Opinion
No. 34721-1-II.
August 28, 2007.
Robert Dean Heagy was convicted of one count of first degree child molestation in a second jury trial, after his first trial ended in a mistrial due to a hung jury, and was sentenced as a persistent offender. He appeals, claiming that he received ineffective assistance of counsel and asks us to vacate his conviction and remand for a new trial. In his Statement of Additional Grounds (SAG), Heagy also contends that the trial court erred in its evidentiary rulings and asserts that he is not a persistent offender. We affirm his conviction and sentence.
RAP 10.10(a) provides: "A defendant /appellant in a review of a criminal case may file a pro se statement of additional grounds for review to identify and discuss those matters which the defendant/appellant believes have not been adequately addressed by the brief filed by the defendant/appellant's counsel."
Heagy's SAG, indicates that a subpoena was not enforced and that the trial "court wouldn't let me have my witnesses in [the] second trial[.]" Because the record shows that the trial court did not exclude any defense witnesses, we address this as a contention that the first trial court's evidentiary rulings were flawed.
Heagy's SAG consists of 96 handwritten pages, in violation of the 50-Page limit specified in RAP 10.10(b). The SAG is not paginated and out of order; so we are unable to cite to specific pages within it. Nevertheless, we address Heagy's concerns.
FACTS
On November 3, 2004, at 4:27 a.m., Kitsap County Deputy Sheriff Matthew Hill responded to a 9-1-1 call reporting child molestation at a Bremerton residence. Deputy Ben Herrin arrived a few minutes later. Hill testified that when he arrived, Heagy, who smelled of alcoholic beverages, was standing in the front yard of the residence with suitcases and clothing scattered about the yard.
While Hill placed Heagy into protective custody, Herrin spoke with the victim's parents in the home. Hill then entered the home and spoke briefly with the eleven year-old victim, who said that she was sleeping and awoke to find Heagy placing his hands in her pants. Hill testified that when he asked Heagy what had happened, Heagy claimed he stumbled and fell onto the victim's bed. Hill testified that Heagy admitted that he might have touched the victim and that he might have told the victim not to tell her mother about the incident.
RCW 10.52.100, RCW 10.97.130, RCW 13.50.050(24), and RCW 42.17.31901 protect child victims of a sexual assault. The statutes require that the name of a victim of a sexual assault who was younger than 18 years old at the time of the assault not be disclosed. RCW 10.52.100 specifically applies this proscription to "appellate proceedings," which by implication includes case captions and court opinions.
The victim testified that, in addition to putting his hand in her pants and touching her chest, Heagy had asked her if he could sleep with her and had initially blocked her exit from the room. When she was able, she went to the living room and called out for her mother. Jane Schupay, the Sexual Assault Nurse Examiner (SANE) who later interviewed the victim, testified that the victim told her that Heagy had instructed her to not tell her mother about the incident.
The parents testified that Heagy was living with them at the Bremerton residence. On the night in question, they heard a scream and, on investigating, discovered their daughter crying hysterically in the living room. When she indicated that Heagy placed his hand in her pants, the parents assaulted him, called the police, forcibly ejected him from their home, and threw his suitcases and clothing out into the yard. Hill arrested Heagy and transported him to jail.
On November 5, 2004, the State charged Heagy with one count of first degree child molestation. Heagy's pre-trial motions focused on his assertion that he had been forced to share his prescription methadone pills with the parents of the victim as a condition of living in their home and, when Heagy would no longer share, the parents retaliated by conspiring with the victim to fabricate the molestation charge.
On March 4, 2005, Heagy requested hair follicle testing on the parents to show their methadone use. That testing was ordered, but the test results were negative for methadone use, and the trial court ruled that any evidence of the parents' use of other drugs was irrelevant except as it related to their credibility and ability to perceive events on the night in question. Heagy also proposed to call a witness who would testify that Heagy told the proposed witness about the drugs-for-lodging agreement. The State objected to the admission of such testimony as "self-serving hearsay," and the trial court reserved further ruling until trial. Report of Proceedings (RP) (August 31, 2005) at 54.
