State v. McKenzie

134 P.3d 221, 157 Wash. 2d 44
CourtWashington Supreme Court
DecidedMay 18, 2006
DocketNo. 76585-5
StatusPublished
Cited by305 cases

This text of 134 P.3d 221 (State v. McKenzie) is published on Counsel Stack Legal Research, covering Washington Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. McKenzie, 134 P.3d 221, 157 Wash. 2d 44 (Wash. 2006).

Opinions

¶1

Owens, J.

A jury found David McKenzie guilty of three counts of rape of a child in the second degree. McKenzie filed a motion for a new trial, contending that remarks made by the deputy prosecutor during rebuttal closing argument had prejudiced his right to a fair trial. The trial court denied the motion. McKenzie appealed from the denial of the motion and from the judgment and [47]*47sentence, but in an unpublished per curiam opinion, the Court of Appeals affirmed McKenzie’s conviction. State v. McKenzie, noted at 124 Wn. App. 1056, 2005 Wash. App. LEXIS 1. We now affirm the Court of Appeals.

FACTS

¶2 In November 2002, McKenzie was charged by information with the felony of rape of a child in the second degree, arising out of his alleged sexual abuse of his stepdaughter C.T.1 McKenzie’s jury trial began in June 2003. Called as the State’s first witness, C.T. testified that the incidents occurred between September 1997 and the late spring or early summer of 1999, a period of time when she was in the sixth and seventh grades and living in a three-bedroom home in Lake Stevens with her mother, her stepfather, and her older sister, Shelby.

¶3 C.T. reported that McKenzie would enter her bedroom at night, kneel beside her bed, slide his hand beneath her covers, and vaginally penetrate her with two or three fingers, inserting them “[a]s far as he could go.” Verbatim Report of Proceedings (VRP) at 34. C.T. testified that the rapes occurred “[b]etween three and six times a week”— that “it was a regular almost-everyday ordeal.” Id. at 36. She told the jury that when she heard the door of the wood stove creak at night, she would feel “[s] cared” because it had been her stepfather’s practice to smoke a cigarette in the living room at the wood stove, walk into the kitchen and wash his hands, and then enter her room, sometimes after stopping in his own room or in Shelby’s room next door to turn off her television. Id. at 38. C.T. recalled the smell of [48]*48cigarette smoke when McKenzie was at her bedside, and she described his fingers as “[r]ough” and the penetration as “dry” and painful. Id. at 33-34. She explained that she would feign sleep, roll over toward the wall, and try to tuck her covers beneath her “like a kid. . . wrapped up in a burrito,” but that, even if she rolled away from her stepfather and faced the wall, he still penetrated her with his fingers and that during those incidents she could feel his hand on her bottom. Id. at 36. She reported that on some occasions he also touched her breasts with his hands and mouth. C.T. stated that, at the time of the abuse, she had “thought it happened to everybody, not just me,” and had even believed that McKenzie “was doing the same thing” to her sister. Id. at 39. C.T. testified that, ultimately, on one of the nightly occasions when McKenzie was kneeling by her bed and “was about to try to do what he did every other time,” she had opened her eyes and said “ ‘No, don’t. Stop it,’ ” and that he had responded, “ T thought you liked it. I thought it was fun.’ ” Id. at 41. According to C.T., McKenzie never again touched her inappropriately.

¶[4 The State called as witnesses Lindsey Swain and Tyler Anyan, two of C.T.’s friends to whom she first disclosed the alleged molestation. Terri Anyan, Tyler’s mother, also testified. In the fall of 2000, Tyler told his mother of the abuse, and in February and April 2001, she spoke with C.T. and encouraged her to tell her mother or, if that did not seem possible, her father. C.T. disclosed the abuse to her father in May 2001. He testified that C.T.’s mother, Laurie McKenzie, had “[s]eemingly wanted to take the situation out of the United States up to Canada to avoid the United States judicial system, for some unknown reason,” and that he had given her “over a month of time” before contacting Child Protective Services (CPS) and getting C.T. “into some counseling.” Id. at 104.

¶5 The defense called C.T.’s sister and mother. Shelby testified that she knew a number of C.T.’s friends and that, as to C.T.’s reputation for truthfulness, “[s]he wasn’t truthful at all.” Id. at 158. (The State later called two of the [49]*49friends that Shelby had mentioned, and they testified that C.T. “always told the truth,” “was always honest.” Id. at 208, 209.) The deputy prosecutor elicited from Shelby that she blamed C.T. for tearing the family apart with the allegations against their stepfather. Shelby also testified that she was neither employed nor married and was indebted to McKenzie for potentially “thousands” in loans used to cover her mortgage, a custody battle with her child’s father, and some recent travel expenses. Id. at 162. The deputy prosecutor’s final question emphasized Shelbys financial dependence:

Q. And if David goes to prison, he can’t give you any more money, can he?
A. No.

Id. at 168. Similarly, on cross-examination, C.T.’s mother conceded that she was only “kind of working” and that McKenzie was paying the mortgage on their home. Id. at 197.

f6 McKenzie took the stand in his own defense. When defense counsel asked him about whether he and C.T.’s mother had directly discussed taking C.T. “to a counselor up in Canada,” McKenzie responded: “There was counselors. What we were thinking about in Canada, in Washington, we were actually looking for a mediator, what we were trying to do.” Id. at 221. As to why he was “wanting a mediator,” McKenzie replied, “Because what we needed to do was actually get [C.T.] help.” Id. Although McKenzie acknowledged that, during the period covered by the allegations, he would go into C.T.’s bedroom at night to turn off her television, he denied ever touching her inappropriately. He also testified that, within the family, C.T. had a reputation for “being untruthful.” Id. at 229.

¶7 On cross-examination, the deputy prosecutor questioned McKenzie about the family members in attendance and established that they were there to support him, not C.T., whom McKenzie described as having “attacked everybody in this family.” Id. at 232. McKenzie acknowledged [50]*50that he had “helped Shelby out quite a bit financially,” lending her money to pay legal fees, her mortgage, and travel expenses. Id. He admitted that, despite his ability to look up the word “counselor” in a phone book, he had been unable to find a counselor between May 2001, when the abuse was disclosed, and July, when CPS was contacted. The deputy prosecutor then asked a series of questions concerning the effort to arrange counseling for C.T.:

Q. Are you telling this jury between May and July you couldn’t find one?
A. We were trying to figure things out.
Q. I’m just asking if you couldn’t find one.
A. We did not locate one, no.
Q. Okay. You talked about sending her to a counselor in Canada, though; isn’t that right?
A. We talked about issues of Canada.
Q. And that’s because in Canada you thought there would be a different reporting requirement. Isn’t that right?
A. Not so much that, but Canada with the exchange rate, excuse me. The exchange rate is much better.
Q.

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Cite This Page — Counsel Stack

Bluebook (online)
134 P.3d 221, 157 Wash. 2d 44, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-mckenzie-wash-2006.