Opinion
No. 37450-1-II.
February 23, 2010.
Appeal from a judgment of the Superior Court for Clark County, No. 07-1-00326-6, Robert L. Harris, J., entered February 20, 2008.
Affirmed by unpublished opinion per Hunt, J., concurred in by Houghton and Bridgewater, JJ.
Carl Gregory Williams appeals his jury trial convictions for second degree child molestation (Counts I-III), third degree child molestation (Counts IV-VI), and delivery of marijuana to a minor (Count VII). He argues that (1) the trial court erred in denying his motion in limine to exclude evidence of prior misconduct under ER 404(b); (2) the trial court improperly commented on the evidence in issuing a non-corroboration instruction that "unnecessarily and unfairly" emphasized KL's testimony; (3) trial counsel provided ineffective assistance in failing to disclose a conflict of interest that adversely affected his performance; (4) the trial court erred in failing to hold an evidentiary hearing to discuss trial counsel's conflict of interest; and (5) substantial evidence fails to support delivery of marijuana to a minor. Williams also raises 21 assignments of error in his statement of additional grounds (SAG). We affirm.
The nature of this case requires some confidentiality. Accordingly, we use initials to identify the juvenile victim. Williams' date of birth is December 30, 1972, and KL's date of birth is September 12, 1991.
RAP 10.10.
FACTS I. Sexual Molestation
In 2002, Williams and his family moved to Clark County, within several blocks of where his niece, KL, lived with her mother and his sister-in-law, Mary L. The families became very close and spent holidays and vacations together. Williams' family often took KL on family trips and outings to the beach. Williams also became a father figure to KL since her biological father had moved out of the home after divorcing Mary L. in 1999. Mary L. sometimes asked Williams for parenting advice because KL valued his opinion, "looked up to him," and "seemed to trust him." II Report of Proceedings (RP) at 66.
But Williams was grooming KL to engage in sexual activities with him. For example, when KL was 13 years old, Williams asked if she was sexually active. When she replied, "Well, I'm not exactly a virgin," Williams advised her not to wait to have sex because she had already experimented with it. III-A RP at 183. Shortly thereafter, while KL was still 13 years old, Williams began touching her sexually, repeatedly asking to see her breasts, rubbing her breasts and crotch areas through her clothes, and kissing her on the mouth.
When KL was 14 years old, Williams began giving her marijuana and smoking it with her before touching her sexually and asking to see her breasts. According to KL, Williams also sexually molested her during incidents in Long Beach, Washington, and in Portland, Oregon. In Long Beach, Williams pinned KL against the side of a building, forced her hand around his bare erect penis, and kissed her on the mouth. In Portland, Williams and KL were driving alone in his car before meeting family members at a concert. During the drive, Williams parked his car in a dark area of town and asked to see KL's breasts. When she refused, he groped her breasts through her clothes.
Several months later, KL wrote one line in her diary about Williams' sexual abuse: "Uncle Greg had molested me." III-A RP at 215. In December 2006, Mary L. found KL's diary while looking through a book bag and learned about Williams' sexually molesting KL. Mary L. also checked KL's cell phone and saw that Williams had called it twice before trying to reach KL on the house line.
KL testified at trial that she usually referred to Williams as "Uncle Greg." III-A RP at 166.
After Mary L. reported Williams' molestation to law enforcement, Clark County Sheriff's Office Detective Evelyn Oman, from the Child Abuse Intervention Center, interviewed Mary L. and KL. Based on KL's interview, the State filed an affidavit of probable cause that included the following allegations: (1) Williams had been "touching [KL] sexually for a number of years," beginning in 2003 and ending in 2006; (2) during such encounters, Williams would rub KL's breasts and the area between her legs over her clothing; and (3) "at least one other episode of sexual contact with [Williams] that occurred" outside Clark County in Ocean Park. Clerk's Papers (CP) at 7, 8.
The cities of Ocean Park and Long Beach are separated by several miles on the Long Beach Peninsula in Pacific County.
The record contains no information about Williams' subsequent arrest or Miranda advisements, but he does not challenge these actions on appeal. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
II. Procedure A. Charges
The State charged Williams with three counts of second degree child molestation (Counts I-III), three counts of third degree child molestation (Counts IV-VI), delivery of a narcotic from schedule III-IV or a non-narcotic from schedule I-V (marijuana) to a minor (Count VII), and furnishing liquor to a minor (Count VIII). Williams pleaded not guilty.
In filing these charges, the State twice amended the original information.
B. Jury Trial 1. Motions in limine
At Williams' jury trial, he moved in limine to exclude evidence of past alleged criminal activities, including evidence about the Long Beach and Portland incidents involving KL. He argued, "[T]here's no direct testimony other than the victim's testimony" that the incidents actually occurred and, in any event, such evidence would be highly prejudicial to Williams' case. II RP at 30. Williams asked the trial court to limit the prior misconduct evidence to incidents that had occurred in Clark County.
The State countered that the Long Beach and Portland incidents were admissible under ER 404(b) to show Williams' lustful disposition toward KL. The State argued that because such evidence would fall under the lustful disposition exception and show the continuing nature of the sexual activity between Williams and KL, it was immaterial that these incidents occurred in other jurisdictions. The trial court agreed and denied Williams' motion, noting that "jurisdictional boundaries of lustful disposition [are] generally not applied." III RP at 33.
Next, Williams moved to exclude testimony about the content of KL's diary as impermissible hearsay evidence offered for the truth of the matter asserted. Noting that KL's family had destroyed the diary, the trial court ruled that KL could testify about "information in the journal which described [Williams'] conduct" because such information was not hearsay; but other witnesses, including Mary L., could not "relate what they read" in KL's diary without violating the hearsay rules. II RP at 38.
2. State's witnesses
Mary L. testified that after her divorce from KL's father, Williams became a father figure to KL since "there were periods of time that her dad wasn't involved." II RP at 65. Mary L. did not know about Williams' sexual abuse of KL until reading about it in KL's diary. In 2006, "it was brought to [Mary L.'s] attention that that — [Williams] was still givin' [KL] pot, and [she] had confronted him and asked him not to." III-B RP at 401-02. On cross-examination, Mary L. testified that she had known that Williams was giving marijuana to KL on a regular basis, but she did not recall how she had first learned this.
KL testified that Williams had sexually molested her numerous times between 2003 and 2006. When asked whether she had ever kissed Williams, KL replied, "I did, but then I was like, No, I told him, You're my uncle, you're married to my aunt, you're too old, stop." III-A RP at 193. She added, "And it would take three or four times for me trying to tell him to stop before he'd back off." III-A RP at 193.
KL also testified that Williams had given her marijuana and smoked it with her, beginning when she was 14 years old. She was certain that the substance was marijuana because (1) she had first smoked marijuana when she was 13 years old, before obtaining it from Williams or smoking it with him; (2) she knew how marijuana looked, smelled, and affected her; and (3) Williams had given her marijuana "[j]ust about every time" that she saw him. III-A RP at 203.
KL described an April 2005 incident when Williams and she had smoked marijuana together in Williams' bedroom. She testified that while she was "stoned," Williams tried to kiss her and rubbed his hand between her legs. III-A RP at 206. KL also testified about the two incidents of sexual molestation that had occurred outside Clark County. In testifying about the Long Beach incident, she said that Williams "had pushed me up against the side of the barn and started kissing me and put my hand down his pants . . . and wrapped it around [his penis]." III-A RP at 211. KL said that although she had pushed Williams away and said, "No, Greg," Williams put her hand back into his pants and continued to touch and to kiss her until they could hear his son running around nearby. III-A RP at 212.
KL explained that she had never told anyone about Williams' sexual abuse because she was confused and afraid that talking about it would hurt the close relationship between their two families.
3. Defense Witnesses
Two of Williams' longtime friends, Jason England and Nicholas Wideman, testified that Williams seemed to have a typical uncle-niece relationship with KL, and that they had never seen Williams give marijuana to KL. But Wideman noted that he had seen KL "stoned" at Williams' house. III-B RP at 311. Williams' wife testified that although Williams "occasionally" smoked marijuana, she had never seen him give it to KL or to act inappropriately with KL. III-B RP at 341.
Williams broadly denied KL's allegations. But he admitted that he had often pinched "the fatty portion of [KL's] arm" and "told her that she needs to watch her weight" because "people are more attracted to thin women." III-B RP at 359-60. Williams also testified, "I am sure that I've smacked her on the butt, as I've done [sic] other people. Again, it's not a sexual thing." III-B RP at 360.
Williams further testified, "I felt that I was a surrogate father [for KL]." III-B RP at 355. He had discussed parenting issues with Mary L. and informed her about KL's activities. For example, he testified that when KL told him that she had started smoking marijuana, he went "straight to her mom" to inform her. III-B RP at 351. Williams testified as follows:
Q: So you didn't tell [KL] that [smoking marijuana] wasn't the right thing to do, don't do that, or anything like that?
A: I — no.
Q: Okay. And why not?
A: I — I smoke marijuana, how could I tell somebody that it's not right?
Q: Did you ever smoke marijuana with [KL]?
A: No.
Q: Did you ever provide marijuana so she could smoke it?
A: No. I —.
Q: Is that a no?
A: No, I didn't — I did not provide it. I'm sorry, I was about to say something else, but I didn't want to —.
