State v. Airhart-Bryon

STATE OF WASHINGTON, Respondent, v. MARLOWE AIRHART-BRYON, Appellant.

No. 78805-1-I

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE

April 13, 2020

UNPUBLISHED OPINION

VERELLEN, J. — Marlow Airhart-Bryon appeals his convictions of three counts of first degree child molestation. He seeks a new trial, arguing evidentiary rulings prevented him from putting on his chosen defense, the use of his victim's initials in court documents violated the open court requirement of Washington's constitution, the use of his victim's initials in the jury instructions prevented him from receiving a fair trial, the prosecutor committed misconduct in five different ways, and he was convicted by a nonunanimous jury. Airhart¹ fails to establish any error warranting a new trial.

Airhart also seeks resentencing for his post-incarceration special conditions of community custody. He argues, and the State agrees, the lifetime no-contact order prohibiting contact with his biological daughter requires reconsideration. We accept the State's concession. Airhart also argues the restrictions on his work location are not related to his crime and must be stricken. We agree. Finally, he contends other conditions, including that he disclose his sex offender status to sexual partners, are not crime related and violate both his First and Fourteenth Amendment rights. Airhart fails to show those conditions are not crime related or infringe upon his constitutional rights.

Therefore, we affirm Airhart's convictions and remand for proceedings consistent with this opinion.

FACTS

Airhart met Chelsie Reno in late 2009 or early 2010. Reno, already a mother to her three-and-a-half year-old son R.F., soon became pregnant with a daughter. She and Airhart began living together. The relationship was soon "in discord" and in 2013, Reno and her children moved to Tri-Cities.²

About one year later, Reno and her children moved back to Seattle and moved in with Airhart. Right away, she "start[ed] noticing weird things" such as Airhart sitting in his car for 12 hours during the night or "not sleeping at all."³ Renodiscovered Airhart was using methamphetamine. She also discovered he was seeing other women.

On July 31, 2015, Reno came home from work, and Airhart said he "was serving [her] eviction notice."⁴ A "very ugly scene" ensued, and Airhart assaulted Reno.⁵ The night ended with Reno, her daughter, and R.F. arriving, shoeless, at Reno's friend's house in the middle of the night.

In October, Reno was preparing her daughter for a supervised visit with Airhart, and her daughter said she did not want to go. Reno asked R.F. about it. He began sobbing and said, "Am I going to get in trouble for what [Airhart] did to me?"⁶ R.F. said Airhart was "doing bad things."⁷ He eventually revealed Airhart molested him dozens of times while they lived together.

The State charged Airhart with three counts of first degree child molestation. The information charging Airhart accused him of molesting "R.F." rather than using a full name. Every subsequent document also used the initials "R.F." But when R.F. testified and when the parties referred to him at trial, they used his full name.⁸ The jury found Airhart guilty on all three counts.

The court sentenced Airhart to 120 months' incarceration and imposed conditions of community custody.

Airhart appeals.

ANALYSIS

I. Right to Present a Defense

As a threshold matter, the State argues this issue is not properly before us because Airhart violated RAP 10.3(a)(4) by not properly assigning error or identifying an erroneous ruling. Although Airhart did not designate a specific ruling—likely because there is no single, identifiable ruling on this issue—his failure did not limit the State's ability to respond. Because the State experienced no prejudice from Airhart's technical violation and we are able to fully analyze the issue, we will consider his argument.⁹

The core of Airhart's argument is that the court's rulings prevented him from establishing his theory of the case.¹⁰ We review a court's decision to excludeevidence for abuse of discretion.¹¹ Airhart was clear and consistent about his theory of the case from its outset. As Airhart's counsel explained during a pretrial hearing:

[F]rom the defense's perspective this case and a previous case [in which Airhart was convicted of assaulting Reno and Reno accused him of rape] all arose after a relationship went sour. Essentially, beware of the wrath of a woman scorned. That would be a good way of stating what the defense is in this matter. Subsequent[ly], the victim's mother made allegations against my client and there are other issues that led up to the fact that she did not want him to have any contact with her kids, either.¹²

Essentially, Airhart's defense was that Reno made false rape and assault claims against him in 2015, which resulted in his prosecution, and that she did it again to prevent him from seeing his daughter.

