Filed Washington State Court of Appeals Division Two
September 19, 2023
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II STATE OF WASHINGTON, No. 56597-8-II
Respondent,
v.
THOMAS TOREN NISSEN, UNPUBLISHED OPINION
Appellant.
CRUSER, A.C.J. — Thomas Nissen was charged with child rape and child molestation
against his fiancé’s niece, HA, after HA reported the abuse to her best friend. Detectives organized
a recorded phone call during which Nissen denied the allegations, and the detectives testified at
trial that he showed signs of guilt during the phone call. The detectives then conducted their own
interview with Nissen, a portion of which was recorded and played for the jury at trial. During the
interview, Nissen admitted to two of the three charged incidents and claimed to not remember any
others due to alcoholism. Nissen was convicted on all charges.
Nissen appeals his two convictions for child molestation, arguing that (1) the trial court’s
instruction on voluntary intoxication was a manifest constitutional error, (2) the detectives’
testimony regarding Nissen’s signs of guilt during the recorded call was a manifest constitutional
error, (3) he was deprived of effective assistance when counsel failed to object to both the jury
instruction and the detectives’ testimony, (4) cumulative error deprived him of a fair trial, and (5)
the trial court erroneously imposed community supervision fees when it intended to impose only No. 56597-8-II
mandatory legal financial obligations (LFOs). In a supplemental brief, Nissen asks us to remand
for the trial court to strike the $500 crime victim penalty assessment (VPA) and the $100 DNA
collection fee from his judgment and sentence. The State agrees that we should remand for the trial
court to strike the LFOs from Nissen’s judgment and sentence. Nissen does not challenge his
second degree rape of a child conviction.
We hold that Nissen has not established grounds for reversal of his convictions.
Accordingly, we affirm. However, we remand for the trial court to strike the community
supervision fee, the $500 VPA, and the $100 DNA collection fee from Nissen’s judgment and
sentence.
FACTS
I. BACKGROUND
In April 2020, HA disclosed to her best friend that her aunt’s boyfriend was touching her
inappropriately. HA’s friend then informed HA’s mother, who asked HA what had been going on.
After HA told her mother that Nissen “had been touching her under her clothes for the past several
years,” her mother called the police. Verbatim Report of Proceedings (VRP) (Nov. 17, 2020) at
106.
Detective Steve Beck and Detective Sergeant Paul Logan arranged for a “confrontation
call” in which HA’s mother confronted Nissen about HA’s allegations while the conversation was
recorded. Id. at 116. During the call, Nissen generally denied the allegations. After this call, the
detectives went to Nissen’s workplace to conduct their own interview. At some point during the
interview, the detectives began recording. During the detectives’ interview, Nissen admitted that
there were two occasions where he remembered touching HA’s vagina.
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Nissen was arrested and charged with one count of first degree child molestation, one count
of second degree child molestation, and one count of second degree child rape.
II. EVIDENCE PRESENTED AT TRIAL
At trial, HA’s best friend, HA’s mother, Detective Beck, and Detective Sergeant Logan
testified to the above facts. HA testified that there were probably 15-16 occasions where Nissen
had touched her for a long period of time, and she described the three specific instances for which
Nissen was charged. HA’s aunt, who was Nissen’s fiancé, also testified about HA’s visits at her
home. When asked about whether Nissen drank alcohol, the aunt stated: “When we first started
dating, he didn’t drink that much, but up until (indiscernible) the end, he was probably drinking an
18-pack of beer a night.” Id. at 133. HA’s aunt did not testify as to any specific occasions when
Nissen was drinking when HA was at their residence.
During Detective Beck’s testimony, the State asked questions about the confrontation call
with HA’s mother, and the following exchange occurred:
Q And from an investigative point, were there any statements made that were indicative of, to you, of wrongdoing?
A. Yes.
Q. Describe.
A. At one point during the conversation, he said he never intentionally did anything to [HA], which I thought was weird from my investigation experience . . . [HA’s mother] confronted him about whether or not [HA] was lying and he would never say that she was lying. That was something else that was a red flag for me.
