IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE
THE STATE OF WASHINGTON, No. 85134-9-I
Respondent,
v. UNPUBLISHED OPINION
JERMAINE RODREGUS FREEMAN,
Appellant.
BOWMAN, A.C.J. — A jury convicted Jermaine Rodregus Freeman of first
degree and second degree child molestation. The trial court found Freeman is a
persistent offender and sentenced him to life without the possibility of parole
(LWOP). Freeman argues that the court erred by excluding evidence of specific
instances of the child’s dishonesty, that the State improperly elicited inadmissible
opinion testimony, and that cumulative error requires reversal. He also argues
that his sentence under the Persistent Offender Accountability Act of the
Sentencing Reform Act of 1981 (POAA), chapter 9.94A RCW, is unconstitutional
and that we should remand for the trial court to strike the victim penalty
assessment (VPA) from his judgment and sentence. We affirm Freeman’s
convictions and sentence but remand for the trial court to strike the VPA.
FACTS
Z.M. was born in June 2008. When she was around four years old, her
mother, Natasha Wright, began dating Freeman. Later, Freeman intermittently No. 85134-9-I/2
lived with Natasha,1 Z.M., and Z.M.’s older brother, J.M. J.M. is about six years
older than Z.M.
One night in February 2018 when Z.M. was nine years old, Freeman
entered the children’s2 bedroom while they were sleeping and sexually assaulted
Z.M. The next morning, Z.M. reported the incident to her mom, Natasha. She
also told her friends, M.C. and L.D., and L.D.’s mother, Jeninne Ives. Ives
immediately reported the incident to Child Protective Services (CPS). And
Natasha “kick[ed] [Freeman] out of the house . . . [f]or a little bit.” But CPS
“screened out” the referral because there was “not enough information.” And
Freeman “eventually c[a]me back” to Z.M.’s home.
In June 2020, when Z.M. was 12 years old, Freeman knocked on Z.M.’s
bedroom door while she was video calling and playing an online game with M.C.
M.C. heard the knock, but Z.M. hung up when she told Freeman he could come
in. Freeman then told Z.M. that he was leaving and asked for a hug. When they
hugged, Freeman put his hand underneath Z.M.’s pants and underwear and
slightly squeezed her buttocks. Just after Freeman left, Z.M. called M.C. back
and told her what happened. M.C. then told her mother, Peggy Combs. Z.M.
also told Natasha but felt she did not take it “seriously.” That night, Z.M. stayed
at M.C.’s house.
1 We use the first names of the Wright family members when necessary for clarity and mean no disrespect by doing so. 2 Z.M. and J.M. shared a bedroom at the time. They each had a twin bed, and their beds were side-by-side. J.M. testified that he is a “heavy sleeper” and that “yelling is the [only] sort of thing that would wake [him] up.”
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The next morning, Z.M. and Combs discussed that Freeman
inappropriately touched Z.M. Combs then reported the incident to CPS. On
Tuesday, June 23, CPS social worker Georgette Carter visited Z.M. at her house
and began investigating. Natasha then sent Z.M. to stay with L.D.’s family. Z.M.
told L.D. and Ives about Freeman’s recent inappropriate conduct. On Friday,
June 26, Ives also reported to CPS Z.M.’s disclosure about Freeman.
CPS then placed Z.M. with her oldest brother, Christian Wright, for a
couple of weeks during its investigation until it was “safe” for Z.M. to return home
to Natasha. CPS closed the case as “unfounded”3 and referred the case to the
Seattle Police Department. The State charged Freeman with first degree rape of
a child, first degree child molestation as an alternative to first degree rape of a
child, and second degree child molestation.
Before trial, the State moved to exclude testimony about Z.M.’s alleged
reputation for untruthfulness. It also moved for an offer of proof about specific
instances of Z.M.’s dishonesty that Freeman intended to introduce. Freeman
asked to cross-examine Z.M. about “a prior false claim of sexual abuse against
her brother,” J.M. But Freeman admitted that Z.M. never told CPS she had been
molested by her brother. Instead, someone else reported it to CPS, and Z.M.
