State v. Berg

• Decision Date: 29 December 2008
• Docket Number: No. 60729-4-I.,60729-4-I.
• Citation: 198 P.3d 529
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Edward Jonathan BERG, Appellant.

198 P.3d 529

STATE of Washington, Respondent, v. Edward Jonathan BERG, Appellant.

No. 60729-4-I.

Court of Appeals of Washington, Division 1.

December 29, 2008.

COPYRIGHT MATERIAL OMITTED

Casey Grannis, Nielsen Broman & Koch, PLLC, Seattle, WA, for Appellant.

Heidi Joanne Jacobsen-Watts, King County Prosecuting Attorney's Office, Seattle, WA, for Respondent.

AGID, J.

¶ 1 Edward Berg appeals his convictions for third degree rape of a child and third degree child molestation. He contends that (1) the trial court's instructions subjected him to double jeopardy by allowing the jury to find him guilty of two counts of molestation based on a single act; (2) he was denied effective assistance of counsel by his attorney's failure to object to a detective's testimony about other sex abuse investigations; (3) his sentence exceeded the statutory maximum; and (4) the sentencing condition restricting contact with his biological daughter violated his fundamental right to the care and custody of his child. Because the court's instructions did not adequately inform the jury that it had to find a separate and distinct act for each of the identically charged molestation counts, we reverse and vacate one of the molestation convictions. But because Berg opened the door to the detective's testimony and there was no error, we affirm the other convictions. We must also remand for resentencing because the terms of confinement and community custody exceeded the statutory maximum, but we affirm the no-contact order as a crime-related prohibition that was reasonably necessary to protect Berg's biological daughter from similar abuse.

FACTS

¶ 2 Edward Berg and Sharma Ayers have a two year old daughter, A.B. Ayers also has two other children, 14 year old A.A. and 10 year old M.H.¹ In January 2007, Ayers, Berg, and the three children moved to Bellevue. Also living with the family was Terry Wright, a friend of Berg and Ayers, who watched the children while Ayers attended school and Berg worked. Wright and A.A. had bedrooms downstairs and Ayers, Berg, M.H., and A.B. had bedrooms upstairs. But Berg and Ayers slept on the couches in the living room because Ayers had a bad back and Berg wanted to sleep in the same room with Ayers.

¶ 3 In March 2007, A.A. starting sleeping in the living room because she was afraid of spiders in her bedroom. A.A. testified that during this time she would go to sleep in a chair but Berg would then carry her to the couch where he slept. She said that at first, she would lie on the couch with Berg and watch movies. Later, Berg started touching her on her chest and buttocks, both over and under her clothing. She testified that it happened every time she woke up in the middle of the night.

¶ 4 On April 9, 10, and 11, 2007, A.A. and M.H. were home during spring break. A.A. testified that on April 10 she was napping on the couch and when she awoke, she was on the bed in her mother and Berg's bedroom. She said she fell back to sleep, but when she woke up again, her lower legs were hanging off the edge of the bed, her pants and underwear were removed, and Berg was sitting on the floor. Berg then put his fingers in her vagina and licked her vagina. At that point, M.H. knocked on the door and told Berg that A.B. was awake. Berg asked A.A. if she wanted to continue, she said no, and he handed her clothes. She began to cry and then went to check on A.B. According to A.A., she did not tell her mother because she thought her mother would not believe her. Berg asked her repeatedly if she would forgive him.

¶ 5 In early May 2007, A.A. told her friends that Berg was molesting her. She had been with her friend Blair Davidson and Blair's boyfriend Andrew Arvidson at the skating rink when Blair's mother arrived to pick up Blair and Andrew. Berg was supposed to pick up A.A., but A.A. told Blair and Andrew that she was not going home and started walking to a nearby park. Blair and Andrew followed her, the three began talking, and Blair complained about her mother. When Andrew told the girls that they "didn't have it bad," A.A. then said something like "you don't know what I've been through." When Andrew asked what she meant, she told him to go away so she could talk to Blair privately. A.A. then told her Berg had molested her. After Blair told Andrew, the three talked some more, and Andrew said they should call the police.

¶ 6 When Blair's mother picked them up, Andrew told her what A.A. told them. They called the police, and Blair's mother called Berg to tell him she would take A.A. home. Ayers then called A.A.'s cell phone, but Blair's mother answered it and told her that they had stopped to eat. She did not tell Ayers about their report to the police because she did not think Ayers would believe A.A. When the police arrived, they interviewed A.A., Blair, Andrew, and Blair's mother separately. After the interviews, a detective arranged for A.A. to spend the night at Blair's house.

¶ 7 Based on the interviews, the police decided to arrest Berg. Berg and Ayers were standing outside of their house when Detective Michael Gordon arrived and attempted to arrest Berg. Berg did not want to be handcuffed and grabbed on to the handcuffs. After a brief struggle, Gordon eventually handcuffed him. While he was in the patrol car, Berg looked at the sky and said something like this was probably the last time he was going to see the stars and "no matter what happens at this point, my life is never going to be the same."

¶ 8 The State charged Berg with one count of third degree rape of a child (Count I) and two counts of third degree child molestation (Counts II and III). At trial, A.A., Blair, Andrew, and Blair's mother testified to the events described above. At times, A.A.'s story was inconsistent, particularly about where the molestation occurred. She claimed that it happened only on the living room couch, but Blair testified that she said it happened in her downstairs bedroom.

¶ 9 Berg's theory at trial was that A.A. was manipulative and unhappy at home, so she set him up by sleeping with him on the couch and falsely accused him of raping and molesting her. Ayers, Wright, and Berg all testified that Berg only moved A.A. to the couch once and that A.A. frequently crawled on to the couch to sleep with Berg. But Wright also testified that Berg and Ayers argued about A.A.'s sleeping habits and that Ayers was concerned about A.A. sleeping with Berg. Wright also told Berg that he did not think the sleeping arrangements were strange because he knew the family but that outsiders might consider it odd. Additionally, Wright testified that Berg defended A.A. when she argued with Ayers and that he did most of the parenting.

¶ 10 Ayers testified that A.A. often ran away from home and did not want to come home so she lied about Berg. Ayers described A.A. as emotionally and physically insecure and testified that she believed A.A. was manipulative and a danger to the stability of their home. Ayers also testified that the rape could not have occurred in her bedroom because the bed was covered with fabric pieces she had cut for a sewing project and they had not been disturbed.

¶ 11 Berg testified that he had parented A.A. and M.H. for the last four years and that he believed the children were more comfortable talking to him than to any other adult. He said that he allowed A.A. to sleep with him because she needed him. He also admitted that he had inadvertently touched A.A.'s breast once and that she pushed his hand away.

¶ 12 The jury found Berg guilty on all three counts. The court sentenced Berg to 48 months' confinement and 36 to 48 months' community custody on each count. As a condition of his sentence, the court prohibited contact with "any female minors without supervision of a responsible adult who has knowledge of this conviction."

DISCUSSION

I. Instructional Errors and Double Jeopardy

¶ 13 Berg contends that one of his two convictions for third degree child molestation must be reversed because the trial court's instructions allowed the jury to find him guilty of both counts based on a single act, violating his right to be free from double jeopardy. The State argues that Berg waived this issue for review because he did not object to the instructions at trial and this is not a claim of manifest constitutional error. Alternatively, the State argues that the jury sufficiently understood that different proof was required for each count because the State presented distinct facts to support each count and the court's unanimity instruction stated that the jury had to unanimously agree on the acts that had been proved beyond a reasonable doubt. The State also asserts that any instructional error was harmless.

¶ 14 While Berg did not object to the jury instructions at trial, his challenge to the instructions is properly before us as a claim raising an issue of constitutional magnitude.² The State argues that this is not a situation where no instruction was given, but rather is mere speculation about prejudice from an instruction that was given. The State is not correct. Berg's argument is precisely that the court omitted a necessary instruction. Thus, we review Berg's double jeopardy claim.

¶ 15 "The right to be free from double jeopardy ... is the constitutional guarantee protecting a defendant against multiple punishments for the same offense."³ If it is not manifestly apparent to the jury that the State is not seeking to impose multiple punishments for the same offense, the defendant's right to be free from double jeopardy may be violated.⁴ Jury instructions "`must more than adequately convey the law. They must make the relevant legal standards manifestly apparent to the average juror.'"⁵ We review challenges to jury instructions de novo, within the context of the jury instructions as a whole.⁶

¶ 16 In State v. Borsheim, an opinion issued just days after the trial in this case, we held that where multiple counts of sexual abuse are...