State Of Washington, V. Kevin Carson ( 2021 )

THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
THE STATE OF WASHINGTON, ) No. 82537-2-I
)
Respondent, ) DIVISION ONE
)
v. ) UNPUBLISHED OPINION
)
KEVIN CARSON, )
)
Appellant. )
)
ANDRUS, A.C.J. — Kevin Carson appeals his conviction for first degree rape
of a child and child molestation. He argues that the trial court erred in giving the
jury a non-corroboration instruction, denying his request for public funds for a
Special Sex Offender Sentencing Alternative (SSOSA) evaluation, denying his
motion to substitute counsel, and imposing an exceptional minimum sentence
without making the requisite findings of fact. We reject each argument and affirm.
FACTS
Kevin Carson was convicted of first degree rape of a child and first degree
child molestation for crimes occurring between 2015 and 2018. The victim, A.M.B.,
Carson’s step-granddaughter, was six years old at the time the charges were filed.
Carson’s wife, Dawn Carson, is A.M.B.’s biological grandmother.
Citations and pin cites are based on the Westlaw online version of the cited material.
No. 82537-2-I/2
A.M.B. routinely stayed with the Carsons throughout her life. Because
Dawn worked 30 hours a week, Carson was regularly alone with A.M.B. during her
visits.
On August 27, 2018, A.M.B. came home after staying with the Carsons for
five days. A.M.B. told her mother that Carson had showed her pornographic
videos, made her touch his penis, put lubricant on her vagina, and used a vibrator
on her. A.M.B.’s parents took her to CARES Northwest, a child abuse treatment
provider in Portland, Oregon, where she underwent a medical examination by Dr.
Adebimpe Adewusi, participated in a forensic interview conducted by Rachel
Petke, and later saw Kim Jacobwitz for counseling. A.M.B. repeated her
allegations to each of these individuals. When police searched the Carsons’ home,
they seized a vibrator, essential oils, and Carson’s phone containing pornographic
images.
A.M.B. testified at trial that Carson touched her sexually on multiple
occasions. A.M.B.’s parents and the three CARES Northwest witnesses also
recounted A.M.B.’s statements describing multiple instances of sexual abuse.
Carson testified, denying the abuse.
At the close of trial, the State proposed a set of jury instructions, including
instruction number 16, which states “[i]n order to convict a person of the crime of
Child Molestation in the First Degree or Rape of a Child in the First Degree as
defined in these instructions, it is not necessary that the testimony of the alleged
victim be corroborated.” Carson objected to this instruction, arguing it was an
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improper comment on the evidence. The court overruled Carson’s objection and
included it in the jury’s instructions.
The jury convicted Carson and found, by special verdict, that Carson had
used a position of trust or confidence to facilitate the commission of his crimes.
Before sentencing, Carson requested the appointment of new counsel based on
the alleged lack of communication with his trial lawyer. The court granted Carson’s
request and appointed James Sowder to represent Carson. A month later, in
October 2019, at Carson’s request, Sowder moved to withdraw. The court denied
this motion and set sentencing for November 6, 2019.
On November 5, 2019, the day before the scheduled sentencing hearing,
Carson moved for a new trial, to continue sentencing, and for an order approving
the expenditure of public funds for a SSOSA evaluation. At the November 6
hearing, the court refused to consider the motions without first allowing the State
an opportunity to brief the issues. It set a hearing to address all the pending
motions and reset sentencing for December 18, 2019.
On December 3, 2019, Carson filed a motion in support of a SSOSA
sentence. The State submitted a brief in opposition to Carson’s motion for a new
trial, and a sentencing memorandum opposing a SSOSA as too lenient and as
contrary to the wishes of the victim.
The court considered the pending motions at the December 18 hearing. In
considering the motion for a SSOSA sentence and the requested evaluation, the
court considered the statutory factors governing the suitability of a SSOSA
sentence in RCW 9.94A.670(4) and denied the motions because Carson had
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denied any wrongdoing, the sentence would be too lenient, it would not address
the court’s community safety concerns, and the victim opposed a SSOSA
sentence. The court concluded that an evaluation from a sex offender treatment
provider would not affect his determination that a SSOSA sentence was
inappropriate. In light of this ruling, the court denied the motion for the expenditure
of public funds for an evaluation and the request to continue the sentencing
hearing.
