State v. Ayodeji
| Decision Date | 17 January 2017 |
| Docket Number | No. 72359-6-I,72359-6-I |
| Court | Washington Court of Appeals |
| Parties | STATE OF WASHINGTON, Respondent, v. JOHNSON OMOTERE AYODEJI, Appellant. |
UNPUBLISHED OPINION
TRICKEY, A.C.J. — A jury convicted Johnson Ayodeji of several counts of child molestation and child rape against two of his daughters. He appeals, raising several issues, including a right to a public trial violation and the lack of a jury instruction on unanimity for some of the multiple acts charges. We hold that the trial court did not violate Ayodeji's right to a public trial because it did not close the courtroom. We also hold the only instructional error was harmless beyond a reasonable doubt. We affirm.
FACTS
Johnson Ayodeji and Ruth Ayodeji1 married in 1998. They had their first daughter, E.A., in early 2001, when they were living in Chicago, Illinois. The family moved to Oak Harbor, Washington shortly after E.A.'s birth. Their second daughter, F.A., was born in early 2002.
In the next few years they moved several times, with Ayodeji sometimes living with his family and sometimes not. In 2004, Ruth entered a domestic violence shelter with the girls. They moved among different shelters and YWCA2housing until 2005 or 2006. They lived together again as a family in Lynwood, Washington and had twin daughters.3
Ayodeji started abusing E.A. around this time or earlier. Her first memory of him abusing her was before they moved to their current house. E.A. described it in a letter to her mother. Ayodeji would touch her breasts and butt and, at least once, put his penis in her butt.
For unrelated reasons, Ruth obtained a restraining order against Ayodeji in 2008. Soon after they started living without Ayodeji, F.A. told Ruth that Ayodeji had touched her private parts and E.A.'s private parts. E.A. confirmed it but would not give more details. Ruth relayed F.A.'s account to Child Protective Services (CPS). The State did not bring charges based on those allegations.
In 2009, Ruth found F.A. and E.A. "having oral sex with each other."4 F.A. told Ruth that "[D]addy did that."5 Ruth brought her daughters to a family friend, who was a counselor, to talk about it. Both girls told the counselor that their father had done it to them in their family's computer room. The counselor notified CPS.
E.A. and F.A. would not talk to CPS or the prosecutor's office about the abuse. After several months, the authorities dropped the case. Ayodeji moved out of state and the family did not see him for almost three years.
Around this time, E.A. and F.A. would occasionally write letters to their mother. Some of these letters described sexual abuse by Ayodeji. Later, the girls told their mother that what they had written was not true. They said they hadlearned sexual activity from the computer and blamed it on their father because they were mad at him.
In January 2013 Ayodeji moved in with his family in Everett. Once, when Ayodeji was trying to show Ruth family pictures on his cell phone, Ruth saw that Ayodeji had a video of E.A. masturbating.
Ayodeji had begun abusing E.A. again. E.A. had just turned 12 years old. Ayodeji would touch E.A. with his penis in their computer room, his bedroom, and in her bedroom. At least once, Ayodeji video recorded E.A. in her bedroom being forced to perform oral sex. Ayodeji entered E.A.'s bedroom and raped her.
Ayodeji would make F.A. give him an erection by applying lotion with her hands. Sometimes Ayodeji would touch her vagina with his hands. Ayodeji usually molested F.A. in her own bedroom, but sometimes they were in his bedroom. Once or twice Ayodeji abused F.A. and E.A. simultaneously, in E.A.'s bedroom.
On May 17, 2013, sometime during the very early morning hours, Ruth found Ayodeji in F.A.'s bed, "having sex" with F.A.6 Ayodeji was wearing only his boxer shorts. When Ruth discovered them, she screamed and ran upstairs. He followed after her, telling her that he had been just hugging F.A. and that his penis was not hard. Ruth noticed that the flap of his boxer shorts was wet.
Ruth spoke to a former co-worker, who was working for CPS at the time, about how to handle the situation. She reported the incident to the police. The State charged Ayodeji with several counts of child rape and child molestation. The charges included one count of child rape in the first degree and two counts of childmolestation of F.A., and one count of rape of a child in the first degree, one count of rape of a child in the second degree, and two counts of child molestation of E.A.
E.A. and F.A. were examined at a hospital and spoke with a child interview specialist. E.A. was very reserved with the interviewer when they began to discuss the abuse. To help make E.A. more comfortable, the interviewer had E.A. write down her answers.7 E.A. told the interviewer that her father had not taken any pictures of her.
