State Of Washington, Resp-cross App V. Nathan King, App-cross Respondent

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
Respondent,
v.
NATHAN MARTIN KING,
Respondent.
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No. 80523-1-I
DIVISION ONE
UNPUBLISHED OPINION
HAZELRIGG, J. — Following a jury trial on three counts of child molestation
in the second degree as to three separate named victims, Nathan M. King was
acquitted on one count and convicted on two. Prior to trial, King moved
unsuccessfully to sever each count. The “to convict” instructions that were
provided to the jury at the close of trial included the birth dates of each named
victim. King argues the trial court erred in denying his motion to sever, that the
inclusion of the birthdates in the jury instructions was an improper comment on the
evidence by the court, and that a number of the community custody conditions
imposed at sentencing are vague and ambiguous such that modifications are
necessary. We find that the inclusion of the complaining witnesses’ birthdates in
the jury instructions is an error of a constitutional magnitude requiring reversal.
Because our holding on that issue is dispositive, we do not reach King’s other
assignments of error.

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FACTS
Nathan King was charged with three counts of child molestation in the
second degree. The first count was based on alleged sexual contact with King’s
step-sister, A.H. The second and third counts related to alleged sexual contact
with two of A.H.’s friends, H.B. and K.S. King brought a pretrial motion to sever
each count, which was denied. The case proceeded to a jury trial on all three
counts and each of the youths individually testified as to their birthdate. King’s
defense was primarily denial and he argued that the girls were not credible due to
inconsistencies in their accounts and the lack of physical evidence.
At the close of argument, the judge instructed the jury on the applicable law.
Each of the three “to convict” instructions included the birthdate of the named
victim for the corresponding count. The jury acquitted King as to count one and
found him guilty as to counts two and three. The court imposed a standard range
sentence of 33 months on each count, to be served concurrently. The court also
imposed community custody for a term of 36 months and included conditions
requiring him to “[pay] . . . the costs of crime-related and medical treatment required
by” the named victims in counts two and three, “[s]tay out of areas where children’s
activities regularly occur” which specifically included “church services [and]
restaurants,” disclose his sex offender status prior to any sexual contact, and which
prohibited sexual contact in a relationship “until the treatment provider/Community
Corrections Officer approves of such.” King now appeals.

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ANALYSIS
King first argues that the trial judge improperly commented on the evidence
and violated article IV, section 16 of the Washington State Constitution when he
instructed the jury regarding the victims’ birthdates. We agree.
We review challenges to jury instructions de novo. State v. Jackman, 156
Wn.2d 736, 742, 132 P.3d 136 (2006). Jury instructions are proper when the
instructions allow the parties to argue their theories of the case, do not mislead the
jury, and accurately convey the law. State v. Barnes, 153 Wn.2d 378, 382, 103
P.3d 1219 (2005). “Judges shall not charge juries with respect to matters of fact,
nor comment thereon, but shall declare the law.” WASH CONST. art. IV, §16.
“Through this provision, ‘the framers of the constitution could not have more
explicitly stated their determination to prevent the judge from influencing the
judgment of the jury on what the testimony proved or failed to prove.’” State v.
Zimmerman, 130 Wn. App. 170, 174, 121 P.3d 1216 (2005) (quoting Bardwell v.
Zieglar, 3 Wn. 34, 42, 28 P. 360 (1891)). “The touchstone of error in a trial court’s
comment on the evidence is whether the feeling of the trial court as to the truth
value of the testimony of a witness has been communicated to the jury.” State v.
Lane, 125 Wn.2d 825, 838, 889 P.2d 929 (1995). “In addition, a court cannot
instruct the jury that matters of fact have been established as a matter of law.”
State v. Becker, 132 Wn.2d 54, 64, 935 P.2d 1321 (1997).
A judicial comment in a jury instruction is an error of constitutional
magnitude and may be raised for the first time on appeal. State v. Levy, 156 Wn.2d
709, 719–20, 132 P.3d 1076 (2006). If a judicial comment on the evidence is

