State v. Jones

Decision Date06 December 1993
Docket NumberNo. 28925-0-I,28925-0-I
Citation863 P.2d 85,71 Wn.App. 798
PartiesSTATE of Washington, Respondent, v. Donald Steve JONES, Appellant. Division 1
CourtWashington Court of Appeals

David Allen, Richard Hansen, Todd Maybrown, Allen & Hansen, Seattle, for appellant.

Norm Maleng, Pros. Atty., Michael Lang, King County Deputy Prosecutor, Seattle, for respondent.

GROSSE, Judge.

The appellant, Donald S. Jones, appeals his convictions on one count of first degree child molestation and one count of first degree rape of a child.

The charges in this case stem from an incident alleged to have occurred between September 1, 1989 and January 31, 1990. Jones was living with his girl friend, Lorayne Hanson, and her children from a previous marriage. According to the testimony of Hanson and Jones, Hanson's 7-year-old daughter, A., was occasionally observed acting out sexually. One evening, Jones and Hanson went out to dinner and had several drinks. After they returned from dinner, Jones undressed and got into bed. Hanson was out of the room putting the children to bed. Hanson testified that she walked into the bedroom and found Jones unclothed, lying on the bed next to A., whose nightgown was pulled up to her chest. A. was not wearing underwear. Jones had his hand on A.'s stomach and was sexually aroused. Hanson testified that Jones explained to Hanson that he was trying to discuss sex with A.

Jones testified that A. had climbed into bed with him, and they started discussing her recent sexual acting out. Jones alleged that A. reached out and touched him. Jones also testified that during the course of their discussion he did momentarily touch her vaginal area, but stated his touching her was not caused by any sexual motivation and he was not sexually aroused.

Hanson testified that she spoke with A. about the incident the next morning. A. told her Jones put his tongue in her mouth and rubbed her vaginal area. Eventually a school counselor, Bruce Vatne, contacted Child Protective Services (CPS) after A. told him Jones had touched her vaginal area and kissed her. A CPS caseworker, Judy Mitchell, interviewed A. During the interview, A. reiterated a claim that Jones had put a finger inside her vagina and that it hurt. Mitchell placed A. in protective custody. A. was examined by Dr. Rebecca Wiester on February 20, 1990. Dr. Wiester concluded that the findings from the physical were consistent with vaginal penetration. Dr. Wiester testified that A. told her Jones had touched her vaginal area while they were on the bed.

Dependency proceedings were filed. Mitchell testified she read the allegations from the dependency petition to Jones, who did not deny that he had touched A. and further admitted that he had asked her to perform oral sex on him.

Jones was charged with one count of first degree child molestation and one count of first degree rape of a child. Prior to trial, A. was found competent to testify. The trial court ruled her statements to Dr. Wiester; Bruce Vatne, the school counselor; Judy Mitchell, the CPS caseworker; and to her mother were admissible. The court also allowed Mitchell to testify as to Jones' statements to her.

The prosecution called Mitchell as a witness for the State. Mitchell testified to her background, which included a masters of social work from the University of Washington. Mitchell had been working as a professional social worker since 1976. She estimated she had worked with approximately 300 to 400 children in her present occupation. Mitchell testified to A.'s hearsay statements and also testified that it was her impression that A. "thought it was all her fault." Mitchell testified that she pointed out to A. that it was not her fault and stated that this phenomenon was not uncommon among the sexually abused children she sees.

Mitchell then testified, "[S]he [A.] said to me 'Believe me, believe me, I am telling you that this happened,' and I said 'I believe you.' " The following exchange then occurred between the prosecutor and Mitchell:

Q: Judy, based again on the hundreds of kids that you have seen, what was your assessment of [A.]?

[DEFENSE COUNSEL]: Objection, calls for an opinion.

THE COURT: Overruled.

Q: Go ahead and answer the question.

A: My assessment is that this child had some legitimate fears, based on some touching of her by Donnie. I felt that this child had been sexually molested by Donnie at that point.

On cross examination, Mitchell was questioned about A.'s sexual acting out. Mitchell testified A. had also related instances of victimization by others. On redirect, Mitchell was questioned about the acting out of sexual behaviors in abused children:

Q: [By the prosecutor] Based on your interaction with other children, children that you have found and have known to be sexually abused, is it uncommon to see them sexually acting-out?