III-B RP at 352.
When asked whether he had ever seen KL smoking marijuana with anyone else, Williams testified that he had. He also testified that although KL had "snuck" some alcohol at parties, he did not give any to her. III-B RP at 382. When asked whether he had discussed sex with KL, Williams testified that he had talked to her about sexuality and using protection.
The State then asked Williams to explain a recorded dialogue between him and KL that Mary L. had obtained from the instant messaging system on KL's computer. Part of this dialogue, which the trial court admitted into evidence, went as follows:
[Williams]: hey little girl, want some candy?
[KL]: WHAT KIND?
[Williams]: salty
[KL]: EVERY "CANDY" I'VE EVER HAD HASN'T BEEN SALTY HEHE
[Williams]: hehehe
[KL]: HEHE
[KL]: CAN I STIL LHAVE[sic] SOJME[sic]? LOL
[Williams]: sure
[KL]: HEHEH YAY
[Williams]: when was the last time you had candy?
[KL]: HMMMM, TO[sic] LONG!
[Williams]: couple of months?
[KL]: I'M NOT SURE
[KL]: JUST I NEED TO GET LAID!!!
[KL]: YOU?
[Williams]: this weekend
[KL]: NICE!
[KL]: G2G
[KL]: TALK TO YOU LATER
Ex. 6 at 12. When asked whether he was telling KL that he had had sex that weekend, Williams replied, "That's what this appears to look like." III-B RP at 391. And when asked whether this was his idea of a surrogate father relationship with a 15-year old, Williams replied, "I think it's open communication." III-B RP at 391. In addition, when asked about Wideman's observation of KL "stoned" at one of his parties, Williams testified that KL probably knew that he kept his marijuana in the bedroom after observing him and others going into the bedroom to smoke it. III-B RP at 392.
4. Conflict of Interest
After a lunch recess, the trial court returned to the courtroom and stated:
I'm informed in chambers that [defense counsel] at one time represented Mary [L.] at a time when she was a juvenile and that that obviously did not come to his attention or being something over twenty years ago, was not aware of it and no one was aware of it until it came up during the lunch hour.
Ms. [L.], [counsel for the state] has informed me that you're waiving — I mean, he's examined you and cross-examined you, nothing at all was dealt with your past and that you're waiving insofar as the — his examination of you, which would be basically in violation of the attorney-client privileges under our rules. You understand that?
III-B RP at 268. Mary L. replied, "Yes, I do." III-B RP at 268.
Asking no other questions, the trial court called for the jury and directed the State to resume KL's cross-examination. After the last witness finished testifying, the trial court dismissed Count VIII (furnishing alcohol to minors) because the trial testimony "would indicate that [it] occurred six years ago" and the statute of limitations had expired. IV RP at 410.
5. Jury Instructions
The trial court next discussed its instructions to the jury. Williams objected to instruction 7, the non-corroboration instruction, which provided, "In order to convict a person of sexual offense against a child it shall not be necessary that the testimony of the alleged victim be corroborated." IV RP at 407. Williams argued, "It's not a WPIC instruction and we object." IV RP at 407. The trial court, however, never ruled on this objection; instead, it labeled the remaining jury instructions and prepared the verdict forms. Then, just before calling for the jury, the trial court asked the parties, "Ready to proceed?" IV RP at 410. Williams agreed, stating, "Yes, Your Honor," without renewing his earlier objection to instruction 7. IV RP at 410.
"WPIC" refers to the Washington Pattern Jury Instructions for criminal proceedings.
Instruction 1 provided:
You are the sole judges of the credibility of the witnesses and of what weight is to be given to the testimony of each. In considering the testimony of any witness, you may take into account the opportunity and ability of the witness to observe, the witness' memory and manner while testifying, any interest, bias or prejudice the witness may have, the reasonableness of the testimony of the witness considered in light of all the evidence, and any other factors that bear on believability and weight.
CP at 119. Instruction 1 also provided, "In determining whether any proposition has been proved, you should consider all of the evidence introduced by all parties bearing on the question." CP at 119. It also included the following language: "You should consider the instructions as a whole and should not place undue emphasis on any particular instruction or part thereof." CP at 118. In addition, instruction 1 discussed improper comments on the evidence:
The law does not permit a judge to comment on the evidence in any way. A judge comments on the evidence if the judge indicates, by words or conduct, a personal opinion as to the weight or believability of the testimony of a witness or of other evidence. Although I have not intentionally done so, if it appears to you that I have made a comment during the trial or in giving these instructions, you must disregard the apparent comment entirely.
CP at 120.
Instruction 3 provided:
The State is the plaintiff and has the burden of proving each element of the crime beyond a reasonable doubt.
A defendant is presumed innocent. This presumption continues throughout the entire trial unless during your deliberations you find it has been overcome by the evidence beyond a reasonable doubt.
A reasonable doubt is one for which a reason exists and may arise from the evidence or lack of evidence. It is such a doubt as would exist in the mind of a reasonable person after fully, fairly and carefully considering all of the evidence or lack of evidence. If, after such consideration, you have an abiding belief in the truth of the charge, you are satisfied beyond a reasonable doubt.
CP at 122.
In addition, each of Williams' seven "to convict" instructions provided that each element must be proved by beyond a reasonable doubt. In addition, each of Williams' "to convict" instructions for child molestation included the element of his "sexual contact" with KL. CP at 131-37. Instruction 11 defined "sexual contact" as "any touching of the sexual or other intimate parts of a person done for the purpose of gratifying the sexual desires of either party." CP at 130.
The trial court also issued a limiting instruction about the evidence of uncharged sexual contact between Williams and KL that had occurred outside Clark County. This instruction advised the jury to consider such evidence only "for the limited purpose of arguing the defendant's prior lustful disposition toward the alleged victim." CP at 125.
The jury found Williams guilty on all seven remaining counts. He appeals.
ANALYSIS I. Prior Misconduct
Williams first argues that the trial court committed reversible error in denying his motion in limine under ER 404(b) to exclude evidence of uncharged misconduct — his alleged sexual contact with KL in Long Beach and in Portland. Specifically, he argues that the trial court failed to make a factual determination by a preponderance of the evidence that the uncharged misconduct actually occurred and to balance the prejudicial effect of the evidence against its probative value. We disagree.
A. Standard of Review
We review a trial court's ruling to admit or to exclude evidence of misconduct under ER 404(b) for an abuse of discretion. State v. Fisher, 165 Wn.2d 727, 745, 202 P.3d 937 (2009). An abuse of discretion occurs when a trial court's exercise of discretion is manifestly unreasonable or based on untenable grounds or reasons. Fisher, 165 Wn.2d at 759 (citing State v. Powell, 126 Wn.2d 244, 258, 893 P.2d 615 (1995)). But an error in admitting evidence that does not prejudice the defendant is not grounds for reversal. State v. Bourgeois, 133 Wn.2d 389, 403, 945 P.2d 1120 (1997). Such an error is not prejudicial unless, within reasonable probabilities, the outcome of the trial would have been materially affected if the error had not occurred. Bourgeois, 133 Wn.2d at 403. The improper admission of evidence constitutes harmless error if the evidence is of minor significance in reference to the overall, overwhelming evidence as a whole. Bourgeois, 133 Wn.2d at 403.
We recognize that in 2008 the legislature passed RCW 10.58.090(1), which states: "In a criminal action in which the defendant is accused of a sex offense, evidence of the defendant's commission of another sex offense or sex offenses is admissible, notwithstanding Evidence Rule 404(b), if the evidence is not inadmissible pursuant to Evidence Rule 403." The evidence may arise from a charged or uncharged sex offense. State v. Kennealy, 151 Wn. App. 861, 887 n. 7, 214 P.3d 200 (2009) (citing H.B. Rep. on Second Substitute S.B. 6933, 60th Leg., Reg. Sess. (Wash. 2008)). But this exception to ER 404(b) became effective June 12, 2008, after Williams' trial concluded, and the State does not argue that it applies here. Therefore, we review the trial court's conduct for abuse of discretion in light of the law at the time the trial court made its decision, before RCW 10.58.090(1) was enacted. Kennealy, 151 Wn. App. at 887 (citing Laws of 2008, ch. 90, § 2).
B. Evidence Rules
Although ER 404(b) prohibits evidence of prior acts that tend to prove a defendant's propensity to commit a crime, it allows evidence of prior acts for other limited purposes, such as showing a defendant's lustful disposition toward the victim. Applying ER 404(b) in combination with ER 403 requires the trial court to exercise its discretion in excluding relevant evidence that would be unfairly prejudicial. Fisher, 165 Wn.2d at 745. ER 403 provides that relevant evidence "may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Fisher, 165 Wn.2d at 745 (citing ER 403).
State v. Medcalf, 58 Wn. App. 817, 823, 795 P.2d 158 (1990) (noting that the important factor is whether the evidence demonstrates a desire for the particular female).
