Gerald Johnson with child molestation. His trial counsel failed to object to
impermissible opinion testimony. The jury heard testimony that Johnson’s wife believed
the story of the victim. The court held the testimony to be reversible and manifest
constitutional error. The testimony invaded Johnson’s right under article I, section 2 of
the Washington Constitution for a fair trial before an impartial jury.
The State relies on State v. Warren, 134 Wash. App. 44, 138 P.3d 1081 (2006),
aff’d, 165 Wash. 2d 17, 195 P.3d 940 (2008). For the first time on appeal, Richard Warren
argued that the testimony of the forensic interviewer and a detective improperly vouched
for the child victim’s credibility and violated his right to a jury trial. Two forensic
witnesses testified that, when interviewing the child, each discussed the importance of
telling the truth and asked the child to describe the meaning of telling the truth compared
to a lie. Each child promised to tell the truth. This court held that the testimony by the
witnesses stating their belief that the alleged child molestation victim could distinguish a
truth from a lie was not manifest constitutional error. We note that neither witness
testified that she believed the victim was telling the truth or simply that the witness was
honest.
25
No. 35578-1-III
State v. Troy Steenhard, aka Bloor
The State argues that Molly Tresh merely testified whether Marlene and Linda
would tell the truth during the forensic interview. We disagree. Tresh declared, in part,
that neither daughter would lie without limiting their honesty to any particular subject.
The State contends and the dissent agrees that neither Molly Tresh nor Leah Bias
expressed an opinion on the children’s truthfulness about the accusations against Troy
Steenhard or that she believed the accusations. We agree with regard to Leah Bias’
testimony. But no Washington decision holds that vouching for a witness’ honesty
violates the accused’s rights only if the vouching relates to the subject of the prosecution.
Anyway Tresh’s testimony implied that neither daughter would falsely accuse Steenhard
of molestation. Tresh testified that her daughters would tell the truth in response to a
question of whether Tresh had concern that the twins would falsely accuse Steenhard.
Since we find manifest constitutional error, we must determine whether Troy
Steenhard establishes actual prejudice. Steenhard relies on State v. Jerrels, 83 Wash. App.
503, 925 P.2d 209 (1996). The jury found Harvey Jerrels guilty of multiple child sex
offenses involving his daughter and stepdaughters. At trial, the prosecutor asked the
mother of the alleged victims whether she believed the children were telling the truth.
The prosecutor asked the question three times and each time the mother stated she
believed the kids were telling the truth. The Jerrels court noted that a jury will not easily
disregard a mother’s opinion as to her children’s veracity even if instructed to do so.
Some factors weigh in favor of finding no prejudice to Troy Steenhard. Marlene,
26
No. 35578-1-III
State v. Troy Steenhard, aka Bloor
but not Linda, testified in person. Marlene, at the questioning of the State, explained that
she knows the difference between the truth and a lie. Two children, not one child,
accused Steenhard of sexual assaults.
We deem counterweighing factors compelling and thereby find prejudice. Troy
Steenhard was rarely, and perhaps never, alone in his house with Marlene and Linda. We
recognize that children may often mix fantasy with reality, but both children invented
some stories or details about the purported sexual abuse. We recognize that molestation
may occur without any physical markings, but still no physical findings confirmed the
girls’ stories. As in State v. Jerrels, the mother of the twins vouched for the honesty of
the daughters. Another witness also vouched for the credibility. Finally, we return to the
noncorroboration jury instruction. This instruction suggested to the jury that the girls’
testimony, and not Troy Steenhard’s testimony, could prevail without verification from
another witness.
Because we hold that Troy Steenhard suffered harm from manifest constitutional
error, we do not address whether the prosecutor committed misconduct. We also do not
review whether Steenhard’s trial counsel performed ineffectively.
Harmless Error
Even though we conclude that Troy Steenhard suffered prejudice from the
vouching to the honesty of witnesses, we must still perform a harmless error analysis.
State v. Kirkman, 159 Wash. 2d at 927 (2007). Constitutional error is harmless only if the
27
No. 35578-1-III
I
State v. Troy Steenhard, aka Bloor
State established beyond a reasonable doubt that any reasonable jury would have reached
the same result absent the error. State v. Quaale, 182 Wash. 2d at 202 (2014 ). The
untainted evidence must be so overwhelming that it leads necessarily to a finding of guilt.
State v. Thach, 126 Wn. App. 297,313, 106 P.3d 782 (2005). Based on the same factors
under which we conclude that Troy Steenhard suffered prejudice from manifest
constitutional error, we find, under the constitutional standard, the error to be harmful.
CONCLUSION
We reverse the conviction of Troy Steenhard for rape of a child in the first degree
with instructions for the trial court to dismiss the charge. We reverse the convictions of
Steenhard for child molestation in the first degree, and we remand for a new trial on the
two charges.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
Fearing, J.
I CONCUR:
VJ~w~.~-
siddoway, J.
