IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 84083-5-I
Respondent, DIVISION ONE
v. PUBLISHED OPINION
JUSTIN GOGO,
Appellant.
FELDMAN, J. — A jury convicted Justin Gogo of three counts of child rape.
Gogo raises several challenges on appeal regarding the denial of his motion for a
mistrial, the denial of his motion to excuse a juror for cause, prosecutorial
misconduct, double jeopardy, and the terms of his judgment and sentence. We
agree with Gogo that the trial court abused its discretion in denying his motion for
a mistrial after a witness testified, in violation of a pretrial order excluding and
suppressing any statement or disclosure that Gogo had sexually assaulted the
victim’s sister, that Gogo “had been fooling around with those kids.” We therefore
reverse the trial court’s ruling denying his motion for a mistrial and remand the
matter for a new trial without reaching Gogo’s other assignments of error.
I
Shannon Smith (Shannon) is the mother of two children, J.H. (born in
2006) and T.H. (born in 2005). Shannon started dating Gogo in June 2010. Six No. 84083-5-I/2
months later, Shannon and her two children moved into an apartment complex
across the street from her stepfather, Rollie Miller. Gogo lived with Shannon and
her children on and off during their relationship, and he often watched and cared
for the children when Shannon was at work or school. After Shannon and Gogo
separated in 2013, Shannon and her children moved in with her mother, Penny
Smith (Penny). 1
On March 12, 2015, J.H. told Shannon at Penny’s house that Gogo had
“touched” J.H. with “[h]is mouth.” Shannon informed Penny of J.H.’s disclosure.
On March 13, 2015, Shannon told Miller what J.H. said about Gogo. Miller called
the police, and the responding officer instructed Shannon to fill out a statement
form. Shannon and Miller then informally questioned J.H. about the event.
Two weeks later, J.H. sat for a formal child forensic interview. J.H. told the
interviewer that when J.H. was five years old, Gogo told J.H. to come into the
bedroom and get on the bed. J.H. said that they then removed their pants and
engaged in oral sex with each other at Gogo’s direction, which J.H. described
and demonstrated, and that Gogo told J.H. not to tell anyone. J.H. also told the
interviewer that “the same thing” happened on as many as five separate
occasions, including once when T.H. was also in the room. The State then
charged Gogo with three counts of first degree child rape against J.H. and a
fourth count of first degree child molestation against T.H.
Prior to trial, the count involving T.H. was severed from the counts against
J.H. The trial court also granted Gogo’s pretrial motion to exclude and suppress
1 Because this matter involves both Shannon and Penny Smith, we refer to them by their first
names to avoid confusion.
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any statement or disclosure that Gogo had sexually assaulted T.H. 2 The trial
ended in a mistrial after the jury deadlocked. The trial court’s pretrial rulings were
then applied in a second trial. Similar to the first trial, the State’s evidence
consisted primarily of testimony from J.H., Shannon, Miller, and Penny. The
State also played for the jury the video of J.H.’s forensic interview and elicited
expert testimony from another child forensic interviewer. Gogo testified and
denied the allegations. Gogo also presented expert testimony from a
psychologist regarding the formation and reliability of children’s memories.
A key difference between the two trials is that in the second trial, unlike
the first, Penny improperly referred to Gogo’s alleged sexual abuse of T.H.
During Penny’s testimony on the fifth day of trial, she initially had difficulty
hearing the prosecutor’s questions and seemed confused when attempting to
answer those questions. To remedy this difficulty, Penny was given an assistive
listening device. Shortly thereafter, the prosecutor questioned Penny about the
night she first learned of J.H.’s initial disclosure of alleged sexual abuse by Gogo:
Q: At some point that evening did Shannon come into your room?
A: Yes.
Q: And what happened?
A: She was very upset.
Q: Did she tell you anything?
A: She said that [J.H.] had disclosed something that was going
on with Shannon’s boyfriend.