C. Lustful Disposition Toward KL
Williams contends that KL's testimony about the Long Beach incident was highly prejudicial because, unlike "[t]he charged misconduct involve[ing] nothing more than sexual contact over the clothing," the allegation about the Long Beach incident involved Williams' "placing [KL's] hand on his penis repeatedly — the only skin-to-skin sexual contact alleged to have occurred in the entire case." Br. of App. at 23. The State counters that "the trial court did not abuse its discretion in allowing this limited evidence of lustful disposition to come before the jury" because (1) KL testified about these incidents during her trial testimony and the trial court limited the way that the jury could use this information and (2) "[t]his evidence ha[d] been previously deemed probative of the crime charged." Br. of Resp. at 4. We agree with the State.
Contrary to Williams' argument, the record shows that the trial court identified the limited purpose for admitting this testimony under the lustful disposition exception and properly determined that the admission of such evidence is not conditioned on jurisdictional boundaries. The trial court also instructed the jury to consider such evidence only "for the limited purpose of arguing" Williams' prior lustful disposition toward KL. CP at 125. Although the trial court did not appear to conduct a balancing test to determine whether the danger of unfair prejudice would outweigh the evidence's probative value, Williams fails to demonstrate that, within reasonable probabilities, the outcome of the trial would have been materially affected if such evidence had not been admitted. See Bourgeois, 133 Wn.2d at 403.
Although KL's trial testimony about the Long Beach incident alleged skin-to-skin contact, the prejudicial effect of this evidence, if any, is negligible when viewed against all of the evidence in the case. Bourgeois, 133 Wn.2d at 403. For example, KL testified that Williams (1) had sexually molested her on multiple occasions between 2003 and 2006, often rubbing her breasts and/or crotch area; (2) had encouraged her to lose her virginity when she was 13 years old; (3) had repeatedly asked to see her breasts and tried to kiss her; (4) had smoked marijuana with her before touching her sexually; and (5) had refused to "back off" until after she told him three or four times to stop. III-A RP at 193.
This testimony, in addition to the sexual innuendos in Williams' instant messaging dialogue with KL, demonstrates that the evidence about the Long Beach and Portland incidents has only minor significance in reference to the overall, overwhelming evidence as a whole. Bourgeois, 133 Wn.2d at 403. Thus, any error in admitting such evidence would have been harmless. Accordingly, we hold that the trial court did not abuse its discretion in admitting uncharged misconduct evidence of Williams' lustful disposition toward KL outside Clark County.
II. Non-Corroboration Instruction
Next, Williams argues that the trial court's non-corroboration instruction — "it shall not be necessary that the testimony of the alleged victim be corroborated," — "unnecessarily and unfairly" emphasized KL's testimony, produced an improper comment on the evidence, and relieved the State of its burden of proof. Br. of App. at 24; IV RP at 407. Again, we disagree.
A. State v. Clayton
Williams appears to argue, based on State v. Clayton, that the non-corroboration instruction itself must include additional safeguarding language for the jury to evaluate witness credibility and/or to weigh the evidence under the reasonable doubt standard. 32 Wn.2d 571, 202 P.2d 922 (1949). Williams' argument misreads Clayton and the subsequent cases that discuss its holding. Nevertheless, these cases provide guidance on this issue.
Clayton challenged his conviction for carnal knowledge of a 15-year-old girl, arguing that the trial court's non-corroboration instruction was an improper comment on the evidence because it emphasized the victim's testimony and failed to advise the jury to reach a verdict based on all of the evidence presented at trial. Clayton, 32 Wn.2d at 572-73. The Clayton court's non-corroboration instruction provided:
You are instructed that it is the law of this State that a person charged with attempting to carnally know a female child under the age of eighteen years may be convicted upon the uncorroborated testimony of the prosecutrix alone. That is, the question is distinctly one for the jury, and if you believe from the evidence and are satisfied beyond a reasonable doubt as to the guilt of the defendant, you will return a verdict of guilty, not withstanding that there be no direct corroboration of her testimony as to the commission of the act.
32 Wn.2d at 572 (emphasis added).
Our Supreme Court rejected Clayton's argument and affirmed his conviction because he failed to show how the instruction produced an improper comment on the evidence or otherwise prejudiced his case. Clayton, 32 Wn.2d at 577-78, 580. Our Supreme Court explained that although the trial court's non-corroboration instruction "in a sense singled out" the victim's testimony, the trial court never advised the jury that such uncorroborated testimony was sufficient to find guilt. Clayton, 32 Wn.2d at 574. Our Supreme Court further noted that although the non-corroboration instruction did not expressly advise the jury to determine guilt "from all the evidence and surrounding circumstances shown at the trial," the jury "must have understood, from the second sentence of the instruction, that [the defendant's] guilt or innocence was to be determined from all the evidence in the case." Clayton, 32 Wn.2d at 577. Our Supreme Court added, "Moreover, the jury was elsewhere expressly instructed" that is must reach a verdict "beyond a reasonable doubt' only "after examining carefully all the facts and circumstances" in the case. Clayton, 32 Wn.2d at 577.
