State v. Jackman, No. 76574-0.

• Court: United States State Supreme Court of Washington
• Writing for the Court: Fairhurst
• Citation: 132 P.3d 136,156 Wn.2d 736
• Parties: STATE of Washington, Petitioner, v. Ryan Alan JACKMAN, Respondent.
• Docket Number: No. 76574-0.
• Decision Date: 13 April 2006

132 P.3d 136 156 Wn.2d 736 STATE of Washington, Petitioner,
v.
Ryan Alan JACKMAN, Respondent. No. 76574-0. Supreme Court of Washington, En Banc. Argued October 27, 2005. Decided April 13, 2006.

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Randall Avery Sutton, Kitsap County Prosecutor's Office, Port Orchard, for Petitioner/Appellant.

Thomas E. Weaver, Attorney at Law, Bremerton, for Appellee/Respondent.

FAIRHURST, J.

¶ 1 The State seeks reversal of a Court of Appeals decision holding that a reference to minor victims' birth dates on 11 "to convict" jury instructions was prejudicial per se because the State was relieved of the burden of proving the element of the victims' ages. The defendant, Ryan Alan Jackman, cross-petitions for reversal of the court's denial of his double jeopardy claim. In accordance with our reasoning in State v. Levy, No. 75913-8, ___ Wash.2d ___, ___ P.3d ___, 2006 WL 975905 (Wash. Apr. 13, 2006), we hold that the references to the victims' birth dates were judicial comments on the evidence and we cannot affirmatively conclude that no prejudice resulted. We, therefore, affirm the Court of Appeals and remand for new trial. We do not decide whether the convictions for communication with a minor for immoral purposes and sexual exploitation of a minor violate double jeopardy.

I. FACTS

¶ 2 Jackman, a night manager at a bowling alley in Silverdale, Washington, approached B.L.E. and L.C.E. at the bowling alley and asked if they wanted to make some money by masturbating while he taped them with his video camera. Jackman, who was 20 years old at the time, told the boys he intended to sell the video and offered to pay them $150 each. He asked if they were 18 years old and told them to meet him at his apartment at 1:00 a.m. if they were interested in making the video. B.L.E. was 17 years old at that time and L.C.E. was 16.

¶ 3 B.L.E. and L.C.E. came to Jackman's apartment at 1:00 a.m., where Jackman gave them beer and they watched a pornographic video. Jackman asked them again if they were 18 and if they wanted to accept his offer, but he did not ask for their identification.¹ The two boys agreed to his offer, and Jackman filmed them while they masterbated. Afterward, Jackman paid each boy $150 and he asked B.L.E. to perform oral sex in exchange for $40, but B.L.E. declined.

¶ 4 Two other boys, M.T.F. and K.W.J., also went to Jackman's apartment on three occasions. At the time, M.T.F. and K.W.J. were both 17 years old. On the first visit, Jackman and the two boys only played video games. After that visit, Jackman spoke with M.T.F. at the bowling alley and explained about his plans to make and sell pornographic videos, offering M.T.F. $150 to masturbate for the camera. Jackman did not ask M.T.F.'s age, and M.T.F. declined the offer.

¶ 5 During the second visit, M.T.F., K.W.J., and Jackman played drinking games, the boys drank alcohol provided by Jackman, and K.W.J. "passed out." While K.W.J. was unconscious, Jackman asked M.T.F. several times if he was 18 and M.T.F. said no. Later that evening, Jackman left the video camera on while he and M.T.F. masterbated on the couch. M.T.F. and Jackman then taped K.W.J. while he was passed out. K.W.J. later said he was shocked to discover that he had been videotaped and did not know who had made the tape.

II. PROCEDURAL HISTORY

¶ 6 The State charged Jackman with three counts of sexual exploitation of a minor, three counts of communication with a minor for immoral purposes, four counts of furnishing liquor to a minor, one count of patronizing

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a juvenile prostitute, and one count of intercepting, recording, or divulging private communication.² At trial, the four boys testified as to their birth dates and the State presented corroborating evidence of the birth dates for B.L.E., L.C.E., and M.T.F.

¶ 7 The State proposed 12 "to convict" jury instructions, 11 of which are at issue in this case.³ The instructions designated the victims by their initials and included the victims' birth dates. Jackman did not object to the instructions at trial, and the court gave the instructions to the jury exactly as proposed by the State. During deliberations, the jury requested proof of age for L.C.E. to resolve a discrepancy between two of the jury instructions.⁴ Jackman was convicted on all counts.