The May 6, 2005 sample was apparently tested for drugs other than methadone and a retest for methadone on that same sample was ordered on July 11. Before the first trial, Heagy's counsel acknowledged that the sample eventually tested negative for methadone and, because hair follicles generally must be gathered within 90 days of the alleged drug usage date, the May 6 order for testing was fatally late.
In the first trial, Heagy attempted to testify that the victim's parents conditioned his presence in their home on his sharing his methadone pills and offered other witnesses who observed the parents use Heagy's methadone, to support his theory that the parents convinced their daughter to fabricate the molestation accusation. The trial court ruled that, because nothing supported Heagy's theory in the record or had been revealed by his cross-examination of the victim or her parents, his offered testimony was "pure speculation and irrelevant." RP (Sept. 6, 2005) at 251. On September 8, 2005, the trial court declared a mistrial and ordered a new trial.
Before the next trial, Heagy's counsel stipulated to all prior evidentiary rulings but reserved all objections. Heagy called no witnesses in the second trial and the jury found him guilty as charged. The trial court found that Heagy was a persistent offender and sentenced him to life imprisonment without possibility of parole. Heagy appeals.
ANALYSIS
I. Ineffective Assistance of Counsel
Heagy contends that his counsel provided ineffective assistance by stipulating to the evidentiary rulings made during the first trial and by failing to object to prejudicial hearsay statements involving the victim's description of the crime. He also argues that, by eliciting further prejudicial hearsay statements giving the victim's description of the crime, his counsel's assistance was ineffective.
We review claims of ineffective assistance of counsel de novo. In re Pers. Restraint of Brett, 142 Wn.2d 868, 873, 16 P.3d 601 (2001). Counsel is ineffective when his or her performance falls below an objective standard of reasonableness and the defendant thereby suffers prejudice. Strickland v. Washington, 466 U.S. 668, 684-86, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Prejudice is established when "there is a reasonable probability that, but for counsel's errors, the result of the trial would have been different." State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563 (1996) ( citing State v. Thomas, 109 Wn.2d 222, 226, 743 P.2d 816 (1987)). We apply a strong presumption of effective representation. Strickland, 466 U.S. at 689.
A. Evidentiary Stipulations
Heagy generally asserts that, because the trial court's evidentiary rulings were not reduced to a written order, defense counsel had the opportunity to reargue these rulings but declined to do so. More specifically, he asserts that his counsel's failure to reargue the admissibility of testimony supporting his drugs-for-lodging assertion amounts to ineffective assistance.
But because Heagy's counsel preserved his objections to the trial court's rulings as part of the stipulation, his decision not to reargue the matter was not objectively unreasonable and Heagy's claim of ineffective assistance based on the decision to stipulate to the trial court's evidentiary rulings fails.
B. Failure to Object
Heagy argues:
Aside from [the victim] herself, the State's witnesses who testified about the alleged molestation all confirmed that they were repeating the statements, [the victim] had made to them. . . . Hearsay is admissible in certain situations and there are exceptions to the hearsay rule ( see ER 803 and 804), however, [the victim] was competent, available to testify, and in fact did testify, and the State never indicated which hearsay exception, if any, applied to the introduction of [the victim]'s statements through any of the State's witnesses.
The incourt repetition of [the victim]'s statements to other witnesses was clearly hearsay, but trial counsel for [Heagy] failed to object to it.
Br. of Appellant at 12-13.
Regardless of defense counsel's strategy, counsel could have objected to the State's witnesses' prejudicial hearsay statements, thereby compelling the State to articulate an exception allowing their admission.
Here, the statements Heagy finds objectionable were admissible under the excited utterance or the medical treatment exceptions to the hearsay rule. See State v. Bouchard, 31 Wn. App. 381, 383, 639 P.2d 761 (1982) (spontaneous excited utterances, made while under the influence of the event, are recognized exceptions to the hearsay rule); In re Pers. Restraint of Grasso, 151 Wn.2d 1, 19-20, 84 P.3d 859 (2004) (hearsay statements reasonably pertinent to diagnosis or treatment made to a medical professional are admissible under the medical treatment exception to the hearsay rule). Heagy cannot show that the testimony would have been excluded had his counsel voiced an objection, because proper grounds for admission of the testimony in question arguably existed. See State v. Butler, 53 Wn. App. 214, 217, 766 P.2d 505 (1989) (improperly admitted evidence does not constitute error if a proper basis existed for admission). Thus, Heagy fails to satisfy the first prong.
