State Of Washington, Respondent V Ronald Lee Sorenson, Appellant (Majority)

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1L. Q 4LIPU ILI APP Ai.S 2014 JAN 23 ST B,Y IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II No. 43199 -8 -II STATE OF WASHINGTON, Respondent, V. UNPUBLISHED OPINION RONALD LEE SORENSON, 0 Ronald Lee Sorenson appeals his jury convictions and sentences JOHANSON, A.C. J. for multiple sex crimes. by denying Sorenson claims that ( 1) the trial court manifestly abused its discretion a continuance, ( molestation convictions, ( the prosecutor' judgment and s 2) the State offered insufficient evidence for his first degree child 3) the trial misconduct sentence. court erred denied him a by failing fair trial, to and ( provide a 5) limiting instruction, ( 4) scrivener' s errors plague his Because the trial court did not abuse its discretion by denying the continuance, the State offered sufficient evidence to support the convictions, the trial court provided a limiting instruction, and Sorenson did not demonstrate that prosecutorial misconduct resulted correct in the reversible error, we scrivener' s errors affirm. in Sorenson' But we accept the State' s concession and remand to s judgment and sentence. f4pl 9. 53 No. 43199 -8 -II FACTS The State charged Sorenson with two counts of first degree child molestation) and two counts of second degree child molestation against BES, two counts of second degree child molestation and one count of third degree child molestation3 against BLS, and two counts of first degree child molestation against AKB.4 BES, BLS, and AKB are all related to Sorenson. Before trial, Sorenson moved for a continuance so that he could obtain impeachment evidence. and he He sought information about a subsequently added victim, evidence from Facebook, wanted interview 72 to continuance motion, additional arguing that ( 1) the had been working the case for witnesses. potential case was over a year old; ( six months; ( The State contested the 2) Sorenson' s new attorney 3) the State added its latest victim a month and a half earlier; and ( 4) Sorenson' s desired evidence was irrelevant and cumulative, so his need for it did not outweigh the detriment of delay to the victims. The trial court denied Sorenson' s continuance motion after considering the State' s arguments and judicial economy interests. At trial, BES testified that Sorenson' s hand touching her when sexual or she was intimate 11, parts. she woke up roughly 10 times with AKB testified that when she was 8 or 9, Sorenson would lie with her on the couch " spooning style" 15 to 20 times, touching her sexual or intimate 1 parts. 3B Report of Proceedings ( RP) at 371. BLS testified that when she was between RCW 9A.44. 083. z RCW 9A.44. 086. 3 RCW 9A.44. 089. 4 We use initials to protect the minor victims' privacy. The State also charged Sorenson with sex crimes against two other victims. The jury acquitted Sorenson of those charges and they are not relevant to this appeal. 2 No. 43199 -8 -II 11 and 14 years old, she woke up two times with her hand touching Sorenson' s sexual or intimate parts; on one of those occasions, Sorenson' s hand was also touching BLS' s sexual or intimate Additionally, BLS testified that when she was 14, she woke up with Sorenson' s parts. hand touching her sexual or intimate parts. Sorenson testified in his own defense, explaining that the girls frequently climbed into bed or the onto cuddled" with couch the girls, him with when he denied ever he was sleeping. While Sorenson admitted that he inappropriately touching them. 4A RP at He also 496. acknowledged that had. he touched any of the girls, the touching was purely accidental during the course of cuddling. After the presentation consideration of evidence of regarding evidence, each victim Sorenson to the requested charges an instruction relating to that victim. to limit Sorenson proposed his own limiting instruction, but the trial court refused to read it to the jury because it inaccurately A stated separate verdict on crime one The trial court did, however, direct the jury in its final instructions, the law. is charged count should in each count. You must not control your verdict on any decide each . count other count." separately. Your 4A RP at 568. During closing argument, the prosecutor made the following statements to convince the jury of the credibility beyond victims' a reasonable doubt. ( 1) "[ I] f you have an abiding belief that these girls testified truthfully, you have an abiding belief in what they said, you are satisfied beyond a reasonable doubt." 4B RP at 577 -78. ( 2) " I want to go through each girl and submit -- and show you how they are credible and how you should have an abiding belief in what they are saying." you 4B RP the truth at 578. ( 3) " about what And they have come forward now and taken an oath to tell all of happened." 4B RP at 593. 3 No. 43199 -8 -II 4)] And you have should abiding belief that they told an you the truth. You abiding belief that he is guilty. And if you do have an abiding belief in the truth of what those girls said, then it is your sworn duty, your sworn obligation, and your sworn responsibility to find him guilty. should 4B RP have 594. ( at doubt." reasonable an 5) "[ I] f you have an abiding belief that equals a reasonable -- beyond a 4B RP at 649. Defense counsel objected only to this last statement. The jury found Sorenson guilty of these crimes against BES, BLS, and AKB, and Sorenson s appeals. ANALYSIS I. DENIED CONTINUANCE Sorenson argues that the trial court manifestly abused its discretion by denying defense counsel' s continuance motion. The trial court, however, properly weighed the relevant factors and it did not manifestly abuse its discretion when it denied the continuance motion. We review the trial court' s grant or denial of a continuance for manifest abuse of discretion. State 1094 ( 1985). clearly v. Campbell, 103 Wn.2d 1, A trial court manifestly abuses its discretion when it exercises its discretion on untenable grounds or is manifestly 597 P. 2d 401 ( quoting Friedlander review 14, 691 P. 2d 929 ( 1984), cent. denied, 471 U. S. v. denied, 92 Wn.2d 1030 ( 1979). unreasonable. State v. Yuen, 23 Wn. App. 377, 380, Friedlander, 80 Wn.2d 293, 298, 494 P. 2d 208 ( 1972)), In granting or denying a continuance, a trial court may weigh factors such as the defendant' s right to a fair trial, diligence of counsel in investigating issues, whether the trial court granted previous continuances, and the availability of evidence or witnesses. See State v. Watson, 69 Wn.2d 645, 650 -51, 419 P. 2d 789 ( 1966). Before denying the continuance motion, the trial court considered that ( 1) the case was over a year old; ( 5 2) Sorenson' s new attorney had been working the case for six months; and ( 3) The jury also found that Sorenson used his position of trust to facilitate those crimes. 4 No. 43199 -8 -II the evidence Sorenson wanted to obtain was irrelevant, cumulative, and did not outweigh the detriment of continuance delay to the The trial court also articulated that it intended to deny the victims. in the interest of judicial economy. Sorenson cannot show that his desired impeachment evidence, which had been available throughout the case, was crucial to his defense or that his attorney was diligent in securing it. Thus, he cannot demonstrate that the trial court denied the continuance based on clearly untenable grounds or reasons; accordingly, he does not show that the trial court manifestly abused its discretion. II. SUFFICIENT EvIDENCE Sorenson next argues that the State failed to prove his first degree child molestation charges beyond a reasonable doubt because it could not show he acted for sexual gratification. We disagree because the record demonstrates that the State sufficiently proved the crimes. We review claims of insufficient evidence to determine whether, " after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found guilt beyond a reasonable doubt." State v. Salinas, 119 Wn.2d 192, 201, 829 P. 2d 1068 ( 1992). We draw all reasonable inferences from the evidence in favor of the State and against the defendant. Salinas, 119 Wn.2d all reasonable at 201. A sufficiency challenge admits the truth of the State' s evidence and inferences from it. State v. Theroff, 25 Wn. App. 590, 593, 608 P. 2d 1254, affd, 95 Wn.2d 385, 622 P. 2d 1240 ( 1980). We leave credibility determinations to the fact finder and do not review theirs on appeal. State v. Camarillo, 115 Wn.2d 60, 71, 794 P. 2d 850 ( 1990). To prove first degree child molestation, the State needed to prove beyond a reasonable doubt that Sorenson had sexual contact with a victim who is less than 12 years old, that the victim and Sorenson are not married, and that Sorenson is at least 36 months older than the victim. See RCW 9A.44. 083( 1). " Sexual contact" means any touching of the sexual or other E No. 43199 -8 -II intimate parts of a person done for the purpose of gratifying sexual desire of either party or a third party. he had Sorenson specifically argues there is insufficient evidence that RCW 9A. 44. 