Opinion
42001-5-II
01-23-2013
STATE OF WASHINGTON, Respondent, v. ANTHONY JOSEPH PASCUZZI, Appellant.
UNPUBLISHED OPINION
Quinn-Brintnall, J.
A jury found Anthony Joseph Pascuzzi guilty of two counts of first degree child molestation. The jury also found that Pascuzzi abused a position of trust to commit the crimes. Pascuzzi appeals, alleging that (1) he received ineffective assistance of counsel, (2) the trial court erred by admitting evidence of flight, (3) the abuse of trust jury special verdict form was improper, and (4) the trial court's community custody provision requiring Pascuzzi to submit to searches is unconstitutional. Pascuzzi also filed a statement of additional grounds (SAG) disputing the calculation of his offender score. We affirm.
RAP 10.10.
FACTS
In July 2009, Pascuzzi was considered a close family friend of Kimberly Block and her children. On July 9, Block, her two daughters, M.M. and K.K., and her five-year-old son were at home with several friends, including Pascuzzi. C.B., K.K.'s friend, was also at the house visiting K.K. K.K. and C.B. were 11 years old. K.K. and C.B. went to bed around 9 pm.
The victim and her older sister share the same initials. In the record, the victim is repeatedly referred to by her nickname, "K.K." For clarity, we refer to the victim by her nickname K.K., and her older sister by her initials, M.M.
Several hours later, K.K. woke up with a migraine headache. K.K. was crying and woke up C.B. Pascuzzi and Block checked on the girls. Block got the girls some medicine and Pascuzzi began to run the girls a bath. After giving K.K. the medicine, Block went back to sleep. K.K. and C.B. then went into the bathroom.
Pascuzzi had both girls go to the bathroom in front of him. Then he took C.B.'s clothes off and put her in the bathtub. K.K. then got into the bath with C.B. because she did not want to leave C.B. alone. Pascuzzi also had the girls wash each other's hair. Pascuzzi had the girls sit in the tub facing each other. He then spread the girls' legs apart. Pascuzzi touched the girls' breasts and tried to kiss them. When Pascuzzi left the bathroom to get the girls some water, the girls locked the bathroom door. After getting out of the bathtub, the girls went into M.M.'s room and told her what had happened. M.M. took the girls to Block's room and the girls told Block what happened. Pascuzzi had already left the house. Block then reported the incident to the police.
On August 11, 2009, the State filed an information charging Pascuzzi with two counts of first degree child molestation and alleging abuse of trust as an aggravating circumstance. RCW 9A.44.083; RCW 9.94A.535(3)(n). On March 3, 2010, the State filed an amended information alleging two additional aggravating circumstances: (1) Pascuzzi's multiple current offenses and high offender score result in some of the current offenses going unpunished (free crimes), and (2) Pascuzzi's unscored misdemeanor criminal history results in a sentence that is too lenient. RCW 9.94A.535(2)(c), . (b).
The State subsequently filed two additional amended informations which corrected an error in the victim's initials and the date of the alleged offense.
A jury trial began on February 2, 2011. The State called nine witnesses: Deputy Bryan Skordahl of the Clark County Sheriff's Office, Block, K.K., Shelley Bianchi, Irene Sheppard from the Southwest Washington Medical Center, Deputy Albin Boyse of the Clark County Sheriff's Office, C.B., Detective Cindy Bull of the Clark County Sheriff's Office, and Deputy Scott Bain of the Clark County Sheriff's Office. The defense called Angela Stangle, Pascuzzi's common-law wife. Pascuzzi also testified. The State called M.M. as a rebuttal witness.
On February 3, 2011, the jury returned a verdict of guilty on both counts of first degree child molestation. The jury also found that Pascuzzi "use[d] his position of trust to facilitate a crime." Clerk's Papers (CP) at 143, 145. Pascuzzi's offender score was calculated at eight points, resulting in a standard sentencing range of 129 to 171 months. Based on the aggravating factors found by the jury, the trial court found substantial and compelling reasons to impose an exceptional sentence above the standard range. Pascuzzi was sentenced to a minimum of 200 months confinement with the statutory maximum of life imprisonment. Pascuzzi timely appeals.