“ultimately denied” the allegations.
The trial court ruled the evidence was inadmissible because “there’s no
real foundation” that Z.M. made the comments, and they could not be sourced to
3 Social worker Carter explained that “unfounded doesn’t mean that [CPS] didn’t believe the allegations.”
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her. The court also added it was hearsay and “irrelevant . . . that someone else
said that she said something about her brother.”
The case proceeded to trial in February 2023. Several witnesses testified,
including Z.M., Natasha, J.M., Christian, M.C., Combs, L.D., Ives, CPS social
worker Carter, and a Seattle police detective. After Carter’s testimony, but
before Z.M. or any of her family members testified, Freeman asked the trial court
if he could “inquire of Natasha about prior instances of [Z.M.] telling lies about her
family members.” Freeman said Natasha would testify that Z.M. lied about her
when she “denied [Z.M.] privileges,” specifically “about physical abuse that [Z.M.]
says Natasha has perpetrated against her that is not true.” The court denied the
motion, explaining it was “improper impeachment evidence” and “you just can’t
get into reputation that way.”
M.C. testified about the night in June 2020 when she and Z.M. were on a
video call and playing online games. When the prosecutor asked M.C. how she
felt after Z.M. told her Freeman put his hand down Z.M.’s pants and squeezed
her buttocks, M.C. testified that she was “worried for her and her safety and I was
disgusted and appalled.” During Ives’ testimony, the prosecutor asked whether
she felt Z.M. “would be safe going home to mom.” Ives testified, “It’s not mom
but just the environment, not safe, no.”
The jury acquitted Freeman of first degree rape of a child but convicted
him of the alternative crime, first degree child molestation, and of second degree
child molestation. At sentencing, the court found Freeman to be a persistent
offender under the POAA. It determined that Freeman’s 2001 conviction for
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second degree rape of a child was his first “strike offense,” and the current first
degree child molestation of Z.M. conviction was his second strike offense. The
court then imposed a mandatory LWOP sentence for the first degree child
molestation conviction and a concurrent 116-month sentence for the second
degree molestation conviction. The court found Freeman “is indigent,” waived all
nonmandatory legal financial obligations, and imposed only restitution and a
$500 VPA.
Freeman appeals.
ANALYSIS
Freeman argues (1) the trial court violated his constitutional right to
present a defense, (2) the State elicited inadmissible opinion testimony, (3)
cumulative error requires reversal, (4) the POAA’s two-strike provision for felony
sex offenses is unconstitutional, and (5) we should remand for the court to strike
the VPA. We address each argument in turn.
1. Right to Present a Defense
Freeman argues the trial court violated his constitutional right to present a
defense by excluding testimony about Z.M.’s false allegations against J.M. and
Natasha. We disagree.
Both the federal and state constitutions guarantee a criminal defendant
the right to present a defense. State v. Jennings, 199 Wn.2d 53, 63, 502 P.3d
1255 (2022). But the right is not absolute; a court may exclude irrelevant or
otherwise inadmissible evidence to accommodate other legitimate interests in the
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criminal trial process. State v. Caril, 23 Wn. App. 2d 416, 426, 515 P.3d 1036
(2022).
When a defendant asserts that an evidentiary ruling violated his right to
present a defense, we engage in a two-part analysis. State v. Arndt, 194 Wn.2d
784, 797-98, 453 P.3d 696 (2019). First, we review the court’s evidentiary ruling
for an abuse of discretion. Id. A court abuses its discretion when its decision is
manifestly unreasonable or based on untenable grounds or reasons. Id. at 799.
Then, if we conclude the trial court’s evidentiary ruling was not an abuse of
discretion, we review de novo whether the ruling deprived the defendant of his
constitutional right to present a defense. Id. at 797-98; Jennings, 199 Wn.2d at
59.