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determined to have occurred, we presume prejudice and the burden is then on the
State to rebut that presumption, unless the record shows that no prejudice could
have occurred. Jackman, 156 Wn.2d at 743
Our analysis in this case is guided by Jackman wherein our supreme court
declared inclusion of the victims’ birthdates in the “to convict” instructions, where
the victim’s age is an essential element of the charged crime, is a violation of article
IV, section 16 of the Washington State Constitution. Id. at 744. In Jackman, the
defendant was charged with “three counts of sexual exploitation of a minor, three
counts of communication with a minor for immoral purposes, four counts of
furnishing liquor to a minor, one count of patronizing a juvenile prostitute, and one
count of intercepting, recording, or divulging private communication.” Id. at 740.
The four victims in the case testified as to their birthdates and the State presented
corroborating evidence as to their respective ages. Id. In the “to convict”
instruction, each victim was identified by their initials and birthdate. Id. at 740–41.
Jackman did not object to the instruction and was convicted as charged. Id. On
direct appeal, our court reversed and remanded on all but one count. Id. at 741.
The State then petitioned for review to the Supreme Court as to the issue of the
jury instructions. Id. at 742. The Supreme Court reinforced that including the
victim’s birthdates amounted to judicial comment on the evidence and held that
such comment allowed the jury to “infer the victim’s birth dates had been proved
by the State.” Id. at 744. Despite the boys’ testimony, the corroborating evidence
of their age, and the fact that Jackman had not challenged the fact of their minority,
the Jackman court went on to conclude that the inclusion of the birthdates was

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prejudicial. Id. at 744–45. The determination of prejudice was based on the
circumstance that the jury is tasked with determining the facts of a case and the
victims’ ages were essential elements of the charged crimes; it was improper to
remove facts that went to a critical element from the jury’s consideration. Id. at
745.
As to the two counts for which King was found guilty, the “to convict”
instructions, in relevant part, read as follows:
To convict the defendant of the crime of Child Molestation in
the Second Degree as charged in Count 2, each of the following
elements of the crime must be proved beyond a reasonable doubt:
1) That on a specific date between on or about the 1st day of
June, 2013, through on or about the 8th day of August, 2014, the
defendant had sexual contact with H.B. (DOB: 3/17/2001);
2) That H.B. was at least twelve years old but less than
fourteen years old at the time of the sexual contact and was not
married to the defendant;
3) That H.B. was at least thirty-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.
. . .
To convict the defendant of the crime of Child Molestation in
the Second Degree as charged in Count 3, each of the following
elements of the crime must be proved beyond a reasonable doubt:
1) That on a specific date between on or about the 23rd day
of September, 2013, through on or about the 8th day of August,
2014, the defendant had sexual contact with K.S. (DOB: 9/22/2001);
2) That K.S. was at least twelve years old but less than
fourteen years old at the time of the sexual contact and was not
married to the defendant;
3) That K.S. was at least thirty-six months younger than the
defendant; and
4) That this act occurred in the State of Washington.

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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.1
This case is analogous to Jackman and we see no reason to depart from the
Supreme Court’s analysis. As in Jackman, the “to convict” instructions included
the victim’s birthdates. The charges for which King was tried required the jury to
find facts relating to the ages of the complaining witnesses in order to determine
whether the State had satisfied its burden of proof as to an essential element of
each charge. Further, as in Jackman, it cannot be said that this error was not
prejudicial. The inclusion of the birthdates in the “to convict” instructions presents
information about those critical facts as though they have been resolved as a
matter of law. The State has not provided any compelling authority to rebut the
presumption of prejudice. As in Jackman, “[w]e conclude that because the jury
instructions state the victims’ birth dates and removed those facts from the jury’s
consideration, the record does not affirmatively show that no prejudice could have
resulted.” Id. As such, we follow the binding precedent set out by our supreme
court and reverse.
Because our holding as to instructional error is dispositive, we need not
reach King’s challenge to the constitutionality of his community custody conditions
or his assignment error on the trial court’s denial of his motion to sever. King is
free to move to sever the remaining two counts on retrial. Because he was
1 The “to convict” instruction for count one mirrored the language in these two instructions
and provided A.H.’s birth date. As King was acquitted on count one, we need not review it here.

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acquitted of one of the counts at issue in his original several motions and jeopardy
has attached, the trial court will necessarily engage in the severance test based
on a different record than that which is presented to us on appeal.
Reversed and remanded.
WE CONCUR: