STATE v. BEASLEY, 47306-9-I (Wash.App. 5-20-2002)

No. 47306-9-I.The Court of Appeals of Washington, Division One.
Filed: May 20, 2002. UNPUBLISHED OPINION.

Appeal from Superior Court of King County, No. 99-1-06044-6, Hon. Richard M. Ishikawa, August 11, 2000, Judgment or order under review.

Counsel for Appellant(s), Nielsen Broman Koch Pllc, 810 Third Avenue, 320 Central Building, Seattle, WA 98104.

Eric J. Nielsen, Nielsen Broman Assoc. Pllc, 810 3rd Ave, Ste 320, Seattle, WA 98104-1622.

Counsel for Respondent(s), Prosecuting Atty King County, King County Prosecutor/Appellate Unit, 1850 Key Tower, 700 Fifth Avenue, Seattle, WA 98104.

Lee D. Yates, Senior Deputy Pros Attny, Pros Atty Offc, 1850 Key Tower, Seattle, WA 98104-2312.

PER CURIAM.

David Beasley appeals his convictions for second and third degree rape of a child and second degree incest, arguing that the trial court abused its discretion in denying his for-cause challenge to potential jurors and in limiting his time for voir dire. He also contends that the trial court erred in admitting prior bad acts evidence, abused its discretion in excluding evidence relevant to impeach the complaining witness, and failed to specify the period of community custody. Finding no error requiring reversal, we affirm the convictions. But because the trial court failed to specify the period of community placement or custody, we remand for clarification of the judgment and sentence.

FACTS
In 1990, David Beasley moved to Washington from North Carolina with his girlfriend, Wilma Beasley, and Wilma’s five children, including her daughter, J.B. J.B. was 9 years old at the time. David and Wilma married in 1994. The family initially stayed with Wilma’s mother in Everett, Washington. Later, they moved to a house in Mill Creek, then a few years after that, to a house in Kirkland.

According to J.B., while the family was living in Everett, Beasley began sexually fondling her. After the move to Mill Creek, Beasley began having sexual intercourse with J.B. regularly, starting when she was in the fifth grade and continuing until she turned 17 or 18 years old.

When J.B. was 16, she met 33-year-old Mathew Kautz, who was a friend of Beasley’s. Some time later, she and Kautz became romantically involved. This created tension between J.B. and her mother, who apparently did not approve of the relationship. Over time, Kautz’s friendship with Beasley grew strained as well. Kautz had been sexually abused as a child and relayed his experience to J.B.

In 1999, when J.B. was 18, she reported Beasley’s sexual abuse to Kautz. Later, Beasley gave a statement to police officers investigating J.B.’s allegation. Beasley admitted that he had sexual contact with J.B. several times, but maintained she had `come on’ to him while he was high on drugs. Beasley claimed that because he had been unable to perform, he had intercourse with J.B. only once in 1999 and that J.B. performed oral sex on him once in 1998.

The State charged Beasley with second degree rape of a child, third degree rape of a child, and first degree incest. Before trial, the trial court heard an offer of proof of sexual contact between Beasley and J.B. occurring before the charging period, then admitted the evidence for `lustful disposition’ purposes. Later, during jury voir dire, Beasley challenged jurors 15 and 29 for cause, arguing that they displayed actual bias. After questioning by the parties and the court, the judge denied Beasley’s challenge. At the end of voir dire, Beasley requested an additional 15 minutes of voir dire time. The trial court denied the request.

At trial, J.B. described for the jury her sexual relationship with Beasley dating back to when she was 9 or 10 years old. Wilma Beasley testified and described one incident when J.B. was 13 or 14, in which she walked into the bedroom to find her husband and J.B. on the bed, covered by a blanket. Beasley was on top of J.B., moving back and forth. When Wilma confronted them, both denied any sexual activity occurred and maintained they had just been wrestling. Mathew Kautz described J.B.’s disclosure of the sexual abuse to him. He also described his relationship with J.B. and with David Beasley. The State presented transcripts of Beasley’s police statement.

DECISION Challenge for Cause
Beasley first assigns error to the trial court’s denial of his for-cause challenge to jurors 15 and 29, arguing that they displayed actual bias. We need not address the trial court’s ruling because Beasley removed both jurors using peremptory challenges. Under our Supreme Court’s recent decision in State v. Fire, even if a court erroneously denies a for cause challenge to a juror, the error is cured when the defendant excuses that juror using a peremptory challenge.[1] Because Beasley has not shown a biased juror sat on his case, there is no prejudice and he may not challenge the trial court’s ruling on jurors 15 and 29.

Limitation on Voir Dire Time
Using the `struck’ method, the trial court questioned all potential jurors, then gave each side two 30-minute segments for individual voir dire. At the end of voir dire, Beasley requested an additional 15 minutes to voir dire more jurors. The court denied Beasley’s request. Beasley argues that this time limit prevented him from adequately examining several jurors for bias, thereby violating due process.

The trial court has wide latitude in conducting voir dire, and the scope of voir dire is a matter of trial court discretion.[2] `Absent an abuse of discretion and a showing that the rights of an accused have been substantially prejudiced, a trial court’s ruling on the scope and content of voir dire will not be disturbed on appeal.’[3]

Under this standard, the trial court did not abuse its discretion in limiting Beasley’s voir dire time. The court asked numerous questions of the jurors, and Beasley and the prosecutor each took a full hour asking individual and general questions. Individual questioning held outside the presence of the other jurors was not counted toward the parties’ allotted time. The issue of bias and prejudice was fully explored by the parties and the court.