Id. at 117-18. Defense counsel did not object to this testimony.
The State similarly asked Detective Sergeant Logan about the confrontation call:
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Q Did you find anything significant in an investigative perspective about the things that Mr. Nissen said on that call?
A I did.
Q Like what?
A While he continued to say I did not do these things, I did not do this, [HA’s mother] asked him repeatedly is -- is [HA] lying, are you telling me she is lying, and he continued to say no, she is not -- she’s not -- I’m not saying she is lying. He would continue to say that, you know, she is a good kid. She is not a liar. I’m not saying that she is lying. And based on my experience in doing these for quite a number of years, when somebody is accused of something, there’s -- that’s -- that’s a response I recognize as somebody who is guilty of what they are being accused of, and it is their [ ] reaction because they don’t want to -- they want to say they didn’t do it, but calling the person that they care about, have feelings about or feel sorry for, they don’t want to call them a liar, so that was one thing and there were several others.
Id. at 176-77. Defense counsel did not object to this testimony. The recording of the detectives’
interview with Nissen at his workplace was played for the jury during Detective Sergeant Logan’s
testimony.
During the recorded interview, Nissen admitted that he only vaguely remembered touching
HA’s vagina on two occasions, that he did not know why he touched HA, and that he felt disgusted
with himself. One of the instances he remembered, and described for the detectives during the
interview, was the instance for which he was charged for rape because he penetrated HA. He stated
that he did not “ ‘have any recollection of [other] instances. I’m not denying that - - I think [HA]
is telling the truth. There’s obviously been other instances that I don’t - - can’t recall, probably due
to my alcoholism or alcoholic - - I drink too much.’ ” Br. of Appellant at 8 (quoting Ex. 16 at 3:08
to 3:34). Although he did not remember instances other than the two he admitted to, he could not
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“ ‘know for sure they didn’t happen,’ ” but he didn’t “ ‘know why it happened.’ ” Br. of Appellant
at 8-9 (quoting Ex. 16 at 5:20 to 7:10).
Nissen did not present any evidence at trial.
III. JURY INSTRUCTION AND VERDICT
Nissen did not propose an instruction on voluntary intoxication. The State, however,
proposed an instruction that was a modification of the Washington Pattern Jury Instruction on
voluntary intoxication. The modified instruction proposed by the State read “No act committed by
a person while in a state of voluntary intoxication is less criminal by reason of that condition.”
Clerk’s Papers (CP) at 95. There was no discussion of this proposed instruction on the record.
When asked if the defense had any objection to the instructions the court planned to give, defense
counsel indicated she did not. The modified voluntary intoxication instruction was given as
“Instruction No. 18.” Id. at 29.
In addition, the jury was instructed that “[s]exual contact means the touching of the sexual
or other intimate parts of a person done for the purpose of gratifying the sexual desires of either
party.” Id. at 28. During closing, defense counsel stated that Nissen “doesn’t know why he did it
and that he was drunk. And, honestly, I don’t know why. He doesn’t know why. I can’t get inside
of his head and neither can you guys. But the normal signs that someone would be sexually
gratified are not there.” VRP (Nov. 18, 2020) at 110.
The jury found Nissen guilty on all three counts. The jury also found that the child
molestation counts were part of an ongoing pattern of sexual abuse, but did not make the same
finding as to the child rape. Nissen appeals.
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DISCUSSION
I. VOLUNTARY INTOXICATION INSTRUCTION
Nissen argues that the voluntary intoxication instruction given to the jury was a manifest
constitutional error because it violated his constitutional right to present a defense as to the two
counts of child molestation. The State argues that Nissen was not entitled to a voluntary
intoxication instruction. We hold that Nissen failed to preserve this challenge.
A. LEGAL PRINCIPLES
We may decline to review claims of error that the defendant did not raise in the trial court.