28
No. 35578-1-III
PENNELL, A.CJ. (dissenting) - I agree with the majority that the State's evidence
was insufficient to prove the crime of first degree rape of a child, as set forth in the
court's jury instructions. I also share the majority's concerns regarding the propriety of a
noncorroboration instruction. Where I disagree with the majority is in its assessment of
vouching.
It is first important to unpack what is meant by the term "vouching." Not all
evidence touching on the issue of a witness's truthfulness constitutes improper vouching.
This is especially true in the context of crimes against children, where the prosecution's
case depends on child testimony. When a defendant challenges the credibility of a child
witness, the prosecution may present responsive evidence in order to rehabilitate the
witness's credibility. State v. Petrich, 101 Wash. 2d 566, 683 P.2d 173 (1984), overruled in
part on other grounds by State v. Kitchen, 110 Wn.2d 403,406 n.l, 756 P.2d 105 (1988).
This may involve demonstrating that the child is competent and capable of providing
truthful testimony. State v. Froehlich, 96 Wn.2d 301,307, 635 P.2d 127 (1981); United
States v. Azure, 801 F .2d 336, 340 (8th Cir. 1986) (A jury may properly receive
testimony "about a child's ability to separate truth from fantasy."). Or, the prosecution
No. 35578-1-III
State v. Steenhard aka Bloor (Dissent)
may be permitted to present evidence of a child witness's character for truthfulness
under ER 608. See United States v. Lukashov, 694 F .3d 1107, 1117 (9th Cir. 2012).
Such methods of rehabilitation are proper and do not amount to vouching.
Vouching is different from mere rehabilitation. "Improper vouching occurs when
the prosecutor expresses a personal belief in the veracity of a witness or indicates that
evidence not presented at trial supports the testimony of a witness." State v. Thorgerson,
172 Wn.2d 438,258 P.3d 43 (2011) (citing State v. !sh, 170 Wash. 2d 189, 196,241 P.3d
3 89 (2010) ). Vouching has constitutional implications because it impairs a defendant's
due process right to have a jury determine guilt based on evidence presented in court.
See Darden v. Wainwright, 477 U.S. 168, 181, 106 S. Ct. 2464, 91 L. Ed. 2d 144 (1986);
State v. Kirkman, 159 Wash. 2d 918, 927, 155 P .3d 125 (2007). "Whether a witness
testifies truthfully is an issue entirely within the province of the trier of fact."
Thorgerson, 172 Wash. 2d at 443.
There are two forms of vouching: direct vouching by the prosecutor and indirect
vouching through the prosecution's witnesses. Direct vouching can occur when the
prosecutor provides personal assurances of a witness's veracity. State v. Brett, 126
Wash. 2d 136, 175, 892 P .2d 29 (1995). Or the prosecutor may suggest that evidence
outside the record supports the witness's credibility. See United States v. Roberts,
618 F .2d 530, 533 (9th Cir. 1980) (insinuation that cooperating witness was believable
2 J
Il
No. 35578-1-III
State v. Steenhard aka Bloor (Dissent)
because his testimony was pursuant to a plea agreement and was being monitored by law
enforcement).
Indirect vouching occurs when a prosecution witness testifies as to the truthfulness
of another witness's testimony. State v. Korum, 157 Wn.2d 614,651, 141 P.3d 13
(2006); State v. Chavez, 76 Wn. App. 293,299, 884 P.2d 624 (1994). As is true of direct
vouching, indirect vouching can occur through personal assurances. See Maurer v. Dep Jt
of Corr., 32 F.3d 1286, 1288-89 (8th Cir. 1994) (Four witnesses, two law enforcement
officers, and two associates testified the victim "seemed sincere" when she said she had
been raped.). Or it can happen when a witness indicates that another witness should be
believed based on information not available to the jury. See Snowden v. Singletary, 135
F .3d 732, 73 7-3 8 (11th Cir. 1998) (expert testimony that 99 .5 percent of children tell the
truth about abuse).
In some instances, indirect vouching can take the form of both a direct personal
assurance and a reference to information outside the record. For example, in State v.
Sutherby, 138 Wash. App. 609, 158 P.3d 91 (2007), the victim's mother was called as a
witness in a child rape case. The mother testified that the victim had a ''tell" 1-a special
1
A "tell" is defined in pertinent part as "an inadvertent behavior or mannerism
that betrays a poker player's true thoughts, intentions or emotions[ .... It is also] a
revealing gesture, expression, etc. that is likened to a poker player's tell." MERRIAM-
WEBSTER UNABRIDGED, http://unabridged.merriam-webster.com/unabridged/tell (last
visited July 18, 2019).
3
No. 35578-1-III
State v. Steenhard aka Bloor (Dissent)
kind of half smile-that she exhibited when she was lying. Id. at 616. The prosecution
asked if the victim ever exhibited this "['tell'] when she was talking about what
happened" with the defendant. Id. at 617. The mother replied, no. Id. The mother's
testimony was improper for two reasons: (1) expressing the mother's belief that the
victim's accusations against the defendant were truthful, and (2) conveying a test for
assessing the victim's allegations that was outside the jury's ability to evaluate-i.e.,
whether the victim did in fact have a tell and whether the tell was exhibited during prior
conversations about the defendant's alleged misconduct. Id.
