State v. Baxter

• Decision Date: 15 August 2006
• Docket Number: No. 32766-0-II.,32766-0-II.
• Citation: 134 Wn. App. 587,141 P.3d 92
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Edwin Bruce BAXTER, Appellant.

141 P.3d 92

134 Wn. App. 587

STATE of Washington, Respondent, v. Edwin Bruce BAXTER, Appellant.

No. 32766-0-II.

Court of Appeals of Washington, Division 2.

August 15, 2006.

John A. Hays, Longview, WA, for Appellant.

Kimberley Robert Farr, Clark County Prosecuting Attorney's Office, Vancouver, WA, for Respondent.

PART-PUBLISHED OPINION

ARMSTRONG, J.

¶ 1 Edwin Bruce Baxter appeals his conviction for second degree assault of a child, which arose from his attempt to circumcise his eight-year-old son at home. He argues that the trial court erred by including his son's birth date in the elements instruction because the State had to prove as an element of the crime that his son was under the age of 13 at the time of the assault. He also contends that the trial court violated his due process right by excluding evidence of his religious motive and his son's consent to the procedure. Finally, he asserts that his trial counsel was ineffective for failing to raise a corpus delicti objection or to move for a change of venue. We find no reversible error and, therefore, affirm.

FACTS

¶ 2 After pondering chapter 17 of Genesis for several weeks,¹ Edwin Baxter concluded that God was directing him to circumcise his eight-year-old son, E.N.B. Baxter explained to E.N.B. that, although he normally should not let people touch his private parts, this was different. Baxter, who had no medical training, then numbed E.N.B.'s penis with ice and attempted to remove the boy's foreskin with a hunting knife. Afterward, he attempted to control the bleeding with an animal wound cauterizing powder. When this failed, he called 911, acknowledging that his son was eight years old.

¶ 3 Responding to the scene, medical and law enforcement personnel found E.N.B. lying in a dirty bathtub bleeding from the penis. The child's mother was also present. An ambulance took E.N.B. to a hospital, where a physician closed the laceration with sutures. The physician concluded that there would likely be scarring, but no permanent impairment.

¶ 4 The State charged Baxter with second degree assault of a child. The case garnered some publicity in the county, and 28 of the 50 prospective jurors arrived at court with prior knowledge of the case from the media. The trial court excused any who expressed doubts about their ability to be impartial.

¶ 5 At trial, neither party was able to present its ideal case. The defense sought to present evidence that Baxter attempted the circumcision as an exercise of religious freedom and that E.N.B. had consented. The trial court excluded the evidence as irrelevant. And despite issuing material witness warrants, the State was unable to locate E.N.B. or his mother to call them as witnesses.

¶ 6 The court set forth the elements for second degree assault of a child in instruction 7. The first element was: "That on or about the 3rd day of September, 2004, the defendant committed the crime of assault in the second degree against E.N.B., [sic] (male, DOB: 8/10/96)." Clerk's Papers (CP) at 82. According to the second element, the jury would have to find that E.N.B. was under the age of 13 at the time the assault occurred. The jury convicted Baxter of second degree assault of a child.

ANALYSIS

I. The Jury Instructions

¶ 7 Baxter argues that the trial court violated article IV, section 16, of the Washington Constitution by including the victim's birth date in the "to convict" jury instruction when the victim's age was an essential element of the crime. He reasons that this was a structural error and thus not subject to harmless error analysis. Accordingly, he asks us to reverse and remand for a new trial.

¶ 8 "Judges shall not charge juries with respect to matters of fact, nor comment thereon, but shall declare the law." WASH. CONST. art. IV, § 16. This prohibits judges "`from influencing the judgment of the jury on what the testimony proved or failed to prove." State v. Zimmerman, 130 Wash. App. 170, 174, 121 P.3d 1216 (2005) (quoting Bardwell v. Ziegler, 3 Wash. 34, 42, 28 P. 360 (1891)), review granted, 2006 Wash. LEXIS 514 (Wash. July 7, 2006). "It is thus error for a judge to instruct the jury that `matters of fact have been established as a matter of law." Zimmerman, 130 Wash.App. at 174, 121 P.3d 1216 (quoting State v. Becker, 132 Wash.2d 54, 64, 935 P.2d 1321 (1997)). Including a victim's birth date in jury instructions, where the victim's age is an element of the crime charged, is a manifest violation of this provision. State v. Jackman, 156 Wash.2d 736, 744, 132 P.3d 136 (2006); Zimmerman, 130 Wash.App. at 175, 121 P.3d 1216.

