State v. Corbett

• Decision Date: 16 November 2010
• Docket Number: No. 39147-3-II.,39147-3-II.
• Citation: 242 P.3d 52,158 Wash.App. 576
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Edwin David CORBETT, Appellant.

242 P.3d 52

158 Wash.App. 576

STATE of Washington, Respondent,

v.Edwin David CORBETT, Appellant.

No. 39147-3-II.

Court of Appeals of Washington, Division 2.

Nov. 16, 2010.

Lise Ellner, Attorney at Law, Vashon, WA, for Appellant.

Thomas Charles Roberts, Attorney at Law, Tacoma, WA, for Respondent.

QUINN-BRINTNALL, J.

¶ 1 A jury found Edwin Corbett guilty of four counts of first degree child rape. Corbett appeals, asserting that (1) the trial court improperly limited his cross-examination of a witness, (2) sufficient evidence does not support three of his convictions, (3) the jury instructions failed to protect his rights to be free from double jeopardy and to receive unanimous jury verdicts, (4) the prosecutor committed misconduct during closing arguments, and (5) the sentencing court imposed an unlawful prohibition on his contact with all minors, including his own biological children. We affirm because (1) Corbett did not provide sufficient argument related to any allegedly erroneous limitations on his cross-examination of a witness; (2) sufficient evidence supports all his convictions; (3) the jury instructions were proper and did not prejudice Corbett's trial; (4) the prosecutor did not commit misconduct; and (5) the sentencing condition prohibiting contact with all minor children, including Corbett's own biological children, is a valid crime-related prohibition that does not unduly burden his fundamental parenting rights.

FACTS

¶ 2 In January 2005, Kyla O. and Corbett moved into a North Tacoma, Washington home along with Kyla O.'s twochildren from a previous marriage. Kyla O. shared custody with her ex-husband of her then six-and-a-half-year-old daughter, J.O., and her then three-and-a-half-year-old son, D.O. Kyla O. and Corbett married in March 2005. On July 31, 2005, Corbett learned that Kyla O. planned to leave him, a struggle ensued, and Corbett assaulted Kyla O.¹ Shortly thereafter, Kyla O. permanently moved out of the house and ended her relationship with Corbett, though they are still married. Kyla O.and her children have had no contact with Corbett since 2005 other than during court proceedings.

¶ 3 When they lived together, Kyla O. worked and provided for the family while Corbett took care of the children. Kyla O.'s night work schedule and J.O.'s school schedule were such that on most days the two spent minimal time together. Accordingly, Corbett served as the primary caregiver for Kyla O.'s children when they were not with their father, including playing with them, disciplining them, and putting them to bed. Kyla O. knew that Corbett gave the children karate lessons and sometimes played a game called "open your mouth and close your eyes" involving candy suckers. 3 Report of Proceedings (RP) at 281.

¶ 4 At trial, Kyla O. testified that in late October 2005, J.O. spontaneously told her that Corbett's Tae Kwon Do lessons used to involve

"sit[ting] on the floor and clos[ing] our eyes and open[ing] our mouth[s]. It was supposed to be like for relaxation, but he would stick his penis ^[[[² in my mouth, and I know that because even though he told me to close my eyes all the way, I would keep them cracked open, and I saw what he was doing."

3 RP at 304.³ J.O. did not want to report the crime to the police.

¶ 5 Over the next year-and-a-half, Kyla O. periodically asked J.O. questions such as, "[I]s there anything you need to talk about?" so that J.O. knew that she could come to Kyla O. when she (J.O.) was ready to talk about the abuse. 3 RP at 310. Eventually, J.O. told Kyla O. that Corbett had put his penis in her mouth several times and that, during one incident, he put whipped cream on it. J.O. also told Kyla O. that Corbett had threatened to harm her family if she told anyone about the abuse, but J.O. testified at trial that Corbett never threatened her.

¶ 6 Eventually, J.O. told several of her friends, including her best friend, C.F., about the abuse. Around September 2007, J.O. told C.F.'s father, Chad F., about the abuse. Chad F. conveyed the information to J.O.'s father, who in turn contacted the police and obtained counseling for J.O.

¶ 7 On November 26, 2007, the State charged Corbett with four separate counts of first degree child rape. An amended information specified that all four counts related to incidents that had occurred between January 1, 2005, and August 31, 2005.⁴

¶ 8 At trial, J.O. testified about several different instances where Corbett put his penis into her mouth during different games that required her to keep her eyes closed. Multiple witnesses testified about details of the abuse that J.O. had disclosed to them over the years.

