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State v. Spencer

November 18, 1996

STATE OF WASHINGTON, RESPONDENT,
v.
KEVIN KYLE SPENCER, APPELLANT.



Appeal from Superior Court of King County. Docket No: 94-1-00831-1. Date filed: 09/08/94. Judge signing: Hon. John M. Darrah.

PER CURIAM. Kevin Spencer appeals his conviction for one count of rape of child in the third degree. He contends the trial court abused its discretion in allowing an amendment to the information on the day of trial, denying his motion to sever, and excluding reputation testimony.

Because the amendment did not impermissibly force Spencer to choose between a speedy trial and effective assistance of counsel, the considerations governing severance support the denial of severance, and the proffered "reputation" testimony was properly excluded under a prior decision of this court, we affirm.

FACTS

The State charged Spencer with one count of rape of a child in the second degree. Several weeks before trial, the State notified defense counsel that it intended to amend the information to add a charge involving a different victim. On the first day of trial, the court granted the State's motion to amend over defense counsel's objection. The court later denied a defense motion to sever the counts.

At trial, M.B. testified that she was a student at the Young Actors Institute during the summer of 1993. She was 15 years old that summer. Kevin Spencer was her teacher.

One day after class, she went with Spencer to a bookstore and restaurant and later to his apartment. At the apartment, Spencer kissed her and penetrated her vagina with his fingers.

A.C. testified that she was 13 years old in the summer of 1993. She took dance lessons that summer from Spencer at the Spectrum Dance Theater.

A.C. went with Spencer to his apartment on two occasions that summer. On the first occasion, Spencer kissed her on his bed and put her hand down his pants. That encounter was never charged.

On the second occasion, she rode with Spencer and Elizabeth Sorenson to a bank on Capitol Hill. Sorenson eventually left in the car, and Spencer and A.C. took a bus to his apartment where they had intercourse.

At the close of the State's case, Spencer renewed his motion to sever. The court denied the motion.

Spencer testified and admitted bringing M.B. to his apartment. He denied having any sexual contact with her however. He admitted going with Sorenson and A.C. to a bank on Capitol Hill, but said he then said good-bye to A.C. and went to lunch with Sorenson at Green Lake. He denied having sex with A.C.

Sorenson testified and corroborated Spencer's testimony about the trip to the bank and lunch. The last time she saw A.C., she was standing in the bank.

Spencer attempted to call three witnesses who would testify to his good reputation for sexual morality and decency. Relying on this court's decision in State v. Jackson, 46 Wash. App. 360, 730 P.2d 1361 (1986), the court excluded the testimony.

The jury convicted Spencer on the count involving M.B. but was unable to reach a verdict on the count ...


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