Washington Rules of Evidence (ER) 803 states in pertinent part:
HEARSAY EXCEPTIONS; AVAILABILITY OF DECLARANT IMMATERIAL
(a) Specific Exceptions. The following are not excluded by the hearsay rule, even though the declarant is available as a witness:. . . .
(2) Excited Utterance. A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition. . . .
(4) Statements for Purposes of Medical Diagnosis or Treatment. Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.
Furthermore, Heagy's bare assertion of prejudice, without more, fails to satisfy the second prong. Heagy asserts that he "was prejudiced . . . because[,] rather than hear the details of the alleged molestation once from the alleged victim, . . . the jury heard the details numerous times from police officers, the alleged victim's parents, and the [SANE] nurse for the State." Br. of Appellant at 13-14. Heagy fails to demonstrate that, absent defense counsel's error, the result of the trial would have differed. This claim of ineffective assistance of counsel fails.
C. Improperly Eliciting Prejudicial Testimony
Heagy asserts, "on cross examination of each of the State's witnesses, trial counsel elicited the same [highly prejudicial hearsay testimony], sometimes in more detail than [the] State had gone into on direct." Br. of Appellant at 13.
But "[d]eficient performance is not shown by matters that go to trial strategy or tactics." Hendrickson, 129 Wn.2d at 77-78. Because Heagy's admitted defense theory was that the victim fabricated the molestation story, his counsel's decision to elicit conflicting, albeit prejudicial, testimony was arguably tactical and, therefore, Heagy's ineffective assistance argument fails.
At oral argument, Heagy's appellate counsel made an empassioned statement that he had failed to properly brief the case on appeal and asserted that Heagy's SAG had included claims of ineffective assistance based on trial counsel's: (1) failure to introduce evidence of the parents' positive drug test to impeach their credibility, (2) failure to aggressively impeach the victim on the stand, and (3) erroneous sentencing advice. The record does not support these claims.
II. Heagy's SAG
A. Evidentiary Rulings
In his SAG, Heagy argues that the trial court "wouldn't let me have my witnesses in [the] second trial[.]" Presumably Heagy disputes the first trial court's ruling that certain testimony supporting Heagy's fabrication theory was pure speculation and irrelevant. Because Heagy reserved his objection to the first trial court's evidentiary rulings, we address this claim.
We review a claim that the trial court improperly excluded evidence for an abuse of discretion. State v. Pirtle, 127 Wn.2d 628, 648, 904 P.2d 245 (1995). A defendant has no constitutional right to present irrelevant evidence. State v. Gregory, 158 Wn.2d 759, 786 n. 6, 147 P.3d 1201 (2006). Evidence is relevant if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Washington Rules of Evidence (ER) 401; State v. O'Connor, 155 Wn.2d 335, 349 n. 6, 119 P.3d 806 (2005). In admitting relevant evidence, the trial court balances the probative value of the proffered evidence against any prejudicial effect. ER 403; State v. Russell, 125 Wn.2d 24, 78, 882 P.2d 747 (1994), cert. denied, 514 U.S. 1129 (1995).
It is not an abuse of discretion to exclude evidence of prior sexual abuse suffered by the child victim offered in support of the theory that she fabricated the current incident where the defense fails to lay a foundation to support the claim. State v. Peterson, 35 Wn. App. 481, 484-85, 667 P.2d 645 (1983). In Peterson, the defense theory was that the victim had fabricated her story of sexual molestation in order to gain the same attention she had previously received when she had reported other incidents. Division One of this court agreed that, although evidence of prior sexual abuse may have been relevant to the fabrication theory, it had been properly excluded by the trial court. Peterson, 35 Wn. App. at 484. "Peterson failed to lay a foundation for his claim that [the victim] was fabricating this incident. He made no offer of proof that her prior reports of sexual abuse were untrue, or that her story was so similar to the previous incidents that she was probably fantasizing. Nor did Peterson demonstrate . . . [the victim's] motive." Peterson, 35 Wn. App. at 484.