RAP 2.5(a). “Generally, a party who fails to object to jury instructions below waives any claim of
instructional error on appeal.” State v. Knight, 176 Wn. App. 936, 950, 309 P.3d 776 (2013).
However, a defendant can raise a “manifest error affecting a constitutional right” for the first time
on appeal. RAP 2.5(a)(3). This exception “does not permit all asserted constitutional claims to be
raised for the first time on appeal.” State v. Kirkman, 159 Wn.2d 918, 934, 155 P.3d 125 (2007).
Rather, “[w]e look to the asserted claim and assess whether, if correct, it implicates a constitutional
interest as compared to another form of trial error.” State v. O’Hara, 167 Wn.2d 91, 98, 217 P.3d
756 (2009).
After determining whether the alleged error is of constitutional magnitude, we assess
whether the error is manifest. Id. at 99. Error is manifest under RAP 2.5(a) if the appellant can
show actual prejudice, demonstrated by a “ ‘plausible showing by the [appellant] that the asserted
error had practical and identifiable consequences in the trial of the case.’ ”Id. (alteration in original)
(internal quotation marks omitted) (quoting Kirkman, 159 Wn.2d at 935). The defendant bears the
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burden of demonstrating that the alleged error is both manifest and of constitutional magnitude.
Knight, 176 Wn. App. at 950-51.
B. ANALYSIS
Because Nissen did not object below, he must demonstrate that the voluntary intoxication
instruction given to the jury was a manifest error affecting a constitutional right. In re Det. of
Monroe, 198 Wn. App. 196, 201, 392 P.3d 1088 (2017).
The instruction given to the jury read as follows: “No act committed by a person while in
a state of voluntary intoxication is less criminal by reason of that condition.” CP at 29. The pattern
instruction includes this sentence, but continues: “However, in determining whether the defendant
[acted] [or] [failed to act] with (fill in the requisite mental state), evidence of intoxication may be
considered.” 11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL
18.10 (5th ed. 2021).1 Nissen argues that the failure to include the second sentence from the pattern
instruction precluded his argument that he was not touching HA for the purpose of sexual
gratification due to his intoxication.
Nissen concedes that he was able to make this argument to the jury, but he contends that
Instruction No. 18 mooted this argument. Even assuming that Nissen has raised an issue of
constitutional magnitude, he has not shown that the error is manifest. Nissen points to the evidence
that (1) he was consuming as many as 18 beers per night, and (2) Nissen could only remember two
of the instances of touching HA due to his drinking. These were the only two pieces of evidence
at trial that related to Nissen’s drinking. The first piece came from HA’s aunt’s testimony, and the
1 Although this jury instruction has been changed since Nissen’s trial, the changes were not substantive. Therefore, we cite to the current version.
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second piece came from the recorded interview with the detectives that was shown to the jury,
where he merely stated he did not remember other occasions where he molested HA “ ‘probably
due to my alcoholism.’ ” Br. of Appellant at 8 (quoting Ex. 16 at 3:08 to 3:34).
Nissen has not shown that the failure to include the second sentence of the pattern
instruction had practical and identifiable consequences in his trial where there was minimal
evidence of his drinking at all, and no evidence that he was not able to act for the purpose of sexual
gratification. Nissen’s inability to remember the touching, or inability to remember why he did it
or how he felt when he did it, does not inform the question of whether he could act for the purpose
of sexual gratification at the time of the sexual contact. Accordingly, we hold that Nissen’s claim
of error is waived because he fails to show the alleged error is manifest.2
II. OFFICERS’ TESTIMONY CONCERNING GUILT
Nissen argues that the testimony from Detective Beck and Detective Sergeant Logan
regarding signs of guilt during the confrontation call was manifest constitutional error. The State
concedes that both officers improperly expressed their opinion as to Nissen’s guilt but argues that
this was not manifest constitutional error. We hold that Nissen failed to preserve this challenge.
