State v. Person

STATE OF WASHINGTON, Respondent, v. ANTHONY SHRONE PERSON, Appellant.

No. 84631-1-I

Court of Appeals of Washington, Division 1

February 21, 2023

UNPUBLISHED OPINION

Bowman, J.

A jury convicted Anthony Shrone Person of 18 counts of sexually assaulting his minor daughters. Person argues the trial court erred by denying several of his pretrial motions and the prosecutor committed misconduct by improperly commenting on his constitutional right to prearrest silence. Person also claims cumulative error deprived him of his right to a fair trial. We affirm.

FACTS

In 2011, Person and his wife Ramona Jones^[1] lived in Shelton. Together they have 11 children, including Jones' daughter from a previous relationship, A.A. That June, two of their daughters, 15-year-old O.P. and 14-year-old M.P., began working at a Burger King on the Fort Lewis military base Joint Base Lewis-McChord (JBLM).

In August 2011, Person filed a missing person report after O.P ran away from home. Soon after, the military found O.P in the barracks at JBLM and investigated two soldiers for sexually assaulting both O.P. and M.P. During their interviews, the soldiers claimed that O.P. and M.P. disclosed sexual abuse by Person. The military police did not ask O.P. and M.P. about the allegations, but they referred the case to the Department of Social and Health Services (DSHS).^[2]Child Protective Services (CPS) contacted O.P. and M.P., but the girls did not disclose any sexual abuse by Person. CPS then referred the matter to the Shelton Police Department (SPD). SPD sent detectives to Person's home, but O.P. and M.P. "refused to cooperate."

Several years later in February 2018, A.A., O.P., and M.P. reported to police that Person sexually assaulted them as children. In April 2020, the State charged Person with 12 counts of sexual assault. As to A.A., the State charged Person with one count each of first and second degree child molestation and second degree incest. As for O.P., the State charged Person with one count each of first, second, and third degree rape of a child; first, second, and third degree child molestation; and first degree incest. And for M.P., the State charged Person with one count each of second degree child molestation and second degree incest.

In June 2020, the trial court issued a warrant for Person's arrest. In July, police found him living under a different name in Michigan. Police arrested and extradited Person to Mason County. The court arraigned Person and set bail at $250,000.

On September 18, 2020, the State amended the information to add six more counts. For the charges related to A.A., the State added one count each of first, second, and third degree rape of child, third degree child molestation, and first degree incest. And for O.P., the State added one count of second degree incest.

Pretrial Motions

In November 2020, Person moved to represent himself. The court granted his motion but also appointed standby counsel. Twice Person asked the court to waive his bail and release him on his personal recognizance. The court denied both motions finding each time that Person was a flight risk because he resides in Michigan and a community safety risk because of the seriousness and number of charges against him.

Person then sought to interview Jones, A.A., O.P., and M.P. Jones, A.A. and M.P. agreed to the interviews but would not agree to Person interviewing them. O.P. also agreed to an interview but refused to have Person present during her interview. So, Person drafted questions for his standby counsel and court-appointed investigator to ask during the interviews. Person did not attend O.P.'s interview. Person planned to attend Jones' and A.A.'s interviews, but he cancelled the morning of the interviews, telling jail staff he was sick. Person's standby counsel and investigator conducted each interview and later provided summaries of the questions and answers to Person.^[3]

After the interviews, Person moved to depose the witnesses, arguing that they refused to discuss the case and that "their testimony is material and necessary." Person also moved to dismiss the charges for "government misconduct," arguing that the prosecutor suppressed documents related to the 2011 sex abuse investigation. He argued the 2011 investigation showed that the witnesses previously denied any physical or sexual abuse, contradicting their later statements to police in 2018.

On December 30, 2020, the court heard both motions. It denied Person's motion to dismiss, concluding that the State provided Person with all known documents related to the 2011 investigation. As to Person's motion to depose, the trial court noted that it did not have enough information to address whether the witnesses refused to answer material questions during their interviews. The court denied Person's motion without prejudice so that he could "supplement his request by providing specifically what it is that's being refused."