Here, as in Clayton, the trial court's non-corroboration instruction was not a comment on the evidence because "the jury was elsewhere expressly instructed" that it must reach a verdict beyond a reasonable doubt after examining all the facts and circumstances produced at trial. 32 Wn.2d at 577. Although the non-corroboration instruction itself did not include additional safeguarding language, the trial court's other jury instructions expressly instructed the jury on the burden of proof, the presumption of innocence, and the standard of proof.
The other jury instructions at Williams' trial provided: (1) jurors are the sole judges of the credibility of the witnesses and of what weight is to be given to the testimony of each; (2) jurors should consider the testimony of any witness in light of all the evidence and any other factors that bear on believability and weight; (3) if it appears that the trial court made a comment on the evidence, "[jurors] must disregard the apparent comment entirely," CP at 120; (4) "[t]he State is the plaintiff and has the burden of proving each element of the crime beyond a reasonable doubt," CP at 122; (5) a defendant's presumption of innocence continues throughout the entire trial unless the jury determines that "it has been overcome by the evidence beyond a reasonable doubt," CP at 122; (6) a reasonable doubt is "such a doubt as would exist in the mind of a reasonable person after fully, fairly and carefully considering all of the evidence or lack of evidence." CP at 122.
In addition, each of Williams' seven "to convict" instructions noted that the State must prove each element of the crime beyond a reasonable doubt. And instruction 1 provided, "You should consider the instructions as a whole and should not place undue emphasis on any particular instruction or part thereof." CP at 118.
As the record demonstrates, the trial court's jury instructions in the case at bar satisfy the standard set forth in Clayton by "elsewhere expressly instruct[ing]" the jury to reach its verdict beyond a reasonable doubt and in light of all the evidence, and any other factors that bear on believability and weight. Clayton, 32 Wn.2d at 577. We hold, therefore, that the trial court did not err in issuing the non-corroboration instruction to the jury.
Williams also cites State v. Malone, in which Division One of our court upheld a non-corroboration instruction that contained language similar to the instruction at issue here. 20 Wn. App. 712, 714, 582 P.2d 883 (1978). But Malone does not address Clayton or otherwise support Williams' argument. Unlike Williams, Malone did not argue that the non-corroboration instruction needed additional safeguarding language; instead, he broadly asserted that the instruction constituted "a comment on the evidence in violation of article 4, section 16 of the Washington State Constitution." Malone, 20 Wn. App. at 714. Division One upheld the instruction because it correctly stated the law without expressing an opinion on the victim's credibility. Malone, 20 Wn. App. at 714.
In State v. Zimmerman, we analyzed a non-corroboration instruction that also contained language similar to the instruction here. 130 Wn. App. 170, 181, 121 P.3d 1216 (2005). Based on Clayton and Malone, we upheld Zimmerman's non-corroboration instruction because it correctly stated the law without expressing an opinion on the evidence. Zimmerman, 130 Wn. App. at 182. Although we noted that our Supreme Court's committee on jury instructions recommends against using such an instruction and shared the committee's misgivings, we held that we were "bound by Clayton to hold that the giving of such an instruction is not reversible error." Zimmerman, 130 Wn. App. at 182-83. Thus, Zimmerman, like Malone, fails to support Williams' argument.
B. State v. Johnson
In State v. Johnson, filed on November 9, 2009, we addressed a challenge to a non-corroboration instruction based on the absence of additional safeguarding language. 152 Wn. App. 924, 219 P.3d 958 (2009). Johnson argued that without additional safeguarding language, the trial court's non-corroboration instruction "puts the complaining witness's testimony in a favorable light." Johnson, 152 Wn. App. at 936. Although we reversed Johnson's conviction on different grounds, we noted that Clayton contained "no clear pronouncement" from our Supreme Court about whether additional safeguarding language is mandatory to prevent an impermissible comment on the evidence when issuing a non-corroboration instruction. Id.
Based on the above cases, we hold that the non-corroboration instruction here did not constitute an improper comment on the evidence or shift the burden of proof. The instruction correctly stated the law, and the other jury instructions specifically advised the jury that it alone decides issues of witness credibility and reaches a verdict after considering all the evidence presented at trial and applying the correct standard of proof.
III. Conflict of Interest and Ineffective Assistance of Counsel
Williams also argues that his trial counsel provided ineffective assistance in failing to obtain his voluntary, knowing, and intelligent waiver after discovering a potential conflict of interest during his trial. This argument also fails.
