State v. Gaston

• Decision Date: 02 February 2016
• Docket Number: No. 32723-0-III,32723-0-III
• Court: Washington Court of Appeals
• Parties: STATE OF WASHINGTON, Respondent, v. DENNIS NEAL GASTON, Appellant.

STATE OF WASHINGTON, Respondent, v. DENNIS NEAL GASTON, Appellant.

No. 32723-0-III

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE

February 2, 2016

UNPUBLISHED OPINION

FEARING, J. — Dennis Gaston appeals his conviction for child molestation in the second degree on numerous evidentiary grounds. He also contends the State committed misconduct during its closing statement. We hold that the trial court committed harmful evidentiary error by admitting a statement uttered by Gaston during a police interview to the effect that he suffered from "urges." We reverse his conviction and remand for a new trial.

FACTS

On an unidentified day in the spring of 2013, J.W., a minor, rode his bicycle from his mother's house to his grandmother's residence in picturesque Goldendale. While journeying across town, J.W. stopped when he saw an adult family friend, Dennis Gaston, in the latter's driveway. J.W. parked his bicycle in Gaston's driveway and walked to the carport where Gaston stood. The two conversed about cars, whether J.W. had a girlfriend, and whether J.W. engaged in sex with a girl. According to J.W., Gaston reached down J.W.'s loose blue jeans, underneath his underwear, and rubbed his penis for one to two minutes. Gaston asked J.W. if J.W. was getting hard. J.W. did not reply.

On August 29, 2013, Goldendale Police Officers Dwayne Matulovich and Leo Lucatero questioned Dennis Gaston at the Goldendale police station. The officers recorded and transcribed the interview. During the station interview, Gaston first claimed he only touched J.W. on the shoulder. Officer Lucatero prefaced the questioning with the kindly remarks:

Now, Dennis, the reason—the reason we're seriously looking at this is because we—we've been starting to see a pattern. And um, I'm gonna be straight up with you about that. I had a situation here in 2010 with (Norman Escari), and it was almost identical to this, almost identical. And uh, we had a person come in here, um, awhile back, I was advised that uh, was complaining about um, uh, something to do with (B.J. Fox), that you were trying to get with him or something like that, and uh, so we're—we're starting to see a pattern here, and we're—we're concerned more than anything. You know, if- if they're—if—if you've got a problem with something, Dennis. . . . You know, a lot of people have problems, you know, that are serious problems sometimes, sometimes not, but there—there—there are people out there that, you know, we all need help in certain areas in our life.

. . . .

You know, we all sometimes come up with these issues that we've got to deal with. If you've got anything like that, Dennis, you know, urn, let's—let's try to nip it in the bud, let's try—um, there—there is things that—that we can—we can do as—as law enforcement and through the legal system to help you with those problems if—if you've got those problems, but the—the reason, you know, this isn't just a knock and talk. The reason I—you know, last time I was able to just go talk to you is we're looking at this a little bit more on the serious side, because we're starting to see a pattern here. And we're having a hard time believing that this boy just came up and made this whole thing up.

Ex. 1 at 5-6.

Officer Leo Lucatero spoke to Dennis Gaston in the third person:

You know, but we're giving you an opportunity right now to, you know, tell us straight up, you know, if you—if something happened, you know, um, let's talk about it, let's deal with it. If Dennis has got any issues that he needs to deal with, let's—let's get you the assistance you need, if that's the case, get you the help you need. You know, we don't—we don't hate you. We're not trying to be mean or—or give you a hard time, but if there's—there's anything going on, Dennis, where something did happen, let's—let's lay our cards out on the table, let's—let's be straight up with it, and if we need to get Dennis some help, let-let-let's do that. Let's do that to, you know, prevent something like this from happening again, you know, if that's—if that's the case. But um, you know, I—I dealt with the (Norman) case and got all his information and talked to you, and then when I come in today, I hear about this and I hear the details, and uh, you know, Officer Matulovich read it too, you know, and uh, we uh, compared notes and—and they're—it's just—for me it's just too many similarities to just shrug it off and say they're coincidence. Um, you know, we need—we're—we need to get down to the bottom of this and figure out what happened. Now we're giving you the opportunity right now, Dennis, to—to be straight up with us if something did happen. Did something happen?

Ex. at 6.

Dennis Gaston then conceded that he touched J.W. on the leg and later confessed to touching the boy on the thigh. He denied putting his hand in J.W.'s pants. Officer Lucatero declined Gaston's offer to touch the officer's leg in order to illustrate how Gaston touched J.W.

