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State v. Phelps1/11/2005
S. Don Phelps appeals his jury convictions for two counts of third degree child molestation. He argues that the trial court (1) should have granted his motion for a new trial based on jury misconduct; and (2) erred in excluding evidence of the victim's prior bad conduct that might have cast doubt on the victim's truthfulness. In his Statement of Additional Grounds (SAG), Phelps also argues (1) prosecutorial misconduct; (2) improper jury deliberation; (3) juror bias; (4) insufficient evidence to support his conviction; and (5) improper exclusion of the victim's psychiatric records. Finding no abuse of trial court discretion, we affirm.
FACTS
I. Child Molestation
15-year-old J.M. went home with his friends, Jesse and Jimmy, who lived in a house with Don Phelps. Phelps was asleep in bed when the three young men arrived. Phelps's mother was visiting and using the other upstairs bedroom, so Phelps tried to keep the young men quiet in his room. Jimmy and J.M. fell asleep in their clothes on top of Phelps's bed. Phelps slept under the covers.
According to J.M., while sleeping next to Phelps the first night, he woke up with Phelps's hand on his penis; Phelps then moved J.M.'s hand onto Phelps's penis; J.M. rolled over, fastened his pants, and fell back to sleep. When J.M. woke in the morning, Phelps was again fondling his penis.
The next day, Phelps told J.M. that he was a criminal defense and personal injury attorney. Phelps explained that a personal injury attorney would help someone, such as a victim of sexual molestation, collect money damages from the offender, using the example of Mary Letourneau, a teacher accused of molesting a student. J.M. said that he could probably get a teacher to touch him inappropriately. Phelps thought J.M. was joking. J.M. slept that night in the chair in Phelps's bedroom, while Jesse slept on the bed with Phelps. J.M. returned home the next day.
Two weeks later, J.M. called the police to report that Phelps had molested him. The State charged Phelps with two counts of child molestation.
II. Trial
A. Motions in Limine
Before trial, the State moved to exclude evidence that J.M. had stolen from his grandfather and threatened to make allegations of neglect against his parents if they involved the police in an effort to get J.M. to come home. Phelps argued that these incidents were admissible under ER 608(b) as evidence of J.M.'s lack of truthfulness.
The trial court excluded the evidence, ruling that the incidents reflected 'family dynamics' and were 'totally unrelated in any probative way to the crimes charge{d}.' Report of Proceedings (RP) (Pretrial Motions) at 22.
B. Jury Voir Dire
The trial court gave the jury panel a questionnaire that asked, 'Have you, any member of your family, any relative or anyone you know been a victim of inappropriate sexual contact?' Clerk's Papers (CP) at 150. Two responded that they had experience with sexual abuse; the trial court excused them for cause after they said they could not be fair to the defendant.
Following private questioning, the trial court did not excuse those who said they could be fair regardless of any past inappropriate sexual experience. The court did excuse for cause those who could not or did not know whether they could be fair.
Neither juror number one nor juror number four answered 'yes' to the inappropriate sexual contact question on the questionnaire or revealed such information during voir dire.
C. Trial
J.M.'s molestation allegation was the only evidence the State presented against Phelps at trial. Ji
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