State v. Garrison
| Decision Date | 06 April 2015 |
| Docket Number | No. 71134-2-I,71134-2-I |
| Court | Washington Court of Appeals |
| Parties | STATE OF WASHINGTON, Respondent, v. KEVIN LEE GARRISON, Appellant. |
UNPUBLISHED OPINION
DWYER, J. — Kevin Lee Garrison was found guilty of child molestation in the second degree for touching the breasts of a sleeping 12-year-old girl. He was sentenced to life in prison as a persistent offender. On appeal, Garrison contends that (1) the trial court improperly admitted ER 404(b) evidence that he had touched the same victim on other occasions and that he had committed similar acts against another young girl approximately 10 years before, (2) the trial court's limiting instruction with respect to this ER 404(b) evidence was incorrect, and (3) he was improperly sentenced as a persistent offender because one of his prior convictions was comparable to a Washington class C felony, not a class B felony, and, therefore, should not have been included in his offender score or deemed to be a strike offense. Because Garrison does not establish an entitlement to relief on either the evidentiary or instructional issues, we affirm the conviction. However, because one of his prior convictions was improperly counted as a strike offense, we reverse the sentence imposed and remand for further proceedings.
A.W. was twelve years old and in sixth grade in December of 2011. She spent a significant amount of time at the home of her best friend, Sincerity, including spending the night there three or four times a week. Garrison was Sincerity's stepfather. A.W. considered Garrison and Sincerity's mother, Rosie Garrison, to be like family, and called them "Uncle Kevin" and "Aunt Rosie." Garrison, in turn, bought A.W. gifts and was kind to her.
Normally, when A.W. wanted to spend the night at the Garrisons' house, she would call her mother to ask permission. One night in December of 2011, however, it was Garrison who called A.W.'s mother to ask if A.W. could spend the night. A.W.'s mother gave permission, and spent part of the evening at the Garrisons' home herself, socializing with the Garrisons.
When A.W. spent the night at the Garrisons' house, she frequently shared Sincerity's bed, but also sometimes slept on the family's living room couch. After A.W.'s mother went home on the night in question, Garrison and Rosie went to bed and A.W. went to sleep on the couch. A.W. was wearing a shirt, bra, zip-up hooded sweatshirt, and jeans. Before going to sleep, A.W. zipped her sweatshirt all the way up.
Shortly before 5:00 in the morning, A.W. was awakened by the feeling of a hand rubbing and squeezing her breast underneath her bra. She opened her eyes and saw Garrison withdraw his hand from her chest and quickly walk back to his bedroom a few feet away. A.W. discovered that her sweatshirt was unzipped, the neckline of her shirt was pulled down below her bra, and the cup ofher bra was folded inwards, exposing part of her breast and nipple. A.W. fixed her clothes and turned to face the back of the couch, with her back toward Garrison's open bedroom doorway, hoping that Garrison would think she was still sleeping. After a minute or two, Garrison came out of his bedroom and went to the kitchen. Garrison returned to his bedroom soon thereafter. A.W. waited a few minutes in the hope that he would fall asleep, then fled to Sincerety's room.
Upon entering Sincerety's room, A.W. climbed into the far side of Sincerity's bed, placing Sincerity between her and the doorway. Fearing that Sincerety would not believe her, she did not tell her what had happened. A.W. forced herself to go back to sleep.
Upon arising for the day, and believing that Garrison would be suspicious if she acted unusually, A.W. acted as if nothing was wrong. Despite her reluctance to get into a car with him, as was customary, A.W. accepted a ride home from Garrison. Garrison said nothing during the short ride. When she arrived home, A.W. found that her mother had already left for work and her aunt was still asleep. A.W. decided to go to school but tried to reach her mother throughout the day. When her mother finally arrived home that night, a tearful A.W. met her in the driveway and told her what had happened the night before. The next day, A.W.'s mother took her to the police station to report what Garrison had done.
The State charged Garrison with child molestation in the second degree. During pretrial motions, the State requested a ruling on the admissibility of evidence of prior sexual misconduct by Garrison against both A.W. and a priorvictim, A.F. Some of the evidence proffered by the State was that, while sleeping on the Garrisons' couch a month or two before the charged incident, A.W. had awakened to Garrison rubbing her upper thigh over her clothes. When she moved her leg, Garrison stopped. Because she trusted Garrison not to do anything inappropriate, A.W. did not think it was serious and went back to sleep.
