State Of Washington v. Jonathon Brown ( 2019 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, )
No. 77397-6-I
Respondent,
DIVISION ONE
v.
)
JONATHAN EDWARD DAVID BROWN,) UNPUBLISHED OPINION
Appellant. ) FILED: March 4, 2019
SMITH, J. — Jonathan Brown appeals his convictions for child molestation
in the second degree and incest in the second degree based on sexual contact
with his son J.B. He argues that the trial court abused its discretion by denying
his motion for a mistrial because that decision was based on a mistaken
recollection of J.B.’s testimony at trial. He also argues that his trial counsel was
ineffective for failing to notice and object to the mistake. Finally, he contends that
the prosecutor committed reversible misconduct during closing argument by
referring to J.B. as a victim. But the trial court’s mistaken recollection of J.B.’s
testimony was immaterial to its conclusion that a mistrial was not necessary, trial
counsel’s failure to object to the mistake did not prejudice Brown, and Brown
waived any claim of prosecutorial misconduct by not objecting to the prosecutor’s
remark. Therefore, we affirm.
FACTS
In January 2016, J.B. told his mother and two family friends that Brown
had engaged in physical sexual contact with him several years before. J.B.
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alleged that Brown called him into a back bedroom, locked the door, offered J.B.
drugs, and played pornography on the television. Brown then asked J.B. to give
Brown a “hand job” in return for a “hand job,” and J.B. complied. The family
friends notified the police.
Because J.B. was not sure whether he was 13 or 14 years old at the time
of the incident, the State charged Brown with child molestation in the second
degree and child molestation in the third degree. Brown was also charged with
incest in the second degree.
Before trial, Brown moved in limine to exclude any testimony about other
uncharged inappropriate behavior by Brown toward J.B. that occurred
subsequent to the charged conduct. The State objected, arguing that those other
acts were relevant to show Brown’s lustful disposition toward J.B. The State
made an offer of proof that J.B. would testify that on several occasions, Brown
called J.B. to the bedroom, gave him drugs or alcohol, had pornography playing,
was naked, masturbated, and tried to get J.B. to have sexual conduct with him
again. The trial court held that the testimony was admissible because it went “to
the defendant’s state of mind and lustful disposition and/or grooming.”
After J.B. testified at trial, Brown moved for a mistrial, arguing that the
testimony given about Brown’s subsequent misconduct differed from the State’s
offer of proof. Specifically, although the State indicated in its offer of proof that
J.B. would testify that Brown masturbated during the subsequent incidents and
tried to get J.B. to have sexual contact with him again, J.B. did not address
masturbation and he testified that Brown never directly requested that J.B. touch
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him again. The trial court reserved ruling on the mistrial until after the verdict. A
jury found Smith guilty of child molestation in the second degree and incest in the
second degree.
Brown and the State then submitted additional briefing on Brown’s motion
for a mistrial. The trial court denied the motion and concluded in its written
findings of fact and conclusions of law that the testimony was properly admitted
to show motive, opportunity, common scheme or plan, sexual desire of J.B. by
Brown, and lustful disposition. Brown appeals.
DENIAL OF MOTION FOR A MISTRIAL
Brown argues that the trial court erred by denying his motion for a mistrial
and concluding that J.B.’s testimony about the subsequent incidents was
admissible. Specifically, Brown argues that the trial court abused its discretion
because its decision was based on a mischaracterization of J.B.’s actual
testimony. We disagree.
“We review a trial court’s decisions as to the admissibility of evidence
under an abuse of discretion standard.” State v. Pirtle, 127 Wash. 2d 628, 648, 904
P.2d 245 (1995). We also review a trial court’s denial of a mistrial for abuse of
discretion. State v. Emery, 174 Wash. 2d 741, 765, 278 P.3d 653 (2012). “There is
an abuse of discretion when the trial court’s decision is manifestly unreasonable
or based upon untenable grounds or reasons.” State v. Brown, 132 Wash. 2d 529,
572, 940 P.2d 546 (1997).