After they returned from the interviews, F.A. called the prosecutor's office and left a voicemail that E.A. had forgotten to tell the interviewer that their father had a video of E.A. "sucking his D."8 E.A. told a detective that Ayodeji "videoed [sic] her on her bed . . . while she was giving him oral sex."9
Ruth provided the police with a removable secure digital (SD) card10 from one of Ayodeji's cell phones, which she had found in Ayodeji's car. A computer forensic specialist found the video that E.A. had described on the SD card, though it had been deleted.
The forensic specialist determined that the video was created on May 8, 2013. The SD card also had two images that looked like they were from the same episode. A digital imaging specialist found similar images of a young girl touching an adult male penis on Ayodeji's cell phone. The man's face was not visible in the video or pictures.
At trial, F.A. described the incident on May 17 in more detail and testified that it had happened more than once.
At trial, Ruth identified the man in the in pictures with E.A. as Ayodeji by his boxer shorts and private parts. She also testified that there were no other dark-skinned adult men who were in the house with any regularity. Ayodeji argued that Ruth was fabricating all the evidence to get him out of their lives and to get back at him for some misdeeds in the past.
The trial court admitted a Christmas card and letter that Ayodeji sent Ruth and the children after he was arrested. The letter and card were mostly about Christian values and Ayodeji's beliefs. Ruth testified that she felt he was using the Bible to tell her she should forgive him.
The trial court admitted the video of E.A. pulled from Ayodeji's SD card as an exhibit. The State played the video in the courtroom during the trial. The State intentionally set up the television so that the parties and jurors could see it but the spectators could not. Ayodeji took "no position" on how they displayed the video.11
The jury convicted Ayodeji of all charges. He appeals.
ANALYSIS
Public Trial
Ayodeji argues that the trial court violated his right to a public trial when it played the video recovered from the SD card so that the public could not see it. Because we hold that there was no courtroom closure, we disagree.
Criminal defendants have a right to a public trial, stemming from theconstitutional guarantee that "[j]ustice in all cases shall be administered openly" and the defendant's constitutional right to a "speedy public trial." WASH. CONST. art. I, § 10, 22; State v. Love, 183 Wn.2d 598, 604-05, 354 P.3d 841 (2015). The right to a public trial "ensure[s] a fair trial, . . . remind[s] the prosecutor and [the] judge of their responsibility to the accused and the importance of their functions, . . . encourage[s] witnesses to come forward, and . . . discourage[s] perjury." State v. Sublett, 176 Wn.2d 58, 73, 292 P.3d 715 (2012).
The court must determine first, whether the public trial right is implicated, second, whether there was a closure, and third, whether the closure was justified. State v. Smith, 181 Wn.2d 508, 513, 334 P.3d 1049 (2014). We review whether the trial court violated a defendant's right to a public trial de novo. Smith, 181 Wn.2d at 513.
Right to a Public Trial Implicated
"[N]ot every interaction between the court, counsel, and defendants will implicate the right to a public trial or constitute a closure if closed to the public." Sublett, 176 Wn.2d at 71. The court applies a two-prong "experience and logic" test to see whether the right to a public trial attaches to a particular proceeding. Sublett, 176 Wn.2d at 73. Under that test, the defendant must show both that the "'place and process have historically been open to the press and general public'" and that "'public access plays a significant positive role in the functioning of the particular process in question.'" Sublett, 176 Wn.2d at 73 (quoting Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 8-10, 106 S. Ct. 2735, 92 L. Ed. 2d 1 (1986)).
No published Washington decision has determined whether the right to a public trial attaches to the presentation of exhibits in the courtroom. But exhibits are a form of evidence. And the right to a public trial attaches to evidentiary phases of the trial. Sublett, 176 Wn.2d at 71-72. The admission and the introduction of evidence has historically taken place in open court. Thus, the experience prong weighs in favor of holding that the right to a public trial attaches to this phase of proceedings.
The public cannot fully "observe the process and weigh the defendant's guilt or innocence" if it has no access to a crucial exhibit. See Smith, 181 Wn.2d at 518. Providing access to all admitted exhibits also encourages witnesses to come forward. Therefore, logic also weighs in favor of ensuring some access to trial exhibits.
Recently, in State v. Magnano, this court strongly suggested that the right to a public trial requires the playing of audio exhibits in court. 181 Wn. App. 689, 699, 326 P.3d 845 (2014). There, the court held that allowing the jury to replay audio recordings in a closed...
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