010( 2). contact with BES and AKB for purposes of sexual gratification. The record does not support his claim. Sorenson analogizes to State In Powell, the susceptible to innocent contact was " sexual Powell, 62 Wn. App. 914, 816 P. 2d 86 ( 1991), review to argue that he only touched the girls inadvertently, and that denied, 118 Wn.2d 1013 ( 1992), any touching " was v. explanations." fleeting" Statement of Additional Grounds at 18. and " susceptible of imiocent explanation," so the court held that no rational trier of fact could have found sexual contact beyond a reasonable doubt and reversed Powell' s conviction. 62 Wn. App. at 918. Here, Powell, unlike Sorenson touched BES and AKB neither fleetingly nor inadvertently. BES testified that Sorenson touched her roughly 10 times; she woke up numerous times with Sorenson' would lie parts. 3B RP with her at s on 371. hand touching her the couch " sexual or spooning style" intimate parts. AKB testified that Sorenson 15 to 20 times, touching her sexual or intimate Taken in the light most favorable to the State, any rational trier of fact could have concluded from this evidence that Sorenson touched the girls' sexual or intimate parts for sexual gratification; thus, the State sufficiently proved the sexual contact element of Sorenson'.s first degree child molestation convictions and his claim fails. III. LIMITING INSTRUCTION Sorenson next argues that the trial court violated his right to a fair trial by failing to give a limiting instruction. We disagree. Generally, when a trial court admits evidence for a limited purpose and the party against whom it was admitted requests a limiting instruction, Con trial courts must give an instruction. ER No. 43199 -8 -II 105; State v. Aaron, 57 Wn. App. 277, 281, 787 P. 2d 949 ( 1990). Although trial courts may refuse to give limiting instructions tliat erroneously state the law, once a defendant requests even an erroneous limiting instruction in the ER 404(b) context, the*trial court has a duty to provide a correct limiting The trial court State v. Gresham, 173 Wn.2d 405, 424 -25, 269 Pad 207 ( 2012). instruction. has broad discretion to fashion its own limitation on the use of evidence. State v. Hartzell, 156 Wn. App. 918, 937, 237 P. 3d 928 ( 2010). Here, the trial court properly refused to give Sorenson' s erroneous limiting instruction, which included inaccurate language: " When deciding the guilt or innocence of a victim on each count, evidence in other alleged counts can only be used for the limited purpose of showing common scheme or plan." directed the decide jury in its each count other count." 4A RP 538 ( emphasis added). final instructions: " A separately. 4A RP at at 568. separate crime is The trial court, however, properly charged in each count. You must Your verdict on one cow- should not control your verdict on any it Sorenson failed to challenge this instruction' s validity at trial or on appeal; thus, he does not demonstrate that the trial court improperly instructed the jury. IV. PROSECUTORIAL MISCONDUCT Sorenson next argues that the prosecutor committed misconduct by shifting the burden of proof to Sorenson, prejudicing his trial. We disagree because even if we assuune, without deciding, that the prosecutor erred, Sorenson fails to show enduring and lasting prejudice incurable by a remedial instruction. An appellant claiming prosecutorial misconduct must show both improper conduct and resulting prejudice. State v. Emery), 174 Wn.2d 741, 756, 278 P. 3d 653 ( 2012). A defendant suffers prejudice only where there is a substantial likelihood the misconduct affected the jury's verdict. State v. Brown, 132 Wn.2d 529, 561, 940 P. 2d 546 ( 1997), cent. denied, 523 U. S. 1007 7 No. 43199 -8 -II 1998). We review a prosecutor's comments during closing argument in the context of the total argument, issues in the the instructions. the case, Brown, 132 Wn.2d at evidence 561. addressed in the argument, and the jury When defense counsel fails to object to alleged prosecutorial misconduct at trial, she or he does not preserve the issue for appeal unless the misconduct is so flagrant and ill intentioned that it evinces an enduring and resulting prejudice incurable by a remedial instruction. Emery, 174 Wn.2d at 760 -61. Although Sorenson failed to object at trial to four of the five challenged statements, he argues that for the four unchallenged statements, the prosecutor committed flagrant misconduct by equating " reasonable doubt" with " abiding belief." Br. of Appellant 9. at Specifically, Sorenson argues that the prosecutor committed misconduct by arguing that if the jury has an abiding belief that the victims testified truthfully, then the jury is satisfied beyond a reasonable doubt that Sorenson is guilty. 