State Of Washington, V Ronald Lee Sorenson

• Court: Court of Appeals of Washington
• Decided: January 28, 2014
• Docket: 43199-8
• Status: Unpublished

Opinion

1L. Q 4LIPU ILI APP Ai.S 2014 JAN 23 f4pl 9. 53 ST

B,Y

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II

STATE OF WASHINGTON, No. 43199 -8 -II

Respondent,

V.

RONALD LEE SORENSON, UNPUBLISHED OPINION

JOHANSON, A.C. J. — Ronald Lee Sorenson appeals his jury convictions and sentences

for multiple sex crimes. Sorenson claims that ( 1) the trial court manifestly abused its discretion

by denying a continuance, ( 2) the State offered insufficient evidence for his first degree child

molestation convictions, ( 3) the trial court erred by failing to provide a limiting instruction, ( 4)

the prosecutor' s misconduct denied him a fair trial, and ( 5) scrivener' s errors plague his

judgment and sentence. 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 in reversible error, we affirm. But we accept the State' s concession and remand to

correct the scrivener' s errors in Sorenson' s judgment and sentence. 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. He sought information about a subsequently added victim, evidence from Facebook,

and he wanted to interview 72 additional potential witnesses. The State contested the

continuance motion, arguing that ( 1) the case was over a year old; ( 2) Sorenson' s new attorney

had been working the case for six months; ( 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 when she was 11, she woke up roughly 10 times with

Sorenson' s hand touching her sexual or intimate parts. 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 parts. 3B Report of Proceedings ( RP) at 371. BLS testified that when she was between

1 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 parts. Additionally, BLS testified that when she was 14, she woke up with Sorenson' s

hand touching her sexual or intimate parts.

Sorenson testified in his own defense, explaining that the girls frequently climbed into

bed or onto the couch with him when he was sleeping. While Sorenson admitted that he

cuddled" with the girls, he denied ever inappropriately touching them. 4A RP at 496. He also

acknowledged that had. he touched any of the girls, the touching was purely accidental during the

course of cuddling.

After the presentation of evidence, Sorenson requested an instruction to limit

consideration of evidence each victim to the charges relating to that victim. Sorenson regarding

proposed his own limiting instruction, but the trial court refused to read it to the jury because it

inaccurately stated the law. The trial court did, however, direct the jury in its final instructions,

A separate crime is charged in each count. You must decide each . count separately. Your

verdict on one count should not control your verdict on any other count." 4A RP at 568.

During closing argument, the prosecutor made the following statements to convince the

jury of the victims' credibility beyond 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." 4B RP at 578. ( 3) " And they have come forward now and taken an oath to tell all of

you the truth about what happened." 4B RP at 593.

3 No. 43199 -8 -II

4)] And you should have an abiding belief that they told you the truth. You should have an 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.

4B RP at 594. ( 5) "[ I] f you have an abiding belief that equals a reasonable -- beyond a

reasonable doubt." 4B RP at 649. Defense counsel objected only to this last statement. The jury s found Sorenson guilty of these crimes against BES, BLS, and AKB, and Sorenson 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 v. Campbell, 103 Wn.2d 1, 14, 691 P. 2d 929 ( 1984), cent. denied, 471 U. S.

1094 ( 1985). A trial court manifestly abuses its discretion when it exercises its discretion on

clearly untenable grounds or is manifestly unreasonable. State v. Yuen, 23 Wn. App. 377, 380,

597 P. 2d 401 ( quoting Friedlander v. Friedlander, 80 Wn.2d 293, 298, 494 P. 2d 208 ( 1972)),

review denied, 92 Wn.2d 1030 ( 1979). 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; ( 2) Sorenson' s new attorney had been working the case for six months; and ( 3)

5 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 delay to the victims. The trial court also articulated that it intended to deny the

continuance 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 at 201. A sufficiency challenge admits the truth of the State' s evidence and

all reasonable 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. RCW 9A. 44. 010( 2). Sorenson specifically argues there is insufficient evidence that

he had contact with BES and AKB for purposes of sexual gratification. The record does not

support his claim.

Sorenson analogizes to State v. Powell, 62 Wn. App. 914, 816 P. 2d 86 ( 1991), review

denied, 118 Wn.2d 1013 ( 1992), to argue that he only touched the girls inadvertently, and that

any touching " was susceptible to innocent explanations." Statement of Additional Grounds at 18.

In Powell, the sexual contact was " fleeting" 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, unlike Powell, 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' s hand touching her sexual or intimate parts. AKB testified that Sorenson

would lie with her on the couch " spooning style" 15 to 20 times, touching her sexual or intimate

parts. 3B RP at 371. 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, trial courts must give an instruction. ER

Con 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 instruction. State v. Gresham, 173 Wn.2d 405, 424 -25, 269 Pad 207 ( 2012).

The trial court 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." 4A RP at 538 ( emphasis added). The trial court, however, properly

final instructions: " A is in You must directed the jury in its separate crime charged each count.

decide each count separately. Your verdict on one cow- should not control your verdict on any it

other count." 4A RP at 568. 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

State 174 Wn.2d 741, 756, 278 P. 3d 653 ( 2012). A defendant resulting prejudice. v. Emery),

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, the issues in the case, the evidence addressed in the argument, and the jury

instructions. Brown, 132 Wn.2d at 561. 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

doubt" abiding belief." Br. of Appellant at 9. Specifically, by equating " reasonable with "

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. Sorenson cites State v. Anderson, 153 Wn. App. 417, 220 P. 3d

1273 ( 2009), review denied, 170 Wn. 2d 1002 ( 2010), to support his argument that the prosecutor

its job to determine the " truth" the Sorenson' s here improperly told the jury was and solve case.

argument lacks merit.

First, we must analyze the four statements that Sorenson challenges for the first time on

appeal. For us ' to consider these statements for the first time on appeal, Sorenson must

demonstrate that these, statements constituted flagrant and ill-intentioned misconduct incurable

instruction. See Emery, 174 Wn.2d 760 -61. Here, the prosecutor' s four by a remedial at

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

misstatement of the law could not have been cured by a remedial instruction that clarified the

reasonable doubt standard. See Emery, 174 Wn.2d at 758 -59 ( explaining that a misstatement of

the " esoteric" reasonable doubt standard that shifts the burden of proof may be " certainly and

seriously wrong" but does not demonstrate bad faith or an attempt 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 for improper conduct and resulting prejudice. Emery, 174 Wn.2d at 756.

Sorenson argues that the prosecutor' s statement, "[ I] f you have an abiding belief that equals a

reasonable -- beyond a reasonable doubt," misstated the basis on which the jury could acquit. 4B

RP at 649. Even assuming, without deciding, that Sorenson may show that this statement

constitutes misconduct, he cannot demonstrate resulting prejudice —he 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 intimate And up to Sorenson touching their sexual or parts. multiple occasions, they each woke

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 doubt. Thus, Sorenson does not show

prejudice and his prosecutorial misconduct claim fails.

U 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 for the first time on appeal. State v.

Bahl, 164 Wn.2d 739, 744, 193 P. 3d 678 ( 2008). 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: