Opinion
No. 64513-7-I.
Filed: February 7, 2011.
Appeal from a judgment of the Superior Court for Snohomish County, No. 09-1-00359-3, Ronald L. Castleberry, J., entered October 29, 2009.
Reversed and remanded with instructions by unpublished opinion per Spearman, J., concurred in by Dwyer, C.J., and Grosse, J.
David Mitchell challenges the sufficiency of the evidence of his voyeurism conviction and argues he did not receive effective assistance from trial counsel. We reject Mitchell's argument that counsel was ineffective, but agree that the State failed to present evidence Mitchell intentionally looked upon another person "for more than a brief period of time" as is required by the voyeurism statute. Reversed and remanded for dismissal.
FACTS
David Mitchell went to the Sun Deck Tanning Salon, where he had been a customer for months. A few minutes later, Julie Hummer entered the salon with a friend. Hummer was placed in a room next door to Mitchell. The wall between the rooms is only eight feet tall, and does not extend to the ceiling. Hummer disrobed and tanned in the nude for 20 or 25 minutes. Hummer got out of the tanning bed, and as she was toweling herself off, she saw the top of a man's head from the eyebrow on up over the wall. As she looked, the man's head dropped, and his hands came off the top of the wall, causing dust to fly into the air. Hummer did not see the man's eyes, saw the eyebrows for a "split second," and only saw the forehead "[q]uickly."
Hummer was frightened. She dropped to the ground, dressed quickly, and went to the front desk, where she told the receptionist what she had seen. The receptionist called her supervisor, and then called the police. The police arrived, and arrested Mitchell, who had remained in the room next to Hummer's room. In Mitchell's room a chair was set against the wall adjoining Hummer's room, the chair had footprints on it that matched Mitchell's shoes, and there were fresh fingerprints in the dust on the top of the wall. The State charged Mitchell with voyeurism.
At trial, the State asked Hummer about her narcotic use on direct examination. Hummer testified she began taking narcotics, including Methadone, six or seven years earlier because of chronic hip pain. She testified that a doctor at her pain management clinic monitored her medication, that she was taking narcotics at the time of the incident, and that she was still taking them as she testified in court. On cross-examination, Hummer acknowledged that her medications also included OxyContin and oxycodone, and that those were "[p]retty strong painkillers[.]"
Defense counsel had listed Mitchell's physician, Dr. Wardle, as a witness who would testify about Mitchell's alleged inability to climb on and stand on the back of a chair, due to a foot injury. Counsel later sought to have Dr. Wardle testify on the issue of the effects Hummer's narcotic use could have upon her "coherence." After Dr. Wardle gave an offer of proof outside the presence of the jury, the trial court declined to permit Dr. Wardle to provide expert testimony. The court held that not only was the disclosure of Dr. Wardle as an expert untimely, but his testimony was of little relevance and would be speculative:
The issue before the court is whether or not Julie Hummer's ability to perceive, recall and recollect was affected by her medications on the date in question, not whether she was addicted or whether she was abusing the drug or whatever.
There is no testimony, nothing before the court to indicate that she was taking it as anything other than as prescribed.
. . . .
What tends to be more relevant is the doctor's testimony that in general both Oxycodone and OxyContin have various side-effects, one of which is loss of coherency, et cetera. The problem is that the doctor candidly admits that he can only talk in terms of generalities. He cannot talk in terms of this particular individual in terms of the dosage, the quantity that she's being prescribed, whether or not over a long period of time the tolerance has been built up, whether or not as a treating physician of a given patient he's seen this effect on this patient. And given the lack of that foundation, it becomes truly speculative as to whether or not these drugs and these potential side-effects on this individual on the date in question.
And as I've indicted, furthermore, this individual was not identified as an expert in this regard prior to the trial. . . .
The jury convicted Mitchell as charged. Mitchell retained new counsel, who filed a motion for a new trial arguing that the evidence was insufficient to support the verdict, and that prior counsel was ineffective. The trial court denied the motion. Mitchell appeals.
DISCUSSION Ineffective Assistance of Counsel
Mitchell claims his trial attorney provided ineffective assistance of counsel. The purpose of the effective assistance of counsel guarantee of the Sixth Amendment is to ensure that a criminal defendant receives a fair trial. Strickland v. Washington, 466 U.S. 668, 690, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In order to prevail on a claim of ineffective assistance of counsel, Mitchell must demonstrate (1) deficient performance, that his attorney's representation fell below the standard of reasonableness, and (2) resulting prejudice, that but for the deficient performance, the result would have been different. Strickland, 466 U.S. at 687; State v. Bowerman, 115 Wn.2d 794, 808, 802 P.2d 116 (1990) (adopting the standards in Strickland). If a defendant fails to establish either prong, the Court need not inquire further. State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563 (1996).