ANALYSIS
Ineffective Assistance of Counsel
Pascuzzi alleges that he received ineffective assistance of counsel because his trial counsel failed to object to (1) hearsay statements in Block's testimony, (2) the State asking K.K. and C.B. if they were being truthful, and (3) Detective Bull's testimony that Pascuzzi never spoke to her regarding the allegations. Pascuzzi fails to identify any error to which a reasonable defense counsel would have objected, therefore Pascuzzi fails to show that his defense counsel's performance was deficient. Because Pascuzzi cannot show that his counsel's performance was deficient, his ineffective assistance of counsel claim fails.
To prevail on an ineffective assistance of counsel claim, Pascuzzi must show both deficient performance and resulting prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Counsel's performance is deficient if it fell below an objective standard of reasonableness. State v. Stenson, 132 Wn.2d 668, 705, 940 P.2d 1239 (1997), cert. denied, 523 U.S. 1008 (1998). Our scrutiny of counsel's performance is highly deferential; we strongly presume reasonableness. State v. McFarland, 127 Wn.2d 322, 335-36, 899 P.2d 1251 (1995). To rebut this presumption, a defendant bears the burden of establishing the absence of any conceivable legitimate tactic explaining counsel's performance. State v. Grier, 171 Wn.2d 17, 33, 246 P.3d 1260 (2011). "Where a claim of ineffective assistance of counsel rests on trial counsel's failure to object, a defendant must show that an objection would likely have been sustained." State v. Fortun-Cebada, 158 Wn.App. 158, 172, 241 P.3d 800 (2010) (citing State v. Saunders, 91 Wn.App. 575, 578, 958 P.2d 364 (1998)). To establish prejudice, a defendant must show a reasonable probability that the outcome of the trial would have differed absent the deficient performance. State v. Thomas, 109 Wn.2d 222, 226, 743 P.2d 816 (1987). If an ineffective assistance claim fails to support a finding of either deficiency or prejudice, it fails. Strickland, 466 U.S. at 697.
Block testified that immediately after K.K. and C.B. told her about the incident in the bathtub, she called Pascuzzi's house and spoke with Stangle. The State asked Block what she told Stangle over the phone. Block answered, "[O]f course, [I] went into telling her what had just happened. And she just begged me, you know, 'Kim don't do this to me, I'm pregnant and I need him.'" 4 Report of Proceedings (RP) at 77. Pascuzzi argues that defense counsel should have objected to Block's testimony because it included inadmissible hearsay.
But "[t]he decision of when or whether to object is a classic example of trial tactics. Only in egregious circumstances, on testimony central to the State's case, will the failure to object constitute incompetence of counsel justifying reversal." State v. Madison, 53 Wn.App. 754, 763, 770 P.2d 662 (citing Strickland, 466 U.S. 668), review denied, 113 Wn.2d 1002 (1989). Here, Block's single statement was not central to the State's case. In addition, it is likely that defense counsel decided not to object to avoid drawing unnecessary attention to the statement. Defense counsel's decision not to object was a valid trial tactic and there are no egregious circumstances that would warrant holding that defense counsel's failure to object was deficient performance.
During K.K.'s testimony, the State asked if she told the police the truth about what happened when they interviewed her the night of the incident; K.K. answered yes. During C.B.'s testimony, the State asked if she told the police the truth on the night of the incident and if she was telling the truth in court; C.B. answered yes to both questions. The prosecutor's questions to K.K. and C.B. were not objectionable. It is improper for the State to offer an opinion about a witness's truthfulness or credibility, ask a witness to testify regarding another witness's credibility, or to suggest that additional evidence exists which would corroborate a witness's testimony. See State v. Copeland, 130 Wn.2d 244, 290, 922 P.2d 1304 (1996) (improper for a prosecutor to express a personal opinion about a witness's credibility); State v. Hughes, 118 Wn.App. 713, 725-26, 77 P.3d 681 (2003) (misconduct for a prosecutor to compel a witness to express an opinion about whether another witness is telling the truth), review denied, 151 Wn.2d 1039 (2004); United States v. Edwards, 154 F.3d 915, 921 (9th Cir. 1998) (improper vouching if the prosecutor indicates that evidence not presented to the jury corroborates a witness's testimony). The State did not engage in any prohibited conduct when it asked the witnesses if they are telling the truth in their own statements and testimony. Therefore, defense counsel's performance was not deficient for failing to object to the State's questions.