A. Z.M.’s Alleged False Allegations against J.M.
Freeman argues the trial court erred by refusing to allow him to cross-
examine Z.M. about whether she falsely accused J.M. of molesting her. He
asserts the testimony was admissible under ER 608(b) as a specific instance of
Z.M.’s untruthfulness. We disagree.
Under ER 608(b), specific instances of a witness’ conduct, introduced to
attack their credibility, may, “in the discretion of the court, if probative of
truthfulness or untruthfulness, be inquired into on cross examination of the
witness.” “In exercising its discretion, the trial court may consider whether the
instance of misconduct is relevant to the witness’s veracity on the stand and
whether it is germane or relevant to the issues presented at trial.” State v.
O’Connor, 155 Wn.2d 335, 349, 119 P.3d 806 (2005).
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Evidence is relevant if it tends to “make the existence of any fact of
consequence more probable or less probable than it would be without the
evidence.” State v. Darden, 145 Wn.2d 612, 624, 41 P.3d 1189 (2002).
“[E]vidence of a witness’ prior false statement is not always relevant, particularly
when that evidence is unrelated to the issues in the case.” State v. Lee, 188
Wn.2d 473, 489, 396 P.3d 316 (2017); see also State v. Harris, 97 Wn. App. 865,
872, 989 P.2d 553 (1999) (“Generally, evidence that a rape victim has accused
others is not relevant and, therefore, not admissible, unless the defendant can
demonstrate that the accusation was false.”).
Here, the trial court determined that it was “irrelevant to this case . . . that
someone else said that [Z.M.] said something about her brother.” It explained
that the allegation could not be sourced to Z.M. because someone else made the
CPS referral. And it pointed out that Z.M. in fact denied the allegation. In any
event, Freeman’s assertion that CPS “investigated” the allegation and found
“nothing” is not evidence that the allegation was false. The court’s ruling
accurately assessed the nature of the of the evidence and does not amount to an
abuse of discretion.
As to the second step of our inquiry, a defendant has no constitutional
right to present irrelevant evidence. State v. Jones, 168 Wn.2d 713, 720, 230
P.3d 576 (2010). So, the trial court’s ruling did not deprive Freeman of his
constitutional right to present a defense.
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B. Z.M.’s Alleged False Allegations against Natasha
Freeman also argues the court erred by excluding testimony from Natasha
that Z.M. falsely accused her of physical abuse. He contends the court
“improperly excluded the evidence as improper impeachment.” We disagree.
Under ER 608(a)(1), a witness may testify about the character of another
witness, but the evidence must be in the form of reputation testimony relating to
the witness’ “truthfulness or untruthfulness.” To offer reputation testimony, a
party “must lay a foundation establishing that the subject’s reputation is based on
perceptions in the community.” State v. Callahan, 87 Wn. App. 925, 935, 943
P.2d 676 (1997). And the “community” must be “both neutral and general.”
State v. Land, 121 Wn.2d 494, 500, 851 P.2d 678 (1993). A witness’ personal
opinion is insufficient to lay a foundation. Id.
After CPS social worker Carter testified, Freeman asked to “inquire of
Natasha about prior instances of [Z.M.] telling lies about her family members.”
Defense counsel explained that
Natasha . . . would testify that [Z.M.] has lied specifically about her when she has been denied privileges or trying to get her in trouble, specifically about physical abuse that she says Natasha has perpetrated against her that is not true.
The trial court ruled that the testimony would be improper impeachment evidence
and excluded it. Because Natasha would testify about specific instances of
alleged misconduct rather than Z.M.’s general reputation for untruthfulness in the
community, the trial court did not err.
