State v. Streiff

• Court: Washington Court of Appeals
• Writing for the Court: GLASGOW, J.
• Decision Date: 09 March 2021
• Docket Number: 54170-0-II
• Citation: State v. Streiff, 54170-0-II (Wash. App. Mar 09, 2021)
• Parties: STATE OF WASHINGTON, Respondent, v. JASON DONALD STREIFF, Appellant.

STATE OF WASHINGTON, Respondent, v. JASON DONALD STREIFF, Appellant.

No. 54170-0-II

Court of Appeals of Washington, Division 2

March 9, 2021

UNPUBLISHED OPINION

GLASGOW, J.

Jason Donald Streiff appeals his convictions for three counts of third degree child molestation and his sentence. He raises numerous claims, including improper venue for count III violation of his right to vicinage for count III insufficient evidence for count I, improper opinion testimony, prosecutorial misconduct, unconstitutional to convict instructions, a double jeopardy violation, sentencing errors, ineffective assistance of counsel, and cumulative error.

Streiff timely objected to venue on count III, and the trial court erred by denying his motion to sever or dismiss the count without prejudice. The remainder of Streiff s claims do not merit reversal. We reverse count III without prejudice affirm counts I and II, and remand for resentencing consistent with this court's opinion.

FACTS

Two cousins, 14-year-old CMJ and 15-year-old KLW, separately reported to their families, and eventually to law enforcement, that Streiff molested them after a family birthday party in Winlock, in Lewis County. Streiff was a friend of CMJ's father and KLW's stepfather. He attended the family birthday party, drank significantly, and spent the night in the basement of KLW s home. Both girls reported that Streiff molested them in the middle of the night, or the early morning hours of the following day, while they were trying to sleep.

CMJ testified that she fell asleep on the floor of the bedroom where Streiff was sleeping. She woke up to Streiff getting "on top of her and kissing her on the lips. 1 Verbatim Report of Proceedings (VRP) at 166. When CMJ started to get up, Streiff grabbed her hand and asked her to "come cuddle with him." 1 VRP at 167. As she left the room CMJ noticed that Streiff had started to unzip his pants. She went out to sleep on a futon in between her brother and another cousin. Later, CMJ testified that Streiff came and laid "on top of her again. 1 VRP at 168. "He was trying to find [her] lips" again, but her head was turned. Id. Streiff did not stop until CMJ's brother made a noise. These incidents formed the basis of count I.

KLW testified that she was in bed in a different bedroom around 6:00 a.m. when Streiff got into bed with her, put his arm over her, and started kissing her neck and by her ear. She testified that Streiff "put his hand on [her] chest underneath . . . [her] shirt," and that after she told him to stop, he "push[ed his hand] downwards down [her] body down to [her] lower private part" over her clothing. 2 VRP at 277. Streiff "rubbed a little bit," and then KLW pushed him off and left the room. 2 VRP at 278. This was the basis for count II.

CMJ lives with her family in Castle Rock, in Cowlitz County. CMJ testified that on the day after the party, Streiff came over to her house and sat next to her on the couch. CMJ's dad was in the room, sitting on another couch, and CMJ testified that "when [her] dad looked away to the TV video games, [Streiff] would grab [her] breasts or ... go down there with his hand over [her] clothes." 1 VRP at 170. CMJ clarified that by "down there" she meant "the vagina area." 1 VRP at 171. This was the basis for count III.

Both girls told their parents about these incidents, and both girls' parents reported the incidents to police. After interviewing CMJ and KLW, Deputy Andrew Scrivner arranged an interview with Streiff to discuss the allegations.

Streiff agreed to the interview, and the two met at Streiff s home. Scrivner did not give Miranda^[1] warnings prior to the interview. When asked about the allegations from the night of the party, Streiff said that he did not remember anything and "he may have blacked out." 1 VRP at 126. When asked about the allegation that he grabbed CMJ during the day while her dad played video games, Streiff denied it. At a CrR 3.5 hearing, the trial court ruled that this was a noncustodial interrogation and Streiff s statements during the interview were admissible.

Before trial, Streiff moved to dismiss or sever count III because venue was improper. Streiff explained that the conduct alleged in count III occurred in Cowlitz County, not Lewis County. The State agreed that the alleged offense occurred in Cowlitz County, but nevertheless argued that it was permissible to join the counts for trial. The trial court denied Streiff s motion, finding that the counts were "closely related." 1 VRP at 8. Streiff did not argue vicinage as a separate basis for dismissing count III.^[2] The jury found Streiff guilty of all three counts. Streiff appeals his convictions and his sentence.

