State v. Koeller
| Citation | 477 P.3d 61,15 Wash.App.2d 245 |
| Decision Date | 02 November 2020 |
| Docket Number | No. 79914-2-I,79914-2-I |
| Court | Court of Appeals of Washington |
| Parties | STATE of Washington, Respondent, v. Byron Charles KOELLER, Appellant. |
Ryan Akio English, Sound Law, PLLC, 700 Sleater Kinney Rd. Se, Ste. B 358, Lacey, WA, 98503, for Appellant.
Island Co. Prosecuting Atty., Michael William Safstrom, Attorney at Law, 7th & Main Sts., Gregory Marshall Banks, Island County Prosecuting Attorney, P O Box 5000, Coupeville, WA, 98239-5000, for Respondent.
PUBLISHED OPINION
Verellen, J. ¶1 Byron Koeller sexually abused his stepdaughter for years. He was convicted of multiple charges, including first degree child molestation.
¶2 He contends the charges against him should have been dismissed under CrR 8.3(b) due to governmental misconduct from destroying evidence and from listening to eight seconds of a conversation with defense counsel. Neither the evidence nor the eight seconds of conversation were material to his defense. Because neither act prejudiced him, the court did not abuse its discretion by denying his motions to dismiss.
¶3 He argues his defense counsels were ineffective for a variety of reasons. Because their decisions were neither deficient nor prejudicial, he fails to show he received ineffective assistance.
¶4 He contends the prosecutor committed misconduct during closing argument. Because the arguments were not improper or prejudicial, Koeller fails to establish prosecutorial misconduct. And, even if improper, because he did not object to the arguments and none were flagrant or ill intentioned, he has waived these issues.
¶5 Therefore, we affirm.
FACTS
¶6 A.R.C. first met her future stepfather, Byron Koeller, when she was four years old. Koeller soon began sexually abusing A.R.C. Koeller was in the Navy, and he abused A.R.C. at least once per month when he was home from deployment. The abuse became more sporadic as she got older and stopped when she was a teenager.
¶7 A.R.C., now in her 20s, first reported the abuse to law enforcement in 2017. Koeller was charged with one count of forcible compulsion, four counts of first degree child molestation, two counts of second degree child molestation, and one count of third degree child molestation. The State also alleged aggravating circumstances of domestic violence and of an ongoing pattern of sexual abuse. Pretrial, Koeller made two CrR 8.3(b) motions to dismiss for governmental misconduct, and the court denied both.
¶8 At trial, the State called only two witnesses: A.R.C. and the naval criminal investigative service special agent who investigated the allegations. Koeller entered a general denial and declined to call any witnesses. During closing arguments, the prosecutor conceded the State failed to prove the charge of third degree child molestation because A.R.C. never testified she was molested between the ages of 14 and 16, and he asked the jury to find Koeller not guilty of that charge. He also argued the jury should question each side's theory of the case because "the truth does not fear analysis."1 The jury found Koeller guilty on all counts, except for third degree child molestation, and found the aggravating factors applied as well. The court sentenced him to 297 months’ incarceration.
¶9 Koeller appeals.
ANALYSIS
I CrR 8.3(b) Motions to Dismiss
¶10 A court may dismiss a charge against a defendant under CrR 8.3(b) when the defendant shows arbitrary action or misconduct by the government prejudiced his right to a fair trial. Dismissal is an "extraordinary remedy" that should be granted "only as a last resort."2 We review a court's decision on a CrR 8.3(b) motion to dismiss for abuse of discretion.3 A court abuses its discretion where its decision rests on untenable grounds or was made for untenable reasons.4
¶11 Koeller contends the court abused its discretion when it denied two CrR 8.3(b) motions to dismiss. The first related to the destruction of a recording of an interview A.R.C. gave in 2007 where she denied Koeller molested her. The second related to discovering that the jail had recorded a phone call between Koeller and defense counsel and that a prosecutor had listened to a tiny piece of it. The court denied both motions after holding hearings and entering findings of fact.