Detective Bull testified that after the incident, she traded several messages with Pascuzzi, but ultimately, she never spoke to him regarding the allegations. Pascuzzi characterizes Bull's testimony as an improper comment on his right to remain silent. We disagree. "'[A] police witness may not comment on the silence of the defendant so as to infer guilt from a refusal to answer questions.'" State v. Embry, ____Wn. App. ____, 287 P.3d 648, 666 (2012) (quoting State v. Lewis, 130 Wn.2d 700, 705, 927 P.2d 235 (1996)). The State must intend the remarks to be a comment on that right. Embry, 287 P.3d at 666. Here, the State elicited Bull's testimony to demonstrate that Pascuzzi was aware of the investigation at the time he left the State and went to Florida. See State v. Freeburg, 105 Wn.App. 492, 497, 20 P.3d 984 (2001). Because Bull's testimony was offered to show Pascuzzi's knowledge of the investigation, it was not an improper comment on the defendant's right to remain silent, defense counsel's performance was not deficient for failing to object to it.
Pascuzzi is required to show that his defense counsel's performance was both deficient and prejudicial to prevail on his ineffective assistance of counsel claim. Strickland, 466 U.S. at 687. Pascuzzi's defense counsel's performance was not deficient, therefore Pascuzzi cannot satisfy the first requirement for ineffective assistance of counsel and his ineffective assistance of counsel claim fails. Evidence of Flight
Pascuzzi next alleges that the trial court erred by allowing the State to introduce evidence that he was brought back to Washington from Florida. Specifically, Pascuzzi argues that there was not sufficient evidence of flight to allow the jury to infer guilt, thus the evidence presented by the State was more prejudicial than probative and inadmissible under ER 403. The State responds that because Pascuzzi knew of the accusations made by the children and knew that the police were investigating him, Pascuzzi's decision to leave the State and go to Florida is evidence of flight which the jury is permitted to consider. In addition, the State argues that the evidence has little prejudicial effect because of the overwhelming evidence of guilt presented at trial. The trial court did not abuse its discretion by permitting the State to introduce evidence that Pascuzzi was escorted back to Washington from Florida.
The trial court specifically suppressed testimony that Pascuzzi was
We review the admission of potentially prejudicial evidence, including evidence of flight, for abuse of discretion. State v. Hebert, 33 Wn.App. 512, 515, 656 P.2d 1106 (1982) (citing State v. Mulder, 29 Wn.App. 513, 629 P.2d 462 (1981)). A trial court abuses its discretion if it bases a ruling on untenable grounds or untenable reasons. Freeburg, 105 Wn.App. at 497. The improper admission of evidence is harmless error if that evidence is of minor significance considering the evidence as a whole. State v. Bourgeois, 133 Wn.2d 389, 403, 945 P.2d 1120 (1997).
Evidence is relevant if it has any tendency to make the existence of a fact more or less probable. ER 401. But relevant evidence may be excluded "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." ER 403. "Evidence of flight is admissible if it creates 'a reasonable and substantive inference that defendant's departure from the scene was an instinctive or impulsive reaction to a consciousness of guilt or was a deliberate effort to evade arrest and prosecution.'" Freeburg, 105 Wn.App. at 497 (quoting State v. Nichols, 5 Wn.App. 657, 660, 491 P.2d 677 (1971)). Evidence of flight is often "only marginally probative as to the ultimate issue of guilt or innocence." Freeburg, 105 Wn.App. At 498.
Here, the State mentioned the evidence of flight two times in its closing argument:
And you heard that he became aware of these allegations, that he fled the state, that he left right away that night when the girls locked him out of the [bathroom] door.5-B RP at 354-55.
His actions of fleeing the house that night, of fleeing the state speak the loudest. Why would he leave the state?5-B RP at 357. To support this argument, the State presented evidence that Pascuzzi was aware of the girls' allegations and the ensuing investigation, Pascuzzi left the State shortly after the incident, and Pascuzzi was escorted back to Washington from Florida. The evidence presented by the State allows for the reasonable inference that Pascuzzi left the house knowing that the girls, who had locked him out of the bathroom, would tell someone what he had done and that he left the State because of the investigation into the accusations the girls made. Although Pascuzzi argues that he presented evidence explaining why he innocently went to Florida, an explanation does not preclude the State from being able to rebut Pascuzzi's explanation and argue evidence of flight to the jury. Therefore, the trial court did not abuse its discretion by allowing the State to present evidence of flight.
