Opinion
No. 60414-7-I.
July 28, 2008.
Appeal from a judgment of the Superior Court for King County, No. 06-8-02564-6, Douglass A. North, J., entered July 16, 2007.
Affirmed by unpublished per curiam opinion.
David Eleazar Macey was convicted in juvenile court of rape in the second degree. On appeal, Macey contends that the trial court abused its discretion by admitting ER 404(b) evidence that Macey repeatedly hit C.D. while they were dating and testimony by an officer that Macey did not take a polygraph test. Macey also asserts that the waiver of his right against self-incrimination was not voluntary and there is insufficient evidence to support the court's finding that he is guilty of rape in the second degree. We affirm.
FACTS
David Eleazar Macey began dating C.D. in October 2004, when Macey was a sophomore in high school and C.D. was a freshman. While they were dating, Macey and C.D. spent a lot of time alone at C.D.'s house, watching television.
Macey hit C.D. on several occasions during their relationship, causing her to have bruises on her arms and legs. C.D. told her stepmother and father that her bruises were from playing volleyball. On one occasion C.D.'s stepmother saw Macey hitting C.D. on the arm with substantial force and had to yell at him to stop. C.D. ended the relationship with Macey at the end of the school year in June 2005.
In the fall of 2005, C.D. and Macey spent time together as friends. One day in October, Macey gave C.D. and another friend a ride home from school. Macey took C.D. home first. After taking the other friend home, Macey returned to C.D.'s house. Macey asked C.D. if he could come in and watch television. She agreed and let him in. Her parents were not home. While they were sitting on a couch upstairs in C.D.'s house watching television, Macey started kissing C.D.'s neck. C.D. told Macey to stop. Macey continued trying to kiss C.D. and started groping her and rubbing her vaginal area. C.D. told him to stop again and tried to push him away.
Macey lay on top of C.D., held her arms above her head, pulled down her pants, and had sexual intercourse with C.D. Then Macey took C.D. downstairs to her bedroom in the basement. Macey held C.D. by her arms on top of him, forcing her to have intercourse with him again. C.D. tried to fight Macey off during the first act of sexual intercourse, but said that she stopped struggling by the second. Macey ejaculated, zipped up his pants, and asked C.D. if she wanted a ride to school or to work. C.D. said no and remained on the bed crying after Macey left. Eventually, C.D. went to work. She felt embarrassed and ashamed and did not tell anyone because she thought people would think it was her fault for letting Macey into the house.
In mid-October 2005, C.D.'s stepmother noticed that C.D.'s behavior had dramatically changed and she had several large bruises. C.D. was sleeping a lot, moody, and spent a night locked in the bathroom. C.D.'s stepmother took her to the doctor's office to find out if she had a health problem that would cause the bruising. C.D. did not tell her stepmother or the doctor how she got the bruises.
A few weeks later, C.D. told a friend what had happened. C.D.'s friend convinced her to tell her parents.
In January 2006, Detective Mike Thomas and Officer Barry Sellers went to Macey's high school to question him. Detective Thomas read Macey his Miranda warnings. Macey stated both orally and in writing that he understood. Officer Thomas asked Macey whether he had sex with C.D. in October and Macey said no initially, but later said that they had and it was consensual. The officers did not arrest Macey.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L .Ed. 2d 694 (1966).
Four days later, Officer Thomas returned to Macey's school and asked Macey whether he would be willing to take a polygraph test. Macey said that he would like to talk to his parents first and that he would call Officer Thomas back. Macey did not contact Officer Thomas or take a polygraph test.
In October 2006, Macey was charged in juvenile court with rape in the second degree by amended information.
Before trial, the State moved to admit evidence that Macey physically abused C.D. to explain C.D.'s reaction to the rape, C.D.'s credibility, and to rebut Macey's denial of the rape. The court ruled that the 404(b) evidence was probative of C.D.'s credibility and explained her delay in reporting. The court also ruled that the evidence of abuse was admissible, contingent on the State proving that it occurred by a preponderance of the evidence.
At the CrR 3.5 hearing, Macey's attorney argued that the statements Macey made to the officers were inadmissible because he did not give a knowing, intelligent, and voluntary waiver of his rights. The court found that at the time of the interview, Macey was a mature and sophisticated 16-year-old, "[t]he statements were made without threats or promises of any kind," and Macey gave a knowing, intelligent, and voluntary waiver. The court also concluded that Macey's will was not overborne, and his statements were given freely and voluntarily.
At the bench trial, C.D., Officer Sellers, Detective Thomas, C.D.'s stepmother, C.D.'s employer, and two of C.D.'s friends testified.
Macey testified and denied that he raped C.D. Macey also testified that although he and C.D. frequently "roughhoused" and C.D. occasionally had bruises as a result, he never hit C.D. Macey admitted that he and C.D. had sexual intercourse in October, but said it was consensual. Macey said that when the officers questioned him at school, they discussed taking him down to the station and that scared him a little bit. On cross examination, Macey admitted that he lied to the detective when he said he did not have sex with C.D. in October.
The court entered detailed findings of facts and found that C.D.'s testimony was more consistent than Macey's testimony. The court found that C.D.'s testimony was credible and Macey's testimony was not. The court concluded that Macey had engaged in intercourse with C.D. by forcible compulsion and Macey was guilty of rape in the second degree. Macey appeals.
ANALYSIS
Admission of ER 404(b) Evidence
Macey asserts that the trial court abused its discretion by admitting evidence that Macey struck C.D. during the course of their relationship because the evidence was not relevant and the purpose for admitting the evidence was not similar to any of the exceptions listed in ER 404(b). We review a court's decision to admit evidence for abuse of discretion. State v. Sexsmith, 138 Wn. App. 497, 504, 157 P.3d 901 (2007), rev. denied, 163 Wn.2d 1014 (2008). A trial court abuses its discretion only when its decision is manifestly unreasonable or based on untenable grounds. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).
Under ER 404(b), evidence of "other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith." However, such evidence may be admissible for other purposes, "such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." ER 404(b). The purposes for admitting evidence under ER 404(b) are not exclusive. State v. Cook, 131 Wn. App. 845, 129 P.3d 834 (2006).
We review a trial court's ruling under ER 404(b) for manifest abuse of discretion, and will not overturn the decision unless "no reasonable judge would have ruled as the trial court did." State v. Mason, 160 Wn.2d 910, 933-34, 162 P.3d 396 (2007), cert. denied, 128 S. Ct. 2430, 171 L. Ed. 2d 235 (2008).
To admit evidence of prior bad acts, the court must "(1) find by a preponderance of the evidence that the misconduct occurred, (2) identify the purpose for which the evidence is sought to be introduced, (3) determine whether the evidence is relevant to prove an element of the crime charged, and (4) weigh the probative value against the prejudicial effect." State v. Thang, 145 Wn.2d 630, 642, 41 P.3d 1159 (2002). Under ER 401, "relevant evidence" means "evidence having 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."
In State v. Grant, 83 Wn. App. 98, 108, 920 P.2d 609 (1996), the victim's credibility was a central issue at trial. The court held that evidence of prior assaults could be properly admitted under ER 404(b) for purposes of assessing the victim's credibility. Grant, 83 Wn. App. at 109. Similarly in State v. Wilson, 60 Wn. App. 887, 890, 808 P.2d 754 (1991), this court held that evidence of physical abuse was relevant to rebut the evidence presented by other witnesses that sexual abuse did not occur. And in Cook, the court held, "[w]hen an alleged victim acts inconsistently with a disclosure of abuse, such as by failing to timely report the abuse . . . evidence of prior abuse is relevant and potentially admissible under ER 404(b) to illuminate the victim's state of mind at the time of the inconsistent act." Cook, 131 Wn. App. at 851.
Here, the court first found that the State had shown Macey's prior acts of violence by a preponderance of the evidence and the probative value of that evidence outweighed the risk of unfair prejudice. The court then found that the evidence was admissible under ER 404(b) "to help understand the dynamics of the relationship between [Macey] and C.D., to explain C.D.'s reactions to the charged incident including her delay in reporting the incident, and to assess C.D.'s credibility."
The primary issue in this case was credibility. To convict Macey of rape in the second degree, the court had to find that he had sexual intercourse with C.D. by forcible compulsion. RCW 9A.44.050(1)(a). Macey and C.D. both testified to having sexual intercourse in October 2005. C.D. testified that the sexual intercourse involved forcible compulsion and Macey maintained that it was consensual. In addition, Macey argued at trial that C.D.'s version of the events was not credible because she had several opportunities to report the rape, but chose to wait. We conclude that under the circumstances, the trial court did not abuse its discretion in admitting evidence of prior bad acts to explain C.D.'s reactions and establish her credibility. Polygraph Test
Macey asserts Detective Thomas's testimony that he did not want to take a polygraph test improperly infringed his Fifth Amendment right against self-incrimination. Macey also asserts that although his attorney did not object to this testimony below, because this error affects a constitutional right, it may be considered for the first time on appeal.
The facts in this case are analogous to State v. Sweet, 138 Wn.2d 466, 980 P.2d 1223 (1999). In Sweet, an officer testified that he asked Sweet whether he would be willing to take a polygraph test and Sweet said he would, but polygraph results were not introduced at trial. Sweet, 138 Wn.2d at 480. Sweet's defense counsel did not object to the testimony. Sweet, 138 Wn.2d at 480. The Washington Supreme Court held that the officer's testimony was "at best a mere reference to silence which is not a `comment' on the silence [and] is not reversible error absent a showing of prejudice." Sweet, 138 Wn.2d at 481 (internal quotes omitted). The court added that Sweet did not establish that he was prejudiced by the testimony and even if there was error, the error was harmless. Sweet, 138 Wn.2d at 481.
Here, Detective Thomas testified that he asked Macey whether he would be willing to take a polygraph test. Macey responded that he would like to talk to his parents first, but he would call Detective Thomas back. Detective Thomas stated that he never heard from Macey. Macey's attorney did not object to this testimony. Macey has not established that he was prejudiced by the testimony. Following the holding in Sweet, we conclude that even if there was error in admitting Detective Thomas's testimony, the error was harmless.
Statements to Officers
Macey contends that the court abused its discretion by admitting the statements he made to the police during the interview at his high school because he did not voluntarily waive his Miranda rights.
We consider the totality of the circumstances in determining whether a juvenile has voluntarily waived Miranda rights. State v. Allen, 63 Wn. App. 623, 626, 821 P.2d 533 (1991). "To be admissible, a confession must be voluntary; and the test is whether the officer's behavior overcame the defendant's will to resist and brought about an admission that was not freely self-determined." State v. Riley, 17 Wn. App. 732, 735, 565 P.2d 105 (1977). Some factors that a court considers in assessing the totality of the circumstances include the defendant's physical condition, age, mental abilities, experience, and the conduct of the police. State v. Aten, 130 Wn.2d 640, 664, 927 P.2d 210 (1996).
The State bears the burden of proving voluntariness by a preponderance of the evidence. State v. Braun, 82 Wn.2d 157, 162, 509 P.2d 742 (1973). "If there is substantial evidence in the record from which the trial court could have found by a preponderance of the evidence that the confession was voluntary, we will not disturb the trial court's determination of voluntariness on appeal." State v. L.U., 137 Wn. App. 410, 414, 153 P.3d 894 (2007), quoting, State v. Burkins,
Here, there was substantial evidence in the record supporting the trial court's determination that Macey's statements to the officers were voluntary. Detective Thomas and Officer Sellers both testified that Detective Thomas read Macey his Miranda rights from a department-issued constitutional rights form. Detective Thomas then asked Macey whether he understood his rights and Macey stated that he did and signed the form. In addition, Detective Thomas explained to Macey that his right were "like a wall" between them and Macey could choose not to talk to the officers at any point during the conversation. Macey conceded that Detective Thomas "explained with the wall thing and the rights and he read me the rights, and then I signed the papers."
Macey asserts that because the officers discussed taking him to the station for questioning, his waiver was not voluntary. Macey said that the statements by the officers scared him a little, but the statements were after he had voluntarily signed the form and he never indicated that he wanted to stop the conversation. And at trial, Macey testified that he fully understood his rights. On this record, we conclude that substantial evidence supports the trial court's determination that Macey's waiver was voluntary and the trial court did not abuse its discretion in admitting the statements Macey made to the officers when they questioned him at school.
Sufficiency of the Evidence
Macey asserts that because the trial court's conclusion that Macey was guilty of rape in the second degree rested on improperly admitted evidence, the evidence is insufficient to support the conviction. However, beyond the conclusory statement that "there was no overwhelming evidence of guilt," Macey does not provide any argument or support for this contention. We will not review an issue raised in passing or unsupported by authority or persuasive argument. See State v. Johnson, 119 Wn.2d 167, 171, 829 P.2d 1082 (1992). In addition, Macey's argument fails because we conclude the evidence in question was not improperly admitted.
To the extent Macey does not make arguments related to the assignments of error, those arguments are waived on appeal. Cowiche Canyon Conservancy v Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992).
Finding no error, we affirm.