State v. Payne
| Decision Date | 28 July 2015 |
| Docket Number | No. 32096-1-III,32096-1-III |
| Court | Washington Court of Appeals |
| Parties | STATE OF WASHINGTON, Respondent, v. RICHARD MICHAEL PAYNE, Appellant. |
BROWN, J. — Richard Payne appeals his conviction for two counts of first degree child molestation and one count of felony indecent exposure. He contends the trial court erred by (1) admitting his 2001 conviction for attempted first degree child molestation under ER 404(b); (2) rejecting his offer to stipulate to the existence of the 2001 conviction; (3) denying him public funds to pay for defense counsel's out-of-state travel costs; (4) violating the appearance of fairness doctrine; (5) violating his right to confront his accuser; (6) denying his Knapstad1 motion for one molestation count; (7) denying his motion to dismiss for governmental misconduct; (8) violating his right to be present at a show cause concerning his counsel's contempt; (9) refusing to give a missing witness jury instruction; and (10) admitting his statements. We reject Mr. Payne's contentions and thus do not reach his cumulative error contention. We find nomerit in Mr. Payne's pro se statement of additional grounds for review (SAG), including his lifetime sentencing and evidence sufficiency concerns. Accordingly, we affirm.
Around 8:00 p.m. on June 21, 2012, officers responded to a call at Northtown Mall in Spokane regarding a male who had exposed himself and touched A.R.H., a five-year-old girl. Officers were told the incident occurred at Bumpers arcade. Bumpers' video surveillance captured the incident on camera. A Bumpers employee identified Mr. Payne as the male in the surveillance video.
Approximately two hours earlier that evening, A.R.H., accompanied by her 19-year-old brother and his girlfriend, B.C., and B.C.'s 11-year-old sister K.C., went to Bumpers while A.R.H.'s mom, Heather Holland, and K.C.'s grandmother went shopping. A.R.H. and K.C. left their older siblings to play a game. According to K.C.'s testimony at trial, Mr. Payne came up to the girls and said he was going to watch them play. K.C, believing this behavior was "kind of stalkerish," told A.R.H. they should "get away." 5 Report of Proceedings (5 RP) at 838. The girls went to a skateboarding game; K.C. was on the game while A.R.H. stood next to her. K.C. saw Mr. Payne standing behind A.R.H., rubbing A.R.H.'s leg, pulling up her skirt, and touching her buttocks while his penis was out. K.C. was uncomfortable; she took A.R.H. and walked away. K.C. testified while Mr. Payne touched A.R.H., A.R.H. "[got] really pale like she was freaking out" and was speechless. 5 RP at 841. K.C. and A.R.H. found B.C. and told her what happened. A.R.H.'s brother noted A.R.H. was "blank" and K.C. was shocked andscared. B.C. noted K.C. was crying, shaking, and pale. A.R.H.'s brother failed to find Mr. Payne before reporting the incident to mall security.
Ms. Holland was notified of the incident. When she got to Bumpers, she noticed K.C. was "stressed and not herself." 5 RP at 708. Ms. Holland watched the surveillance video. When she first watched the video, she thought she saw Mr. Payne pull his penis out of his pants; this caused her to scream and cry. Upon reviewing the video, she said she did not see Mr. Payne pull his penis out but he did fondle himself. She maintained Mr. Payne had his hand on A.R.H.'s backside. A.R.H.'s brother, after watching the video, testified he saw Mr. Payne pull his penis out of his pants. K.C. also watched the video in the presence of Ms. Holland, A.R.H.'s brother, B.C., and her grandmother; she noted everybody was "disgusted and crying." 5 RP at 849. She stated she did not see Mr. Payne's penis on the video because he was behind a big pillar. Ms. Holland, A.R.H.'s brother, B.C., and K.C. testified at trial.
Detective Jerry Hensley investigated the case. After identifying the man in the surveillance video as Mr. Payne, he and Detective Paul Lebsock went to Mr. Payne's address. The detectives were dressed in plain clothes, but their guns were visible. Upon arrival, Detective Hensley walked directly to the front door and rang the doorbell; there was no response. Detective Lebsock, thinking somebody might be working in the backyard given the nice weather, went to the driveway and noted the six foot vinyl fence surrounding the backyard. He could see over the fence from the driveway and saw a man; Detective Lebsock walked along the side of the fence, verbally identified himself,and asked the man to come talk to them. Mr. Payne readily came over, exited the gate, and talked with the detectives while standing in his driveway.
