Opinion
No. 36552-9-II.
January 14, 2009.
Appeal from a judgment of the Superior Court for Pierce County, No. 06-8-01500-0, John A. McCarthy, J., entered June 5, 2007.
Affirmed by unpublished opinion per Van Deren, C.J., concurred in by Hunt and Quinn-Brintnall, JJ.
UNPUBLISHED OPINION
Stevey Dunlap appeals his conviction for first degree child molestation. He contends that (1) he should have been afforded a jury trial under article I, sections 21 and 22 of the Washington State Constitution and (2) the trial court improperly considered child hearsay evidence. In his statement of additional grounds for review (SAG), he argues that his waiver of his Miranda rights was invalid because no parent or guardian was present and that he did not understand his rights sufficiently to give a valid waiver. He also asserts that he should have been jointly tried on similar charges arising out of the events described in this case and asks that we dismiss these charges. Because Dunlap failed to timely object to the admission of child hearsay at trial and because the right to a jury trial does not apply in juvenile cases, we affirm.
RAP 10.10.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
FACTS
In early December 2005, seven-year-old CM attended a birthday "sleep over" party for his friend FS at FS's father's apartment. Clerk's Papers (CP) at 5. Dunlap, who was FS's cousin, also attended the party. The boys slept in FS's bedroom; Dunlap and CM slept on the top level of a bunk bed, possibly with FS and another boy. While in bed, the boys watched an R-rated movie titled " The Butterfly Effect." Report of Proceedings (RP (Jan. 16, 2007) at 212. During the movie, Dunlap asked CM if he "wanted to play `husband and wife.'" CP at 5. Dunlap put his hand down CM's pajamas and underwear and touched CM's bare buttocks, kissed CM on the lips, and straddled CM's stomach while both boys were wearing pajamas. Dunlap then rubbed his genitals on CM's stomach while wearing pajamas.
CM was born November 3, 1998. He was seven years old when these events transpired.
The record consistently refers to FS by his nickname. For consistency we refer to him by his legal initials as used in another matter involving Dunlap wherein FS was the victim. State v. Dunlap, No. 36582-1-II (Wash.Ct.App. Jan. 14, 2009) (unpublished).
Dunlap was born October 16, 1993. He was 12 years old at the time of these events.
The Motion Picture Association of America's definition of an R-rated motion picture is one that "may include adult themes, adult activity, hard language, intense or persistent violence, sexually-oriented nudity, drug abuse or other elements, so that parents are counseled to take this rating very seriously. Children under 17 are not allowed to attend R-rated motion pictures unaccompanied by a parent or adult guardian." http://www.mpaa.org/FlmRat_Ratings.asp (last visited Oct. 9, 2008).
CM did not immediately reveal what Dunlap did, but began talking about sex on a regular basis following the party. CM's mother testified, that before the incident, CM had not shown interest in sex, nor did he display any sexual knowledge or behavior. She read CM the book "`How Babies are Made'" approximately four weeks after the slumber party and CM revealed the details of Dunlap's behavior to his mother the next evening. RP (Jan. 5, 2007) at 6.
The following day, she called Child Protective Services (CPS) and the police. CPS referred her to the prosecutor's office, where Pierce County child forensic interviewer Kimberly Brune conducted a videotaped interview with CM about the incidents involving Dunlap on May 17, 2006. The police arrested Dunlap at his school on June 12, 2006. After being informed of his Miranda rights, Dunlap waived them and an officer questioned him alone in the assistant principal's office. The State charged Dunlap with first degree child molestation.
The record indicates that Ms. Brune spelled her name "B-R-U-N-N" during her testimony. RP (Jan. 10, 2007) at 127. But the name is spelled "Brune" in various other portions of the record on appeal, including the Declaration for Determination of Probable Cause. CP at 2. Additionally, Ms. Brune spelled her name "B-r-u-n-e" in another matter involving Dunlap. Dunlap, No. 36582-1-II, slip op. at 3, 9. Therefore, we spell her name "Brune," assuming the "B-R-U-N-N" spelling was erroneous.
