Opinion
No. 60513-5-I.
September 15, 2008.
Appeal from a judgment of the Superior Court for King County, No. 06-1-05651-1, Nicole MacInnes, J., entered August 28, 2007.
A person is guilty of first degree child molestation when that person has sexual contact with another who is less than twelve years old and other statutory elements are met. Because substantial evidence supports the jury's verdict that Samuel Hurwitz had sexual contact with the victim, and the trial court did not abuse its discretion in admitting child hearsay testimony, we affirm.
The complaining witness, J.G., alleged that Hurwitz molested her when she was in first grade. Hurwitz is J.G.'s uncle. J.G. disclosed the abuse to her mother in July 2005, which was two to three years after the incident. Her mother, Angela Bowers, reported the matter to the police. In August 2005, a child interview specialist from the King County prosecutor's office, Christine Libsack, interviewed J.G. alone and recorded the interview on DVD. In the interview, J.G. told the interviewer that Hurwitz had molested her.
The State charged Hurwitz with one count of first degree child molestation. A jury convicted Hurwitz. Hurwitz appeals.
SEXUAL CONTACT
Hurwitz contends that there was insufficient evidence to support his conviction for child molestation because the State did not prove that he had "sexual contact" with J.G. We disagree.
Evidence is sufficient to support a conviction if, after viewed in the light most favorable to the State, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Determinations as to credibility are not subject to appellate review. We review questions of statutory interpretation de novo.
State v. Hendrickson, 129 Wn.2d 61, 81, 917 P.2d 563 (1996).
State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).
State v. Jackson, ___ Wn. App. ___, 187 P.3d 321, 322 (2008)
A person is guilty of child molestation in the first degree when the person has, or knowingly causes another person under the age of eighteen to have, sexual contact with another who is less than twelve years old and not married to the perpetrator and the perpetrator is at least thirty-six months older than the victim. Sexual contact is defined as "any touching of the sexual or other intimate parts of a person done for the purpose of gratifying sexual desire of either party or a third party." Though there is no statutory definition of "touching," it may be made without direct contact between the accused and the victim. This court recently held that ejaculating onto another person constitutes a "touching" for purposes of the sexual contact element of the child molestation statute.
Jackson, 187 P.3d at 323 (citing State v. Brown, 55 Wn. App. 738, 780 P.2d 880 (1989) (holding the victim touched the defendant by operating the vacuum pump of a "penis enlarger")).
Jackson, 187 P.3d at 325.
Here, substantial evidence supports the jury's verdict that Hurwitz had sexual contact with J.G. The jury heard J.G. testify at trial that she had taken off her shirt at Hurwitz's direction and that Hurwitz was naked and on top of her on his bed. She testified that Hurwitz "would be pushing his private part up and down with his hands" until "there would be this white stuff coming out" on her stomach. The jury heard supporting evidence of J.G.'s statements through her mother's testimony and through a DVD of J.G.'s interview with a child interview specialist.
Hurwitz argues that there was no sexual contact because semen is not a "bodily part" and his penis did not come into immediate contact with J.G.'s body. In light of State v. Jackson and the authority it cites, we reject this argument.
187 P.3d 321 (2008) (citing State v. Brown, 55 Wn. App. 738, 780 P.2d 880 (1989)).
CHILD HEARSAY
Hurwitz argues that the court abused its discretion in admitting cumulative evidence. He contends that the admission of J.G.'s hearsay statements to her mother and to a child interview specialist were needlessly cumulative and more prejudicial than probative. We disagree.
Child hearsay is admissible even when the child testifies at trial and even though the evidence is overlapping or repetitive. Such evidence may be excluded under ER 403, however, if its probative value is substantially outweighed by the danger of unfair prejudice caused by the needless presentation of cumulative evidence.
RCW 9A.44.120.
State v. Dunn, 125 Wn. App. 582, 588-89, 105 P.3d 1022 (2005).
State v. Bedker, 74 Wn. App. 87, 93, 871 P.2d 673 (1994).
We review a trial court's decision on the admissibility of evidence for abuse of discretion. A trial court abuses its discretion only when its decision is manifestly unreasonable or based on untenable grounds.
