State Of Washington v. Nen Than Phan

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STATE OF WASHINGTON, =o o§
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No. 72935-7-1 JC nr>>C
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UNPUBLISHED OPINION O
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NEN THAN PHAN,

Appellant. FILED: April 4, 2016

Dwyer, J. — Nen Than Phan was convicted as charged on 15 counts. On

appeal, he contends (1) that the trial court erred by refusing to sever the 11 sex
offense counts from the 4 possession of child pornography counts, (2) that the

trial court erred by denying his motion for a Franks1 hearing, (3) that a search
warrant was supported by stale evidence and should not have been issued, (4)
that the trial court violated his right to an impartial jury by denying his for-cause

challenge to juror 14, (5) that the trial court improperly restricted his cross-
examination of one of the alleged victims, A.P., and, thus, violated his Sixth

Amendment right to confront the witness, (6) that the trial court erred by allowing
an employee of the Whatcom County Prosecutor's Office to testify as an expert

1Franks v. Delaware. 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978).
No. 72935-7-1/2

witness, and (7) that insufficient evidence supports the jury's verdict of guilty on

count 9, a child molestation in the first degree charge involving A.D. Finding no

error, we affirm.

I

Phan was born on May 13, 1958. In early 2013, he resided in Bellingham

with his wife Kim,2 their two daughters, A.P, age 15, K.P, age 8, and Kim's

parents. Following a trip to Vietnam in February of that year, Kim decided to
divorce Phan.

Shortly thereafter, A.P. accompanied Kim to the house of Donald Jones, a
family friend, to discuss filling out the divorce paperwork. While there, A.P.
disclosed to Kim, Jones, and Jones's wife that Phan had been sexually abusing
her "for about five years." Following A.P.'s disclosure, Jones telephoned the
police.

The case was eventually assigned to Detective Darla Wagner ofthe
Bellingham Police Department. Detective Wagner had "[ijnnumerable"
conversations with A.P., during which A.P. recounted the details ofthe sexual
abuse by Phan. In addition, A.P. reported that she had seen Phan download
pornography onto compact disks, that he would mark the compact disks
containing pornography with an "X-X-X," and that she had often been subjected
to watching pornography with Phan before having sexual contact with him. A.P.
also expressed concern that K.P. may have been sexually abused by Phan. K.P.
later spoke with law enforcement officials and confirmed that she was also a
2For clarity, we refer to Phan's wife by her first name, Kim.

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No. 72935-7-1/3

victim of sexual abuse by Phan. During those conversations, K.P. revealed that

her friend, A.D., was also a victim. A.D. later spoke with a law enforcement

official and confirmed that on one occasion, when she had slept over at K.P.'s

house, Phan had touched her "[p]rivate parts."

Detective Wagner utilized information from the interviews to obtain two
separate search warrants for the Phan residence.3 In executing these warrants,
the police seized numerous items from the house including bedding, a black bag
containing sex toys and lubricants, computers, cellular telephones, and compact
disks.

By fourth amended information, the State charged Phan with 15 offenses:
5 counts of rape of a child in the first degree, 4 counts of rape of a child in the
third degree, 2 counts of child molestation in the first degree, and 4 counts of
possession of child pornography. In addition, the State charged two aggravating
factors pursuant to RCW 9.94A.535: (1) that Phan had committed multiple
current offenses and that his high offender score would result in some offenses
going unpunished; and (2) that the offense was part of an ongoing pattern of
sexual abuse of the same victim underthe age of 18 years, manifested by
multiple incidents over a prolonged period of time. The charged offenses
involved three alleged victims: A.P., K.P., and A.D.
Before trial, Phan both moved to severthe 4 counts of possession of child
pornography from the 11 sex offense counts, desiring that they be tried
3The record reflects that Detective Wagner established a basis for probable cause in
support of the search warrant at issue, in part, on information that she had received in two
separate conversations with A.P., one on March 29, 2013, and another on April 3.
No. 72935-7-1/4

separately, and moved to suppress certain evidence that was seized from his

residence during the execution of a search warrant, requesting that the trial court

conduct a Franks hearing.

In July 2014, the parties appeared before the trial court to address

preliminary matters. After hearing the argument of counsel, the trial court denied

both of Phan's motions.

On September 16, the case proceeded to trial. During voir dire, Phan

moved to excuse juror 14 for cause. The judge denied the request. Phan then

excused juror 14 by exercising a peremptory challenge.

Two days later—at the beginning of the second day of trial—

Phan's counsel orally expressed a desire for the State to clarify the

evidence that it intended to present to the jury on the possession of child

pornography charges.

MR. SUBIN [Defense Counsel]: Well, the only other issue that
I'd like to address this morning is not a motion that I filed, but I
would like to address discovery regarding the child pornography
images. I have had an opportunity to look at some ofthat stuff but I
still am not, I have not been apprised about what images the State
intends to use[.] Ithink this issue was raised at the severance. I've
asked along with the severance motion for the Court to conduct an
in camera review of some of these witnesses, we'll get into that
when we argue it. Aside from the severance issue I think we're
entitled to a better idea what images the State intends to show the
jury before we do opening statements.

THE COURT: Has the State identified the images it intends to
show?

MR. SAWYER [Prosecutor]: In the affidavit of probable cause we've
identified the videos in which the images appear, yes.

THE COURT: All right. We may discuss this in more detail

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No. 72935-7-1/5

THE COURT: What is the issue in what the State intends to present
as I understand it is evidence relating to four counts of possession
of child pornography and the child pornography that will be
introduced in support of the State's case on those four counts will
be four different video images or sequences contained on a total of
three DVD's; is that correct?

MR. SAWYER: No, one DVD that had 32 different videos on it and
we have selected 3 of those videos for our charging purposes of
the 4 counts. One is with the one that had the title "many girls 12 to
14 having sex experiences et cetera," that is a video that shows, I
don't know how many, but clip attached] to clip attached] to clip
attached to clip. It's like a montage of ongoing videos of different
girls appearing to be roughly 12 to 14 years old.
THE COURT: So that one title has constant images of many
different people?

MR. SAWYER: Correct. And we perhaps could have counted up all
those different subjects and had, Idon't know if it would have been
10 or 20 just on one video, but we didn't do that. We picked two of
those and one from each of the other two videos that I've talked
about.

THE COURT: I'm sorry, I'm still confused. You've got four charges.

MR. SAWYER: Right.

THE COURT: And how many video clips total that you intend to
show to the jury?

MR. SAWYER: If I show the video clips there are three that I would
draw, if I show the video clips or portions thereof it would be those
three that I would draw from. We're not asking or intending to play
any of the other titles on that disk, in fact, I've asked BPD
[Bellingham Police Department], I believe they have done so at this
point, to copy those three titles on to a separate disk so we can use
that for court presentation if necessary and not have to use a disk
that has all 32 videos on them because I don't want to have to

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introduce [into] evidence 32 videos when we've only charged from
3 of those. Does that make sense?[4]

THE COURT: I think so. And 3 clips will support 4 charges that
must mean that one clip is going for support 2 different charges; is
that correct?

MR. SAWYER: That's correct.

THE COURT: And the 3 clips that the, so the State has identified
the 3 clips it's going to use?

MR. SAWYER: Yes.

THE COURT: It just doesn't know yet whether it's going to present
them in their entirety or present portions of them or present still
images from them; is that right?

MR. SAWYER: Or perhaps just presenting descriptions of them by
other witnesses who have viewed them.

THE COURT: At this point Ijust want to be sure that discovery has
been complete and Defense counsel has been able to see not just
the three clips that the State has currently identified as the
evidence in support of the four charges, but also any other clips
that may be pertinent.

MR. SAWYER: And I've told Mr. Subin he can view whatever he
wants and, that we have. And --

THE COURT: So that would be all 32 clips on the one DVD and
what about other DVD's, are there other DVD's that the State may
be relying on.

MR. SUBIN: It sounds like there are.

MR. SAWYER: Again, as far as showing to the jury I do not intend
to show any other DVD's or any or videos on this particular DVD,
just the three that the charges stem from.

4The record indicates that, when the jury later viewed the videos, it viewed the videos
from the original disk that was seized from Phan's residence.

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No. 72935-7-1/7

THE COURT: Okay. But it sounds like if the Defendant were to
says [sic] for example that I didn't know that this DVD had this
particular clip on it and were to say that about the DVD that has the
32 videos which the State has identified three, if the Defendant
were to say that then the State wants to reserve its right to bring
into evidence, or at least to bring in testimony, regarding other DVD
clips found at the Defendant's residence that contain that same clip
that he has testified he didn't know he had; is that right?

MR. SAWYER: Same or similar, yes, I think that just makes sense.

THE COURT: Okay. I do too and I think the State certainly should
be permitted to do that. My goal here is to avoid surprise as much
as possible. And we're kind of off on another subject now, this isn't
just regarding the motion to sever. Ijust want to be sure that the
Defense has the opportunity to see any video that may be at issue
because it sounds like whether it's in this trial or another trial there
will be some factual dispute about the content of those videos.
So Ijust want to be sure that I know what the Defense has
seen and it sounds like the Defense has seen or had an opportunity
to see all 32 clips on the DVD the State has identified as its primary
DVD.

MR. SAWYER: They have had that opportunity.

THE COURT: And you agreed you have had that opportunity, Mr.
Subin?

MR. SUBIN: I mean, I guess. Maybe the detective can clarify that
the DVD we were looking at is the one that we're talking about
here. I don't even know that. I don't think it complies with discovery
for them to say we've got hundreds of disks, we've got computers
and thumb drives, all this stuff, go to [the] police department and
have at it and review it all. It's overwhelming.
It's, frankly, not possible for me to go in there and watch
every piece ofevidence that they took from his house and Idon't
think that complies with the discovery rules. Ithink I have a right to
know what they are going to show the jury and I think it has been
now clarified, now in the second day of trial it has been clarified
now to where if it's limited to a disk that I did view with the
detective, you know, Ithink I have been provided fair access to that
disk and I accept Mr. Sawyer saying he can't narrow it down any
better than that.

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No. 72935-7-1/8

So I guess from a discovery standpoint, you know, at this
point there is not much that can be done about that to further clarify
what evidence is actually going to be presented at the trial.

That same day, the court considered Phan's motion for

reconsideration of its ruling denying severance of the 11 sex offense

counts from the 4 possession of child pornography counts. The trial court

adhered to its prior ruling.5

At trial, the jury heard from 20 witnesses. The State called sexual assault

case specialist Joan Gaasland-Smith, employed by the Whatcom County

Prosecuting Attorney's Office, as an expert witness. Gaasland-Smith testified

that she holds "two bachelor's degrees and a master[']s degree in social work"

and that, at the time of trial, she was a licensed independent clinical social

worker. In addition, she stated that she had previously been a therapist in private

practice where she counseled child and adult sexual assault victims, and that she
had previously taught courses in child abuse and neglect at a local university.
Gaasland-Smith explained that in her current role at the prosecutor's office she

had reviewed "more than 3,000" sexual assault cases. Based on her education

and experience, the court concluded that she was qualified to testify as an

expert.

Once qualified, Gaasland-Smith offered testimony regarding general
sexual abuse tendencies in children, relying on statistics and literature from an

expert in the field. Phan's counsel interposed several objections to Gaasland-

5 Phan renewed his motion to sever once again during trial and the trial court again
adhered to its ruling.

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No. 72935-7-1/9

Smith's testimony. He argued that Gaasland-Smith was not an expert, that her

testimony amounted to generalities, and that it was irrelevant and highly
prejudicial. In response, the trial court asked the prosecutor "to focus [his]
questions on children's reactions." The trial court then instructed the jury both
that "any remark [that] the witness has made about perpetrators you should know
that that [sic] is in, that's background information, it's not about Mr. Phan, who is
not a perpetrator, has not been established to be a perpetrator in this case or any
case, that is the presumption of innocence still applies" and that it must
"understand [Gaasland-Smith's] testimony, please, as being general background
information on the issues of disclosure rather than any facts about this particular

case."

The State also called Detective Wagner, who testified about the child

pornography that was seized from Phan's home. She testified that one disk on
which child pornography was found was seized from a downstairs guest bedroom
and that she had "viewed each, [ ] viewed every, all 32 files on that disk." When
asked to describe the titles of the files that appeared on the disk, Detective
Wagner opined, "I would describe them as very sexually explicit in the nature of
listing various sexual acts and/or various ages of individuals anywhere from
minors to specific ages of 13, 14, 15 to adult."
Detective Wagner then listed the titles and described the content of each
of the three videos on the disk upon which the charged offenses were based.
The first video was entitled "R@ygold style R3T3 many girls from 12 YO to 14
YO having sex experiences." Detective Wagner explained that this video
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No. 72935-7-1/10

depicted "[generally two young females undressing sitting on a daybed and then

progressing to what appears to be a male hand playing with their genitals." The

second video was entitled, "15 YO gets raped, hymen visibly penetrated kiddy

little girl young kiddyporn realkiddy child sex b.mpg." Detective Wagner

explained that upon viewing this video she "immediately noted a child that

appears in stature to be approximately under the age of four being vaginally

penetrated by a male penis."6 The third video was entitled, "PJK 12 YO boy

fucks 12 YO girl kiddie pedo Lolita R@ygold underage.mpg." Detective Wagner

explained that in this video she "observed two, a male and a female by stature

and demeanor and development appear to be under the age of 18 involved in

sexual intercourse." These videos were later viewed by the jury.

The jury also heard testimony from each ofthe alleged victims. On cross-
examination of A.P., the trial court permitted Phan to inquire into whether A.P.

had testified that she had never had sex with her boyfriend but restricted any

inquiry into further details of this alleged sexual relationship.7 A.D. testified that
she was born on January 19, 2004, detailed Phan's act of molestation, and

stated that the last time that she spent the night at Phan's house was "at the age

[of] eight or nine."

6At trial, Detective Wagner agreed that the approximate 4 year old appearance of the
child in the video was inconsistent with the title of the video, which indicated that the child was 15
years old.
7The trial judge granted a motion in limine to limit testimony about A.P.'s sexual history
pursuant to the rape shield statute, RCW 9A.44.020. However, the trial judge permitted inquiry at
trial as to whether A.P. had a boyfriend and any asserted conflict within her family overthat fact.

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No. 72935-7-1/11

The jury found Phan guilty of all counts. The jury also found that both
aggravating factors had been proved. The court sentenced Phan to an
indeterminate term of imprisonment, ranging from a minimum of 480 months of

confinement to a maximum of life. He now appeals.

II

Phan first contends that the trial court erred by denying his motion to

sever. We disagree.

Under CrR 4.3's "liberal" joinder rule, the trial court has considerable

discretion to join two or more offenses of "the same or similar character, even if
[they are] not part of a single scheme or plan." CrR 4.3(a)(1); State v.
Eastabrook, 58 Wn. App. 805, 811, 795 P.2d 151 (1990). Nevertheless, offenses
properly joined under CrR 4.3(a) may be severed "if 'the [trial] court determines
that severance will promote a fair determination of the defendant's guilt or
innocence of each offense.'" State v. Bvthrow, 114 Wn.2d 713, 717, 790 P.2d
154 (1990) (quoting CrR 4.4(b)). Adefendant seeking severance has the burden
of demonstrating that "a trial involving both counts would be so manifestly
prejudicial as to outweigh the concern for judicial economy." Bythrow, 114
Wn.2d at 718. Prejudice may result from joinder where the defendant is
embarrassed or confounded by the presentation ofseparate defenses, or if a
single trial invites the jury to cumulate the evidence to find guilt or infer criminal
disposition. State v. Russell. 125 Wn.2d 24, 62-63, 882 P.2d 747 (1994).
In determining whether the potential for prejudice requires severance, a
trial court must consider four factors that may "offset or neutralize the prejudicial
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No. 72935-7-1/12

effect of joinder": (1) the strength of the State's evidence on each count, (2) the

clarity of defenses as to each count, (3) the court's instructions to the jury to

consider each count separately, and (4) the potential cross-admissibility of

evidence on the other charges even if they were tried separately. Russell, 125

Wn.2d at 63; State v. Sanders, 66 Wn. App. 878, 885, 833 P.2d 452 (1992).