Abuse of Trust Jury Instruction
Pascuzzi also assigns error to the special verdict form for the abuse of trust aggravating factor. Pascuzzi alleges that the special verdict form was an impermissible comment on the evidence. Pascuzzi also argues that because the special verdict form asked the jury to determine whether he used his position of trust to facilitate a crime, the special verdict form misstated the law.
A. Comment on the Evidence
The State argues that because Pascuzzi failed to object to the instruction below, he waived the issue on appeal. The State is incorrect; Pascuzzi's allegation that the jury instruction was an improper comment on the evidence is a manifest error affecting a constitutional right and may be raised and reviewed by this court on appeal. Pascuzzi specifically complains that the special verdict form, as submitted to the jury, told the jury that Pascuzzi's position of trust was already established by law.
Under RAP 2.5(a), an issue not raised at the trial court is generally waived on appeal. State v. Powell, 166 Wn.2d 73, 82, 206 P.3d 321 (2009). CrR 6.15(c) requires timely and well-stated objections to jury instructions. State v. Scott, 110 Wn.2d 682, 685-86, 757 P.2d 492 (1988). However, under RAP 2.5(a)(3), a party may raise for the first time on appeal a manifest error affecting a constitutional right.
The Washington Constitution explicitly prohibits judicial comments on the evidence. Washington Constitution, art. IV, § 16. An allegation that a jury instruction constitutes an impermissible comment on the evidence is a manifest error affecting a constitutional right. State v. Levy, 156 Wn.2d 709, 719-20, 132 P.3d 1076 (2006). Therefore, Pascuzzi's claim that the special verdict form was an impermissible comment on the evidence is reviewable for the first time on appeal. Levy, 156 Wn.2d at 719-20.
We review jury instructions de novo, reading the jury instructions as a whole. State v. Pirtle, 127 Wn.2d 628, 656, 904 P.2d 245 (1995), cert. denied, 518 U.S. 1026 (1996). Article IV, section 16 of the Washington Constitution prohibits a judge from "'conveying to the jury his or her personal attitudes toward the merits of the case' or instructing a jury that 'matters of fact have been established as a matter of law.'" Levy, 156 Wn.2d at 721 (quoting State v. Becker, 132 Wn.2d 54, 64, 935 P.2d 1321 (1997)). If a jury instruction removes a disputed issue of fact from the jury's consideration, the special verdict form relieves the State of its burden to prove all elements of the sentence enhancement statute. Becker, 132 Wn.2d at 65. But an instruction that accurately states the applicable law, and is supported by sufficient evidence, is not an impermissible comment on the evidence. State v. Johnson, 152 Wn.App. 924, 935, 219 P.3d 958 (2009) (citing State v. Hughes, 106 Wn.2d 176, 193, 721 P.2d 902 (1986)); State v. Ciskie, 110 Wn.2d 263, 282-83, 751 P.2d 1165 (1988).
The special verdict form submitted to the jury read,
Did the defendant, ANTHONY JOSEPH PASCUZZI, use his position of trust to facilitate a crime?CP at 128.
In Becker, our Supreme Court addressed this issue regarding a special verdict form for a school zone sentencing enhancement. 132 Wn.2d at 60-61. The special verdict form in Becker read,
[Were] defendant[s], [Donald Becker and Nelson Gantt], within 1000 feet of the perimeter of school grounds: to-wit: Youth Employment Education Program School at the time of the commission of the crime?132 Wn.2d at 64 (alterations in original). The Youth Employment Education Program "[was] not now nor [had] it ever been called the 'Youth Employment Education Program School.'" Becker, 132 Wn.2d at 65. Because the special verdict form explicitly defined the Youth Education Employment "Program" as a "school, " the special verdict form impermissibly removed from the jury the determination of whether the Youth Education Employment Program was a school. Becker, 132 Wn.2d at 65.