The danger with vouching, as opposed to other forms of testimony touching on
witness credibility, is that it may lead jurors to ''surrender their own common sense in
weighing testimony," United States v. Barnard, 490 F.2d 907, 912 (9th Cir. 1973) and
defer to the government's perceived expertise when it comes to matters of guilt or
mnocence.
The majority claims two statements elicited from the State's witnesses constituted
impermissible vouching. The first statement came from the victims' mother. When
asked whether she had any concerns about the possibility of her children making false
accusations to law enforcement, the mother stated, "No, no. I knew that my children-I
mean, if given the opportunity, they're going to tell the truth. They're not going to lie.
They don't even understand what they're even saying in regards to any type of that."
4
I
No. 35578-1-III
State v. Steenhard aka Bloor (Dissent)
3 Report of Proceedings (RP) (June 28, 2017) at 467. 2 The second statement came from
the mother's friend. When asked if the two victims were honest girls, the friend
responded affirmatively. Id. at 538-39.
Neither statement is a manifestly clear example of vouching. The statements did
not convey the witnesses' personal beliefs regarding the accuracy of the victims'
accusations against Troy Steenhard. Nor did the statements suggest that the victims'
allegations had been validated by some sort of analysis that was outside the evidence
presented at trial. Although the victims' mother and friend touched on issues of
truthfulness, their testimony went primarily to the issues of the victims' capacity and
character for truthfulness. While there may have been evidentiary problems with the
prosecution's introduction of such evidence, such errors are not the same thing as
improper vouching.
Without a manifestly clear example of vouching, Mr. Steenhard's unpreserved
objection to the testimony from the State's witnesses does not merit appellate scrutiny.
2
Prior to this statement, the prosecutor had elicited testimony from the mother
regarding her efforts to avoid influencing the children's testimony prior to their
participation in forensic interviews. 3 RP (June 28, 2017) at 466-67. The prosecutor then
asked, "Did you have any concerns about helping to make some kind of a false
allegation?" Id. at 467. The mother responded, "Pardon me?" Id. The prosecutor then
asked, "Did you have some kind of-any concerns about the possibility of making a false
accusation against [Troy] Steenhard." Id. Given this context, it appears the prosecutor
was primarily concerned with whether the mother had done anything to influence her
children's credibility. Nevertheless, the mother's response was of a more general nature.
5 I
~
II
No. 35578-1-III
State v. Steenhard aka Bloor (Dissent)
Kirkman, 159 Wash. 2d at 936 ("' Manifest error' requires a nearly explicit statement by the
witness that the witness believed the accusing victim."). This case is therefore not one of
the rare circumstances where a conviction should be reversed based on unpreserved
constitutional error. RAP 2.5(a).
Nor is Mr. Steenhard's conviction subject to reversal under the theory that defense
counsel performed ineffectively by failing to assert a vouching objection. A claim of
ineffective assistance of counsel requires showing both deficient performance and
prejudice. Strickland v. Washington, 466 U.S. 668, 687-88, 693, 104 S. Ct. 2052, 80 L.
Ed. 2d 674 (1984). Neither burden is met here. First, defense counsel's failure to object
was not necessarily deficient. After all, an objection may have simply prompted the
prosecution to spend more time on the issue of the victims' credibility in order to lay a
proper foundation for evidence of capacity or character for truthfulness. State v. McNeal,
145 Wash. 2d 352, 362-63, 37 P.3d 280 (2002) (Reasonably strategic trial decisions do not
qualify as deficient.). In addition, the testimony at issue was not prejudicial when viewed
in light of the evidence as a whole. During the defense case-in-chief, both Mr. Steenhard
and one of his witnesses acknowledged that the two child victims were not prone to lying.
4 RP (July 5, 2017) at 728; 4 RP (July 6, 2017) at 768. Thus, even if the testimony of the
mother and her friend had been excluded, the jury still would have been presented with
evidence of the victims' truthful character. In addition, during the State's case, the
victims' mother acknowledged that she sometimes had to discipline her children for
6
No. 35578-1-III
State v. Steenhard aka Bloor (Dissent)
lying. 3 RP (June 28, 2017) at 464. This testimony neutralized the mother's later
testimony about her children's ability to tell the truth.
In the end, the testimony at issue in this case did not deprive Mr. Steenhard of his
right to a fair trial. Nothing about the testimony from the victims' mother or her friend
jeopardized the jury's ability to critically assess the State's evidence and make an
independent determination of guilt. Particularly when it comes to the type of accusations
at issue here, jurors can be expected to understand that a mother is not an unbiased
witness. The same holds true for the mother's friends. The jury's unanimous verdict of
guilt beyond a reasonable doubt is not so fragile that it is undermined by the type of
unpreserved error at issue in this case. I would affirm Mr. Steenhard' s two convictions
for first degree child molestation.
Q_
Pennell, A. C .J.
7