Weissman v. Clark
| Docket Number | 22-cv-04005-WHO |
| Decision Date | 21 December 2023 |
| Parties | STEVEN IRVING WEISSMAN, Plaintiff, v. KEN CLARK, Defendant. |
| Court | U.S. District Court — Northern District of California |
Petitioner Steven Weissman seeks federal habeas relief from his state conviction on five separate counts for lewd acts on minors and aggravated sexual assault of a minor because the prosecutor committed misconduct, trial counsel rendered ineffective assistance, the trial court failed to give proper instruction, and the multiple errors were cumulatively prejudicial. After a thorough review of the record, I conclude that each claim is meritless. For the reasons set forth below, the petition for such relief is DENIED.
In 2016, a Santa Cruz County Superior Court jury convicted Weissman of 14 counts involving lewd acts on minors or aggravated sexual assault of a minor. Weissman Habeas Petition (“Petition”) [Dkt. No. 1] at 2-3. The state appellate court summarized the facts underlying the crimes as follows:
Weissman.[1] K.C. was invited to go with Charlie and defendant to “see a movie that had just come out called The Borrowers.” Defendant sat between K.C. and Charlie during the movie, which K.C. thought “strange.”
The following week, defendant invited K.C. to defendant's home to play with Charlie. At defendant's home, defendant took K.C. to see defendant's snakes in his garage. After they had looked at the snakes for a while, defendant said to K.C: “I want to see your weiner.” Defendant unbuttoned and unzipped K.C.'s pants and pulled them down. Defendant then pulled down his own pants and pulled his penis and testicles out of his underwear. He told K.C. to open his mouth, and defendant forced his penis into K.C.'s mouth. K.C. tried to pull away, but defendant overcame his resistance and told him to “suck it like a lollipop.” K.C. continued to resist, and he was able after about 20 seconds, to push defendant away. Defendant told K.C. to pull up his pants, and he said “that I was being a bad boy and not to tell anybody . . . .”
K.C felt “afraid and ashamed.” He thought if he told anyone he would be punished for having done something wrong. K.C. avoided defendant and Charlie after this incident. K.C did not tell anyone about this incident until 2007 when he was 18 years old. The first time he told anyone anything about it was when he and his close friend, Daniel C., had taken LSD and K.C. had drunk some whiskey. The LSD did not cause K.C. to have hallucinations, but it “made me feel a little bit loose I guess.” K.C. cried and told Daniel that when he was “a little boy” a “neighbor” who “would watch him from time to time” “hurt him.” K.C. did not tell Daniel anything else about the incident. K.C. “had a great sense of relief” after this disclosure.
Not long after telling Daniel, K.C. told his then-girlfriend. A couple of years later, K.C. told his mother that defendant had molested him. K.C. also told two subsequent girlfriends and his father. K.C. was drunk when he told his mother and when he told his father. K.C. told another girlfriend in 2009, but he did not identify the perpetrator.
K.C. did not want to tell the police because he did not want to relive the experience or go into a courtroom. However, after K.C. heard that defendant had been arrested in 2013 for molesting another child, he felt that he needed to come forward. When K.C. first talked to the police, he did not mention the LSD because he was afraid he would get in trouble.
B. Victim R.A. (Lewd Act (Count 20); 2003-2006)
R.A. was born in 1991. When he was eight or nine years old, R.A. became friends with Charlie. Defendant was a yard duty supervisor at the elementary school that R.A. and Charlie attended. Charlie invited R.A. to his home, and R.A. came over and played with Charlie. R.A. sometimes helped defendant with his snakes.
On one occasion, after R.A. told defendant that his back hurt and was stiff, defendant asked R.A. if he wanted defendant to “crack” R.A.'s back. R.A. said “okay,” so defendant had R.A. sit on his lap facing away from him. R.A.'s buttocks was pressed against defendant's groin. Defendant grabbed R.A.'s arms and then his knees and rocked back and forth three times. R.A. thought this was “kind of weird” and “wiggled” away. It did not help his back.