¶12 In 2007, A.R.C. was interviewed by Detective Teri Gardner of the Oak Harbor Police Department as part of a separate investigation into allegations Koeller sexually abused other children. A.R.C. disclosed no sexual abuse and denied Koeller sexually abused her. The police department recorded and stored the interview on a digital video disc (DVD) until 2012, when it was destroyed pursuant to routine procedures. Koeller contends the recording was materially exculpatory evidence, so its destruction violated his due process rights and warranted dismissal of all charges against him.
¶13 To protect a defendant's due process rights, the State has a duty to preserve and disclose exculpatory evidence.5 But this is not " ‘an undifferentiated and absolute duty to retain and to preserve all material that might be of conceivable evidentiary significance in a particular prosecution.’ "6 The State's duty extends only to material exculpatory evidence and to "potentially useful" evidence destroyed in bad faith by the State.7 Material exculpatory evidence must possesses " ‘an apparent exculpatory value that was apparent before it was destroyed and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.’ "8 Whether the State acted in bad faith depends upon its knowledge of the exculpatory value of the evidence when it was destroyed.9
¶14 Koeller fails to show the recording was material exculpatory evidence. The DVD was destroyed in 2012, and A.R.C. did not disclose being abused until 2017. Thus, in 2012, the recording could not exculpate Koeller from abusing A.R.C. because nothing had inculpated him in her abuse. Even though the police were investigating Koeller for crimes against other children before 2012, "[t]he mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish ‘materiality’ in the constitutional sense."10 Koeller also asserts we should determine the DVD's exculpatory value "based on when the alleged victim decides to make a report."11 But he cites no authority for this assertion and, regardless, both the Washington and United States Supreme Courts concluded it is beyond the duty imposed by the state and federal constitutions.12 Because the DVD had no apparent exculpatory value when it was destroyed, it was not material.13
¶15 Koeller also fails to show the State destroyed the DVD in bad faith. Koeller contends "delayed reporting is such an inherent and common reality in child abuse cases" that destruction of the 2007 video should be considered evidence of bad faith because it was made when there were concerns Koeller had multiple victims.14 Whether the State acted in bad faith is a question of fact that a defendant must establish.15 The trial court found "there ha[d] been no bad faith on the part of the police or of the State of Washington generally" in destroying the DVD.16 Koeller does not assign error to this finding.17 Because the DVD was not material exculpatory evidence or destroyed in bad faith, Koeller fails to show the court abused its discretion by denying his CrR 8.3(b) motion to dismiss.
¶16 The Island County jail records incoming and outgoing phone calls, except for calls from attorneys. On October 11, 2017, defense counsel Craig Platt provided his cell phone number to the Island County jail so the automated recording system would not record any calls made between him and Koeller. The jail failed to do so. The next day, Island County chief criminal deputy prosecutor Eric Ohme checked the automated recording system and saw Koeller made an outgoing, 15-minute phone call to Lisa Nagle that day. Ohme began playing the call and heard Platt's voice, so he shut off the recording. Ohme heard only eight seconds of the phone call. He immediately told Platt about the recording and told the jail to register Platt's phone number because it had failed to shield Platt from being recorded. On March 26, 2019, about one week before the scheduled start of trial, Koeller filed a CrR 8.3(b) motion to dismiss as a result of the recording. The court denied the motion. In its ruling, the court found no one else "in connection with the State of Washington listened to the conversation."18
¶17 Koeller contends the court abused its discretion by denying his motion to dismiss because Island County jail chief Jose Briones did not testify, making it "untenable to conclude that no other person listened to the conversation."19 Although he does not assign error to that specific finding of fact, we construe his argument as challenging it as lacking substantial evidence.
Substantial evidence supports a finding of fact where a sufficient quantity of evidence exists to persuade a reasonable person of its truth.20 Unchallenged findings are verities on appeal.21
¶18 Ohme testified he heard Koeller say, "Hello," heard Platt reply, "Let me take you off speaker phone," and immediately stopped the recording.22 He estimated hearing about eight seconds of the call. Ohme shared none of what he heard. An access log from the recording system showed only Ohme accessed that recording. From this, a reasonable factfinder could conclude Ohme heard nothing of substance and that no one else from the State heard the phone call.23 The remaining issue, which we review de novo, is whether the court's findings supported its legal conclusion.24
¶19 A criminal defendant has a constitutional right to confer privately with defense counsel.25 Where the government violates this right, it creates a rebuttable presumption of prejudice...
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