State v. Kalebaugh

Johanson, A.C.J. ¶ 1 Chadwick Kalebaugh appeals his first degree child molestation conviction based on conduct 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 of this opinion, we hold that Kalebaugh failed to preserve the preliminary instruction error. In the unpublished portion, we hold that (1) the State sufficiently proved the crime, (2) the prosecutor’s arguments were neither improper nor prejudicial, (3) the trial court’s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. FACTS ¶ 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,1 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. Trial Testimony ¶ 3 At trial, the responding Napavine police officer, Noel Shields, testified that after interviewing various residents 417 and. guests, he read the Miranda2 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.3 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 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.4 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,” 419 which in addition to the pattern instruction, included the following language:5 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 askedf,] [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 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. ANALYSIS Preliminary Instruction fl3 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 P.3d 756 (2009) (alteration in original) (quoting State v. Kirkman, 159 Wn.2d 918, 926-27, 155 P.3d 125 (2007)). ¶ 15 To determine if an error is of constitutional magnitude, we look to whether, if the defendant’s alleged 421 error is true, the error actually violated the defendant’s constitutional rights. O’Hara, 167 Wn.2d at 98. An error is “manifest” if it is so obvious on the record that the error warrants appellate review. O’Hara, 167 Wn.2d at 99-100. But appellants must also demonstrate “actual prejudice,” meaning the defendant must plausibly show the asserted error had practical and identifiable consequences at trial. Gordon, 172 Wn.2d at 676. ¶ 16 No Washington case addresses whether if a trial court misstates the preliminary oral instruction on reasonable doubt to the entire venire but gives a correct final oral and written instruction to the empanelled jury, such a misstated preliminary instruction constitutes a manifest error affecting a constitutional right. Accordingly, this is a matter of first impression in our state. But we may look to other jurisdictions for guidance. ¶ 17 In Connecticut, for example, similar to our RAP 2.5(a) analysis which requires an appellant to demonstrate a manifest error affecting a constitutional right, its courts will address the merits of an unchallenged claim of constitutional error if an appellant can show that the claim is of constitutional magnitude and that the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial. See State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). Under this preservation standard, an appellant must show a clear constitutional violation that clearly deprived him or her of a fair trial. State v. Figueroa, 235 Conn. 145, 184-85, 665 A.2d 63 (1995). Essentially, in Connecticut, an appellant may raise for the first time on appeal an alleged error regarding the trial court’s preliminary instruction only if “ 'considering the substance of the charge rather than the form of what was said, it is reasonably possible that the jury was misled.’ ” Figueroa, 235 Conn, at 183 (quoting State v. Walton, 227 Conn. 32, 65, 630 A.2d 990 (1993)). In other words, Connecticut requires a showing of reasonable prejudice. See Figueroa, 235 Conn, at 184. And Connecticut courts hold 422 that, generally, improper preliminary instructions challenged for the first time on appeal do not give rise to prejudice because preliminary instructions “ ‘do not supersede those given after evidence and arguments’ ” when the jury is properly instructed “ ‘at the critical time, after all the evidence and after the arguments of counsel.’ ” State v. Lewis, 220 Conn. 602, 614, 600 A.2d 1330 (1991) (quoting State v. Woolcock, 201 Conn. 605, 623, 627, 518 A.2d 1377 (1986)). ¶ 18 In Figueroa, for example, one of the trial court’s preliminary instructions stated that it would be improper to use a “woman’s intuition” to determine reasonable doubt. 235 Conn, at 182-83. The trial court then properly instructed the empanelled jury about reasonable doubt in its final written instructions. See Figueroa, 235 Conn. at 184. Figueroa argued that the trial court’s preliminary instruction created an improper articulation requirement, an error that the final instruction could not cure. Figueroa, 235 Conn. at 182-83. The Connecticut Supreme Court disagreed and affirmed Figueroa’s conviction, asserting that it was not reasonably possible that the preliminary instruction misled the jury because the trial court “fully and correctly instructed as to the principles of the defendant’s presumption of innocence and the state’s burden of proof beyond a reasonable doubt at final instructions.” Figueroa, 235 Conn. at 184. Accordingly, Figueroa could not demonstrate prejudice and, therefore, did not preserve the issue for appeal. See Figueroa, 235 Conn. at 184-85. ¶ 19 Similarly, here, Kalebaugh cannot show a manifest error affecting a constitutional right. Even assuming, without deciding, that the preliminary reasonable doubt instruction offered here constitutes an error of constitutional magnitude, Kalebaugh does not demonstrate manifest error. Therefore, as in Figueroa, he did not demonstrate prejudice and, consequently, did not preserve this issue for our review. See RAP 2.5(a). ¶ 20 Although the preliminary instruction error was obvious because of the Washington Supreme Court’s directive 423 in State v. Bennett, 161 Wn.2d 303, 318, 165 P.3d 1241 (2007), to use the WPIC 4.01 language on reasonable doubt only to instruct the jury,6 Kalebaugh does not show prejudice — he cannot show that the preliminary instruction had practical and identifiable trial consequences. Like Figueroa, here the trial court made an error in articulating the reasonable doubt standard in a preliminary oral instruction, but it properly instructed the jury, orally and in writing, at the critical time — after the presentation of evidence. It is not reasonably possible that the trial court’s preliminary instruction misled the jury considering that the trial court properly instructed the jury on reasonable doubt in its final oral and written instructions, which the jury used during deliberations. Like Figueroa, there is no reasonable possibility that the preliminary instruction misled the jury. ¶ 21 Moreover, Kalebaugh’s reliance on prosecutorial misconduct cases is unpersuasive. Prosecutorial misconduct cases do not help in determining whether Kalebaugh can show actual prejudice from a preliminary instruction. In State v. Emery, 174 Wn.2d 741, 761, 763, 278 P.3d 653 (2012), our Supreme Court simply said that the fill-in-the-blank argument “could potentially have confused the jury about its role and the burden of proof,” and that a proper instruction could have cured the potential confusion. (Emphasis added.) Here, the trial court actually read the empanelled jury the correct WPIC on reasonable doubt after the presentation of evidence, and the jury received three hard copies for deliberations, potentially curing any lingering confusion. We simply cannot draw clean parallels between cases involving a prosecutor’s fill-in-the-blank argument during closing and a trial court’s improper preliminary instruction before the presentation of evidence. 424 ¶ 22 Kalebaugh failed to demonstrate prejudice; accordingly, he did not properly preserve this issue to be considered for the first time on appeal. See RAP 2.5(a). ¶ 23 A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder shall be filed for public record in accordance with RCW 2.06.040, it is so ordered. Penoyar, J., concurs. Footnotes [1] We use initials and omit Tiffany’s surname to protect the minor victim’s privacy. [2] Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). [3] In accordance with the trial court’s rulings, HS did not testify, nor did any witness testify, as to any statements HS may have made concerning the events. [4] A nurse practitioner testified that her examination of HS a few days after the incident revealed no physical evidence of abuse but that she considered such an absence of findings normal in child sexual abuse cases. [5] The pattern instruction defines “sexual contact” as “any touching of the sexual or other intimate parts of a person done for the purpose of gratifying sexual desires of either party.” WPIC 45.07, at 839. [6] And WPIC 1.01, at 5-12 (3d ed. Supp. 2011) uses WPIC 4.01’s language on reasonable doubt. See WPIC 1.01, at 5-12 (3d ed. Supp. 2011); WPIC 4.01, at 85.