                                                               FILED
                                                      COURT OF APPEALS OIV 1
                                                       STATE OF WASHINGTON

                                                       2013 APR 22 m 9:38




      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                                  DIVISION ONE
                       Respondent,
                                                  No. 67109-0-1
                  v.



JAMES LEROY SLY,                                  UNPUBLISHED OPINION

                       Appellant.
                                                   FILED: April 22, 2013

       Dwyer, J. -A trial irregularity warrants a mistrial only if the resulting

prejudice is severe enough to denythe defendant a fair trial. In this prosecution
for first degree child molestation, the complaining witness's references to the
defendant's prior acts of sexual abuse were too vague and attenuated to cause

significant prejudice. The trial court therefore did not abuse its discretion by
denying James Sly's motion for a mistrial. We affirm.

                                           I



       In about 1998, eight-year old L.L.S. and her younger sister, L.R.S., moved
into a Des Moines foster home run by Sandra Sly and Curtis Adams Sr.
No. 67109-0-1/2




Sandra's1 son, James Sly, also lived in the home, along with Curtis's children,
Jamel Adams and Curtis Adams Jr. Within two years, Sandra adopted both
L.L.S. and L.R.S. The family later lived in West Seattle and Federal Way.
       In December 2007, L.L.S. told the Federal Way police and Child
Protective Services caseworkers that Sandra had physically abused her for many
years. L.L.S. also disclosed that James, Jamel, and Curtis Jr., had repeatedly
raped her.

       The State charged James with one count of first degree child molestation
(involving L.L.S.) and one count of first degree child rape (involving L.R.S.). The
State also charged Curtis Jr., with one count of first degree child rape (L.L.S.)
and one count of first degree child molestation (L.R.S.). Prior to trial, the State
dismissed the two counts involving L.R.S. because she refused to cooperate with
the prosecution. The case then proceeded to a joint trial on the two counts
involving L.L.S.2
        At trial, L.L.S. testified that Sandra physically and emotionally abused her
for many years. Sandra repeatedly beat L.L.S. with a belt or switch on her back,
thighs, or buttocks and punched her in the face and ribs. Occasionally, James
and Curtis Jr., held L.L.S. down while Sandra hit her. Sandra also disciplined



        1Where necessary for clarity, we refer tofamily members by their first names.
        2Sandra pleaded guilty to fourth degree assault and attempted witness
 tampering. In a separate trial, ajury found Jamel guilty of one count of third degree rape
 and one count of attempted third degree rape, both charges involving L.L.S.
No. 67109-0-1/3




L.L.S. by making her squat uncomfortably with her back against the wall for long
periods of time. Once, when L.L.S. got tired and slipped down, Sandra threw a
can of food at her, causing a serious gash above her eye.

       L.L.S. claimed that Sandra always favored the biological children in the

family. She forced L.L.S. and her sister to do most of the household chores.
She also forbid the sisters from playing with friends or watching television,

restrictions that she did not place on the biological children.

       While the family was living in Des Moines, L.L.S. would occasionally wet
the bed. To resolve the problem, Sandra ordered L.L.S. to wake up by 3:00 a.m.
each morning and go to the bathroom. L.L.S. then had to wake up Sandra and
confirm that she had gone to the bathroom.

       L.L.S. described a specific incident in the Des Moines house that formed
the basis for the charge against James. As L.L.S. made her nightly trip to the
bathroom, James grabbed her arm and pulled her into the bedroom he shared
with Curtis Jr. He then forced her to the floor, removed his clothes, and got on

top of her. L.L.S. indicated that James placed his penis "next to" her vagina, but
she was uncertain whether there was any penetration. As L.L.S. left, James

said, "Don't tell mom."

       After leaving James's room, L.L.S. awakened Sandra and told her that she
had gone to the bathroom, but she did not report the abuse. L.L.S. claimed that
there were "quite a few" similar incidents and that they did not end until James
No. 67109-0-1/4




moved out of the house. L.L.S. alleged that Curtis Jr., began abusing her after

James moved out.

        James's defense focused on the contradictions in L.L.S.'s various

accounts of the charged incident. Defense counsel suggested that L.L.S.

fabricated the allegations because her adoptive brothers had failed to protect her

from Sandra's physical abuse.

        The jury found James guilty as charged of first degree child molestation,

and the court imposed a standard range term of 77 months. The jury was unable

to reach an agreement on the charge against Curtis Jr.

                                          II


        James contends that the trial court erred in denying the joint defense

motion for a mistrial. He argues that L.L.S. violated a pretrial ruling by referring

to the alleged abuse of her sister and that the violation was sufficiently prejudicial

to violate his right to a fair trial.

        Prior to trial, counsel for Curtis Jr., moved to exclude hearsay testimony by

the investigating detectives that L.R.S. had previously told Sandra and Curtis Sr.,

that James had touched her inappropriately. Adams' counsel and the deputy

prosecutor informed the trial courtthat the motion was essentially moot because
the State had dismissed the charges involving L.R.S. and did not plan to call

Sandra or Curtis Sr., as witnesses. The trial court granted the defense motion

without further comment.
No. 67109-0-1/5



      During her direct testimony, L.L.S. explained that after James had

molested her on her way to the bathroom, she went to Sandra's room as usual,

awakened her, and reported that she had used the bathroom. The deputy

prosecutor then asked:

      Q. Okay. And when you woke your mom up to tell her that you
      went to the bathroom, did you tell your mom [about the
      molestation]?

      A. No, I didn't, because that wasn't the first incident that he had did

      something. Itwas - well, I probably can't bring anything up about

      my little sister.

