State v. Svaleson
| Decision Date | 30 May 2018 |
| Docket Number | No. 48855-8-II,48855-8-II |
| Court | Washington Court of Appeals |
| Parties | STATE OF WASHINGTON, Respondent v. RICHARD IVER SVALESON, JR., Appellant. |
LEE, J. — Richard Iver Svaleson, Jr. appeals his conviction and sentence, arguing that (1) insufficient evidence supported the jury finding that he touched the child victim with intent to gratify his sexual desire; (2) the trial court erred in giving a non-corroboration jury instruction; (3) the trial court erred in allowing improper opinion testimony regarding standard child victim interviewing techniques and the diagnosis of acute stress disorder; (4) the prosecutor engaged in misconduct by (a) improperly shifting the burden of proof, (b) commenting on the victim's demeanor, and (c) urging the jury not to blame the victim; (5) defense counsel was ineffective for failing to object to the prosecutor's misconduct; (6) several community custody conditions were unauthorized by statute, were not crime-related, or were unconstitutionally vague; and (7) the sentencing court erred in imposing discretionary legal financial obligations without considering Svaleson's ability to pay. In a statement of additional grounds (SAG), Svaleson argues that: (1) the prosecutor engaged in misconduct by "prepping" the jury to overlook missing evidence; (2) his trial counsel was ineffective when he (a) failed to object to the prosecutor's line of questioning on whether he was married to the victim, (b) failed to cross the State's experts, and (c) failed to call witnesses on Svaleson's behalf.
We hold that the community custody conditions related to alcohol, social networking websites, and businesses that promote the commercialization of sex were improperly imposed. We also hold that the remainder of the issues Svaleson raises in his direct appeal and SAG do not warrant reversal. Therefore, we affirm Svaleson's conviction, but reverse the trial court's imposition of certain challenged community custody conditions and remand with instructions to strike those community conditions consistent with this opinion.
E.B.1 was born in 2004. Svaleson was born in 1946.
E.B. lived with her parents and her older sister A.B. Because E.B.'s parents both worked, they often asked E.B.'s great-grandmother, Margaret, to watch the girls during school and summer breaks.
Margaret lived with her adult son, Svaleson. Though Svaleson lived in the house and was around when the girls visited, Margaret was solely responsible for watching E.B. and her sister. E.B. referred to Svaleson as "Uncle Dick." 4 Verbatim Report of Proceedings (VRP) (Feb. 29, 2016) at 346.
On December 30, 2014, E.B. and her sister were dropped off at Margaret's house. The girls spent the morning watching television. At one point, E.B. went into the kitchen to getsomething to eat. Svaleson was seated in the kitchen on a "spinning chair." 4 VRP (Feb. 29, 2016) at 353. Svaleson called E.B. over to sit on his lap. E.B. testified that once seated, Svaleson touched her "private areas." 4 VRP (Feb. 29, 2016) at 353. Svaleson reached his hands underneath E.B.'s shirt and touched her chest, with his hands directly touching her skin. In response, E.B. pushed his hands down. Svaleson then rubbed "near" E.B.'s legs "[i]n between [her] kneecap." 4 VRP (Feb. 29, 2016) at 359.
Later that same day, he touched "all" of her "private areas." 4 VRP (Feb. 29, 2016) at 369. Specifically, Svaleson touched the areas she "use[s] to go to the bathroom, number one and number two" over her jeans. 4 VRP (Feb. 29, 2016) at 369. Svaleson's touches made E.B. uncomfortable. E.B. did not tell Margaret or her sister what had happened, but instead told her mother in the car on the way home.
E.B.'s parents spoke with the law enforcement officers about what E.B. had told them about what happened with Svaleson. Svaleson was subsequently charged with one count of first degree child molestation.
At trial, E.B. testified to the facts discussed above. However, she had difficulty remembering several details of that day. For example, she could not remember if she was wearing anything underneath her shirt. She could not remember if Svaleson had said anything to her while he touched her. She also could not recall how long the contact lasted. Initially, E.B. testified that Svaleson "rubbed near [her] legs" after touching her chest, but that he did not touch near or on her private area where she "go[es] number one." 4 VRP (Feb. 29, 2016) at 359. Later, E.B. testifiedthat Svaleson touched all three of her private areas that day, but not at the same time she sat on his lap in the kitchen.
