State v. Sinclair

STATE OF WASHINGTON, Respondent, v. ALAN JAMES SINCLAIR, II, Appellant.

No. 78265-7-I

COURT OF APPEALS FOR THE STATE OF WASHINGTON DIVISION ONE

October 28, 2019

UNPUBLISHED OPINION

ANDRUS, J. — A jury convicted Alan James Sinclair, II, of raping his young teenage granddaughter, I.S. James Zesati, I.S.'s stepfather, was subsequently arrested and convicted for raping I.S. Sinclair sought a new trial based on the newly discovered evidence that Zesati had abused I.S. at the same time Sinclair was molesting her. The trial court denied this motion, concluding that the evidence would not have changed the outcome of Sinclair's trial. We agree and affirm.

FACTS

A jury found Sinclair guilty of sexually abusing his granddaughter, I.S. We affirmed his convictions of two counts of second degree rape of a child, two counts of third degree child molestation, and one count of communicating with a minor for immoral purposes. State v. Sinclair, 192 Wn. App. 380, 367 P.3d 612, review denied, 185 Wn.2d 1034, 377 P.3d 733 (2016).

James Zesati, I.S.'s stepfather, was also convicted of sexually abusing I.S., and the details of his crimes are set out in our decision affirming his convictions. State v. Zesati, No. 75716-4-I (Wash. Ct. App. Aug. 6, 2018) (unpublished), http://www.courts.wa.gov/opinions/pdf/757164.pdf, review denied, 192 Wn.2d 1007, 430 P.3d 242 (2018).

When Sinclair learned of Zesati's crimes, he moved to vacate his judgment, under CrR 7.8(b)(5), and for a new trial under CrR 7.5(a)(3). At trial, Sinclair had admitted his guilt as to the charges of child molestation and communicating with a minor for immoral purposes. Sinclair, 192 Wn. App. at 384-85. The only charges Sinclair disputed were the two counts of second degree child rape, arguing that the State had presented insufficient evidence to prove that he had engaged in sexual intercourse with I.S. before her 14th birthday.¹ Id. In his motion for a new trial, Sinclair argued that had he known of Zesati's abuse of I.S., he would not have conceded guilt to any of the charges. Instead, he would have taken the stand to explain that I.S.'s allegations against him were false and stemmed from a poor relationship with I.S.'s mother, January, and from Zesati seeking to hide his sexual relationship with I.S.

In addition, Sinclair contends that he would have taken the stand to explain away sexually explicit images of I.S. found on Sinclair's computer, camera, and cell phone. Sinclair asserts he would have testified that I.S. had unsupervised andfrequent access to his many electronic devices, including at least two times when he suspected that I.S. was engaging in sexual activity with someone else. Sinclair conceded that this evidence was available at the time of his trial, but he had no evidence that I.S. was sexually active with anyone else and his testimony would not have been credible until Zesati's relationship with I.S. was uncovered.

The State countered that the trial outcome would have been the same because its evidence against Sinclair was overwhelming—I.S. had testified consistently that Sinclair had abused her sexually for years, the State had photographic evidence of Sinclair engaging in sex with I.S., and the State had a voice recording of Sinclair captured on January's cell phone in which he was overheard making sexually explicit statements to I.S. Additionally, Zesati's abuse differed from Sinclair's abuse, both in location and manner.

The trial court denied Sinclair's motion. It based its ruling on the fact that I.S. had not recanted and that Sinclair's exculpatory explanations for the voice mail and photos were known at trial and could have been presented without the existence of another named abuser. It concluded that "having presided over the trial, the [c]ourt is firmly convinced that the new evidence would not probably have changed the result of the trial and that the proffered evidence would have been cumulative or impeaching at best."

Sinclair appeals.

ANALYSIS

The State argues Sinclair is judicially estopped from retracting the prior admissions that he sexually abused I.S. Judicial estoppel prevents a party fromtaking inconsistent factual positions from one proceeding to the next. State v. Sweany, 162 Wn. App. 223, 228-29, 256 P.3d 1230 (2011), aff'd, 174 Wn.2d 909, 281 P.3d 305 (2012). The State must establish (1) that Sinclair's current factual defense is clearly inconsistent with his earlier defense, (2) that accepting the new defense would create the perception that the trial court was misled, and (3) that Sinclair would gain an unfair advantage from the change in his defense. State v. Wilkins, 200 Wn. App. 794, 803-04, 403 P.3d 890 (2017). The doctrine should apply only when the inconsistent position first asserted was successfully maintained and when the party claiming estoppel was misled into changing its position. See Markley v. Markley, 31 Wn.2d 605, 614-15, 198 P.2d 486 (1948).

