State v. Brandenburg

STATE OF WASHINGTON, Respondent, v. SHAWN CURTIS BRANDENBURG, Appellant.

No. 48059-0-II

Court of Appeals of Washington, Division 2

December 6, 2016

UNPUBLISHED OPINION

JOHANSON, J.

Shawn Curtis Brandenburg appeals his jury trial conviction and sentence for first degree molestation of LB., ^[1] and he appeals his conviction for second degree molestation of E.W. We hold that (1) the prosecutor did not commit misconduct, (2) counsel was not ineffective, (3) the reasonable doubt instruction was proper, and (4) the "Community Protection Act" (CPA) does not violate the single-subject or subject-in-title rules. Accordingly, we affirm Brandenburg's convictions and sentence.

FACTS

I. Background Facts

In May 2012, 12-year-old L.B. and another girl, A.H., had a sleepover at their friend E.W.'s house. E.W.'s stepfather, Brandenburg, and mother, Gina Brandenburg, were also in the house. A few weeks later, L.B. told her mother that Brandenburg had taken off L.B. 's top and rubbed her breasts while she was sleeping at E.W.'s house that night. L.B.'s mother called the police. Officer Brian Cassidy responded and interviewed L.B. and E.W., who was also present. L.B. disclosed a sex offense to Officer Cassidy, and E.W. disclosed that Brandenburg had taken off her shirt while she slept when she was 7 years old.

After Officer Cassidy interviewed E.W. and L.B., Detective Chris Ivanovich was assigned to investigate the case. When Detective Ivanovich interviewed E.W., she disclosed that Brandenburg had sexually abused her not just once, but up to '"five or six'" times in 2007. 1 Report of Proceedings (RP) at 76. Police arrested Brandenburg, and the State charged him with first degree child molestation and first degree rape of E.W. and second degree child molestation of L.B.

II. Trial

A. Testimony

1. E.W.'s and L.B.'s Testimony

E.W. testified that on at least three occasions in 2007, when she was seven years old, Brandenburg had come into the room where E.W. was sleeping and sexually abused her. One night, Brandenburg touched the outside of her vaginal area. Another night, he rubbed her breasts under her clothes. On a third night, E.W. "felt something go inside [her] mouth" while her eyes were shut. 1 RP at 49. There were several other instances of sexual abuse that happened afterward that E.W. did not remember as clearly, but the abuse stopped after E.W. told her mother, Gina.^[2]Gina did not call the police or Child Protective Services.

E.W. spoke to Detective Ivanovich nearly a year after the sleepover. E.W. told Detective Ivanovich about Brandenburg sexually abusing her several times in 2007, although she did not tell Detective Ivanovich that Brandenburg had put something in her mouth. E.W. was reluctant to speak to the police because she did not want Brandenburg, who supported the family, to go to prison. E.W. explained that she was "terrified, " and when asked at trial, she agreed that she had tried to minimize the details of the sexual abuse. 1 RP at 108.

E.W. also testified that on the night of the sleepover she woke up to the sound of L.B. crying. Gina came downstairs and stayed with L.B. until L.B. fell asleep. The next morning, L.B. told E.W., Gina, and A.H. that Brandenburg had taken off her bikini top and touched her breasts during the night. E.W. thought, however, that L.B. had taken off her bikini top before she fell asleep.

L.B. testified that on the night of the sleepover she had fallen asleep wearing a buttoned-up shirt over a bikini top. She awoke to Brandenburg rubbing her left breast in a circular motion. Her shirt had been unbuttoned and her bikini top taken off. L.B. told her mother about the molestation a few weeks later.

2. Officer Cassidy's and Detective Ivanovich's Testimony

Officer Cassidy testified that he had responded to the call about a sex offense and had spoken to L.B.'s mother, L.B, and E.W. Officer Cassidy answered, "Yes" when asked if LB. had disclosed a sex offense to him. 2 RP at 212. Officer Cassidy indicated that E.W. told him something "concerning"-that Brandenburg had taken her shirt off once while she slept. 2 RP at 220. But E.W. told Officer Cassidy that Brandenburg had never sexually abused her again and provided no other information. Based on E.W.'s statement, Officer Cassidy did not believe he had probable cause to arrest Brandenburg.

Detective Ivanovich interviewed E.W., and she disclosed to him that Brandenburg had touched her. Detective Ivanovich testified that a forensic interviewer had spoken with L.B., who made some statements against Brandenburg.

Detective Ivanovich further testified that in the 8 years that he had been a detective, he had conducted "well over a hundred" formal forensic interviews of children under 10 years old. 1 RP at 156. Detective Ivanovich testified that in those interviews, not every child who had been abused disclosed all of the sexual abuse. When the State asked why children did not disclose all the abuse, Brandenburg objected because the State's question prompted Detective Ivanovich to speculate. Detective Ivanovich explained that abused children did not disclose all at once but, in his experience, were more likely to disclose when they felt safe. But Brandenburg's renewed objection for speculation and lack of foundation cut short any further explanation by Detective Ivanovich.

3. Defense Testimony

Gina testified that E. W. had not told her in 2007 that Brandenburg had sexually abused her. Gina testified that L.B. and E.W. had awoken her on the night of the sleepover because L.B. was scared that she had seen '"a ghost.'" 2 RP at 240. Gina claimed that she came downstairs and sat with L.B., E.W., and A.H. for approximately two hours. Gina did not learn about the molestation until the next day when E.W. told Gina. Gina did not believe L.B. because Brandenburg had been with Gina the entire night and because Gina had seen L.B. take off her bikini top before L.B. fell asleep. According to Gina, E.W. did not reveal that Brandenburg had sexually abused E.W. until after the police questioned L.B. and E.W. in 2012.^[3]

The third girl at the sleepover, A.H., testified that she had woken up on the night of the sleepover to L.B. and E.W. talking. L.B. was wearing all her clothes, including the bikini top, but L.B. told A.H. that L.B. had woken up in the night with all her clothes taken off and someone standing over her. L.B. said that maybe the person had been Brandenburg, but she said nothing about the person touching her. Gina had not come downstairs.

B. Jury Instructions

The trial court's instructions to the jury included a reasonable doubt instruction that stated in part,

A reasonable doubt is one for which a reason exists and may arise from the evidence or lack of evidence. It is such a doubt as would exist in the mind of a reasonable person after fully, fairly, and carefully considering all of the evidence or lack of evidence. If, from such consideration, you have an abiding belief in the truth of the charge, you are satisfied beyond a reasonable doubt.^[4]

Clerk's Papers (CP) at 21 (emphasis added). This instruction was taken verbatim from WPIC 4.01.

C. Prosecutor's Closing Argument and Jury Verdict

During closing argument, the prosecutor discussed reasonable doubt and read from the jury instruction defining a reasonable doubt. She then argued, "If you walk into that jury room and say I believe that these things happened to these little girls, I submit to you that you have an abiding belief, and you have a duty to return verdicts of guilty." 2 RP at 332. She emphasized that the State had the burden of proof and that the defendant did not have to prove anything. Brandenburg was "presumed innocent, unless and until you believe [E.W. and L.B.], and if you believe them, you're satisfied beyond a reasonable doubt." 2 RP at 333.

While she spoke, the prosecutor played a PowerPoint presentation for the jury.^[5] After explaining reasonable doubt, the prosecutor reminded the jury that E.W. had testified about incidents of abuse including Brandenburg rubbing her breasts under her shirt. The prosecutor then listed the elements of first degree child molestation. To convict Brandenburg of first degree child molestation of E.W., the jury had to believe that Brandenburg had a sexual contact with E.W. The jury had to make a decision about whether the rubbing of a breast was for the purpose of sexual gratification. Immediately after defining sexual contact, ^[6] the prosecutor showed the jury a slide on which she had written, "Did sexual contact between defendant and [E.W.] occur?" with the answer, "YES." Ex. 15 at 11. She also told the jury a sexual contact with E.W. had occurred. Thus, she argued, the State had proved beyond a reasonable doubt that a first degree child molestation had occurred, and the jury should return a guilty verdict for that charge.

Similarly, the prosecutor listed the elements of second degree child molestation with an emphasis on the sexual contact requirement. The prosecutor stated that L.B. had testified that Brandenburg rubbed her breast in a sexual motion. The prosecutor then showed the jury a slide that asked, "Did sexual contact between defendant and [L.B.] occur?" and answered, "YES." Ex. 15 at 15. The prosecutor told the jury a sexual contact with L.B. had occurred and that meant that the State had proved a second degree child molestation beyond a reasonable doubt.

The jury found Brandenburg guilty of the first degree molestation of E.W. and the second degree molestation of L.B. and not guilty of first degree rape of E.W.

III. Sentencing

The trial court sentenced Brandenburg to 80 months to life for the first degree molestation conviction and to 41 months for the second degree molestation conviction. Brandenburg...