State v. Wilkins

200 Wash.App. 794

403 P.3d 890

STATE of Washington, Respondent,

v.Edward James WILKINS, Appellant.

No. 47835-8-II.

Court of Appeals of Washington, Division 2.

October 10, 2017

Skylar Texas Brett, Law Office of Skylar Brett, P.O. Box 18084, Seattle, WA, 98118-0084, for Appellant.

Eric H. Bentson, Cowlitz County Prosecutor's Office, 312 S.W. 1st Ave., Rm. 105, Hall of Justice, Kelso, WA, 98626-1799, for Respondent.

PUBLISHED OPINION

Johanson, J.¶1 Edward Wilkins appeals his first degree child rape and first degree child molestation convictions. He contends that the convictions violate double jeopardy principles and that the State is judicially estopped from arguing otherwise. He further argues that the trial court should have redacted the victim's video statement, he was denied effective assistance of counsel, and he was denied a fair trial based on prosecutorial misconduct during closing argument. We affirm.

FACTS

¶2 In 2008, after living together for several months, Wilkins and NH's mother married. Wilkins cared for NH while NH's mother was at work.

¶3 In March 2008, when NH was three years old, NH reported stomach pains to her mother. A week later, NH reported that her "privates hurt." 2B Report of Proceedings (RP) at 370. On March 16, 2008, accompanied by Wilkins, NH's mother took NH to the hospital. Wilkins was asked to leave the examination room. At this time, the medical staff informed NH's mother that there were signs of penetration and that NH had a blister on her genitalia. NH tested positive for herpes simplex virus 2, also known as genital herpes. Genital herpes is passed on by genital-to-genital contact. NH's mother tried to discuss the matter with Wilkins, but he would change the subject and get angry. Wilkins eventually moved out of the home, and NH's mother relocated to Idaho with NH.

¶4 In 2011, NH began having nightmares about Wilkins and would wet her bed. NH's mother took NH to see a counselor. NH was interviewed by a forensic interviewer in Idaho in 2011. When the interviewer asked about inappropriate touching, NH stated that she did not " ‘want to talk about that.’ " 2B RP at 407.

¶5 A different interviewer met with NH in 2014, when NH was almost 10 years old. During the videotaped interview, NH was reluctant to speak, told the interviewer she was embarrassed, and cried. The interviewer asked NH about Wilkins. NH stated, "Well, he is a bad, bad, bad, bad person. ... He does bad things to kids, very bad things to kids." 2A RP at 301-02. NH then stated that Wilkins had "probably done it to littler kids ... or bigger. That's all I know about him." 2A RP 303-04.

¶6 NH then described an incident when Wilkins and her mom were still married where she was playing in the living room with her siblings and Wilkins took her into his bedroom. NH disclosed that Wilkins then told her to take off her pants and underwear. Wilkins then had NH get on the bed, and he got on top of her. NH disclosed that Wilkins then " ‘humped’ " her; NH explained that by this she meant his "bad spot ... [w]ent up mine." 2B RP at 415, 421. NH identified Wilkins's "bad spot" as his penis. 2B RP at 423. NH then indicated that " ‘up mine’ " referred to her vagina. 2B RP at 424.

¶7 Detective Charles Meadows reviewed Wilkins's medical records. The records showed that Wilkins had been diagnosed with genital herpes.

¶8 The State charged Wilkins by amended information with first degree child rape and first degree child molestation. During the hearing on the motion to amend the information, the prosecutor stated, "I think if the jury were to find him guilty on both counts, then the Court would then throw out the lower count. I think that's how it's done." 2A RP at 233. The prosecutor continued, "I think if you have two ... then the lesser one goes away. So we do that with the understanding that if they find him guilty of both, the Court would be dismissing the child molest in the first degree at some point, or —."

2A RP at 233. The trial court then asked another question, and the prosecutor did not finish his sentence.

¶9 When the judge questioned the prosecutor more about the amendment, the prosecutor stated, "The—especially in light of the testimony at the Ryan¹ hearing, I think the Child Molest 1 charge is appropriate. I think the evidence would definitely support that, as well as Rape of a Child 1. And so, I think because of that, this is an appropriate amendment to the charge." 2A RP at 234.

¶10 After a pretrial Ryan hearing, the trial court granted the State's motion to allow the jury to view NH's videotaped 2014 interview. The trial court ordered that the entire interview be played so that the jury would be given the opportunity to fully evaluate NH's credibility.