On appeal, Freeman argues he offered the testimony “as specific
instances of lying about abuse” under ER 608(b). But ER 608(b) provides that
8 No. 85134-9-I/9
specific instances of a witness’ conduct may be inquired into “on cross
examination of the witness.” The instances “may not be proved by extrinsic
evidence.” ER 608(b). Freeman did not ask to cross-examine Z.M. about the
evidence. Instead, he offered the testimony as extrinsic evidence through
Natasha. So, the trial court did not abuse its discretion by excluding the
evidence.4
And excluding the evidence did not violate Freeman’s right to present a
defense. When analyzing whether the trial court violated the right to present a
defense, we balance the State’s interest in excluding the evidence against the
defendant’s need for the information sought to be admitted. Jennings, 199
Wn.2d at 65. When the defendant “has an opportunity to present his theory of
the case, the exclusion of some aspects of the defendant’s proffered evidence
will not amount to a violation of [his] constitutional rights.” State v. Ritchie, 24
Wn. App. 2d 618, 635, 520 P.3d 1105 (2022).
Here, Freeman’s theory of the case was that Z.M. was not a credible
witness. At trial, Freeman had an opportunity to present that theory and impeach
Z.M.’s credibility. For example, Freeman introduced evidence that CPS originally
“screened out” the 2018 report that Freeman sexually assaulted Z.M. for lack of
information. And he cross-examined Z.M. about her inability to remember certain
4 At oral argument, Freeman argued the evidence was admissible under ER 608(b)(2). But ER 608(b)(2) permits inquiry into specific instances of conduct when the instances concern the “character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.” Here, no witness testified about Z.M.’s reputation for truthfulness. Because another witness did not put Z.M.’s character for truthfulness at issue, the evidence was not admissible under ER 608(b)(2).
9 No. 85134-9-I/10
details and her inconsistent retelling of the events. Also on cross-examination,
Z.M. testified that Ives “push[ed]” Z.M. to disclose what Freeman did to her in
2018. Freeman also elicited testimony from Natasha that Z.M. never told her that
Freeman entered her bedroom while she was sleeping and sexually assaulted
her. Natasha also testified that she would have heard Freeman leave their
shared room at night to enter Z.M.’s bedroom.5
For these reasons, the record shows that even without the excluded
testimony, Freeman offered evidence supporting his theory that Z.M. lacked
credibility and that her accusations against him were false. The trial court did not
violate Freeman’s constitutional right to present a defense.
2. Opinion Testimony
Freeman argues the State violated his right to a fair trial by eliciting
improper opinions on his guilt from M.C. and Ives. The State contends the
testimony did not amount to improper opinions and, even if it did, any error was
harmless.6 We agree that any error was harmless.
A witness may not provide an opinion, directly or by inference, on a
defendant’s guilt because doing so violates the defendant’s constitutional right to
a jury trial. State v. Smiley, 195 Wn. App. 185, 189, 379 P.3d 149 (2016).
Specifically, it impedes the jury’s ability to independently determine the facts.
State v. Fleeks, 25 Wn. App. 2d 341, 368, 523 P.3d 220, review denied, 1 Wn.3d
5 Further, on cross-examination, defense counsel elicited testimony from J.M. that he never woke up to find “Freeman in the bedroom” he shared with Z.M. 6 The State also argues that Freeman waived these arguments by failing to object. We choose to exercise our discretion under RAP 2.5(a) and address the issues.
10 No. 85134-9-I/11
1014, 530 P.3d 185 (2023). Opinion testimony is improper when it comments on
the witness’ veracity or intent, tells the jury what decision to reach, or concludes
a defendant is guilty. Id. at 369.
In determining whether statements are impermissible opinion testimony,
we consider the type of witness, the specific nature of the testimony, the nature
of the charges, the type of defense, and other evidence before the jury. State v.
Kirkman, 159 Wn.2d 918, 928, 155 P.3d 125 (2007). And, absent evidence
otherwise, we presume the jury follows the court’s instructions. Id. A
constitutional error is harmless and not grounds for reversal if the State shows
beyond a reasonable doubt that the jury would have reached the same verdict
without the error. State v. Orn, 197 Wn.2d 343, 359, 482 P.3d 913 (2021).
