Appeal from Superior Court of King County. Docket No: 94-1-02788-0. Date filed: 12/09/94. Judge signing: Hon. Donald Haley.
Rehearing Denied July 8, 1997,
Authored by Faye C. Kennedy. Concurring: Walter E. Webster, Mary K. Becker.
The opinion of the court was delivered by: Kennedy
KENNEDY, A.C.J. - David Munoz, who was tried as David Irving, appeals his conviction of first degree child molestation of 8-year old C.A., contending that the trial Judge commented on the evidence, that he was denied effective assistance of counsel, that a pre-accusatorial delay of one and one-half years violated his due process rights, and that the trial court erred in not severing the counts against him. Munoz also contends, and the State properly concedes, that the judgment and sentence incorrectly states the charge for which Munoz was convicted. We affirm Munoz's conviction and remand for correction of the judgment and sentence.
A recitation of the substantive facts is not necessary in this case. The pertinent procedural facts are stated in the body of the opinion.
Munoz contends that jury instruction 25 was a comment on the evidence.
Evidence has been introduced of multiple acts of sexual contact between David Irving and [C.A.].
Although the twelve of you need not agree that all of the acts have been proved, you must unanimously agree that at least one particular act has been proved beyond a reasonable doubt. Clerk's Papers at 124. *fn1 Munoz contends that because the instruction states "you must unanimously agree that at least one particular act has been proved beyond a reasonable doubt," instead of "in order to convict, you must unanimously agree that at least one particular act has been proved beyond a reasonable doubt," it improperly directed the jury to find the element of sexual conduct, the only disputed element in the charge. Munoz further contends that the instruction indicated the Judge's opinion as to the credibility of Munoz versus that of C.A., and revealed the Judge's personal attitude towards the case, and that it was, therefore, a comment on the evidence. No objection was made to this instruction at trial; however, "since a comment on the evidence violates a constitutional prohibition (Const. art. 4, sec. 16), the issue may be raised for the first time on appeal." State v. Hansen, 46 Wash. App. 292, 300, 730 P.2d 706 (1986), 737 P.2d 670 (1987) (citing State v. Lampshire, 74 Wash. 2d 888, 893, 447 P.2d 727 (1968)).
Courts may not instruct a jury that matters of fact have been established as matters of law. State v. Ager, 75 Wash. App. 843, 866, 880 P.2d 1017 (1994), reversed on other grounds, 128 Wash. 2d 85, 904 P.2d 715 (1995) (citing State v. Barringer, 32 Wash. App. 882, 887-88, 650 P.2d 1129 (1982); State v. Primrose, 32 Wash. App. 1, 3, 645 P.2d 714 (1982)). This is because doing so prevents juries from considering evidence or the lack thereof on material questions of fact. See State v. Barringer, 32 Wash. App. at 888.
A statement by the court constitutes a comment on the evidence if the court's attitude toward the merits of the case or the court's evaluation relative to the disputed issue is inferable from the statement. The touchstone of error in a trial court's comment on the evidence is whether the feeling of the trial court as to the truth value of the testimony of a witness has been communicated to the jury. State v. Lane, 125 Wash. 2d 825, 838, 889 P.2d 929 (1995) (citations omitted).
Instruction 25 could, if read in isolation, be interpreted as a comment on the evidence, a mandatory presumption, or a directed verdict as to the element of sexual contact. *fn2 Such an interpretation would only be reasonable if the jury ignored other pertinent instructions. In addition to instruction 25, the jury was instructed that the defendant was presumed innocent, that the jury was the sole fact-finder, that the Judge did not intentionally comment on the evidence, and that the jury was to ignore any comment it believed the court might have made. The jury was further instructed that the burden was on the State to prove all elements, including sexual contact, beyond a reasonable doubt, and that if the jury was not satisfied beyond a reasonable doubt that the defendant is guilty of child molestation in the first degree, it could consider the lesser crime of fourth degree assault. The jury was also instructed to "consider the instructions as a whole" and not to "place undue emphasis on any particular instruction or part thereof." Clerk's Papers at 99.
Although we recommend that the trial Judge correct the instruction before using it again, in light of the evidence and issues at trial, the way that this case was argued to the jury, and the instructions as a whole, we believe that no rational juror could find in this instruction a comment on the evidence, a mandatory presumption *fn3, or a direction to enter a verdict of guilty as to at least one act of sexual conduct. No rational juror could have believed the instruction to mean that the State was relieved of its burden of proof or that the Judge had ruled as a matter of law that at least one act of sexual contact, of the jury's choosing, had already been proved to the court's satisfaction. Indeed, any such interpretation would render the instruction regarding the lesser offense of fourth degree assault meaningless. Any rational juror would have understood, from the instructions as a whole, that in order to convict the defendant of ...