State v. Edwards

• Decision Date: 23 October 2012
• Docket Number: No. 41054–1–II.,41054–1–II.
• Citation: 294 P.3d 708,171 Wash.App. 379
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent/Cross Appellant, v. Marcus K. EDWARDS, Appellant/Cross Respondent.

171 Wash.App. 379

294 P.3d 708

STATE of Washington, Respondent/Cross Appellant,

v.Marcus K. EDWARDS, Appellant/Cross Respondent.

No. 41054–1–II.

Court of Appeals of Washington,

Division 2.

July 17, 2012.

Publication Ordered Oct. 23, 2012.

Kimberley Ann Demarco, Kathleen Proctor, Pierce County Prosecutor's Office, Tacoma, WA, for Respondent.

Sheri Lynn Arnold, Attorney at Law, Tacoma, WA, for Appellant.

ARMSTRONG, J.

[171 Wash.App. 383]¶ 1 A jury convicted Marcus Edwards of two counts of first degree child molestation. The trial court vacated his conviction on count II because of insufficient evidence that it was a separate and distinct act of first degree child molestation. Edwards argues on appeal that the trial court violated his due process rights by not instructing the jury that the State was required to prove he acted with volition and that defense counsel ineffectively represented him by failing to request a volitional act instruction. Edwards also faults counsel for failing to (1) adequately advise him of plea options and sentencing consequences; (2) secure testimony of two defense witnesses; and (3) propose a lesser included offense jury instruction on fourth degree assault. We find no reversible error and affirm Edwards's conviction. We also reject the State's appeal of the trial court's ruling vacating Edwards's conviction on count II.

FACTS

¶ 2 In May 2003, Edwards moved in with Darnell Weathersby and Wendy Rollins in a three bedroom home. Rollins and Weathersby shared one bedroom, and Rollins's two children each had their own bedroom. Weathersby's two children also visited often and Edwards's son frequently stayed overnight on weekends. When the other children visited they slept in the Rollins's children's rooms, the girls in one room and the boys in another.

[171 Wash.App. 384]¶ 3 Edwards slept in the living room, usually on the couch and occasionally on the recliner. Edwards testified that a person standing in the kitchen could see the living room, as could someone standing in the hallway leading to the three bedrooms.

¶ 4 While Edwards was living with Rollins and Weathersby, K.G.¹ permitted her five-year-old daughter, A.G., to visit Edwards.² Edwards testified that A.G. visited 6 times at most, but A.G. recalled between 10 and 20 visits. K.G. testified that A.G. visited Edwards 1 or 2 times per month for 6 to 9 months.

¶ 5 A.G. testified that she slept in the boys' room or in the living room. She recalled that Edwards slept in a chair in the living room. A.G. testified that Edwards would come into the boys' room where she was sleeping at night and carry her out to the living room.

¶ 6 A.G. recalled the first molestation incident: Edwards sat A.G. in a chair, on his lap, in the living room, and then he removed her pajama bottoms and underwear. He then touched her vagina with his fingers. Edwards pressed on her vagina really hard with his hand. His hand would “move,” it felt “bad,” and “it hurt.” Report of Proceedings (RP) at 99. A.G. was awake during the touching; she could see his open eyes from the kitchen light. Afterwards, Edwards put A.G.'s clothes back on her. A.G. thought she was six years old at the time.

¶ 7 A.G. testified that Edwards touched her “front private” 10 to 15 times, but she provided details of only the first incident. RP at 101. She stated that Edwards always touched her in the same way—he would come pick her up while she was sleeping, take her to the chair, remove her clothes, and touch her with his hand.

¶ 8 Edwards testified that one night in late June 2003, he fell asleep after watching television in the living room recliner. While asleep, he had a vivid sexual dream about a woman. He stated that “I woke up, realized that my hands were—my hand was in [A.G.]'s underwear.” RP at 387. Edwards admitted that his hand was touching her vagina. A.G. was on top of Edwards but Edwards had no idea how she got there. He immediately removed his hand when he woke up.

¶ 9 Edwards called three character witnesses, including his church pastor. The defense also called a 13–year–old girl, A.G.'s best friend, who testified that A.G. told her that “mom's friend,” not Edwards, improperly touched her. RP at 321–22.

¶ 10 In July 2009, Edwards voluntarily went to the Lakewood Police Department and spoke with Detective Eggleston. At first, Edwards denied any sexual contact with A.G. About an hour-and-a-half into the interview, Edwards told Detective Eggleston that he had an erotic dream about an adult woman and woke up to find A.G. in his lap and his hand on her vagina.

Procedure

¶ 11 The State charged Edwards with four counts of first degree child molestation under RCW 9A.44.083. During the State's case-in-chief, defense counsel asked the trial court whether defense witnesses could provide telephonic testimony. The State objected and the trial court denied the request.