E.B.'s mother testified at trial that E.B. met with a forensic interviewer at the Child Advocacy Center named Stacia Adams. After the incident, E.B. began seeing a counselor named Linda Skinner.
Adams and Skinner also testified at trial. Adams testified that E.B. told her that her Uncle Dick had touched her chest and the private areas "where she peed and pooped from." 6 VRP (Mar. 2, 2016) at 594. In describing the interview process, Adams explained that she was trained to ask children open-ended questions to ensure she does not suggest information to them. Adams stated that this technique ensures "that the interview is going to be more accurate and we know that statistically." 6 VRP (Mar. 2, 2016) at 585. Adams also testified that she solicited narrative events from E.B. because "that's more accurate than saying, like, what usually happens, which would be a script memory." 6 VRP (Mar. 2, 2016) at 585-86. Svaleson did not object to this testimony.
Skinner testified that she began seeing E.B. after her mother reported concerning behavioral changes, including difficulty sleeping, nightmares, and fear of returning to her great-grandmother's house. The prosecutor asked Skinner if she had seen these kinds of behaviors before in other patients. The prosecutor also asked Skinner if these identified behaviors, based on her "education, training, and experience" were "common in people who have been sexually abused[.]" 5 VRP (Mar. 1, 2016) at 537. Skinner answered, "Yes," to both questions. 5 VRP (Mar. 1, 2016) at 537. Skinner also testified that she had diagnosed E.B. with "acute stress disorder," a diagnosis used when a traumatic experience has occurred. 5 VRP (Mar. 1, 2016) at 538. Svaleson did not object to this line of questioning.
Skinner also testified that during their sessions, E.B. stated that Svaleson had said, "Your hands are starting to get warm," as he reached his hands under her shirt. 5 VRP (Mar. 1, 2016) at 544. E.B. also told Skinner that Svaleson had "grabbed her butt and squeezed it and grabbed her vagina and squeezed that with both of his hands." 5 VRP (Mar. 1, 2016) at 544. Svaleson did not object to this testimony.
Svaleson testified and denied that he had ever invited E.B. to sit on his lap. He claimed that E.B. followed him into the kitchen and sat on his knee. There was no door between the kitchen and the adjacent living room, where E.B.'s sister was watching television. Svaleson also testified that E.B. had asked him to tickle her and that he tickled her rib cage near her armpit. According to Svaleson, as he tickled E.B., she turned sideways and "ran her breast into the edge of [his] thumb." 6 VRP (Mar. 2, 2016) at 639. Svaleson admitted that he pinched E.B.'s butt, but only to encourage her to stand up because she was hurting his knees. He denied that he touched or tickled E.B. to satisfy his sexual desire.
The State proposed a non-corroboration jury instruction. This instruction stated:
In order to convict a person of child molestation in the first degree as defined in these instructions, it shall not be necessary that the testimony of the alleged victim be corroborated. The jury is to decide all questions of witness credibility.
Svaleson objected to the proposed instruction, arguing that the Washington Supreme Court Committee on Pattern Jury Instructions had explicitly recommended against such instruction. The trial court allowed the instruction.
The prosecutor began her closing argument by explaining the differences between direct and circumstantial evidence. She then argued that this case turned on whether the jury found that Svaleson had touched E.B.'s private areas to satisfy his sexual desires. The prosecutor urged the jury to use "common sense and make those reasonable inferences" when considering the testimony. 6 VRP (Mar. 2, 2016) at 650. She told the jury that E.B. had described sexual contact "and if you believe her, if you believe what she's described, ladies and gentlemen, you are satisfied beyond a reasonable doubt." 6 VRP (Mar. 2, 2016) at 652.
Later, the prosecutor addressed E.B. and Svaleson's testimony. 6 VRP at 660-61. She urged the jury to consider Svaleson's "motives, his bias, but also consider the reasonableness of his story." 6 VRP (Mar. 2, 2016) at 661. She also argued that E.B. had "no reason" to lie that Svaleson "touched her breasts with both hands, that he touched her vaginal area, her back private area." 6 VRP (Mar. 2, 2016) at 661. The prosecutor further argued that there was "[n]o reason for her to fabricate this," and "if what [E.B.] said happened happened, there's also no reason and no reasonable explanation as to why the defendant's hands would have found themselves in those areas." 6 VRP (Mar. 2, 2016) at 661.
The prosecutor also addressed E.B.'s delay in reporting the incident. She argued:
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