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State v. Atkinson

October 7, 1996

STATE OF WASHINGTON, RESPONDENT,
v.
NICHOLAS C. ATKINSON, APPELLANT.



Appeal from Superior Court of Whatcom County. Docket No: 92-1-00860-5. Date filed: 04/28/94. Judge signing: Hon. Michael F. Moynihan.

PER CURIAM. Nicholas Atkinson appeals convictions for one count of rape of child in the second degree, and one count of child molestation in the second degree. He contends the trial court abused its discretion in denying his motion to sever the counts and in excluding reputation testimony relating to one of the victims.

Because the considerations governing severance support the denial of severance, and because the proffered "reputation" testimony was stale and not clearly based on the victim's reputation in the community, we affirm.

DECISION

The facts are known to the parties and will be repeated here only when necessary to explain our decision. Atkinson contends the trial court abused its discretion *fn1 in denying his motion to sever the two counts.

In determining whether the potential for prejudice requires severance, a trial court must consider (a) the strength of the State's case on each count, (b) the clarity of the defenses, (c) instructions to the jury to consider each count separately, and (d) the admissibility of evidence of the other charges even if not joined for trial. State v. Russell, 125 Wash. 2d 24, 882 P.2d 747 (1994), cert. denied, 115 S. Ct. 2004, 131 L. Ed. 2d 1005 (1995). In addition, the court must weigh any residual prejudice against the need for judicial economy. Russell, at 63. Our review of those considerations discloses no abuse of discretion.

The State's case was not particularly strong or weak, making the first consideration essentially neutral. The second consideration weighs against severance because Atkinson's defenses--a general denial on each count--were clear. See State v. Robinson, 38 Wash. App. 871, 691 P.2d 213 (1984), review denied, 103 Wash. 2d 1015 (1985) (general denial as to both counts).

With respect to the third consideration, the court instructed the jury to "decide each count separately as if it were a separate trial" and to not let its "verdict on one count...control [the] verdict on any other count." Courts have repeatedly approved and relied on essentially the same instruction in upholding decisions denying severance. State v. Bythrow, 114 Wash. 2d 713, 790 P.2d 154 (1990); State v. Cotten, 75 Wash. App. 669, 688, 879 P.2d 971 (1994), review denied, 126 Wash. 2d 1004, 891 P.2d 38 (1995); State v. Herzog, 73 Wash. App. 34, 51, 867 P.2d 648, review denied, 124 Wash. 2d 1022, 881 P.2d 255 (1994).

Atkinson argues, however, that the instruction is insufficient to alleviate prejudice from joinder because it focuses only on separately deciding each count. He contends the court should have also instructed the jury as to what evidence it could or could not consider on each count. Atkinson is precluded, however, from claiming an abuse of discretion based on an instruction he never offered below. State v. Russell, 125 Wash. 2d at 66.

Regarding cross-admissibility, Atkinson argues, and the State essentially concedes, *fn2 that evidence relating to the two counts would not be cross-admissible in separate trials. We agree.

Under ER 404(b), evidence of other crimes cannot be used to prove conduct on a particular occasion. It may be used to prove motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident, but none of those purposes are applicable given Atkinson's defense and the issues at trial. *fn3 Nevertheless, while there is great potential for prejudice in multiple count sex cases where the evidence is not cross admissible, it is not necessarily an abuse of discretion to deny severance in such cases. State v. Bythrow, 114 Wash. 2d 713, 790 P.2d 154; State v. Kalakosky, 121 Wash. 2d 525, 852 P.2d 1064 (1993); State v. Markle, 118 Wash. 2d 424, 823 P.2d 1101 (1992). An important consideration in reviewing severance decisions is the degree to which the evidence on the joined counts could be compartmentalized by the jury. Kalakosky, 121 Wash. 2d at 537-39; Bythrow, at 721. "When the issues are relatively simple and the trial lasts only a couple of days, the jury can be reasonably expected to compartmentalize the evidence." Bythrow, at 721.

Here, Atkinson's trial lasted only two days, and the issues and defenses were relatively straightforward. Thus, even if the evidence on the two counts was not cross-admissible, the fact that the jury could compartmentalize the evidence if instructed to do so supports the court's denial of severance. That Conclusion is unaffected by Atkinson's argument that the trial court's instruction did not tell the jury to separate the evidence on the counts. As previously noted, the courts have repeatedly found the instruction given in this case sufficient to mitigate any prejudice from joinder and, under Russell, Atkinson is precluded from claiming an abuse of discretion based on an instruction he never offered.

Finally, because the evidence was easy to compartmentalize and the court could minimize prejudice through instructions, the trial court properly concluded that any potential prejudice was outweighed by concerns for judicial economy.

In sum, the trial court did not abuse its discretion in denying the motion to sever.

Atkinson also contends the court abused its discretion in excluding Bonnie Lahatt's testimony regarding LL's reputation in the trailer park. ...


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