2 More precisely, the trial court granted Gogo’s pretrial motions “to exclude disclosure by the
alleged victim, T.H., to her mother, her sister ([J.H.]) and a child interview specialist” and “to suppress statements of [J.H.] and all other witnesses expressing any opinion that Mr. Gogo has sexually assaulted his son and others.”
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Q: Do you remember exactly what Shannon told you?
A: That he had been fooling around with those kids and that she
was just discombobulated.
(Emphasis added.) The italicized reference to “those kids,” as noted previously,
was a clear violation of the trial court’s pretrial order excluding and suppressing
any statement or disclosure that Gogo had sexually assaulted T.H.
Unfortunately, defense counsel did not immediately object to this improper
testimony, and the prosecutor continued asking questions of Penny. Then, after
five additional questions, defense counsel objected to both Penny’s answer to
the fifth question and Penny’s earlier reference to Gogo “fooling around with
those kids” as follows: “Objection, speculation and hearsay. I also have an
objection that should be made outside the presence of the jury.” The court
sustained the objection to the later answer and asked defense counsel “does that
address your concerns,” to which defense counsel responded, “It addresses one
of them. There is still another motion I need to be heard on outside the presence
of the jury.” Rather than allow defense counsel to be heard outside the presence
of the jury, the court instead allowed the State to finish its direct examination of
Penny and then asked defense counsel if she intended to conduct cross
examination, to which defense counsel replied, “I may, but I first have a motion.”
Without explanation, the court then told Penny that her “testimony is done” and
asked the State to call its next witness, T.H., without hearing defense counsel’s
motion. After T.H.’s testimony, the court excused the jury for lunch.
Once the jury was excused, defense counsel moved for a mistrial and
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No. 84083-5-I/5
explained that Penny’s testimony that Gogo “had been fooling around with those
kids” violated the trial court’s pretrial order excluding and suppressing any
statement or disclosure that Gogo had sexually assaulted T.H. The trial court
heard argument on Gogo’s motion after the lunch break. The court did not rule
promptly. Instead, it took the matter under advisement until the end of evidence
presentation the following day, when it told the parties it would deny the motion—
which it did the following morning.
In denying Gogo’s mistrial motion, the trial court recognized that Penny’s
testimony “was a critical and serious irregularity in violation of the pretrial ruling,”
but concluded that it could be cured. Believing that a specific instruction to
disregard the improper testimony would instead emphasize it, the court initially
told the parties it would strike Penny’s testimony entirely and have her retestify
from the beginning subject to cross examination. The prosecutor and defense
counsel disagreed with the trial court’s proposed cure; both expressed concern
that Penny would not be able to abide by the court’s rulings if recalled as a
witness. To avoid recalling Penny as a witness, the parties reached an
agreement to stipulate to the facts that would have been elicited by Penny’s
testimony, which they presented to the trial court as the “least dangerous path.”
The trial court accepted the parties’ proposed cure. As a result, at the
conclusion of the State’s case in chief—two days after Penny’s improper
testimony that Gogo “had been fooling around with those kids”—the trial court
instructed the jury as follows:
The testimony of the grandmother, Penny Smith, will be stricken
from the record because in part it was appreciably and unfairly
defective and hindered by her inability to clearly hear the
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No. 84083-5-I/6
Prosecutor’s questions. In its place a stipulation or agreement
between the parties shall be entered regarding the testimony of
Penny Smith. I’m going to read you that stipulation that will replace
[the] testimony of Penny Smith.
The court then read to the jury the parties’ stipulation of the facts that “would
have been elicited from Penny,” which omitted Penny’s earlier reference to Gogo
“fooling around with those kids.”3
This time, the jury convicted Gogo on all counts. Gogo timely appeals.