¶ 12 During closing argument, defense counsel argued that jury instruction 6, defining the elements of “sexual contact,” required the following:

touching of a sexual or intimate parts of a person done for the purpose [ ] of gratifying sexual desires of either party. It's more than just for sexual gratification, which even that is very questionable, since he is having a dream about an adult woman, but the reason, I submit to you, why the dream incident could not be the basis for a child molestation conviction as a matter of law is because it has to be purposeful.

RP at 475. Defense counsel further argued that:

[p]urposeful is intentional. I submit to you that, as a matter of law, you know, you cannot convict Mark based on the dream incident when he is touching, you know, improperly touching that area when he is dreaming. You know, how can you do something that is purposeful and intentional when you are dreaming? I submit to you, you cannot.

RP at 476. The jury convicted Edwards of counts I and II and acquitted him of counts III and IV.

¶ 13 Before sentencing, Edwards's trial counsel, Mark Watanabe, moved for a new trial, arguing that he had ineffectively represented Edwards by failing to obtain the testimony of two out-of-state witnesses. Watanabe submitted his own declaration that he had been ineffective and a declaration by attorney Andrew Schwarz attesting to Watanabe's deficient performance. Watanabe then withdrew and the court appointed John Hill, who also filed a supplemental motion for a new trial.

¶ 14 Hill provided declarations from (1) a post-conviction defense investigator; (2) Edwards's mother; (3) Edwards; (4) jurors; (5) out-of-state witnesses who did not testify at trial; and (6) consulting Pierce County defense attorneys; he also provided e-mail communications between Watanabe and Edwards, and Watanabe and deputy prosecutor Michelle Hyer. In addition, defense counsel submitted Edwards's polygraph results evaluating the truthfulness of his declaration that Watanabe provided ineffective assistance.

¶ 15 After a hearing, the trial court denied Edwards's motion for a new trial, finding that defense counsel provided effective representation. But the trial court vacated Edwards's conviction on count II because of insufficient evidence of juror unanimity.

ANALYSIS

Volitional Act

¶ 16 Edwards argues that the trial court violated his due process rights by failing to instruct the jury that the State had to prove beyond a reasonable doubt that his act was volitional.³ He further contends that the trial court shifted the burden to him to prove the act was involuntary. The State responds that Edwards waived the issue because, he did not request a volitional act jury instruction.

¶ 17 Generally, a party who fails to object to jury instructions below waives a claim of the instructional error on appeal. RAP 2.5(a); State v. Schaler, 169 Wash.2d 274, 282, 236 P.3d 858 (2010). But a defendant does not waive a manifest constitutional error by failing to object below. RAP 2.5(a)(3); State v. Walsh, 143 Wash.2d 1, 7, 17 P.3d 591 (2001). We review a claim of manifest constitutional error de novo. State v. Drum, 168 Wash.2d 23, 31, 225 P.3d 237 (2010). Thus, Edwards must demonstrate, that (1) the error is manifest and (2) is of constitutional dimension. RAP 2.5(a); State v. O'Hara, 167 Wash.2d 91, 98, 217 P.3d 756 (2009). The claimed error is manifest if Edwards can show it had practical and identifiable consequences at trial that actually prejudiced him. O'Hara, 167 Wash.2d at 99, 217 P.3d 756. And we may subject a manifest constitutional error to a harmless error analysis. O'Hara, 167 Wash.2d at 98, 217 P.3d 756. Here, Edwards fails to demonstrate that the claimed error is manifest.

¶ 18 Due process principles are usually satisfied if the trial court instructs the jury on each element of the charge and that the State must prove each element beyond a reasonable doubt. State v. Scott, 110 Wash.2d 682, 690, 757 P.2d 492 (1988). Every crime must contain an actus reus and a mens rea. State v. Eaton, 168 Wash.2d 476, 480, 229 P.3d 704 (2010). The actus reus is the wrongful deed that is the physical component of a crime, while the mens rea is the state of. mind the State must prove that a defendant had when committing a crime. Eaton, 168 Wash.2d at 481, 229 P.3d 704. The State must prove a certain minimal mental element of volition to establish the actus reus:

Fundamental to our notion of an ordered society is that people are punished only for their own conduct. Where an individual has taken no volitional action, [he] is not generally subject to criminal liability as punishment would not serve to further any of the legitimate goals of the criminal law.

Eaton, 168 Wash.2d at 481–82, 229 P.3d 704 (citing State v. Utter, 4 Wash.App. 137, 139, 479 P.2d 946 (1971)).

¶ 19 Here, the trial court instructed the jury that:

A person commits the crime of child molestation in the first degree when the person has sexual contact with a child who is less than twelve years old, who is not married to the person, and who is at least thirty-six...