A. M.C.’s Testimony
Freeman argues M.C. improperly expressed her opinion about his guilt.
Specifically, he challenges M.C.’s testimony about how she felt after Z.M. told her
about Freeman squeezing her buttocks. M.C. testified, “I was worried for her and
her safety and I was disgusted and appalled. And I was just really worried about
her.”
Even if M.C.’s testimony amounted to an improper opinion, any error was
harmless. M.C. did not explicitly testify that Freeman was guilty, nor did she
comment on Z.M.’s veracity. And just before M.C. testified about how Z.M.’s
disclosure made her feel, the trial court instructed the jury that testimony from
other witnesses about Z.M.’s disclosure “cannot be considered as evidence of
11 No. 85134-9-I/12
the truth of [Z.M.’s] claims.” The court also instructed the jury at the end of trial,
“You are the sole judges of the credibility of each witness.”
We presume the jury followed the court’s instructions. So, Freeman fails
to show M.C.’s testimony violated his right to a fair trial.
B. Ives’ Testimony
Freeman argues that Ives also rendered an improper opinion on his guilt.
Specifically, he challenges Ives’ testimony about whether she felt Z.M. would be
safe when she went home to Natasha. Ives testified, in relevant part:
Q. Did you feel safe — did you feel [Z.M.] would be safe going home to mom? A. It’s not mom but just the environment, not safe, no. THE COURT: And this isn’t admitted for the truth, ladies and gentlemen, but for this witness’s point of view, if you follow me. Her feelings, not for the truth of her feelings.
Again, even if Ives’ testimony could be characterized as a comment on
Freeman’s guilt, any error was harmless. Ives did not comment on Z.M.’s
veracity, and she was not the first witness to testify about her concern for Z.M.’s
safety at home. Z.M. testified she stayed at M.C.’s house the night of the June
2020 incident because M.C.’s family “felt I was unsafe” at her own house. And
the next morning, Combs testified she wanted to be sure it was safe for Z.M. to
return home, which is why she called CPS. Freeman did not object to either
statement. Further, just after Ives’ testimony, the court instructed the jury that
Ives’ statement was not admitted “for the truth of her feelings.”
Again, we presume the jury followed the court’s instructions, and Freeman
fails to show Ives’ testimony violated his right to a fair trial.
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3. Cumulative Error
Freeman argues that cumulative error denied him a fair trial. We
disagree.
The cumulative error doctrine applies when cumulative errors produce a
fundamentally unfair trial. State v. Emery, 174 Wn.2d 741, 766, 278 P.3d 653
(2012). Application of the doctrine “is limited to cases where there have been
several trial errors.” State v. Azevedo, 31 Wn. App. 2d 70, 85-86, 547 P.3d 287
(2024). And it does not apply where “the errors are few and have little or no
effect on the trial’s outcome.” State v. Venegas, 155 Wn. App. 507, 520, 228
P.3d 813 (2010).
Freeman has not shown several trial errors, so he is not entitled to relief
under the cumulative error doctrine.
4. LWOP Sentence under the POAA
Freeman next argues that the trial court erred by sentencing him to LWOP
under the POAA because the POAA’s “two-strikes” law is unconstitutional. The
State contends we should reject Freeman’s argument because it is “nearly
identical” to that “rejected by Division Two of this Court” in State v. Nelson, 31
Wn. App. 2d 504, 550 P.3d 529, review denied, 3 Wn.3d 1030, 559 P.3d 496
(2024).7 We agree with the State.
We review constitutional challenges de novo. State v. Ross, 28 Wn. App.
2d 644, 646, 537 P.3d 1114 (2023), review denied, 2 Wn.3d 1026, 544 P.3d 30
7 The State also argues that Freeman waived this argument by not challenging the POAA below. We choose to exercise our discretion under RAP 2.5(a) and address the issue.