II
The singular issue presented here is whether Penny’s testimony that
Gogo “had been fooling around with those kids,” when viewed against the
backdrop of all the evidence, so prejudiced the jury that Gogo was denied his
right to a fair trial. See State v. Weber, 99 Wn.2d 158, 164-65, 659 P.2d 1102
(1983). We review a trial court’s decision to grant or deny a mistrial for abuse of
discretion. State v. Young, 129 Wn. App. 468, 473, 119 P.3d 870 (2005). A court
abuses its discretion in denying a motion for mistrial where “there is a ‘substantial
likelihood’ the prejudice affected the jury’s verdict.” Id. at 472-73 (quoting State v.
Greiff, 141 Wn.2d 910, 921, 10 P.3d 390 (2000)). In determining whether a trial
irregularity may have influenced the jury, we consider the three Weber factors,
namely “(1) the seriousness of the irregularity, (2) whether the statement in
question was cumulative of other evidence properly admitted, and (3) whether
the irregularity could be cured by an instruction to disregard the remark, an
3 While the trial court did not expressly instruct the jury to “disregard” the improper testimony, and
instead indicated that the testimony “will be stricken,” it instructed the jury before trial, “You will disregard any evidence either not admitted or which is ordered stricken by me,” and its final instructions to the jury likewise stated, “If evidence was not admitted or was stricken from the record, then you are not to consider it in reaching your verdict.”
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instruction which a jury is presumed to follow.” State v. Escalona, 49 Wn. App.
251, 254-55, 742 P.2d 190 (1987) (citing Weber, 99 Wn.2d at 165-66).
The State largely concedes the first two Weber factors, and for good
reason. Penny’s improper testimony was a serious irregularity because it
indicated that Gogo had also sexually abused T.H. under similar circumstances.
See State v. Babcock, 145 Wn. App. 157, 163-64, 185 P.3d 1213 (2008)
(“serious irregularity” for jury to hear testimony in child rape trial that defendant
had also molested the victim’s sibling); see also Escalona, 49 Wn. App. at 255
(“extremely serious” irregularity for jury to hear testimony in trial for assault with a
deadly weapon that the defendant “already has a record and had stabbed
someone”). 4 The trial court, too, acknowledged that Penny’s testimony was a
“serious irregularity in violation of the pretrial ruling.” Furthermore, Penny’s
improper testimony “becomes particularly serious” given the paucity of evidence
that would corroborate J.H.’s testimony, such as physical evidence, other
eyewitness testimony of the alleged criminal acts, or a confession. Escalona, 49
Wn. App. at 255. 5 The improper testimony also was not cumulative of other
evidence properly admitted because the trial court’s pretrial ruling prevented the
jury from hearing other evidence of T.H.’s disclosure regarding Gogo.
Accordingly, the first two Weber factors support Gogo’s argument that the trial
4 The closest the State comes to disputing the serious nature of Penny’s improper testimony is its
argument that Penny did not explicitly refer to T.H. But in the context of Penny’s entire testimony, in which she repeatedly referred to J.H. and T.H. as “the kids,” and Shannon’s earlier testimony about Gogo performing oral sex on J.H., it is clear that “fooling around with those kids” meant Gogo sexually abusing T.H. in addition to J.H.
5 See also State v. Gower, 179 Wn.2d 851, 858, 321 P.3d 1178 (2014) (“highly prejudicial
evidence of prior sex offenses . . . impermissibly bolstered the alleged victim’s credibility” where credibility was the “main issue in this case”).
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No. 84083-5-I/8
court abused its discretion in denying his motion for mistrial.
The more difficult question here is whether the trial court’s instruction to
the jury that Penny’s testimony “will be stricken from the record” cured the
prejudice from the improper testimony. While we presume that juries follow a trial
court’s instructions, we also acknowledge that “[s]ome curative instructions are
insufficient in removing the prejudicial effect of evidence.” State v. Christian, 18
Wn. App. 2d 185, 199, 489 P.3d 657 (2021). “‘[I]n certain situations curative
instructions cannot remove the prejudicial effect of evidence of other crimes.’”
State v. Garcia, 177 Wn. App. 769, 783-84, 313 P.3d 422 (2013) (quoting State
v. Hopson, 113 Wn.2d 273, 284, 778 P.2d 1014 (1989)). Washington courts often
refer to this sort of incurable testimony as an “evidentiary harpoon,” because an
instruction to the jury to disregard the improper testimony only serves to
emphasize it and thereby increase its prejudicial effect. See Babcock, 145 Wn.
App. at 165-66 (citing State v. Suleski, 67 Wn.2d 45, 51, 406 P.2d 613 (1965)).
Conversely, “for less serious irregularities a proper instruction may provide an
effective cure.” Garcia, 177 Wn. App. at 784.
Because of the timing and nature of the trial court’s attempted cure in this
case, we do not have a firm conviction that the curative instruction sufficiently
eliminated the prejudice from the improper testimony. With regard to the timing of
the attempted cure, our Supreme Court has recognized that the “potential for
prejudice is exacerbated” where a jury is “allowed to go home and consider”
improper testimony overnight without first being instructed to disregard it. State v.
Davenport, 100 Wn.2d 757, 764, 675 P.2d 1213 (1984). The trial court here did
not immediately sustain a contemporaneous objection, strike the improper
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No. 84083-5-I/9
testimony, and instruct the jury to disregard it. Instead, the court waited over two
days—during which time four witnesses testified, including both the alleged
victim of the charged offenses and the alleged victim of Gogo’s other sexually
abusive conduct—to finally instruct the jury that Penny’s testimony would be
stricken. It is reasonable to assume that during this multi-day delay, the improper
testimony would have made such an indelible impression on the jury that no
instruction to disregard it could mitigate its prejudicial effect.
Turning to the nature of the attempted cure, an instruction is not curative
where it “fail[s] to inform the jury that the . . . comment was improper and not to
be considered.” Id.; see also Young, 129 Wn. App. at 477 (“an instruction that
fails to expressly direct the jury to disregard evidence, particularly where . . . the
instruction does not directly address the specific evidence at issue, cannot
logically be said to remove the prejudicial impression created by revelation of
identical other acts”). The trial court here never told the jury that Penny’s
testimony that Gogo “had been fooling around with those kids” was improper and
therefore inadmissible. Instead, it told the jury that Penny’s testimony was
“hindered by her inability to clearly hear the Prosecutor’s questions.” While the
trial transcript shows that Penny initially had difficulty hearing the prosecutor’s
questions, it clearly shows that she was able to hear, understand, and correctly
respond to every question asked of her once she began using the assistive
listening device. That is equally true with regard to the central question and
answer at issue here:
Q: Do you remember exactly what Shannon told you?
A: That he had been fooling around with those kids and that she
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No. 84083-5-I/10
was just discombobulated.
Although trial courts have “wide discretion to cure trial irregularities,” State v.
Post, 118 Wn.2d 596, 620, 826 P.2d 172 (1992), we cannot sanction an
instruction to disregard evidence based on a reason that an objective observer
would know is false—particularly where, as here, the instruction is delayed and
the improper testimony is highly prejudicial.
Indeed, Washington courts have long recognized that the potential
prejudice from admitting evidence of prior bad acts is “at its highest” in cases
alleging sex crimes. State v. Saltarelli, 98 Wn.2d 358, 363, 655 P.2d 697 (1982).
As the court explained in Saltarelli, “Once the accused has been characterized
as a person of abnormal bent, driven by biological inclination, it seems relatively
easy to arrive at the conclusion that he must be guilty, he could not help but be
otherwise.” Id. (quoting Slough and Knightly, Other Vices, Other Crimes, 41 Iowa
L. Rev. 325, 333-34 (1956)). Once the jury heard that Gogo had also engaged in
the same type of sexual abuse against T.H., it would have been “extremely
difficult” for the jury to “ignore this seemingly relevant fact” and not use it for “its
most improper purpose,” namely to conclude that Gogo acted towards J.H. in
conformity with the sexually abusive character he demonstrated towards T.H.
