State v. Erickson

1

STATE OF WASHINGTON, Respondent, v. MICHAEL GARY ERICKSON, Appellant.

No. 83758-3-I

Court of Appeals of Washington, Division 1

March 25, 2024

UNPUBLISHED OPINION

Chung J.

In 2018, 19-year-old college sophomore G.C. reported to police that her former stepfather, Michael Erickson, sexually abused her between 2004 and 2009 when she was six to eleven years old. Following a mistrial, Erickson was retried, and a jury convicted him on three counts of rape of a child in the first degree and one count of child molestation in the first degree. He appeals.

As to Erickson's claim that his right to a unanimous jury was violated, we agree that the State did not make an effective election as to counts 1 or 2 for rape of a child and there was neither a Petrich instruction or effective election as to count 4 for child molestation. However, we conclude these errors were harmless. Erickson also challenges the court's denial of his motion to continue the case due to the COVID-19 pandemic as a denial of his constitutional right to a fair trial. He contends the court violated his right to a public trial in several different ways, as well as his right to be present during critical stages. He also challenges evidentiary rulings preventing cross-examination of a witness and allowing improper character evidence about the victim, claiming these rulings violated his constitutional rights under the confrontation clause and his right to present a defense. Alternatively, he contends that his counsel was ineffective for failing to raise constitutional arguments. Finding no error on any of these bases, we affirm.

FACTS

G.C was born on August 23, 1998, to Jessica Erickson and Torivio Castaneda. Jessica^[1] left Castaneda in 2000 and met Michael Erickson online in 2001. Erickson had a son born in 2000. Jessica and Erickson married, and they had a son of their own in 2003. Jessica and Erickson alternated between day and night shifts, mostly in the grocery store industry, so that one of them could be with their children. They separated and divorced in 2009.

After she finished high school, G.C. went to Western Washington University. In 2017, the fall of her sophomore year at university, G.C. told her basketball coach that she had been abused. Her coach put her in touch with an acquaintance Claudia Ackerman, who was an advocate at Domestic Violence and Sexual Assault Services in Bellingham, Washington. In 2018, Ackerman contacted Lieutenant Claudia Murphy of the Bellingham Police department. Murphy took G.C.'s complaint, and she referred her report and a transcript of their conversation to the Arlington, Washington, police department for investigation.

The State first filed charges against Erickson in August 2018 then filed a second amended information in November 2019. The second amended information's first three counts are identical to one another. They each allege rape of a child in the first degree committed on "a specific date between on or about the 23^rd day of August, 2004, and on or about the 22^nd day of August, 2010, in an act separate and distinct from those alleged in the other counts." Each of the three counts of rape of a child alleges Erickson "did have sexual intercourse with GC." The fourth count alleges child molestation in the first degree. It alleges that "in an act separate and distinct from those alleged in the other counts," Erickson had "sexual contact with GC."

Erickson's first trial, in November 2019, ended in a mistrial. Rescheduled for 2020, Erickson's second trial was continued, primarily due to COVID-19. In 2021, Erickson sought a continuance until masks would no longer be necessary. The court denied the motion.

Erickson's second trial was held in November 2021. G.C. testified for two days. She testified that when she was six years old, she and her family moved to a townhome in Granite Falls Washington, near the school she attended for first and second grade.^[2] G.C. testified that "this is when [Erickson] first started to touch me." She testified that "multiple times," always on her parents' bed at the house in Granite Falls, "there were times when he would undress me and times when I would undress myself" and "then he would eventually start touching me on my vagina and use his mouth to touch me too." G.C. said,

He would use his tongue, he would use his fingers, and he would penetrate me with his fingers too. . . . I remember how much it hurt, because of his fingernails going inside of me. And he would use his tongue on me too . . . he would move his tongue around, and I remember feeling his teeth on me too.

The State asked, "was there more than one time that he put his fingers in you and more than one time that he put his mouth on you?" and G.C. answered "yes." The State asked G.C. to clarify whether Erickson put his tongue outside or inside her vagina, to which she answered, "Inside and outside." G.C. testified that there were instances when she put a pillow over her face as she lay on her back, and there were instances when Erickson put a pillow on her face. At one point, the State asked G.C. to clarify her memory of "the discomfort or the pain from his fingernails and the scratching, in or on what part of your body?", and she answered, "Inside of my vagina." At least one time, G.C. testified, Erickson put "oily stuff" on her "vagina but also on the surrounding area of [her] body" that she now recognized as "lube."

When she was seven years old, in the middle of second grade, G.C. and her family moved to a duplex in Arlington. G.C. testified that Erickson did a lot of things to her at this house: "I mean, there's a lot." "[T]o try to keep this in smaller chunks," the State then asked her about different types of activity, such as playing games. G.C. testified that Erickson played a card game with her where "every time you lost, you had to take your clothes off," and "then I remember that leading into something more after that game." Asked about the general category of games or activities that weren't "overtly sexual in nature," G.C. described during family movie nights, Erickson "would have [her] clip his toenails and his cuticles," shave his back hair, and pop his back pimples.

Asked about other instances of role-playing games, G.C. testified that he tried to hypnotize her, and she went along with it and "was pretending to be under hypnotic state." Erickson told her to pretend she was trying on clothes in a mall and that "[she] needed to take [her] clothes off in order to try [her] new clothes on," so she pretended she was in a changing room, "twirling around in front of him," while naked or mostly naked.

G.C. also testified that at the Arlington house, she remembered him "doing doctor," which entailed "[h]im checking me down in my private areas" while she was "laying on the bed, and he would be checking me - - or saying he was checking me, but he would be touching me again." Asked whether she was clothed "when that would happen," she said did not remember if she was fully naked but remembered not having pants on. She testified that Erickson would sometimes watch her shower, and other times they would be in the shower together, though she didn't remember how many times. She testified as punishment, "there would be times when [Erickson] would spank [her], and [she] would go upstairs on their bed and be on all fours," sometimes clothed, sometimes not. Also as punishment, sometimes she would be asked to stand in the corner, sometimes clothed, sometimes not. G.C. also recalled once being downstairs with the fireplace on, while there was porn on the television, Erickson tied her up with neckties or belts so she couldn't move, though he did not touch her during that incident. Erickson would also touch her with "a white little vibrator" that was "silver with, like, little bumps on it, circles," and he would touch her on her nose, cheek, and "down there," on but not inside her vagina, and she would also touch him with it too.

G.C. also testified that as she got older, one of her last memories of him in the Arlington house was an incident where Erickson casually "just put his hands down my pants . . . just stuck it there and left it there" and then "ma[de] fun of the hair I was growing down there." She testified that she didn't remember how many times he came in or how old she was, but she would put toys in front of her door so she "would hear him before he would come in and would start touching [her]." She also would "wrap [her] hands down by [her] vagina," wrap blankets in between and around her legs, and leave stuffed animals in her legs, to make it more difficult for him touch her while she was sleeping.

Asked about times that Erickson made G.C. touch him, G.C. testified that she didn't recall how old she was but "it started at the Arlington house." The State asked, "Tell us about one of the times that stands out most clearly in your mind," and G.C. described how after playing "the card game" with her, Erickson was sitting in a recliner^[3] wearing boxers with a hole in the front and he

pull[ed] his penis out and touch[ed] himself and show[ed] me how to touch him, and I remember him grabbing my hand and moving it how he was moving it on him. And I remember he - - I don't know when this happened, if it was this incident or the next, because this happened multiple times, but he also would tell me to put my mouth on him, and, like, tell me what he wanted me to do.

G.C. further testified that "every single time we were in this situation, like, him sitting on the recliner and me sitting on the ground next to him, I was, like, really, really scared," and she remembered "sitting there for what felt like forever and staring at the wall and crying and not moving."

The State then questioned G.C. about...