Prosecutor May Not Ask if Complainants Were Consistent

State of Washington v. Randall J. Stevens (2005)

A child molestation conviction in Washington has been reversed for three errors at trial, including admitting evidence that the two complainants’ statements to police were consistent with each other. The case is State of Washington v. Randall J. Stevens, 127 Wn. App. 269, 110 P.3d 1179, 2005 Westlaw 957763 (2005).

Stevens fell into conversation near a shopping complex with two girls, aged 12 and 13. He told the girls he was drunk, and the older one, at least, believed he was. Stevens left the girls but encountered them again a short while later at a ferry terminal. At the younger girl’s suggestion, he posed for a photo with her. The photo shows his hand on her breast, while she smiles.

Stevens was convicted of one count of second-degree child molestation for this hand-on-breast contact. (He was acquitted of molesting the older girl by touching her bottom.)

At trial, a police officer testified that he interviewed the girls separately, and that their statements to him were consistent with each other. This was error, the court of appeals ruled. It is well-established that a prosecutor may not ask one witness whether another is telling the truth. From that the court reasoned like this:

The prosecutor’s question of whether the victims gave consistent statements was not a direct question on whether the girls were telling the truth. But the question was relevant only on the issue of their truthfulness. Lack of consistency would suggest that the victims were either lying or at least mistaken. Consistency would suggest that the victims were truthful and accurate. Because the consistency question bears only on the victims’ truthfulness and reliability, it is simply an indirect way of asking the officer if the girls were telling the truth. As such, the question was improper.

The court of appeals also faulted the trial court for refusing to instruct the jury on the possible significance of Stevens’ intoxication. To be guilty of child molestation, Stevens had to have touched the breast for sexual gratification. Stevens testified that he had touched it accidentally. The trial court should have instructed the jury that it could take Stevens’ intoxication into account in determining whether he touched the breast accidentally, or “for some purpose other than sexual gratification.”

The trial court also erred in refusing to permit the jury to consider whether Stevens had committed only fourth-degree assault, which is defined as an unconsented touching that was harmful or offensive. The trial court should have considered that the jury might reject the possibility of accidental touching, yet doubt that Stevens had touched the breast for sexual gratification. In that case, the appropriate crime would have been fourth-degree assault, not child molestation.

The case was remanded for a new trial.