¶ 9 A judicial comment in a jury instruction is not a structural error or prejudicial per se. State v. Levy, 156 Wash.2d 709, 725, 132 P.3d 1076 (2006). Rather, it is presumed prejudicial, and the State bears the burden of showing the absence of prejudice, unless the "record affirmatively shows no prejudice could have resulted." Levy, 156 Wash.2d at 725, 132 P.3d 1076. The State makes this showing when, without the erroneous comment, no one could realistically conclude that the element was not met. See Levy, 156 Wash.2d at 726-27, 132 P.3d 1076. On the other hand, the burden is not carried, and the error therefore prejudicial, where the jury conceivably could have determined the element was not met had the court not made the comment. See Jackman, 156 Wash.2d at 745, 132 P.3d 136.

¶ 10 In Levy, for example, the defendant was charged with first degree robbery and first degree burglary. Levy, 156 Wash.2d at 715, 132 P.3d 1076. The to convict instructions stated that the State must prove the defendant had "entered or remained unlawfully in a building, to-wit: the building of [the victim]"; had taken "personal property to-wit: jewelry, from the person or in the presence of another, to-wit: [names of victims]"; and had been "armed with a deadly weapon, to-wit: a .38 revolver or crowbar." Levy, 156 Wash.2d at 716, 132 P.3d 1076. The defendant claimed that these instructions contained improper judicial comments, relieving the State of its burden to prove that certain items satisfied particular elements, for example that a crowbar was a deadly weapon or that the victim's apartment was a building. Levy, 156 Wash.2d at 716-17, 132 P.3d 1076. The Supreme Court agreed that some of these references were improper judicial comments. Levy, 156 Wash.2d at 721-23, 132 P.3d 1076. But the court noted that, "[n]o one could realistically conclude that a revolver is not a deadly weapon, an apartment is not a building, a specifically named person is not someone other than the defendant, and jewelry is not personal property." Levy, 156 Wash.2d at 727, 132 P.3d 1076. Thus, the only potential prejudice was in the crowbar reference, where the comment could have led the jury to erroneously conclude that a crowbar was a deadly weapon. Levy, 156 Wash.2d at 726, 132 P.3d 1076.

¶ 11 In Jackman, however, the Supreme Court found prejudice on facts more analogous to the case at bar. The charges against the defendant included 11 counts of crimes requiring the State to prove the victims' minority. And each of the jury's "to convict" instructions identified the victims by their initials and dates of birth. Jackman, 156 Wash.2d at 740-41, 132 P.3d 136. The defendant appealed his convictions on constitutional grounds. Jackman, 156 Wash.2d at 741-42, 132 P.3d 136. The Supreme Court first concluded that the instructions were judicial comments on the evidence because they allowed the jury to infer that the victims' birth dates had been proven by the State. Jackman, 156 Wash.2d at 744, 132 P.3d 136. Then it found the error prejudicial. Even though all four victims had testified about their correct birth dates, the State had presented corroborating evidence for three of them, and the defendant had never contested the fact of their minority, the court concluded that it was "still conceivable that the jury could have determined that the boys were not minors at the time of the events, if the court had not specified the birth dates in the jury instructions." Jackman, 156 Wash.2d at 745, 132 P.3d 136.

¶ 12 We find two fundamental distinctions between the evidence here and the evidence in Jackman. First, the jury heard Baxter, the victim's biological father, state twice on the 911 recording that E.N.B. was eight years old. Jackman stressed that, although the defendant had not challenged the victims' minority, he had not admitted or stipulated to it either. Jackman, 156 Wash.2d at 745, 132 P.3d 136. Here, Baxter's comments on the tape constituted an admission.

¶ 13 Second, the victims in Jackman were age sixteen and seventeen, and the State was required to show they were under eighteen. Jackman, 156 Wash.2d at 739-41, 132 P.3d 136. E.N.B., in contrast, was only eight years old, and the age threshold was thirteen. See RCW 9A.36.130(1). Considering this age discrepancy, combined with Baxter's admission and the corroborating evidence, such as a paramedic's testimony that he had noted E.N.B.'s birth date as August 10, 1996, and two other witnesses' testimony that E.N.B. was approximately eight years old, it is not conceivable that a jury would have found this element unproven absent the inappropriate comment. Accordingly, the record affirmatively shows that no prejudice could have resulted, and the error was harmless.

II. Corpus Delicti

¶ 14 Baxter faults his trial counsel for failing to object to the admission of Baxter's extrajudicial statements on the ground there was insufficient evidence of the corpus delicti. He argues that, absent his own statements, the evidence shows only that E.N.B. suffered a cut to the foreskin but fails to rule out explanations for this cut that are consistent with innocence, such as that the injury was caused by an accident or that it was self-inflicted. Because an objection on this ground would have left the State with insufficient evidence to prosecute the charges, Baxter argues, the failure to object was...