                                                                                                                             1L. Q
                                                                                                                      4LIPU ILI APP Ai.S
                                                                                                                2014 JAN 23
                                                                                                                                   f4pl 9. 53
                                                                                                                ST

                                                                                                                B,Y




      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                     DIVISION II


STATE OF WASHINGTON,                                                                        No. 43199 -8 -II


                                          Respondent,


          V.



RONALD LEE SORENSON,                                                            UNPUBLISHED OPINION


                                          0

          JOHANSON, A.C. J. —               Ronald Lee Sorenson appeals his jury convictions and sentences

for   multiple sex crimes.          Sorenson claims that ( 1) the trial court manifestly abused its discretion

by denying           a continuance, (     2) the State offered insufficient evidence for his first degree child

molestation convictions, (          3) the trial   court erred      by failing   to    provide a    limiting   instruction, ( 4)


the   prosecutor'       s   misconduct      denied him       a   fair trial,   and (   5)    scrivener' s errors plague his


judgment        and     sentence.    Because the trial court did not abuse its discretion by denying the

continuance, the State offered sufficient evidence to support the convictions, the trial court


provided a limiting instruction, and Sorenson did not demonstrate that prosecutorial misconduct

resulted       in   reversible   error, we    affirm.    But we accept the State' s concession and remand to


correct   the       scrivener' s errors   in Sorenson'   s   judgment    and sentence.
No. 43199 -8 -II


                                                                FACTS


        The State charged Sorenson with two counts of first degree child molestation) and two

counts of second degree child molestation against BES, two counts of second degree child

molestation and one count of              third   degree   child      molestation3 against BLS, and two counts of first


degree child molestation against AKB.4 BES, BLS, and AKB are all related to Sorenson.

           Before trial, Sorenson moved for a continuance so that he could obtain impeachment

evidence.     He sought information about a subsequently added victim, evidence from Facebook,

and   he    wanted     to    interview 72          additional         potential         witnesses.    The   State   contested the


continuance motion,          arguing that ( 1) the         case was over a year old; (               2) Sorenson' s new attorney

had been working the          case   for   six months; (        3) the State added its latest victim a month and a half

earlier; and ( 4) Sorenson' s desired evidence was irrelevant and cumulative, so his need for it did

not   outweigh       the    detriment      of     delay    to    the    victims.          The trial court denied Sorenson' s


continuance motion after considering the State' s arguments and judicial economy interests.

           At trial, BES testified that             when        she    was       11,    she woke up roughly 10 times with

Sorenson'    s   hand touching her         sexual or      intimate          parts.     AKB testified that when she was 8 or 9,


Sorenson would lie with her on the couch " spooning style" 15 to 20 times, touching her sexual or

intimate    parts.   3B Report       of   Proceedings ( RP)            at   371.     BLS testified that when she was between




1
    RCW 9A.44. 083.


z RCW 9A.44. 086.

3 RCW 9A.44. 089.

4 We use initials to protect the minor victims' privacy. The State also charged Sorenson with sex
 crimes against      two    other victims.        The jury acquitted Sorenson of those charges and they are not
relevant to this appeal.


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No. 43199 -8 -II



11 and 14 years old, she woke up two times with her hand touching Sorenson' s sexual or

intimate parts; on one of those occasions, Sorenson' s hand was also touching BLS' s sexual or

intimate      parts.      Additionally, BLS testified that when she was 14, she woke up with Sorenson' s

hand touching her sexual or intimate parts.

            Sorenson testified in his own defense, explaining that the girls frequently climbed into

bed    or    onto    the       couch         with   him    when        he   was    sleeping.     While Sorenson admitted that he


 cuddled" with            the       girls,   he denied         ever   inappropriately touching          them.   4A RP   at   496.    He also


acknowledged that had. he touched any of the girls, the touching was purely accidental during the

course of cuddling.


             After       the        presentation          of    evidence,      Sorenson        requested    an    instruction       to   limit


consideration of evidence                                      each victim     to the   charges    relating to that    victim.      Sorenson
                                              regarding


proposed his own limiting instruction, but the trial court refused to read it to the jury because it

inaccurately         stated         the law.       The trial court did, however, direct the jury in its final instructions,

 A     separate      crime          is    charged    in   each        count.   You    must     decide   each . count   separately.       Your


verdict      on    one   count should           not control your verdict on             any    other count."     4A RP at 568.


             During closing argument, the prosecutor made the following statements to convince the

jury    of   the   victims'          credibility beyond              a reasonable    doubt. ( 1) "[     I] f you have an abiding belief

that these girls testified truthfully, you have an abiding belief in what they said, you are satisfied

beyond       a reasonable                doubt."    4B RP       at   577 -78. ( 2) " I want to go through each girl and submit --


 and show you how they are credible and how you should have an abiding belief in what they are

 saying."         4B RP        at    578. ( 3) "     And they have come forward now and taken an oath to tell all of

 you   the truth     about what              happened."         4B RP at 593.




