State v. Johnson

Decision Date04 April 2011
Docket Number63478-0-I
CourtCourt of Appeals of Washington
PartiesSTATE OF WASHINGTON, Respondent, v. DANIEL ARNOLD JOHNSON, Appellant.

UNPUBLISHED OPINION

Lau J.

A jury convicted Daniel Johnson of two counts of first degree rape of a child, one count of first degree child molestation, and four counts of possessing depictions of minors engaged in sexually explicit conduct. At trial, the court admitted Johnson's sex offense convictions under RCW 10.58.090. On appeal, Johnson challenges the statute's constitutionality and the trial court's failure to consider the statute's necessity factor. Because our recent precedent forecloses Johnson's constitutional claims and the failure to consider the necessity factor constitutes harmless error, we affirm Johnson's convictions.

FACTS

At trial, witnesses testified to the following facts. MB was born on July 23, 2000, and lived with her father great-uncle, grandmother, and great-grandmother. Daniel Johnson, who was in his late 50s, lived next door and soon befriended MB and her great-uncle.

In late 2004 or early 2005, Johnson was evicted from his home. He moved into MB's family garage, which he converted into a room. MB frequently visited Johnson in his room. He gave her ice cream, invited her to watch cartoons and play video games, and took her to the movies. At Johnson's request MB called him "grandpa."

Johnson sexually abused MB during visits to his room. He showed her pornographic videos and forced her to sit on his stomach and anally penetrated her. He also forced MB to engage in oral sex. Johnson also took MB to the movies and touched her chest under her shirt.

MB disclosed the abuse to her father, who reported it to the police. Police searched Johnson's room and discovered a large quantity of child pornography on hard drives, laptops and CDs. Child interview specialist Carolyn Webster interviewed MB. MB described the abuse to her. Pediatric nurse Joanne Mettler examined MB but saw no evidence of genital or anal trauma. Mettler explained that it is common to find no indication of injuries because those areas heal quickly.

The State charged Johnson with two counts of first degree rape of a child, one count of first degree child molestation, and four counts of possessing depictions of minors engaged in sexually explicit conduct.[1] Before trial, the State moved to admit evidence of Johnson's prior sex offenses pursuant to RCW 10.58.090 and ER 404(b). Johnson moved to exclude this evidence and challenged the constitutionality of RCW 10.58.090. The court found the statute constitutional and admitted the evidence after analyzing seven of the eight required statutory factors. The court declined, however, to consider the "necessity of the evidence" factor stating, "I'm not going to analyze that factor 'cause I don't -- I just don't know -- I'm not sure which way it's supposed to be analyzed." Verbatim Report of Proceedings (VRP) (Feb. 18, 2009) at 500.

The court gave an oral cautionary instruction to the jury before the State presented the prior sex offense testimony:

Evidence regarding any prior offenses, standing alone, is not sufficient to prove the defendant guilty beyond a reasonable doubt of the crimes charged in this case. As you consider this evidence, bear in mind that the state has the burden of proving each and every element of the crimes charged beyond a reasonable doubt and this evidence does not reduce the state's burden.
The defendant is not on trial for any prior offenses testified to in this case. Whether the defendant was charged with a crime, convicted of, or served a sentence concerning the prior offenses testified to, is not to be considered.

Three of Johnson's prior sex offense victims testified.[2] SM and Renee (Johnson's daughter) were close friends. When SM was 11 and 12 years old, she spent time with Renee and Johnson. She testified that Johnson "became like a second father to [her]." VRP (Feb. 26, 2009) at 1012. Johnson gave her gifts like candy and soda. On at least one occasion, Johnson showed her pornographic videos. During sleepovers with Renee, SM slept in Johnson's room with Renee. On one occasion, he fondled SM's breasts and her vaginal area. Another time, he pressed his penis against her buttocks. Johnson told SM not to tell anyone.

AH was also Renee's friend and spent time with her and Johnson when she was about 12. Like SM, Johnson gave her gifts such as Madonna accessories. AH described him as "not necessarily a father figure . . ., " but a trusted male figure. RP (Feb. 26, 2009) at 1060. He showed her pornographic videos and talked to her about sex and masturbation. During sleepovers, AH slept in the same bed with Johnson and Renee. One night, Johnson pressed his penis against her buttocks and tried to put her hand on it. Johnson told her not to tell anyone about their sexual conversations.