      Q. Okay. So, in terms of - so you didn't tell your mother about

      that?

      A. No, I didn't tell my mother.

L.L.S. then discussed other occasions when James abused her.

      Later, when L.L.S. testified about her interview with Federal Way Police

Detective Deyo in October 2007, the deputy prosecutor asked:

      Q. Okay. And did you tell him you were being abused?

      A. No. I said everything was fine, and none of the stuff that was
      going on happened, and that my sister was lying.

      Q. So you told him that everything was fine?

      A. Correct.
No. 67109-0-1/6




       Neither defense counsel interposed a contemporaneous objection, but, at

the conclusion of L.L.S.'s direct testimony, both defendants moved for a mistrial,

arguing that the references to L.R.S. violated the court's pretrial ruling. The

deputy prosecutor opposed the motion, noting that that L.R.S.'s "slip" indicated
that she was aware she was not supposed to mention anything she heard from

L.R.S. The court found L.L.S.'s first comment more "troubling" than the second,

but concluded that both comments were too vague to cause significant prejudice

and denied the mistrial motion.

       The trial court should grant a mistrial "only when the defendant has been

so prejudiced that nothing short ofa new trial can ensure that the defendant will
be fairly tried." State v. Emery, 174 Wn.2d 741, 765, 278 P.3d 653 (2012). In
determining whether a trial irregularity prejudices a defendant's fair trial rights, a
court considers (1) the seriousness ofthe irregularity, (2) whether it involved
cumulative evidence, and (3) whether the trial court properly instructed the jury to
disregard it." Emery, 174 Wn.2d at 765. We review the trial court's denial of a
mistrial motion for an abuse of discretion. State v. Post, 118 Wn.2d 596, 620,

826 P.2d 172, 837 P.2d 599 (1992).

       James contends that the irregularity was serious because it violated the
trial court's pretrial ruling and unfairly bolstered L.L.S.'s credibility.3 In State v.


       3The State contends that because the trial court's ruling pertained only to
Detective Deyo's testimony, L.L.S.'s comments did not violate the ruling. But the deputy
prosecutor did not dispute the defense's claim that the testimony violated the trial court's
No. 67109-0-1/7




Escalona, 49 Wn. App. 251, 742 P.2d 190 (1987), a prosecution for second

degree assault with a knife, the trial court granted a defense motion to exclude
any evidence of the defendant's prior conviction for the same crime. The
complaining witness later disclosed that the defendant "already has a record and
had stabbed someone." Escalona, 49 Wn. App. at 253. The trial court struck the

improper testimony and instructed the jury not to consider it, but denied the
defense motion for a mistrial. On appeal, this court reversed, concluding that the

curative instruction could not negate the prejudicial effect of the improper

testimony.

       Unlike Escalona, L.L.S.'s references were nonspecific and oblique at best.

To the extent the comments suggested the occurrence of prior bad acts, they did
not clearly indicate the nature ofthe conduct or even the alleged victim.
Moreover, the challenged references were brief and isolated. The deputy
prosecutor immediately directed the questioning away from L.R.S., and James
does not allege that there was any further reliance on the improper testimony.
Under the circumstances, the record supports the trial court's observation that

the references were likely too vague for the jury to understand.
       Evidence that the defendant may have abused L.L.S.'s younger sister was
not cumulative. But the potential prejudice was mitigated because the nature of
the alleged conduct was unclear. Defense counsel's failure to request a curative

ruling. And, in any event, the court and the parties clearly assumed that any references
to L.R.S.'s allegations were improper.
No. 67109-0-1/8




instruction, even after the trial court denied the mistrial motion, provides some

support for the trial court's decision.4 James argues that the comments here
were so prejudicial that a curative instruction would not have been effective. See
Escalona, 49 Wn. App. at 256. But given the nature of the challenged

comments, the trial court could have directed the jury not to consider any

evidence involving L.R.S. without further identifying or highlighting James's
alleged abuse of L.R.S.

       Because the determination of whether to grant a mistrial is highly fact

specific, the trial judgewas necessarily in the best position to assess the
prejudicial effect of L.L.S.'s comments in light of her entire testimony and the
other evidence in the case. See Escalona, 49 Wn. App. at 256. Viewed in

context, the information contained in L.L.S.'s brief and relatively nonspecific
references was too attenuated to "impress itself upon the minds of the jurors" or
improperly suggest that James was merely acting in conformity with prior
conduct. Escalona 49 Wn. App. at 256; see also Post, 118 Wn.2d at 620.




       4Citing State v. Crawford. 21 Wn. App. 146, 584 P.2d 442 (1978), the State
asserts that James waived the alleged error because he failed to request a curative
instructive in addition to moving for a mistrial. But the Statefails to address authority
holding to the contrary. See, e.g., State v. Claflin. 38 Wn. App. 847, 849-50 n.2, 690
P.2d 1186 (1984) (defendant not required to request curative instruction in addition to
objection and motion for mistrial in order to preserve error for appeal). Accordingly, we
do not base our resolution ofthis matter on this averment. State v. Thomas, 150Wn.2d
821, 868-69, 83 P.3d 970 (2004) (appellate court will not review issues unsupported by
adequate argument).


                                                 -8-
No. 67109-0-1/9




       James claims that the trial court's reference to the possibility of

questioning the jurors about the evidence after the verdict was "a conscience-

salving placebo with no chance to cure the prejudice." But the trial court entered

no ruling on the issue and merely observed that it was a possibility "if there's any

legal basis." The court's decision on the mistrial rested solely on the absence of
potential prejudice. The trial court did not abuse its discretion in denying James's

mistrial motion.

       Affirmed.




We concur:




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