The court sentenced Carson to an exceptional minimum term of 180 months
in prison based on the jury’s abuse of trust finding. Carson appeals.
ANALYSIS
A. Non-Corroboration Instruction
Carson first argues that instruction 16 is an impermissible judicial comment
on the evidence. We must reject this argument because we are bound by
Washington Supreme Court precedent to the contrary.
We review challenges to jury instructions de novo. State v. Jackman, 156
Wn.2d 736, 743, 132 P.3d 136 (2006). “Judges shall not charge juries with respect
to matters of fact, nor comment thereon, but shall declare the law.” WASH. CONST.
art. IV, § 16. Jury instructions that accurately state the law are not improper
comments on the evidence. State v. Yishmael, 195 Wn.2d 155, 174, 456 P.3d
1172 (2020). Jury instructions that resolve factual issues posed to the jury, convey
a judge’s personal attitudes towards the merits of the case, or indicate how much
weight is afforded a piece of evidence constitute an improper comment. Id. at 175;
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State v. Deal, 128 Wn.2d 693, 703, 911 P.2d 996 (1996); In re Det. Of R.W., 98
Wn. App. 140, 144, 988 P.2d 1034 (1999).
Instruction 16 stated, “[i]n order to convict a person of the crime of Child
Molestation in the First Degree or Rape of a Child in the First Degree as defined
in these instructions, it is not necessary that the testimony of the alleged victim be
corroborated.” The language is taken verbatim from RCW 9A.44.020(1), which
provides that “[i]n order to convict a person of any crime defined in [chapter 9A.44
RCW] it shall not be necessary that the testimony of the alleged victim be
corroborated.”
Washington courts have repeatedly held that a non-corroboration
instruction is not an impermissible comment on the evidence. See State v.
Clayton, 32 Wn.2d 571, 572-74, 202 P.2d 922 (1949) (court upheld instruction
stating “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”); State v. Chenoweth, 188 Wn. App. 521, 535, 354 P.3d 13,
review denied, 184 Wn.2d 1023 (2015) (court upheld instruction stating “[i]n order
to convict a person of incest[,] it shall not be necessary that the testimony of the
alleged victim be corroborated”); State v. Zimmerman, 130 Wn. App. 170, 180-83,
121 P.3d 1216 (2005) (same). We are bound by this precedent and hold the trial
court did not err in giving instruction 16 because it is an accurate statement of the
law and not an impermissible comment on the evidence. 1
1We note that our Supreme Court recently granted a petition for discretionary review on the issue
of the constitutionality of an identical non-corroboration jury instruction in State v. Svaleson, 195
Wn.2d 1008, 458 P.3d 790 (2020). The petitioner explicitly asked the court to overrule Clayton.
However, when the petitioner died, the Supreme Court granted the State’s motion to dismiss the
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Carson seeks to distinguish this case by arguing that instruction 16, when
considered in the context of instruction 3, 2 “expressly told the jury that it could not
question A.M.B.’s accusation based upon the lack of corroboration.” But
instruction 16 gave the jury no such command. It simply stated that corroborating
evidence is not required as a matter of law. It made no comment about the weight
the jury should give to A.M.B.’s testimony. Instruction 3 clearly says that a lack of
evidence may give rise to reasonable doubt. The trial court did not make an
impermissible comment on the evidence through instruction 16.
B. SSOSA Evaluation
Carson next argues the trial court erred when it denied his motion for the
expenditure of public funds for a SSOSA evaluation. We disagree.
RCW 9.94A.670 lays out a three-step process for considering a SSOSA
sentence. First, the court must determine whether the defendant meets the
eligibility criteria in RCW 9.94A.670(2). An offender is eligible for the special sex
offender sentencing alternative if:
(a) The offender has been convicted of a sex offense other than a
violation of RCW 9A.44.050 or a sex offense that is also a serious
violent offense. . . .
