State v. Blackmon

• Court: Washington Court of Appeals
• Writing for the Court: LAU, J.
• Decision Date: 22 December 2014
• Docket Number: NO. 70955-1-I,70955-1-I
• Citation: State v. Blackmon, NO. 70955-1-I (Wash. App. Dec 22, 2014)
• Parties: STATE OF WASHINGTON, Respondent, v. JOHN PATRICK BLACKMON, Appellant.

STATE OF WASHINGTON, Respondent, v. JOHN PATRICK BLACKMON, Appellant.

NO. 70955-1-I

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE

December 22, 2014

UNPUBLISHED OPINION

LAU, J. — After two mistrials, the jury convicted John Blackmon on two counts of second degree child molestation, one count of third degree rape of a child, and two counts of third degree child molestation involving his daughter, IB. He claims error based on ER 106 rulings, improper opinion testimony, prosecutorial misconduct, denial of his mistrial motion, confrontation right violation, and the court's imposition of an exceptional sentence. Blackmon also submitted a pro se statement of additional grounds alleging 10 additional errors. Finding no reversible error, we affirm. However, we accept the State's concession on the excessive sentence issue and remand to the trial court for resentencing.

FACTS

Although the facts were disputed at trial, the evidence shows the following. In 2007, John Patrick Blackmon lived in a three-bedroom home with his wife, Jenifer Blackmon,¹ and their three children, IB, ZB, and BB.

Blackmon's oldest daughter, IB, reported that sometime before August 2008, he began sexually abusing her when she was 13 years old. Blackmon put his hand down IB's shorts and began rubbing her after the family had gone to bed.

IB testified that sometimes the abuse would occur three to four times per week. She said he performed oral sex on her, placed his penis between her butt cheeks, exposed her to pornography, had her stimulate him, and asked to shave her pubic hair. IB testified that this abuse happened in Blackmon's bedroom while the two watched movies. He locked the door to prevent the other children from coming into the room. Blackmon covered the gap between the door frame and wall with a pillow or a towel to prevent anyone from peering into the room. IB testified the abuse happened when her mother was at work or asleep. On occasion, IB initiated the sexual contact because it made her feel closer to Blackmon.

The abuse stopped at the start of IB's sophomore year of high school. She told Blackmon she wanted a normal relationship with him without the sexual activity. He agreed, but their relationship became contentious. For example, Blackmon revoked her privileges and threatened to stop her from playing basketball when she violated a ruleagainst texting friends on the "no contact" list. Report of Proceedings (RP) (July 5, 2013) at 516-17. IB described their relationship as "[v]ery rocky" and "argumentative." RP (July 5, 2013) at 392.

Soon afterwards, IB disclosed the abuse to her friend, MF. MF reported the abuse to her mother, who then reported it to her husband, Mark Froland, an Edmonds police officer. Officer Froland talked to IB and reported the abuse allegation to Marysville Police Detective Cori Shackleton.

Blackmon was arrested and charged with various counts of molestation and child rape involving IB. Two trials resulted in mistrials when the juries deadlocked. The State refiled charges against Blackmon by fifth amended information with two counts of second degree child molestation, one count of third degree rape of a child, and two counts of third degree child molestation. The jury convicted Blackmon as charged.

At sentencing, the trial court imposed 116 months on each count of second degree child molestation (counts 1 and 2), 60 months on one count of third degree rape of a child (count 3), and 60 months on each count of third degree child molestation (counts 4 and 5). Counts 1 through 4 ran concurrent to each other and consecutive on count 5, resulting in a total sentence of 176 months. The court also ordered 36 months of community custody for each of the five counts. It indicated, "The combined term of community custody and confinement shall not exceed the statutory maximum." Blackmon appeals.

ANALYSIS

Rule of Completeness—Evidence Rule 106

At trial, the State read to the jury select portions from the 79-page transcript of Blackmon's prior trial testimony.² Blackmon argues the trial court erred by denying his request to admit remaining portions of his prior trial testimony. He claims this error violates ER 106 and the state and federal constitutions.³ Under ER 106, the court admitted eight of Blackmon's proposed transcript excerpts and excluded five.

ER 106 allows a party to supplement portions of a writing or recorded statement offered by an adverse party with other relevant portions as fairness requires: "When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the party at that time to introduce any other part, or any other writing or recorded statement, which ought in fairness to be considered contemporaneously with it."

The rule's purpose is "to protect against the misleading impression that might otherwise result from hearing or reading materials out of context." 5D KARL B. TEGLAND, WASHINGTON PRACTICE: COURTROOM HANDBOOK ON EVIDENCE § 106:1 (2013-2014). "The rule is not, however, a vehicle for the wholesale introduction of otherwise inadmissible evidence to rebut the writing or recording or to benefit the opponent in some other way. Material in the writing or recording that is irrelevant or privileged remains inadmissible." 5D TEGLAND, supra, § 106:2. Once relevance has beenestablished, the court determines whether the offered portions of the statement are necessary to (1) explain the admitted evidence, (2) place the admitted portions in context, (3) avoid misleading the trier of fact, and (4) ensure a fair and impartial understanding of the evidence. State v. Larry, 108 Wn. App. 894, 910, 34 P.3d 241 (2001) (citing United States v. Velasco, 953 F.2d 1467, 1475 (7th Cir. 1992)). The completeness doctrine does not require introduction of portions of a statement that are neither explanatory of nor relevant to the admitted passages. United States v. Marin, 669 F.2d 73, 84 (2d Cir. 1982). The trial court's decision regarding admission of evidence is reviewed for abuse of discretion. State v. Simms, 151 Wn. App. 677, 692, 214 P.3d 919 (2009), aff'd 171 Wn.2d 244, 250 P.3d 107 (2011).

Blackmon argues that five excerpts were erroneously excluded. He claims the trial court erred by excluding his exculpatory testimony from the first trial where he denied committing the offenses. At trial, he argued that it is unfair to let the jury know he previously testified and leave them with the mistaken impression that he may have confessed to the offenses. He also argues the omission violates his rights under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and article I, sections 3, 9, and 22 of the Washington State Constitution. In the context of the rule of completeness, the State offered no prior testimony related to any confession or admission of guilt by Blackmon. Blackmon established no factual or legal basis to admit his exculpatory testimony denying the commission of the offenses under this limited rule. His defense trial strategy consistently challenged IB's credibility. Thus, heidentifies no prior trial testimony that "in fairness" requires the admission of his exculpatory statement. ER 106. His assertion relies on speculation not evidence.⁴

Our review of the record indicates the trial court properly exercised its discretion in excluding the remaining excerpts offered by Blackmon. These statements relate to (1) Blackmon's disapproval of anal sex as sodomy, (2) his education and military experience, (3) how he first met his wife, and (4) his offer to leave the house for a day during a police investigation. The court excluded these excerpts on various grounds, including irrelevant, duplicative, unnecessary for context and completeness, and not unfair. For example, Jenifer testified about how she met Blackmon and about his employment history. Officer Allen testified that Blackmon agreed to leave for the night during their investigation. Further, the court allowed Blackmon to present, in part, his personal views about anal sex with his wife. It properly excluded the excerpt in which Blackmon expressed his religious feelings about anal sex.

Given our dispositive resolution of the ER 106 issue, we need not address Blackmon's constitutional argument.⁵ In any event, a criminal defendant has no constitutional right to have irrelevant evidence admitted in his or her defense. See State v. Hudlow, 99 Wn.2d 1,15, 659 P.2d 514 (1983); State v. Rehak, 67 Wn. App. 157, 162, 834 P.2d 651 (1992). Further, evidentiary errors are generally not of a constitutional magnitude. State v. Grier, 168 Wn. App. 635, 643 n.16, 278 P.3d 225 (2012) (citing State v. Chase, 59 Wn. App. 501, 508, 799 P.2d 272 (1990)). Blackmon's ER 106 claims fail.

Opinion Testimony

Blackmon contends that two statements by officers at trial improperly commented on his guilt and violated his right to a jury trial.

Marysville Police Officer David Allen testified about what he observed when he first encountered IB. He testified, "I remember a very scared teenage girl who was sitting on the couch. She was all curled up into a ball and kind of something that we commonly associated with [a] defensive posture." RP (July 8, 2013) at 737.

Detective Cori Shackleton testified about how she became involved in the investigation. "I received a call from Mark Froland, who is an Edmonds officer, and he said that his daughter's friend had told his daughter that she had been molested by her father." RP (July 9, 2013) at 839.

No witness, lay or expert, may testify to the guilt of a defendant, whether by direct statement or inference. State v. Sanders, 66 Wn. App. 380, 387, 832 P.2d 1326 (1992). Such an opinion violates the defendant's right to a trial by an impartial jury and the right to have the jury make an independent evaluation of the facts. Sanders, 66 Wn. App. at 387.

Blackmon did not object to either statement at trial. The general rule is that appellate courts will not consider issues raised for...