[DEFENSE COUNSEL]: Objection. Same objection, your Honor, lack of foundation for an expert opinion.

THE COURT: Overruled.

A: It's very common for children who have been sexually abused to exhibit sexualized behaviors and to be revictimized by other parties.

Q: Based on your experience and all of the interviews that you have had with children, is it uncommon for those children to talk about having nightmares and dreams?

[DEFENSE COUNSEL]: Same objection, your Honor.

THE COURT: Overruled.

A: It is not uncommon, and we refer to this as night terrors.

Mitchell also stated A. told her of other instances of contact with Jones had occurred, testifying that A. told her "there was another bad touch, she said another bad touch two times". Bruce Vatne, the school counselor, also testified that A. had related other instances of contact: "I asked her then is this the one time that this had happened and did this happen just the one time, and she said no, it happened lots of times." 1

A. testified at trial that Jones had put his tongue in her mouth and touched her vagina and that it hurt. During her testimony, Jones' view of A. was blocked by the position of the prosecutor questioning A. The defendant did not object during examination, but during recess brought to the court's attention the fact that he could not see A. The court found that the prosecutor's blocking was inadvertent and told Jones that he could position himself in a different spot where he could see the witness.

Subsequently, on cross examination of Jones, the following exchange took place:

BY [PROSECUTOR]:

Q: Mr. Jones, you felt hurt and you were concerned when [A.] was testifying?

A: Yes, I did.

Q: And yet weren't you frustrated because I was blocking your view from her such that you could not stare at her as she was testifying here; isn't that right? Is that right?

A: Yes, I did.

No objection was made to this colloquy. During direct examination, Jones was questioned about his knowledge of other allegations of sexual abuse against A. The prosecution's hearsay objection was sustained, although defense counsel argued the other allegations were relevant to show Jones' state of mind. Jones admitted that he had briefly touched A.'s vaginal area during the bedroom incident, but denied that he touched her for sexual gratification.

Proceeding with closing argument, the prosecutor stated:

We as a society talk, we proclaim, we articulate, we are concerned about our children, and many people sing songs about our children. Whitney Houston talks about how they will inherit the earth. And yet we still have a system that requires that child to have to walk in through those two big doors as a very, very small person and walk up here in front of twelve people, twelve grownups whom they don't know, and sit in this chair in a courtroom such as this, with the defendant sitting right there, staring at them.

. . . . .

And just briefly, one more thing, because, quite frankly, you folks heard his testimony, you are reasonable people, you bring in your life experience and your common sense, and was that story reasonable? Absolutely not. "I love [A.], I care about [A.]," but at the same time he wants to have direct eye contact with her. Why? And what was the result of that direct eye contact that first day? She broke down and she cried and she told you she was afraid. She was afraid of who? Of Donnie. And the CPS worker told you that outside how upset and how disturbed and how frightened she was so that she refused to walk through those two big doors again.

No objection was made to either statement. During the prosecutor's rebuttal argument, she stated:

[T]he State has to be very, very careful which charges it brings because it has to be able to prove to you the specifics of, the specific parts of this crime, and to be told that it's only happened a number of times but not to be able to draw on the specifics, a charge may not be brought for all those other times, but we know this is not the only time, we know she said it happened a number of times, and we know he has had access to her since she was a child.

Again, no objection was made.

Jones submitted proposed jury instructions, but did not include a "Petrich instruction" appropriate when multiple instances of conduct are at issue. The jury found Jones guilty of one count of child molestation in the first degree and one count of rape of a child in the first degree. The defense moved for a new trial, alleging prosecutorial misconduct on the basis of the prosecutor's closing argument (Whitney Houston speech) and her references to multiple instances of Jones' abuse. The defense also alleged error in the court's admission of Mitchell's expert testimony on common traits of sexual abuse victims. The court denied the motion for a new trial. Jones appeals his convictions.

As an initial matter, Jones contends that the prosecutor's "Whitney Houston" speech and her reference to multiple instances of abuse in closing argument constitute prosecutorial misconduct requiring reversal of his conviction. Appeals to the prejudice and passion of the jury and...

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