(b) The offender has no prior convictions for a sex offense as defined
in RCW 9.94A.030 or any other felony sex offenses in this or any
other state;
(c) The offender has no prior adult convictions for a violent offense
that was committed within five years of the date the current offense
was committed;
(d) The offense did not result in substantial bodily harm to the victim;
appeal. See Order Granting Motion to Dismiss, State v, Svaleson, No. 96034-8 (Wash. Aug. 5,
2020). We remain bound by the holding in Clayton.
2 Stating in part, “[a] reasonable doubt is one for which a reason exists and may arise from the
evidence or lack of evidence.”
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(e) The offender had an established relationship with, or connection
to, the victim such that the sole connection with the victim was not
the commission of the crime; and
(f) The offender's standard sentence range for the offense includes
the possibility of confinement for less than eleven years.
RCW 9.94A.670(2). The parties do not dispute that Carson was statutorily eligible
for a SSOSA sentence.
Second, “[i]f the court finds the offender is eligible for this alternative, the
court . . . may order an examination to determine whether the offender is amenable
to treatment.” RCW 9.94A.670(3). The use of the permissive “may” in RCW
9.94A.670(3) establishes that the legislature conferred on the trial courts “not only
the discretion to order the necessary evaluation but to order the expenditure of
public funds when the initial evaluation is ordered for an indigent defendant.” State
v. Young, 125 Wn.2d 688, 695, 888 P.2d 142 (1995). 3 The statute does not
mandate a SSOSA evaluation whenever a defendant requests one.
Third, if the court has received a SSOSA evaluation, the statute sets out six
factors the court must consider in deciding whether to grant a SSOSA sentence:
After receipt of the [evaluation] reports, the court shall consider
whether the offender and the community will benefit from use of this
alternative, consider whether the alternative is too lenient in light of
the extent and circumstances of the offense, consider whether the
offender has victims in addition to the victim of the offense, consider
whether the offender is amenable to treatment, consider the risk the
offender would present to the community, to the victim, or to persons
of similar age and circumstances as the victim, and consider the
victim's opinion whether the offender should receive a treatment
disposition under this section. The court shall give great weight to the
victim's opinion whether the offender should receive a treatment
disposition under this section.
3Young addressed the former RCW 9.94A.120(7)(a)(i), which contained the same language as the
current RCW 9.94A.670(2). 125 Wn.2d at 693-94.
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RCW 9.94A.670(4).
Carson argues that the trial court abused its discretion in denying his
request for a SSOSA evaluation because it failed to follow the “correct statutory
procedure” when it decided a SSOSA was not appropriate in this case without the
benefit of evaluation reports. Although the typical process would be for the court
to decide whether to order an evaluation before conducting the sentencing
hearing—to give a defendant time to have the evaluation completed—the statute
does not mandate this process.
The question here is whether the trial court abused its discretion in
postponing its decision on Carson’s request for a SSOSA evaluation to coincide
with the sentencing hearing itself and then in concluding that a SSOSA was
inappropriate without having first ordered or considered an evaluation. Under the
facts of this case, we find no abuse of discretion.
First, the court considered Carson’s motion at a November 6, 2019 hearing
but was unwilling to rule until the State had the opportunity to respond in writing.
This decision was well within the court’s discretion.
Second, the purpose of a SSOSA evaluation is to determine a particular
defendant’s amenability to sex offender treatment. See RCW 9.94A.670(3) (“[T]he
court . . . may order an examination to determine whether the offender is amenable
to treatment”). Amenability to treatment is only one of six factors a trial court must
consider in deciding if this alternative to incarceration is appropriate. A trial court
acts within its discretion in deciding that, even if a defendant is amenable to
treatment, a SSOSA is inappropriate because of any of the other five listed factors.
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Here, the court assessed each of the six factors in RCW 9.94A.670(4) and
concluded that, even if Carson underwent an evaluation and was deemed
amenable to treatment, several of the other statutory factors operated against
granting his SSOSA request. The court particularly found that the nature of
Carson’s crimes, occurring over several years, made the alternative too lenient
and the victim’s opposition weighed heavily against it. It was for these reasons the
court stated “I don’t think it makes sense at this point to expend state resources . .
