State v. Kipp

• Decision Date: 02 October 2012
• Docket Number: No. 39750–1–II.
• Citation: 286 P.3d 68,171 Wash.App. 14
• Parties: STATE of Washington, Respondent, v. William John KIPP, Jr., Appellant.
• Court: Washington Court of Appeals

171 Wash.App. 14

286 P.3d 68

STATE of Washington, Respondent,

v.William John KIPP, Jr., Appellant.

No. 39750–1–II.

Court of Appeals of Washington, Division 2.

Oct. 2, 2012.

Recognized as Unconstitutional

West's RCWA 10.58.090.

Alton B. McFadden II, Olsen & McFadden Inc. PS, Bainbridge Island, WA, for Appellant.

Jeremy Aaron Morris, Kitsap County Prosecutor's Office, Port Orchard, WA, for Respondent.

WORSWICK, C.J.

[171 Wash.App. 18]¶ 1 A jury found William Kipp guilty of two counts of second degree child rape and one count of second degree child molestation.Kipp appeals, arguing (1)the trial court erroneously admitted testimony under RCW 10.58.090¹andER404(b) regarding prior uncharged child molestation by Kipp, (2)the trial court erroneously admitted a secretly recorded conversation between Kipp and his brother-in-law under the privacy act, and (3)the trial court erroneously excluded a defense witness due to late disclosure.Kipp also submits a statement of additional grounds (SAG), arguing that the trial judge was biased against him and that the State misstated the burden of proof at closing argument.We hold that the evidence of uncharged child molestation was properly admitted under ER404(b).We further hold that the trial court did not err in admitting Kipp's recorded conversation or in excluding testimony of the late-disclosed witness.And we hold that the arguments raised in Kipp's SAG are without merit.Accordingly, we affirm.

FACTS

¶ 2 Kipp was charged with two counts of second degree child rape and one count of second degree child molestation of his niece, DGT.²The incidents occurred when DGT was 12 to 14 years old.Kipp molested DGT at her grandparents' house by touching her genitals and digitally penetrating her.Kipp also digitally penetrated DGT while she was staying overnight at his house.

¶ 3 JMC, who is DGT's older sister, also alleged that Kipp had sexually assaulted her when she was 15 years old.Kipp molested JMC at his house when JMC was living there by fondling her breasts while they watched TV.Also, on one occasion, Kipp molested JMC at her grandparents' house by performing oral sex on her and rubbing his penis on her genitals.Kipp was never charged for the acts against JMC.

¶ 4 Joseph T., the father of DGT and JMC, and Kipp's brother-in-law, subsequently confronted Kipp about his daughters' allegations.Kipp confessed, and Joseph T. secretly recorded the conversation.

¶ 5 Kipp moved pretrial to suppress the recording of his conversation with Joseph T. under Washington's privacy act.³Without taking testimony, the trial court denied Kipp's motion to suppress, ruling that Kipp's conversation with Joseph T. was not a private conversation and thus not subject to suppression under the privacy act.

¶ 6 Also pretrial, the trial court ruled that JMC's testimony was admissible under RCW 10.58.090, as well as under ER404(b) to show a common scheme or plan.Further, the trial court excluded the testimony of defense witness Alan T., Kipp's brother-in-law, who Kipp first disclosed six days before trial.At trial, the trial court admitted both JMC's testimony and the recording of Kipp's conversation with Joseph T.The jury found Kipp guilty as charged.Kipp appeals.

ANALYSIS

I.Testimony of JMC

¶ 7 Kipp argues that the trial court erred by admitting JMC's testimony under RCW 10.58.090andER404(b).Because our Supreme Court has found RCW 10.58.090 to be unconstitutional, it was not a valid basis to admit JMC's testimony.State v. Gresham,173 Wash.2d 405, 432, 269 P.3d 207(2012).But because the trial court properly admitted JMC's testimony under ER404(b) to show a common scheme or plan, the trial court did not err on this point and Kipp's argument fails.

¶ 8This court reviews a trial court's rulings under ER404(b) for abuse of discretion.State v. Foxhoven,161 Wash.2d 168, 174, 163 P.3d 786(2007).A trial court abuses its discretion if its decision “is manifestly unreasonable or rests on untenable grounds.”State v. Griffin,173 Wash.2d 467, 473, 268 P.3d 924(2012).A decision is manifestly unreasonable if the court adopted a position no reasonable person would take.Griffin,173 Wash.2d at 473, 268 P.3d 924.And a decision rests on untenable grounds when the trial court applies the wrong legal standard or relies on unsupported facts.Griffin,173 Wash.2d at 473, 268 P.3d 924.

¶ 9 ER 404(b) forbids a trial court to admit evidence of a person's other crimes, wrongs, or acts to prove a person's character to show that the person acted in conformity therewith.But ER404(b) does not forbid such “other acts” evidence admitted for other purposes, such as to show a common scheme or plan.

