Oral Argument: September 10, 2013.
PUBLISHED IN PART
Appeal from Lewis County Superior Court. Docket No: 11-1-00772-8. Date filed: 03/16/2012. Judge signing: Honorable Richard Lynn Brosey.
Jodi R. Backlund and Manek R. Mistry (of Backlund & Mistry ), for appellant.
Jonathan L. Meyer, Prosecuting Attorney, and Sara I. Beigh, Deputy, for respondent.
AUTHOR: Jill M Johanson, A.C.J. Joel Penoyar, J. concurs. Thomas R Bjorgen, J. (dissenting).
[179 Wn.App. 415] ¶ 1 -- Chadwick Kalebaugh appeals his first degree child molestation conviction based on
conduct [179 Wn.App. 416] involving five-year-old HS. Kalebaugh argues that (1) the trial court's preliminary instruction undermined his presumption of innocence, (2) insufficient evidence supports his conviction, (3) the prosecutor made improper arguments in closing, (4) the trial court erroneously instructed the jury regarding " sexual contact," and (5) cumulative error rendered his trial unfair. In the published portion, we hold that Kalebaugh failed to preserve the preliminary instruction error. In the unpublished portion of this opinion, we hold that (1) the State sufficiently proved the crime, (2) the prosecutor's arguments were neither improper nor prejudicial, (3) the trial court's instruction was neither erroneous nor prejudicial, and (4) Kalebaugh does not demonstrate cumulative error. Accordingly, we affirm.
¶ 2 The events leading to Kalebaugh's conviction occurred on the night of October 28 through 29, 2011, after a gathering at the Napavine home of Kristal Strong, where Kalebaugh lived. Strong called police after a guest at the house, Jacob Murphy, accused Kalebaugh of inappropriately touching HS. HS is the child of Tiffany, who was also staying at Strong's house. The State charged Kalebaugh with first degree child molestation, alleging as aggravating factors that Kalebaugh used a position of trust or confidence to facilitate the offense and knew or should have known the victim was particularly vulnerable or incapable of resistance.
¶ 3 At trial, the responding Napavine police officer, Noel Shields, testified that after interviewing various residents [179 Wn.App. 417] and guests, he read the Miranda  warnings to Kalebaugh, who waived his rights and spoke voluntarily with Shields. Kalebaugh denied Murphy's accusation, claiming that he had not even been in the room with Murphy and HS at the time.
¶ 4 Only Murphy testified to having seen Kalebaugh touch HS. Murphy testified that shortly after arriving at the house, he laid down on a reclining couch in the downstairs living room to try to sleep. In the same room he saw two boys sleeping on another couch and HS sleeping on the loveseat. As Murphy was falling asleep, he opened his eyes and saw Kalebaugh in the room.
¶ 5 Murphy saw Kalebaugh next to HS, " chest up against the love seat with his hand underneath the blanket towards the little girl's groin area ... [m]aking a back and forth movement." 2 Report of Proceedings (RP) at 74. When asked whether Kalebaugh's arm was " over the area of [HS's] vagina," Murphy answered, " I couldn't really tell because of the blanket, but the direction of his arm looked like it was." 2 RP at 75.
¶ 6 Murphy testified that Kalebaugh's back was to him at the time, so he could not see Kalebaugh's face or demeanor. Murphy acknowledged that no lights were on in the room, but he testified that he had no trouble seeing because of the porch light shining in through a window. On cross-examination, Murphy admitted that other than seeing Kalebaugh's hand moving under the blanket somewhere " above [HS's] knee and below her belly button," he could not tell what was happening. 2 RP at 107.
¶ 7 As soon as Murphy opened his eyes and saw the movement, he confronted Kalebaugh, saying, " You know what you are doing is way wrong." 2 RP at 77. Kalebaugh looked " [l]ike he went to a surprise party," in Murphy's [179 Wn.App. 418] words, then " rolled over ... and pretended he was asleep." 2 RP at 77-78.
