¶ 2 The trial court discharged the jury after polling its members on the verdict. Over a week after the court discharged the jury, Morales moved for a new trial. He based the motion on the difference between the jury verdict, on the one hand, and the jury instructions and the parties' final arguments, on the other. The court denied the motion and corrected the jury verdict to reflect the actual charge on which the jury was instructed: Child Molestation in the First Degree.
¶ 3 Because the trial judge discharged the jury and the jury members dispersed before discovery and correction of the error in the verdict, the court had no authority to make a material change to the jury verdict. Accordingly, the sentence based on the corrected verdict cannot stand. We reverse and remand with instructions.
¶ 4 In July 2014, the State charged Morales with two crimes, both of which involved G.C., his niece. Her date of birth is July 8, 2001.
¶ 5 Count 1 of the Amended Information charged Morales with Rape of a Child in the First Degree for a charging period between December 1, 2012 and April 30, 2013.
¶ 6 Before trial, the State moved in limine to exclude or limit certain expert testimony that Morales intended to introduce at trial. The evidence dealt with the expert's evaluation of a detective's interview of G.C., the complaining witness. The trial court ruled that the expert's testimony would be allowed, but prohibited the expert from testifying about the evaluation of this witness's credibility.
¶ 7 At trial, G.C. testified that Morales touched her and described where and how he did so. Other witnesses also testified at trial.
¶ 8 The parties proposed instructions to the court from which it decided which instructions it would give to the jury.
¶ 9 The trial court also gave its Instruction 12, which was for Rape of a Child in the First Degree.
¶ 10 The parties' made their closing arguments, in part, based on the Child Molestation in the First Degree charge and instruction. There was no reference at closing to Child Molestation in the Second Degree.
¶ 11 Nevertheless, Verdict Form B, the verdict form for Count 2, stated that the crime before the jury was "Child Molestation in the Second Degree."
¶ 12 The jury acquitted Morales of Rape of a Child in the First Degree.
¶ 13 The court received the jury's verdicts on November 24, 2014. The court then polled
¶ 14 On December 5, 2014, Morales moved for a new trial. He did so because the guilty jury verdict for Child Molestation in the First Degree was contrary to law and the evidence. He relied on the difference between the jury verdict, on the one hand, and the jury instructions and the parties' final arguments, on the other.
¶ 15 On December 23, 2014, the trial court denied the motion and corrected the verdict form to read "Child Molestation in the First Degree."
¶ 16 Morales appeals.
¶ 17 Morales argues that the trial court violated his right to jury trial by correcting the jury verdict form and entering judgment on that corrected verdict. We must agree.
¶ 18 We review for abuse of discretion a trial court's decision to deny a motion for a new trial.
¶ 19 "[U]nder both the Sixth Amendment to the United States Constitution and article I, sections 21 and 22 of the Washington Constitution, the jury trial right requires that a sentence be authorized by the jury's verdict."
¶ 20 The jury trial right may not be impaired by either legislative or judicial action.
¶ 22 The court held that under both the state and federal constitutions "the jury trial right requires that a sentence be authorized by the jury's verdict."
¶ 24 The State argues that Morales's reliance on
¶ 25 First, the fact that the supreme court did not discuss CrR 7.8 in
¶ 26 There, the jury verdict forms stated the "deadly weapon" enhancement, not the more serious "firearm" enhancement. Trial courts in some of the cases sentenced on the basis of the latter, not the former, enhancement. The court held that was error.
¶ 27 Here, the jury verdict stated Child Molestation in the Second Degree, not the more serious Child Molestation in the First Degree. The trial court sentenced on the basis of the more serious crime, not the one in the jury verdict.
¶ 28 The underlying principle is the same: the jury verdict only authorized a sentence based on that verdict. The court based the sentence on a crime not authorized by the jury verdict.
¶ 29 Second, we deal later in this opinion with the question whether CrR 7.8 is a proper remedy to correct an arguably erroneous jury verdict. That discussion deals more fully with the State's argument.
¶ 30 Given that there was an arguably erroneous jury verdict, we must decide whether the court had the authority to change it. Two supreme court cases provide guidance.
¶ 31 In
¶ 32 We read this to mean that a jury has the authority to correct its verdict until it is discharged. The jury may do so to "consider and clarify or correct mistakes appearing on the face of the verdict."
¶ 33 Once a jury is discharged, a court may correct an erroneous verdict only under limited circumstances. What limited circumstances qualify is explained by another supreme court case, cited in
¶ 34 In that case, the supreme court stated:
¶ 35 These rules have not changed over time. After discharging a jury, the trial court "may correct a verdict form only to conform to an actual jury finding if the verdict is `defective or erroneous in a mere matter of form, not affecting the merits or rights of the parties.'"
¶ 36 Based on these authorities, we conclude that the material change to the jury verdict in this case was not within the trial court's authority. The jury verdict stated that Morales was guilty of Child Molestation in the Second Degree. The court polled the jury and accepted its verdict. The court then discharged the jury and its members dispersed.
¶ 37 The trial court's authority was then strictly limited to correcting matters of form or clerical error. But the substantive change in the verdict in this case is outside the scope of permissible change under the case law.
¶ 38 Calling this change a "clerical error" correction does not conform with the case law. For example, it was, arguably, a clerical error when the trial court gave to the jury the incorrectly worded verdict form. The relevant molestation charge and instructions make clear that the court did not intend to give the jury a verdict form for Child Molestation in the Second Degree.
¶ 39 But we do not necessarily conclude that the jury's completion of the incorrectly worded verdict form is also "clerical error." Perhaps the most compelling narrative is that the jury simply overlooked the inconsistency between the wording in the verdict form, the instructions, and the parties' arguments. But we simply cannot know whether this is the case.