After identifying himself, Detective Hensley read Mr. Payne his constitutional rights; Mr. Payne waived his rights and agreed to talk. Mr. Payne was calm, cooperative, did not appear to be under the influence of anything, and gave appropriate and responsive answers. Payne admitted to being at the mall on the day in question. After being told there was a video of the incident, Mr. Payne repeatedly said, "'I should not have been there.'" 5 RP at 763. After being advised witnesses said he removed his penis from his shorts, Mr. Payne admitted to touching a girl on the thigh and buttocks while his penis was out. He claimed it was just a random act.
While talking with the detectives, Mr. Payne's girlfriend arrived. The detectives introduced themselves and told her she was welcome to stay. Mr. Payne then looked at her and said, "'I touched a girl.'" 5 RP at 767. In response to a direct question, Mr. Payne admitted he did this for sexual gratification. In the CrR 3.5 hearing, Mr. Payne argued these statements were the product of coercion and were obtained via an illegal search and seizure. The trial court concluded Mr. Payne's statements to the detectives were freely and voluntarily made, legally obtained, and could be introduced at trial. At trial, Mr. Payne denied touching anyone or exposing his penis.
There were numerous other pre-trial proceedings. The trial court admitted evidence of Mr. Payne's 2001 attempted first degree child molestation conviction as a charged element elevating count III, indecent exposure, to a felony. The court admittedthe prior conviction under ER 404(b) to show proof of a common scheme or plan, motive or intent, and to refute a claim of accident or mistake. At trial, the victim of the 2001 conviction and her mother testified. Defense counsel was found in contempt of court before trial concerning his failure to appear at a hearing, a subject of a separate appeal; the show cause hearing was held without Mr. Payne's presence.
Mr. Payne was charged and convicted of two counts of first degree child molestation and one count of felony indecent exposure. He was sentenced as a persistent sex offender to life in prison without the possibility of release. He appealed.
The issue is whether the trial court erred by admitting Mr. Payne's 2001 attempted first degree child molestation conviction under ER 404(b) to show common scheme or plan, intent, and/or lack of accident. Mr. Payne contends admission of his prior conviction purely showed propensity and was more prejudicial than probative. He challenges the trial court's ER 404(b) findings of fact and conclusions of law.
We review a trial court's evidentiary rulings for an abuse of discretion. State v, Slocum, 183 Wn. App. 438, 449, 333 P.3d 541 (2014). "Atrial court abuses its discretion when its decision is manifestly unreasonable or exercised on untenable grounds or for untenable reasons, i.e., if the court relies on unsupported facts, takes a view that no reasonable person would take, applies the wrong legal standard, or bases its ruling on an erroneous view of the law." Id. (quoting State v. Hudson, 150 Wn. App.646, 652, 208 P.3d 1236 (2009)). We may affirm the trial court on any correct ground. State v. Gresham, 173 Wn.2d 405, 419, 269 P.3d 207 (2012).
ER 404(b) prohibits the use of "[e]vidence of other crimes, wrongs, or acts to prove the character of a person in order to show action in conformity therewith." However, that "same evidence may be admissible for other purposes, depending on its relevance and the balancing of the probative value and danger of unfair prejudice." Slocum, 183 Wn. App. at 448. ER 404(b) contains a nonexclusive list of other purposes for which the evidence may be admitted, including to show a plan, intent, or absence of accident. Id.
The ER 404(b) evidence proponent must demonstrate a proper purpose for admission of a person's prior bad acts. Id. Before a trial court can admit evidence of bad acts, it must "(1) find by a preponderance of the evidence that the misconduct occurred, (2) identify the purpose for which the evidence is sought to be introduced, (3) determine whether the evidence is relevant to prove an element of the crime charged, and (4) weigh the probative value against the prejudicial effect." Gresham, 173 Wn.2d at 421. Doubts as to the admissibility of prior bad acts are resolved in the defendant's favor. State v. Trickier, 106 Wn. App. 727, 733, 25 P.3d 445 (2001).
The third and fourth steps are at issue here. Mr. Payne disputes any crime occurred; thus, the existence of a design to inappropriately touch children evidenced by a pattern of past behavior is probative. See State v. DeVincentis, 150 Wn.2d 11, 17-18, 74 P.3d 119 (2003); Slocum, 183 Wn. App. at 456 (). Provided Mr. Payne's prior conviction is sufficient to show a common scheme or plan and is more probative than prejudicial, it may be admitted.
Evidence may be admissible to show a common scheme or plan where "an individual devises a plan and uses it repeatedly to perpetrate separate but very similar crimes." State v. Lough, 125 Wn.2d 847, 855, 889 P.2d 487 (1995). A common scheme...
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