Airhart wanted to question the State's witnesses about their past conduct to prove his theory.¹³ For example, he wanted to ask, "whether this was an allegation that was truly made by [R.F.], or whether there had been any discussion between [Reno] and [R.F.] about making these allegations."¹⁴ Because Airhartsought to introduce evidence to "prove the character of a person in order to show action in conformity therewith," ER 404(b) applied.

The general presumption is that evidence of prior bad acts is inadmissible.¹⁵ To be introduced, a "prior act[ ] must be '(1) proved by a preponderance of the evidence, (2) admitted for the purpose of proving a common plan or scheme, (3) relevant to prove an element of the crime charged or to rebut a defense, and (4) more probative than prejudicial.'"¹⁶

Airhart contends the court erred by excluding relevant evidence.¹⁷ Even if correct, the point is immaterial. The court ruled against Airhart because he failed to show a prior bad act by a preponderance of the evidence.¹⁸ The court repeatedly asked Airhart to provide some evidence to support his theory.¹⁹ He didnot. Because Airhart did not provide evidence of a prior bad act, the court did not abuse its discretion by prohibiting questions on this topic.

II. Use of R.F.'s Initials in Court Documents

Airhart argues the use of R.F.'s initials in court documents instead of his name violated his right to a public trial. We review alleged public trial violations de novo.²⁰

Article I, section 10 of the Washington Constitution requires that "justice in all cases . . . be administered openly" and, together with article I, section 22, that an individual defendant has the right to a public trial. For purposes of a public trial analysis, a court's use of initials in place of a full name in a court document is akin to redacting the document.²¹ Some redactions can constitute a closure, and a closure by redacting names is structural error when the court does so without conducting an Ishikawa²² analysis on the record.²³

But an Ishikawa analysis is not required if the public trial right has not been implicated or no closure actually occurred. To determine whether a closure was justified, we apply a three-part test.²⁴ First, we apply the experience and logic testto determine whether the public trial right has been implicated.²⁵ Second, we determine if a closure occurred.²⁶ Third, we perform an Ishikawa analysis to determine if the closure was justified.²⁷ But the third step is not required if the answer at steps one or two is "no."²⁸ The appellant bears the burden on steps one and two, and the party seeking closure bears the burden on step three.²⁹

Assuming without deciding that Airhart's position passes the experience and logic test, he fails to show a courtroom closure occurred. Our Supreme Court has recognized two types of courtroom closures: first, "'when the courtroom is completely and purposefully closed to spectators so that no one may enter and no one may leave,'" and second, "where a portion of the trial is held someplace 'inaccessible' to spectators."³⁰ Citing Hundtofe v. Encarnacion³¹ and Doe L. v. Pierce County,³² Airhart asserts closure occurred as a matter of law because R.F.'s initials were used. Both Hundtofte and Doe L. were civil cases in whichplaintiffs sought to remain totally anonymous, including when testifying.³³ Hundtofte and Doe L. are distinguishable because granting a plaintiff total anonymity effectively makes a portion of the trial inaccessible to spectators.

Here, R.F. testified under his full name in open court and was consistently referred to by his full name.³⁴ R.F.'s name was fully accessible to spectators and open to any member of the public who appeared in court or read a transcript of court proceedings. Because Airhart fails to show a closure occurred, no Ishikawa analysis was necessary.³⁵

III. Use of R.F.'s Initials In Jury Instructions

Airhart argues the court commented on the evidence and vitiated the presumption of innocence by using R.F.'s initials in the to-convict jury instructions.

We review jury instructions de novo within the circumstances of the entire case to determine whether the judge commented on the evidence.³⁶ If the court commented, then we presume the comment was prejudicial, and the State must show no prejudice occurred.³⁷

Article 4, section 16 of the Washington Constitution provides that "[j]udges shall not charge juries with respect to matters of fact, nor comment thereon, but shall declare the law." Article 16 guards against a jury being "unduly influenced by the court's opinion regarding the credibility, weight, or sufficiency of the evidence."³⁸ "[J]ury instructions that resolve factual issues are improper comments on the evidence."³⁹

Airhart argues the judge effectively found R.F. to be a victim by referring to him by his initials. But where a victim's name is not an element of an offense, the court's use of an alleged victim's name in a jury instruction is not a comment on the evidence.⁴⁰ Under RCW 9A.44.083(1), a defendant is "guilty of child...