Although “[e]vidence of other crimes, wrongs, or acts is not admissible to
prove the character of a person in order to show action in conformity therewith,” it
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may be admissible for some other proper purpose. ER 404(b). For evidence of
other bad acts to be admissible, the trial court must find by a preponderance of
the evidence that the misconduct occurred, identify the purpose for which the
evidence is to be introduced, determine whether the evidence is relevant to an
element of the crime charged, and weigh the probative value against the
prejudicial effect. State v. Gunderson, 181 Wash. 2d 916, 923, 337 P.3d 1090
(2014).
Washington courts have “consistently recognized that evidence of
collateral sexual misconduct may be admitted under ER 404(b) when it shows
the defendant’s lustful disposition directed toward the [victim].” State v. Ray, 116
Wash. 2d 531, 547, 806 P.2d 1220 (1991). This is because a lustful disposition
toward the victim makes it more probable that the defendant committed the crime
charged. ~y, 116 Wash. 2d at 547. Even where the uncharged sexual misconduct
is not identical to the charged sexual offense, it is no less admissible to show
lustful disposition; indecent or otherwise improper conduct is equally significant.
State v. Thorne, 43 Wash. 2d 47, 60-61, 260 P.2d 331 (1953) (citing 2 JOHN HENRY
WIGMORE, A TREATISE ON THE ANGLO-AMERICAN SYSTEM OF EVIDENCE IN TRIALS AT
COMMON LAWS 399, at 367 (3d Ed. 1940)).
Here, the prosecutor made the following offer of proof as to J.B.’s
proffered testimony about the encounters with Brown that occurred after the
sexual contact charged in this case:
Subsequent to that a number of times .the son, victim, is
. .
called down to the bedroom, given drugs. He said cocaine
approximately four or five times, blow or crack or I think crack is
--
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what he called it four or five times and then and/or alcohol and
-- --
Percocet with a muscle relaxer.
In those subsequent times, he was also his father would
--
have pornography playing, his father would be naked and would be
masturbating and try to get the victim to again do have sexual
--
contact with him.
J.B.’s testimony differed from the State’s offer of proof in two ways. First,
J.B. did not testify that Brown subsequently requested sexual contact with him.
This difference was brought to the court’s attention during oral argument on
Brown’s motion for a mistrial. Second, J.B. did not testify that Brown was
masturbating during the later encounters. This difference was not brought to the
trial court’s attention, and in the court’s oral ruling, it incorrectly described J.B.’s
testimony as including evidence of masturbation. But the court did not include
this evidence in its written ruling, where it found that J.B. had testified as follows:
he was brought down to the bedroom by the defendant, he was
given drugs, there was pornography playing, his father was almost
always naked, and that there were conversations regarding sexual
touching, but it was never specifically requested.
Based on this finding, the trial court concluded that the evidence was properly
admitted to “show motive, opportunity, common scheme or plan, sexual desire of
the victim by the defendant, and lustful disposition.”
Brown argues that the trial court’s denial of a mistrial was based on
untenable grounds because in making its decision, the trial court was not aware
that J.B. failed to testify that Brown masturbated during these subsequent
incidents. But because that testimony was not material to the trial court’s ruling,
Brown is incorrect.
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No. 77397-6-1/6
J.B. testified that after their initial sexual encounter, Brown took J.B. to a
back bedroom, where he gave J.B. drugs, played pornography, sat naked on the
bed, and had conversations with J.B. about sexual touching. Although these
situations were different from the charged offense in that no sexual touching
occurred or was requested, they are still admissible as evidence of lustful
disposition—even without evidence that Brown masturbated during the
encounters—because they are indecent acts that evidence a lustful disposition
toward J.B. The absence of testimony on masturbation is immaterial because to
show lustful disposition, the State was not required to show that Brown’s
subsequent encounters were identical to the charged offense. See Thorne, 43
Wash. 2d at 60-61 (conduct admitted as evidence of lustful disposition need not be
identical to the charged conduct). And because J.B.’s testimony was properly
admitted even without any testimony regarding masturbation, the trial court did
not abuse its discretion by denying Brown’s motion for a mistrial.
Furthermore, the trial court’s misconception about J.B.’s testimony was
reflected in its oral ruling but not in its written ruling, and findings stated in an oral
decision have no binding effect unless they are adopted and incorporated in the
formal written findings or conclusions. Huzzy v. Culbert Constr. Co., 5 Wash. App.
