State Of Washington v. Sean Michael Klamn

• Court: Court of Appeals of Washington
• Decided: July 21, 2014
• Docket: 71961-1
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, ) DIVISION ONE Respondent, i— ) No. 71961-1-1 no ——.

v. SflP""' ) UNPUBLISHED OPINION win' zsc SEAN MICHAEL KLAMN, —

Dwyer, J. — Sean Klamn was convicted of 14 offenses for sexually

abusing his daughter over a seven-year period. Klamn contends that the trial

court erred by not timely entering written findings of fact and conclusions of law

and that his sentence of incarceration for 600 months is excessive. In his

statement of additional grounds, Klamn further contends that the trial court erred

by admitting evidence of a telephone call between him and his daughter and that his convictions are not supported by sufficient evidence. Finding no error, we

affirm. OFSTA EOC FUR/T S.A.K. is Klamn's biological daughter. S.A.K. began to spend every

weekend with Klamn when she was four years old. When S.A.K. was seven

years old, Klamn began touching her vagina with his hands and fingers. Klamn touched S.A.K. in this manner every night that she spent with him, and

occasionally during the day as well.

The following year, Klamn started having vaginal intercourse with S.A.K. No. 71961-1-1/2

According to S.A.K., Klamn "would grab my hands and hold them above my head

and hold me down and straddle me," resulting in bruising on S.A.K.'s legs and

wrists. Klamn never used a condom while having intercourse with S.A.K.

Around that same time, Klamn began putting his mouth on S.A.K.'s vagina.

Klamn also would grab S.A.K.'s hands and hold them in a "grip over his penis."

Klamn engaged in sexual behavior with S.A.K. every weekend that S.A.K.

spent at his residence. S.A.K. did not have her own room at any of Klamn's

residences, and often slept in the same bed with Klamn.1 The only weekends

that a sexual encounter did not occur were when Klamn's girlfriend spent the

night with him, when S.A.K. was nine years old. After Klamn's year-old

relationship ended, he resumed having sexual intercourse with S.A.K. every

weekend.

S.A.K. first got her period when she was twelve. Klamn continued to have

intercourse with her without using a condom. S.A.K. was concerned that she

might get pregnant, but Klamn never exhibited any such concern. Klamn, in fact,

continued to touch S.A.K.'s vagina or have intercourse with her every weekend.

The last time that Klamn had a sexual encounter with S.A.K. was

December 10, 2011, roughly three months prior to S.A.K.'s fourteenth birthday.

That evening, S.A.K. was staying with a friend so that they could watch the lunar

eclipse together. S.A.K. returned to Klamn's residence after he sent her a text

message. S.A.K. climbed into the top bunk bed and moved as close to the wall

1 Klamn lived at the residences of various other people until S.A.K. was thirteen. At no point did Klamn reside outside of the state of Washington. No. 71961-1-1/3

as possible. According to S.A.K., Klamn then stood on the bottom bunk bed,

"grabbed me by my legs and pulled me to the other edge towards him, and he

pulled down my pants and put his mouth on my vagina." S.A.K. stated that "he

did that for what felt like an hour." S.A.K. attempted to get away, but Klamn held

her down by a tight grip on her legs. After this incident, S.A.K. continued to go to

Klamn's residence after school, but no longer stayed overnight there.

In January or February of 2012, S.A.K. told a friend from school about

Klamn's actions. The friend encouraged S.A.K. to report her allegations. In

March 2012, S.A.K. reported Klamn's behavior to family friends Joshua and

Jackie Rees. After then informing her mother, S.A.K. reported Klamn to the

Chehalis Police Department.

With her mother, her advocate, and Detective Rick Silva all present,

S.A.K. called Klamn from the Chehalis police station. Klamn answered, and

S.A.K. confronted him about sexually abusing her. During the conversation,

Klamn repeatedly told S.A.K. that he was sorry, but never denied any of S.A.K.'s

allegations. Detective Silva recorded the conversation. However, the recording

equipment captured only S.A.K.'s voice.

S.A.K. returned to the police station the next day to place another

telephone call to Klamn. Detective Silva also recorded this conversation; this

time, the recording equipment captured both S.A.K.'s voice and Klamn's voice.2 Klamn was arrested thereafter. Detective Silva interrogated Klamn following his

2An audiotape of this conversation was admitted at trial, but is not part of the record on appeal. No. 71961-1-1/4

arrest, and also recorded video of the interrogation.3 During the interrogation,

Detective Silva asked Klamn if he thought S.A.K. would lie. Klamn replied that

she would not.