About a year later, when R.A. was 12 or 13 years old, R.A. spent the night at defendant's home. In the night, R.A. wandered into the master bedroom where defendant was using his computer. R.A. asked defendant about the Tempurpedic bed, and defendant invited him to lie down on it. R.A. fell asleep on the bed for 10 or 15 minutes and awoke to find defendant lying “right behind” him and “spooning” him. Defendant's body was in contact with R.A.'s body from defendant's chest to defendant's knees. R.A. could feel defendant's erect penis poking him. When defendant realized R.A. was awake, he immediately got up.
C. Victim S. (3 counts of Lewd Act (Counts 16, 17, and 18); 2005-2008)
S. was born in 1997. Defendant was a yard duty supervisor at S.'s elementary school, and S. met defendant in 2005 when S. was eight years old and in third grade. Like some of the other boys defendant abused, S. lived with his mother, and his father was no longer involved in his life. S. saw defendant as a “father figure.” Defendant told S. that he had previously been married, which was not true. Defendant invited S. to his home to help him with his snakes. S. started coming over to defendant's home three or four times a week.
S. and defendant would greet each other with “[l]ong-lasting deep hugs.” One time, defendant gave S. “a quick kiss” on the lips after giving him a hug. S. did not see defendant hug other boys. S. sometimes sat in defendant's lap. S. would “[h]ang out” and watch television at defendant's home, and go places and “get food” with defendant.
S. began spending the night at defendant's home in 2005 after they had known each other for a couple of months. The first time S. spent the night at defendant's home, defendant offered eight-year-old S. a sleeping pill. Although defendant offered sleeping pills many other times, S. only sometimes took them. S. and defendant always “would sleep in the same bed together” when S. spent the night.
Sometimes defendant gave S. massages in the bed, during which he massaged S.'s back and legs, but not his buttocks. The massages happened two or three times a week for three years. Over time, S. noticed that defendant made “inappropriate jokes” about women's bodies and “talk[ed] about sex,” “heterosexual talk.” Defendant also told S. 20 times that he wanted S. to get circumcised. He told S. that his penis would “stay small and it would never grow to full size” if he did not get circumcised.
When the two of them watched television, they would sit next to each other and “kind of snuggle.” Defendant frequently rubbed S.'s legs “[s]ensually,” including his thighs.[2] During a trip with two other boys, S. saw defendant pull down the sheets covering the other two boys and take photos of them as they slept.
In the fall of 2007, one of defendant's fellow yard duty supervisors heard S. conversing with defendant. Defendant asked S. “ ‘Do you plan on spending the night at my house?' ” S. responded: “ ‘Yes, if you don't get drunk.' ” She reported this conversation to the principal, who contacted child protective services (CPS). The principal terminated defendant without giving a reason, and defendant became very upset. He continued to come to the school to pick up S.
In 2008, S. found a “spy camera” hidden in a radio in the bathroom at defendant's house. The camera was aimed at the toilet and the shower, which had a clear shower curtain. S. discovered that the camera was linked to defendant's television. S. considered that “it was just the last straw, where I realized that he is a pedophile.” About two weeks later, he told his mother about the camera “and that I was pretty sure that he was a pedophile.” However, he did not provide her with any information about the interactions between him and defendant. S.'s mother confronted defendant, and defendant admitted that there was a camera in the bathroom.
S.'s relationship with defendant ended in 2008. After defendant was arrested, S. did not want to come forward, even after the police tried to contact him, because he felt “incredibly guilty” and did not want to talk about it. He testified at trial “under subpoena” and did not “really want to be here.”
D. Victim T.B. (Two counts of Lewd Act (Counts 12 and 13); 2013)
T.B. was born in 2003. His mother physically abused him, beating him with shoes, belts, and other objects. When he was two or three years old, T.B.'s mother was giving him a bath and washed his penis with her hand in a way that made him “uncomfortable.” There was nothing “sexual” about the incident.[3] He pushed her hand away and said “No.” T.B. developed “anger problems” arising from his mother's physical abuse.
While he was living with his mother, T.B. was hearing voices and “seeing things that weren't there.” He “would see like dead people on walls.” T.B. was half aware that the things he was seeing and hearing were not real. In 2010 or 2011, T.B. stopped living with his mother and went to live in a group home and then with his father and stepmother. He did not see or hear things that were not there while he was living with his father or thereafter. Unfortunately, his...
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