¶ 10 In order for “other acts” evidence to be properly admitted to show a common scheme or plan under ER404(b), it “must be ‘(1) proved by a preponderance of the evidence, (2) admitted for the purpose of proving a common plan or scheme, (3) relevant to prove an element of the crime charged or to rebut a defense, and (4) more probative than prejudicial.’ ”State v. DeVincentis,150 Wash.2d 11, 17, 74 P.3d 119(2003)(quotingState v. Lough,125 Wash.2d 847, 852, 889 P.2d 487(1995)).Kipp disputes only the second element of this test, whether JMC's testimony was admitted for the purpose of proving a common scheme or plan.

¶ 11 There are two types of evidence admissible to show a common scheme or plan under ER404(b): (1) evidence of prior acts that are part of a larger, overarching criminal plan; or (2) evidence of prior acts following a single plan to commit separate but very similar crimes.DeVincentis,150 Wash.2d at 19, 74 P.3d 119.The instant case deals with the second type of common scheme or plan, a single plan followed to commit separate but very similar crimes.Such a common scheme or plan “may be established by evidence that the Defendant committed markedly similar acts of misconduct against similar victims under similar circumstances.”Lough,125 Wash.2d at 852, 889 P.2d 487.Evidence of such a plan “ ‘must demonstrate not merely similarity in results, but such occurrence of common features that the various acts are naturally to be explained as caused by a general plan of which the charged crime and the prior misconduct are the individual manifestations.’ ”DeVincentis,150 Wash.2d at 19, 74 P.3d 119(quotingLough,125 Wash.2d at 860, 889 P.2d 487).But such common features need not show a unique method of committing the crime.DeVincentis,150 Wash.2d at 20–21, 74 P.3d 119.

¶ 12 Here, there was “ ‘such occurrence of common features' ” between Kipp's abuse of DGT and JMC that his abuse of both victims was naturally to be explained as manifestations of a general plan, making JMC's testimony admissible under ER404(b).DeVincentis,150 Wash.2d at 19–20, 74 P.3d 119(quotingLough,125 Wash.2d at 860, 889 P.2d 487).The victims were of similar ages, and both were Kipp's nieces.Also, Kipp molested both victims in two places: his house and their grandparents' house.

¶ 13 While Kipp performed different sex acts on each victim, the evidence shows that he had a common scheme or plan to get his nieces alone at his house or their grandparents'house and sexually abuse them, which he used on both DGT and JMC.SeeGresham,173 Wash.2d at 422–23, 269 P.3d 207(evidence showed common scheme or plan when defendant took trip with young girls and fondled their genitals at night when other adults were asleep, notwithstanding some difference between sex acts performed);Lough,125 Wash.2d at 849–52, 861, 889 P.2d 487(defendant's history of drugging and raping women with whom he had a personal relationship showed common scheme or plan despite differences in details of each assault);State v. Sexsmith,138 Wash.App. 497, 505, 157 P.3d 901(2007)(evidence showed common scheme or plan where defendant was in position of authority over both victims, victims were the same age, and defendant isolated them and forced them to perform similar sex acts).

¶ 14The trial court accordingly did not abuse its discretion in admitting JMC's testimony to show a common scheme or plan under ER404(b).Kipp's claim to the contrary fails.

II.Privacy Act

¶ 15 Kipp further argues that the trial court erred by admitting his recorded conversation with Joseph T. under the privacy act.He first argues that the trial court erred by failing to hold an evidentiary hearing to determine whether the conversation was private.He also argues that the trial court's findings of fact on the admissibility of the recording were unsupported by substantial evidence.And he additionally argues that the trial court's findings of fact do not support its conclusion of law that the conversation was admissible.We disagree on all points.

A.The Privacy Act

¶ 16 Washington's privacy act, chapter 9.73 RCW, proscribes the recording of private conversations without first obtaining the consent of all participants.RCW 9.73.030(1)(b).Information obtained in violation of this proscriptionis inadmissible in any civil or criminal case.RCW 9.73.050.It is undisputed that Joseph T. recorded his conversation with Kipp without Kipp's consent.The admissibility of the recording at issue therefore turns on whether the conversation was “private” for the purposes of the privacy act.

¶ 17 The privacy of a conversation turns on the “ ‘intent or reasonable expectations of the participants as manifested by the facts and circumstances of each case.’ ”State v. Clark,129 Wash.2d 211, 224, 916 P.2d 384(1996)(quotingKadoranian v. Bellingham Police Dep't,119 Wash.2d 178, 190, 829 P.2d 1061(1992)).One factor in deciding whether a conversation was private is the subjective intentions of the parties.State v. Townsend,147 Wash.2d 666, 673, 57 P.3d 255(2002).We also consider other factors “bearing upon the reasonable expectations and intent of the participants [:]”(1) the duration and subject matter of the conversation, (2) the location of the conversation...