State v. Finch, 137 Wn.2d 792, 810, 975 P.2d 967 (1999).
State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).
The court in its oral ruling identified the factors on which it based its decision to admit the evidence. The court reasoned that the State's case relied almost completely on the testimony and credibility of J.G., as there was no physical evidence in the case. The court determined that the hearsay statements would serve a useful purpose to the fact finder and were not redundant because there were not "lots of statements" and they had been spread out over time. The court concluded that the hearsay statements were probative and that the defense's ER 403 argument for excluding the hearsay evidence was not persuasive. This ruling was within the court's discretion.
J.G.'s mother, Bowers, testified to J.G.'s hearsay statements, initially made in October or November of 2004 and then with greater detail in July 2005. Bowers testified as to the contexts in which J.G. disclosed the incident to her as well as the nature of J.G.'s relationship with Hurwitz. The court also admitted a DVD of J.G.'s interview with Libsack. Libsack testified only as to the interview process before the DVD was played, not to what J.G. said. The DVD of the interview was relatively comprehensive and detailed.
While there was some overlap between the hearsay statements and J.G.'s testimony, the hearsay statements had significant probative value. The statements were made in very different contexts to people with very different roles in the case. Each of the witnesses provided slightly different facts and perspectives that assisted the jury in evaluating J.G.'s testimony. Division III has recognized that a DVD interview between a child interview specialist and a child victim provides the jury with additional details and "visual and audio information . . . beyond repetition of other hearsay statements" (such as the victim's demeanor and voice inflections during the interview).
Dunn, 125 Wn. App. at 588.
In State v. Dunn, Division Three considered an ER 403 challenge to child hearsay statements and concluded that any repetitiveness "stemmed largely from the logical sequence and timing of events." The timeline of witnesses in Dunn included the victim's initial disclosure to her father and then her mother, an interview with law enforcement, and then to a physician's assistant during a medical examination. The court upheld the admission of the victim's statements to each of these witnesses, as well as a videotape of the victim's interview with a detective, even though the evidence was overlapping and the victim testified at trial. Similarly, here, the trial court's decision reflects no abuse of discretion.
Id.
Finally, Hurwitz argues that the hearsay should have been excluded because he made no specific attack on the victim's credibility. We disagree. The trial record plainly shows that defense counsel raised questions as to J.G.'s memory, among other things.
STATEMENT OF ADDITIONAL GROUNDS
Hurwitz filed a pro se Statement of Additional Grounds for Review raising several additional issues. We conclude that none of them requires reversal.
A number of Hurwitz's arguments challenge the credibility of the witnesses at his trial. This court does not review a jury's credibility determinations.
State v. Myers, 133 Wn.2d 26, 38, 941 P.2d 1102 (1997) ("Credibility determinations are within the sole province of the jury and are not subject to review.").
Hurwitz argues that the trial court made an example of him by giving him the maximum sentence. The record indicates that the court actually gave him a midrange sentence. A sentence within the standard range is not subject to review under these circumstances.
RCW 9.94A.585(1); State v. Williams, 149 Wn.2d 143, 146-47, 65 P.3d 1214 (2003).
Hurwitz also challenges the State's use of certain photographs at trial. It is not clear whether he challenges the admission of the photographs into evidence, or whether he is alleging prosecutorial misconduct. Though reference to the record and citation to legal authorities is not required under RAP 10.10, we will not consider the argument if it does not inform us of the nature and occurrence of the alleged errors. Hurwitz has not met this burden. Moreover, Hurwitz fails to show that the alleged errors prejudiced his trial.
RAP 10.10(c).
Hurwitz takes issue with qualifications of the child interview specialist who testified at trial. He also argues that it was improper for the State to amend the information changing the date range of the charge. Again, he fails to establish that these were legal errors or had any prejudicial impact.
Hurwitz also claims that he was not given a fair trial. The record does not support this claim.
The remaining statements of additional grounds only assert or re-assert Hurwitz's version of the events underlying his conviction. The jury resolved the factual issues against him and we have already decided that the evidence was sufficient to convict.
See RAP 10.10(c).
We affirm the judgment and sentence.