No. 46842-1-I.The Court of Appeals of Washington, Division One.
Filed: November 26, 2001. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.
Appeal from Superior Court of Snohomish County, No. 99-1-01948-7, Hon. Larry E. McKeeman, June 19, 2000, Judgment or order under review.
Counsel for Appellant(s), Nielsen Broman Associates Pllc, 810 Third Avenue, 320 Central Building, Seattle, WA 98104.
David B. Koch, Nielsen Broman Associates Pllc, 810 3rd Ave Ste 320, Seattle, WA 98104.
Counsel for Respondent(s), Seth A. Fine, Snohomish Co. Prosecutor’s Office, Snohomish Co Pros Office, 3000 Rockefeller, Everett, WA 98201.
George F. Appel II, Sno Cty Pros Atty M/S 504, 3000 Rockefeller Ave, Everett, WA 98201-4060.
C. KENNETH GROSSE, J.
The trial court did not abuse its discretion in declining to grant a mistrial. The two claimed irregularities were obscure and not so consequential as to deny Stephen a fair trial. Further, the trial court followed the preference expressed by defense counsel in giving curative instructions. Additionally, the trial court did not abuse its discretion in admitting the limited, corroborative, and relevant evidence supporting the testimony of the complaining witness regarding a few of the videotapes in Stephen’s collection. As indicated by the trial court, the evidence was probative and added little prejudice. Finally, the arguments contained in Stephen’s pro se brief are without merit. The conviction is affirmed.
FACTS
The Snohomish County Prosecutor’s Office charged Matthew Stephen with one count of rape of a child in the third degree in violation of RCW 9A.44.079. The charge was based on Stephen’s actions with C.L., who became acquainted with Stephen when he was 14 years old. The victim had an unstable relationship with his own family and became friends with Stephen. He indicated that Stephen joked and talked with him about sexual matters. C.L. began doing work for Stephen and was given clothes, video game devices, and money. At Stephen’s house, C.L. was exposed to a number of videotapes depicting various sexual relations between people of the same and opposite sex. At some point after this exposure, Stephen began touching C.L. in sexual ways. Stephen performed oral sex upon C.L. when he was 15. Other sexual acts were also performed on C.L. by Stephen.
To show a common scheme or plan, another of Stephen’s victims, S.E., testified regarding Stephen’s conduct towards him. This conduct never resulted in any charges. S.E. testified that he had a poor relationship with his family and was befriended by Stephen when he was 10 years old.
When he was 12 years old, S.E. moved in with Stephen. He testified that Stephen talked with him about sex and showed him pornography, both straight and gay.
Eventually, Stephen touched S.E. in sexual ways. He masturbated in front of S.E. and performed oral sex on him. At one point, S.E. was removed from Stephen’s home by Child Protective Services. However, S.E. later moved back in with Stephen but eventually moved out again when he was 20.
Police officers obtained a search warrant for Stephen’s residence. Police officers found 91 videotapes, many of which were pornographic in nature. The officers found a segment of a home video depicting a naked youth, apparently masturbating.
Before trial, Stephen moved to exclude the testimony of S.E. and B.L., the younger brother of C.L., and to exclude evidence of a prior indecent liberties conviction. The court denied the motion to exclude the testimony of S.E. but granted it as to the testimony of B.L. The State agreed not to introduce evidence of the prior conviction.
In addition, Stephen sought to exclude the videotape image of the naked youth and any testimony concerning the content of the commercial videotapes obtained in the search. The trial court denied the motion with respect to the commercially produced videotapes, holding that these tapes would be corroborative of the testimony of C.L. and S.E. The court found that the tapes were relevant and that the probative value outweighed any unfair prejudice. The trial court did limit the evidence regarding a few frames of the homemade videotape and a general description of the content of a few of the commercial videotapes as would be testified to by the complaining witness.
During S.E.’s testimony, the following testimony was elicited:
Q. [Prosecutor:] Was there a time in your life before this that you were asked to bring this out in the open and you wouldn’t?
A. [S.E.:] When I got taken away from [Child Protective Services] the first time, there was an Officer Ploeger who had explained to me an indecent liberty charge against Matt Stephen.
There was an objection by defense counsel. The trial court quickly sustained the objection.
C.L.’s mother also testified. On direct examination the prosecutor asked Mrs. L. about any conversations she might have had with C.L. in which he told her about sexual abuse. Mrs. L. testified about a conversation she had with her son and said she also asked him whether he was aware of anything of the same nature happening to his younger brother, B.L. Mrs. L. testified that he told her he was unaware of anything happening to his younger brother. After this testimony the following exchange occurred between the prosecutor and Mrs. L:
Q. [Prosecutor:] Has the topic come up much in your household since that disclosure to you in early October?
A. [Mrs. L.:] No. Basically — actually, for the first few weeks after we had this initial conversation, it wasn’t at all openly discussed in our family. I felt a great sense of urgency — not urgency, but I was very protective of [C.L.] and [B.L.]. That if anybody at all knew what had happened to them, it was of their choice. And even their sisters did not know what was going on for probably two to three weeks following that conversation. When we did discuss it, it usually was because of a conversation I had had with Detective Kenny or, you know, that kind of a thing where I needed to confer with [C.L.] about something. It was always behind, you know — it was always in private and kept private for his benefit.
