Another Division I case upholding a ‘noncorroboration’ jury instruction. This may be a trend, as a published opinion, State v Zwald, came out one week before Helkenn, and appeared to be inviting a stronger constitutional due process challenge, while ultimately affirming the use of the instruction in Mr. Zwald’s appeal. (See my discussions of State of Zwald in my most recent blog article.)
William Helkenn was convicted of two counts of child molestation, with aggravating factors of an “ongoing pattern of abuse” and using a “position of trust” to facilitate commission of sexual assaults against a daughter he gained custody of after the mother went into chemical dependency treatment. The victim moved from Helkenn’s residence on her 18th birthday. Her roommate discovered a diary entry about Helkenn touching her. Eventually, the victim went to the police.
Helkenn objected to the following instruction at trial:
In order to convict a person of the crimes of child molestation in the first degree or child molestation in the third degree, as defined in these instructions, it is not necessary that the testimony of the alleged victim be corroborated.
As did Mr. Zwald, Helkenn objected to this instruction as an ‘improper judicial comment on the evidence’. Many of the same legal authorities Division 1 utilized in Zwald were relied upon in upholding this jury instruction. Mr. Helkenn was convicted as charged, including both aggravating factors; he was sentenced to 180 months in prison.
The Helkenn appeals court recognized “a jury instruction can be a comment on the evidence if it demonstrates that the court has a particular attitude toward the merits of the case, citing State v Hermann, 138 Wn. App. 596, 606 (2007). As in Zwald, the court then trotted out boilerplate authority that “it is well established that a jury instruction that simply and accurately sets out the law on a particular matter is not an improper judicial comment on the evidence,” quoting from cases in 2001, 2015, 2017, 2018, and 2020!
What the court deemed “critical” in denying Helkenn’s challenge was “the noncorroboration jury instruction reflects the applicable statute [RCW 9A. 44. 020 (1)] nearly verbatim.” Therefore, the appeals court reasoned, the trial judge was not expressing an opinion about the evidence in the case.
Mr. Helkenn, like Zwald, raised a due process constitutionally argument on appeal. The court did not discuss the constitutionality argument in much detail, except to indicate “due process is primarily concerned that the jury understands the state’s burden of proof” and “we evaluate a challenged jury instruction in the context of the instructions as a whole.” Since standard instructions informed the jury in Mr. Helkenn’s case that the “state is the plaintiff and has the burden of proving each element of each crime beyond a reasonable doubt”, the Helkenn court concluded due process was “satisfied.”
As in Zwald, decided by Division 1 a week earlier, Helkenn did not argue there was a manifest constitutional error, such as by arguing the instruction highlights a victim’s testimony over other witnesses, including the defendant, thereby suggesting the victim’s testimony is subject to a different test for credibility. Like Mr. Zwald, Mr. Helkenn appears not to have objected on those grounds at trial, nor did Mr. Helkan object that such an instruction violates due process because it actually tells the jury that it may not acquit based on the absence of evidence.
In my last child molest trial (March 2024) the state did not offer the noncorroboration instruction against my client. Disclosed in a footnote in Zwald, the Washinton Supreme Court Committee on Jury Instructions recommends against using this instruction.
Division 1 may be telegraphing that if the noncorroboration instruction is utilized over legal objections concerning manifest constitutional error, the issue of inclusion of this instruction may be ripe for reexamination on appeal.