State v. Thorgerson

258 P.3d 43, 172 Wash. 2d 438
CourtWashington Supreme Court
DecidedAugust 25, 2011
Docket83357-5
StatusPublished
Cited by664 cases

This text of 258 P.3d 43 (State v. Thorgerson) 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. Thorgerson, 258 P.3d 43, 172 Wash. 2d 438 (Wash. 2011).

Opinions

Madsen, C.J.

¶1 A jury convicted Kenneth Thorgerson on four counts of child molestation. He contends that his convictions must be reversed because prosecutorial misconduct occurred during his trial. We agree with the Court of Appeals that some of the conduct he challenges was not misconduct and that the misconduct that did occur does not [441]*441constitute reversible error. Accordingly, we affirm the Court of Appeals.

FACTS

¶2 When D.T. was about six or seven years old, her stepfather, defendant Kenneth Thorgerson, began trying to place her hand on his penis. She testified at trial that initially Thorgerson made her touch him over clothing, but about the time that she started fourth grade Thorgerson successfully forced her to touch him directly. Then, after two years during which Thorgerson persisted in trying to get D.T. to touch him, when she was in sixth grade she “gave him a hand job until he ejaculated” because she was “sick” of his attempts to force her to touch him and thought if she did this he would leave her alone. 2 Verbatim Report of Proceedings (VRP) (May 20, 2008) at 27. When D.T. was in the seventh grade, she refused Thorgerson’s persistent attempts to force her to touch him sexually and threatened to tell her mother. She was not forced to touch him again.

¶3 D.T. did not tell anyone about Thorgerson’s abuse until she was 17 years old. Then she told her high school boyfriend. She also told her brother and her best friend, and eventually she confided in Lisa Carson, her high school counselor. Ms. Carson contacted the police and Washington State Department of Social and Health Services, Child Protective Services.

¶4 Thorgerson denied any improper contact with D.T. He said that D.T. and her boyfriend had fabricated the story in order to avoid Thorgerson’s strict rules and spend more time together.

¶5 The State charged Thorgerson with three counts of first degree child molestation and one count of second degree child molestation. At the trial, the State’s evidence consisted of D.T.’s testimony and the testimony of people [442]*442that she made statements to about the abuse. There was no physical evidence or eyewitness testimony.1

¶6 Thorgerson testified and denied the allegations. The defense presented its theory that D.T., along with her boyfriend and aided by her brother and girl friend, asserted the allegations in order to avoid her father’s strict rules. The jury convicted Thorgerson on all counts charged. The trial court denied Thorgerson’s motion for a new trial based on prosecutorial misconduct. He appealed, and the Court of Appeals affirmed in an unpublished decision. State v. Thorgerson, noted at 150 Wn. App. 1038 (2009), review granted, 168 Wn.2d 1010, 226 P.3d 782 (2010).

¶7 Thorgerson maintains that during his trial the prosecuting attorney improperly vouched for D.T.’s credibility and bolstered her testimony, shifted the burden of proof to the defendant, and impugned defense counsel. Thorgerson did not object at trial to any of the instances of claimed prosecutorial misconduct. The facts pertaining to these claims are discussed in detail below.

ANALYSIS

¶8 To prevail on a claim of prosecutorial misconduct, the defendant must establish “ ‘that the prosecutor’s conduct was both improper and prejudicial in the context of the entire record and the circumstances at trial.’ ” State v. Magers, 164 Wn.2d 174, 191, 189 P.3d 126 (2008) (quoting State v. Hughes, 118 Wn. App. 713, 727, 77 P.3d 681 (2003) (citing State v. Stenson, 132 Wn.2d 668, 718, 940 P.2d 1239 (1997))); accord State v. Ish, 170 Wn.2d 189, 195, 241 P.3d 389 (2010); State v. Dhaliwal, 150 Wn.2d 559, 578, 79 P.3d 432 (2003). The burden to establish prejudice requires the [443]*443defendant to prove that “ ‘there is a substantial likelihood [that] the instances of misconduct affected the jury’s verdict.’ ” Magers, 164 Wn.2d at 191 (alteration in original) (quoting State v. Pirtle, 127 Wn.2d 628, 672, 904 P.2d 245 (1995)); accord Dhaliwal, 150 Wn.2d at 578; State v. Russell, 125 Wn.2d 24, 85, 882 P.2d 747 (1994); see, e.g., State v. Weber, 159 Wn.2d 252, 276,149 P.3d 646 (2006) (defendant failed to prove that prosecutor’s misconduct in eliciting testimony barred by pretrial ruling, to which he did not object, caused prejudice affecting the outcome of the trial). The “failure to object to an improper remark constitutes a waiver of error unless the remark is so flagrant and ill intentioned that it causes an enduring and resulting prejudice that could not have been neutralized by an admonition to the jury.” Russell, 125 Wn.2d at 86; accord State v. Fisher, 165 Wn.2d 727, 747, 202 P.3d 937 (2009). When reviewing a claim that prosecutorial misconduct requires reversal, the court should review the statements in the context of the entire case. Russell, 125 Wn.2d at 86.

¶9 A prosecuting attorney represents the people and presumptively acts with impartiality in the interest of justice. Fisher, 165 Wn.2d at 746. As a quasi-judicial officer, a prosecutor must subdue courtroom zeal for the sake of fairness to the defendant. Id.

¶10 Vouching. Improper vouching occurs when the prosecutor expresses a personal belief in the veracity of a witness or indicates that evidence not presented at trial supports the testimony of a witness. Ish, 170 Wn.2d at 196. Whether a witness testifies truthfully is an issue entirely within the province of the trier of fact. Id.

¶11 Thorgerson maintains that the prosecuting attorney vouched for D.T.’s credibility by suggesting that he knew personally that statements she made outside of the courtroom were consistent with her testimony and bolstered her testimony by implying that the State had information the jury could not hear because of the hearsay rules but which showed D.T. told her story consistently, including [444]*444to people who did not testify, and therefore the jury should conclude that D.T. was testifying truthfully. One of the statements about which Thorgerson complains occurred in the prosecutor’s opening statement:

She’s got a boyfriend about this time .... She confides in him what had happened. And he generally wouldn’t be able to testify to — about everything that’s said in that conversation because the rules don’t allow it. But I do expect that he’ll testify the nature [sic] or the demeanor of that conversation, and he’ll tell you it’s a pretty sad one.

1 VRP (May 19, 2008) at 161.

¶12 In context, this statement concerns a witness’s expected testimony, a permissible subject for opening statements. See Magers, 164 Wn.2d at 191 (“[d]uring an opening statement, a prosecutor may state what the State’s evidence is expected to show”); see State v. Whelchel, 115 Wn.2d 708, 727, 801 P.2d 948 (1990). We do not believe this comment rises to the level of misconduct.

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Bluebook (online)
258 P.3d 43, 172 Wash. 2d 438, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-thorgerson-wash-2011.