A. Sixth Amendment Right to Conflict-Free Representation
The Sixth Amendment provides a criminal defendant with the right to effective assistance of counsel at trial. U.S. Const. amend. VI. This right includes representation that is free from conflicts of interest. State v. Regan, 143 Wn. App. 419, 425-26, 177 P.3d 783 (2008), review denied, 165 Wn.2d 1012 (2008) (citing Strickland v. Washington, 466 U.S. 668, 688, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)); see State v. Dhaliwal, 150 Wn.2d 559, 566, 79 P.3d 432 (2003). The trial court has a duty to investigate potential attorney-client conflicts of interest if it knows or reasonably should know that a potential conflict exists. Regan, 143 Wn. App. at 425-26 (citing Mickens v. Taylor, 535 U.S. 162, 167-72, 122 S. Ct. 1237, 152 L. Ed. 2d 291 (2002)).
B. Standard of Review
We will reverse a defendant's conviction if he timely objected to a claimed attorney conflict at trial and the trial court failed to conduct an adequate inquiry. Regan, 143 Wn. App. at 425-26. But when a defendant does not timely object in the trial court, his conviction will stand unless he can show that his attorney had an actual conflict that adversely affected the attorney's performance. Regan, 143 Wn. App. at 426. When a defendant successfully makes this showing, reversal is required, regardless of whether any prejudice is shown. Dhaliwal, 150 Wn.2d at 568. A harmless error analysis is not required. Regan, 143 Wn. App. at 426.
C. No Adverse Affect on Performance
Williams asserts that an actual conflict of interest adversely affected his trial counsel's performance because "[i]t is evident from the record that defense counsel did not aggressively or effectively cross-examine his former client," namely the victim's mother, Mary L. Br. of App. at 38. The State counters that "[t]here has been no showing of an inherent conflict or splitting of loyalties" because defense counsel's cross-examination of Mary L. "was quite adequate" and Williams failed to show that defense counsel's representation was contrary to Williams' interests or that it "affected particular aspects of [defense counsel's] advocacy on behalf of [Williams]." Br. of Resp. at 13, 15. We agree with the State.
Although Williams asserts that defense counsel's cross-examination of Mary L. was deficient, he fails to provide a single example from the trial transcript that supports this argument. On the contrary, the record shows that defense counsel's representation of Mary L. occurred two decades before when she was a juvenile in a case wholly unrelated to the case here. Moreover, defense counsel did not even remember that he had represented Mary L. until sometime during the Williams' trial. Accordingly, Williams' failure to show that an actual conflict of interest adversely affected defense counsel's performance at trial means that his denial of effective assistance of counsel argument fails also. Regan, 143 Wn. App. at 427-28.
D. Evidentiary Hearing
Williams further argues that the trial court erred in failing to hold an evidentiary hearing "to explore" his trial counsel's alleged conflict of interest. Br. of App. at 39. And Williams urges us to remand to the trial court "for an evidentiary hearing on that issue." Br. of App. at 39. But Williams' only support for this argument is State v. Mims, 180 N.C. App. 403, 637 S.E.2d 244 (2006), a case from outside this jurisdiction, which does not bind this court. Furthermore, as Williams notes in his brief, Washington does not require automatic reversal when a trial court knows about a potential conflict of interest but fails to inquire. Accordingly, we reject Williams' request to remand for an evidentiary hearing on this issue.
IV. Delivery of Marijuana to a Minor
Williams also argues that substantial evidence fails to support his conviction for delivery of marijuana to KL. This argument also fails.
A. Standard of Review
In analyzing challenges to the sufficiency of the evidence, we view the facts and inferences drawn therefrom in the light most favorable to the State; we find evidence sufficient to support a conviction when it permits a rational trier of fact to find the essential elements of the crime beyond a reasonable doubt. State v. O'Neal, 126 Wn. App. 395, 412, 109 P.3d 429 (2005), aff'd, 159 Wn.2d 500, 150 P.3d 1121 (2007). In addition, we defer to the fact finder's resolution of issues concerning conflicting testimony, witness credibility, and persuasiveness of the evidence. O'Neal, 126 Wn. App. at 424. To affirm a defendant's conviction, we need not be convinced of guilt beyond a reasonable doubt; we must be satisfied only that substantial evidence supports the conviction. O'Neal, 126 Wn. App. at 412. Substantial evidence is that sufficient to persuade a fair-minded, rational person of the truth of the finding. State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994).
B. Substantial Evidence
Williams argues, "The record contains no evidence corroborating KL's claim that [he] provided marijuana or smoked it with her at any time." Supp. Br. of App. at 3. Williams is incorrect.