¶ 8 Jackman appealed his conviction to the Court of Appeals, Division Two, which reversed and remanded for a new trial on all but one count. The court held that the trial court violated article IV, section 16 of the Washington State Constitution by instructing the jury on the minority of the victims.⁵ The court denied a claim Jackman raised for the first time on appeal that the convictions for communication with a minor for immoral purposes and exploitation of a minor violate the double jeopardy provisions of the constitutions of the United States and state of Washington. The State petitioned us for review of the Court of Appeals reversal based on the defective jury instructions. Jackman cross-petitioned for review of the denial of his double jeopardy claim. We granted review. State v. Jackman, 155 Wash.2d 1007, 122 P.3d 728 (2005).

III. ISSUES

A. Is a reference in a jury instruction to a victim's birth date a judicial comment when an element of the crime is the victim's minority? If so, what is the effect?

B. Did Jackman's convictions for sexual exploitation of a minor and communicating with a minor for immoral purposes violate principles of double jeopardy?

IV. ANALYSIS

A. Is a reference in a jury instruction to a victim's birth date a judicial comment when an element of the crime is the victim's minority? If so, what is the effect?

¶ 9 The State argues that inclusion of the victims' birth dates in 11 of the 12 "to convict"

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jury instructions did not constitute judicial comment on the evidence, but even if it was judicial comment, it is subject to harmless error analysis in accord with Neder v. United States, 527 U.S. 1, 19, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999). Jackman contends that the references to the birth dates were judicial comments, that a judicial comment on the evidence violates article IV, section 16 of the Washington Constitution,⁶ and that such errors are automatically prejudicial. Alternatively, he argues that judicial comments are "structural" errors and, therefore, cannot be subject to harmless error analysis. Jackman argues that Neder does not control the facts of this case because Neder dealt with the omission of an element from a jury instruction, whereas this case involves an affirmative comment on the evidence in the jury instruction. He further contends that a judicial comment is an error of constitutional magnitude that may be raised for the first time on appeal.

¶ 10 We considered the question of whether a judicial comment in a jury instruction is an error of constitutional magnitude in Levy and concluded that such claims are properly raised for the first time on appeal. Levy, No. 75913-8, slip op. at 9, ___ Wash.2d at ___, ___ P.3d ___. We also concluded that the test we apply to determine whether a judicial comment on the evidence in a jury instruction was prejudicial is that it is presumed to be prejudicial, and the burden is on the State to show that the defendant was not prejudiced, unless the record affirmatively shows that no prejudice could have resulted. Id. at 17, ___, ___ P.3d ___. In light of Levy, we analyze whether the references in this case constituted judicial comment on the evidence and, if so, whether the record affirmatively shows that no prejudice could have resulted.

1. Were the references to the victims' birth dates judicial comments on the evidence?

¶ 11 The State argues that the jury instructions were not judicial comment because the victims' ages were never in dispute. It reasons that any error resulting from stating their ages was, therefore, harmless. Jackman argues that the instructions were judicial comment because a critical element in the crimes at issue was whether the victims were minors. He claims the court informed the jury that the evidence regarding the victims' birth dates was unassailable and the jury never had to render a decision on those facts.

¶ 12 As noted in Levy, we review a challenged jury instruction de novo, within the context of the jury instructions as a whole. Levy, No. 75913-8, slip op. at 10, ___ Wash.2d at ___, ___ P.3d ___; State v. Pirtle, 127 Wash.2d 628, 656, 904 P.2d 245 (1995). A judge is prohibited by article IV, section 16 from "conveying to the jury his or her personal attitudes toward the merits of the case" or instructing a jury that "matters of fact have been established as a matter of law." State v. Becker, 132 Wash.2d 54, 64, 935 P.2d 1321 (1997). A judge need not expressly convey his or her personal feelings on an element of the offense; it is sufficient if they are merely implied. State v. Jacobsen, 78 Wash.2d 491, 495, 477 P.2d 1 (1970); State v. Lampshire, 74 Wash.2d 888, 892, 447 P.2d 727 (1968).

¶ 13 In contrast to the references in Levy, the instructions in this case do not differ meaningfully from the instruction in Becker. In Becker, the fundamental basis for the charge was the fact that drugs were being sold near a school. Becker, 132 Wash.2d at 58, 935 P.2d 1321. If the State could not prove that the youth program was a school, it had no case. Id. at 63, 935 P.2d 1321. We held that the explicit reference to the program as a school removed that fact from the jury's consideration. Id. at 66, 935 P.2d 1321. In this case, the fundamental basis for the offenses was the fact that the victims were minors. Absent that fact, Jackman's actions were not illegal. By stating the victims' birth dates in the instructions, the court conveyed the impression that those dates had been proved to be true. Absent

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the instructions, the jury would have had to consider whether it believed the evidence presented at trial with respect to the...