Here, the use of the possessive "his" in the special verdict form presupposes that Pascuzzi had a position of trust. Because the special verdict form refers to Pascuzzi's position as a position of trust, it is an improper comment on the evidence.
But an improper comment on the evidence is not a per se prejudicial error that requires automatic reversal. Levy, 156 Wn.2d at 725. Instead, an improper comment on the evidence is presumed to be prejudicial "unless the record affirmatively shows that no prejudice could have resulted." Levy, 156 Wn.2d at 725. "The fundamental question underlying our analysis of judicial comments is whether the mere mention of a fact in an instruction conveys the idea that the fact has been accepted by the court as true." Levy, 156 Wn.2d at 726.
The special verdict form in Becker was reversible error because it explicitly defined the Youth Employment Education Program as a school. In contrast, the special verdict form in Pascuzzi's case implies but does not declare that Pascuzzi's relationship was a position of trust. The special verdict form does not refer to a specific relationship and the State argued that the jury could find that Pascuzzi used a position of trust to facilitate the crime if he abused the position of trust he held with Block or with the children. The jury instructions also contained a definition of "abuse of trust" and instructed the jurors that they would have to determine if Pascuzzi was in a position of trust prior to answering "yes" on the special verdict form. Unlike in Becker, where the explicit comment on the evidence removed consideration of the fact from the jury, the implied comment on the evidence in this case was ameliorated by the accompanying jury instructions and arguments. The jury is instructed to read and consider the instructions as a whole. Read together, the instructions clearly inform the jury of its obligation to determine whether Pascuzzi had a position of trust and whether he abused that position in order to commit the crimes charged. The mention of Pascuzzi's relationship in the special verdict form did not convey that that fact had been accepted as true. Accordingly, the improper comment on the evidence was not so prejudicial as to require reversal of the jury verdict.
Although the special verdict form did not result in reversible error here, we caution against continuing to use possessive pronouns in this or similar special verdict instructions. It is a best practice to avoid even an implied comment on the evidence by using "a" rather than "his" or "her." ---------
B. Misstatement of the Law
Pascuzzi also alleges that the special verdict form was improper because it contained a misstatement of the law. Specifically, Pascuzzi alleges that because the special verdict form asked the jury to determine whether Pascuzzi used his position of trust to commit a crime, rather than the specific crime charged. The State argues that any error in the jury instruction is harmless. The jury instruction in this case was a misstatement of the law; however, the erroneous instruction was harmless because the State charged Pascuzzi with first degree child molestation arising out of a single incident.
As an initial matter, our Supreme Court has determined that a similar instruction related to accomplice liability was a manifest error affecting a constitutional right that can be raised for the first time on appeal. State v. Roberts, 142 Wn.2d 471, 500-01, 14 P.3d 713 (2000). But the instructional error is also subject to harmless error analysis. State v. Cronin, 142 Wn.2d 568, 579, 14 P.3d 752 (2000). An instruction that relieves the State of its burden to prove an element of the crime is reversible error and cannot be harmless. Cronin, 142 Wn.2d at 579-80.
Pascuzzi argues that the special verdict form "allowed the jury to find the aggravating fact without requiring it to find that the defendant used a position of trust and authority to facilitate the commission of the crime charged, as opposed to another offense." Br. of Appellant at 31. Pascuzzi supports his argument by citing our Supreme Court's opinions in Roberts and Cronin. But in this case, Pascuzzi's reliance on Roberts and Cronin is misplaced.
Roberts and Cronin involved jury instructions for accomplice liability. In both cases, our Supreme Court reversed the convictions because the jury instructions "may have allowed the State to secure a conviction without having to prove beyond a reasonable doubt that [the defendant] knew he was facilitating the commission of the crime [charged]." Cronin, 142 Wn.2d at 581.
But here, the record shows that the State proved beyond a reasonable doubt that Pascuzzi committed the required elements of the crime as well as the aggravating factor, rendering any error in the jury instruction harmless. The State charged Pascuzzi with two counts of first degree child molestation and each count included the abuse of trust aggravating factor. Both counts arose from a single incident—the bath on July 9, 2009. In closing arguments, the State explained to the jury, "If you find the defendant guilty of these two charges, then you're to evaluate whether or not he abused a position of trust for each of the charges." 5-B RP at 359. The State was explicit that the aggravating factor applied specifically to the two crimes with which Pascuzzi was charged. Therefore, here, the State clearly established the required causal connect between the aggravating factor and the crime charged. Accordingly, the error in the special verdict form was harmless.
