State v. McKinley

1

STATE OF WASHINGTON, Respondent, v. DAKOTA NORMAN McKINLEY, Appellant.

No. 58109-4-II

Court of Appeals of Washington, Division 2

October 1, 2024

UNPUBLISHED OPINION

Lee J.

Dakota N. McKinley appeals his first degree child molestation and second degree rape convictions. McKinley argues that the trial court erred by giving the jury a no corroboration instruction and by admitting fact of the complaint evidence. McKinley also argues, and the State concedes, that the crime victim penalty assessment (CVPA) and DNA collection fee should be stricken from his judgment and sentence. McKinley raises an additional claim of prosecutorial misconduct in a statement of additional grounds for review (SAG).^[1]

We hold that we are bound by the Washington Supreme Court's approval of the no corroboration instruction in State v Clayton, 32 Wn.2d 571, 202 P.2d 922 (1949); thus, the trial court did not err in giving a no corroboration instruction. We also hold that while the trial court erred by admitting fact of the complaint evidence from the victim's parents, the error was harmless. Further, we reverse the challenged legal financial obligations (LFOs). Finally, we reject McKinley's SAG claim because he has not established the prosecutor's comments were improper. Accordingly, we affirm McKinley's convictions, but we remand for the trial court to strike the CVPA and DNA collection fee from his judgment and sentence.

FACTS

In November 2018, E.M.D.^[2] and her father contacted law enforcement alleging McKinley sexually abused E.M.D. In February 2022 the State charged McKinley by amended information with first degree rape of a child, first degree child molestation, and second degree rape. The case proceeded to a jury trial in February 2023.

A. Motions in Limine

Prior to trial, McKinley moved under ER 404(b) to exclude evidence regarding similar charges in Oregon, for which McKinley was acquitted. The trial court granted McKinley's motion.

McKinley also moved to exclude testimony that E.M.D. disclosed McKinley's abuse to her brother and parents, arguing the disclosures were not timely enough to come in under the fact of the complaint doctrine. The State argued that the disclosure testimony was necessary to "fight . . . misconceptions . . . that jurors may have with respect to victims of child sexual assault," "boost [E.M.D.'s] credibility," and make up for the lack of eye-witness and physical evidence. Verbatim Rep. of Proc. (VRP) (Feb. 13, 2023) at 20. The trial court denied McKinley's motion, ruling that the State could present fact of the complaint evidence pursuant to State v. Ortiz Martinez.^[3]

B. Trial Testimony

At trial, the State called several witnesses, including E.M.D.'s brother and parents, E.M.D.'s therapist, and other professionals who participated in the investigation.

1. Testimony Regarding Sexual Abuse

E.M.D. testified that when she was around 8 years old, she and her mother celebrated the Christmas holiday with Courtney, a friend of E.M.D.'s mother. The celebration took place in December 2015 or 2016, and was hosted by Courtney's mother. Also present were Courtney's two young children, McKinley (Courtney's brother), McKinley's mother, and McKinley's mother's boyfriend. This celebration was the first time E.M.D. met McKinley.

E.M.D. also testified that after she and Courtney's children fell asleep for the night, she woke to find McKinley standing over her. When E.M.D. woke up, E.M.D.'s leggings and underwear had been pulled down below her knees. McKinley was touching E.M.D. inside her vagina. After E.M.D. woke up, McKinley left the room, and E.M.D. zipped herself into a sleeping bag. According to E.M.D., McKinley returned multiple times that night, and attempted, unsuccessfully, to unzip E.M.D.'s sleeping bag.

McKinley testified and admitted he knew E.M.D. but denied ever having sexual contact with her. McKinley did not remember E.M.D. coming to his mother's house for a Christmas party in 2015 and testified that it was "[a]bsolutely not" possible that E.M.D. attended and McKinley forgot. VRP (Feb. 15, 2023) at 475.

2. Disclosure Testimony

E.M.D. testified that she told her older brother about the abuse soon after the abuse happened. E.M.D.'s brother testified that E.M.D. told him she had been "touched . . . inappropriately." VRP (Feb. 14, 2023) at 253.

E.M.D. also testified that the next person she told about the abuse was her mother. E.M.D.'s mother testified that E.M.D. disclosed someone had touched her inappropriately. E.M.D. made the disclosure 2-3 years after the abuse.

E.M.D. further testified that her father found out about the abuse around 3 years after the abuse happened and that when he asked her about it, she confirmed something had happened. E.M.D.'s father testified that he found out about the abuse through a friend of E.M.D.'s mother. After he found out about the abuse, E.M.D.'s father asked E.M.D. about it, and E.M.D. told him "somebody had sexually assaulted her." VRP (Feb. 14, 2023) at 271. Following E.M.D.'s disclosure, they reported the abuse to the police.

E.M.D. also disclosed the abuse to a nurse practitioner and a child forensic interviewer, both of whom assessed E.M.D. following her police report. The nurse practitioner testified that E.M.D. stated that McKinley touched her vagina, and the forensic interviewer testified that E.M.D. "made statements of being touched" during the interview. VRP (Feb. 14, 2023) at 363.

3. Additional Corroborative Testimony

E.M.D.'s brother testified that after E.M.D. disclosed the sexual abuse to him, he noticed "she wasn't the same as she used to be," acting less playfully than she used to and spending more time in her room. VRP (Feb. 14, 2023) at 255. E.M.D.'s brother also testified that E.M.D. could not be in her room without locking the door, and that if he opened the door while she was asleep, she would "jolt up . . . and . . . be a little scared." VRP (Feb. 14, 2023) at 257.

E.M.D.'s father similarly testified that after the abuse, E.M.D. began responding poorly to stressful situations: she would "almost hyperventilate" and "cry inconsolably." VRP (Feb. 14, 2023) at 318. E.M.D.'s father also testified that E.M.D. "locks her door all times of the day" and that when he has "to wake [E.M.D.] up sometimes," he has "to be very careful because she wakes up terrified." VRP (Feb. 14, 2023) at 318, 319.

E.M.D.'s mother also testified about E.M.D.'s behavioral changes. For example, after the sexual abuse, McKinley "paid a lot of attention to" E.M.D. and E.M.D. acted uncomfortable around McKinley and would scoot away from him if he sat down next to her. VRP (Feb. 15, 2023) at 393. Also, before the sexual abuse, E.M.D. was "[b]ubbly. Fun. Smart. Loving. Cute," whereas after the sexual abuse, E.M.D. became "really sensitive" and distanced herself from her mother. VRP (Feb. 15, 2023) at 395.

E.M.D.'s therapist, Diana Latorre, testified that one of the reasons she began seeing E.M.D. was an "allegation of sexual abuse by an older man." VRP (Feb. 15, 2023) at 457. E.M.D. reported having nightmares, intrusive memories, flashback experiences, anxiety, panic attacks, feeling sad, and avoidance. Latorre could not recall if E.M.D. "link[ed] any of these symptoms or issues to any of" the individual stressors E.M.D. reported, but the alleged abuse was one of the stressors E.M.D. reported. VRP (Feb. 15, 2023) at 458. Latorre diagnosed E.M.D. with post-traumatic stress disorder (PTSD).

C. Jury Instructions

At trial, the State proposed a no corroboration jury instruction. McKinley objected, arguing that while the instruction was "an accurate statement of law," it also "constitutes a comment on the evidence." VRP (Feb. 15, 2023) at 430. The trial court ruled it would give the instruction because it correctly stated the law and was not a comment on the evidence pursuant to case law.

The trial court gave the following no corroboration instruction:

In order to convict a person of the crime of Rape of a Child in the First Degree, Child Molestation in the First Degree, or Rape in the Second Degree as defined in these instructions, it is not necessary that the testimony of the alleged victim be corroborated.

Clerk's Papers (CP) at 35. The trial court also instructed the jurors that they were "the sole judges of the credibility of each witness" and "the value or weight to be given to the testimony of each witness." CP at 18. Also, each to-convict instruction included the following language: "If you find from the evidence that each of these elements has been proved beyond a reasonable doubt, then it will be your duty to return a verdict of guilty." CP at 25, 27, 29.

D. Closing Arguments and Verdict

During closing arguments, the State argued that the question at "the center of this case is . . . Did [McKinley] come into [E.M.D.'s] room, pull her leggings and underwear down? And did he touch her or penetrate her?" VRP (Feb. 15, 2023) at 496. The State then argued that "the foundation of our evidence rests on E.M.D.'s testimony," explaining that the jurors were the "sole judges" of E.M.D.'s credibility. 2 VRP (Feb. 15, 2023) at 506-07, 508.

The State went on to argue that while E.M.D.'s testimony was the foundation of its case, the State had also presented evidence corroborating E.M.D.'s allegations: testimony regarding E.M.D.'s behavioral changes after the abuse, E.M.D.'s need to lock the door anytime she was in a bedroom, and E.M.D.'s PTSD diagnosis. The State also repeatedly stressed the disclosure evidence as corroborative of E.M.D.'s allegations, arguing, for example, "[I]t's not just [E.M.D.] telling you that this happened. It's her father, her brother, and her mother saying: Yeah, she told us. She told us this happened." 2 VRP (Feb. 15, 2023...