State v. Slocum

• Decision Date: 04 September 2014
• Docket Number: No. 31237–2–III.,31237–2–III.
• Citation: 333 P.3d 541
• Parties: STATE of Washington, Respondent, v. Charles Ben SLOCUM, Appellant.
• Court: Washington Court of Appeals

333 P.3d 541

STATE of Washington, Respondent,

v.Charles Ben SLOCUM, Appellant.

No. 31237–2–III.

Court of Appeals of Washington, Division 3.

Sept. 4, 2014.

Kristina M. Nichols, Nichols Law Firm, PLLC, Spokane, WA, for Appellant.

Andrew Kelvin Miller, Anita Isabelle Petra, Benton County Prosecutors Office, Kennewick, WA, for Respondent.

SIDDOWAY, C.J.

¶ 1 Evidence of a criminal defendant's prior bad acts “is objectionable not because it has no appreciable probative value but because it has too much.” 1A John Henry Wigmore, Evidence in Trials at Common Law § 58.2, at 1212 (Peter Tillers rev. ed.1983). It presents a danger that the defendant will be found guilty not on the strength of evidence supporting the current charge, but because of the jury's overreliance on past acts as evidence of his character and propensities. This potential for prejudice from admittingprior acts is “ ‘at its highest’ ” in sex offense cases. State v. Gresham, 173 Wash.2d 405, 433, 269 P.3d 207 (2012) (quoting State v. Saltarelli, 98 Wash.2d 358, 363, 655 P.2d 697 (1982)).

¶ 2 Charles Slocum was convicted of the first degree child molestation and third degree child rape of his step-granddaughter based in part on the testimony of the girl's mother and her paternal aunt that Mr. Slocum had molested them decades earlier, when they were adolescents. Yet the evidence demonstrated that Mr. Slocum's prior acts were mostly opportunistic; the only common “plan” that could possibly be ascribed to all of them was a plan that, if presented the opportunity, Mr. Slocum would molest girls. Something that amorphous is not a plan within the meaning of ER 404(b); it is a criminal propensity. Because the error in admitting evidence of two prior acts of opportunistic molestation was not harmless, a new trial is required.

¶ 3 We reverse the judgment and sentence and remand for a new trial consistent with this opinion.

FACTS AND PROCEDURAL BACKGROUND

¶ 4 In August 2011, Charles Slocum was accused by his 15–year–old step-granddaughter, W.N., of inappropriate touching. W.N. alleged that beginning at the age of 3 or 4, during visits to her grandparents' home, Mr. Slocum rubbed her vagina and breasts, both over and under her clothing. Initially, W.N. told her parents and investigators that the molestation stopped when she was 11 years old.

¶ 5 Mr. Slocum was charged with child molestation in the first degree. He originally pleaded not guilty but later agreed to enter a plea of guilty. According to his trial lawyer, this was with the encouragement of Mr. Slocum's wife, who did not want W.N. to have to testify, and was based upon W.N.'s family's reported support of Mr. Slocum's request that, if eligible, he be sentenced under the special sex offender sentencing alternative (SSOSA), RCW 9.94A.670(2).

¶ 6 After entry of Mr. Slocum's guilty plea, W.N.'s family learned from her that the touching continued beyond her 12th birthday and that as recently as April 2011, when she was 14 years old, Mr. Slocum molested her in a family travel trailer. On this last occasion, he had inserted his fingers into her vagina.

¶ 7 Following that revelation, W.N.'s family withdrew its support for a SSOSA sentence, which the State reported to the defense. Mr. Slocum moved to withdraw his guilty plea, his motion was granted, and the State then amended its information to enlarge the period covered by the child molestation charge and add a charge of rape of a child in the third degree. Mr. Slocum proceeded to trial on both charges.

¶ 8 Before trial, the court conducted a hearing on the State's motions in limine, which included a motion that the court admit evidence that Mr. Slocum had sexually abused W.N.'s mother and paternal aunt many years earlier. The State argued that the evidence was admissible under ER 404(b) as evidence of a common scheme or plan, and specifically,

a plan to molest children. The defendant would find victims he had access to and would abuse them in his home. He would perform the same type of abuse on similar aged children. Lastly, he was in the same position of authority over each child.

Clerk's Papers (CP) at 96.

¶ 9 The State did not call W.N. as a live witness at the hearing on its motion; instead, it offered police reports of interviews indicating what her anticipated testimony would be. The police report indicated that W.N. told detectives that up until the time she was 11 or 12 years old, Mr. Slocum would frequently rub her vaginal area anytime her grandmother was not around. The police report indicated that when asked how Mr. Slocum would touch her, W.N. told them,

[H]e would call her over to sit in his lap so he could talk to her. He always sits in his recliner. He would always rub her while he talked to her. He acted like it wasn't a big deal.... She demonstrated how he would rub by placing her hand between her legs and rubbing up and down with her fingers in the vaginal area. He would do this for about 5 minutes each time.

