No. 40192-4-II.The Court of Appeals of Washington, Division Two.
Filed: May 10, 2011.
Appeal from a judgment of the Superior Court for Lewis County, No. 07-1-00629-4, Richard L. Brosey and James W Lawler, JJ., entered December 23, 2009.
Affirmed by unpublished opinion per Armstrong, J., concurred in by Quinn-Brintnall and Johanson, JJ.
UNPUBLISHED OPINION
ARMSTRONG, P.J.
Caleb Leedy Kisor appeals his conviction of attempted first degree child molestation, arguing that insufficient evidence supports his conviction under the corpus delicti rule and that the trial court erred in denying his motion for a mistrial. We affirm.
Facts
Rebecca Kisor took her children, 13-year-old K.B. and 17-month-old J.K., with her to clean her father’s house. Caleb Kisor, Rebecca’s 19-year-old half brother, lived in the house as well and helped with the cleaning while K.B. watched television in the living room and J.K. played.[1] When Rebecca started washing dishes, Kisor went to his bedroom. J.K. is generally noisy while playing, so when the house became quiet, Rebecca went down the hall to look for him.
All of the bedroom doors were closed except Kisor’s, which was open a few inches. Rebecca looked inside and saw Kisor standing in front of J.K. with his pants open and his penis exposed. J.K.’s back was toward Rebecca, and his head was about six inches from Kisor’s penis. Rebecca grabbed J.K. and took him into the living room. As she did, Kisor threw himself face first onto his bed and began crying.
After a few minutes, Rebecca went back to talk to Kisor, who was still crying. When she asked if J.K. had touched Kisor’s penis, Kisor said he had. Kisor denied putting his penis in J.K.’s mouth. Rebecca talked about the seriousness of child molestation and the consequences of a conviction, but Kisor did not respond. Rebecca then called Kisor’s sister, who spoke with him the next day and made an appointment for him to see a counselor.
Kisor told that counselor, Sandra Ames, that he needed to talk to her about exposing himself to his nephew. He explained that his sister had walked into the room while he was in the process of exposing himself. Kisor was remorseful, upset, and worried about the consequences of what he had done. Ames reported Kisor’s admissions to the police, who then contacted Rebecca about the incident.
After the State charged Kisor with first degree child molestation, the defense moved to exclude his statements to Rebecca and Ames under the corpus delicti rule. The trial court granted the motion to suppress, concluding that there was no evidence of touching or sexual contact independent of Kisor’s statements.
The State then amended the information to charge attempted first degree child molestation and asked the court to reconsider its ruling suppressing Kisor’s statements. Based on the amended charge, the court granted the State’s motion to admit the statements. At trial, Ames and Rebecca testified for the State and Kisor testified on his own behalf. After a day of deliberating, the jury informed the court that it was deadlocked, and the court declared a mistrial.
Before Kisor’s retrial, the court instructed counsel to refrain from referring to a prior trial; any questions about former testimony had to be made in the context of a prior hearing. K.B., who was not a witness at Kisor’s first trial, testified about the day of the incident and said that her mother was upset when she came out of Kisor’s bedroom. Rebecca then testified to the facts cited above. On cross examination, defense counsel asked her several questions about her prior testimony, and the following exchange occurred:
Q: And in fact, when you testified previously you were asked, “Did you have any — After those couple questions did you have any more conversation with Caleb that day about what had happened?” Do you remember that question?
A: From the last trial are you talking about?
Q: No. From one of the hearings.
A: Oh. I believe the question was asked to that extent, yes.
Report of Proceedings (RP) at 60. After a few more questions, defense counsel asked to be heard outside the presence of the jury and moved for a mistrial based on Rebecca’s reference to Kisor’s prior trial. The court denied the motion.
After Ames testified, the defense moved for dismissal, arguing that there was no evidence of the crime charged. The trial court denied the motion, and Kisor testified that he was masturbating when J.K. ran into his room. He denied telling Rebecca that any touching occurred, but he acknowledged never telling her or Ames that the exposure was an accident or that he had been masturbating.
The jury found Kisor guilty as charged, and the trial court imposed a low end standard range sentence. Kisor appeals his conviction.
Analysis I. Sufficiency of the Evidence: Corpus Delicti
Kisor first challenges the sufficiency of the evidence under the corpus delicti doctrine. This doctrine tests the sufficiency of evidence, other than a defendant’s confession, to corroborate that confession. State v. Dow, 168 Wn.2d 243, 249, 227 P.3d 1278 (2010). A defendant’s incriminating statement is not sufficient to establish that a crime occurred. State v. Brockob, 159 Wn.2d 311, 328, 150 P.3d 59 (2006). The purpose of the corpus delicti rule is to prevent defendants from being unjustly convicted based on confessions alone. Dow, 168 Wn.2d at 249.