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No. 43199 -8 -II



            4)] And      you        should       have   an    abiding belief that they told        you   the truth.    You
          should    have       an    abiding belief that he is guilty.
                                                                And if you do have an abiding
          belief in the truth of what those girls said, then it is your sworn duty, your sworn
          obligation, and your sworn responsibility to find him guilty.

4B RP      at   594. (    5) "[      I] f   you    have      an   abiding belief that     equals   a   reasonable --    beyond a


reasonable      doubt."    4B RP at 649. Defense counsel objected only to this last statement. The jury
                                                                                                                             s
found Sorenson guilty               of   these   crimes against       BES, BLS,     and   AKB,   and   Sorenson   appeals.




                                                                  ANALYSIS


                                                        I. DENIED CONTINUANCE


          Sorenson argues that the trial court manifestly abused its discretion by denying defense

counsel' s      continuance motion.                The trial court, however, properly weighed the relevant factors

and it did not manifestly abuse its discretion when it denied the continuance motion.

          We review the trial court' s grant or denial of a continuance for manifest abuse of

discretion.      State    v.   Campbell, 103 Wn.2d 1,                   14, 691 P. 2d 929 ( 1984), cent. denied, 471 U. S.


1094 ( 1985).       A trial court manifestly abuses its discretion when it exercises its discretion on

clearly   untenable       grounds or         is manifestly          unreasonable.    State v. Yuen, 23 Wn. App. 377, 380,

597 P. 2d 401 ( quoting Friedlander                      v.   Friedlander, 80 Wn.2d 293, 298, 494 P. 2d 208 ( 1972)),


review    denied, 92 Wn.2d 1030 ( 1979).                          In granting or denying a continuance, a trial court may

weigh factors such as the defendant' s right to a fair trial, diligence of counsel in investigating

issues, whether the trial court granted previous continuances, and the availability of evidence or

witnesses. See State v. Watson, 69 Wn.2d 645, 650 -51, 419 P. 2d 789 ( 1966).

           Before denying the continuance motion, the trial court considered that ( 1) the case was

 over a year old; (       2) Sorenson' s new attorney had been working the case for six months; and ( 3)


 5
     The jury also found that Sorenson used his position of trust to facilitate those crimes.
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No. 43199 -8 -II



the evidence Sorenson wanted to obtain was irrelevant, cumulative, and did not outweigh the

detriment    of   delay   to the   victims.         The trial court also articulated that it intended to deny the

continuance       in the interest       of    judicial economy.          Sorenson cannot show that his desired


impeachment evidence, which had been available throughout the case, was crucial to his defense

or   that his attorney    was    diligent in securing it. Thus, he cannot demonstrate that the trial court


denied the continuance based on clearly untenable grounds or reasons; accordingly, he does not

show that the trial court manifestly abused its discretion.

                                                    II. SUFFICIENT EvIDENCE


          Sorenson next argues that the State failed to prove his first degree child molestation

charges beyond a reasonable doubt because it could not show he acted for sexual gratification.

We disagree because the record demonstrates that the State sufficiently proved the crimes.

           We   review    claims       of   insufficient      evidence   to determine   whether, "   after viewing the

evidence in the light most favorable to the State, any rational trier of fact could have found guilt

beyond     a reasonable     doubt."         State   v.   Salinas, 119 Wn.2d 192, 201, 829 P. 2d 1068 ( 1992).     We


draw all reasonable inferences from the evidence in favor of the State and against the defendant.

Salinas, 119 Wn.2d         at   201.    A sufficiency challenge admits the truth of the State' s evidence and

all reasonable     inferences from it.          State v. Theroff, 25 Wn. App. 590, 593, 608 P. 2d 1254, affd,

 95 Wn.2d 385, 622 P. 2d 1240 ( 1980).                    We leave credibility determinations to the fact finder and

 do not review theirs on appeal. State v. Camarillo, 115 Wn.2d 60, 71, 794 P. 2d 850 ( 1990).

           To prove first degree child molestation, the State needed to prove beyond a reasonable

 doubt that Sorenson had sexual contact with a victim who is less than 12 years old, that the

 victim and Sorenson are not married, and that Sorenson is at least 36 months older than the

 victim.    See RCW 9A.44. 083( 1). "                Sexual contact" means any touching of the sexual or other

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No. 43199 -8 -II



intimate parts of a person done for the purpose of gratifying sexual desire of either party or a

third party.     RCW 9A. 44. 010( 2).             Sorenson specifically argues there is insufficient evidence that

he had    contact with         BES      and    AKB for      purposes      of sexual gratification.         The record does not


support his claim.


