State v. SutherbyState v. Sutherby
¶ 1 A jury convicted Randy Sutherby of first degree child rape, first degree child molestation, and seven counts of possession of depictions of minors engaged in sexually explicit conduct. Sutherby argues on appeal that (1) the trial court used the wrong unit of prosecution under the child pornography statute, former
FACTS
BACKGROUND
¶ 2 The State alleged the following facts. On Christmas Eve, Sutherby crawled into bed with his five-year-old granddaughter, E.K., and inserted his finger repeatedly into her vagina. E.K. told her grandmother the next day that her genitals hurt, and she expressed fear at the prospect of spending more time with Sutherby.
¶ 3 Two days later, E.K. also reported the incident to her mother and identified Sutherby as the assailant. E.K.‘s mother immediately took E.K. to Dr. Sharon Ahart, who interviewed her and received a similar description of events. Dr. Ahart noted trauma to E.K.‘s hymen and irritation to her genitals that may have been caused by rubbing.
¶ 4 Detective Edward McGowan investigated the charge. He eventually arrested Sutherby and read him his Miranda1 rights. With Sutherby‘s consent, law enforcement seized two of his personal computers from his home. Investigators found dozens of digital files on the computers containing photographs and films depicting pre-pubescent children engaged in sexual acts.
PROCEDURE
¶ 5 The State charged Sutherby by amended information with: (1) one count of first degree child rape; (2) one count of first degree child molestation; and (3) ten counts of possession of depictions of minors engaged in sexually explicit conduct. The trial court consolidated five of the pornography counts into two counts on the ground that the proper unit of prosecution under former
¶ 6 In this appeal, we address two issues: (1) what is the proper unit of prosecution under the child pornography statute, former
ANALYSIS
UNIT OF PROSECUTION
¶ 7 Sutherby argues that the trial court erred when it ruled that the proper unit of prosecution under former
¶ 8 The double jeopardy clause of the Fifth Amendment protects a defendant from being punished multiple times for the same offense. State v. Gocken, 127 Wash.2d 95, 100, 896 P.2d 1267 (1995). When a defendant is charged with violating one statute multiple times, the proper inquiry for double
¶ 9 For this analysis, the first task is to closely review the statute to determine what act or course of conduct it prohibits. State v. Root, 141 Wash.2d 701, 706, 9 P.3d 214 (2000). Sutherby was charged with multiple violations of former
¶ 10 The debate here focuses on the legislature‘s use of the word “any.” Sutherby argues that “any” means “one or more,” and that, applying this definition, possessing child pornography at any one time and general location is typically4 a single unit of prosecution, regardless of the quantity of material possessed. The State argues that “any” means “one” and that under this definition each distinct material, such as a photograph, film, or digital file, is one unit.
¶ 11 “The word `any’ has troubled many courts.” United States v. Reedy, 304 F.3d 358, 365 n. 7 (5th Cir.2002). It denotes a full spectrum of quantities, including: (1) one; (2) one, some, or all regardless of quantity; (3) one or more; (4) great, unmeasured, or unlimited in amount; and (5) all. WEBSTER‘S THIRD NEW INTERNATIONAL DICTIONARY 97 (1976). The placement of the word in
¶ 12 If the legislature fails to denote the unit of prosecution in the statute, courts must resolve the ambiguity and must do so in favor of the defendant charged with having violated the statute. Adel, 136 Wash.2d at 634-35, 965 P.2d 1072 (citing Bell v. United States, 349 U.S. 81, 84, 75 S.Ct. 620, 99 L.Ed. 905 (1955)). In Bell, the United States Supreme Court held that when “argumentative skill . . . could persuasively and not unreasonably reach either of the conflicting constructions,” it is improper to resolve the question by turning a single transaction into multiple offenses. Bell, 349 U.S. at 83-84, 75 S.Ct. 620. Applying this rule of lenity here to avoid turning a single transaction into multiple offenses, we hold that Sutherby‘s violation of the statute by simultaneously possessing multiple materials in the same location is one unit of prosecution for which he is subject to only one conviction.
¶ 13 We are mindful that this decision differs from Division One‘s recent opinion in State v. Gailus, 136 Wash.App. 191, 147 P.3d 1300 (2006). In that case, the court held that the proper unit of prosecution is each photograph, film, or each digital file containing a photograph or film. But the Gailus court was not asked to interpret the word “any.” Its analysis focused instead on whether a compact disc containing multiple images constituted one unlawful act or many. In light of those arguments, we agree that the legislature intended to prohibit possession of the images regardless of the method or medium
MOTHER‘S TESTIMONY
¶ 14 Sutherby also argues that E.K.‘s mother‘s testimony—that her daughter was not lying about Sutherby raping her—deprived him of his right to a jury trial. At trial, E.K.‘s mother impermissibly commented on methods she used to determine her daughter‘s credibility and trained the jury to look for a particular mannerism during E.K.‘s testimony to determine whether she was telling the truth.
¶ 15 The testimony at issue follows in full:
Q And have you taught [E.K.] about telling the truth and the consequences?
A Yes.
Q And how have you done that?
A How?
Q Yeah, what kind of conversations?
A Just—she just knows it‘s wrong to lie and that she will be punished and you get time outs. She knows it can hurt people and causes problems and it‘s for her safety too.
Q Can you tell when she has told a fib?
A Yeah.
Q How do you tell that?
A She makes kind of a—tries not to smile, but makes a half smile when she is telling a fib.
Q Ever seen that face or reaction when she was talking about what happened with [Sutherby]?
A No.
1 Report of Proceedings at 33-34. We agree with Sutherby that this testimony was wholly improper and deprived him of his right to have the jury determine E.K.‘s credibility.
¶ 16 Generally, no witness may offer testimony in the form of an opinion regarding a witness‘s credibility; such testimony is unfairly prejudicial to the defendant because it invades the exclusive province of the jury. State v. Demery, 144 Wash.2d 753, 759, 30 P.3d 1278 (2001). Opinion testimony is testimony based on one‘s belief or idea rather than on direct knowledge of the facts at issue. Demery, 144 Wash.2d at 760, 30 P.3d 1278 (quoting BLACK‘S LAW DICTIONARY 1486 (7th ed.1999)).
¶ 17 E.K.‘s mother offered her opinion on her daughter‘s credibility by telling the jury that E.K. makes a half smile when she lies, but did not make a half smile when she accused Sutherby of rape. Central issues at trial included the assailant‘s identity and E.K.‘s credibility. E.K.‘s mother expressed her opinion about the truth of E.K.‘s claim of rape by stating that E.K. had certain mannerisms indicating when she was lying. In essence, E.K.‘s mother (1) told the jury that E.K. told the truth when she related the incriminating events to her and (2) gave it information that she claimed would enable the jurors to evaluate E.K.‘s testimony: that if E.K. made a half smile while testifying she was not simply nervous, but was fibbing. E.K.‘s mother‘s testimony regarding her daughter‘s credibility was wholly improper.
¶ 18 In some instances, a witness who testifies to his belief that the defendant is guilty is merely stating the obvious, such as when a police officer testifies that he arrested the defendant because he had probable cause to believe he committed the offense. See, e.g., State v. Kirkman, ___ Wash.2d ___, 155 P.3d 125 (2007). Here, however, E.K.‘s mother‘s testimony was neither cumulative
¶ 19 Accordingly, we reverse Sutherby‘s first degree child rape and first degree child molestation convictions and remand for retrial on counts one and two.6
We concur: BRIDGEWATER, P.J., and ARMSTRONG, J.