CP at 100.

¶ 10 Her subsequent revelation was that sometime in December 2010, when she was 14, Mr. Slocum touched her clothed crotch and breast area; she believed that once again, she had been sitting on his lap. Nothing else happened until Sunday, April 3, 2011, when he entered while she was cleaning her grandparents' travel trailer, locked the door, pushed her down on the couch, and touched her vagina and breasts, both outside and inside her clothing, inserting his fingers in her vagina.

¶ 11 The State called W.N.'s mother and aunt to testify at the hearing on its motion to admit evidence of the prior acts.

¶ 12 W.N.'s mother testified that her parents divorced when she was 7 years old and her mother married Charles Slocum a year or two later, when W.N.'s mother was about 8 or 9. She testified to two incidents of sexual molestation by her stepfather, both of which occurred when she was about 12 years old. According to dates established by testimony at trial, the incidents occurred in or about 1981.

¶ 13 In the first incident, W.N.'s mother was lying on the floor of their home with a blanket, watching television, when, according to her:

[H]e, um, ended up coming down on the floor with me, um, was under the blanket, and I know I had a shirt and a bra on. At first he took my shirt off. I know both my arms were out of my shirt. I don't recall if it was over my head or not. Um, and then he took my bra off and, um, had his hands on my breasts.

Report of Proceedings (RP) (Sept. 10, 2012) at 23. He then rubbed her breasts, although she was unable to say for how long.

¶ 14 In the second, she was also at home and in the same room with her stepfather, who was sitting in a recliner and asked her to sit on his lap. She testified;

I had shorts on, and I sat on his lap, um, and as I recall he had his hand on my stomach at first and was rocking. And as he rocked, his hand just kept going lower and lower until it was rubbing on the outside of my vagina on my shorts and just continued to rock and rub.

Id. at 24. She estimated that the rubbing continued for about 20 minutes.

¶ 15 W.N.'s mother told a friend about the incidents not long after they occurred and the information got back to her mother, Ms. Slocum, who then asked her about the allegations. Ms. Slocum was called as a witness at the hearing and testified that she could recall the conversation with her daughter and while she could not recall “where they were, ... he obviously made her feel uncomfortable and that he was trying to take off her bra.” Id. at 40. Ms. Slocum testified that she spoke with Mr. Slocum about her daughter's complaint. In a detective's report that the State submitted with its motion, the detective indicated that following this conversation with Ms. Slocum, Mr. Slocum did not touch W.N.'s mother again.

¶ 16 W.N.'s aunt testified to one incident of molestation by Mr. Slocum, which occurred when she was about 12; according to dates established by testimony at trial, this would have been in 1996 or 1997. She had gone with her brother (W.N.'s father) to swim at a pool in Mr. Slocum's and his wife's backyard. She testified that they were getting ready to go out swimming, when Mr. Slocum offered to help her put on sunscreen because she could not reach her back. She agreed and, according to her, Mr. Slocum explained that she was most likely to burn near the edge of her swimsuit and then used that explanation to reach under the edges of her swimsuit top, moving his hands around to her front, with his hands eventually placed on her breasts. She testified that she froze and was uncomfortable but that he did not have his hands on her breasts for very long.

¶ 17 After hearing the testimony and argument of the lawyers, the trial judge ruled that he was persuaded by a preponderance of the evidence that the alleged molestation of W.N.'s mother and aunt had occurred, that he believed the incidents of their molestation demonstrated a common plan or design on Mr. Slocum's part to molest children, that he found the evidence to be more probative than prejudicial, and that he would admit the evidence for the purpose of proving a common scheme or plan.

¶ 18 At trial, the State offered the evidence of investigating officers and other individuals to whom W.N. had reported the molestation, W.N.'s mother and aunt, and W.N.

¶ 19 In defending against the charges, Mr. Slocum sought unsuccessfully to offer a recorded statement he had made to police when he was first asked to come in and answer questions about W.N.'s allegations, in which he denied ever touching W.N. inappropriately. He offered his own testimony and that of Ms. Slocum that he had suffered a life-threatening pancreas rupture in 1994 with extensive internal bleeding and organ damage, after which he had been impotent. According to Mr. Slocum, he ceased having sexual desire after that time. He offered evidence of W.N.'s original report to police investigators and others that his inappropriate touching had stopped when she was...