         Sorenson          analogizes      to State    v.   Powell, 62 Wn.       App.    914, 816 P. 2d 86 ( 1991),        review




denied, 118 Wn.2d 1013 ( 1992),                   to argue that he only touched the girls inadvertently, and that

any touching " was          susceptible        to innocent    explanations."     Statement of Additional Grounds at 18.


In Powell, the        sexual         contact was "    fleeting"   and " susceptible of          imiocent   explanation,"   so the



court held that no rational trier of fact could have found sexual contact beyond a reasonable

doubt and reversed Powell' s conviction. 62 Wn. App. at 918.

          Here,       unlike         Powell,    Sorenson       touched       BES       and   AKB     neither fleetingly nor

inadvertently. BES testified that Sorenson touched her roughly 10 times; she woke up numerous

times    with   Sorenson'        s   hand touching her       sexual or      intimate   parts.    AKB testified that Sorenson


would    lie   with   her   on    the   couch "   spooning     style"     15 to 20 times, touching her sexual or intimate

parts.    3B RP       at   371.       Taken in the light most favorable to the State, any rational trier of fact

could have concluded from this evidence that Sorenson touched the girls' sexual or intimate parts

for   sexual     gratification;         thus,    the State sufficiently proved the sexual contact element of

 Sorenson'.s first degree child molestation convictions and his claim fails.

                                                   III. LIMITING INSTRUCTION


          Sorenson next argues that the trial court violated his right to a fair trial by failing to give a

 limiting instruction. We disagree.

          Generally, when a trial court admits evidence for a limited purpose and the party against

 whom     it   was admitted requests a             limiting    instruction,    trial courts     must give an    instruction.   ER


                                                                    Con
No. 43199 -8 -II



105; State    v.   Aaron, 57 Wn.           App.   277, 281, 787 P. 2d 949 ( 1990).             Although trial courts may

refuse to give limiting instructions tliat erroneously state the law, once a defendant requests even

an erroneous limiting instruction in the ER 404(b) context, the*trial court has a duty to provide a

correct   limiting    instruction.         State v. Gresham, 173 Wn.2d 405, 424 -25, 269 Pad 207 ( 2012).

The trial    court   has broad discretion to fashion its            own   limitation    on   the   use of evidence.    State v.


Hartzell, 156 Wn. App. 918, 937, 237 P. 3d 928 ( 2010).

          Here, the trial court properly refused to give Sorenson' s erroneous limiting instruction,

which     included inaccurate language: "              When deciding the guilt or innocence of a victim on each

count, evidence in other alleged counts can only be used for the limited purpose of showing

common scheme or plan."               4A RP       at   538 (   emphasis added).       The trial court, however, properly

                               final instructions: " A                           is                in                 You must
directed the    jury in its                                     separate crime        charged           each count.




decide    each count       separately.      Your verdict on one cow- should not control your verdict on any
                                                                   it


other count."        4A RP    at   568.    Sorenson failed to challenge this instruction' s validity at trial or on

appeal; thus, he does not demonstrate that the trial court improperly instructed the jury.

                                            IV. PROSECUTORIAL MISCONDUCT


           Sorenson next argues that the prosecutor committed misconduct by shifting the burden of

proof     to Sorenson, prejudicing his trial.                  We disagree because even if we assuune, without


deciding, that the prosecutor erred, Sorenson fails to show enduring and lasting prejudice

incurable by a remedial instruction.

           An appellant claiming prosecutorial misconduct must show both improper conduct and

                              State                    174 Wn.2d 741, 756, 278 P. 3d 653 ( 2012).                 A defendant
 resulting   prejudice.               v.   Emery),

 suffers prejudice only where there is a substantial likelihood the misconduct affected the jury's
 verdict.    State   v.   Brown, 132 Wn.2d 529, 561, 940 P. 2d 546 ( 1997), cent. denied, 523 U. S. 1007


                                                                   7
No. 43199 -8 -II



 1998).     We review a prosecutor's comments during closing argument in the context of the total

argument,     the    issues in the         case,    the    evidence        addressed     in the    argument,          and the jury

instructions.       Brown, 132 Wn.2d               at   561.   When defense counsel fails to object to alleged


prosecutorial misconduct at trial, she or he does not preserve the issue for appeal unless the

misconduct is so flagrant and ill intentioned that it evinces an enduring and resulting prejudice

incurable by a remedial instruction. Emery, 174 Wn.2d at 760 -61.

          Although Sorenson failed to object at trial to four of the five challenged statements, he

argues that for the four unchallenged statements, the prosecutor committed flagrant misconduct

                                     doubt"               abiding belief."         Br.   of   Appellant    at   9.      Specifically,
by   equating "     reasonable                with "




Sorenson argues that the prosecutor committed misconduct by arguing that if the jury has an

abiding belief that the victims testified truthfully, then the jury is satisfied beyond a reasonable

doubt that Sorenson is guilty.              Sorenson cites State v. Anderson, 153 Wn. App. 417, 220 P. 3d

1273 ( 2009),      review       denied, 170 Wn. 2d 1002 ( 2010), to support his argument that the prosecutor


                                          its job          to determine the " truth"                      the            Sorenson' s
here     improperly   told the     jury             was                                       and solve         case.




argument lacks merit.


           First, we must analyze the four statements that Sorenson challenges for the first time on

appeal.      For    us '   to   consider   these        statements       for the first time      on   appeal,        Sorenson must


demonstrate that these, statements constituted flagrant and ill-intentioned misconduct incurable

                      instruction.        See Emery, 174 Wn.2d                     760 -61.     Here, the prosecutor' s four
by   a    remedial                                                            at




 statements informed the jury that if it had an abiding belief that the victims testified truthfully,

 then it was satisfied beyond. a reasonable doubt that Sorenson was guilty.

           Even assuming without deciding that these statements constituted misconduct, Sorenson

 does not demonstrate that these statements were flagrant or ill ' intentioned or that any

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No. 43199 -8 -II



misstatement of the law could not have been cured by a remedial instruction that clarified the

reasonable       doubt    standard.       See Emery, 174 Wn.2d at 758 -59 ( explaining that a misstatement of

the "   esoteric"       reasonable    doubt     standard   that   shifts   the burden     of   proof   may be " certainly and


seriously       wrong"     but does     not   demonstrate bad faith         or an attempt      to inject bias).   Accordingly,

he failed to show flagrant and ill-intentioned conduct incurable by a remedial instruction; so he

did not preserve these challenges for appeal. See Emery, 174 Wn.2d at 760 -61.

             Next, regarding Sorenson' s preserved prosecutorial misconduct claim, we review the

prosecutor' s argument             for improper    conduct and       resulting       prejudice.   Emery, 174 Wn.2d at 756.

Sorenson        argues    that the    prosecutor' s     statement, "[      I] f you have an abiding belief that equals a

reasonable --         beyond   a reasonable      doubt,"   misstated the basis on which the jury could acquit. 4B

RP      at    649.    Even assuming, without deciding, that Sorenson may show that this statement

constitutes          misconduct,     he   cannot   demonstrate resulting             prejudice —he      cannot show that the


statement likely affected the jury' s verdict.

              Here, Sorenson denied that any inappropriate touching ever happened, and he contended

that even had it happened, the touching occurred accidentally in the course of cuddling with the

victims.        But the jury heard testimony from BES, BLS, and AKB, who each testified that on
                                                                                                           intimate            And
                                                   up to Sorenson touching their               sexual or              parts.
multiple occasions,          they    each woke




the trial court instructed the jury that it must decide each count against each victim separately,

 such        that the    verdict   on     one   count   should    not      control    other   verdicts.    Sorenson does not


 demonstrate that absent the prosecutor' s allegedly improper argument, the jury would not have

 believed the          victims'    testimony beyond        a reasonable        doubt.      Thus, Sorenson does not show


 prejudice and his prosecutorial misconduct claim fails.




                                                                    U
No. 43199 -8 -II



                                                  V. SCRIVENER' S ERRORS


         Sorenson.      argues,   and   the       State   concedes,   that his judgment and sentence contains


scrivener' s errors. We accept the State' s concession and remand to correct those errors.


         A defendant may          challenge an erroneous sentence          for the first time   on appeal.   State v.


Bahl, 164 Wn.2d 739, 744, 193 P. 3d 678 ( 2008).                       The remedy for a scrivener' s error in a

judgment and sentence is remand to the trial court for correction. See State v. Naillieux, 158 Wn.


App. 6' )0, 646,      241 P. 3d 1280 ( 2010); CrR 7. 8( a).


         Sorenson' s judgment and sentence incorrectly states the dates that Sorenson committed

the   offenses   in   counts   2, 3,   and   9.    Sorenson committed count 2 between March 9, 2002 and


March 8, 2004; count 3 between March 9, 2003 and March 8, 2006; and count 9 between August

23, 2006   and'   August 22, 2009.           We accept the State' s concession and remand to the trial court


for it to correct Sorenson' s judgment and sentence on counts 2, 3, and 9 to accurately reflect

when Sorenson committed those crimes.
                                                                              Q




         We affirm, but remand to correct scrivener' s errors in Sorenson' 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.



                                                                                                 e
                                                                                                     @




                                                                      HANSON, A.C. J.
We concur:




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