P. v. Wellen
Filed 7/18/13 P. v. Wellen CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE
DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and
Respondent,
v.
VICTOR JAMES WELLEN,
Defendant and
Appellant.
G045998
(Super. Ct.
No. 10CF0786)
O P I N I O
N
Appeal from a judgment
of the Superior Court
of
County, Richard F. Toohey, Judge. Affirmed.
Mark Yanis for Defendant
and Appellant.
Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L.
Garland, Assistant Attorney General, Lise Jacobson and Collette C. Cavalier,
Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Victor James
Wellen was convicted of five counts of lewd conduct with a child, one count of
and one count of kidnapping a child for the purpose of committing a lewd
act. He contends there is insufficient
evidence to support one of the kidnapping counts, and the trial court erred in
admitting sexually-oriented evidence
that was found on his computer. Finding
these contentions unmeritorious, we affirm the judgment.
FACTS
Appellant
worked at a small Christian school in Orange. In addition to teaching physical education,
he also had recess duty and supervised students during daycare before and after
school.
One
day after school, nine-year-old Kianna P. attended daycare along with her
sister Danielle and her friend Rachel.
They were playing a game in the school’s sanctuary, and appellant was
the only teacher looking after them.
After joining in the game briefly, appellant went over by the front of
the sanctuary. While he was standing
there, Kianna tried to sneak up on him.
However, appellant spotted and grabbed hold of her. Kianna tried to squirm away, but appellant
did not let her go. Instead, he picked
her up and carried her to the music room, which was about 30 feet away.
Inside
the music room, appellant put Kianna on a table. Then he went over and stood by the
doorway. Kianna got off the table and
walked over to the doorway, expecting appellant would let her leave. However, he told her she had to “do something
special†before she could go. At that
point, Kianna turned around and started walking in the opposite direction. While she was doing so, appellant came up to
her from behind and pulled down her shorts.
Kianna promptly pulled her shorts back up, and about 10 seconds later,
Danielle and Rachel entered the room. They
did not see what appellant had done to Kianna.
After
appellant left the room, Kianna told Rachel what had happened, and later that
day, Kianna told her mother about the incident.
In speaking with authorities, Kianna said this was not the first time
appellant had done something like that to her at the school. She described a previous occasion when
appellant had pulled down her shorts while they were playing a game of hide and
seek. Kianna had not told anyone about
that incident.
Appellant
used game playing as a pretext with his other victims as well. With six-year-old T. V. the “game†involved
appellant lifting up her skirt and exposing her underwear. And with second graders Ivy J. and Melody E.
appellant had them reach into his pants pocket to see if they could find
anything. Appellant also played a game
with Ivy in which he tried to guess the color of her underwear.
Another
one of appellant’s victims was Alyssa P.
One day at school, appellant asked her if her underwear matched the color
of her shirt. Another time, while they
were playing tag, he grabbed her underwear and gave her a “wedgie.†Then there was the time appellant led Alyssa
away from the playground and asked her if she wanted to be tickled. When she said okay, he asked her to take off
her pants, but she refused and he brought her back to the playground. Alyssa was between nine and eleven years old
when these incidents occurred.
Appellant
was convicted of committing lewd acts on Kianna, T. , Ivy, Melody and Alyssa. He was also convicted of kidnapping Kianna
and kidnapping Alyssa for the purpose of sexually molesting her. The trial court sentenced appellant to seven
years in prison.
I
Appellant
argues there is insufficient evidence to the support the jury’s finding he
kidnapped Kianna. We disagree.
The
standard of review for assessing the sufficiency of the evidence to support a
criminal conviction is “highly deferential.â€
(People v. Lochtefeld (2000)
77 Cal.App.4th 533, 538.) Our task is
not to retry the case but simply determine whether the record contains substantial
evidence to support the jury’s verdict.
(People v. Stuedemann (2007)
156 Cal.App.4th 1, 5.) We presume in
support of the judgment the existence of every fact the jury could reasonably
deduce from the evidence. (
1053.) And if the circumstances reasonably justify the jury’s findings, we will not
reverse merely because the circumstances may also reasonably be reconciled with
a contrary result. (People v. Albillar (2010) 51 Cal.4th 47, 60.)