JW was also Renee's friend and spent time with her and Johnson when she was between five and seven years old. Pornographic magazines were on display in the bathroom when she visited Johnson's home. He played pornographic movies where she could see them. During sleepovers, JW slept in the same bed as Johnson. On several occasions, Johnson digitally penetrated JW's vagina.

On direct-examination, Johnson denied that he raped or molested MB or improperly touched SM, AH, and JW. The jury convicted Johnson as charged. Based on his sex offense convictions, the court sentenced Johnson under the Persistent Offender Accountability Act (POAA) to life in prison without the possibility of parole for the first degree rape of a child and first degree child molestation convictions. The court imposed 102 months-within the standard range-on one count of possessing depictions of minors engaged in sexually explicit conduct. Johnson appeals his judgment and sentence.

STANDARD OF REVIEW

We review a trial court's admission of evidence for abuse of discretion. State v. Hamlet, 133 Wn.2d 314, 324, 944 P.2d 1026 (1997). Questions of statutory interpretation and constitutional challenges are reviewed de novo. State v. Armendariz, 160 Wn.2d 106, 110, 156 P.3d 201 (2007); State v. Stanley, 120 Wn.App. 312, 314, 85 P.3d 395 (2004).

ANALYSIS
RCW 10.58.090 Factors

Johnson first argues that the trial court abused its discretion by failing to consider the necessity factor as expressly required under RCW 10.58.090. The State counters that the trial court implicitly considered necessity and any error is harmless because the evidence was nevertheless admissible under RCW 10.58.090 and ER 404(b).

Under RCW 10.58.090(1), "[i]n a criminal action in which the defendant is accused of a sex offense, evidence of the defendant's commission of another sex offense or sex offenses is admissible, notwithstanding Evidence Rule 404(b) if the evidence is not inadmissible pursuant to Evidence Rule 403." The statute requires the trial court to evaluate eight nonexclusive factors when conducting its ER 403 analysis.

When evaluating whether evidence of the defendant's commission of another sexual offense or offenses should be excluded pursuant to Evidence Rule 403, the trial judge shall consider the following factors:
(a) The similarity of the prior acts to the acts charged;
(b) The closeness in time of the prior acts to the acts charged;
(c) The frequency of the prior acts;
(d) The presence or lack of intervening circumstances;
(e) The necessity of the evidence beyond the testimonies already offered at trial;
(f) Whether the prior act was a criminal conviction;
(g) Whether the probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence; and
(h) Other facts and circumstances.

RCW 10.58.090(6) (emphasis added). "RCW 10.58.090 does not instruct the court on how to weigh the articulated factors." Scherner, 153 Wn.App. 621, 658, 225 P.3d 248 (2009). But it does "state[] the trial court must consider all of the factors when conducting its ER 403 balancing test." Scherner, 153 Wn.App. at 658 (emphasis added). And as Johnson correctly notes, " 'It is well settled that the word "shall" in a statute is presumptively imperative and operates to create a duty. . . . The word "shall" in a statute thus imposes a mandatory requirement unless a contrary legislative intent is apparent.' " State v. Krall, 125 Wn.2d 146, 148, 881 P.2d 1040 (1994) (quoting Erection Co. v. Dep't of Labor & Indus., 121 Wn.2d 513, 518, 852 P.2d 288 (1993)). The State does not dispute that the statute requires a trial court to weigh all the statutory factors.

Here, the trial court unequivocally declined to consider the "necessity of the evidence beyond the testimonies already offered at trial." RCW 10.58.090(6)(e). In conducting its RCW 10.58.090(6) analysis, the court stated:

E, the necessity of the evidence beyond the testimony already offered at trial. This factor -- this factor I -- I must confess gives me some pause. I'm not quite sure what a court is supposed to do with it. The -- the actual wording already offered at trial, some courts have made this analysis after the evidence is admitted; others haven't. I find it odd that a court is supposed to analyze whether the prosecutor needs the evidence or not. I mean, I'm not sure how this is supposed to play. If it's a very strong case, you let it in because it's not prejudicial. If it's a very weak case, you let it in because they need it. I mean, I don't know how this is supposed to play so I -- I put that on the record for guidance in the future for help someone will tell the trial court how it is. And I'm not going to analyze that factor 'cause I don't -- I just don't know -- I'm not
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