Defense counsel moved for a mistrial at the conclusion of Mrs. L.’s testimony based on S.E.’s mention of the indecent liberty charge and based on Mrs. L.’s mention of C.L.’s brother. The trial court denied the motion for mistrial. Regarding Mrs. L.’s testimony, the court indicated that the testimony up to the point where she said she was very protective of both children did not imply that anything in particular happened to B.L. After reading the transcript, the court acknowledged that Mrs. L. went on to say that if anybody knew what had happened to them, which could lead to an inference that B.L. had been a victim as well. However, considering Mrs. L.’s earlier testimony that C.L. told her that nothing had happened to B.L., along with the overall context of the testimony, the court opined that the comment was not sufficient to prevent a fair trial. The court indicated it was willing to consider an instruction to strike. The court indicated that it did not pick up on the testimony that B.L. had been sexually abused.
The motion for a mistrial based on Mrs. L.’s testimony was denied.
The next morning, the court denied the motion for mistrial regarding S.E.’s testimony. The court said: `In reading the answer [by S.E.] itself, I think it is not clear that the answer refers to any other alleged victims or any other incident.’ The court went on to state:
I don’t believe that that necessarily implies that there had been another incident in the past that was the subject of that charge. I think it is just as likely that it could be considered that Mr. Ploeger or Officer Ploeger was explaining to [S.E.] the nature of an indecent liberties charge so that [S.E.] would understand what he was investigating and why he was questioning [S.E.], presuming that [S.E.], who was at that time a minor, may or may not know what criminal activity was, whether what may have been done to him may have amounted to a crime.
The court held that this undercut the seriousness of the irregularity. The trial court also found that the irregularity involved cumulative evidence, and that the court would address the irregularity through a jury instruction limiting the purpose of S.E.’s testimony. The court determined that S.E.’s testimony did not have sufficient impact to affect the jury’s deliberation.
The prosecutor proposed two curative instructions to the court and defense counsel employing language from State v. Baker.[1] Defense counsel accepted one of the alternatives and the court gave that instruction, instruction 6.[2] Defense counsel did not object to the instruction as given and did not except to any failure to give an additional admonition as was offered by both the prosecutor and the trial court.
A jury found Stephen guilty as charged, and the court imposed an exceptional sentence of 60 months. On appeal, Stephen challenges the trial court’s refusal to grant his motion for mistrial based on two violations of pretrial in limine rulings. He also claims the trial court improperly admitted into evidence the content of two videotapes found in his possession.
DISCUSSION
`A trial court’s denial of a motion for a mistrial is reviewed under an abuse of discretion standard and the court should grant a mistrial only when the defendant has been so prejudiced that nothing short of a new trial can insure that the defendant will be tried fairly.’[3]
Here, there were two claimed irregularities: Mrs. L. mentioned her younger son possibly alluding to the fact that he may have been abused, and S.E. mentioned an indecent liberty charge involving the defendant. Generally, it is well settled that the trial court is best suited to determine the prejudice of a statement in the context of the trial.[4]
In determining the effect of any irregular occurrences during trial, trial courts examine the seriousness of the irregularity, whether it involved cumulative evidence, and whether the trial court properly instructed the jury to disregard it.[5] In this instance, the trial court made a number of findings while making its determination on the motion for mistrial. The trial court found that the remark by Mrs. L. was not particularly obvious, especially the use of the word `them,’ and that it would not prevent Stephen from receiving a fair trial. The trial court invited defense counsel to propose a curative instruction. After reviewing the transcript, we find no abuse of discretion by the trial court in refusing to grant a mistrial due to this minor irregularity. Additionally, the trial court discussed S.E.’s testimony with regard to his remarks about the indecent liberties charge. The court determined that the testimony was not intentionally brought out by the State, nor intended by S.E., to cause any problem at trial. The court found the irregularity, in context, was not an overly serious violation as the remark did not clearly refer to any conviction or any other alleged victims or time of any crime.
The court also found the irregularity involved cumulative evidence and further offered, and gave, a curative instruction chosen by defense counsel.[6] The alleged irregularities did not prejudice Stephen’s right to a fair trial and the trial court did not abuse its discretion in declining to grant a mistrial.
Stephen claims the trial court erred in admitting evidence of the content of two videotapes found at Stephen’s home pursuant to ER 404(b). But the motion to prevent the detective from disclosing the content of the videotapes was argued on the basis of ER 403, not ER 404(b). The trial court allowed a limited explanation of the videotapes and their content to corroborate statements of the complaining witness and the other victim to limit any prejudice. The court specifically limited the description to two or three videotapes described by C.L., including the homemade videotape and still photograph. The trial court otherwise granted the motion as to any videotapes seized. In making its ruling, the trial court discussed the relevance and the potential prejudice of this evidence. The trial court properly exercised its discretion in admitting the evidence.
Stephen claims he was denied a fair trial due to cumulative error. A review of the record does not support this claim. Acting pro se, Stephen also claims a number of additional errors including: (1) alleged discovery violations; (2) the trial court’s denial of a motion to continue the trial; (3) improper evidence admitted at trial; (4) failure to dismiss the charge based on the testimony of the complaining witness; (5) the trial court’s permitting improper examination or cross examination of witnesses; (6) the exceptional sentence was improperly based on an unproven charge; and (7) Stephen failed to receive his own personal copy of the presentence report. Most of Stephen’s allegations are either unsupported by argument or proper citation to relevant authority, especially state case law. In any event, based on our review of the record, they are without merit. Affirmed.
WE CONCUR: ELLINGTON, J., BECKER, J.
Evidence by way of testimony from [S.E.] has been introduced relating to uncharged allegations for the limited purpose of determining whether or not it proves a common scheme or plan. You must not consider this evidence for the purpose of proving the character of the defendant to show that he acted in conformity therewith on the present occasion of for any other purpose.