State v. Zwald

555 P.3d 467

The STATE of Washington, Appellant,

v.Joel Duane ZWALD, Respondent.

No. 84950-6-I (consolidated w/ No. 85332-5-I)

Court of Appeals of Washington, Division 1.

Filed August 26, 2024

Appeal from Whatcom County Superior Court, Docket No: 19-1-01394-2, Honorable David E. Freeman, Judge.

Nancy P. Collins, Washington Appellate Project, 1511 3rd Ave. Ste. 610, Seattle, WA, 98101-3647, for Appellant.

Department of Corrections Ag. Office, Attorney at Law, P.O. Box 40116, Olympia, WA 98504-0116, Holger Kurt Sonntag, Attorney at Law, 1125 Washington St. Se., Olympia, WA, 98501-2283, for Petitioner.

Kimberly Anne Thulin, Jesse R. Corkern, Whatcom County Prosecuting Attorney’s Office, 311 Grand Ave. Ste. 201, Bellingham, WA 98225-4038, Nancy P. Collins, Washington Appellate Project, 1511 3rd Ave. Ste. 610, Seattle, WA 98101-3647, for Respondent.

PUBLISHED OPINION

Bowman, J.

¶1 Joel Duane Zwald appeals his jury convictions for third degree child molestation, second degree child molestation, and second degree child rape. He argues that the trial court commented on the evidence by instructing the jury that to convict Zwald, it need not corroborate the victim’s testimony, and that the prosecutor committed misconduct during closing argument. He also asks us to remand for the trial court to strike the nonmandatory legal financial obligations (LFOs) imposed at sentencing based on his indigency. The Department of Corrections filed a postsentence petition, alleging the trial court erred in sentencing Zwald on count 3, second degree child rape. We affirm Zwald’s convictions but remand for the court to determine whether he is indigent and reconsider the LFOs and to resentence Zwald on count 3.

FACTS

¶2 Zwald and M.C. started dating in 2007. In 2014, M.C., her son J.C., and her youngest daughter T.R.¹ moved in with Zwald.²

¶3 When T.R. was about 11 or 12 years old, Zwald began sexually assaulting her. In 2019, T.R. disclosed the abuse to her school counselor, Tracee Mullen.³ Mullen reported the abuse to Child Protective Services (CPS) and the high school. The school contacted the police. On November 19, 2019, the State charged Zwald with one count of third degree child molestation, one count of second degree child molestation, and one count of second degree child rape of T.R.

¶4 A jury trial began in October 2022. T.R. testified in detail about her nonexistent relationship with her biological father and her strained relationship with her mother during her childhood. T.R. described M.C. as "a very closed-off person" and said that she and M.C. "would fight a lot." T.R. admitted that she "act[ed] out quite a lot," including running away from home. T.R. also said that after they moved in with Zwald, she "just kind of stopped getting along with everyone in my family," including Zwald, because "[h]e was molesting me." T.R. testified that after she disclosed the abuse, she moved in with her grandma and had not spoken to her mother in the three years since.

¶5 T.R. then testified about the assaults, which "happened almost on a daily basis, … either in [her] room or [Zwald’s]." T.R. said that she did not disclose the abuse sooner because she feared no one would believe her. But she did tell her then-boyfriend D.H., and he eventually encouraged her to disclose the abuse to her school counselor, Mullen. On cross-examination, defense counsel tried to impeach T.R.’s credibility by questioning her "chronic running away," stealing money from M.C. and Zwald, and "sneaking out to spend time with [D.H.]."

¶6 The State called Mullen to testify about T.R.’s disclosure and explain that as a mandatory reporter, she had to report the abuse to CPS and the high school. The State also called several law enforcement officers. Former Everson Police Department Officer Jordan Bryant testified that he responded to the high school’s initial call to police. Officer Bryant interviewed T.R. and then transferred the case to the Whatcom County Sheriff's Office. Whatcom County Sheriff's Office Detective Erik Francis testified that he interviewed T.R. several days later, which he "audio video recorded." Detective Francis explained that he tried to contact T.R.’s brother, J.C., but he did not respond, and that he did not try to interview T.R.’s former boyfriend, D.H.

¶7 Zwald challenged both officers’ investigations on cross-examination. Defense counsel criticized Officer Bryant for not interviewing witnesses other than T.R., including D.H., J.C., and one of T.R.’s friends. And he criticized Detective Francis’ investigation for the same reason, eliciting testimony that along with D.H. and J.C., Detective Francis did not interview another high school counselor or high school teachers. Zwald testified on his own behalf and denied ever touching T.R. in an inappropriate manner.

¶8 The trial court instructed the jury before closing arguments. Over Zwald’s objection, it gave a no-corroboration instruction that stated, "In order to convict a person of child molestation in the second degree or rape of a child in the second degree, it is not necessary that the testimony of the alleged victim be corroborated."⁴

¶9 In closing, the prosecutor focused on how Mullen and law enforcement helped T.R. "find her voice" and how the State is "going to tell her story" to the jury. In his closing argument, defense counsel told the jury that T.R. had a "truth problem" and that she was motivated to lie because she wanted to leave home to be with D.H. And he claimed that the police investigation was inadequate because the officers failed to interview several potential witnesses. In rebuttal, the prosecutor argued that the potential witnesses did not have "material" information and noted that he would not "be happy with law enforcement out there talking to people that they don’t need to be talking to."

¶10 The jury convicted Zwald as charged. The court sentenced Zwald to a 170-month sentence ⁵ with 36 months of community custody and imposed several LFOs, including the $500 victim penalty assessment (VPA), the $100 DNA⁶ collection fee, and $450 in court costs.

¶11 Zwald appeals.

ANALYSIS

¶12 Zwald argues that the trial court erred by giving a no-corroboration jury instruction and that the prosecutor committed misconduct during closing argument. He also asks us to remand to the trial court to strike the nonmandatory LFOs due to his indigency. We address each argument in turn.

1. No-Corroboration Jury Instruction

¶13 Zwald argues that the trial court’s nocorroboration instruction was an unconstitu- tional comment on the evidence, requiring reversal, and that it violated his due process rights.

A. Comment on the Evidence

¶14 Zwald argues that the trial court unconstitutionally commented on the evidence by instructing the jury that the State need not corroborate T.R.’s testimony. We disagree.

[1–3] ¶15 Article IV, section 16 of our state constitution provides, "Judges shall not charge juries with respect to matters of fact, nor comment thereon, but shall declare the law." This is so a judge does not influence a jury by conveying "the court’s opinion of the evidence submitted." State v. Elmore, 139 Wash.2d 250, 275, 985 P.2d 289 (1999). A jury instruction that does no more than accurately state the law pertaining to an issue does not amount to an impermissible comment on the evidence. State v. Woods, 143 Wash.2d 561, 591, 23 P.3d 1046 (2001). We review whether a jury instruction amounts to a judicial comment on the evidence de novo and in the context of the instructions as a whole. State v. Levy, 156 Wash.2d 709, 721, 132 P.3d 1076 (2006).

[4–6] ¶16 To determine whether a trial court’s statement amounts to a comment on the evidence, we "look to the facts and circumstances of the case." State v. Jacobsen, 78 Wash.2d 491, 495, 477 P.2d 1 (1970). The fundamental question underlying our analysis is whether the mention of a fact in a jury instruction "conveys the idea that the fact has been accepted by the court as true." Levy, 156 Wash.2d at 726, 132 P.3d 1076. Article IV, section 16’s prohibition on such comments "forbids only those words or actions which have the effect of conveying to the jury a personal opinion of the trial judge regarding the credibility, weight or sufficiency of some evidence introduced at the trial." Jacobsen, 78 Wash.2d at 495, 477 P.2d 1.

¶17 In 1907, the legislature enacted Remington & Ballinger’s Code section 2155, which required the State to corroborate a victim’s testimony in sex cases. Laws of 1907, p. 396, § 1; see State v. Gibson, 64 Wash. 131, 132, 116 P. 872 (1911). But even before the legislature passed the 1907 act, our Supreme Court repeatedly held that corroboration of the prosecuting witness in sex cases is unnecessary. State v. Morden, 87 Wash. 465, 468, 151 P. 832 (1915). Then, in 1913, the legislature repealed the corroboration statute under Remington & Ballinger’s Code section 2443. Laws of 1913, ch. 100, § 1; see Morden, 87 Wash. at 467, 151 P. 832. Since then, corroboration of a prosecuting witness in sex cases has not been required by law. State v. Thomas, 52 Wash.2d 255, 256, 324 P.2d 821. (1958).

¶18 After several amendments, our legislature codified the no-corroboration common law rule in former RCW 9.79.150 (1975). Laws of 1975, 1st Ex. Sess., ch. 14, § 2. That statute says, "In order to convict a person of any crime defined in this chapter it shall not be necessary that the testimony of the alleged victim be corroborated." Former RCW 9.79.150(1). The legislature uses that same language in the current statute, RCW 9A.44.020(1). See Laws of 1979, Ex. Sess., ch. 244, § 17 (recodifying former RCW 9.79.150 as RCW 9A.44.020).

¶19 For decades, trial courts have been asked to instruct juries in sex cases that the law does not require corroboration of an alleged victim’s testimony. Our Supreme Court addressed whether a no-corroboration jury instruction amounts to a comment on the evidence 75 years ago in State v. Clayton, 32 Wash.2d 571, 202 P.2d 922 (19...