State v. Boehning

• Decision Date: 17 May 2005
• Docket Number: No. 31469-0-II.,31469-0-II.
• Citation: 127 Wn. App. 511,127 Wash. App. 511,111 P.3d 899
• Parties: STATE of Washington, Respondent, v. Randy Allen BOEHNING, Appellant.
• Court: Washington Court of Appeals

111 P.3d 899

127 Wn. App. 511

127 Wash. App. 511

STATE of Washington, Respondent, v. Randy Allen BOEHNING, Appellant.

No. 31469-0-II.

Court of Appeals of Washington, Division 2.

May 17, 2005.

David Schultz, Attorney at Law, Camas, WA, for Appellant.

Scott Douglas Jackson, Attorney at Law, Vancouver, WA, for Respondent.

BRIDGEWATER, J.

¶ 1 Randy Allen Boehning appeals his conviction of three counts of first degree child molestation. We hold that prosecutorial misconduct occurred when the prosecutor referred to three counts of rape that had been dismissed while suggesting that the victim's statements supported those counts but she was not "comfortable" enough to testify about those rapes at trial. 3B Report of Proceedings (RP) (Oct. 21, 2003) at 254. This argument appealed to the passion and prejudice of the jury, was flagrant, and called on the jury to determine guilt on improper grounds.

¶ 2 The prosecutor also impermissibly bolstered the victim's credibility by arguing that her prior statements, which were (1) plainly hearsay, (2) not admissible (the victim was 10 years old at the time of the hearsay so chapter 9A.44 RCW was not implicated), and (3) not admitted, were consistent with her trial testimony. The prosecutor based this argument on the fact that the defense counsel did not impeach the victim with any prior inconsistent statements to witnesses. The State's claim that this is a reasonable inference is wrong; this argument also constituted prosecutorial misconduct.

¶ 3 During trial, the prosecutor also asked Boehning whether the victim had "made [it all] up." 3B RP at 219. This placed Boehning in a position where he had to challenge the truthfulness of the child's testimony. This is flagrant prosecutorial misconduct and highly prejudicial in a case where there were no witnesses or physical evidence to corroborate the victim's testimony.

¶ 4 We reverse and remand for a new trial.

FACTS

¶ 5 Randy and Pam Boehning provided foster care in their Vancouver, Washington home. H.R., a female child born February 15, 1992, lived with the Boehnings from October 6, 1997, to March 24, 1998, when she returned to her family's care.

¶ 6 In the fall of 2000, H.R. was again placed in foster care. H.R. lived with Diana Tomlinson in Damascus, Oregon. During that time, H.R. disclosed to Tomlinson that her previous foster father had made her do "nasty" things. 2 Report of Proceedings (RP) (October 20, 2003) at 47. Tomlinson reported H.R.'s statements to her caseworker. No action was taken until February 2003, when H.R. disclosed to her family's social worker, Carey Price, that she had been sexually abused. Price then reported the incident to police in Washington and Oregon.

¶ 7 On February 27, 2003, Detective Aaron Holladay of the Vancouver Police Department interviewed H.R. Detective Holladay and Sergeant Rod Trumph then contacted the Boehnings at their residence. Boehning was subsequently charged with three counts of first degree rape of a child or, in the alternative, three alternative counts of first degree child molestation.

¶ 8 A jury trial commenced on October 20, 2003. H.R., then 11 years old, testified that while she lived with the Boehnings, Boehning had pulled her into the bathroom and removed her pants and underwear. Boehning removed his own pants, kissed her with an open mouth, and laid her down on the floor. Boehning then rubbed his "dick" in a circle on her vagina, and he told her not to tell anyone because it was a "naughty thing." 2 RP at 78, 80. H.R. further testified that this had occurred more than twice when Mrs. Boehning was not home.

¶ 9 During Boehning's cross-examination of H.R., he asked her about the abuse and then questioned, "Did you ever ride in a car besides riding to their [the Boehning's] house?" 2 RP at 95. The State objected, and the court ordered defense counsel to "focus on the relevant events." 2 RP at 96.

¶ 10 Tomlinson, Price, and Detective Holladay each testified that H.R. had disclosed the abuse to them; Boehning did not object to their testimony. Tomlinson testified that H.R. told her that she was scared and that "[s]omething bad" had happened to her in foster care. 2 RP at 46. H.R then disclosed that, "when she was in foster care before [,]... the foster father made her do nasty things." 2 RP at 47 (emphasis added). The prosecutor then asked Tomlinson whether H.R. had indicated why she was still scared, and Tomlinson replied:

She—the way I took it is that, you know, she felt like maybe this person could still come after her, still make her do something, or this person would still do to her, you know.

And I did ask her, [h]ave you ever told anybody? [Y]ou know. And then me being a foster parent, I knew how important it was that she was telling me the truth.

2 RP at 47 (emphasis added).

¶ 11 Price testified that while he was counseling H.R. and her family, H.R. disclosed that she had been sexually abused. The prosecutor then asked Price, "So you had some information about disclosure of sexual abuse from [H.R.] ... [w]hat did you do with that information?" 3A RP (Oct. 21, 2003) at 110-11. Price responded that she had reported the disclosure to the police.

¶ 12 Detective Holladay testified that he interviewed H.R. after receiving a Child Protective Services' referral. H.R. told him that she did not know her abuser's name but that he had a "black beard and black short hair." 3A RP at 141 (emphasis added). Detective Holliday stated that this information was important to his investigation because Boehning had a short, black beard, and it helped him connect Boehning with the person H.R. had described.

¶ 13 In addition, Detective Holladay opined that, based on his prior training in child sex abuse cases and experience working with sexually abused children, it is common for children to delay reporting sexual abuse because they may be experiencing embarrassment, guilt, and shame. He further stated that children might delay reporting abuse because they do not realize that "something that's happening to them is a wrong event... until they get older." 3A RP at 134. Boehning objected to Detective Holladay's testimony on the grounds that Detective Holladay was not qualified to proffer expert testimony about delayed disclosure; the court overruled the objection.

¶ 14 Boehning testified on his own behalf. He denied sexually abusing H.R., and he presented witnesses who testified that he had no opportunity to be alone with H.R. because of his demanding work schedule. During cross-examination, the prosecutor asked Boehning whether H.R. would have a reason to be "upset" with him, to which he replied "no." 3B RP (Oct. 21, 2003) at 217. The prosecutor then asked, "So what you would say is that this is a little girl who has no reason to be mad at you, has come forward and made this up for no reason at all[?]" 3B RP at 219 (emphasis added). Boehning responded that it was "possible." 3B RP at 219. Boehning did not object to the State's questioning.

¶ 15 At the close of the evidence, the State dismissed the three first degree rape charges and amended the information to include only the three first degree molestation charges. During closing arguments, the prosecutor stated that H.R. was not able to "talk with this group of strangers as well as she was able to do it one-on-one in the past" and that there were "some other charges, those charges aren't present anymore because she didn't want to talk about this as much as she was willing to talk about it before." 3B RP at 245 (emphasis added).

¶ 16 The prosecutor further argued:

Is open court—you know, just think about this common sense, common experience, is open court going to be the best place to gather information from a child? Or is it going to be in a place where a child might feel a little safer? ... And so it's reasonable that this child might have gone a little farther in discussing what happened to her in a safer environment.

3B RP at 261 (emphasis added).

¶ 17 Additionally, the prosecutor argued that, because Boehning had failed to establish that H.R.'s statements about the abuse to Tomlinson, Price, and Detective Holladay were inconsistent with her testimony at trial, the jury could infer that each of H.R.'s statements was consistent and that she was a credible witness. The prosecutor also commented:

One thing the State submits that you should give a lot of time thinking about ... is to think about why does anyone ever fabricate anything. Because if you don't have an abiding belief in [H.R.], that means she made something up. Well, why would [H.R.] make this up?"

3B RP at 240 (emphasis added). Boehning did not object to the prosecutor's closing arguments.

¶ 18 The jury convicted Boehning of all three counts of first degree child molestation.

ANALYSIS

Prosecutorial Misconduct

¶ 19 We begin our discussion with an obvious truism: Every prosecutor is a quasi-judicial officer of the court, charged with the duty of insuring that an accused receives a fair trial. State v. Coles, 28 Wash.App. 563, 573, 625 P.2d 713, review denied, 95 Wash.2d 1024 (1981); State v. Huson, 73 Wash.2d 660, 663, 440 P.2d 192 (1968), cert. denied, 393 U.S. 1096, 89 S.Ct. 886, 21 L.Ed.2d 787 (1969). We hold that the prosecutor's misconduct in this case violated that duty, both in the closing argument and in the presentation of evidence.

¶ 20 In order to establish prosecutorial misconduct, Boehning must show that the prosecutor's conduct was improper and prejudiced his right to a fair trial. State v. Dhaliwal, 150 Wash.2d 559, 578, 79 P.3d 432 (2003). Prejudice is established where "`there is a substantial likelihood the instances of misconduct affected the jury's verdict.'" Dhaliwal, 150 Wash.2d at 578, 79 P.3d 432 (quoting State v. Pirtle, 127 Wash.2d 628, 672, 904 P.2d 245 (1995), cert. denied, 518 U.S. 1026, 116 S.Ct. 2568, 135 L.Ed.2d 1084 (1996)).

¶ 21 Boehning did not object to the prosecutor's questioning and arguments below. A defendant...