. where -- I’m not sure the information, [the SSOSA evaluation], would give to
change those factors, in particular the victim’s opinion.”
We cannot conclude the trial court abused its discretion here. The court
sought written input from the State, evaluated the correct statutory factors, and
concluded that Carson’s amenability to treatment could not overcome the victim’s
strong opposition to a SSOSA and the court’s conclusion that a SSOSA sentence
would be too lenient. RCW 9.94A.670(4) clearly directs trial courts to “give great
weight to the victim's opinion whether the offender should receive a treatment
disposition under this section.” The court did not abuse its discretion in following
this statutory directive.
Although we caution trial courts against prejudging the appropriateness of
any particular alternative sentence, a court is within its discretion, after providing
both parties the opportunity to address the appropriateness of a SSOSA, to deny
that request and to conclude that an evaluation would be unnecessary. 4
4 The State argues that a trial court’s decision to grant or deny an indigent defendant’s request for
public funds for a SSOSA evaluation is governed by CrR 3.1(f), which provides that a court shall
authorize expert services at public expense where it is “necessary to an adequate defense.” The
trial court, however, did not invoke CrR 3.1(f) or deny the motion based on a finding that the
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C. Motion to Substitute Counsel
Carson next argues that the trial court erred when it denied his second
request for a substitution of counsel. He contends the trial court failed to conduct
an adequate inquiry into his complaints and impermissibly based its denial on a
personal assessment of defense counsel’s skills. We reject both arguments.
This court reviews a trial court’s decision denying a motion to substitute
counsel for abuse of discretion. State v. Varga, 151 Wn.2d 179, 200, 86 P.3d 139(2004). The Sixth Amendment of the U.S. Constitution and article I, section 22 of
the state constitution ensure a defendant’s right to counsel at all stages of a
criminal proceeding. U.S. v. Gonzalez-Lopez, 548 U.S. 140, 144, 126 S. Ct. 2557,
165 L. Ed. 2d 409 (2006). The Sixth Amendment, however, does not provide an
indigent defendant an absolute right to counsel of his choice. Varga, 151 Wn.2d
at 200. “To justify appointment of new counsel, a defendant must show good
cause to warrant substitution of counsel, such as a conflict of interest, an
irreconcilable conflict, or a complete breakdown in communication between the
attorney and the defendant.” Id. (quotations omitted).
On review of the denial of a motion for new counsel, this court considers:
(1) the extent of the conflict; (2) the adequacy of the trial court’s inquiry into the
conflict; and (3) the timeliness of the defendant’s motion. In re Pers. Restraint of
Stenson, 142 Wn.2d 710, 724, 16 P.3d 1 (2001).
Carson made his first request to substitute counsel on September 19, 2019.
evaluation was unnecessary to an adequate defense. We note, however, that a trial court does
not abuse its discretion under CrR 3.1(f) in denying such a request where, as here, the evaluation
would be used solely for sentencing purposes. See State v. Hermanson, 65 Wn. App. 450, 455-
56, 829 P.2d 193, review denied, 120 Wn.2d 1016, 844 P.2d 436 (1992).
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After an inquiry, the trial court appointed James Sowder as substitute counsel.
Less than a month later, on October 15, 2019, Carson filed his motion to discharge
Sowder on the basis that Sowder was “too busy to properly represent him.” At the
following hearing, the court asked Carson if he wished to explain his concerns
regarding Sowder’s representation, but he declined to do so, instead referring the
court to a letter written by his wife, Dawn. Dawn alleged that Sowder was not
putting sufficient time into the case and had failed to return her calls.
The court asked Sowder about the work he was doing on the case, as well
as the impact an upcoming homicide trial would have on his ability to address
Carson’s case. The court then concluded that it could find nothing deficient in
Sowder’s work, that Sowder was a “very thorough attorney,” and Sowder’s
homicide trial had “gone away,” giving him time to attend to Carson’s case. The
court expressed concern that if it appointed new counsel, the case would be further
delayed. It denied the motion on this basis.