During the police station interview, Officer Leo Lucatero next told Dennis Gaston that an adult man in the community reported to police that Gaston solicited sex from him. Ex. at 8-9. Lucatero added:

. . . But we're giving you an opportunity right now, Dennis, that, you know, if there's a problem, if you're dealing with something, you're having a hard time with something—maybe you have urges or something like that, um, let's help that. Let's help you, let's—let's help Dennis, let's get this taken care of, let's get it, you know, if you need, you know, treatment, anything like that. You know, a lot of people don't like to hear that, but, you know, it's not gonna get better, it's gonna get worse. You know, 'cause one situation was adult; now it's a kid, you know what I'm saying.

. . . .

[W]e're not here to say you're a bad person, Dennis, we're not. You know, I've known you for a long time. You're a good guy, you've always been real helpful. It's just that Dennis has some problems he needs to take care of. Let's do it now while it's in early stages, because you might even have it on your mind—you know, a lot of people—I've seen it over and over where people think, oh, this is a scary situation, you know, I'm just gonna say I didn't do it, and I just won't do it anymore. But then those urges take you over.

Ex. 1 at 10-11. During legal proceedings, Dennis Gaston contended that the two officers unfairly and repeatedly equated soliciting homosexual sex with pedophilia.

After Officer Leo Lucatero repeatedly told Dennis Gaston that the legal system could and would help him, Gaston discussed dealing with "urges." The admissibility attrial of Gaston's admission of urges is the principal issue on appeal. Gaston informed the two Goldendale officers:

I've had urges. I'm not—I'm not gonna lie to you, either one of you, 'cause I like both of you and respect both of you.

. . . .

I've had urges. I haven't acted on them like I wanted to, you know, 'cause I know it's wrong.

. . . .

. . . but I thought there is no help, nobody—I don't think anybody really cares.

. . . .

You know, and I feel like if I did do something bad, I'd wind up going to jail, I'd wind up, you know.

. . . .

. . . [I]t would ruin my marriage and everything else—that why I haven't.

. . . That's the only thing that probably stopped me, is . . .

. . . .

. . . the fact that I have a good wife.

. . . .

But, you know, I just feel like there's, you know, other than my world I work my ass off because—to keep from the urges.

. . .

Ex. 1 at 12-13.

Late in the interview, Dennis Gaston mentioned being sexually abused as a boy by an older male cousin. He then added:

Well, and I've wanted [help]. I've actually went to counselors before and—they don't help, you know.

Ex. 1 at 16. Officer Leo Lucatero then asked Gaston to disclose his interaction with J.W. during the spring day. Gaston would again only concede touching J.W.on the thigh. Lucatero stated he did not believe Gaston, because Gaston had already conceded "urges." Ex. 1 at 17. Lucatero claimed to look into Gaston's eyes and see pain in Gaston's soul. Gaston insisted that all he could remember is touching J.W. on the thigh.

PROCEDURE

The State of Washington charged Dennis Gaston with child molestation in the second degree. Dennis Gaston moved in limine, pursuant to ER 402 and 403, to exclude any mention regarding allegations of same sex sexual contact between him and adults. The trial court granted the motion.

The trial court conducted a CrR 3.5 hearing to determine the admissibility of Dennis Gaston's statements to the police during the August 29 interview. The State wished to read to the trial jury Gaston's comments about his urges. Dennis Gaston objected to the admission of these statements by referencing the order in limine previously entered by the trial court. Gaston added that his comments about urges constituted ER 404(b) evidence and was inadmissible for this additional reason. He contended that his comment did not amount to a confession of the crime, since he told the police officers that he did not act on his urges. In response to Gaston's ER 404(b) argument, the State did not contend that the testimony was admissible under one of the enumerated purposes in the evidence rule. This lack of a response is a significant factor in this appeal.

After hearing argument, the judge conducted an ER 403 balancing test on the record, saying:

It's a close call, and it's a potentially serious one. It's very probative, I think, of—of a state of mind that from the state's point of view might lead him to want to—solicit, or whatever the proper word is, some kind of physical contact with the child, which is what allegedly occurred in this case—not even for very many minutes, I don't think, but it was—contact that the state alleges was illegal, for the reasons that we all know.

It's also—very prejudicial. I don't know how a jury would not—view this in the light favorable to the state's theory. Except to the extent that in his statement he does say, "That's why I haven't done it." He

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