"[A]ny residual prejudice must be weighed against the need for judicial economy."
Russell, 125 Wn.2d at 63. We review a trial court's denial of a CrR 4.4(b) motion

to sever counts for a manifest abuse of discretion. Bvthrow. 114 Wn.2d at 717;

State v. Bryant, 89 Wn. App. 857, 864, 950 P.2d 1004 (1998).

In denying Phan's motion to sever the 11 sex offense counts from the 4
possession of child pornography counts, the trial court concluded that the counts
could not be easily separated "given the role that the pornography played in this
case in the grooming process." The court elaborated by stating that, "the victim
in this case [A.P.] alleges that watching pornography together was something
that she was required to do and that it often led to sexual encounters or [that]
sexual encounters followed the watching of the pornography." Ultimately-

relying on the doctrine of res gestae8—the trial court ruled:
Ithink it would be very difficult to present the fact[ual] background
into either the pornography charges or the abuse charges to a jury
in a way that did not refer to the other charges in a potentially
prejudicial manner and that's simply because of the facts in the
8Testimony may be admissible as res gestae evidence "'if it is so connected in time,
place, circumstances, or means employed that proof of such other misconduct is necessary for a
complete description of the crime charged, or constitutes proof of the history of the crime
charged '" State v. Schaffer. 63 Wn. App. 761, 769, 822 P.2d 292 (1991) (quoting 5 Karl B.
Tegland, Washington Practice: Evidence § 115, at 398 (3d ed.1989)), affd, 120 Wn.2d 616,
845 P2d 281 (1993) Res gestae evidence is admissible "in order that a complete picture be
depicted for the jury." State v. Tharp. 96 Wn.2d 591, 594, 637 P.2d 961 (1981).

12
No. 72935-7-1/13

case and how that, how the events occurred. So I'm not prepared
to sever the cases at this point and so this case will go forward with
all counts included.

On reconsideration, the trial court reiterated its reliance on the doctrine of

res gestae:

I'm going to deny the motion for severance. It's a difficult
decision, I think it's close, but given the fact that the viewing of
some pornography, including perhaps child pornography, I don't
know, with [the] victim [A.P.] was a part of [the] grooming process.
I continue to believe that the pornography charges are part of the
res gestae or part of the big picture that covers all of the offenses in
the case so I'm going to deny the motion to reconsider on that
basis.

Phan relies on State v. Sutherbv, 165 Wn.2d 870, 204 P.3d 916

(2009), in contending that the trial court erred and for the proposition that
evidence of child pornography is so inherently inflammatory that—in

virtually all cases—all possession of child pornography counts must
always be severed from any and all other charges. But Sutherbv does not
compel the resolution that Phan urges.

Indeed, the situation in Sutherbv was much different. First, in

Sutherbv, there was no evidentiary or testimonial connection between the

child rape and molestation charges, on the one hand, and the child
pornography charges, on the other. Nevertheless, in that case, "the State
consistently argued that the presence of child pornography on Sutherby's
computers proved he sexually abused his granddaughter, stating it 'shows
his motive; why he touched L.K.'" Sutherbv, 165 Wn.2d at 885. Thus, the

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No. 72935-7-1/14

State argued, "[w]e know he is predisposed to touching children in a

sexual manner." Sutherbv, 165 Wn.2d at 886.

Second, Sutherby's jurywas given "no limiting instruction directing

the jury that the evidence of one crime could not be used to decide guilt

for a separate crime." Sutherbv, 165 Wn.2d at 886.

Third, the prosecution contended that the child pornography

evidence was "admissible to show the absence of mistake or accident."

Sutherbv, 165 Wn.2d at 886. The Supreme Court disagreed, reasoning

that, "[a]s offered here, the evidence would merely show Sutherby's
predisposition toward molesting children." Sutherbv, 165 Wn.2d at 886.
Thus, the court concluded, "it is highly likely that evidence ofSutherby's
possession of the child pornography would have been excluded in a
separate trial for child rape and molestation." Sutherbv, 165 Wn.2d at
886.

As will be discussed below, none of these deficiencies are present

herein. First, a connection between the sex abuse counts and
pornography (both child and adult) was setforth in the testimony. Indeed,
testimony was abundant that Phan repeatedly required A.P. to view both
types of pornography (including photos of herself) in the course of carrying
out his sexual attacks on her. Second, Phan's jury was properly instructed

on the need to separate the evidence on the various counts and to decide
each count separately. Finally, as to the sexual abuse counts, the State
did not treat the child pornography evidence as establishing a propensity
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No. 72935-7-1/15

or as material to mistake or accident. Instead, the evidence was deemed

admissible as part of the res gestae of Phan's various crimes against A.P.