Community Custody Provision
Finally, Pascuzzi assigns error to a community custody provision included in his judgment and sentence. The challenged condition reads as follows:
You must consent to allow home visits by Department of Corrections to monitor compliance with supervision. This includes search of the defendant's person, residence, automobile, or other personal property, and home visits include access for the purposes of inspection of all areas the defendant lives or has exclusive/joint control or access. RCW 9.94A.631.CP at 343. Pascuzzi alleges that this provision violates article 1, section 7 of the Washington Constitution and the Fourth Amendment of the United States Constitution. The State argues that under State v. Massey, 81 Wn.App. 198, 913 P.2d 424 (1996), Pascuzzi's challenge to the community custody provision is not ripe for review.
Massey is dispositive of this issue. Under Massey, the exact community custody provision Pascuzzi complains of here is not ripe for review until Pascuzzi is subjected to an improper search. Massey, 81 Wn.App. at 199-200. Pascuzzi contends that the holding in Massey has been overturned by our Supreme Court in State v. Bahl, 164 Wn.2d 739, 193 P.3d 678 (2008), and State v. Sanchez Valencia, 169 Wn.2d 782, 239 P.3d 1059 (2010). But Pascuzzi is incorrect.
In Bahl and Sanchez Valencia, the defendants raised vagueness claims which can be considered before enforcement is attempted. Bahl, 164 Wn.2d at 745-46; Sanchez Valencia, 169 Wn.2d at 786. The court in Sanchez Valencia explicitly distinguished the condition at issue in this case:
The condition at issue places an immediate restriction on the petitioners' conduct, without the necessity that the State take any action. This is in contrast to conditions imposing financial obligations or allowing for the search of a person or residence, as identified in Bahl, 164 Wn.2d at 749 (challenge to sentencing condition imposing financial obligation not ripe until State takes action to collect fines) (citing State v. Ziegenfuss, 118 Wn.App. 110, 113-15, 74 P.3d 1205 (2003), review denied, 151 Wn.2d 1016 (2004)); Massey, 81 Wn.App. at 200-01 (challenge to sentencing condition subjecting defendant to search premature until search actually conducted); State v. Phillips, 65 Wn.App. 239, 243-44, 828 P.2d 42 (1992) (same as Ziegenfuss). Such conditions are not ripe for review until the State attempts to enforce them because their validity depends on the particular circumstances of the attempted enforcement.169 Wn.2d at 789. Pascuzzi's challenge to his community custody provision is not ripe for review and we decline to address it.
SAG
In his SAG, Pascuzzi challenges the calculation of his offender score based on two allegations: (1) a New York crime related to a revoked driver's license is still open and has not resulted in a judgment, and (2) the Washington Department of Licensing revoked his driver's license without due process of law. Because neither the alleged New York charges nor the Washington driving with license suspended charge were included in the calculation of Pascuzzi's offender score, Pascuzzi's claim that his offender score was miscalculated lacks merit.
The declaration of criminal history presented by the State clearly sets out the convictions the State relied on and how they were used in calculating Pascuzzi's offender score. The declaration of criminal history does not contain any reference to charges from New York State. Accordingly, there can be no error in the calculation of Pascuzzi's offender score based on the finality of alleged charges from New York.
The declaration of criminal history also clearly indicates that the third degree driving while license suspended charge was calculated as zero points when determining Pascuzzi's offender score. Accordingly, any error related to the validity of the driving while license suspended did not contribute to the calculation of Pascuzzi's offender score.
Additionally, there is no evidence in the record related to the merits of either of the issues presented by Pascuzzi in his SAG. We cannot review evidence not in the record on appeal. McFarland, 127 Wn.2d at 338.
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 in accordance with RCW 2.06.040, it is so ordered.
We concur: PENOYAR, J., WORSWICK, C.J.
arrested in Florida. Therefore, Deputy Bain testified that he escorted Pascuzzi back to Washington from Florida.