State v. Jabs

STATE OF WASHINGTON, Respondent, v. STEPHEN ROBERT JABS, Appellant.

No. 49466-3-II

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II

July 10, 2018

UNPUBLISHED OPINION

MELNICK, J. — A jury convicted Stephen Robert Jabs of six counts of rape of a child in the first degree, four counts of child molestation in the first degree, and one count of communicating with a minor for an immoral purpose. It also found special allegations and aggravating factors.

Jabs argues the trial court abused its discretion by admitting child hearsay statements. He also argues double jeopardy violations, ineffective assistance of counsel, and a lack of jury unanimity. Jabs further argues, and the State concedes, the trial court violated his First Amendment to the United States Constitution rights by restricting his access to public social websites. Jabs also filed a statement of additional grounds (SAG) asserting a number of errors.¹ We affirm the convictions but remand to the trial court to strike the challenged sentencing condition.

FACTS

Jabs babysat a number of children whose parents were friends with his daughters. Starting in 2006, he babysat KH and EH almost every weekend. The next year he began babysitting his granddaughter, JJ, and KH's sister, HH. Jabs also babysat KK.

In 2009, another friend of Jabs's daughters, Mandala took her children, CG and C, to parties and barbecues at Jabs's house. CG started spending the night at Jabs's house when she was six months old.

In February 2014, when CG was four, Mandala and her children began temporarily living with Jabs. During this time, Jabs told Mandala he bought KK a vibrator after he caught her using his back massager to masturbate. Two or three days after this discussion, CG told Mandala that Jabs touched her vagina. When Mandala asked CG what happened, CG said it happened at night when Jabs thought she was sleeping; Jabs moved her underwear, touched her with his fingers, and "tried to put his finger in, but it hurt really bad, and it felt like a rip, and it stung." 1 Report of Proceedings (RP) at 175. CG added it happened a second time when Jabs and CG were in Jabs's hot tub and that "it didn't hurt as bad because it was wet and warm in the water." 1 RP at 175. Mandala reported the abuse to the police the next day.

I. FORENSIC INTERVIEW OF CG

On March 18, Karen Sinclair, a child forensic interviewer, conducted a forensic interview of then four-year-old CG. After ascertaining that CG knew the difference between telling the truth and telling a lie, CG initially denied or avoided questions about abuse by Jabs and her disclosure to her mother. Sinclair asked CG if she really did not know what she told her mother about Jabs or just did not want to tell Sinclair, and CG said "I just don't want to tell you." Suppl. Clerk's Papers (CP) at 389.

However, shortly thereafter, in response to a question from Sinclair about whether CG knew places on the body that are okay to touch, CG said Jabs sometimes touched her vagina. CG said Jabs touched her vagina more than once, including at night when she slept with him on the couch. CG first said Jabs only touched the outside of her vagina, but later said he touched her on the inside of her vagina. CG also said Jabs inserted his finger in her vagina while they were in Jabs's hot tub.

After CG's interview with Sinclair, Detective Aaron Baker investigated the allegations against Jabs.

The mothers of other children Jabs babysat heard about CG's disclosure, but did not believe CG, and their children continued going to Jabs's home.

II. SEARCH OF JABS'S HOME

In September, Baker obtained a search warrant for Jabs's home. Upon executing the warrant, the police found a vibrator and lubricant. They also found pictures of the children Jabs babysat. Some photos showed the children partially or fully naked.

During the search, Baker and another detective interviewed Jabs. Jabs admitted he bought a vibrator for KK. Jabs also admitted to telling KK she could use the lubricant if the vibrator hurt. Jabs told Baker he talked to the children he babysat about sex, telling them they could get pregnant the first time they had sex. However, Jabs denied ever touching CG. The police arrested Jabs.

III. FORENSIC INTERVIEW OF KH, KK, HH, AND JJ

On September 26, Sinclair conducted forensic interviews of KK, then nine-years-old, and KH, then eight-years-old.

KK initially denied or avoided questions about Jabs; however, she eventually said Jabs gave her a purple vibrator and told her it was for her vagina. KK made this disclosure in response to Sinclair telling KK she heard Jabs's white back massager "was used somewhere [other than KK's back, stomach, and legs,] on at least someone else." CP at 427. Sinclair then asked if "there [was] ever a time when [Jabs] was around" when KK used the vibrator, and KK said Jabs used the vibrator on, but not inside, her vagina. CP at 437. KK also said Jabs would put lubricant on the vibrator so it wouldn't hurt.

KK also said she and HH did "inappropriate stuff" with Jabs in his bedroom. CP at 440. When asked what she meant, KK started crying and said if her moms found out, she would never go to Jabs's house again. KK said she, HH, and Jabs watched videos of naked adults making out or having sex and did what they saw. The first time she saw a video like that, EH showed it to her on the computer in the girls' room in Jabs's home. KK indicated she watched similar videos on the computer in Jabs's dining room on other occasions.

Sinclair told KK she needed to hear about what happened in Jabs's bedroom. KK said she and HH would "sort of do the making out thing," that "[KK] and [HH] would always be on top of [Jabs,]" and that Jabs's penis would go between their legs, but "not in" their vaginas. CP at 444. KK also said HH would be in the room with her when these acts occurred, but Jabs never had her and HH do these things at the same time. She said white stuff came out of Jabs's penis and he would always put it on either HH's or her stomach; he did not put it other places, because Jabs said it "would make you have a baby." CP at 446. KK also said she and HH put their mouths on Jabs's penis, and that Jabs said it felt good. KK and HH would suck on Jabs's penis while he licked the outside of their vaginas, and Jabs would sometimes lick their vaginas while they were in the hot tub. KK said these acts happened more than once, and she was eight-years-old the last time it happened.

During the interview, KK said she had been in the interview room before. Sinclair did not know it at the time, but KK was referring a prior false accusation of sexual abuse she had made against her mom's ex-boyfriend.

On the way home from her interview with Sinclair, KK told her mother for the first time about Jabs abusing her.

KH also initially denied or avoided questions about abuse by Jabs. CP at 460-536. However, after Sinclair asked if Jabs used his white back massager, KH eventually disclosed he used it on the outside of her vagina; she said he did the same thing to KK, HH, and JJ. KH said Jabs used the back massager on the children's vaginas when they told him their vaginas were sore.

KH also said she saw Jabs's penis when she, HH, and JJ sucked on it while Jabs slept on the couch. KH knew Jabs was sleeping because "if [her] teeth were rubbing on him, he would have w[oken] up, but he didn't." CP at 558. When asked if anything came out of Jabs's penis when they sucked on it, KH said no. Sinclair asked how they knew when to stop sucking, and KH said they stopped when they were "tired of shaking [their] heads up and down." KH said the girls sucked on Jabs's penis more than once. KH thought she was four-years-old when these incidents happened.

KH told Sinclair that Jabs was awake when HH and JJ sucked on his penis while they were in the hot tub. She added that Jabs kept on telling HH to stop.

Sinclair also interviewed HH and JJ, but they did not accuse Jabs of sexually abusing them.

IV. CHARGING

The State charged Jabs with six counts of rape of a child in the first degree, four counts of child molestation in the first degree, and two counts of communicating with a minor for an immoral purpose.² The named victims were CG, KH, HH, JJ, and KK. The State also charged Jabs with special allegations and aggravating factors.

V. CHILD HEARSAY HEARING³

Pretrial, the trial court held a hearing to determine the admissibility of statements made by CG and KK to their mothers, and made by CG, KH, and KK to Sinclair.

CG, KH, and KK testified regarding a variety of topics to demonstrate their competence, including their names, birth dates, mothers' names, the difference between the truth and a lie, and details about Jabs's home and the incidents of abuse. CG, KH, and KK gave substantially the same testimony as provided in their disclosures to Sinclair.

Sinclair testified and opined that her forensic interview methods did not result in any false disclosures.

Jabs's expert witness, Mark Whitehill, a licensed psychologist, opined that Sinclair's questioning likely tainted CG's, KH's, and KK's statements, making them unreliable. Whitehill said Sinclair engaged in repeated questioning, and displayed dogged persistence that came close to badgering. Whitehill opined that Sinclair's technique interjected facts into the interview, RP at 596, and that CG, KH, and KK denied any abuse until after Sinclair introduced outsideinformation. However, Whitehill also opined that Sinclair's interview technique of using narrow, leading questions at the end of the interviews was appropriate.

At the conclusion of the child hearsay hearing, the trial court addressed the children's competency on the record. The parties agreed the children were competent and available to testify at trial. The court did not enter specific findings on the Allen⁴ factors.

The trial court analyzed each Ryan factor, as discussed later in this opinion, and concluded that the hearsay statements were reliable and admissible. The trial court's...