Sinclair's current argument—that, if granted a new trial, he would deny all sexual contact with I.S.—is clearly inconsistent with his defense at trial. In closing argument, Sinclair's attorney told the jury:

Convict Mr. Sinclair of the crimes the government has proven. Convict him of child molestation in the third degree. Convict him of communicating with a minor for immoral purposes.

He also admitted that Sinclair had engaged in sexual intercourse with I.S., but denied that it occurred before she turned 14:

Folks, there was sexual intercourse between Mr. Sinclair and [I.S.]. But as I said at the beginning of this case, [the question] is whether there was sexual intercourse before July 9, 2012[,] when [I.S.] turned 14.

Although Sinclair's current theory is inconsistent with his trial admissions, Sinclair did not prevail at trial, and the State—the party claiming estoppel—was not misled by Sinclair's admissions and did not change its legal position in reliance on his admissions. Because Sinclair's admissions of sexual abuse did not benefithim, and any assertion of inconsistent facts caused no prejudice to the State, we conclude that judicial estoppel does not apply. See State v. Hamilton, 179 Wn. App. 870, 887, 320 P.3d 142 (2014) (defendant not estopped from claiming on appeal that she had privacy interest in purse searched by police after denying any ownership of purse at trial).

Turning to the merits, Sinclair argues the trial court erred in denying his motion for a new trial. Except where questions of law are involved, a trial judge has broad discretion in deciding motions for new trial. State v. Williams, 96 Wn.2d 215, 221, 634 P.2d 868 (1981). "The exercise of that discretion will not be disturbed on appeal absent an abuse of discretion." Id. The superior court abuses its discretion only when its decision is manifestly unreasonable, based on untenable grounds, or based on untenable reasons. State v. Scott, 150 Wn. App. 281, 290, 207 P.3d 495 (2009); see also State v. Downing, 151 Wn.2d 265, 272, 87 P.3d 1169 (2004).

A new trial may be granted based on newly discovered evidence only if the moving party demonstrates that the evidence (1) will probably change the result of the trial, (2) was discovered since the trial, (3) could not have been discovered before trial by the exercise of due diligence, (4) is material, and (5) is not merely cumulative or impeaching. Williams, 96 Wn.2d at 222-23; see also CrR 7.5(a)(3). The only questions in this appeal are whether the newly discovered evidence is material, or merely cumulative or impeaching, and whether it would probably change the result of the trial.

A. Materiality

Relying on California v. Trombetta, 467 U.S. 479, 488 & n.8, 104 S. Ct. 2528, 81 L. Ed. 2d 413 (1984), Sinclair argues that the newly discovered evidence is material because it would have altered his defense. But Trombetta involved the scope of the State's duty to preserve potentially exculpatory evidence under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). In State v. Mullen, 171 Wn.2d 881, 259 P.3d 158 (2011), our Supreme Court expressly recognized that the Brady materiality standard is different than the materiality standard set out in CrR 7.5(a)(3), id. at 905-06, because Brady does not require a defendant to demonstrate that "the evidence if disclosed probably would have resulted in acquittal," id. at 894 (quoting United States v. Bagley, 473 U.S. 667, 680, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985)); see also Kyles v. Whitley, 514 U.S. 419, 433-34, 115 S. Ct. 1555, 131 L. Ed. 2d 490 (1995). We decline to apply the materiality standard advanced by Sinclair.

Instead, when evaluating newly discovered evidence on a CrR 7.5(a)(3) motion, the evidence is material only "if it strongly indicates that the defendant did not commit the crime." State v. Gassman, 160 Wn. App. 600, 611, 248 P.3d 155 (2011); see also State v. Hawkins, 181 Wn.2d 170, 180, 332 P.3d 408 (2014) (evidence was material because it would have allowed defendant to argue that someone planted stolen property on defendant's property).

The trial court summarized the newly discovered evidence, which Sinclair does not challenge: Zesati began abusing I.S. when she was a freshman in highschool² and raped her on multiple occasions over a six-month period in the family's living room, I.S.'s bedroom, or the master bedroom that Zesati shared with I.S.'s mother. Unlike Sinclair, Zesati did not request videos or photographs of I.S. Zesati stopped raping I.S. when Sinclair was investigated for child rape but began again after Sinclair was sent to prison. I.S. testified in Zesati's trial and admitted that Sinclair had sexually abused her.

Based on this evidence, Sinclair contends that he could have presented an "other suspect" defense. "In the classic other suspects case, the defendant blames the specific crime for which he has been charged on someone else." State v. Hawkins, 157 Wn. App. 739, 751, 238 P.3d 1226 (2010). "The standard for relevance of other suspect evidence is whether...