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The People v. Barry Thomas Mickle

April 17, 2012

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
BARRY THOMAS MICKLE, DEFENDANT AND APPELLANT.



(Super. Ct. No. 08F7303)

The opinion of the court was delivered by: Mauro , J.

P. v. Mickle

CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Defendant Barry Thomas Mickle was convicted of two counts of lewd and lascivious acts with a child under the age of 14 years. He was sentenced to 10 years in prison.

Defendant contends on appeal that (1) the trial court erred in denying his motion to suppress sexually explicit images and web addresses found on a computer seized from his residence, and abused its discretion and violated his due process rights in admitting such evidence; (2) the trial court abused its discretion in admitting evidence of prior sexual acts with substantially older victims; and (3) the prosecutor committed prejudicial misconduct during his closing argument.

We conclude (1) any error in denying the motion to suppress or in admitting the evidence from defendant's computer was harmless beyond a reasonable doubt given the overwhelming evidence in the case; (2) the trial court did not abuse its discretion in finding that the prior acts were sufficiently similar, not too remote or inflammatory, and highly relevant, and thus that the probative value outweighed any prejudicial effect; and (3) defendant forfeited his claims of prosecutorial misconduct by failing to object to the prosecutor's remarks during trial and by failing to request a curative admonition, and defendant's trial counsel was not ineffective for failing to object.

We will affirm the judgment.

BACKGROUND

During 2007 and 2008, C.C. (minor) lived in Redding with his parents, B.C. (father) and S.C. (mother), and minor's sister. Minor was born in 2002 and turned six years old in January 2008. Defendant is minor's maternal grandfather. Defendant and his wife (grandmother) lived in Willits, California.

Defendant and grandmother were frequent visitors to minor's home in Redding. They visited during holidays and often attended the grandchildren's sporting events. Less frequently, approximately twice a year, minor's family traveled to defendant's home in Willits. Defendant and grandmother visited minor's home in November 2007, in late January 2008, and prior to Easter 2008. While at minor's home, defendant spent a lot of time doing activities with minor. They frequently watched movies and cartoons.

During the pre-Easter 2008 visit, while father, minor and defendant were together in minor's room, minor said, unsolicited, "'Daddy, papa told me [that] I could touch my dinky when he's not here.'" "Papa" was minor's word for defendant, and "dinky" was his word for penis. Defendant had no reaction to the statement. Neither did father, who assumed that minor misspoke or misunderstood what he heard.

About a month later, on April 23, 2008, father was home during the day with the children. Again unsolicited, minor said to father, "Papa said it was okay for me to touch my dinky when he's not here." Father's "heart drop[ped]," and he asked minor, "[w]ho touches your dinky when papa is here?" Minor responded, "Papa does." Later, father asked minor what he meant by "touching." Using his hand, minor made a "rubbing" motion in his genital area.

Father informed mother of minor's statements when she arrived home that afternoon. Mother spoke with minor separately from father, and minor confirmed his earlier statements. The next day mother contacted her parents and cancelled their scheduled visit to the minor's house.

On May 23, 2008, Redding Police Investigators Doug Carney and John Poletski interviewed minor. Minor confirmed that defendant had touched his "dinky," that the touchings sometimes were underneath minor's clothing, and that the touchings occurred in his bedroom or his parents' bedroom.

At trial in March 2010, minor's recollection was in many respects less certain than it had been in April and May 2008, when he had spoken to his parents and the investigators. At trial minor had difficulty remembering the frequency and timing of his visits with defendant and grandmother. He recalled that defendant had visited his house and that they had done fun things together such as watching movies in his bedroom. But minor did not remember talking with Detective Carney at the police interview room when minor was a kindergartener. Nor did minor recall telling his father what defendant said about minor touching his penis.

Nevertheless, although minor was nervous and embarrassed about testifying, he testified that defendant had touched him on his "privates" (the term he then used for his penis) and that the touching made him feel strange and weird. Minor could not remember whether defendant touched him once or more than once. Nor could he recall whether the touching occurred in his house, although he thought it did. Minor could not recall what part of defendant's body touched minor's body; whether the touch was firm, gentle, or in between; or whether the touch lasted more than a minute. A tape recording of minor's 2008 interview with Investigators Carney and Poletski was introduced in evidence as a prior inconsistent statement.

Redding Police Investigator Chris Rathbun did a forensic evaluation of two computer towers taken from defendant's house. One computer tower, which had indicia of belonging to defendant, contained information related to the insurance industry. The other computer tower, which had the log-in name "Barry Mickle," contained images of males close to or at the age of majority engaged in various sexual acts. Most of the males were unclothed and "having sex of some sort," including oral copulation or masturbation. The images were "thumbnail images" found in the "Internet history" portion of the computer, which indicated they had been viewed on the Web browser. It was not possible to determine which Web site supplied the images. Nor was it possible to determine whether any of the thumbnails had been "click[ed] on" to make them appear larger. No pornographic images had been saved to the computer, other than in the browser history file. The computer user viewed the images on September 9, 2008, approximately five months after minor's second disclosure. Samples of the images were submitted to the jury in People's Exhibits 2 and 3. Investigator Rathbun determined that the computer had visited four Web sites that suggested an interest in underage males: youngboys.com, allboysshare.com, dirtyboys.net, and lovingboys.com. Rathbun's analysis determined that the four sites had last been visited within a five-minute period on July 10, 2004. No content from any of the Web sites was submitted to the jury.

Grandmother's nephew M.G. (nephew) testified. At the time of trial, nephew's age was 32, but he recalled an incident that occurred at defendant's house when nephew was 10 or 11 years old. After nephew finished swimming, he went into the house to play video games. Defendant entered the room and sat behind nephew near the foot of the bed. Defendant put his hands on nephew's shoulders, told him to relax, and then slid his hands down to the front of nephew's swim trunks. Defendant then began moving his hands in a rubbing motion over the penis area of the suit. Nephew froze and didn't remember saying anything in response to the touching. Defendant or nephew got up and left the room. Thereafter, nephew and his parents continued their regular visits with defendant and grandmother. Nephew did not tell anyone about the incident until he was 19 years old.

In addition, J.B., a 42-year-old retired police officer, also testified. He had an encounter with defendant while he was growing up in Willits. When J.B. was 14 years old, he had a paper route and went to defendant's house to sell a subscription. During a conversation, J.B. noticed that defendant's dog recently gave birth and asked if he could see the puppies. Defendant showed J.B. the puppies but was ...


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