¶11 During trial, Detective Meadows testified that when he questioned Wilkins about his genital herpes, Wilkins stated that the diagnosis "wasn't enough evidence." 2B RP at 515. NH also testified. She testified that Wilkins got on top of her in the bed, his "bad spot" touched hers, and then his "bad spot" went inside her. 2A RP at 349.

¶12 The State filed a motion to admit evidence of Wilkins's prior child rape and child molestation convictions under ER 404(b). The trial court denied the State's request, finding that the evidence did not possess the substantially high degree of similarity required for admission as a common plan or scheme.

¶13 Wilkins then pointed out that NH's comments about Wilkins doing bad things to children during the forensic interview "may be contradictory" to the trial court's ER 404(b) ruling. 2A RP at 267. Wilkins agreed that "admissibility" may depend on how the trial court classifies the statements. The trial court distinguished NH's statements from the previously excluded prior bad act evidence by explaining that it was understandable that a child her age who believed she was hurt by a person would also believe that person would be a bad person, who did bad things to others.

¶14 During closing, the prosecutor argued, without objection, that Wilkins made an incriminating statement to Detective Meadows. The prosecutor told jurors that saying " ‘[t]hat's not enough evidence’ " is different than saying " ‘I didn't do it.’ " 2C RP at 558. The prosecutor continued, "A detective is talking to you about an investigation and he points this fact out, and your response ... is, ‘That's not enough evidence.’ That's a pretty incriminating statement." 2C RP at 558-59.

¶15 In rebuttal closing, the prosecutor addressed Wilkins's reliance on NH telling the interviewer in 2011 that she did not want to discuss Wilkins. The prosecutor stated, "It's not really a fair fight for a defense attorney to parse out a child's words with such great specificity. ... She's only in the fifth grade." 2C RP at 600-01. The prosecutor went on to argue that asking NH more questions would be difficult because "[y]ou know, [NH] had to get in here and testify, at ten years old, about being raped, in front of the man who did it. How difficult would that be? So [d]efense complains we didn't ask her about her nightmares she was having about it. I think she was in here for long enough." 2C RP at 606. Wilkins did not object to these statements.

¶16 The jury found Wilkins guilty as charged. At sentencing, the prosecutor stated, "The parties agree, we did at the time and we continue to, that that was same criminal conduct, it was based on one act that the victim testified to, so they should not count against each other on the offender score. He should be sentenced for both, he was convicted of both, but they're same criminal conduct." 2C RP at 631. The trial court agreed with both parties that the two offenses comprised the same criminal conduct, calculated Wilkins's offender score by counting the offenses as one crime, and sentenced him to 300 months on the rape conviction and 198 months on the molestation conviction, to be served concurrently. Wilkins appeals.

ANALYSIS

I. DOUBLE JEOPARDY

A. JUDICIAL ESTOPPEL

¶17 We first address whether the State is judicially estopped from arguing that the rape and molestation convictions do not violate double jeopardy principles based on the prosecutor's statements at the hearing to amend the information.² The State asserts that the judicial estoppel elements have not been established. We agree.

¶18 When deciding the applicability of judicial estoppel, we focus on three factors: (1) whether the party's later position is clearly inconsistent with its earlier position, (2) whether accepting the new position would create the perception that a court was misled, and (3) whether a party would gain an unfair advantage from the change. Miller v. Campbell , 164 Wash.2d 529, 539, 192 P.3d 352 (2008).

¶19 During the hearing on the motion to amend the information, the prosecutor stated, "I think if the jury were to find him guilty of both counts, then the Court would then throw out the lower count. I think that's how it's done." 2A RP at 233. The prosecutor continued, "I think if you have two ... then the lesser one goes away. So we do that with the understanding that if they find him guilty of both, the Court would be dismissing the child molest in the first degree at some point, or —." 2A RP at 233. The trial court then asked another question, and the prosecutor did not finish his sentence.

1. CLEARLY INCONSISTENT

¶20 The prosecutor stated twice "I think" the molestation would be dismissed. 2A RP at 233. The prosecutor also stated that if the jury finds Wilkins guilty of rape and molestation, "the Court would be dismissing the child molest in the first degree at some point, or —" 2A RP at 233. The judge then asked another question, and the prosecutor did not finish his sentence. These less-than-certain statements show that the prosecutor was not certain of the result if the jury found Wilkins guilty of both offenses. As such, Wilkins cannot show that the prosecutor took a later position that was " ‘clearly inconsistent’ " with his earlier position. Miller , 164 Wash.2d at 539, 192...