State v. Johnson
| Decision Date | 13 March 2012 |
| Docket Number | 41141-5-II |
| Court | Washington Court of Appeals |
| Parties | STATE OF WASHINGTON, Respondent, v. ANTHONY JOHNSON, JR., Appellant. |
UNPUBLISHED OPINION
Anthony Johnson, Jr. appeals his jury convictions and sentences for two counts of first degree child molestation, two counts of first degree rape of a child, and one count of tampering with a witness. He argues that (1) the State committed prosecutorial misconduct in closing argument by commenting on his right to remain silent, commenting on witnesses' credibility, shifting the burden of proof, and appealing to the passions and prejudices of the jury; (2) the trial court abused its discretion in denying his motion to sever his witness tampering charge from his child molestation and child rape charges; (3) the trial court abused its discretion in denying his motion for a mistrial after a State witness violated an order in limine by inadvertently mentioning a polygraph test; and (4) the trial court committed cumulative error. In his statement of additional grounds (SAG), Johnson asserts that (1) the trial court's granting four continuances violated his right to a speedy trial under the Sixth Amendment[1] and CrR 3.3; (2) he received ineffective assistance when his trial counsel objected to the State's polygraph testimony but did not immediately request a limiting instruction or that the trial court strike the answer; and (3) the trial court sentenced him improperly. We affirm.
Johnson met MA[2] in 2001, when her daughter, LA, was six months old. Johnson and MA began a romantic relationship, and he moved into her one-bedroom apartment. They had three more children together. Although Johnson was not LA's biological father, he considered her his "daughter " and LA referred to him as her "dad." 3 Verbatim Report of Proceedings (VRP) at 198; 6 VRP at 607. Johnson watched LA and his and MA's three other children while MA worked as the sole provider for the family.
Johnson frequently brought his other girlfriends into MA's apartment while the children were present. When LA once told her mother about Johnson's infidelities, Johnson threw LA across the room by her shirt and choked her until her mother intervened. According to LA, Johnson started touching her "private" and her "behind" when she was six or seven years old. 3 VRP at 200. He often told her to take off her pants and to lie on the bed with her face down while he got on top of her and touched her "down on bottom" "where he goes to the bathroom" (with his penis), occasionally putting baby gel on her bottom when he did this. 3 VRP at 201-203. He made LA give him oral sex until "white stuff" came out, which made LA feel "nasty" and "like [she] wanted to throw up." 3 VRP at 206. Johnson also touched LA's "private" where she "[goes] to the bathroom" (vagina), which hurt and made her feel "bad." 3 VRP at 200-01, 208. Johnson may have touched LA more than ten times.
At some point, MA began suspecting that Johnson was touching LA in a sexual manner and asked LA, "Does your dad touch you in your private area?" 3 VRP at 258. LA responded "Yes, he does." 3 VRP at 258. MA apologized to LA and told her it was "not going to happen again." Approximately one month later, in February 2008, MA and the children moved into a two-bedroom apartment, and Johnson did not live with them for several months. In May 2009, however Johnson moved back in with the family.
MA continued to have suspicions about Johnson touching LA. One night, MA pretended to fall asleep in her bedroom while Johnson played a DVD[3] in the living room. He put the DVD on repeat and went into the bedroom where the children were sleeping. Approximately twenty minutes later, MA checked on Johnson and she found Johnson in the children's bedroom in his boxer shorts, "like laying [sic] on top of [LA]" with his penis exposed. 3 VRP at 262. Johnson apologized and said he did not know any better. MA agreed to give him one more chance but said she would leave him if he touched LA again.
On August 31, 2009, LA told MA that Johnson "did it again." 3 VRP at 266. MA took the children to stay with her aunt, who called the police. MA gave the police a handwritten statement, moved with the children to a shelter, and on September 2 took LA to Saint Peter's Hospital Sexual Assault Clinic for a trauma examination.
