State v. Flook

• Decision Date: 11 July 2017
• Docket Number: 34220-4-III
• Court: Washington Court of Appeals
• Parties: STATE OF WASHINGTON, Respondent, v. ROGER WILLIAM FLOOK, Appellant.

STATE OF WASHINGTON, Respondent, v. ROGER WILLIAM FLOOK, Appellant.

No. 34220-4-III

Court of Appeals of Washington, Division 3

July 11, 2017

UNPUBLISHED OPINION

Fearing, C.J.

Roger Flook appeals on numerous grounds his convictions for child rape and child molestation. We agree with his contention that a law enforcement officer improperly vouched, during the officer's testimony, to the credibility of the victim and the lack of veracity of Flook. We remand for a new trial.

FACTS

On July 24, 2010, Roger William Flook married Martha Flook. Martha has two children from a prior marriage, A.S. and J.S. J.S suffers from a seizure disorder. When startled, J.S.'s muscles grow rigid, his body curls, and he places his arms behind his head.

In 2014, Martha and Roger Flook resided in Endicott. On June 6 2014, Martha and Roger, accompanied by A.S. and J.S attended a marriage seminar in Clarkston. The parents failed to properly plan for the trip. A.S. and J.S. lacked pajamas and bathing suits, and J.S. lacked his seizure medication.

During the Clarkston marriage seminar, all four members of the family stayed in one room with one king-size bed at a motel. They laid in bed in the following order: Roger, A.S., J.S Martha.

A consuming cold afflicted Martha Flook during the night of June 6. She struggled to sleep and her coughing, combined with J.S.' lack of medication, caused J.S. to suffer seizures. At an unidentified time, Martha arose from bed, sat in a chair near Roger, and remained in the chair for the remainder of the night. J.S. seized throughout the night.

A.S. began the night laying on her back. At some unidentified moment, A.S. felt something under her pants. The pressure under her clothes released, but, three to five seconds later, returned. She sensed a hand further down her pants. The hand retreated again. A.S. later identified the hand as Roger Flook's hand. Roger's hand slid inside her underwear a third time. A.S. felt the hand "touch [her] area." Report of Proceedings (RP) at 115. After the hand retreated again, A.S. rolled onto her side and positioned her arm between her legs. Roger grabbed her arm and whispered "come on." RP at 116. A.S. softly cried. When Roger asked her what was wrong, A.S. did not respond.

In August 2015, A.S. attended summer camp in Moscow, Idaho. On her last day at camp, A.S. disclosed, to C.S., a nine-year-old girl A.S. met at camp, the touching by Roger Flook in her private area. C.S. reported A.S.'s disclosure to C.S.'s mother. Aaron Sheridan, the father of both A.S. and J.S., resides in Pullman. After searching for Aaron Sheridan's location, C.S.'s mother contacted Sheridan and informed him of A.S.'s disclosure. Thereafter Sheridan informed Martha Flook of A.S.'s allegations.

Whitman County Sheriff Brett Myers conducted most of the investigation into A.S.'s allegations against Roger Flook. Myers interviewed both A.S. and Flook. When Myers asked Flook if he touched A.S.'s private parts, Flook denied any such touching. Flook explained that J.S. suffered from seizures that night and he reached across A.S. to prevent J.S. from flailing.

PROCEDURE

The State of Washington charged Roger Flook with one count of child molestation in the first degree and one count of child rape in the first degree. Before trial, Flook's attorney filed motions in limine to preclude, among other things, the State from mentioning Flook's criminal history, earlier time in prison, and use of controlled substances. The State responded that mention of Flook's earlier prison stay held relevance because Flook's release date from incarceration constituted an important event in A.S.'s life and a date from which A.S. measured other events.

A third motion in limine sought to preclude:

Any claims of conduct not directly related to the alleged incidents of June 6, 2014, including claims that the defendant talks about inappropriate things, showed internet images, including anime characters, used profanity, discussed finding a sex toy in [A.S.'] mother's drawer, that defendant spanked [A.S.] on her bottom, that defendant asked [A.S.] to sit on his lap in a car in the driveway of their home in Endicott, Washington, and the claim that the defendant has kissed [A.S.] on the neck.

