State v. Sampson

• Decision Date: 01 July 2013
• Docket Number: 67868-0-I
• Court: Washington Court of Appeals
• Parties: STATE OF WASHINTON, Respondent, v. MARCEL CERDAN SAMPSON, Appellant.

STATE OF WASHINTON, Respondent,
v.
MARCEL CERDAN SAMPSON, Appellant.

No. 67868-0-I

Court of Appeals of Washington, Division 1

July 1, 2013

UNPUBLISHED OPINION

Dwyer, J.

Marcel Sampson appeals from his convictions of rape of a child in the first degree, child molestation in the first degree, two counts of communication with a minor for immoral purposes, tampering with a witness, and felony violation of a court order. Sampson contends that these convictions must be reversed because the trial court improperly admitted evidence of a prior sexual assault pursuant to RCW 10.58.090, a statute that our Supreme Court has determined is unconstitutional. Because the prosecutor relied on this evidence to argue that Sampson had a propensity to commit the charged sex crimes—an argument that was permissible pursuant to the unconstitutional statute—Sampson contends that the erroneous admission of this evidence had a material effect upon the outcome of his trial. We agree that with respect to Sampson's convictions on the sexually-related charges, the admission of the evidence was not harmless. Accordingly, we remand for a new trial on those counts. As to the other counts, we affirm.

I

In the spring of 2009, the Seattle Police Department initiated an investigation of Sampson based upon the statements of 13-year-old P.R. to her school principal alleging sexual abuse by Sampson. Detective Donna Stangeland, who led the investigation, came to distrust the veracity of P.R.'s account of the events and, consequently, no charges were filed against Sampson based upon P.R.'s allegations.

During the course of the investigation, however, Detective Stangeland also spoke with several of P.R.'s family members. In June 2009, she telephoned Janine Thornton, P.R.'s aunt. After Detective Stangeland explained that she was investigating a sexual complaint against Sampson, Thornton, who had been romantically involved with Sampson in the spring of 2008, decided to speak to her own children regarding their interactions with Sampson during that period.

Thornton asked her eight-year-old daughter, L.R., and her five-year-old son, L.H., whether Sampson had ever touched them. L.R. told Thornton that Sampson had touched her "down below." L.R. also reported that she had witnessed Sampson trying to "put his penis in [L.H.'s] behind." L.H., who was also in the room during the conversation, agreed with his sister that this was true. L.R. also told Thornton that she had witnessed Sampson "playing with himself and that "white stuff" had come out.

L.R. and L.H. were thereafter interviewed individually by Carolyn Webster, a child interview specialist with the prosecutor's office. L.R. told Webster that Sampson had "touched" both her and her brother. She said that she had observed Sampson "put his thing" in L.H.'s "butt." She told Webster that L.H was lying on his stomach and that neither L.H. nor Sampson made any noise during this incident. L.R. then told Webster that Sampson had touched LR.'s "privacy" through her clothes. Webster asked if Sampson had ever asked L.R. to touch his "privacy, " and L.R. answered that Sampson had asked but that she had refused. Webster asked L.R. if she had ever seen "something come out of [Sampson's] privacy, " and L.R. replied that she had seen "sperm" come out.

In a separate interview, L.H. told Webster that his father had said that Sampson was a sex offender.^[1] As had his sister, L.H. reported to Webster that Sampson had stuck "his thing in [L.H.'s] butt." In contrast to L.R.'s version of the event, he told Webster that he had been lying on his back during the incident. L.H. further reported that Sampson had sucked on L.H.'s "wee wee" and that Sampson had "drunk [his] sister's pee." During this interview, L.H. also told Webster that Sampson had been killed by a doctor and that Sampson had "sucked his own wee wee."

Detective Stangeland also contacted Fuhyda Rogers, another former girl friend of Sampson's. Upon learning of the investigation, Rogers asked her four-year-old son, N.P., about his interactions with Sampson. N.P. told Rogers that Sampson would "stick his fingers in [N.P.'s] butt" while N.P. was in the bathtub. Roger's asked N.P. whether he was sure that Sampson had used his fingers and not his "privates." N.P. answered that he was not sure because he did not turn around to look. N.P. later repeated this story during an interview with Webster at the prosecutor's office.

Sampson was thereafter charged by amended information with four counts of rape of a child in the first degree based upon the incidents involving L.H. and N.P. and one count of child molestation in the first degree based upon the incident involving L.R.^[2] In addition, Sampson was charged with two counts of communication with a minor for immoral purposes based upon an allegation by L.R.'s nine-year-old cousin that Sampson had watched a pornographic movie in the presence of the two girls.^[3]

While in jail awaiting trial, Sampson telephoned Rogers on numerous occasions. At least 35 of the calls were placed by Sampson after Rogers obtained a no-contact order against him in July 2009. Based upon the existence of these calls, Sampson was charged with one count of felony violation of a court order—domestic violence.

Sampson also placed several calls to his mother from jail. In one of these conversations, Sampson asked his mother to visit Thornton and offer her money if she would agree not to testify against Sampson. Thornton would later tell the jury that Sampson's mother did in fact come to her house and offer the money. Based upon this incident, Sampson was also charged with one count of witness tampering.^[4]

L.R., L.H., and N.P all testified at trial, repeating to the jury some of the same allegations they had made to Webster during their interviews. However, in contrast to L.R.'s prior statements, at trial, L.R. denied that she had ever witnessed Sampson masturbating. Her brother, L.H., denied that Sampson had ever done anything with his mouth to L.H.'s "front private." L.H. also did not repeat his earlier allegation that Sampson had drunk his sister's urine. Finally, although N.P. told the jury that Sampson had hurt him in the bathtub, he was unable to articulate how this had occurred, first...