State v. Severson
| Decision Date | 29 March 2016 |
| Docket Number | 46359-8-II |
| Court | Washington Court of Appeals |
| Parties | STATE OF WASHINGTON, Respondent, v. MICHAEL JOE SEVERSON, Appellant. |
UNPUBLISHED OPINION
Michael Joe Severson appeals his convictions for four counts of first degree child molestation of K.C.-J. and J.N.K.[1] Severson makes copious arguments including that (1) K.C.-J. was not competent to testify, (2) K.C.-J.'s hearsay statements were inadmissible, (3) the State committed several instances of prosecutorial misconduct, and (4) trial counsel rendered ineffective assistance. We affirm.
Michael Severson met S.C., the mother of K.C.-J. and J.N.K., through a mutual friend. S.C. was working a graveyard shift and needed help taking care of K.C.-J. and J.N.K. who were four and ten years old, respectively. Severson eventually moved into S.C.'s apartment. The children referred to Severson as "Mikey." V Verbatim Report of Proceedings (VRP) (April 15, 2014) at 383. S.C., who was taking methadone spent most of the day in her bedroom sleeping.
Bill Campbell lived in another apartment in the same complex and eventually moved in with S.C., the children, and Severson. Campbell saw interactions between Severson and the girls that concerned him. One night Campbell witnessed J.N.K. hugging Severson and sitting on the couch "[l]ike a boyfriend and girlfriend would, " around 1:00 AM. IV VRP (April 14, 2014) at 291. Campbell also witnessed K.C.-J. straddling Severson on the couch several times. At trial, Campbell testified, IV VRP (April 14, 2014) at 293-94.
Mike Thomas was friends with S.C., the girls, and Severson. One day, while Thomas was watching K.C.-J. play in his yard he saw her hit herself repeatedly in her groin area. He asked her why she was hitting herself, and K.C.-J. responded "Mikey does it." V VRP (April 15, 2014) at 457. Thomas described K.C.-J.'s action as mimicking male masturbation. After that episode, Thomas began paying close attention to Severson's interactions with the girls and noticed that Severson would rub K.C.-J.'s upper inner thigh while she sat on his lap and frequently seemed possessive and controlling of the girls. Shortly thereafter Thomas expressed his concerns about Severson's interactions with the girls to S.C., stating that he thought Severson was "grooming" the girls. V VRP (April 15 2014) at 458.
After Thomas expressed his concerns to S.C., SC talked to Campbell, and then she sat each girl down individually and asked if Severson had ever made them feel uncomfortable. K.C.-J. told S.C. that Severson made her uncomfortable and disclosed that Severson had rubbed her "no-no."[2], [3] V VRP (April 15, 2014) at 402.
After her conversation with the girls, SC called law enforcement which started an investigation. Each child underwent a medical examination and a forensic interview. Keri Arnold conducted video-recorded forensic interviews with each girl. The State charged Severson with two counts of first degree child molestation of J.N.K., and two counts of first degree child molestation of K.C.-J.
At a pretrial hearing, the State asked the trial court to rule three out-of-court statements made by K.C.-J. to S.C., Thomas, and during the forensic interview, admissible as child hearsay under RCW 9A.44.120, and to find K.C.-J. competent to testify at trial.[4] Severson made no objection to the admission of the three statements under RCW 9A.44.120 or to K.C.-J.'s competency to testify at trial. The trial court ultimately found the statements satisfied the Ryan reliability test, and found K.C-J. competent to testify at trial. State v. Ryan, 103 Wn.2d 165, 173-77, 691 P.2d 197 (1984).
At trial, Campbell and Thomas testified as described above. K.C.-J. testified that a "bad thing" had happened to her with Severson in their living room, describing that Severson touched her "no-no" and would not stop when she asked him to. IV VRP (April 14, 2014) at 164. J.N.K. also testified that Severson had done "bad things" such as touching her "no-no." IV VRP (April 14, 2014) at 207. Arnold testified about the forensic interviews she conducted with K.C.-J. and J.N.K., and the video recording of her interview with K.C.-J. was admitted into evidence.
Severson testified in his defense, and denied inappropriately touching either K.C.-J. or J.N.K. Severson also testified that he may have accidentally touched the girls' vaginal areas.