1273 ( 2009), here review improperly Sorenson cites State v. Anderson, 153 Wn. App. 417, 220 P. 3d denied, 170 Wn. 2d 1002 ( 2010), to support his argument that the prosecutor told the jury its job was to determine the " truth" and solve the case. Sorenson' s argument lacks merit. First, we must analyze the four statements that Sorenson challenges for the first time on appeal. For us ' to consider these for the first time statements on appeal, Sorenson must demonstrate that these, statements constituted flagrant and ill-intentioned misconduct incurable by a remedial instruction. See Emery, 174 Wn.2d at 760 -61. Here, the prosecutor' s four statements informed the jury that if it had an abiding belief that the victims testified truthfully, then it was satisfied beyond. a reasonable doubt that Sorenson was guilty. Even assuming without deciding that these statements constituted misconduct, Sorenson does not demonstrate that these statements were flagrant or ill ' intentioned or that any E No. 43199 -8 -II misstatement of the law could not have been cured by a remedial instruction that clarified the doubt reasonable the " seriously doubt reasonable esoteric" wrong" See Emery, 174 Wn.2d at 758 -59 ( explaining that a misstatement of standard. but does not standard that the burden shifts demonstrate bad faith of or an attempt proof may be " certainly and to inject bias). Accordingly, he failed to show flagrant and ill-intentioned conduct incurable by a remedial instruction; so he did not preserve these challenges for appeal. See Emery, 174 Wn.2d at 760 -61. Next, regarding Sorenson' s preserved prosecutorial misconduct claim, we review the prosecutor' s argument Sorenson argues reasonable -- RP at that the beyond conduct and prosecutor' s a reasonable resulting statement, "[ doubt," prejudice. Emery, 174 Wn.2d at 756. I] f you have an abiding belief that equals a misstated the basis on which the jury could acquit. 4B Even assuming, without deciding, that Sorenson may show that this statement 649. constitutes for improper he misconduct, cannot demonstrate resulting he prejudice cannot show that the statement likely affected the jury' s verdict. Here, Sorenson denied that any inappropriate touching ever happened, and he contended that even had it happened, the touching occurred accidentally in the course of cuddling with the victims. But the jury heard testimony from BES, BLS, and AKB, who each testified that on multiple occasions, they each woke up to Sorenson touching their sexual or intimate parts. And the trial court instructed the jury that it must decide each count against each victim separately, such that the verdict on one count should not control other verdicts. Sorenson does not demonstrate that absent the prosecutor' s allegedly improper argument, the jury would not have believed the victims' testimony beyond a reasonable prejudice and his prosecutorial misconduct claim fails. U doubt. Thus, Sorenson does not show No. 43199 -8 -II V. SCRIVENER' S ERRORS Sorenson. argues, and the State concedes, that his judgment and sentence contains scrivener' s errors. We accept the State' s concession and remand to correct those errors. A defendant may challenge an erroneous sentence Bahl, 164 Wn.2d 739, 744, 193 P. 3d 678 ( 2008). for the first time on appeal. State v. The remedy for a scrivener' s error in a judgment and sentence is remand to the trial court for correction. See State v. Naillieux, 158 Wn. App. 6' )0, 646, 241 P. 3d 1280 ( 2010); CrR 7. 8( a). Sorenson' s judgment and sentence incorrectly states the dates that Sorenson committed the offenses in counts 2, 3, and 9. Sorenson committed count 2 between March 9, 2002 and March 8, 2004; count 3 between March 9, 2003 and March 8, 2006; and count 9 between August 23, 2006 and' August 22, 2009. We accept the State' s concession and remand to the trial court for it to correct Sorenson' s judgment and sentence on counts 2, 3, and 9 to accurately reflect when Sorenson committed those crimes. Q We affirm, but remand to correct scrivener' s errors in Sorenson' s judgment and sentence. A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record in accordance with RCW 2. 06. 040, it is so ordered. e HANSON, A.C. J. We concur: 10 @

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