The trial court determined that CM, who was then eight-years-old, was capable of testifying. It also admitted CM's statements to his mother and Brune. Dunlap denied the incident. The trial court found Dunlap guilty as charged. He was sentenced to 15 to 36 weeks confinement in a juvenile correctional facility, with credit for 14 days served.
Dunlap appeals.
ANALYSIS
I. Right to Jury Trial
Dunlap argues that the Washington Constitution mandates that juveniles charged with sex offenses have the right to a jury trial. He asserts that article I, section 21 of our constitution, which states that "`[t]he right of trial by jury shall remain inviolate,'" and article I, section 22, which states that "`the accused shall have the right . . . to have a speedy public trial by an impartial jury,'" require the right to a jury in this case. Br. of Appellant at 3 (quoting Wash. Const. art I §§ 21, 22). He argues that "[t]he current statutory scheme, requiring bench trials in juvenile court . . . directly violates both provisions of the constitution." Br. of Appellant at 5. State v. Chavez, decided in March 2008, resolves the issue of a juvenile's right to a jury trial when charged with criminal offenses. 163 Wn.2d 262, 264-65, 180 P.3d 1250 (2008). Chavez argued that "juveniles must be afforded jury trials once juvenile proceedings become akin to adult criminal prosecutions." Chavez, 163 Wn.2d at 266. Dunlap similarly argues that proceedings against juveniles charged with sex offenses have become so substantially similar to adult proceedings that they require exception to the juvenile system and the Juvenile Justice Act (JJA), RCW 13.40. He argues that significant changes to the juvenile system and, in particular, to the treatment of juvenile sex offenses, require a reexamination of the right to a jury trial for juvenile offenders.
Dunlap analyzes the issue under State v. Gunwall, 106 Wn.2d 54, 720 P.2d 808 (1986), claiming that it "does not fall squarely within any controlling precedent." Br. of Appellant at 4. "Absent controlling precedent, a party asserting that the state constitution provides more protection than the federal constitution must analyze the issue under Gunwall." Br. of Appellant at 3-4 (citing Gunwall, 106 Wn.2d at 58). But the court resolved this issue after Dunlap filed his brief in the matter. See State v. Chavez, 163 Wn.2d 262, 264-65, 180 P.3d 1250 (2008). Thus, we do not address Dunlap's Gunwall arguments.
RCW 13.04.021(2) states: "Cases in the juvenile court shall be tried without a jury."
But our Supreme Court rejected this argument, holding that, "[w]hile punishment is the paramount purpose of the adult criminal system, the policies of the JJA are two-fold: to establish a system of . . . responding to the needs of youthful offenders; and to hold juveniles accountable for their offenses." Chavez, 163 Wn.2d at 267-68. The Court held that "`while juvenile proceedings are similar to adult criminal prosecutions, enough distinctions still exist to justify denying juvenile offenders the right to a trial by jury.'" Chavez, 163 Wn.2d at 269 (internal quotation marks omitted) (quoting State v. J.H., 96 Wn. App. 167, 183-84, 978 P.2d 1121 (1999)). Thus, Dunlap's arguments regarding similarities between juvenile and adult proceedings compelling jury trials are not persuasive.
Dunlap's argument that sex offenses in particular necessitate a right to jury trial is similarly unpersuasive. Dunlap argues that the sex offender registry requirements for juveniles make juvenile sex offense proceedings particularly similar to adult criminal proceedings. This issue was considered by Division One in 1999 in J.H., wherein the court determined that because "[t]he adult sex offender registration statute does not constitute punishment, . . . [i]t follows that community notification requirements for juvenile offenders are likewise not punitive." The court, therefore, concluded that the notification requirements "do not affect a juvenile offender's right to a jury trial." J.H., 96 Wn. App. at 182. We agree with Division One and hold that juvenile proceedings such as Dunlap's do not include a right to a jury trial; Dunlap's argument fails.
The State additionally cites RCW 9A.44.140(4), noting that, unlike adult offenders, juveniles are able to petition for release from these requirements.
II. Admission of Child Hearsay
Dunlap argues that the trial court abused its discretion in admitting CM's statements to his mother and Brune. The State counters that Dunlap failed to preserve the issue for appeal.