In count
3, appellant was convicted of kidnapping Kianna while she was under the age of
14. (Pen. Code, §§ 207, subd. (a)
[kidnapping], 208, subd. (b) [prescribing sentence where person kidnapped is
under the age of 14].) Appellant does
not dispute Kianna was under 14 at the time in question. Rather, he claims the conviction must be
reversed because his movement of Kianna was not substantial. The evidence shows otherwise.
In order
to satisfy the asportation requirement of kidnapping, “the movement must be
‘substantial in character’ [citation] . . . .â€
(People v. Martinez, supra, 20
Cal.4th at p. 235.) Factors bearing on this requirement include the scope, nature
and distance of the movement, whether
the movement was incidental to the commission of another offense, and whether
the movement decreased the likelihood of detection, increased the danger inherent in a victim’s foreseeable attempts to
escape, or enhanced the defendant’s opportunity to commit additional
crimes. (
As for the
distance of the movement in this case, the record shows appellant carried Kianna only about 30
feet. But in cases where the movement
changes the victim’s environment, it does not have to be great to be substantial. (People
v. Shadden (2001) 93 Cal.App.4th 164, 169 [asportation element satisfied
where defendant dragged a store clerk nine feet from the front counter to a
back room of the store where she worked]; e.g., People v. Arias (2011) 193 Cal.App.4th 1428, 1435 [affirming
kidnapping conviction where victim was moved short distance from public area to
private area]; People v. Smith (1995)
33 Cal.App.4th 1586, 1594 [same]; see also People
v. Corcoran (2006) 143 Cal.App.4th 272, 280 [although distance is relevant
to whether movement is substantial, “measured distance is not alone
determinativeâ€].)
Appellant took Kianna from the school’s sanctuary,
where other children were present, and carried her to the school’s music room,
where they were alone. By moving Kianna
to this secluded area, appellant lessened the likelihood of detection and made
it harder for Kianna to escape. And
although they were only alone in the room for a few minutes, that was enough
time for appellant to commit a lewd act on Kianna. The entire episode didn’t last long, but by
taking Kianna out of the view of others to a secluded location appellant
clearly enhanced his ability to victimize her.
Appellant
argues the movement was not substantial because it was merely incidental to the
lewd act he committed on Kianna. But in
the same breath, he contends the lewd act was nothing more than a “spontaneous
afterthought.†If that was the case,
then he didn’t move Kianna for the purpose of victimizing her, and the movement
was not merely incidental to the lewd act he committed on her. Either way, the totality of the circumstances
amply supports the jury’s finding the movement was substantial in nature. Because the movement increased the risk of
harm to Kianna, we affirm appellant’s conviction for kidnapping in count 3.
II
Appellant
also contends the trial court erred in admitting sexually oriented evidence
obtained from his computer at the school.
He argues the evidence was irrelevant, prejudicial and violated his
evidence was properly admitted.
Appellant’s
computer was seized after he admitted to police that he had viewed pornography
in his office at school. When
investigators searched the computer, they found an assortment of photographs
depicting semi-nude females and seven short video clips involving nudity. At a pretrial hearing to determine the
admissibility of this evidence, the prosecutor noted some of the videos were
filmed in “a school-type setting.†And
defense counsel described one of the videos as depicting “young men and women
engaged in horseplay which includes surprised de-pantsing.â€
As for the
age of the people depicted in the materials, the court found some of the
females in the photos appeared to be older than 18 years of age, some you could
not tell their age, and some appeared to be younger than 18. The court also found many of the females
depicted in the videos were under the age of 18. On appeal, appellant does not dispute the
court’s findings in this regard.
The search
of appellant’s computer also revealed that many sexually orientated terms had
been typed into the computer’s search engine.