We see no abuse of discretion in the court’s determination that Sowder was
providing effective legal services to Carson and had sufficient time to provide him
an adequate representation, and that substituting counsel at that stage would have
the negative effect of delaying sentencing. Carson has not demonstrated that the
court’s inquiry was inadequate or that communication between Carson and
Sowder had broken down. Dawn’s letter laid out bare accusations that Sowder
had not returned her calls and that she was dissatisfied with the time Sowder had
invested in the case. The letter did not demonstrate that Sowder’s work was so
deficient as to deny Carson adequate representation. It contained no allegations
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of an irreconcilable conflict between attorney and client or a breakdown in
communication between the two.
Carson criticizes the court for relying on its assessment of Sowder’s
capabilities, arguing it demonstrated the court’s bias in favor of the attorney and
against the defendant. But it is well-established that in examining a request to
substitute counsel, a court must evaluate the adequacy of representation. State
v. Schaller, 143 Wn. App. 258, 270, 177 P.3d 1139 (2007). If legal representation
is found to be inadequate, courts must presume prejudice; if that representation is
adequate, then a defendant must demonstrate prejudice. Id. When the trial court
commented on its assessment of Sowder’s legal services, it was undertaking a
necessary evaluation of whether Carson was receiving the effective representation
of counsel to which he was entitled under the Sixth Amendment. It did not
demonstrate bias.
Carson has thus failed to establish that the denial of his motion to substitute
counsel was an abuse of discretion.
D. Exceptional Minimum Sentence
Carson next contends the court failed to make adequate factual findings to
support an exceptional minimum sentence of 180 months. We again disagree.
RCW 9.94A.535 provides:
The court may impose a sentence outside the standard sentence
range for an offense if it finds, considering the purpose of this
chapter, that there are substantial and compelling reasons justifying
an exceptional sentence. Facts supporting aggravated sentences,
other than the fact of a prior conviction, shall be determined pursuant
to the provisions of RCW 9.94A.537. Whenever a sentence outside
the standard sentence range is imposed, the court shall set forth the
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reasons for its decision in written findings of fact and conclusions of
law.
RCW 9.94A.537(6) provides:
If the jury finds, unanimously and beyond a reasonable doubt, one or
more of the facts alleged by the state in support of an aggravated
sentence, the court may sentence the offender pursuant to RCW
9.94A.535 to a term of confinement up to the maximum allowed
under RCW 9A.20.021 for the underlying conviction if it finds,
considering the purposes of this chapter, that the facts found are
substantial and compelling reasons justifying an exceptional
sentence.
Carson argues the trial court did not specifically find that the jury’s special
verdict was a substantial and compelling reason justifying the exceptional
sentence, and that the sentence must be vacated, citing State v. Friedlund, 182
Wn.2d 388, 394, 341 P.3d 280 (2015). First, we reject Carson’s argument that the
court did not make the requisite statutory factual findings. The standard range for
Carson’s crimes was 120 to 160 months. The jury found, however, that Carson
“use[d] a position of trust or confidence to facilitate the commission of the crime[s].”
Under RCW 9.94A.535(3)(n), this finding “can support a sentence above the
standard range.”
At sentencing, the court found that the jury’s finding was a “substantial and
compelling reason[] to justify an exceptional sentence upward on Counts I and II.”
The court made a similar written finding in the judgment and sentence:
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Second, Friedlund does not support Carson’s argument. In that case, the
issue was whether a court’s oral findings were sufficient to satisfy the requirements
of the SRA where the court failed to enter any written findings on the exceptional
sentence it imposed. Id. at 390-92. In this case, the court did make an oral ruling,
but it followed that ruling up with clear written findings in the judgment and
sentence.
Carson contends the court’s written findings are insufficient because they
lack “an analysis of what specific facts at this trial justified increasing Mr. Carson’s
sentence.” This court rejected the converse argument in State v. Sage, 1 Wn. App.
2d 685, 709, 407 P.3d 359 (2017). In that case, the defendant contended the trial
court had engaged in prohibited fact-finding regarding an exceptional sentence.