Heagy's theory was that the parents, in retaliation for Heagy's refusal to share his methadone, directed the victim to fabricate the incident. During pre-trial hearings, the trial court reserved ruling on admissibility of such highly prejudical evidence, effectively putting Heagy on notice that an offer of proof was required. To support his claim, Heagy attempted to testify that a drugs-for-lodging arrangement existed. Heagy also attempted to present witnesses that would testify about the parents' past drug use. But, as in Peterson, Heagy failed to lay a foundation for fabrication evidence. Heagy did not offer any explanation of why the parents would construct these allegations through their daughter instead of merely requiring him to move from their residence. The hair follicle test had not shown methadone use by the parents. And Heagy's cross-examination of the State's witnesses failed to elicit any support for his claim. Thus, he failed to show motive or evidence of methadone use to support his defense theory.
We hold that the trial court did not abuse its discretion in reasoning that, because Heagy failed to elicit, or even attempt to elicit, from the State's witnesses support for his theory, his offered testimony was "pure speculation and irrelevant[.]" RP (Sept. 6, 2005) at 251. The trial court did not abuse its discretion in ruling that such unsupported and prejudicial testimony was not admissible absent proper foundation.
B. Chapter 9.95.240 RCW
Heagy's SAG also makes the bare assertion that he is not a persistent offender. Presumably Heagy refers to his March 14, 2006 pre-sentence argument that his prior vacated robbery conviction should not count in his criminal history. Heagy, in his sentencing memorandum, asserted that the December 12, 1978 dismissal of his robbery conviction was granted "apparently pursuant to the then existing vacation statutes." Clerk's Papers (CP) at 287. Heagy reasoned that, under the "current RCW that controls vacation of criminal convictions, RCW 9.94A.640, . . . it is at best ambiguous as to whether a vacated conviction can be used to determine a subsequent sentence"; therefore, that ambiguity, combined with the rule of lenity, required that the trial court not consider Heagy's robbery conviction in determining his sentence. CP at 288-89. The trial court disagreed.
The rule of lenity requires the court to construe an ambiguous criminal statute, in the absence of legislative intent, favorably to the accused. State v. Tvedt, 153 Wn.2d 705, 711, 107 P.3d 728 (2005) ( citing State v. Adel, 136 Wn.2d 629, 635, 965 P.2d 1072 (1998)).
We review this issue de novo because "statutory interpretation is a question of law." State v. Beaver, 148 Wn.2d 338, 344, 60 P.3d 586 (2002). Heagy misreads the statutes and prior applicable case law. The trial court addressed Heagy's assertions as follows:
Heagy's robbery conviction was dismissed under former RCW 9.95.240(1), which, in pertinent part, remains unchanged:
Every defendant who has fulfilled the conditions of his [or her] probation for the entire period thereof, or who shall have been discharged from probation prior to the termination of the period thereof, may at any time prior to the expiration of the maximum period of punishment for the offense for which he [or she] has been convicted be permitted in the discretion of the court to withdraw his [or her] plea of guilty and enter a plea of not guilty, or if he [or she] has been convicted after a plea of not guilty, the court may in its discretion set aside the verdict of guilty; and in either case, the court may thereupon dismiss the information or indictment against such defendant, who shall thereafter be released from all penalties and disabilities resulting from the offense or crime of which he [or she] has been convicted. The probationer shall be informed of this right in his [or her] probation papers: PROVIDED, That in any subsequent prosecution, for any other offense, such prior conviction may be pleaded and proved, and shall have the same effect as if probation had not been granted, or the information or indictment dismissed.
(Bracketed information indicates revision to original.)