These terms included, “pantsd,†“pants down,†“pants and panties,†“pantsing,â€
“pantsing girl,†“girl pantsing,†“girl strip,†“undressing webcam,†“girl
caught undressing,†“girl caught in panties,†“truth or dare†and “pranks and
pants.†The prosecution argued the
search terms, the photos and the video clips were highly probative of
appellant’s fetish for female undergarments and his intent to commit the
charged offenses. However, the defense
maintained the evidence was irrelevant and unduly prejudicial under Evidence
Code section 352. In the end, the court
admitted the evidence on the basis it was more probative than prejudicial. The court believed that because the evidence
was not inflammatory, i.e., did not depict children engaged in explicit sexual
conduct, its admission would not prevent appellant from receiving a fair
trial.
Evidence
is relevant if it logically tends to prove a material issue in the case, such
identity, motive or intent. (Evid. Code,
§ 210; People v. Garceau (1993)
6 Cal.4th 140, 177.) Relevant evidence
may take the form of prior bad acts, but evidence of prior misconduct may not
be admitted to impugn the defendant’s character or show his propensity for
under Evidence Code section 352 if its probative value is substantially
outweighed by the probability its admission will create substantial danger of
undue prejudice, confusing the issues or misleading the jury. The trial court has broad discretion in
making this determination; its decision to admit certain evidence will not be
disturbed unless it constitutes a manifest abuse of discretion that resulted in
a miscarriage of justice. (
33.) Similarly, no due process violation
will be found unless the subject evidence rendered the trial fundamentally
unfair. (People v. Partida (2005) 37 Cal.4th 428, 439.)
Appellant’s
complaint with the computer evidence has to do with the age of the females
depicted therein. He does not dispute
the trial court’s findings that some of the females in the photos and videos
were under the age of 18, but he contends the material was irrelevant and
misleading because those females were older than the girls he allegedly
victimized.
Our
response is twofold. First, the age of
the females in the photos and videos was never affirmatively established at
trial. During closing arguments, defense
counsel asserted the females looked older than appellant’s victims. However, the prosecutor claimed some of the
females “look like they are probably in middle school, and in at least one of
the locker room scenes, there’s a girl that looks prepubescent.†Given these varying characterizations, we are
not inclined to presume the females were all in a different age category than
the girls appellant was accused of molesting. Even
if we were, the computer evidence was not intended to prove appellant was
attracted to young girls. Instead, it
was used to show he had a fetish for female undergarments and “pantsing.†As the prosecutor explained in closing
argument, it didn’t matter that the females in the photos and videos were “not
[all] five years old†or that appellant was not “exclusively into little
girls.†Rather, the broader implication
of the computer evidence was that it demonstrated appellant “likes to watch
pants coming off, that he likes to look at underwear, that he’s focused on that
specifically[.]â€
We
agree this was a relevant consideration since the charged offenses involved
appellant exposing, touching or talking about the victims’ underpants. The computer evidence helped established the
alleged acts were committed with the requisite sexual intent. And it helped bolster the victim’s
credibility about the allegations they leveled against appellant. The fact appellant appeared to have a
particular interest in female underpants was certainly relevant as to whether
their claims were true.
We note
that the prosecutor took considerable care to use the subject evidence in a
proper and circumspect manner. Instead
of using the computer evidence as a blunt weapon to disparage appellant and
malign his character, the prosecutor used it specifically for the purposes of
credibility and intent. And since, as
the trial court recognized, the evidence was not any more graphic or
inflammatory than the charged offenses, we are hard pressed to find an abuse of
discretion in its admission. All things
considered, we conclude the evidence was properly admitted and did not violate
appellant’s rights in any respect. (
864-865 [photos of naked young men and boys properly admitted in prosecution
for sexually motivated attack on seven-year-old boy].)
DISPOSITION
The
judgment is affirmed.
BEDSWORTH,
ACTING P. J.
WE CONCUR:
FYBEL, J.
IKOLA, J.
name="_ftn1" title=""> [1] In
challenging the sufficiency of the evidence as to count 3, appellant contends
the “applicable statutory provision†is Penal Code section 207, subdivision
(b), which criminalizes kidnapping for purposes of committing a lewd act on a
child. However, as noted above,
appellant was actually convicted in count 3 of kidnapping a child under the age
of 14. Although related, the two crimes
are not the same. (See
225.)