This case is not at all like Sutherbv.

Indeed, the record shows that the trial court correctly applied the

four-part test for severance. On the first factor, the strength of the State's
evidence, the State's case was strong on all counts. "When one case is
remarkably stronger than the other, severance is proper." State v.
MacDonald, 122 Wn. App. 804, 815, 95 P.3d 1248 (2004). Phan claims
that because he essentially had no defense to the child pornography
charges, severance was required. But that is not so. Here, the personal
testimony of the three alleged victims, 16, 10, and 9 years of age at the
time of trial, was presented. Also presented was testimony that during the
search of Phan's house, his little black bag, as described by A.P.,

containing sex toys and lubricant was located. A.P.'s mother testified that
she was not sexually active with Phan (eliminating her as Phan's possible
partner in need of the lubricant or for whom the sex toys were intended).
Medical testimony, supporting A.P.'s testimony concerning sexual abuse,
was presented. Donald Jones, the family friend, also testified to Phan's
unusual behavior with his daughters - including instances of atypical
hugging, kissing, and biting. In sum, the evidence on all counts was
strong.

As to the second factor, clarity of defenses, Phan argues that he offered
differing defenses to the two groups of charges, specifying that while he denied
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No. 72935-7-1/16

engaging in sexual contact with any of the alleged victims of the sex abuse
charges his defense to the possession of child pornography charges was either
that A.P. had planted the pornography in Phan's house or no defense at all.
Severance may be proper when a defendant is "'embarrassed or confounded in
presenting separate defenses.'" Russell, 125 Wn.2d at 62-63; Bvthrow, 114
Wn.2d at 718 (internal quotation marks omitted) (quoting State v. Smith, 74
Wn.2d 744, 755, 446 P.2d 571 (1968)). Here, Phan was not "embarrassed or
confounded" in presenting a defense. In fact, his defense—general denial—was
the same as to all charges. His defenses were not inconsistent. They were just

weak.

Regarding the third factor, the trial court's instructions to the jury, the jury
was properly instructed that "[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." Appellate courts have repeatedly found this
instruction sufficient to mitigate prejudice resulting from joinder. See, e^,
Bvthrow, 114 Wn.2d at 723; State v. Cotten. 75 Wn. App. 669, 688, 879 P.2d 971

(1994).9
Regarding the last factor, the cross-admissibility of evidence, the trial court
ruled that use of pornography—both child and adult—was part of the res gestae
of Phan's sexual attacks on A.P. Indeed, A.P. testified that she was often

9Phan contends that, where child pornography is involved, this instruction is always
ineffective and we should eliminate this aspect ofthe analysis. As this analysis is mandated by
our Supreme Court, we decline to do so.

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No. 72935-7-1/17

subjected to watching pornography prior to being subjected to sexual contact by

Phan. The trial court did not err in making its res gestae ruling.

Phan also makes a related claim. At trial, only three videos of child

pornography were played for the jury (as discussed at the pretrial hearing). In

particular, images showing A.P.'s bare genital area—of which there was

considerable testimony—were not shown (so as not to further victimize A.P.).

Thus, Phan contends, the precise images shown to the jurywere not established

by testimony to be among the precise images show by Phan to A.P. during the
course of his sexual assaults upon her. Thus, the argument goes, they fail the

cross-admissibility test and were unfairly prejudicial.

This argument misses the main point: on the sex offense counts, any

prejudice to Phan arose from the jury's knowledge of his possession of
pornographic images featuring children. A.P. testified to this. Whether the exact
images shown to the jury were or were not the precise images that A.P. had seen
as part of being repeatedly abused over the years did not alter the "sting" of the
child pornography charges. To prevail on his argument, Phan must be able to
point to specific prejudice. Bvthrow, 114 Wn.2d at 720. Here, the prejudice to
Phan is the same whether the images were of A.P.'s vagina or sexual activity

with a different but similarly aged person.10 If the prejudice was not unfair
prejudice where the images were of A.P. orwhere A.P.'s testimony would have
tied them directly to her abuse, then similar images (introduced instead) did not

10 In fact, A.P. testified thatshe was subjected to images ofsexual behavior involving
adults, children, and animals at various times through the years.

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No. 72935-7-1/18

constitute specific, unfair prejudice simply because the image itself was not tied

to the commission of another charged offense. The "sting" of the child

pornography images remained the same. The fairness or unfairness of

displaying them to the jury was unaffected by the decision to parse out images

depicting the victims of the offenses at issue herein or by not requiring A.P. to

specifically identify images to which she was subjected as a prelude to her

sexual abuse.

The trial court did not err by denying Phan's motion to sever.

Ill

Phan next contends that the trial court erred by denying his motion for a

Franks hearing. This is so, he asserts, because the affiant, Detective Wagner,

recklessly or deliberately misled the issuing magistrate at the time that she
obtained the second search warrant by failing to inform the issuing magistrate

that it had been two years since A.P. had seen some of the pornography. The

record indicates otherwise.

The issuance of a search warrant is a "highly discretionary" act. State v.

Chenoweth, 160 Wn.2d 454, 477, 158 P.3d 595 (2007). It is grounded in a

commonsense reading of the affidavit accompanying the request and any

reasonable inferences that can be drawn therefrom. Chenoweth, 160 Wn.2d at

477.

We begin with the presumption that the affidavit supporting a
search warrant is valid. Franks v. Delaware, 438 U.S. 154, 171, 98
S. Ct. 2674, 57 L. Ed. 2d 667 (1978)]. Under Franks, in limited
circumstances, a criminal defendant is entitled to challenge the
truthfulness of factual statements made in an affidavit supporting a

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No. 72935-7-1/19

search warrant during a special evidentiary hearing. ]d. at 155-56.
As a threshold matter, the defendant must first make a "substantial
preliminary showing that a false statement knowingly and
intentionally, or with reckless disregard for the truth, was included
by the affiant in the warrant affidavit, and ifthe allegedly false
statement is necessary to the finding of probable cause." Id.

. . . Assertions of mere negligence or innocent mistake are
insufficient. ]d. [at 171.] Rather, the defendant must allege
deliberate falsehood or reckless disregard for the truth, id.

Importantly, the Franks test for material representations has
been extended to material omissions of fact, [State v.1 Cord, 103
Wn.2d [361,] at 367[, 693 P.2d 81 (1985)]. In examining whether an
omission rises to the level of a misrepresentation, the proper inquiry
is not whether the information tended to negate probable cause or
was potentially relevant, but whether the challenged information
was necessary to the finding of probable cause. State v. Garrison,
118 Wn.2d 870, 874, 827 P.2d 1388 (1992).

State v. Atchlev. 142 Wn. App. 147, 157-58, 173 P.3d 323 (2007) (emphasis

added).

Prior to hearing argument on Phan's motion, the trial judge set forth her

opinion after having read the initial briefing:
My first take based on the briefs and the arguments of both
counsel are, my first take is that as a factual matter I am not sure
that the information presented to the magistrate in connection with
the warrant application was, in fact, inaccurate Iagree, in fact, I
circled some of the key language that the victim said that she had
seen extensive types of pornography and she said that it had been
almost two years since she had seen some of that pornography.
And Iagree that's different from the situation we would be dealing
with if she had said it has been two years since I've seen any
pornography.

. . . And while I agree that it's unclear, her statement that she
had not seen some of that pornography in two years is unclear, but
because she didn't say that she had not seen any of that
pornography for two years Iwould read her statement as saying it's
been two years since she has seen some ofthe pornography but
not all of the pornography or she would have said all of the

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No. 72935-7-1/20

pornography. So I'm inclined to find that as a factual matter there
was not a material misrepresentation of facts to the magistrate at
least as I see the facts now.

After hearing the argument of counsel, the trial judge reiterated

that, "I'm not persuaded that the information given to the magistrate was,

in fact, inaccurate," and ruled that, "the Court does not see the necessity

for a Franks hearing so the motion is simply denied."11

The trial judge's ruling was sound. The record herein indicates that

Detective Wagner's affidavit relied, in part, on information obtained from two

separate conversations with A.P. On appeal, other than stating that Detective
Wagner deliberately or recklessly misled the magistrate—and cherry-picking from
the information that Detective Wagner had obtained in her conversations with

A.P.—Phan does not point to any evidence corroborating his assertion. In fact,
based on the trial judge's explanation of her ruling, it is evident that she
concluded that itwas not Detective Wagner's presentation of the information that

was misleading but, rather, A.P.'s statement to Detective Wagner (that she had
not seen some of the pornography in two years) that was "unclear." Ultimately,
the trial judge believed that "because [A.P.] didn't say that she had not seen any
of that pornography for two years Iwould read her statement as saying it's been
two years since she has seen some of the pornography but not all of the
pornography or she would have said all of the pornography." The trial judge

11 The record indicates that the trial judge who ruled on Phan's request for a Franks
hearing was also the judge who had originally signed the search warrant at issue.

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No. 72935-7-1/21

properly concluded that Detective Wagner did not deliberately or recklessly
mislead the magistrate in obtaining the search warrant.

IV

Phan next contends that the trial court erred by issuing the second search

warrant for his residence. This is so, he asserts, because the search warrant

was grounded on information that was stale and, thus, insufficient to establish
probable cause. The record indicates otherwise.
"Probable cause exists where there are facts and circumstances sufficient

to establish a reasonable inference that the defendant is involved in criminal

activity and that evidence of the criminal activity can be found at the place to be
searched." Atchlev, 142 Wn. App. at 161.

Here, Phan avers that the second search warrant was grounded on stale
information. First, the record is devoid of any indication that A.P. told Detective
Wagner that the pornography had been discarded or destroyed. Second, even
though A.P. stated that she had not seen some of the pornography in two years,
A.P. also informed Detective Wagner that compact disks containing pornography
would likely be found within the home,12 that she had seen a picture of her bare
vagina on Phan's phone—at most—"within the last three weeks to a month"

12 The record indicates that the issuing magistrate was apprised ofthis fact at the time
that she issued the search warrant:

I knew that I had, I knew I had information that the victim had said to the
detective that there were CD's present in the home and that they had, that the
pornographic ones had X's on them So Ithink all in all there was current
information in the possession of the detective that there were likely pornographic
CD's in the home, itwas current information that the detective had.

