State of Washington v. Kurt Broderick Leppert Sr.

• Court: Court of Appeals of Washington
• Decided: December 10, 2019
• Docket: 36108-0
• Status: Unpublished

Opinion

FILED DECEMBER 10, 2019 In the Office of the Clerk of Court WA State Court of Appeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE

STATE OF WASHINGTON, ) No. 36108-0-III ) Respondent, ) ) v. ) UNPUBLISHED OPINION ) KURT BRODERICK LEPPERT SR., ) ) Appellant. )

PENNELL, A.C.J. — Kurt Broderick Leppert Sr. challenges his convictions for

sexual assault, alleging two evidentiary errors. We affirm.

FACTS

Mr. Leppert was charged with sexually assaulting three minor girls, H.D., P.D.,

and C.I. Prior to trial, the State sought admission of a videotaped interview of nine-year- No. 36108-0-III State v. Leppert

old P.D. under the child hearsay statute, RCW 9A.44.120. 1 It also moved in limine to

prohibit other suspect evidence relating to C.I.’s father, who was serving time in prison

for a child pornography offense.

In its written response to the State’s child hearsay motion, the defense did not

argue against application of the child hearsay statute. Instead, it claimed the video

interview of P.D. should be redacted.

With respect to the State’s motion in limine, the defense explained that it would

not seek to introduce evidence regarding C.I.’s father as other suspect evidence. Instead,

the defense wished to introduce “brief testimony” to show a possible basis for precocious

sexual knowledge. Clerk’s Papers (CP) at 90.

The court held an evidentiary hearing to address the pretrial motions. With respect

to the child hearsay issue, the State presented testimony from P.D.’s mother, the video

interviewer, a detective, and P.D. No testimony was presented with respect to the State’s

motions in limine. Instead, the State proffered C.I.’s statements that (1) no one had ever

touched her inappropriately other than Mr. Leppert, and (2) C.I. had never seen any

inappropriate materials on her father’s computer.

1 The State did not seek admission of pretrial interviews of the other two girls as they were too old to fall under the child hearsay statute.

2 No. 36108-0-III State v. Leppert

During oral argument on the child hearsay issue, the defense again conceded that

at least some of the video interview of P.A. was “probably admissible” under the child

hearsay statute. 1 Report of Proceedings (RP) (Mar. 15, 2018) at 39-40; see also id. at 34

(“[T]here’s a lot in the interview that . . . probably is still admissible.”). Instead of

focusing on admissibility, the defense emphasized the need for redactions.

In analyzing the State’s child hearsay motion, the trial court pointed out that

defense counsel had not argued against admissibility under the Ryan 2 factors. The court

asked if that was because the defense was “basically okay . . . with admitting the forensic

interview so long as it’s redacted.” 1 RP (Mar. 15, 2018) at 34. The defense responded

that if the court found P.D. competent, counsel was “not going to waste the next hour”

arguing the child hearsay rule. Id. at 35. The defense also noted “the best defense against

these charges is pointing out all the inconsistencies” in P.D.’s statements. Id. at 39. “So I

guess the more of their statements that come up, the more ammunition I have for cross-

examination.” Id.

The trial court determined that P.D. was competent to testify, but that defense

counsel’s requests for redactions were “very well taken.” Id. at 37. The court went

through the transcript of the video interview and identified numerous areas for redaction.

2 State v. Ryan, 103 Wn.2d 165, 691 P.2d 197 (1984).

3 No. 36108-0-III State v. Leppert

At the conclusion of this process, the court stated “[i]f there’s anything else that is not

compliant with the rules of evidence, it probably ought to come out.” Id. at 56.

The trial court granted the State’s motion in limine regarding C.I.’s father. The

court explained that the father’s child pornography conviction was not relevant, as there

was no evidence C.I. had ever been molested by her father or that she had observed any

pornography or child pornography in his possession.

At trial, the State introduced testimony from all three girls, the redacted interview

of P.D., and other evidence. The jury convicted Mr. Leppert of all charges. He now timely

appeals.

ANALYSIS

Child hearsay statements

For the first time on appeal, Mr. Leppert argues P.D.’s recorded statements were

unreliable and should have been excluded under the child hearsay statute and Ryan

factors. We decline to address the merits of these claims. Mr. Leppert’s child hearsay

arguments have been waived under the invited error doctrine, which “prohibits a party

from setting up an error at trial and then complaining of it on appeal.” State v. Pam,

101 Wn.2d 507, 511, 680 P.2d 762 (1984), overruled on other grounds by State v. Olson,

126 Wn.2d 315, 893 P.2d 629 (1995).

4 No. 36108-0-III State v. Leppert

Throughout the trial court proceedings, Mr. Leppert consistently conceded portions

of P.D.’s recorded statements were admissible under the child hearsay statute, so long as

the court found P.D. competent. Defense counsel specifically declined the trial court’s

invitation to assess the admissibility of P.D.’s statements under the Ryan factors. This was

apparently a tactical decision; defense counsel explained that if P.D. was found competent

and allowed to testify, she would need to be impeached with her video statements. Given

the trial court found P.D. competent and permitted her testimony (a determination that has

not been challenged on appeal), Mr. Leppert is now precluded from arguing the trial court

abused its discretion in admitting a redacted version of the video interview pursuant to the

child hearsay statute and Ryan.

Evidence regarding the child pornography conviction

Mr. Leppert claims the trial court abused its discretion in excluding evidence that

C.I.’s father was in prison for child pornography offenses. We disagree.

As recognized by trial counsel, the information regarding C.I.’s father does not fall

under the category of other suspect evidence. The defense never claimed C.I.’s father was

the true perpetrator of crimes against H.D., P.D., and C.I. 3 Instead, citing State v. Carver,

3 Defense counsel specifically said, “I wouldn’t intend to make any argument that [C.I.] had been molested by her dad or anything like that.” 1 RP (Mar. 9, 2018) at 65.

5 No. 36108-0-III State v. Leppert

37 Wn. App. 122, 124-25, 678 P.2d 842 (1984), the defense claim was that the activities

of C.I.’s father provided an explanation for C.I.’s precocious knowledge. This is a theory

of impeachment, not one of substantive evidence.

The trial court properly prohibited the defense from attacking C.I.’s credibility by

introducing evidence of her father’s child pornography activities. There was no indication

C.I. was aware of the specifics of her father’s crime. During her pretrial interview, C.I.

stated she knew her father had “‘inappropriate stuff’” on his computer, such as “‘Star

Trek, Star Wars, Aragon and Harry Potter.’” 1 RP (Mar. 9, 2018) at 65-66. But she

denied seeing any of the “stuff” herself. Id. The defense theory that C.I. might have been

aware of more of her father’s activities than she had been willing to admit was purely

speculative. As such, the trial court properly granted the State’s motion in limine.

Statement of additional grounds for review

Mr. Leppert has filed a statement of additional grounds for review (SAG) reciting

his physical infirmities and criticisms of C.I.’s credibility. Because the SAG does not

identify any legal errors pertaining to his convictions, it does not merit appellate review.

RAP 10.10(c).

6 No. 36108-0-111 State v. Leppert

CONCLUSION

The judgment of conviction is affirmed.

A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to

RCW 2.06.040.

Q_ j)_,~ Pennell, A.C.J. WE CONCUR:

~_,J._ Maxa, J.

4 The Honorable Bradley Maxa is a Court of Appeals, Division Two, judge serving in Division Three under CAR 21 (a).