ANALYSIS

I. Venue for Count III

Streiff argues the trial court violated his constitutional right to proper venue because it tried him in Lewis County for conduct that occurred in Cowlitz County. We agree.

A. Additional Facts Related to Venue

The State filed an information in Lewis County Superior Court on December 7, 2018, alleging two counts of third degree child molestation. Count I was based on sexual contact with CMJ, and count II was based on sexual contact with KLW. In the affidavit of probable cause filed on the same date, the State described only the events occurring during the night and early morning hours after the birthday party, including that Streiff laid on top of CMJ twice and kissed her, or tried to kiss her, in two different rooms.

At the time of the omnibus hearing on April 11, 2019, the State had only charged Streiff with counts I and II.

On April 19, 2019, the State added count III, also alleging sexual contact with CMJ. The only difference between counts I and III was that the State alleged count I occurred "[o]n or about and between August 11th, 2018 through August[ 12th], 2018, both days inclusive," while it alleged count III occurred "[o]n or about August 12th, 2018." Clerk's Papers (CP) at 11-12. The amended information alleged that count III occurred "in the County of Lewis." CP at 12. The record does not contain a new affidavit of probable cause.

Streiff was arraigned on the amended information on April 25, 2019. When Streiff was arraigned, the trial court noted that count III involved the same victim as count I, and defense counsel stated that "the conduct alleged occurred during the same period of time with the same victim." VRP (Apr. 25, 2019) at 6. There was no other discussion about the facts underlying count III at this time.

On July 18, 2019, the trial court held a hearing to confirm the trial. The trial court denied a defense motion for a continuance, and set trial to begin the following week. Also on July 18, 2019, at 4:43 p.m., the State filed a second amended information alleging that count III occurred "in the State of Washington," but not in Lewis County specifically. CP at 19.

As a preliminary matter on the first day of trial, July 23, 2019, the trial court proceeded with arraignment on the second amended information. Streiff s counsel objected to count III on the basis of venue, moving to sever or dismiss the count. Counsel explained that the second amended information "provid[ed] notice of a specific incident the State's alleging . . . occurred in Castle Rock which is in Cowlitz County, Washington." 1 VRP at 5. Streiff s counsel argued that this was his first opportunity to object to venue on count III.

The State responded that it was the first amended information that added count III, saying, "[W]e've discussed that I am adding this third count for what happened on the second day of August 12th in Castle Rock" and it was "clear from the police report. . . that what happened on the second day was in Castle Rock." 1 VRP at 6. The State admitted it was "a mistake" to designate Lewis County as the location of the offense in the information, but argued that it was nevertheless permitted to join the offenses in a single charging document as either acts of "the same or similar character" or "a single scheme or plan" under the joinder provision in CrR 4.3(a). 1 VRP at 6-7.

When the trial court clarified that this was an objection to venue, not joinder, the State argued that the court had authority to hear count III in Lewis County "in the interest of justice, in the interest of judicial economy," because it occurred "just a few hours after" the other two counts and involved the same witnesses. 1 VRP at 7. The State did not expressly argue that Streiff had waived his venue challenge by failing to raise it earlier.

The trial court denied Streiff s motion to sever or dismiss count III, finding that it had jurisdiction and count III was "closely related" to the other counts charged. 1 VRP at 8.^[3]

B. Venue

Article I, section 22 of the Washington Constitution provides, "In criminal prosecutions the accused shall have the right... to have a speedy public trial by an impartial jury of the county in which the offense is charged to have been committed." CrR 5.1(a) also mandates, "All actions shall be commenced" in either the county "where the offense was committed" or "any county wherein an element of the offense was committed or occurred."

Ordinarily we review a trial court's decisions regarding venue for an abuse of discretion. State v. Stearman, 187 Wn.App. 257, 264, 348 P.3d 394 (2015). The trial court has discretion where the motion to change venue alleges that the defendant may receive an unfair trial in the prosecuting county or be prejudiced by pretrial publicity. See, e.g., State v. Clark, 143 Wn.2d 731, 756, 24 P.3d 1006 (2001); State v. Munzanreder, 199 Wn.App. 162, 180, 398 P.3d 1160 (2017). But where the defendant's motion to change venue alleges that the prosecution is in an improper county, the court rules do not...