Furthermore, the trial court found that defense counsel had not efficiently used her time to explore the central issues of bias and prejudice. Voir dire should not be used “to educate the jury panel to the particular facts of the case, to compel the jurors to commit themselves to vote a particular way, to prejudice the jury for or against a particular party, to argue the case, to indoctrinate the jury, or to instruct the jury in matters of law.”[4] Here, counsel indirectly explored issues of bias and, at times, appeared to be framing the issues for trial and arguing the defense theory. The trial court also noted that counsel asked redundant questions even after it became clear that a for-cause challenge to a juror would be made. Given this, the trial court was within its discretion in denying Beasley’s request for 15 extra minutes of voir dire time.

Limitation on Cross Examination of Mathew Kautz
At trial Beasley conceded that he had sex with J.B., but argued that she lied about when the abuse began out of fear of angering Mathew Kautz.

The defense posited that if Kautz knew J.B. began having sex with Beasley when she was older, Kautz would view the relationship as `consensual’ and become jealous. But if there was a longer history of sexual abuse dating back to when J.B. was very young, Kautz would be more sympathetic because he had also been sexually abused as a child. Beasley also argued that a developing feud between Beasley and Kautz, coupled with J.B.’s growing relationship with Kautz, motivated J.B. to exaggerate the history of abuse.

To attack J.B.’s credibility, Beasley sought to cross-examine Kautz regarding what he had told J.B. about his own sexual abuse experience, about the fact that Beasley had Kautz agree in writing to stop seeing J.B., and about Beasley’s threat to report Kautz’s relationship with J.B. to the police unless Kautz paid him $20,000. Beasley also sought to ask Kautz about J.B.’s statement that she had burned the written agreement. Beasley argues the trial court abused its discretion in limiting his cross-examination of Kautz on these topics. We disagree. A defendant may present evidence that is probative of a witness’ credibility, bias, or ill will toward the defendant.[5] But evidence offered to impeach a witness must ultimately fulfill the requirements of relevance, and a court must reject it where it only remotely tends to show bias.[6] The scope of cross-examination rests in the sound discretion of the trial court.[7] Here, the primary relevance of the evidence was to impeach J.B., not Kautz. And much of this evidence had already been admitted through Wilma Beasley and J.B.[8] This allowed Beasley to argue that Kautz’s animosity toward Beasley influenced J.B. to lie and also that J.B. had tailored her story to match Kautz’s sexual abuse experience. Beasley does not explain why he needed to introduce these facts again through Kautz.[9]

The only fact the jury did not hear was Kautz’s prior statement that J.B. had told him she burned the agreement that Beasley had him sign. This appeared inconsistent with Kautz’s trial testimony denying J.B. had told him this. Though the prior statement contradicted J.B.’s trial testimony, its primary purpose in the context that it was offered was to impeach Kautz.[10] Because Kautz’s credibility was not central to the case, the trial court did not abuse its discretion in excluding this single piece of information. Exclusion of Evidence on Pretrial Cross-Examination of J.B.

Pursuant to ER 404(b), J.B. testified in a pretrial offer of proof to determine the admissibility of Beasley’s sexual contact with her before the charging period. To impeach her credibility at that hearing, Beasley sought to cross-examine J.B. with much of the same evidence discussed in the previous section. The trial court excluded the evidence, ruling that it did not need to judge credibility in admitting evidence under ER 404(b). Beasley argues the trial court erred in excluding the evidence from the pretrial hearing.

Although ER 404(b) permits admission of a defendant’s previous sexual contact with the victim to show `lustful disposition,’[11] the State must first prove to the trial court by a preponderance of the evidence that the misconduct occurred.[12] This court has held that where a prior bad act is contested, the trial court should conduct a pretrial hearing, hear testimony, and determine whether the allegation is credible.[13] The court’s ruling in this case is inconsistent with the rule because it was based on the belief that the court need not judge credibility in pretrial hearings.[14]

Nonetheless, any error during the pretrial offer of proof would not require reversal of Beasley’s convictions. Errors in admitting evidence under ER 404(b) are not of constitutional magnitude and are harmless unless it is clear that the outcome of the trial would have been different absent the error.[15] Here, it is unlikely that the jury would have reached a different result even if the judge had properly weighed the evidence and excluded the prior misconduct.

At trial Beasley acknowledged that he had sex with J.B. when she was older. It is unlikely that the jury would have believed J.B.’s claim that Beasley had sex with her when she was 14 but not believed her claim about being abused when she was 13, even in the absence of the lustful disposition evidence. Indeed, it is just as likely that the prior bad acts evidence supported Beasley’s theory that J.B. had tailored her story to match the experience of Kautz, who also had been sexually abused when he was nine. Any error in excluding the evidence from the pretrial offer of proof is thus harmless.

Community Placement/Custody
Beasley argues that his judgment and sentence must be remanded because the precise term of community placement or custody imposed is not clear.

The State concedes error and we agree. Section 4.7 of Beasley’s judgment and sentence states, “[c]ommunity Placement is ordered . . . for the maximum period of time authorized by law,” while Appendix H to the judgment orders `community placement/custody for three years or up to the period of earned early release awarded pursuant to RCW 9.94A.150(1) and (2) whichever is longer[.]’ These two provisions create ambiguity, especially since Beasley received an exceptional sentence and the `maximum term authorized by law’ could mean the statutory maximum of life for Beasley’s second-degree child rape count.[16] Clarification of the period of community placement or custody that the court intended to impose is thus required.[17]

We affirm Beasley’s convictions. We remand with instructions to amend the judgment and sentence to clarify the period of community custody or community placement.