A jury later returned a verdict of guilty on all counts. Severson appeals.
Severson argues that the trial court erred by finding K.C.-J. competent to testify. Severson failed to preserve the issue of K.C.-J.'s competency for appeal by conceding it at the pretrial hearing.
We generally will not consider a claimed error that was not raised in the trial court. RAP 2.5(a).[5] This allows the trial court to correct any error called to its attention, thus avoiding needless appeals and retrials. State v. O'Hara, 167 Wn.2d 91, 98, 217 P.3d 756 (2009).
At the pretrial hearing regarding K.C.-J.'s hearsay statements, Severson made no objection to K.C.-J.'s competency. Rather, Severson's counsel stated:
K.C.-J. testified at the pretrial hearing and again at trial. Severson made no objection at any time to K.C.-J.'s competence, and as his comments at the pretrial hearing show, he conceded that K.C.-J. was competent to testify. As a result, Severson failed to preserve this issue for appeal and we do not address it.[6]
II. K.C.-J.'s Out-of-Court Statements
Severson argues that the trial court erred by admitting K.C.-J's three out-of-court statements made to S.C., to Arnold, and to Thomas, as child hearsay under RCW 9A.44.120. We hold that Severson failed to preserve the issue of K.C.-J.'s out-of-court statements' admissibility by failing to object to them at the pretrial hearing.
As explained above, an appellate court generally will not consider a claimed error that was not raised in the trial court. RAP 2.5(a).[7] A party objecting to the admission of evidence must make a timely and specific objection in the trial court. ER 103. Failure to object precludes raising the issue on appeal.
Here, the trial court held a pretrial hearing outside the jury's presence regarding the admissibility of K.C.-J's out-of-court statements. At the hearing, Severson's counsel explained:
I'm going to be frank with the Court. I would just ask the court to go through the Ryan factors. I don't have any specific arguments that these statements should not be admitted. I think the Court can go through the analysis of these factors and just make a record, but I don't have any specific objections.
II VRP (April 9, 2014) at 122-23. The court found the Ryan factors were satisfied and ruled the out-of-court statements admissible.
Because Severson did not timely object to the admission of K.C.-J's out-of-court statements, he failed to preserve this issue and we do not address it.
Severson argues the trial court erred by admitting improper perpetrator profile testimony from Detective Eggleston. We disagree because Severson did not object to Detective Eggleston's testimony as improper profile testimony, and therefore he did not properly preserve this issue for appeal.
As a general rule, perpetrator profile testimony is improper because it carries with it the "implied opinion that the defendant is the sort of person who would engage in the alleged act, and therefore did it in this case too." State v. Braham, 67 Wn.App. 930, 939, n.6, 841 P.2d 785 (1992). However, Severson did not object to Detective Eggleston's testimony on this basis at trial. Instead, he objected to the relevance of the State's line of questioning.[8] A party may only assign error on appeal based on the specific ground of the evidentiary objection at trial. State v. Guloy, 104 Wn.2d 412, 422, 705 P.2d 1182 (1985), cert. denied, 475 U.S. 1020, 106 S.Ct. 1208, 89 L.Ed.2d 321 (1986). An objection to the admission of evidence based on relevance fails to preserve the issue for appellate review based on improper perpetrator testimony. See Guloy, 104 Wn.2d at 422. Consequently, we hold that Severson did not preserve this issue for appeal.
Severson argues that the State committed several instances of prosecutorial misconduct including improperly eliciting witnesses' opinions of guilt, violating motions in limine, and by making improper closing argument. We disagree.
To prevail on a prosecutorial misconduct claim, a defendant must show that the prosecutor's conduct was both improper and prejudicial. State v. Thorgerson, 172 Wn. 2d 438, 442, 258 P.3d 43 (2011). To show prejudice, a defendant must show a substantial likelihood that the misconduct affected the verdict. 172 Wn.2d at 442-43. In analyzing prejudice, we do not look at the comment in isolation, but in the context of the total argument, the issues in the case, the evidence, and the instructions given to the jury. State v. Yates, 161 Wn.2d 714, 774, 168 P.3d 359 (2007).
A defendant who fails to object to the prosecutor's improper act at trial waives any error, unless ...
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