State v. Dotson

1

STATE OF WASHINGTON, Respondent, v. RODNEY RAY DOTSON, Appellant.

No. 56615-0-II

Court of Appeals of Washington, Division 2

June 21, 2023

UNPUBLISHED OPINION

Che J.

Rodney Dotson appeals his convictions for multiple counts of rape of a child and child molestation. He argues that (1) he was denied his right to a fair trial by an impartial jury, (2) his attorney was ineffective in failing to object to inadmissible hearsay, (3) the trial court erred in imposing an exceptional sentence based on an aggravating factor that is inseparable from the elements of the convictions, and (4) the trial court erred in ordering that Dotson refrain from mind- or mood-altering substances as a condition of his community custody.

We hold that (1) the trial court did not err in failing to excuse three jurors in the absence of actual bias, (2) Dotson was not prejudiced by his counsel's alleged failure to object to inadmissible hearsay, (3) the trial court did not err in imposing an exceptional sentence, but (4) the trial court exceeded its authority in requiring that Dotson refrain from mind- or mood-altering substances. Consequently, we affirm Dotson's conviction and exceptional sentence, but we remand for the trial court to strike Dotson's community custody condition concerning mind-or mood-altering substances.

FACTS

In 2005, Dotson and LJM's mother started dating. In 2006 Dotson moved in with LJM's mother, LJM, and LJM's sister. LJM "viewed [Dotson] as a father figure." 3 Rep. of Proc. (RP) (Aug. 4, 2021) at 409. Between 2010 and 2017, Dotson and LJM's family moved into three different residences. LJM disclosed that Dotson sexually abused LJM in each residence. In 2019, the State charged Dotson with multiple counts of child sex offenses occurring between 2012 to 2017.^[1]

A. Incidents of Sexual Abuse

LJM testified that the first instance of abuse happened in the fifth grade. Dotson "rubbed" LJM's legs before using his finger to rub and penetrate LJM's vagina. 3 RP at 387-88. Dotson "would touch [L]M] inappropriately" in public, snapping LJM's bra and grabbing LJM's breasts. 3 RP at 389. There were "one or two incidents where [Dotson] used his penis to mess with" LJM's breasts. 3 RP at 390. Dotson touched LJM's breasts during "almost every incident" of sexual interaction. 3 RP at 391. Dotson penetrated LJM's vagina "[m]ore than once." 3 RP at 393. There were "a couple incidents where [Dotson] used sex toys" to penetrate LJM's vagina. 3 RP at 391.

LJM explained that the abuse continued each time the family moved into a new residence. LJM described not being able to "remember a full school year where no incidents happened." 3 RP at 406. LJM recalled Dotson continued to grab LJM's breasts but LJM could not "remember a specific number" of times. 3 RP at 394. LJM recalled being vaginally penetrated by Dotson frequently and in each of the three residences the family lived in. Also, during sophomore year, LJM "remember[ed] getting a partner and asking [Dotson] to stop these different incidents." 3 RP at 408. LJM recalled that Dotson agreed to stop but said "[j]ust remember, at the beginning you said it's okay, so it's okay." 3 RP at 408.

Initially LJM did not tell anyone about Dotson's behavior. However, in 2016, LJM confided in SN. SN, her sister, and her mother lived with Dotson and LJM's family. SN explained that LJM told her that LJM "had been sexually assaulted." 3 RP at 459. SN told LJM that they "should tell people, and that [L]M] should have [Dotson] reported." 3 RP at 459.

In June 2019, LJM told therapist, Tanya Lyon, about "a friend named Lily who was being molested by a family member." 3 RP at 373. LJM explained that "Lily was starting to realize that what was happening to her was not okay and that she might want to talk to somebody about it." 3 RP at 374. Lyon explained that LJM's references to Lily was actually about LJM. Lyon recalled that LJM told Lyon "that [L]M's] stepdad, Rod, had been having sex with [L]M], raping [L]M] since [L]M] was 11." 3 RP at 375-76. Lyon explained that LJM "was working through the lies that [Dotson had] told [L]M], that [L]M] was understanding that [L]M] was not old enough to give consent, and that what [Dotson] did was not okay." 3 RP at 376. Lyon explained that, in cases of sexual abuse, it is important to learn the identity of the abuser because Lyon is "required, by law, to report abuse if [she] can." 3 RP at 371. In describing whether an abuser's identity is an important part of the therapeutic intervention, Lyon explained that "[i]t kind of depends. Because [she is] not a specialist in certain areas of abuse, it's important that [she] would refer to a person who was a specialty provider." 3 RP at 371.

Prior to LJM's admission, Lyon had been working with LJM since 2017 on "transitional communication issues with her family, having coparents, and a lot of symptoms of anxiety." 3 RP at 371. Lyon described LJM's symptoms as including "avoidance, fearfulness, all the symptoms of anxiety," nightmares, timidity, "perseverating on things," and LJM's lack of trust. AR at 371-72. Following LJM's admission, Lyon worked with LJM to explore LJM's emotions, fears around relationships, and "healthy versus unhealthy relational patterns." 3 RP at 376. Lyon further engaged LJM in supportive reflection, "cognitive processing and interactive feedback." 3 RP at 376.

In August 2019, LJM told LJM's mother "that [L]M] had been molested and raped." 3 RP at 445. LJM subsequently spoke with Officer Brown. Officer Brown explained that LJM told her "that Rodney had had sex with her and had touched her inappropriately." 3 RP at 471. Although initially hesitant, LJM agreed "to do a phone tip" in which Brown listened "on the same receiver to a phone call" between LJM and Dotson. 3 RP at 472-73. Brown stated that during the call, LJM told Dotson "that [L]M] had been talking to a counselor about the sex thing." 3 RP at 473. Brown explained that Dotson "said that he knew what he did was irresponsible and selfish, and that" he would go to jail if LJM talked to LJM's mother. 3 RP at 477. Dotson was arrested when he returned to the residence.

Subsequent to reporting Dotson to Brown, LJM met with sexual assault nurse examiner, Lisa Wahl. Wahl explained that LJM told Wahl "that it was her mom's boyfriend and that he had been sexually abusing her since she was 11 years old -- at the time that [Wahl] met [L]M], she was 17." 4 RP (Aug. 5 2021) at 530. Wahl explained that in cases of sexual assault, the identity of the alleged abuser is necessary for making follow-up treatment recommendations. Wahl explained that if

a child is living with her abuser, or his abuser, it sets up a chronic trauma state for that child's brain. If the abuser . . . has made any sorts of manipulative or exploitive or threats or concerns to the child, that may impact a child's ongoing mental health status, ability to talk about what's happened to them, ability to feel safe in their world, the ability to be able to trust that they can leave their home . . . and know that they will be safe.

4 RP at 527-28.

B. Motions in Limine

Before jury selection, the trial court addressed defense counsel's motion to exclude LJM's statements that were made in medical and psychotherapy reports. Defense counsel explained that LJM's statements to Wahl and Lyon should be excluded because they were not made for purposes of medical diagnosis or treatment. Defense counsel argued that LJM's statements to Wahl were made as part of the law enforcement process. Defense counsel further explained that LJM was not seeing Lyon because of Dotson, but that LJM was seeking therapy because LJM "had other issues beforehand." 1 RP (Aug 2, 2021) at 29.

In addressing defense counsel's arguments, the trial court explained that if Wahl's testimony was what the court was expecting it to be then it would "allow the testimony and find that it comes within the hearsay exception . . . 803(a)(4)." 1 RP at 33. In regards to Lyon, the trial court found "that the anticipated testimony would also come within the [hearsay] exception." 1 RP at 33. The trial court denied the defense's motions, but noted "that if what [the court was] anticipating turns out to not be the testimony provided in foundation, then the defense motion may be renewed." 1 RP at 33.

During trial, defense counsel did not renew its motion or object following Lyon's testimony that LJM revealed "that [L]M's] stepdad, Rod, had been having sex with [L]M], raping [L]M] since [L]M] was 11." 3 RP at 375-76. Defense counsel did object to the State's question about what LJM had told Wahl "about any concerns or worries that [L]M] had about [L]M] or [L]M's] body during the medical history component of the exam." 4 RP at 530. Defense counsel explained that Wahl had "already indicated what the actual complaint was, the dates of the complaint," and who was involved. 4 RP at 531. Defense counsel argued that anything beyond that information went "beyond the scope of the motions in limine." 4 RP at 531. The trial court sustained defense counsel's objection.

C. Voir Dire

On the first day of voir dire, defense counsel asked the jury panel, "Who would have difficulty with this case just because of the charges alone?" 1 RP at 146. Prospective juror 10 raised their hand in response to counsel's question. Prospective juror 10 explained:

My wife's been a supervisor for a -- she's a social worker supervisor and she works real -- for about 40 years has been working with DSHS and Child Protective Services for many, many years and she teaches classes and things like that, and I don't know if I can really be 100 percent biased [sic]. I mean, I have some biases because of her talking over certain things that she's learned over 40 years of being

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