¶ 9 J.O. testified that on two separate occasions, Corbett put a "soft thing" in her mouth as part of a "candy taste game"; the "candy taste game" consisted of closing her eyes, identifying two different candies by taste, and receiving the candies as a reward. 3 RP at 395, 400, 408. She also testifiedthat the "soft thing" Corbett placed in her mouth both times felt like the same object, felt "like regular skin," "didn't really have any flavor," did not have a fingernail, and that she had trouble keeping her mouth around it because "it was big and everything." 3 RP at 400-01. When she had to identify the "soft thing" as part of the candy game, J.O. testified that she did not " want to answer anything weird," so she lied and said it was a "sucker." 3 RP at 403. J.O. testified that after the games some of the candies that she received had "no sign of wetness" or were "completely dry." 3 RP at 404, 410. At trial, J.O. stated that she believed Corbett had put his "privatearea" ⁵ in her mouth because the soft thing was too big to be a finger, too small to be "his foot or anything like that," and because, when she sat on a toilet during the candy taste games, her head was at eye level with his private area. 3 RP at 406. J.O. also testified that both candy taste games where Corbett put the "soft thing" in her mouth were played in a bathroom.

¶ 10 J.O. also testified about karate lessons that Corbett gave her to teach her how to concentrate. During the karate lesson, J.O. put headphones on to listen to music, closed her eyes, and had to try to block out the music sounds to learn how to focus. Corbett would reward J.O. by placing frosting on his finger and then placing it in her mouth. J.O. testified that during one karate lesson, Corbett put the same "soft thing" that he had used during the candy game, with frosting on it, in her mouth. At trial, J.O. also stated that, during her final karate lesson which took place in a bedroom, Corbett taped cotton balls over her eyes, but that she could see under the cotton balls as Corbett put his penis into her mouth. J.O. testified that the way Corbett's penis felt in her mouth during the final karate lesson was the same way the "soft thing" felt in the other abuse instances that she had described.

¶ 11 After the State rested, Corbett moved to dismiss three of the four counts for lack of sufficient evidence.Specifically, Corbett argued that J.O. had not identified "with any certainty what was in her mouth on three of the four occasions which this case has been narrowed down to." 6 RP at 719. The trial court denied the motion.

¶ 12 Corbett then testified in his defense. Corbett admitted that he played candy games with the children "all the time," where he simply put candy in both children's mouths, without any guessing involved, to end their constant fights over particular pieces of candy. 6 RP at 775. He claimed that he had the children shut their eyes because D.O. worried about getting "cooties" from candy that had been in his sister's mouth. 6 RP at 775. Corbett denied giving the children any karate lessons because he felt they were not "mentally prepared" for karate, but he testified that he wrestled with them and showed them some moves. 6 RP at 777. Corbett denied that any sexual misconduct or touching occurred between J.O. and him.

¶ 13 The trial court instructed the jury, giving four identical "to convict" instructions.⁶ The trial court also gave a unanimity instruction ⁷ and an instruction stating, "A separatecrime is charged in each count," ⁸ both of which the State and Corbett proposed.⁹ Clerk's Papers (CP) at 34.

¶ 14 On February 19, 2009, the jury returned guilty verdicts on all four counts. On April 17, the trial court imposed four concurrent sentences of 318 months to life confinement and placed Corbett under community custody for life. Corbett had an offender score of nine and no prior criminal history. Additionally, the sentencing court imposed 26 conditions on Corbett's community custody, including two that he challenges in this appeal. Condition 16 states, "Do not initiate or prolong physical contact with children under the age of 18 for any reason." CP at 115. Condition 25 states, "No contact with any minors without prior approval of the [Department of Corrections/Community Corrections Officer (DOC/CCO) ] and Sexual Deviancy Treatment Provider." CP at 116. Corbett timely appeals.

ANALYSIS

Limiting Cross-Examination

¶ 15 Corbett includes the following assignment of error in his brief: "Appellant was denied due process when the trial court erred by limiting defense cross-examination of a state's witness." Br. of Appellant at 1. But Corbett provides no argument or explanation of this assigned error anywhere in his brief. Without argument or authority to support it, we cannot address Corbett's assignment of error. RAP 10.3(a)(6) (appellate brief should contain argument supporting issues presented for review, citations to legal authority, and references to relevant parts of the record);State v. Thomas, 150 Wash.2d 821, 874, 83 P.3d 970 (2004) (citing Smith v. King, 106 Wash.2d 443, 451-52, 722 P.2d 796 (1986)).

Sufficiency of Evidence

¶ 16 Corbett next challenges the sufficiency of evidence supporting three of his four convictions. He bases his appeal on (1) J.O.'s inability to identify what he put in her mouth...