Doctor Deborah Hall interviewed LA. During the audio recorded interview, LA pointed to a diagram of a man's penis, told Doctor Hall that Johnson had touched her with his "peanuts, " described the "white stuff" that had come out of Johnson's penis, and explained that he had touched her vagina and it hurt. 4 VRP at 387. Doctor Hall performed two medical examinations of LA; she noticed that LA had an irregularly narrow hymen rim[4] and less hymen tissue than normal for an eight-year-old girl. Part of her vaginal tissue appeared "raw, " and there were dark spots, suggesting bleeding under the skin. 4 VRP at 394. Doctor Hall also found two "healed scars"[5] in LA's vaginal area: According to Doctor Hall, the scarring in the "midline"[6] area of LA's vagina could have been congenital; but the scarring on the "sides" of her vagina was not congenital and was consistent with "penetrating trauma." 4 VRP at 395.
The police discovered fluid stains on the underwear and skirt that LA had worn on August 31. The skirt tested positive for semen and spermatozoa, which matched Johnson's DNA profile. No such test was performed on LA's underwear. On September 16, Kimberly Brune, a child interviewer for the Pierce County Prosecuting Attorney's Office, conducted a forensic interview of LA, which she video and audio recorded. LA again discussed Johnson's sexual abuse. On November 4, the State charged Johnson with two counts of first degree child molestation and two counts of first degree child rape.
After his arrest, Johnson periodically called MA from jail, and MA began having "second thoughts" about proceeding with criminal charges against him. 2 VRP at 123. MA called Grant Blinn of the Pierce County Prosecuting Attorney's Office and asked him to dismiss the charges. When Blinn refused, she told him that LA had lied about the sexual abuse. MA then contacted Johnson's attorney and agreed to have defense investigator Nancy Austring interview LA. MA instructed LA to tell Austring that she (LA) had made up the allegations about Johnson, which LA did.
On June 7, 2010, Johnson again called MA from jail. During this audio recorded conversation, Johnson told MA that she and LA needed to continue saying that the sexual abuse allegations were untrue or Child Protective Services would take MA's children away from her. Specifically, he said:
3 VRP at 301, 303-05 (emphasis added). Johnson then told MA that law enforcement knew where she was and that she needed to "shake that spot, " which, according to MA, meant she needed to leave the shelter so she would not have to testify. 3 VRP at 316. Johnson also told MA that he had seen her uncle's picture in the newspaper and that he was "one of them, too."[7] 3 VRP at 311. Before hanging up, Johnson asked MA, "Can I count on you to help me out? . . . Can I count on the little one to help me out?" 3 VRP at 323. Based on this phone call, the State amended its information to add one count of tampering with a witness.
Johnson moved to sever the witness tampering charge from his child molestation and child rape charges, arguing that the offenses were not properly joined and that joinder could prejudice his trial by inviting the jury to draw an "adverse inference"[8] from his difficult relationship with his trial attorney, whom he had called "that b*tch" and "[my] so-called lawyer" during his June 7 phone conversation with MA. 1 VRP at 40. The State responded that (1) the witness tampering evidence was "cross admissible" to prove the child molestation and child rape charges, and (2) Johnson's statements during the conversation with MA to "shake that spot" (leave the shelter) and to "stay consistent" (testify falsely) were efforts to manipulate MA, which helped explain why MA had instructed LA to recant her sexual abuse allegations against Johnson. 1 VRP at 43-44.
Noting that some of the subject matter in the phone call was "incredibly prejudicial, "[9] the trial court denied Johnson's motion to sever, but it did not allow the State to play the audio taped phone call for the jury. Instead, the trial court and counsel agreed to a redacted transcript of the phone call, which the State and MA read in court.
The State moved to exclude any evidence relating to a polygraph that Johnson had taken and passed before trial. Johnson did not object, stating, "I believe that's the status of the law." 1 VRP at 74. The trial court granted the State's motion and excluded the polygraph evidence.
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