¶ 8 The other evidence tending to support Murphy's accusation came from Tiffany, who described HS's clothing after the incident. Tiffany testified that when she checked on
HS after hearing Murphy's accusation, HS's shorts were wrinkled and " [p]ushed up towards her hip" on the left side, exposing her underwear. 2 RP at 27. Tiffany testified that she had never seen HS's shorts in such a condition after sleeping. Tiffany also testified that she had known Kalebaugh for only a couple weeks and that she had not entrusted him with any caretaking responsibility for her children.
Jury Instructions and Closing Argument
¶ 9 The trial court's preliminary oral instruction concerning reasonable doubt given to the venire before voir dire included two additional sentences following the standard instruction outlined in 11 Washington Practice: Washington Pattern Jury Instructions: Criminal 4.01, at 85 (3d ed. 2008) (WPIC):
If after your deliberations you do not have a doubt for which a reason can be given as to the defendant's guilt, then, you are satisfied beyond a reasonable doubt.
On the other hand, if after your deliberations you do have a doubt for which a reason can be given as to the defendant's guilt, then, you are not satisfied beyond a reasonable doubt.
1 RP at 9. Kalebaugh did not object. Prior to closing argument, the court gave, orally and in writing, the pattern instruction on reasonable doubt.
¶ 10 Also prior to closing argument, the trial court read the State's proposed instruction defining " sexual contact," [179 Wn.App. 419] which in addition to the pattern instruction, included the following language:
Contact is intimate, if the contact is of such a nature that a person of common intelligence could be fairly expected to know that under the circumstances the parts touched were intimate and therefore the touching was improper. When considering when a particular touching is done for the purpose of gratifying a sexual desire, you may consider among other things the nature and the circumstances of the touching itself. Sexual contact may occur through a person's clothing.
2 RP at 169. Kalebaugh objected to the State's proposed instruction because of the language added to the pattern instruction; he requested only the pattern instruction. The trial court overruled the objection, stating that the State provided adequate authority for the proposed instruction. The oral instruction deviated slightly from the written instruction provided to the jury, which stated, " Contact is 'intimate' if the conduct is of such a nature." Clerk's Papers at 25 (emphasis added).
¶ 11 Kalebaugh also objected to two arguments the State made in closing concerning what is an " intimate part" for purposes of " [s]exual contact." 3 RP at 11-12. First, the prosecutor argued that " you as a jury get to decide what counts as an intimate part of the person's body." 3 RP at 11. Second, the prosecutor stated that
even though the touching was above the knees and below the belly button, and when asked[,] [Jacob] Murphy said it was towards the middle of that zone, that's right over the vagina, and even if it was closer to the knees or closer to the belly button, rubbing on her, that's an intimate area. Anywhere in that zone is intimate. You wouldn't feel comfortable with a stranger touching you anywhere near, probably nowhere on [179 Wn.App. 420] your body, but especially nowhere between that zone. That's an intimate part of your body.
3 RP at 11-12. The trial court overruled those two objections.
¶ 12 The jury returned a guilty verdict and found by special verdict that Kalebaugh had known the victim was particularly vulnerable or incapable of resistance. The jury found, however, that Kalebaugh had not used a position of trust or confidence to facilitate the crime. Kalebaugh timely appeals.
¶ 13 Although Kalebaugh did not timely object to the trial court's preliminary oral
instruction about reasonable doubt to the entire venire, he now argues for the first time on appeal that it improperly imposed an articulation requirement, a manifest error affecting a constitutional right warranting reversal. He analogizes the trial court's preliminary oral instruction to " fill-in-the-blank" prosecutorial misconduct cases and asserts that the trial court's preliminary instruction improperly shifted the burden of proof to Kalebaugh. We hold that Kalebaugh has not demonstrated a manifest constitutional error and accordingly has failed to preserve this issue for appellate review.
¶ 14 Generally, we will not entertain a claim of error not raised before the trial court. RAP 2.5(a). An exception to that general rule is RAP 2.5(a)(3), which requires an appellant to demonstrate a manifest error affecting a constitutional right. State v. Gordon, 172 Wn.2d 671, 676, 260 P.3d 884 (2011). " Stated another way, the appellant must 'identify a constitutional error and show how the alleged error actually affected the [appellant]'s rights at trial.'" State v. O'Hara, 167 Wn.2d 91, 98, 217 ...