RCW 9.94A.640 states:
(1) Every offender who has been discharged under RCW 9.94A.637 may apply to the sentencing court for a vacation of the offender's record of conviction. If the court finds the offender meets the tests prescribed in subsection (2) of this section, the court may clear the record of conviction by: (a) Permitting the offender to withdraw the offender's plea of guilty and to enter a plea of not guilty; or (b) if the offender has been convicted after a plea of not guilty, by the court setting aside the verdict of guilty; and (c) by the court dismissing the information or indictment against the offender.
(2) An offender may not have the record of conviction cleared if: (a) There are any criminal charges against the offender pending in any court of this state or another state, or in any federal court; (b) the offense was a violent offense as defined in RCW 9.94A.030; (c) the offense was a crime against persons as defined in RCW 43.43.830; (d) the offender has been convicted of a new crime in this state, another state, or federal court since the date of the offender's discharge under RCW 9.94A.637; (e) the offense is a class B felony and less than ten years have passed since the date the applicant was discharged under RCW 9.94A.637; and (f) the offense was a class C felony and less than five years have passed since the date the applicant was discharged under RCW 9.94A.637.
(3) Once the court vacates a record of conviction under subsection (1) of this section, the fact that the offender has been convicted of the offense shall not be included in the offender's criminal history for purposes of determining a sentence in any subsequent conviction, and the offender shall be released from all penalties and disabilities resulting from the offense. For all purposes, including responding to questions on employment applications, an offender whose conviction has been vacated may state that the offender has never been convicted of that crime. Nothing in this section affects or prevents the use of an offender's prior conviction in a later criminal prosecution.
Our final issue is whether the robbery in the second degree conviction counts as a strikable offense. The court looked at the case law as well as the statutes to resolve this issue. And the court cites [ State v. Moore, 75 Wn. App. 166, 876 P.2d 959 (1994), which,] in pertinent part[,] reads that . . . "RCW 9.95.240 expressly provides that in any subsequent prosecution, a prior conviction `may be pleaded and proved and shall have the same effect as if probation had not been granted, or the information or indictment dismissed.'". . . .
RCW 9.94A.230(2)(c) states that vacation is impermissible if "the offense was a crime against persons. . . ."
RCW 9.94A.230 was recodified in 2004 [as] 9.94A.640, [and,] as we know, [Heagy would not have] had robbery in the second degree vacated under today's law because it is a violent offense. Further, it is also a crime against persons.
RP (Apr. 14, 2006) at 14-16. The trial court reasoned that, because Heagy's robbery conviction was a violent offense and a crime against persons, it could not have been vacated under RCW 9.94A.640 or its predecessor. Therefore, Heagy's prior robbery conviction must have been dismissed under RCW 9.95.240, a statute we discussed in Moore.
Like Heagy, the defendant in Moore had a prior conviction dismissed under RCW 9.95.240. Moore also relied on RCW 9.94A.230, the predecessor statute to RCW 9.94A.640, that the trial court noted did not apply. 75 Wn. App. at 169-70. Instead, we held that RCW 9.95.240 applied and, by its plain language, that statute "provides that in any subsequent prosecution a prior conviction `may be pleaded and proved, and shall have the same effect as if'" the information had not been dismissed. Moore, 75 Wn. App. at 171 ( quoting RCW 9.95.240). Furthermore, a prior conviction dismissed under RCW 9.95.240 "nonetheless counts as part of the defendant's offender score in a subsequent [Sentencing Reform Act of 1981] prosecution." Moore, 75 Wn. App. at 171; see also State v. Wade, 44 Wn. App. 154, 160, 721 P.2d 977 (1986).
Here, the trial court concluded that the facts at bar were "almost identical to the Moore matter, and because [Heagy's robbery conviction] was never vacated, because it is a violent offense, it applies in his offender score and counts as his third strike," RP (Apr. 14, 2006) at 16, because it had only been dismissed under former RCW 9.95.240(1). We hold that the trial court did not err and Heagy's assertion otherwise is unavailing.
We affirm Heagy's conviction and sentence.
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.
ARMSTRONG, J., PENOYAR, J., concur.