Contrary to this argument, the record contains evidence other than KL's testimony about Williams' providing marijuana to her. For example, Mary L. testified on rebuttal that she knew Williams had given marijuana to KL "on a regular basis" and that she (Mary L.) had previously confronted him about this issue. III-B RP at 402. Although Wideman and several others testified that they had never seen Williams give marijuana to KL, Wideman stated that Williams smoked marijuana and that he (Wideman) had also seen KL "stoned" at Williams' house. III-B RP at 311. And Williams admitted on the stand that he "smoke[s] marijuana" and that KL probably knew he kept marijuana in his bedroom because she had seen him go to that room to smoke marijuana during parties. III-B RP at 352.
The jury heard testimony from KL and Williams about the events in this case, including ample testimony from KL that she smoked marijuana with Williams, that she had obtained it from him on multiple occasions, and that Williams had touched her sexually while she was under the influence of marijuana. This testimony was sufficient to persuade a fair-minded, rational person that Williams delivered marijuana to KL. See Hill, 123 Wn.2d at 644. Accordingly, we hold that substantial evidence supports Williams' conviction on count VII for delivery of marijuana to a minor. See O'Neal, 126 Wn. App. at 412-13.
V. Statement of Additional Grounds
Williams includes 21 assignments of error in his SAG. None, however, merits reversal. The Rules of Appellate Procedure (RAP) provide that (1) "the appellate court will not consider [an argument raised in a defendant's] statement of additional grounds if it does not inform the court of the nature and occurrence of the alleged errors" and (2) "the appellate court is not obligated to search the record in support of claims." RAP 10.10(c). Accordingly, we do not consider Williams' additional grounds 1-7 because he fails to demonstrate how any of these alleged errors prejudiced his case. Similarly, we do not reach additional grounds 12-14 and 16-21 because Williams fails to articulate or to develop a fully cognizable argument on these points. Nor do we address additional grounds 8 and 10, because Williams failed to preserve these issues for appeal as required under RAP 2.5(a). State v. Stein, 140 Wn. App. 43, 68, 165 P.3d 16 (2007), review denied, 163 Wn.2d 1045 (2008).
In his SAG 1-7, Williams argues that his defense counsel provided ineffective assistance in failing (1) to discover that the statute of limitations had run on Count VIII (furnishing alcohol to minors), SAG 1; (2) to move for severance, SAG 2; (3) to move for judgment of acquittal, SAG 3; (4) to request a lesser included offense instruction for the charge of second degree child molestation, SAG 4; (5) to present "a theory of the defendant (and his family) that could have been introduced properly through evidence," SAG 5; (6) to move to dismiss a "potentially prejudicial untimely charge," SAG 6; and (7) to provide "any defense theories," aside from the simple argument that "he [Williams] did not do it."
In SAG numbers 8 and 10, Williams argues that the trial court "deprived his rights to present impeachment evidence" and that the State "made prejudicial comments about [him] during [the State's] closing argument."
Last, we reject additional grounds 9, 11, and 15 as contrary to the facts on record. Under additional ground 9, Williams argues that the State failed to disclose KL's testimony that Williams' son interrupted the alleged incident of sexual molestation in Long Beach contrary to CR 4.7, which requires the State to disclose any information that "a defendant might use to impeach the state's witness." SAG at 7. But this rule does not apply here because the State did not call Williams' son as a witness.
Because this argument lacks merit, we need not reach Williams' ancillary argument that his trial counsel was ineffective in failing to object to KL's testimony on this point.
Next, under additional ground 11, Williams argues that the State failed to prove that his touching of KL was for the purpose of sexual gratification. But the trial court's instructions to the jury defined sexual contact as "any touching of the sexual or other intimate parts of a person done for the purpose of gratifying the sexual desires of either party." CP at 130. Moreover, substantial evidence supports the jury's verdict that Williams sexually molested KL, based on KL's testimony about Williams' repeated rubbing of her breasts and inner thighs and the instant message dialogue between Williams and KL that included sexual innuendos and Williams' testimony about his "open communication" with KL about sex. III-B RP at 391. These facts are sufficient to persuade a fair-minded, rational person that Williams engaged in these activities with KL for the purpose of sexual gratification. Hill, 123 Wn.2d at 644. Because substantial evidence supports Williams' convictions for second and third degree child molestation as charged in counts I-VI, his argument fails. See O'Neal, 126 Wn. App. at 412-13.
Last, under additional ground 15, Williams contends that the trial court erred in admitting KL's testimony about what she had written in her diary as an excited utterance exception to the hearsay rules. But this argument fails because the trial court did not allow KL's testimony on this basis; instead, it properly concluded that KL's testimony about how she had described Williams' conduct in her journal did not constitute hearsay. For the foregoing reasons, Williams' SAG arguments fail.
We affirm.
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 pursuant to RCW 2.06.040, it is so ordered.
HOUGHTON, P.J. and BRIDGEWATER, J., concur.