¶ 40 Moreover, even if we were entitled to speculate on the jury's thought processes during its deliberations, changing the verdict form adversely affected Morales's substantial rights. The change resulted in his sentencing for a more serious crime.
¶ 41 Most of the parties' briefing, below and on appeal, is directed to the use or misuse of CrR 7.8 as a remedy to correct the allegedly erroneous jury verdict. Morales argues that this rule is not a proper basis for the court to change the jury verdict. The State argues that it is. For the reasons that follow, we conclude that this court rule did not provide the trial court with authority to make the material change to the jury verdict in this case.
¶ 42 CrR 7.8(a) provides relief from a judgment due to "[c]lerical mistakes ... and errors therein arising from oversight or omission." The court may correct these errors "at any time of its own initiative or on the motion of any party and after such notice, if any, as the court orders."
¶ 43 Clerical errors are those that do not embody the trial court's intention as expressed in the trial record.
¶ 45 Here, the trial court denied Morales's motion for a new trial based on CrR 7.8. The essence of its ruling was that the jury was only instructed on Child Molestation in the First Degree, the only molestation crime charged. The court also concluded that the only crime on which the jury could have convicted was Child Molestation in the First Degree. Only this charge was consistent with the instructions, the evidence, and the closing arguments. Accordingly, the court corrected the jury verdict and entered its judgment and sentence on the corrected jury verdict.
¶ 46 Two divisions of this court have reached different conclusions whether CrR 7.8 may properly be used to correct a jury verdict.
¶ 47 In
¶ 48 After the jury entered its verdict against him, Imhoff noticed that the verdict form lacked the word "attempted."
¶ 49 He appealed and argued that the jury verdict convicting him of possession with intent violated his constitutional right to be informed of the charge against him and to be tried and convicted only for the offense charged.
¶ 50 In the analysis, this division focused on the jury instructions and the State's closing argument. The State's closing argument contained "attempt language."
¶ 51 In contrast, Division Two decided
¶ 52 There, the State charged Lorne Rooth with unlawful possession of a 9 mm handgun in Count I and unlawful possession of a .22 caliber handgun in Count II.
¶ 54 On appeal, Division Two concluded that these errors were judicial errors, not clerical errors.
¶ 55 Importantly, to support its argument, the State cited a federal case where the jurors submitted affidavits stating they had been confused about the count numbering.
¶ 56 Neither
¶ 57 Recognizing that we are faced with an arguably erroneous verdict, the question is whether the trial court had the authority to correct the jury verdict under the circumstances of this case. We must conclude that it did not.
¶ 58 The error was discovered after the court discharged the jury and its members dispersed. Long-standing case law makes clear that a court's authority to change a jury verdict is extremely limited after the jury is discharged. And such change does not extend to matters that either impeach a jury's verdict or adversely impact an accused.
¶ 59 For these reasons, we conclude that changing the jury verdict in this case was not authorized. Accordingly, the judgment and sentence on the changed verdict was not authorized. We must reverse the judgment and sentence based on the corrected verdict.
IN LIMINE RULING
¶ 60 Morales also argues that the trial court abused its discretion in limiting his expert's testimony, violating his right to present a defense. We hold that the court properly exercised its discretion by excluding a portion of this testimony.
¶ 61 Criminal defendants have a constitutional right to present a defense under the Sixth Amendment of the United States Constitution and article I, section 22 of Washington's constitution.
¶ 62 ER 702 governs admissibility of expert testimony. Expert testimony is admissible if the expert is qualified and relies on generally accepted theories in the scientific community.
¶ 63 We review for abuse of discretion a trial court's decision on expert witness testimony.
¶ 64 In
¶ 65 We agreed that the testimony was not helpful to the jury, stating, "[the medical expert] did not express the opinion that Thomas suffers from a mental disorder that impairs her ability to form the intent necessary to commit first degree assault."
¶ 66 Here, before trial, the State moved in limine to exclude or limit Dr. John Yuille's testimony. Dr. Yuille testified at the ER 702 hearing about his evaluation of the interview by a detective of G.C., the alleged victim. In his evaluation, he concluded that it was "not possible to assess the credibility of the child's allegation based upon such a poor quality interview. Credibility assessment requires the child's version of the event and [G.C.] was never given an opportunity to provide [G.C.'s] version."
¶ 68 In relevant part, the trial court stated:
¶ 69 During trial, Dr. Yuille testified about his method for assessing child interviews and his assessment of G.C.'s interview with a detective. Dr. Yuille concluded that the interview "was a poor-quality interview of a child" and stated his reasoning.
¶ 70 This record shows that Morales received a sufficient opportunity to present his defense. The trial court extensively considered the ER 702 factors and allowed a significant amount of testimony from Dr. Yuille. Thus, the trial court's decision was not "`manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons.'"
SUFFICIENCY OF EVIDENCE
¶ 71 Morales finally argues that insufficient evidence supports the guilty jury verdict for Child Molestation in the Second Degree. We hold that the evidence was sufficient to support the verdict of the jury.
¶ 72 In relevant part, RCW 9A.44.086(1) states that a person is guilty of second degree child molestation "when the person has, or knowingly causes ... sexual contact with another who is at least twelve years old," but less than 14 years old, and not married to the perpetrator. G.C.'s birth date is July 8, 2001, which means she was 11 years old during the charging period.
¶ 73 In
¶ 74 Here, Morales makes the same argument that the court rejected in
¶ 75 Judgment on that jury verdict is proper. We direct the trial court to enter judgment on that verdict following remand.
¶ 76 We reverse the judgment and sentence and remand with instructions to enter judgment on the jury verdict of guilty of second degree child molestation.