13 No. 85134-9-I/14
(2024). We presume statutes are constitutional and place the burden on the
challenger to show unconstitutionality. Id.
Under the POAA, a “persistent offender” is an offender convicted of two of
the felony sex offenses listed in RCW 9.94A.030(37)(b), or three of the felonies
considered a most serious offense listed in RCW 9.94A.030(37)(a). Sentencing
courts consider each offense listed in RCW 9.94A.030(37)(a) and (b) as a “strike”
offense. See Nelson, 31 Wn. App. 2d at 512. The trial court “shall” sentence a
persistent offender to life in prison without the possibility of release. RCW
9.94A.570.
Relying on State v. Gregory, 192 Wn.2d 1, 427 P.3d 621 (2018), Freeman
asserts that courts administer the POAA’s two-strikes law “in a racially
disproportionate manner,” violating the prohibition on cruel and unusual
punishment. See WASH. CONST. art. I, § 14. In Gregory, our Supreme Court held
that Washington courts imposed the death penalty in an arbitrary and racially
biased manner, violating the state constitutional prohibition on cruel punishment.
192 Wn.2d at 35. As a result, the court converted all death sentences to life
imprisonment. Id. at 36.
Freeman points out that like the death penalty, the POAA’s two-strikes law
has a “strikingly disproportionate impact on populations of color.” But as Division
Two explained in Nelson, “imposition of a[n] LWOP sentence under the POAA
involves a different procedure than the imposition of the death penalty addressed
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in Gregory.”8 31 Wn. App. 2d at 515. Unlike the death sentence at issue in
Gregory, sentencing courts do not administer the POAA on a case-by-case
basis. Id. at 516. Instead, courts administer the POAA “the same way no matter
who the defendant; all [persistent] offenders . . . will be sentenced to LWOP.” Id.
at 516-17. As a result, Division Two declined to conclude that the POAA was
unconstitutional under Gregory’s framework. Id. at 517.9
Because the POAA mandates the trial court to impose an LWOP sentence
for all persistent offenders, Freeman fails to show the act is unconstitutional.
5. VPA
Freeman argues we should remand for the trial court to strike the $500
VPA against him because he was indigent at the time of sentencing. The State
does not object.
On July 1, 2023, four months after the trial court sentenced Freeman, the
legislature’s amendment to RCW 7.68.035 took effect, providing that the court
“shall not impose the [VPA] under this section if the court finds that the
defendant, at the time of sentencing, is indigent as defined in RCW
10.01.160(3).” LAWS OF 2023, ch. 449, § 1; RCW 7.68.035(4). And our Supreme
Court has held that statutory amendments pertaining to costs imposed on
8 We reached the same conclusion in several unpublished opinions and cite them here only for their persuasive value under GR 14.1(a). See, e.g., State v. Kennon, No. 80813-3-I, slip op. at 23-28 (Wash. Ct. App. Aug. 16, 2021) (unpublished), https://www. courts.wa.gov/opinions/pdf/808133.pdf; State v. Legrone, No. 85116-1-I, slip op. at 11- 14 (Wash. Ct. App. Sept. 23, 2024) (unpublished), https://www.courts.wa.gov/opinions/ pdf/851161.pdf. 9 We recognize that Nelson addressed only the POAA’s three-strikes law, but Freeman does not identify how the POAA’s two-strikes law meaningfully differs for this analysis.
15 No. 85134-9-I/16
conviction apply prospectively to cases that are not yet final. State v. Ramirez,
191 Wn.2d 732, 749, 426 P.3d 714 (2018).
When the court sentenced Freeman in March 2023, it found him indigent.
And his appeal was pending when the amendment took effect, so his case was
not yet final. Ramirez, 191 Wn.2d at 749. We remand for the trial court to strike
the VPA.
We affirm Freeman’s convictions and sentence but remand for the trial
court to strike the VPA from his judgment and sentence.
WE CONCUR: