Superior Court of Clark County. Superior Court Docket No. 94-1-00008-0. Date Filed In Superior Court: July 1, 1994. Superior Court Judge Signing: Robert Harris.
Written By: Morgan, J, Concurred In By: Seinfeld, CJ, Bridgewater, J
MORGAN, J. -- Dennis Robert Simonson appeals his two child molestation convictions. The primary issue is whether the trial court erred by denying a continuance. We find error, but hold it was harmless.
On January 5, 1994, the State charged Simonson with committing various sex crimes against R.M. between January 1991 and November 1992. Because R.M. turned 14 in October 1991, the State charged second degree rape of a child committed between January 1991 and early October 1991 (Count I); second degree child molestation committed during the same period (Count II); third degree rape of a child committed between early October 1991 and November 1992 (Count III); and third degree child molestation committed during the same period (Count IV).
The State included a Vancouver police officer named Jane Scott on its pre-trial witness list. It also furnished Scott's police report to the defense.
Trial commenced on Wednesday, May 18, 1994. At about 9:30 that morning, defense counsel told the judge and the prosecutor, in open court, that he wanted to call Scott if the State did not. Acknowledging he had not subpoenaed Scott, defense counsel asked the State to make her available. He said a defense investigator would be present later, and could subpoena her "if she's not going to testify in the State's case."*fn1 The prosecutor responded that Scott would be present about 2:30 that afternoon.
About 2:30, Scott arrived outside the courtroom. She waited in the hallway, because the prosecutor "had told her previously that witnesses would probably be excluded."*fn2 As the prosecutor later explained to the trial court,
I went out, saw her in the hallway, told her that I was not going
to call her and she left, I guess, and I went back in the courtroom. I did not tell her to leave.*fn3
The prosecutor did not tell the court or opposing counsel that Scott had appeared to testify. Nor, as far as the record shows, did he tell Scott that the defense wanted to call her. When Scott left the courthouse, she went on vacation, although the record does not show whether she went out of town.
About 3:10 p.m., R.M. took the stand. She testified that she and Simonson had had penile/vaginal intercourse on one occasion, "at the house,"*fn4 when she was 14. She also testified that he had penetrated her vagina with his fingers on two other occasions, and fondled her breasts, buttocks, or vaginal area about three times a week.
On cross examination, defense counsel asked R.M. whether she remembered speaking with Scott before trial. R.M answered yes. Counsel then asked:
Q: Now when you first reported this to Jane Scott, did you tell her the same thing that you're saying today?
Q: Isn't it true that you told Jane Scott that you're having intercourse with Mr. Simonson two or three times a day?
Q: You didn't tell her that?
A minute or two later, ...