To satisfy the corpus delicti rule, the State must present evidence independent of the incriminating statement that shows the crime described in the defendant’s statement occurred.[2] Brockob, 159 Wn.2d at 328. In determining whether this standard is satisfied, we review the evidence in the light most favorable to the State. Brockob, 159 Wn.2d at 328. The independent evidence need not be sufficient to support a conviction but must provide prima facie corroboration of the crime described in a defendant’s incriminating statement Brockob, 159 Wn.2d at 328. Prima facie corroboration exists if the independent evidence supports a “logical and reasonable inference” of the facts the State seeks to prove State v. Vangerpen, 125 Wn.2d 782, 796, 888 P.2d 1177
(1995). The independent evidence must be consistent with guilt and inconsistent with innocence. State v. Aten, 130 Wn.2d 640, 660, 927 P.2d 210 (1996).
To convict Kisor of attempted first degree child molestation, the State had to prove that he took a substantial step toward having sexual contact with another who was less than 12 years old and at least 36 months younger and not married to him. RCW 9A.28.020(1); RCW 9A.44.083(1). As the trial court instructed the jury, “[s]exual contact means any touching of the sexual or other intimate parts of a person done for the purpose of gratifying sexual desires of either party.” Clerk’s Papers (CP) at 192; RCW 9A.44.010(2). A substantial step “is conduct that strongly indicates a criminal purpose and that is more than mere preparation.” CP at 239; State v. Aumick, 126 Wn.2d 422, 427, 894 P.2d 1325 (1995).
Kisor maintains that without his admissions, there is no evidence of sexual contact or of his intent to have such contact. Rather, Kisor maintains that there is evidence only that he exposed himself to his nephew.
The State responds that there is no innocent explanation for Kisor standing with his exposed penis inches from his nephew’s face, with the bedroom door nearly closed. Kisor’s conduct in throwing himself on the bed and crying, his agreement to attend counseling, and his failure to tell either his sister or his counselor that the exposure began with masturbation and was an accident provides further corroboration of guilt.
As the trial court recognized, the impact of the State’s evidence changed with its amendment of the charge:
Again, this is a very different situation with this charge, with an amended charge of attempted child molestation in the first degree. Clearly there is evidence of a substantial step when they — the defendant is in the bedroom with this child with his penis exposed within 6 inches of the child’s face, the reaction that he had when he — when the child’s mother came into the room, all of those things are clearly enough to establish a prima facie case of the crime of attempted child molestation in the first degree. Is it proof beyond a reasonable doubt? Is there proof of intent beyond a reasonable doubt based on this? I don’t know. That’s a question for the jury. But there is certainly a prima facie case of the attempt in this case.
RP (May 27, 2009) at 75.
We agree that when viewed in the light most favorable to the State, the evidence independent of Kisor’s statements provides prima facie corroboration of attempted first degree child molestation.
II. Mistrial
Kisor also challenges the trial court’s failure to grant his motion for a mistrial after Rebecca referred to his prior trial.
We review a trial court’s denial of a motion for a mistrial for abuse of discretion. State v. Lewis, 130 Wn.2d 700, 707, 927 P.2d 235 (1996). A trial court should grant a mistrial only when the defendant has been so prejudiced that nothing short of a new trial can insure a fair trial, and its denial of a mistrial motion will be overturned only when there is a substantial likelihood that the error prompting the mistrial affected the jury’s verdict. State v. Greiff, 141 Wn.2d 910, 921, 10 P.3d 390 (2000); Lewis, 130 Wn.2d at 707.
As Kisor argues on appeal, the fact that he had a prior trial in this case was irrelevant. We hesitate to conclude, however, that the single reference to this irrelevant evidence constituted prejudicial error. The reference came after defense counsel questioned Rebecca repeatedly about her prior testimony, thus informing the jury that there had been a prior proceeding of some sort. When she asked whether counsel was referring to the prior trial, he answered in the negative and said he was referring to the hearing. As the trial court observed, “[T]he way it happened . . . was sort of an aside in the questioning[;] the focus was about what the question was, not what type of hearing it was.” RP at 62. This was the only reference to Kisor’s prior trial, and defense counsel chose not to seek a limiting instruction because he did not want to draw further attention to the remark. Counsel agreed with the State and the trial court that the reference to a prior trial could cut both ways with the jury. We do not see a substantial likelihood that this single reference affected the jury’s verdict, and the trial court did not abuse its discretion in denying Kisor’s motion for a mistrial.
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
Quinn-Brintnall, J. and Johanson, J, concur.