The court concluded:
The only permissible “finding of fact” by a sentencing judge on an
exceptional sentence is to confirm that the jury has entered by
special verdict its finding that an aggravating circumstance has been
proven beyond a reasonable doubt. Then it is up to the judge to
make the legal, not factual, determination whether those aggravating
circumstances are sufficiently substantial and compelling to warrant
an exceptional sentence.
Id.In Sage, as here, the sentencing court found that the jury had found the
existence of a statutory aggravating factor beyond a reasonable doubt and
concluded that the jury’s findings were substantial and compelling reasons for an
exceptional sentence. Id. at 710. The court, as here, included this written finding
and legal conclusion in an appendix to the judgment and sentence. Id. Under
Sage, no further fact-finding by the sentencing court is required or indeed, allowed.
This argument fails.
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E. Statement of Additional Grounds
Finally, Carson raises two arguments in his statement of additional grounds.
He first contends the trial court erred in failing to administer an oath to A.M.B.
before allowing her to testify. This is not reversible error for three reasons. First,
where the witness is a child, the trial court is not required to administer a formal
oath. See State v. Collier, 23 Wn.2d 678, 694, 162 P.2d 267 (1945); See also
State v. Dixon, 37 Wn. App. 867, 876, 684 P.2d 725 (1984). Instead, ER 603
requires the court to elicit some type of assurance that the witness will tell the truth
before being allowed to testify. State v. Avila, 78 Wn. App. 731, 737-38, 899 P.2d
11 (1995). This court held in Dixon that “the requirements of ER 603 are met when
a child demonstrates an understanding of the difference between truth and falsity,
is adequately apprised of the importance of telling the truth and declares that he
will do so.” 37 Wn. App. at 876. In that case, the requirements of ER 603 were
met where the prosecuting attorney asked the child witness a series of questions
regarding his understanding of the different between truth and falsity and the
importance of telling the truth. Id. at 875-76.
The prosecutor here asked A.M.B. the same types of questions, including
asking “can you promise that you will only tell the truth today?” To which A.M.B.
responded yes.
Second, even if the trial court did commit error, Carson has waived it by
failing to object to A.M.B.’s testimony on this basis at trial. See Dixon, 37 Wn. App.
at 876 (failure to object at trial to admission of testimony of child witness who has
not been administered a formal oath constitutes a wavier).
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Lastly, even if the issue were properly preserved, the error did not prejudice
Carson and cannot constitute grounds for a new trial or reversal. Five other
witnesses besides A.M.B. herself testified about her statements about the abuse.
In light of this evidence, A.M.B.’s testimony did not affect the outcome of the trial.
See Avila, 78 Wn. App. at 738-39 (error not prejudicial where unsworn child
testimony was supplemented with other testimony consistent with child’s
description of abuse).
Carson also argues that A.M.B’s parents, Charles Bertholomey and Morgan
Cooksey, committed perjury because, despite the charging period of May 16, 2015
to August 28, 2018, Bertholomey and Cooksey testified that A.M.B. “had no issues”
before August 27, 2018. We assume Carson is referring to Bertholomey’s
testimony that A.M.B. did not experience persistent nightmares or anxiety prior to
August 27, 2018, and Cooksey’s testimony that prior to August 27, A.M.B.
appeared happy when she returned from visits to Carson’s house.
Carson fails to demonstrate how this testimony amounts to perjury or
precludes the possibility that his crimes spanned the three-year period between
May 2015 and August 2018. To the extent that he argues that there is insufficient
evidence supporting his conviction for crimes that occurred before August 2018,
his argument fails. A.M.B. testified that Carson sexually abused her on multiple
occasions before she finally reported it in August 2018. Her counselor, Kim
Jacobwitz, corroborated this testimony. And contrary to Carson’s argument,
A.M.B.’s parents testified that on multiple occasions prior to August 2018, the child
returned from staying with the Carsons with physical symptoms consistent with
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sexual abuse. We therefore reject this argument as well.
Affirmed.
WE CONCUR:
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