Clerk's Papers (CP) at 10. Roger Flook based his third motion on ER 404. Flook argued that the conduct mentioned in the motion, assuming any occurred, happened after June 6 2014, and thus bore no probative value as to whether he committed the charged crimes. Flook contended the only purpose for testimony of such behavior would be to tag him as a bad person. The State argued the evidence demonstrated his lust toward A.S. and thus the trial court should admit the evidence under the second sentence of ER 404(b).

The trial court granted Roger Flook's motion to exclude evidence of drug use, Flook's time in prison, and his release date from prison. The trial court denied the motion to exclude testimony of other sexually inappropriate touching of A.S. by Flook. The trial court reserved ruling on the latter motion at the conclusion of oral argument and thus rendered no comments on the merits of the motion then. The trial court later entered a written order that declared:

Motion to Exclude Sexually Inappropriate Conduct Directed Toward [A.S.]

This motion is denied. The proffered evidence, if believed, has a strong tendency to demonstrate a lustful disposition toward the alleged victim. It also tends to show motive, intent, knowledge, and absence of mistake or accident.

CP at 39 (boldface omitted).

At trial, Whitman County Sheriff Brett Myers, who conducted the investigation of A.S.'s allegations, testified extensively. In response to a question about Flook's demeanor during Myers' first interview with him, Myers testified:

Mr. Flook, it was about three o'clock in the afternoon. Mr. Flook appeared to be very tired, possibly-possibly under the influence of a substance, rolled his eyes quite a bit, couldn't keep his eyes open sometimes, acted-it seemed like he had just been rolled out of bed almost and often times questions needed to be asked a couple of times in order to elicit an answer. Yeah-

RP at 51.

On cross-examination, defense counsel questioned Sheriff Brett Myers about inconsistencies in A.S.'s statement. Counsel also asked, "[w]ould you agree with me that girls are not always telling the truth?" RP at 60. The following colloquy then occurred:

MYERS: Are you talking about, in what context?

LEDGERWOOD [Defense Counsel]: When they make sexual abuse allegations.

MYERS: In by far and away the vast majority of the cases I have done they are telling-they're not making it up.

LEDGERWOOD: Are there cases where they are making it up?

MYERS: I've had one or two out of hundreds.

CP at 61.

The State, on redirect examination, elicited testimony from Sheriff Brett Myers regarding the veracity of the statements of A.S. and Roger Flook. Sheriff Myers gave the following testimony on redirect:

[The State]: Mr. Ledgerwood was asking you about experience in prior cases with girls who would make these things up and you indicated the vast majority were determined to be founded. As part of your training, in both general law enforcement and sexual abuse to identify signs of deception during an interview?

MYERS: Yes.

[The State]: Can you describe that briefly to the jury?

MYERS: Well, certainly any time that you are interviewing someone, just like establishing whether a person knows the truth from the untruth, or having some sort of grandiose statement. Sometimes what you do is you ask questions several different ways to make sure that what they're saying is consistent and then you also take into consideration their body language, their demeanor, to help determine whether or not a statement on its face value is true. In this particular case, all of her body language was consistent with someone, based on my training and experience that was telling the truth. There was nothing that was overly grandiose, so what I mean by that is sometimes when people are explaining something that is almost fantastical and unbelievable, then you start having to question is that really the way it is or when people describe things that are in a way that's much more in the a way we see things happen, then you start-you look at a statement different based on answers and then again, you come back around and ask different questions and you look to see if there's consistency and then compare that consistency with other statements that other witnesses might give down the road.

[The State]: So, during the course of the interview, whether it's a victim of sex or a witness or otherwise, you're looking for possible signs of deception?

MYERS: Yes.

[The State]: And you didn't see any or did you see any with A.S.?

LEDGERWOOD: Your Honor, the question has been asked and answered. He's really asking the witness, does he believe her or not.

[The State]: No, I'm asking whether he saw-it's an appropriate question.

JUDGE: Let's not talk over the top of each other gentlemen.

LEDGERWOOD: That's the province of the jury to decide if she's telling the truth or not and the question has been asked and answered. He was asked if he saw signs of deception and he answered that.

[The State]: Your Honor, he had not answered that question. He, and it is, he is not being asked whether he believed the witness or whether the witness was credible, just that did he observe any signs of deception when interviewing A.S.

JUDGE: I'll agree with the State. Go ahead.

[The State]: Did you observe any signs of deception in your interview with A.S.?

MYERS: No I did not.

RP 69-71.

[The State]: . . . Now, during your interview with Mr. Flook did you observe any signs of deception?

MYERS: What I would consider based on my

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