The State charged Klamn with five counts of child molestation in the first

degree, four counts of rape of a child in the first degree, two counts of child

molestation in the second degree, two counts of rape of a child in the second

degree, and one count of indecent liberties with forcible compulsion. Klamn

waived his right to a jury in favor of a bench trial. The trial court heard testimony

from S.A.K., S.A.K.'s school friend, S.A.K.'s mother, Joshua Rees, Jackie Rees,

Detective Silva, Sergeant Brian Hickey of the Chehalis Police Department, Debra

Hall of St. Peter's Hospital Sexual Assault Clinic, Klamn's former roommate

Jason Hack, and Klamn himself.

In its oral ruling, the trial court stated that it found "that the alleged victim

here, [S.A.K.], was very credible." On the other hand, the trial court stated that

Klamn "appeared to the Court to be very carefully parsing his words" during his

testimony, the audiotaped telephone conversation, and the videotaped

interrogation. The trial court further found "that there's also a lot of corroboration"

of S.A.K.'s testimony. Accordingly, the trial court convicted Klamn as charged.

Based on the evidence presented at trial, the trial court found that the

offense involved domestic violence because the victim was Klamn's biological

daughter, that "this was an ongoing pattern of abuse," and that Klamn had

3The videotape of the interrogation was admitted at trial, but is not part of the record on appeal.

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abused his position of trust. Thus, the trial court found that the State had proved

three aggravating factors with respect to all 14 counts. The trial court sentenced

Klamn to 198 months on counts I through V, 116 months on counts VI, VII, and

XIV, and 600 months on counts VIII through XIII, all sentences to run

concurrently.

On February 14, 2013, Klamn appealed. At that time, the trial court had

not yet entered written findings of fact and conclusions of law. On October 3,

2013, the trial court entered written findings of fact and conclusions of law with

respect to the trial. Thereafter, Division Two's commissioner granted Klamn the

opportunity to file a supplemental brief, but he declined to do so. On December

18, 2013, the trial court issued written findings of fact and conclusions of law with

respect to sentencing. In addition to the three aggravating factors, the trial court

also entered findings that "Multiple offenses were committed, which results in

some of the current offenses going unpunished, contrary to 9.94A.535(2)(c)" and

that the "Victim was under 15 at the time of the offenses." The trial judge also

filed a declaration averring that "I have not read Sean Michael Klamn's appellate

briefing."

Division Two transferred the case to us for resolution.

II

Klamn contends that the trial court erred by failing to issue written findings

of fact and conclusions of law, and that he is entitled to a new trial as a result.

This is so, he asserts, because Criminal Rule (CrR) 6.1(d) requires the trial court

to enter written findings of fact and conclusions of law following a bench trial.

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However, because the trial court has since entered written findings of fact and

conclusions of law, Klamn is not entitled to appellate relief.

"CrR 6.1(d) requires entry of written findings of fact and conclusions of law

at the conclusion of a bench trial." State v. Head, 136 Wn.2d 619, 621-22, 964

P.2d 1187 (1998). The proper remedy for a failure to comply with CrR 6.1 (d) is

remand for entry of written findings of fact and conclusions of law. Head, 136

Wn.2d at 624. Reversal is only appropriate where the defendant has

demonstrated actual prejudice. Head, 136 Wn.2d at 624.

On October 3, 2013, the trial court issued its written findings of fact and

conclusions of law supporting the convictions. On December 18, 2013, the trial

court issued its findings of fact and conclusions of law supporting the exceptional

sentence. Because the trial court entered written findings of fact and conclusions

of law, albeit untimely, remand is unnecessary.

Reversal is also inappropriate. "We will not infer prejudice .. . from delay

in entry of written findings of fact and conclusions of law." Head, 136 Wn.2d at

625. Rather, as the Supreme Court stated in Head, "a defendant might be able

to show prejudice resulting from the lack of written findings and conclusions

where there is strong indication that findings ultimately entered have been

'tailored' to meet issues raised on appeal." 136 Wn.2d at 624-25. Here, the trial

judge declared that he had not read Klamn's appellate brief. Thereafter, despite

having the opportunity to file a supplemental brief addressing prejudice, Klamn

did not do so. Accordingly, Klamn fails to demonstrate any prejudice from the

trial court's delay in entering written findings of fact and conclusions of law.

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Because written findings of fact and conclusions of law have been entered

and because he failed to demonstrate any prejudice from the delay, Klamn is not

entitled to appellate relief on this assignment of error.

Ill

Klamn contends that the trial court erred by sentencing him to 600 months

in confinement. This is so, he asserts, because 600 months is clearly excessive

for the crimes of which he was convicted. We disagree.

We review whether the length of a sentence is clearly excessive by using

an abuse of discretion standard. State v. Oxborrow, 106 Wn.2d 525, 529-30,

723 P.2d 1123 (1986). A sentence is clearly excessive if it is "'clearly

unreasonable, i.e., exercised on untenable grounds or for untenable reasons, or

an action that no reasonable person would have taken.'" Oxborrow, 106 Wn.2d

at 531 (quoting State v. Strong, 23 Wn. App. 789, 794, 599 P.2d 20 (1979)). "In

other words, the reviewing court asks whether the grounds relied on, if any, in

determining the length of the sentence are tenable and whether the amount of

incarceration imposed is such that 'no reasonable person' would have imposed

it." State v. Ross. 71 Wn. App. 556, 569, 861 P.2d 473, 883 P.2d 329 (1993)

(citing State v. Harmon. 50 Wn. App. 755, 762, 750 P.2d 664 (1988)).

"'[T]he sentencing court need not state reasons in addition to those relied

upon to justify the imposition of an exceptional sentence above the standard

range in the first instance to justify the length of the sentence imposed.'" State v.

Ritchie, 126 Wn.2d 388, 395, 894 P.2d 1308 (1995) (quoting Ross. 71 Wn. App.

at 573). "Indeed, once a reviewing court has determined that the facts support

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the reasons given for exceeding the range and that those reasons are substantial

and compelling, there is often nothing more to say." Ross. 71 Wn. App. at 571-

72. Accordingly, we first review whether an exceptional sentence is justified by

the facts in this case.

Here, the trial court found three aggravating factors that justified an

exceptional sentence: domestic violence, an ongoing pattern of abuse, and

abuse of a position of trust. The facts adequately support the trial court's

findings. Klamn is S.A.K.'s father, both a family member and someone who

occupies a position of trust to a child. However, Klamn sexually abused his

daughter for seven years. These facts support the trial court's finding of the

three aggravating factors and justify an exceptional sentence.

Additionally, the trial court found that Klamn had committed 14 offenses,

resulting in a high offender score and some offenses going unpunished. See

RCW 9.94A.535(2)(c). The trial court also found that the victim was under fifteen

at the time of the offenses. In light of these findings and the three aggravating

factors, we cannot conclude that no reasonable person would have sentenced

Klamn to 600 months.

The trial court did not err by sentencing Klamn to 600 months of

confinement.

IV

In his statement of additional grounds, Klamn contends that the trial court

erred by allowing S.A.K. to testify to Klamn's statements made during a

telephone conversation with her. According to Klamn, this testimony was overly

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prejudicial.4 Although Klamn objected to the admission of S.A.K.'s testimony at

trial, he did so on the basis of hearsay, not unfair prejudice. Issues raised for the

first time on appeal are not reviewable unless they constitute "manifest error

affecting a constitutional right." RAP 2.5(a)(3). Because Klamn's contention is

raised for the first time on appeal and does not affect a constitutional right, we

decline to consider it.

V

Klamn further contends, in his statement of additional grounds, that his

convictions are not supported by sufficient evidence. This is so, he asserts,

because he cannot be convicted on S.A.K.'s uncorroborated testimony and

because the evidence violated the "corpus delicti rule." Neither assertion has

merit.

Contrary to Klamn's assertion, there is no requirement that victim

testimony be corroborated by physical evidence. Circumstantial evidence is not

necessarily less reliable than direct evidence. State v. Delmarter, 94 Wn.2d 634,

638, 618 P.2d 99 (1980). Moreover, the trier of fact is entitled to make credibility

determinations and believe or disbelieve any of the witnesses.5 State v.

Camarillo. 115 Wn.2d 60, 71, 794 P.2d 850 (1990). Here, the trial court heard

the testimony often witnesses, and determined that S.A.K. was more credible than Klamn. We do not disturb that determination. See Camarillo, 115 Wn.2d at

4 Klamn also asserts that S.A.K.'s testimony "assumes facts not in evidence" and "constituted impermissible opinion testimony." These claims fail for the same reason. 5 Further, contrary to Klamn's assertions, S.A.K.'s testimony was corroborated by other evidence. Seven witnesses testified consistent with S.A.K.'s version of events. The audio- and videotapes presented at trial also lent support to S.A.K.'s testimony. No. 71961-1-1/10

71 (determinations of credibility not subject to appellate review).

Similarly, Klamn's convictions do not violate the "corpus delicti rule." The

"corpus delicti rule" provides that "confessions or admissions of a person charged

with a crime are not sufficient, standing alone, to prove the corpus delicti and

must be corroborated by other evidence." State v. Aten, 130 Wn.2d 640, 655-56,

927 P.2d 210 (1996). Any self-incriminating statements made by Klamn6 were

far from the only evidence presented. Rather, S.A.K. testified as to her version of

the events. Her testimony was corroborated by seven witnesses. The "corpus

delicti rule" has no applicability to this case.

The trial court did not err by finding Klamn guilty and entering judgment on

all 14 counts.7

Affirmed.

We concur:

1 ftt^rv^B^ C)J, '7~y

6 We assume that the statements to which Klamn refers were present on the audio- and videotapes, as we discern no self-incriminating statements from the record provided. 7 Klamn further makes numerous claims of ineffective assistance against three of his attorneys. However, the record on appeal is not sufficient for us to review any of these claims.

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