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No. 72935-7-1/22

preceding the search warrant, and that "within the last week and a half

preceding the search warrant A.P. had seen still images of "juveniles, females,

very young looking females, naked on his phone and his ipod and his computer."
Given the recent nature of this information, the trial judge herein appropriately

concluded that there were facts and circumstances sufficient to establish that

evidence of criminal activity would be found in Phan's residence. The search

warrant affidavit was sufficient to establish probable cause.

V

Phan next contends that his right to an impartial jury, guaranteed by the

Sixth Amendment to the United States Constitution, was denied him. This is so,

he claims, because the trial court denied his challenge for-cause to juror 14.
However, Phan later exercised a peremptory challenge against the juror, who
was removed from the jury. In such a circumstance, Phan does not set forth a
basis for appellate relief. United States v. Martinez-Salazar. 528 U.S. 304, 311,
120 S. Ct. 774, 145 L. Ed. 2d 792 (2000); State v. Fire, 145 Wn.2d 152, 163, 34

P.3d 1218(2001).

VI

Phan next contends that the trial court denied him his Sixth Amendment

right to confront the witnesses against him by restricting his cross-examination of
A.P. We disagree.

It is well established that a trial court that limits cross-
examination through evidentiary rulings as the examination unfolds
does not violate a defendant's Sixth Amendment rights unless its
restrictions on examination "effectively . . . emasculate the right of
cross-examination itself." Smith v. Illinois, 390 U.S. 129, 131, 88 S.

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No. 72935-7-1/23

Ct. 748, 19 L. Ed. 2d 956 (1968). Generally speaking, the
confrontation clause guarantees an opportunity for effective cross-
examination, not cross-examination that is effective in whatever
way, and to whatever extent, the defense might wish. Delaware v.
Fensterer, 474 U.S. 15, 20, 106 S. Ct. 292, 88 L Ed. 2d 15 (1985).

State v. Turnipseed. 162 Wn. App. 60, 69, 255 P.3d 843 (2011) (first alteration in

original).

Herein, Phan was not prevented from attacking A.P.'s testimony and

credibility on cross-examination. He was simply prohibited from inquiring into a
collateral specific instance of prior conduct by A.P.—the details of an alleged
sexual relationship that she had with her boyfriend. The trial court's ruling in this
regard, which was entirely consistent with ER 608,13 did not "emasculate the right
of cross-examination." Thus, Phan's claim fails.

VII

Phan next contends that the trial court erred by allowing an employee of

the Whatcom County Prosecutor's Office to testify as an expert witness on child
sex abuse. This is so, he asserts, because the employee, Joan Gaasland-Smith,

was not qualified as an expert to discuss the subjects of how sex abusers and
sexual abuse victims usually behave. Further, he asserts that her testimony was

irrelevant and prejudicial. We disagree with both contentions.

13 ER 608(b) provides:

Specific Instances of Conduct. Specific instances ofthe conduct ofa witness,
for the purpose ofattacking or supporting the witness' credibility, other than
conviction of crime as provided in rule 609, may not be proved by extrinsic
evidence. They may, however, in the discretion ofthe court, if probative of
truthfulness or untruthfulness, be inquired into on cross examination of the
witness (1) concerning the witness' character for truthfulness or untruthfulness,
or (2) concerning the character for truthfulness or untruthfulness ofanother
witness as to which character the witness being cross-examined has testified.

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No. 72935-7-1/24

A

Phan first asserts that Gaasland-Smith was not qualified to testify as an

expert. The record indicates otherwise.

The admission of expert testimony is governed by ER 702, which

provides: "[i]f scientific, technical, or other specialized knowledge will assist the

trier of fact to understand the evidence or to determine a fact in issue, a witness

qualified as an expert by knowledge, skill, experience, training, or education, may

testify thereto in the form of an opinion or otherwise."

Before testifying as an expert, the witness is subjectto the requirements of
ER 702. State v. Lord. 161 Wn.2d 276, 294 n.15, 165 P.3d 1251 (2007). Thus,

expert testimony is admissible under ER 702 where (1) the witness qualifies as
an expert and (2) the expert's testimony would be helpful to the trier of fact.
State v. Riker, 123 Wn.2d 351, 364, 869 P.2d 43 (1994).

"Practical experience is sufficient to qualify a witness as an expert." State
v. Ortiz. 119Wn.2d 294, 310, 831 P.2d 1060 (1992). However, "the expert

testimony of an otherwise qualified witness is not admissible if the issue at hand
lies outside the witness' area of expertise." State v. Farr-Lenzini. 93 Wn. App.

453, 461, 970 P.2d 313 (1999). The trial court's admission or rejection ofexpert
testimony is reviewed for an abuse of discretion. Ortiz, 119 Wn.2d at 310.
The record reveals that Gaasland-Smith testified as an expert pursuant to

ER 702. The trial judge herein based her finding that Gaasland-Smith was an
expert on Gaasland-Smith's education and experience, including that she held a
master's degree in social work, was a licensed independent clinical social
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No. 72935-7-1/25

worker, had counseled child and adult victims of sexual abuse, had taught

courses on the subject of sexual abuse and neglect at a local university, and had

evaluated more than 3,000 sexual assault cases in her role at the prosecutor's

office. The fact that Gaasland-Smith was an employee of the prosecutor's office

did not, by itself, render her unqualified to testify. State v. Flett. 40 Wn. App. 277,
285, 699 P.2d 774 (1985) ("once basic requisite qualifications are established,

any deficiencies in an expert's qualifications go to weight, ratherthan
admissibility of testimony"); accord State v. Weaville, 162 Wn. App. 801, 824-25,
256 P.3d 426 (2011).14 The trial court did not abuse its discretion by allowing
Gaasland-Smith to present expert testimony.