To preserve an issue for appeal, "[a] party must specifically object to evidence presented at trial and allow the trial court to rule on the issue." State v. Rasmussen, 70 Wn. App. 853, 859, 855 P.2d 1206 (1993). During trial, the State asked the trial court to make a finding about the admissibility of CM's statements to his mother. Dunlap's counsel stated: "I don't think I can make an objection at this time," and requested that the court make a "conditional ruling . . . subject to future viewing of th[e] movie [ The Butterfly Effect] as well as the potential future viewing of the [Brune] interview." RP (Jan. 5, 2007) at 17. After Brune testified and the State played the interview videotape, the State once again moved for admission of CM's mother's hearsay testimony. Dunlap responded: "I thought [the court] made a ruling it was admissible, but I possibly could be wrong." RP (Jan. 16, 2007) at 158. The trial court agreed that it had already made a ruling to admit and then, additionally, admitted the Brune hearsay testimony. Dunlap specifically stated that he had no objection to the admissibility of CM's statement to Brune.
A defendant may raise an issue for the first time on appeal if the issue involves a "manifest error affecting a constitutional right." RAP 2.5(a)(3). The Washington Supreme Court has specifically held, however, that the admission of child hearsay is not a "manifest error affecting a constitutional right" when, as here, the child testifies at trial. State v. Leavitt, 111 Wn.2d 66, 71-72, 758 P.2d 982 (1988). Therefore, because Dunlap did not preserve the issue of admissibility of CM's statements to his mother and Brune for appellate review, we do not consider the issue.
III. SAG
Dunlap's SAG alleges two additional grounds for review. RAP 10.10. His first allegation is that his waiver of his Miranda rights was ineffective because he was not accompanied by a parent or teacher and was too young to understand the rights being waived. Second, Dunlap argues that the charge in this case should have been dismissed because it was not joined with separate charges against him.
A. Miranda Warnings
Dunlap argues that his statements to the police should have been suppressed because he did not understand his Miranda rights and there was no parent or teacher present. Dunlap did not object to the admission of the statement at trial. Additionally, Dunlap was 12-years-old when he was interviewed. A parent need not substitute his own consent for a child's if the child is at least 12 years of age. See RCW 13.40.140(10); Dutil v. State, 93 Wn.2d 84, 93, 606 P.2d 269 (1980).
"The appellate court may refuse to review any claim of error which was not raised in the trial court," unless there was a "manifest error affecting a constitutional right." RAP 2.5(a). The burden is on the defendant to make a showing that the trial court committed a constitutional error and to "show how, in the context of the trial, the alleged error actually affected the defendant's rights." "If the facts necessary to adjudicate the claimed error are not in the record on appeal, no actual prejudice is shown and the error is not manifest." State v. McFarland, 127 Wn.2d 322, 333, 899 P.2d 1251 (1995).
Dunlap's statement to the police considered by the trial court consisted of a denial of the charges and body language possibly indicating embarrassment or regret. This "statement" provided little or no additional evidence. Had the trial court suppressed Dunlap's statement, the State's remaining evidence — primarily CM's testimony and his statements to his mother and Brune — was sufficient to support the trial court's finding of guilt. The alleged error, therefore, was not manifest.
Because Dunlap did not argue this issue at trial and because the alleged error was not manifest, we do not consider the issue for the first time on appeal.
B. Severance of Charges
Dunlap further alleges that this case should have been tried together with another arising from these same events involving a different victim. He argues that these charges should have been dismissed because the cases were not tried together. Specifically, Dunlap states that "I was not tried jointly in these matters. I was tried and convicted on similar charges, s[e]parately and not concurrent[ly]. . . .[T]he[] charges should have been dismissed on these grounds alone[, w]hen the state knew about these new charges from [the] start." SAG at 1. Dunlap refers to facts outside the record that we cannot review. McFarland, 127 Wn.2d at 332-33. We, therefore, do not further consider this issue.
Finding no error or abuse of the trial court's discretion, we affirm.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
We concur:
HUNT, J. and QUINN-BRINTNALL, J., concur.