2 We reject the State’s argument that Nissen was not entitled to an instruction on voluntary intoxication and therefore no error could have flown from the trial court giving the doctored version of it that was proposed by the State. This instruction is a defense instruction, and it is not designed to be chopped in half as the trial court did here. In the absence of the second sentence of the instruction, the instruction lacks context and could lead the jury to conclude that intoxication cannot be considered by the jury at all in determining whether the State met its burden to prove the defendant acted with the requisite mental state for the crime. Stated another way, if Nissen was not entitled to an instruction on voluntary intoxication then neither was the State.
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“A party may assign evidentiary error on appeal only on a specific ground made at trial.”
Kirkman, 159 Wn.2d at 926. A party’s failure to object to testimony at trial deprives the trial court
of the opportunity to cure the error, either by striking the testimony or providing the jury with a
curative instruction. Id. at 935.
As explained above, we may decline to review claims of error that the defendant did not
raise in the trial court unless the claimed error is a “manifest error affecting a constitutional right.”
RAP 2.5(a)(3). Error is manifest under RAP 2.5(a) if the appellant can show actual prejudice,
demonstrated by a “ ‘plausible showing by the [appellant] that the asserted error had practical and
identifiable consequences in the trial of the case.’ ” O’Hara, 167 Wn.2d at 99 (alteration in
original) (internal quotation marks omitted) (quoting Kirkman, 159 Wn.2d at 935).
Nissen did not object to the testimony he now challenges on appeal. Nissen must, therefore,
show that admission of the testimony was manifest error affecting a constitutional right. Kirkman,
159 Wn.2d at 926. Although opinion testimony regarding the defendant’s guilt implicates the
constitutional right to a jury trial, this is not automatically reviewable as a manifest constitutional
error. State v. Barr, 123 Wn. App. 373, 380, 98 P.3d 518 (2004). The court must still determine
whether the error had “ ‘practical and identifiable consequences in the trial of the case’ ” to
determine whether it is manifest. Id. at 380-81 (quoting State v. Lynn, 67 Wn. App. 339, 345, 835
P.2d 251 (1992)).
Both parties discuss Barr on this issue. In Barr, the defendant was charged with first degree
rape, and he contended at trial that the victim was the aggressor. Id. at 376-77. At trial, a law
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enforcement officer was asked about his interview with the defendant at the police station,
including at least five questions about whether the defendant behaved in a way that suggested he
was being deceptive. Id. at 378-79. A video of the interview was shown to the jury. Id. at 378.
The officer testified that the defendant showed signs of deception in several ways,
including verbalization of the fear of going to prison, which according to the Reid Investigative
Technique, means “ ‘people feel guilty and [ ] they realize there [are] consequences and lots of
times they’ll verbalize those fears.’ ” Id. at 378. The officer was also asked about nonverbal cues,
such as whether there were changes in the defendant’s breathing or voice. Id. at 379. The court
concluded that this testimony raised a constitutional issue because witness testimony that expresses
an opinion as to the guilt of a defendant violates the right to a jury trial. Id. at 380-81. The court
further held that the error was manifest because the officer’s assessments of credibility “were a
crucial part of the State’s case.” Id. at 381.
Without explaining the practical and identifiable consequences of the detectives’ testimony
in his case, Nissen claims that the detectives’ testimony here similarly opined on Nissen’s guilt
and, therefore, is manifest constitutional error like the testimony in Barr. As the State points out,
Barr is factually distinguishable in that the defendant and the victim had “two different versions
of what happened,” whereas Nissen admitted to two of the three incidents for which he was
charged. Compare Id. at 376, with Br. of Appellant at 6-7 (quoting Ex. 16 at 3:35 to 4:36 and 7:13
to 7:33). Furthermore, the jury heard Nissen’s recorded interview where he admitted touching
HA’s vagina on two occasions, including one instance where he penetrated HA, and stated that he
did not know why he did it, but that he felt disgusted with himself. Although Nissen claimed not
to remember other instances due to intoxication, he also stated that he thought HA was “ ‘telling
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the truth,’ ” and that there had “ ‘obviously been other instances’ ” of Nissen molesting HA. Br.
of Appellant at 8 (quoting Ex. 16 at 3:08 to 3:34). The detectives’ testimony, which included two
questions and responses each, was not, therefore, critical to the State’s case. Nissen cannot show
that any error was manifest.