To establish deficient performance, Mitchell has the heavy burden of showing that his attorney "made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Strickland, 466 U.S. at 687. There is a strong presumption of effective representation of counsel, and the defendant has the burden to show that based on the record, there are no legitimate strategic or tactical reasons for the challenged conduct. State v. McFarland, 127 Wn.2d 322, 335-36, 899 P.2d 1251 (1995). As the Supreme Court explained in Strickland:
Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. Cf. Engle v. Isaac, 456 U.S. 107, 133-134, 102 S.Ct. 1558, 1574-1575, 71 L.Ed.2d 783 (1982). A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action `might be considered sound trial strategy.'
Strickland, 466 U.S. at 689 (citation omitted). Here, Mitchell claims defense counsel was ineffective because (1) counsel allegedly failed to adequately cross-examine Hummer about her use of narcotics; and (2) counsel failed to obtain an expert physician to testify on the issue of narcotic use.
Mitchell first argues that trial counsel failed to adequately cross-examine Hummer about her use of narcotics. We disagree. Mitchell cites State v. Brown, 48 Wn. App. 654, 739 P.2d 1199 (1987) in support of his argument that prior counsel's performance in cross-examination of Hummer amounted to ineffective assistance. But Brown had nothing to do with ineffective assistance of counsel, and ineffective assistance was not discussed in that case at all. Rather, in Brown, this court reversed a rape conviction because the trial court erroneously excluded evidence that the complainant had used LSD on the evening of the alleged crime. Brown, 48 Wn. App. at 660-61.
Here, by contrast, the trial court permitted evidence of Hummer's use of narcotics. Indeed, on direct examination, the State elicited testimony from Hummer that she had been taking prescription narcotics for pain management for six or seven years, and was using them both at the time of the incident and while she was testifying on the witness stand. On cross-examination defense counsel did not inquire into the dosage or the reason for the lengthy period of time the complainant was taking narcotics, or into whether Hummer's perception of events was altered. But Mitchell does not explain why these specific questions are necessary to prevent a deficient cross-examination, given that Hummer's long and continued drug use was in front of the jury, who had the opportunity to assess her demeanor and credibility as a witness. Nor does Mitchell specify any prejudice from the lack of these questions, other than engage in speculation that the jury would not have convicted with a more aggressive cross-examination. Additionally, Mitchell declined to have the court reporter transcribe opening and closing statements, and as such, we have no way of knowing whether or how the testimony about Hummer's narcotic use was used.
Mitchell next argues that trial counsel was ineffective for (1) failing to lay a proper foundation for admission of Dr. Wardle's proposed expert testimony on narcotic use, and (2) untimely disclosure of Dr. Wardle as an expert. We disagree.
Mitchell first contends trial counsel's performance was deficient because he elicited testimony from Dr. Wardle that amounted to generalities about the effect of narcotics, as opposed to specifics regarding Hummer's use. But the proposed testimony of Mitchell's expert psychopharmacologist, presented in Mitchell's motion for a new trial, was not appreciably different. It too discussed only generalities about the effect of narcotics on perception, and specifically stated that perception is affected "in a dose-related manner." To the extent Mitchell contends trial counsel was deficient for failing to obtain Hummer's medical records for information about the dosage of her narcotics, we reject this argument, given Mitchell also failed to seek these medical records before moving for a new trial.
Additionally, Mitchell does not specify any prejudice in the exclusion of Dr. Wardle as an expert, other than claim the jury would not have believed Hummer's story if it had heard the testimony. But again, this is speculation, especially in light of the fact that the jury was informed about Hummer's drug use, and that footprints and fingerprint evidence corroborated her story. And again, given Mitchell declined to have the court reporter transcribe opening and closing statements, we have no way of knowing the extent of argument about Hummer's narcotic use.
Mitchell also appears to argue that under Brown, he was entitled to expert testimony about the effect of narcotic use on Hummer's perception, even if the expert had not reviewed her medical records and formed opinions about the specifics of Hummer's narcotic use. As a preliminary matter, this issue was not preserved for review, because Mitchell did not assign error to the trial court decision to exclude Dr. Wardle's expert testimony. See RAP 2.5(a). Even if the issue was preserved, however, we reject the argument. In Brown, we held the trial court erred in excluding expert testimony about the effect of LSD on an alleged rape victim. Brown, 48 Wn. App. at 660. But in Brown, the central issue in the case was whether the complainant was raped or had engaged in consensual sex with the defendants, and the proposed expert testimony was different from the proposed testimony here. Specifically, the defendants in Brown made an offer of proof from a psychiatrist who testified that LSD "always" produces "[p]erceptual distortions[.]" Brown, 48 Wn. App. at 657-58 n. 2.
In light of the strong presumption of effective representation of counsel, we hold Mitchell has failed to carry the heavy burden of showing prior counsel "made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Strickland, 466 U.S. at 687.
Sufficiency of the Evidence
Evidence is sufficient to support a conviction if, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980). "A claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom." State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992) (quoting, State v. Theroff, 25 Wn. App. 590, 593, 608 P.2d 1254, aff'd, 95 Wn.2d 385, 622 P.2d 1240 (1980)). "In determining the sufficiency of the evidence, circumstantial evidence is not to be considered any less reliable than direct evidence." State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980).
Mitchell first contends the evidence is insufficient to show the jury could have found beyond a reasonable doubt that his acts were undertaken for the purpose of sexual gratification. We disagree. When viewed in a light most favorable to the State, the evidence shows Mitchell, who had been a patron of the tanning salon for months, climbed on the back of a chair, stood precariously on it, placed his hands on top of the wall, and at a minimum, attempted to peer over the wall into the stall where Ms. Hummer was naked and toweling herself off. As such, a rational trier of fact could find beyond a reasonable doubt that Mitchell acted for the purpose of sexual gratification.
Mitchell next argues that the evidence is insufficient to show the jury could have found beyond a reasonable doubt that he "viewed" Hummer as that term is defined in the voyeurism statute. We agree.
The State charged Mitchell under the voyeurism statute, which reads in relevant part:
(2) A person commits the crime of voyeurism if, for the purpose of arousing or gratifying the sexual desire of any person, he or she knowingly views, photographs, or films:
. . .
(b) The intimate areas of another person without that person's knowledge and consent and under circumstances where the person has a reasonable expectation of privacy, whether in a public or private place.
RCW 9A.44.115(2)(b). For the purpose of this statute, "views" means "the intentional looking upon of another person for more than a brief period of time, in other than a casual or cursory manner[.]" RCW 9A.44.115(1)(e).
Here, there is no direct evidence that Mitchell actually looked at Hummer, let alone looked at her "for more than a brief period of time[.]" RCW 9A.44.115(1)(e). The State contends that although there is no direct evidence that Mitchell viewed Hummer, the jury could have reasonably drawn such an inference from the circumstantial evidence, namely, that Mitchell climbed on the back of a chair set against the wall and placed his hands on the top of the wall; that Hummer saw Mitchell's forehead and eyebrows above the wall; and that Hummer saw Mitchell's forehead quickly drop down and his hands fly off the top of the wall.
But even if the jury was entitled to infer from this circumstantial evidence that Mitchell looked at Hummer over the top of the wall, there is nothing on which to base an inference that Mitchell viewed Hummer "for more than a brief period of time" as is required by the statute. The State argues that when read as a whole, the clear legislative intent of this portion of the voyeurism statute is to exempt from the crime "the kind of viewing resulting from a casual glance." Specifically, the State contends the phrase "in other than a casual or cursory manner" somehow "modifies" the phrase "for more than a brief period of time" such that only casual glances are exempt, and the length of time of the viewing is irrelevant. We reject this argument. Even if this is the type of case the court suspects the Legislature intended to be covered by the voyeurism statute, we must apply the plain language as written by the Legislature. Courts "will not delete language from a clear statute even if the Legislature intended something else but failed to express it adequately." State v. Azpitarte, 140 Wn.2d 138, 142, 995 P.2d 31 (2000). Here, Mitchell's interpretation would read the phase "for more than a brief period of time" out of the statute.
The State also argues that under State v. Fleming, 137 Wn. App. 645, 154 P.3d 304 (2007), even a very brief view is sufficient to satisfy the statute. But in Fleming, evidence not only showed that the defendant actually looked at the complainant, but that the viewing occurred over a longer period of time. Specifically, the complainant heard someone enter a toilet stall next to her stall, saw a pair of man's shoes in that stall, saw the shoes disappear, heard a sound above her, saw the defendant peering over his stall into hers, saw him staring at her, and saw him stick his tongue out at her. Fleming, 137 Wn. App. at 647. She then yelled at him to leave her alone, and pulled up her pants. Id. Further, she had time to tell him she had a cell phone and was going to call 911. Id. Here, by contrast, there was no direct evidence that Mitchell viewed Hummer at all, and Hummer testified that she saw Mitchell's eyebrows only for a "split second," and only saw his forehead "[q]uickly." In short, Fleming is of no help in this case.
The State contends that even if the evidence is insufficient to sustain Mitchell's voyeurism conviction, we can nevertheless affirm because the record contains sufficient evidence that Mitchell committed the crime of attempt. But we recently rejected this very argument in In re Personal Restraint Petition of Heidari, No. 63040-7-I (Wash. Jan. 24, 2011) (appellate court cannot affirm on lesser included offense where jury was not explicitly instructed on lesser included offense).
Reversed and remanded with instructions for the trial court to enter an order of dismissal.