The State also sought to admit the testimony of A.W. that, on several occasions prior to December of 2011, she had awoken on the Garrisons' couch with her shirt and bra in disarray, but did not know how that had occurred. This only happened when A.W. slept on the couch, and never when she slept in Sincerity's bed.
The State also sought to admit evidence that Garrison had previously molested another young girl, A.F. During the summer of 2000, A.F. was twelve years old and had just finished sixth grade. Her mother was dating Garrison, who lived next door. Like A.W., A.F. was more physically developed than most girls her age. Garrison was kind to A.F., and she began to view him as a father-or uncle-like figure.
One night, A.F. was awakened by Garrison rubbing her head and shoulders. Though A.F. found it awkward, she did not mention this to anyone at the time. On a later occasion, A.F. awoke to find Garrison touching her back with his hands under her clothes. He then moved his hands to fondle her breast and touch her vaginal area. A.F. pretended that she was asleep throughout the incident.
A.F. did not immediately report the molestation both because she did notwant to hurt her mother and because she feared she would not be believed. In the ensuing months, A.F. was awakened more than 20 times by Garrison fondling her. The molestation escalated to more serious abuse that occurred while A.F. was awake, including incidents of vaginal penetration with Garrison's fingers and with a dildo. A.F. eventually disclosed the abuse, and Garrison was charged with rape of a child and child molestation in 2004 but, pursuant to a plea agreement, was allowed to enter an Alford1 plea to assault in the second degree.
The State argued that evidence of the prior misconduct with A.W. was admissible for the purposes of demonstrating lustful disposition, res gestae, and absence of mistake, and that testimony concerning the prior misconduct with A.F. was admissible for the purposes of demonstrating a common scheme or plan and the absence of mistake. The State indicated that it believed lustful disposition and common scheme or plan were essentially the same concept when considering prior misconduct against the victim of the current offense. The State's argument regarding the absence of mistake was that, because evidence of a common scheme or plan was relevant to prove that the charged act had in fact occurred, the evidence would contradict Garrison's expected claim that A.W. was mistaken in her belief that Garrison had touched her and had instead simply dreamed about it.
The trial court ruled that testimony about the thigh-touching incident with A.W. and the incidents of touching while A.F. was asleep were admissible. The court found that the incidents involving A.W. awakening with her clothing indisarray were insufficiently connected to any action by Garrison for their relevance to outweigh their prejudice, and excluded evidence of those incidents. The court also found that evidence of the incidents of more serious molestation of A.F., after Garrison had progressed from fondling A.F. while she slept to molesting her while she was awake, was not admissible. The trial court reasoned that this evidence was not helpful to the jury because the incidents described were less similar to the conduct alleged by A.W. than were the incidents that occurred when A.F. was asleep. The trial court did not explicitly state for which purposes evidence of the thigh-touching incident with A.W. was admissible, but did state that evidence of the incidents of molestation while A.F. was asleep were admissible as evidence of a common scheme or plan and the absence of mistake.
The parties later submitted proposed limiting instructions setting out "common scheme or plan" and "absence of mistake or accident" as permissible purposes for A.F.'s testimony in accordance with the court's ruling. The State's proposed instruction set out "lustful disposition" and "absence of mistake" as permissible purposes for A.W.'s testimony concerning prior misconduct. However, Garrison's proposed instruction listed "absence of mistake or accident" as the only permissible purpose for this testimony.
Garrison's counsel argued that the term lustful disposition was unduly prejudicial and that the term common scheme or plan could be substituted for it. The trial court agreed with Garrison's counsel and clarified that, in any case, its pretrial ruling had admitted the prior misconduct with A.W. as evidence of acommon scheme or plan and lack of accident, similar to the evidence of prior misconduct with A.F. The trial court crafted and gave the jury its own instruction. Instead of differentiating between the prior misconduct against A.W. and A.F., this instruction simply stated that testimony concerning the alleged prior sexual misconduct could be considered in evaluating whether the evidence demonstrated a common scheme or plan or absence of mistake or accident.
The jury found Garrison guilty as charged. At sentencing, the trial court found Garrison to be a persistent...
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