See Escalona, 49 Wn. App. at 256.
In an attempt to sidestep the above analysis, the State argues that
defense counsel contributed to the delay in attempting to cure the prejudice from
the improper testimony by rejecting the trial court’s proposed cure and agreeing
to read the stipulated testimony towards the end of trial. While we agree that
defense counsel could have—and should have—raised their objection and
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No. 84083-5-I/11
mistrial motion earlier and more forcefully, the record shows that the delay in
instructing the jury that the improper testimony would be stricken was caused by
the trial court’s decision to wait two days to formally deny Gogo’s motion and
discuss curative options with the parties. Additionally, as in Young, defense
counsel “moved for a mistrial as soon as the jury was excused,” which also was
delayed by the trial court’s mishandling of defense counsel’s protestations. 129
Wn. App. at 475-76. And rather than promptly sustain any one of defense
counsel’s repeated objections to Penny’s improper testimony, the trial court
inexplicably told Penny that her “testimony is done” and excused her without
allowing Gogo to cross examine her. For these reasons, we reject the State’s
assertion that defense counsel is responsible for the trial court’s delay in seeking
to cure the improper testimony.
Lastly, the State analogizes the trial court’s curative efforts to those in
State v. Gamble, 168 Wn.2d 161, 225 P.3d 973 (2010), where a witness testified
in a murder trial that the defendant had a “booking file” and that an accomplice
sat on the defendant’s lap at the police station. Id. at 176. Gamble is easily
distinguished because unlike the jury in that trial, which was immediately
instructed to disregard the improper testimony, the jury in Gogo’s trial was left to
consider Penny’s improper testimony for multiple days before finally being told to
disregard it based on a reason that an objective observer would know is false.
Further, Gogo’s case is lacking the corroborative evidence of guilt that was
present in Gamble, where the State countered the defendant’s self-defense claim
using multiple eyewitnesses, ballistics analysis, the defendant’s bloody clothes
found alongside the murder weapon, and the defendant’s own incriminating
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No. 84083-5-I/12
statements. Id. at 179-80. Here, Penny’s improper testimony impermissibly
bolstered J.H.’s credibility in a close case that hinged on witness credibility. See
Gower, 179 Wn.2d at 858. Thus, Gamble does not require affirmance here. 6
Additionally, a major difference between Gogo’s second trial, which
resulted in a conviction, and his first trial, which ended in a deadlocked jury, was
Penny’s improper testimony that Gogo “had been fooling around with those kids.”
Under established precedent, “[t]his is persuasive evidence that the introduction
of the [improper testimony] may have impacted the outcome.” In re Det. of Post,
170 Wn.2d 302, 315, 241 P.3d 1234 (2010). For this reason too, we do not have
a firm conviction that the curative instruction eliminated the prejudice from the
improper testimony. Given the similarity of the prior bad acts (sexual abuse of
T.H.) and the charges against Gogo (sexual abuse of J.H.), the trial court’s
curative instruction needed to be both immediate and forthright. It was neither.
Consequently, there is a substantial likelihood that the prejudice from Penny’s
improper testimony affected the jury’s verdict and, thus, denied Gogo a fair trial.
The trial court therefore abused its discretion in denying Gogo’s motion for a
mistrial.
6 The State’s reliance on State v. Jones, 26 Wn. App. 551, 614 P.2d 190 (1980), is similarly
misplaced. The court there affirmed the denial of a mistrial motion where a witness testified during a murder trial that the defendant was under investigation for “another homicide.” Id. at 556. Jones is inapposite because it is unclear whether and to what extent the trial court in that case instructed the jury to disregard the statement. Moreover, the State in Jones presented other corroborative evidence of guilt, such as the defendant’s palm print found at the murder scene, which is absent in Gogo’s case. Id. at 552.
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III
In sum, we reverse the trial court’s ruling denying Gogo’s motion for a
mistrial and remand for a new trial without reaching Gogo’s other assignments of
error.
WE CONCUR:
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