State v. Johnson

• Decision Date: 09 November 2009
• Docket Number: No. 37211-8-II.,37211-8-II.
• Citation: 219 P.3d 958,152 Wn. App. 924
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Gerald William JOHNSON, Appellant.

219 P.3d 958

152 Wn. App. 924

STATE of Washington, Respondent, v. Gerald William JOHNSON, Appellant.

No. 37211-8-II.

Court of Appeals of Washington, Division 2.

November 9, 2009.

John A. Hays, Attorney at Law, Longview, WA, for Appellant.

Michael C. Kinnie, Attorney at Law, Vancouver, WA, for Respondent.

PENOYAR, J.

¶ 1 Gerald Johnson appeals his second degree child molestation conviction, claiming that (1) the trial court allowed impermissible opinion testimony from a lay witness; (2) counsel failed to object to the impermissible opinion testimony, depriving him of effective assistance; (3) the trial court's instruction on corroborative evidence was an impermissible comment on the evidence; (4) and the trial court improperly imposed an exceptional sentence. We reverse because the trial court allowed impermissible and highly prejudicial lay witness testimony.

FACTS

¶ 2 In 1999, Mary Pfeifle and her family were living in Vancouver, Washington, in the Ironwood Apartments when Stacy and Gerald Johnson moved into an apartment directly across from theirs. The families became close friends and spent time together in town, on day trips up the Washougal River, and on annual extended camping trips. Pfeifle had a husband, Greg Pfeifle, and five children, including TW (born May 1, 1987) and AC (born November 21, 1991).

¶ 3 In November 2004, at Mary's birthday party, she noticed that her oldest daughter, TW, then 17 years old, had a $100 bill in her handbag. TW explained that Johnson had given it to her so she could buy a cell phone. Mary testified that she called Johnson to talk about the money while giving TW a ride. Johnson confessed that he was in love with TW, that every time he looked into TW's eyes, he melted, and that he wanted to marry her when she turned 18.

¶ 4 TW testified that she first kissed Johnson when she was in the 7th grade and that either on Christmas Eve or New Year's Eve that holiday season, he put his hand between her thighs, rubbing her upper thighs over her clothing. She also recalled that later, after her family moved to their Snowberry Loop home, she and Johnson began touching each other under their clothing. He would rub her thighs, buttocks, and breasts. She described one camping trip in 2002, when she was 15 years old, where he had intercourse with her in her tent late at night and, after that, they regularly engaged in sexual intercourse until her mother learned about the relationship in November 2004. She explained that when she lived at Snowberry, she would see Johnson every day and they would engage in oral sex, masturbation, and vaginal sex at his grandmother's home, in his van, and "everywhere." Report of Proceedings (RP) at 216.

¶ 5 After learning about TW's sexual relationship with Johnson, Mary asked AC if anything had happened to her. AC described two incidents. In the first, Johnson allegedly asked AC for a good night kiss as she was going to bed, and Johnson, who was lying on the bed, put his hand between her thighs, spreading them apart, and placed his hand on her pelvic area for 30 to 35 seconds. In the second incident, she alleged that she was dozing off during a movie she and Johnson were watching on a backyard campout and woke up to find his arm around her and his hand touching her breast.

¶ 6 The State charged Johnson with one count of second degree child molestation against TW between May 1, 1999, and April 30, 2001.¹ It also charged Johnson with first degree child molestation against AC between November 1, 2001 and December 31, 2002.² The trial court dismissed a count of communication with a minor for immoral purposes against TW because the statute of limitation had expired.

¶ 7 After the trial had begun, the State learned that Stacy Johnson had stayed with the Pfeifles after she learned about the allegations against Johnson. During that stay, Stacy allegedly had a heated confrontation with TW and TW insisted that she had had a sexual relationship with Johnson, describing a purple spot or mole on Johnson's penis, and demonstrating the unique way that she said Johnson would masturbate. The trial court allowed this testimony as well as testimony that in reaction to TW's statements during the confrontation, Stacy Johnson took an overdose of medication and was hospitalized as a result.

¶ 8 Stacy Johnson related a different view of this encounter. She testified that she was very distraught at the time and had just had a confrontation with Pfeifle's brother's girlfriend who had accused Stacy of trying to steal her boyfriend. She denied that she and TW talked about Johnson's penis or his masturbation technique. She said the discussion was about TW loving Johnson and wanting to marry him.

¶ 9 Johnson denied the allegations, denied that he ever gave the girls rides, and denied that he ever said that he wanted to marry TW. He explained that he gave $100 to TW to buy a cell phone but that he expected her to return the $70 she did not need. He helped her, Johnson explained, because she was looking for work and wanted a cell phone number to use on her job applications and she was not on speaking terms with her stepfather, Greg Pfeifle.

¶ 10 Over the defense's objection that a proposed corroboration instruction amounted to a comment on the evidence, the trial court gave the following instruction:

In order to convict a person of a sexual offense against a child, it shall not be necessary that the testimony of the alleged victim be corroborated.

Clerk's Papers (CP) at 107.

¶ 11 The jury acquitted Johnson of the allegation involving AC but convicted him of the allegation involving TW. The trial court imposed a 60-month exceptional sentence.

ANALYSIS

I. Testimony about Stacy Johnson's confrontation with TW

¶ 12 Johnson first argues that the trial court erred in admitting testimony about a confrontation between Stacy and TW because this testimony amounted to improper opinion testimony on his guilt. Admitting this evidence, he argues, served only one purpose: "to convey to the jury that the defendant's wife believed [TW] was telling the truth and that the defendant was guilty. Why else would she leave her husband and then attempt to commit suicide when [TW] gave her evidence that proved her husband was guilty?" Appellant's Br. at 20. He argues that the State exacerbated this error by questioning TW, Mary, and Greg Pfeifle about Stacy's attempted suicide and then emphasizing during closing arguments that this evidence showed that TW's allegations were well-founded. We agree.

¶ 13 On June 29, 2007, during trial, the attorneys first became aware that within a week of TW's allegations against Johnson, TW had a confrontation with Stacy at the Pfeifle home. In response to the State's efforts to admit this evidence, defense counsel explained:

I was wondering what I was going to say. I — I think mostly what we talked about this afternoon is really not a whole lot to do with the case, it's sort of a sideshow.

When we originally went out there I thought the issue was whether or not Stacy's going to say that she said there was a penis mole or not, but she's saying there's not.

However, I can't say the State cannot put on this evidence, maybe it does have some tangential relevancy. So that's all I can say. We were out there interviewing the folks.

RP at 351.

¶ 14 As we discuss below, we review for a manifest constitutional error because counsel did not raise a proper objection below. RAP 2.5(a)(3). Generally, no witness, lay or expert, may give an opinion, directly or inferentially, on the defendant's innocence or guilt. State v. Black, 109 Wash.2d 336, 348, 745 P.2d 12 (1987). Such opinions are unfairly prejudicial because they invade the fact finder's exclusive province. Black, 109 Wash.2d at 348, 745 P.2d 12; see also State v. Kirkman, 159 Wash.2d 918, 927-28, 155 P.3d 125 (2007) (opinion on defendant's guilt violates article I, section 21 of the Washington Constitution). However, if the testimony does not directly comment on the defendant's guilt or veracity, helps the jury, and is based on inferences from the evidence, it is not improper opinion testimony. See State v. Farr-Lenzini, 93 Wash.App. 453, 465, 970 P.2d 313 (1999) (improper opinion on defendant's guilt invades jury's province); City of Seattle v. Heatley, 70 Wash.App. 573, 579, 854 P.2d 658 (1993) (officer could give his opinion that defendant was intoxicated because it was based on the defendant's physical characteristics); State v. Alexander, 64 Wash.App. 147, 154, 822 P.2d 1250 (1992) (by stating his belief that the child was not lying about sexual abuse, the expert "effectively testified" that the defendant was guilty as charged); State v. Carlin, 40 Wash.App. 698, 700, 700 P.2d 323 (1985) (the police officer testified that the tracking dog followed the defendant's "fresh guilt scent"); see also Black, 109 Wash.2d at 349, 745 P.2d 12 (in a rape case, expert testimony that the victim suffered from rape trauma syndrome constituted "in essence" a statement that the defendant was guilty where defense was consent).

¶ 15 "Whether testimony constitutes an impermissible opinion about the defendant's guilt depends on the circumstances of the case, including (1) the type of witness involved, (2) the specific nature of the testimony, (3) the nature of the charges, (4) the type of defense, and (5) the other evidence before the trier of fact." State v. Hudson, 150 Wash.App. 646, 653, 208 P.3d 1236 (2009) (citing State v. Montgomery, 163 Wash.2d 577, 591, 183 P.3d 267 (2008)) (quoting State v. Demery, 144 Wash.2d 753, 759, 30 P.3d 1278 (2001)).

¶ 16 Here we have out of court statements attributed to the victim's spouse indicating her belief in the truthfulness of the victim's allegations. These statements were not introduced initially because the State carefully skirted the content of this meeting between TW and Stacy. In its case in chief, Mary and Greg Pfeifle testified that there was a confrontation but they did...