B

Phan next asserts that Gaasland-Smith's testimony was both irrelevant

and more prejudicial than probative. Again, the record indicates otherwise.
Evidence is relevant if it has "any tendency to make the existence of any

fact that is of consequence to the determination ofthe action more probable or
less probable than it would be without the evidence." ER 401. Relevant
evidence is generally admissible. ER 402. "The threshold to admit relevant
evidence is very low. Even minimally relevant evidence is admissible." State v.
Darden, 145 Wn.2d 612, 621, 41 P.3d 1189 (2002). Here, Gaasland-Smith's

testimony was intended to help the jury understand the general behavioral

14 The record indicates that Gaasland-Smith was questioned specifically about her
relationship to the prosecutor's office and her role within that office. Thus, thejury was
sufficiently apprised of the factors bearing on Gaasland-Smith's credibility and sufficiently
equipped with the information necessary to weigh her testimony accordingly.

-25-
No. 72935-7-1/26

tendencies and disclosure patterns that are exhibited by child victims of sexual

abuse. In this regard, her testimony was relevant to determining whether the

disclosures made by the three child victims in Phan's case were more or less

probable. See ER 401.

Moreover, the trial court correctly analyzed whether Gaasland-Smith's

testimony was substantially more prejudicial than probative. ER 403 states,
"[although 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." Atrial court's balancing of the
evidence's probative value against its prejudicial effect or potential to mislead is
entitled to great deference. State v. Luvene, 127 Wn.2d 690, 706-07, 903 P.2d
960 (1995). While, in this case, as the trial court recognized, there may have
been some potential for prejudice, the court believed that such potential was
outweighed by the evidence's probative value. Moreover, the trial court mitigated
any potential prejudice by admonishing the jury both that Phan "has not been
established to be a perpetrator in this case or any case, that is the presumption
of innocence still applies" and that it must consider Gaasland-Smith's testimony
for "background information on the issues of disclosure rather than any facts
about this particular case." The trial court did not abuse its discretion by
admitting Gaasland-Smith's challenged testimony.

26
No. 72935-7-1/27

VII

Phan next contends that insufficient evidence supports the jury's verdict

on count 9, child molestation in the first degree involving A.D. This is so, he

asserts, because no evidence was presented as to when that alleged incident

took place. We disagree.

The due process clauses ofthe federal and state constitutions require that
the State prove every element of a crime beyond a reasonable doubt. Apprendi
v. New Jersey. 530 U.S. 466, 476-77, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000);

U.S. Const, amend. XIV; Wash. Const, art. I, § 3. "[T]he critical inquiry on

review of the sufficiency of the evidence to support a criminal conviction must
be ... to determine whether the record evidence could reasonably support a

finding of guilt beyond a reasonable doubt." Jackson v. Virginia. 443 U.S. 307,
318, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). "[T]he relevant question is
whether, after viewing the evidence in the light most favorable to the prosecution,
any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt." Jackson. 443 U.S. at 319.
"A claim of insufficiency admits the truth ofthe State's evidence and all
inferences that reasonably can be drawn therefrom." State v. Salinas. 119
Wn.2d 192, 201, 829 P.2d 1068 (1992). "In determining the sufficiency of the
evidence, circumstantial evidence is not to be considered any less reliable than
direct evidence." State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980).
"Deference must be given to the trier of fact who resolves conflicting testimony
and evaluates the credibility ofwitnesses and persuasiveness of material
-27-
No. 72935-7-1/28

evidence." State v. Carver. 113 Wn.2d 591, 604, 781 P.2d 1308, 789 P.2d 306

(1989).

In Jury Instruction 31, the jurors were instructed:

To convict the defendant of the crime of child molestation in the first
degree, as charged in Count IX, each of the following elements of
the crime must be proved beyond a reasonable doubt:

(1) That between the 1st day of June 2008 and the 30th day of March 2013,
the defendant had sexual contact with [A.D.];

(2) That [A.D.] was less than twelve years old at the time ofthe sexual
contact and was not married to the defendant;

(3) That [A.D.] was at leastthirty-six months younger than the defendant;
and

(4) That this act occurred in the State of Washington.
If you find from the evidence that each of these elements has been
proved beyond a reasonable doubt, then it will be your duty to
return a verdict of guilty.

On the other hand, if, after weighing all the evidence, you have a
reasonable doubt as to any one of these elements, then it will be
your duty to return a verdict of not guilty.
Here, A.D. testified that her date of birth is January 19, 2004 and that the
last time that she spent the night at Phan's house was "at the age [of] eight or
nine." Given this information, it was reasonable for the jury to inferthat Phan

committed an act of molestation against A.D. in the latter part of the date range in
element one—given that she was 9 years old in 2013—and that her date of birth
established both that she was younger than 12 years old and that she was at
least 36 months younger than Phan at the time that the offense was committed.

28-
No. 72935-7-1/29

Viewed in the light most favorable to the State, this evidence is sufficient to

support the jury's verdict of guilty on count 9.

Affirmed.

A )t^My|j
We concur: ^

29