State v. Lachance, No. 36586-3-II (Wash. App. 5/5/2009)

• Court: Washington Court of Appeals
• Writing for the Court: Hunt
• Decision Date: 05 May 2009
• Docket Number: No. 36586-3-II
• Citation: State v. Lachance, No. 36586-3-II (Wash. App. 5/5/2009), No. 36586-3-II (Wash. App. May 05, 2009)
• Parties: STATE OF WASHINGTON, Respondent, v. JOSEPH FREDRICK LACHANCE, JR. Appellant.

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Unpublished Opinion

STATE OF WASHINGTON, Respondent, v. JOSEPH FREDRICK LACHANCE, JR. Appellant.

No. 36586-3-II

Court of Appeals of Washington, Division Two

Filed: May 5, 2009.

Appeal from Lewis County Superior Court. Docket No: 07-1-00136-5. Judgment or order under review. Date filed: 07/16/2007. Judge signing: Honorable H John Hall.

Counsel for Appellant(s), Casey Grannis, Nielsen Broman & Koch, PLLC, 1908 E Madison St, Seattle, WA, 98122-2842.

Counsel for Respondent(s), Lori Ellen Smith, Lewis Co. Prosecuting Atty. Office, 345 W Main St Fl 2, Chehalis, WA, 98532-4802.

UNPUBLISHED OPINION

HUNT, J.

Joseph Frederick LaChance, Jr. appeals his jury convictions for third-degree rape of a child (counts I and III) and distribution of a controlled substance to a person under 18-years-old with sexual motivation (counts II, IV, V, and VI). LaChance argues that (1) multiple instances of prosecutorial misconduct violated his right to a fair trial; (2) his defense counsel rendered ineffective assistance in failing to object to improper propensity evidence under ER 404(b) and in asking the court, during a sentencing-amendment hearing in LaChance's absence, to order the county auditor to pay LaChance's attorney fees; (3) his Amended Judgment and Sentence require vacation because he was not present for the amendment; (4) the trial court erred in ordering the Department of Corrections (DOC) to give LaChance less credit for time served than was actually due; and (5) the trial court erred in denying defense counsel's motion for mistrial based on prosecutorial misconduct. We affirm.

FACTS

I. Crimes and Investigation

In January 2006, 15-year old MM and 13-year old MD spent the night at their friend JL's house. After JL fell asleep, MM and MD went to a nearby bedroom to smoke methamphetamine with JL's 44-year old father, Joseph Frederick LaChance Jr. According to MM and MD, LaChance gave them methamphetamine, showed them how to smoke it, and smoked it with them while they all watched a pornographic movie and engaged in sexual activity; this sexual activity included LaChance's having sexual intercourse with MM. The girls were inconsistent as to whether LaChance also had sexual intercourse with MD that night.

Deputy Sheriff Susan Kathleen Shannon responded to a call from the White Pass Coalition Counseling Center to investigate a report that MM, one of the Center's patients, had been smoking methamphetamine and having sexual intercourse with an adult male. After interviewing MM, Shannon learned about MM's and MD's drug use and sexual activity with LaChance.

Shannon served a search warrant on LaChance and searched his residence and car. During her search of LaChance's bedroom, Shannon found methamphetamine and related paraphernalia in a small blue zipper bag. The items in the bag included methamphetamine, a glass pipe coated in white residue, small baggies, and scales. In addition to the drug paraphernalia, Shannon found pornographic materials in LaChance's bedroom. These materials included DVDs, entitled "Tasty Teens," "Barely Legal Horny Girls," and "Sweet Young Girls"; and various pornographic magazines.

After giving LaChance his Miranda¹ warnings, Shannon interviewed LaChance. He admitted to having shared methamphetamine with MM on numerous occasions. When Shannon asked about his having had sex with MM, he at first denied it, stating that he knew she was under 18 years old. After Shannon told LaChance that the age of consent was 16, however, LaChance admitted to having had sex with MM on numerous occasions after she had turned 16-years-old, but not before her 16th birthday. LaChance also admitted that he knew MM's age because the two shared the same birthday and he had attended MM's 15th and 16th birthday parties.

Shannon asked LaChance about specific instances when he had smoked methamphetamine and had sex with MM after she had reached the age of 16. LaChance admitted to (1) sneaking MM into his house when his brother was home (so the brother would not see MM); (2) then smoking methamphetamine with MM and having sex with her in his (LaChance's) bedroom; and (3) picking up MM at school in February 2007 and taking her to a logging road/campsite area on more than one occasion to have sex and smoke methamphetamine.

When Shannon asked LaChance specifically about the January 2006 incident, he admitted that (1) MM and MD had come into his bedroom; (2) the three of them had smoked marijuana (rather than methamphetamine); (3) they had watched a Disney movie (rather than a pornographic movie); and (4) he had given the girls each a "second hit" of the "marijuana," which is like a mouth-to-mouth kiss during which LaChance blew smoke into their mouths after taking a hit himself. When Shannon asked LaChance if he had sex with the girls during that incident (when MD was 13 and MM was 15), he denied it.

II. Procedure

The State charged LaChance with two counts of third degree child rape (counts I and III), three counts of distribution of a controlled substance to someone under 18 years old with sexual motivation (counts II, IV, and V), and one count of possession of a controlled substance with intent to deliver with sexual motivation (count VI).

A. Pretrial

During a pretrial motion in limine, LaChance's counsel argued that evidence about MM and LaChance's having had sex and smoking methamphetamine on a logging road was inadmissible under ER 404(b). The trial court denied the motion, advising LaChance's counsel, however, that it was not foreclosing him from making specific objections under ER 404(b) during trial.

B. Trial

During trial, the trial court admitted 21 pornographic DVDs into evidence as exhibit 10. Defense counsel did not object.

1. MM's testimony

At trial, MM testified about the January 2006 incident, stating that, for the first time, she had smoked methamphetamine that night with LaChance, who had provided and identified the substance as "methamphetamine." MM testified that she and MD had gotten "high" with LaChance and that they then "all ended up messing around," which involved LaChance's inserting his fingers and dildos into the girls' vaginas. When the State showed MM a 10-inch dildo (exhibit 13), MM identified it as the same dildo that LaChance had used on her. MM further testified that while she was high, LaChance played a pornographic movie and had sex with her, but, to her knowledge, MD did not have sex with LaChance.

MM also testified that (1) she smoked methamphetamine and had sex with LaChance "a lot," during a nine-month period; and (2) LaChance routinely got her high, used the dildo on her, and had sex with her. When the State asked why she had sex with a man who was over 40 years old, MM responded, "I was gone, out of my mind, I was high all the time." Report of Proceedings (RP) (May 24, 2007) at 19.

2. MD's testimony

After MM finished testifying, the State attempted to call MD, but she did not appear. According to the record, a delay in the proceedings followed. Apparently Michael L. Golden, the elected county prosecutor, then loudly told the deputy prosecutor that MD was very nervous about testifying, prompting the trial court to call a recess.

After the jury had left the room, the trial court stated:

Mr. Golden has left the courtroom again. He's not an attorney of record for the trial. He's prohibited by bar rules of decorum from stepping in front of the bar if he's not an attorney of record, number one. Number two, he loudly announced what the problem is. I heard it, I'm sure the jurors heard it. And if you have got a problem with the witness, get it straightened out. RP (May 24, 2007) at 37-38. The deputy prosecutor assigned to the case responded, "Yes, sir." Shortly thereafter, the trial court announced that it would reconvene. The jury reentered the courtroom, trial resumed, and the State called MD to the witness stand.

MD testified about the January 2006 incident, mostly consistent with MM's testimony. MD testified that she and MM had smoked methamphetamine, watched pornography, and used dildos with LaChance, and that LaChance had had sex with her (MD) during the January 2006 incident.

3. Motion for Mistrial

After MD finished testifying, defense counsel moved for a mistrial based Golden's prosecutorial misconduct. LaChance's counsel argued that Golden's inappropriate interruption, which the jury had heard, unduly prejudiced LaChance.

The trial court denied the motion, reasoning that Golden's inappropriate conduct did not prejudice LaChance because the jury had an opportunity to see MD on the witness stand, to hear her testimony, and to determine for themselves whether she was nervous about testifying.

4. LaChance's testimony

LaChance testified that (1) he did not deliver methamphetamine to MM and MD during the January 2006 incident; (2) MD had provided the methamphetamine for the January 2006 incident and the three of them had smoked it together; (3) he did not have sexual contact with MM or MD in January 2006; and (4) he did not watch a pornographic movie with them.²

5. Jury instructions

The jury instructions contained the following directions: "The only evidence you are to consider consists of the testimony of the witnesses and the exhibits admitted into evidence." Clerk's Papers (CP) at 39. "You will disregard any evidence that was not admitted or that was stricken by me." CP at 40. Additionally, the jury instructions provided:

The attorneys' remarks, statements and arguments are to help you understand the evidence and apply the law. They are not evidence. Disregard any remark, statement or argument that is not supported by the evidence or the law as stated by the Court.

CP at 40.

6. Verdict

The jury found LaChance guilty of: distributing a controlled substance to a person under 18 years old (counts II, IV, V); third degree child rape (counts I, III); and the lesser included offense of simple possession of a controlled substance (count VI). The jury also returned...