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State v. Johnson

Court of Appeals of Washington, Division 2

March 25, 2014

The State of Washington, Respondent ,
v.
Lavester A. Johnson, Appellant

Page 705

Appeal from Pierce County Superior Court. Docket No: 11-1-02330-5. Date filed: 06/01/2012. Judge signing: Honorable John a Mccarthy.

Valerie Marushige, for appellant.

Mark E. Lindquist, Prosecuting Attorney, and Thomas C. Roberts, Deputy, for respondent.

AUTHOR: Thomas R. Bjorgen, J. We concur: Lisa Worswick, C.J., Jill M Johanson, A.C.J.

OPINION

Page 706

[180 Wn.App. 321] Bjorgen, J.

¶ 1 A jury found Lavester A. Johnson guilty of third degree child molestation. Johnson appeals his conviction and sentence, alleging tat (1) the trial court violated his and the public's right to a public trial by sealing the juror questionnaires without complying with necessary procedures and (2) his trial attorney provided ineffective assistance of counsel by failing to subpoena two witnesses. Alternatively, Johnson asks that we remand his case to the trial court with orders to clarify one community custody condition, strike another, and correct certain statutory citation errors in an appendix to his judgment and sentence. Rejecting Johnson's public trial and ineffective assistance of counsel claims, we affirm his convictions. However, we remand to the trial court to strike or clarify community custody condition 16, to strike community custody condition 25, and to correct clerical errors.

FACTS

¶ 2 In early spring 2011, 14-year-old C.P. [1] and her aunt spent the night at the home of Tina Becerra, a family friend. C.P. testified that Johnson, Becerra's boyfriend, touched her [180 Wn.App. 322] inappropriately on three different occasions during the night and the following morning.

¶ 3 The State charged Johnson with third degree child molestation and the case proceeded to trial. To assist in jury selection, the parties used a two-page questionnaire the jurors filled out before oral voir dire.

¶ 4 At trial C.P. testified about the molestation. Johnson testified in his own defense, as did Becerra and another adult present throughout C.P.'s visit. Johnson's cousin and Becerra's six-year-old daughter, who were both at Becerra's house during C.P.'s molestation, did not testify.

¶ 5 The jury returned a guilty verdict. The trial court sentenced Johnson to 14 months' confinement and 36 months of community custody, imposing several conditions as part of his community custody. One of these conditions prohibited Johnson from contact with " physically or mentally vulnerable" individuals. Clerk's Papers (CP) at 112. Another prohibited computer or Internet access without the permission of the court; this condition also forbade Johnson from using Internet social media sites. In addition, the part of Johnson's judgment and sentence containing these conditions, Appendix H, stated that the trial court had sentenced Johnson under former RCW 9.94A.712 (2006) and referenced former RCW 9.94A.150 (2000) and former RCW 9.94A.125 (1983), all of which had been recodified to other RCW sections.

¶ 6 Johnson timely appeals his conviction and sentence.

ANALYSIS

I. Public Trial

¶ 7 Johnson contends that the trial court abridged both his right to a public trial and the public's right to open access to judicial proceedings by sealing the juror questionnaires without performing the analysis required by State v. Bone-Club, 128 Wn.2d 254, 906 P.2d 325 (1995). We find no [180 Wn.App. 323] evidence ...


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