581, 583, 489 P.2d 749 (1971). Therefore, the trial court’s oral finding that
masturbation was part of J.B.’s testimony about the subsequent encounters does
not require reversal because it was not adopted in the court’s written findings.
Brown also requests that this court remand the case to the trial court for
reconsideration of its decision because there was no evidence of masturbation.
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But as discussed, the trial court properly exercised its discretion in denying a
mistrial, even without any testimony on masturbation. Therefore, remand is not
warranted.
INEFFECTIVE ASSISTANCE OF COUNSEL
Brown argues that defense counsel was ineffective for failing to correct the
trial court’s mistaken belief that J.B. testified that Brown masturbated during the
subsequent encounters. We disagree.
To prevail on a claim of ineffective assistance of counsel, a defendant
must show that his counsel’s performance fell below an objective standard of
reasonableness and that the deficient performance prejudiced him. Strickland v.
Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State
v. McFarland, 127 Wash. 2d 322, 334-35, 899 P.2d 1251 (1995). To establish
prejudice, a defendant must show that there is a reasonable probability that the
result of the trial would have been different absent the challenged conduct.
Strickland, 466 U.S. at 694. Even assuming defense counsel was deficient in
failing to correct the trial court’s mischaracterization of J.B.’s testimony, Brown
fails on the prejudice prong.
As explained above, J.B.’s testimony was properly admitted as evidence
of Brown’s lustful disposition toward him, and the fact that Brown did not
masturbate during those subsequent interactions was not material to the court’s
decision to deny a mistrial. Therefore, Brown was not prejudiced by his
counsel’s failure to correct the trial court’s mischaracterization of the evidence,
and his ineffective assistance claim fails.
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PROSECUTORIAL MISCONDUCT
Brown argues that the prosecutor committed reversible misconduct during
closing argument by telling the jury that the jury instructions referred to J.B. by
his initials because Washington law requires child sex victims to be referred to
only by their initials. We disagree.
“To prevail on a claim of prosecutorial misconduct, the defendant must
establish ‘that the prosecutor’s conduct was both improper and prejudicial in the
context of the entire record and the circumstances at trial.” State v. Thorgerson,
172 Wash. 2d 438, 442, 258 P.3d 43 (2011) (internal quotation marks omitted)
(quoting Statev. Maqers, 164 Wash. 2d 174, 191, 189 P.3d 126 (2008)). If the
defendant did not object, he is deemed to have waived any error, unless the
prosecutor’s misconduct was so flagrant and ill-intentioned that an instruction
could not have cured the resulting prejudice. Emery, 174 Wash. 2d at 760-61.
“Under this heightened standard, the 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.” Emery, 174 Wash. 2d at 761 (quoting Thorgerson, 172 Wash. 2d at 455).
Here, when reading the instructions to the jury, the trial court explained
why the instructions referred to J.B. by his initials, stating “these are publically
filed [sic] documents, that’s why we’re using initials.” During closing argument,
the prosecutor again tried to explain to the jury why the jury instructions referred
to J.B. by his initials. He explained, as the trial court indicated before, “for
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purposes of jury instructions since these are filed in open court, we need to use
initials for minor victims and minor sex victims.” Defense counsel did not object.
Brown argues that the prosecutor’s reference to J.B. as a minor “victim”
and minor sex “victim” was improper because it alluded to Washington law that
was outside of the record. But even assuming the prosecutor’s remark was
improper, Brown waived any error by not objecting to it. If defense counsel had
objected, any prejudice could have been cured by an instruction to the jury to
disregard the prosecutor’s remark.
Brown also argues that the prosecutor’s comment was particularly
prejudicial here because there was little direct evidence that Brown committed
the crimes of which the jury ultimately convicted him. He contends that a
curative instruction would not have cured the resulting prejudice because it
unfairly reinforced the evidence by informing the jury that J.B. was legally
designated a crime victim. Because any prejudice was curable by an instruction
to the jury, had defense counsel objected, Brown’s argument fails.
We affirm.
WE CONCUR:
~
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