Accordingly, we hold that Nissen failed to preserve this challenge.
III. INEFFECTIVE ASSISTANCE OF COUNSEL
Nissen argues that he was denied effective assistance of counsel when defense counsel
failed to object to Instruction No. 18 and to the detectives’ testimony concerning signs of Nissen’s
guilt during the confrontation call. We disagree.
To prevail on a claim of ineffective assistance of counsel, a defendant must show “(1) that
defense counsel’s conduct was deficient, . . . and (2) that the deficient performance resulted in
prejudice.” State v. Reichenbach, 153 Wn.2d 126, 130, 101 P.3d 80 (2004). Performance is
deficient if it falls below an objective standard of reasonableness based on the record established
at trial. State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). To establish prejudice,
the defendant must show that “ ‘there is a reasonable probability that, but for counsel’s deficient
performance, the outcome of the proceedings would have been different.’ ” State v. Grier, 171
Wn.2d 17, 34, 246 P.3d 1260 (2011) (quoting State v. Kyllo, 166 Wn.2d 856, 862, 215 P.3d 177
(2009)). We need not address both prongs of the test when the defendant’s showing on one prong
is insufficient. State v. Foster, 140 Wn. App. 266, 273, 166 P.3d 726 (2007).
For the same reasons that Nissen could not establish that either of the alleged errors
identified above had practical and identifiable consequences in his trial, Nissen cannot establish
that there is a reasonable probability that, but for defense counsel’s failure to object, the outcome
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of the proceedings would have been different. As a result, Nissen fails to establish prejudice, and
we reject his claims of ineffective assistance of counsel.
IV. CUMULATIVE ERROR
Nissen argues that cumulative error deprived him of a fair trial as to counts 1 and 2. “Under
the cumulative error doctrine, we may reverse a defendant's conviction when the combined effect
of errors during trial effectively denied the defendant [their] right to a fair trial, even if each error
standing alone would be harmless.” State v. Venegas, 155 Wn. App. 507, 520, 228 P.3d 813 (2010).
Where, as here, there are few or no errors and the errors, if any, have little or no effect on the
outcome of the trial, reversal is not required. State v. Weber, 159 Wn.2d 252, 279, 149 P.3d 646
(2006). Because Nissen has not identified multiple errors, the doctrine does not apply here.
V. LFOS
Nissen argues that the trial court erroneously imposed community custody fees in his
judgment and sentence when the court intended to impose only mandatory LFOs. In a
supplemental brief, Nissen asks us to remand for the trial court to strike from his judgment and
sentence the $500 VPA and the $100 DNA collection fee based on recent amendments to RCW
7.68.035 and RCW 43.43.7541.3
3 See LAWS OF 2023, ch. 449, § 1 (adding language “The court shall not impose the penalty assessment under this section if the court finds that the defendant, at the time of sentencing, is indigent” to RCW 7.68.035(4)); LAWS OF 2023, ch. 449, § 4 (eliminating DNA collection fee from RCW 43.43.7541). Both amendments provide that the court shall waive these fees upon the defendant’s motion if they were imposed prior to the effective date of the amendments. LAWS OF 2023, ch. 449, § 1; LAWS OF 2023, ch. 449, § 4.
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The State concedes that we should remand for the trial court to strike these fees. We accept
the State’s concession. Accordingly, we remand for the trial court to strike the community
supervision fee, the $500 VPA, and the $100 DNA collection fee.
CONCLUSION
We hold that Nissen has not established grounds for reversal of his convictions and,
therefore, affirm. However, we remand for the trial court to strike the community supervision fee,
the $500 VPA, and the $100 DNA collection fee from Nissen’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.
CRUSER, A.C.J. We concur:
VELJACIC, J.
PRICE, J.