In a hearing on January 5, 2021, Person renewed his motion to depose and reasserted the same arguments. The court noted that Person seemed to have a "very thorough understanding" of the details of the 2011 investigation, so it was unclear what information he would gain by deposing the witnesses. The court determined that the information was not material and denied the motion.

On January 19, 2021, Person filed a "Motion for Dismissal on Grounds of Spoliation of Evidence" under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The court heard the motion in February. Person claimed that the Mason County Sheriff's Office (MCSO), SPD, DSHS, and CPS possessed additional documents related to the 2011 investigation. And he argued that the State violated its obligations under Brady by failing to preserve and disclose the information. The State again told the court it gave Person "all the evidence it has in its possession" and knew existed. The State explained that after submitting public disclosure requests, it gave Person 160 pages of investigative documents from the military, CPS, and SPD. In March 2021, the court denied Person's motion in a memorandum decision, explaining that he did not identify any material or exculpatory evidence withheld by the State.

Trial Testimony

At trial, Jones characterized Person as an "authoritarian," who physically and verbally abused her and the children. She stated that when SPD and CPS investigated the allegations of child abuse in 2011, Person "dictated" O.P. and M.P.'s cooperation with the investigation and "instructed" them how to answer questions. And she said that Person told her to "keep [her] mouth shut, not to talk about anything, let them do the work." On cross-examination, Jones said she did not see Person sexually assault their daughters and "was not aware of any sexual abuse in the home."

A.A., O.P., and M.P. all testified that Person sexually assaulted them. A.A. testified that Person began abusing her when she was 8 years old. The abuse ended when A.A. was 15, after he thought she was pregnant. A.A. then became concerned that Person started to abuse O.P. O.P. testified that Person began sexually assaulting her when she was 8 years old. She said the abuse continued until she was 16. And while M.P. did not remember when Person began abusing her, she said that Person repeatedly touched her before she turned 14 years old.

On cross-examination, O.P. and M.P both admitted that they denied Person sexually assaulted them during the 2011 investigation. O.P. testified that Person "ordered" her not to cooperate with the investigation. But M.P. said that Person did not "force[ ]" her to deny the abuse.

A jury convicted Person on all counts. Person appeals.

ANALYSIS

Person argues the trial court erred by denying several pretrial motions and the prosecutor committed misconduct by eliciting testimony about his right to prearrest silence and commenting on that right in closing argument. He also argues that cumulative error compels us to reverse his conviction.^[4]

Pretrial Motions

Person contends that the trial court erred by denying several of his pretrial motions. We address each argument in turn.

a) Imposition of Bail

Person argues the trial court erred by imposing $250,000 in bail without first inquiring into his financial circumstances. Person concedes that the issue is moot but argues that we should consider his argument as a matter of continuing and substantial public interest. We disagree.

"An issue is moot if we can no longer provide effective relief." State v. Ingram, 9 Wn.App. 2d 482 490, 447 P.3d 192 (2019). We cannot generally provide a convicted appellant with effective relief on a pretrial bail issue because "pretrial bail is no longer available to him." Id. Still, we may consider a moot issue if it involves a matter of continuing and substantial public interest. Id.

To determine whether a matter is of continuing and substantial public interest, we look to "(1) the public or private nature of the issue, (2) whether guidance for public officers on the issue is desirable, and (3) the likelihood that the issue will recur." Ingram, 9 Wn.App. 2d at 490. And we assess" 'the likelihood that the issue will escape review because the facts of the controversy are short-lived.'" State v. Huckins, 5 Wn.App 2d 457, 463, 426 P.3d 797 (2018)^[5] (quoting Westerman v Cary, 125 Wn.2d 277, 286-87, 892 P.2d 1067 (1994)).

Quoting Ingram, 9 Wn.App. 2d at 490,^[6] Person says his argument amounts to a continuing and substantial interest because" 'the setting of bail is an issue of a public nature and there is currently a dearth of cases addressing bail issues.'" But Ingram squarely addresses Person's argument. In that case, the defendant argued that the trial court violated CrR ...