Opinion
No. 25397-0-III.
January 29, 2008.
Appeal from a judgment of the Superior Court for Yakima County, No. 95-1-01068-2, Ruth Reukauf, J., entered June 30, 2006.
Affirmed by unpublished opinion per Thompson, J. Pro Tem., concurred in by Schultheis, A.C.J., and Kulik, J.
Darrell Lee Shafer was previously convicted of five counts of rape of a child, two counts of child molestation, and one count of attempted child molestation involving three children. Approximately 10 years later, one of the victims recanted her claims of abuse, and Mr. Shafer moved for a new trial on the basis of newly discovered evidence. The trial court denied the motion holding that (1) the victim's recantation was unreliable, and (2) there was sufficient independent evidence to corroborate her original disclosures and testimony to support Mr. Shafer's convictions. Mr. Shafer appeals and we affirm.
FACTS
Early in June 1995, Lisa U. reported to the Yakima police that her boyfriend, Mr. Shafer, had been sexually abusing her daughter, DU. During interviews with two police officers and a Child Protective Services social worker, DU described numerous sexual contacts involving Mr. Shafer's hands, mouth, penis, and a purple vibrator. She also stated that Mr. Shafer had "touched" her two friends, sisters AS and MS. Both AS and MS were then interviewed and described an incident when they had spent the night with DU at Mr. Shafer's trailer. They claimed he touched them with his hands and a purple vibrator. All these incidents occurred when DU was 9, MS was 8, and AS was 10.
Mr. Shafer was arrested and ultimately charged with seven counts of first degree rape of a child, seven alternative counts of first degree child molestation, and one independent count of first degree child molestation.
At trial, Lisa U. testified that she lived with Mr. Shafer for approximately nine years. During that time, DU split her time between her mother and her father, Randy U. Lisa U. admitted that she had witnessed Mr. Shafer sexually abusing her daughter on numerous occasions. She stated she observed Mr. Shafer remove DU's clothing and that he touched her vagina with his hand, mouth, and penis. She also testified that on one occasion, DU was in bed with her when she was having sex with Mr. Shafer. At one point during their lovemaking, Mr. Shafer placed DU's hand on her breasts and that he touched DU with his hand, mouth, and penis. She further testified that she had witnessed Mr. Shafer use a vibrator on DU and that he had played X-rated videos for DU to watch. The vibrator was admitted into evidence.
Lisa U. was arrested and pleaded guilty to two counts of accomplice to first degree rape of a child arising from Mr. Shafer's alleged rape of DU.
DU testified that Mr. Shafer touched her private parts with his hands on more than one occasion. She also testified that he touched her "privates" and her "butt" with his "privates" sometimes. Report of Proceedings (RP) at 516-19. DU also testified that on one occasion, Mr. Shafer touched her privates with his hands, his private, and a purple vibrator. She identified the vibrator admitted into evidence as the one Mr. Shafer used on her. She stated that her mother was present during some of these incidents. MS testified that Mr. Shafer gave her a "bad touch" when she spent the night with DU. RP at 341. She stated that Mr. Shafer took her to his bed and that she saw his private part. She also testified that he touched her "pee-pee" and her butt with a "purple thing." RP at 346. She then identified the vibrator admitted into evidence as the one Mr. Shafer used on her. She indicated that at one point Lisa U. put lotion on MS's hands and MS touched Mr. Shafer's private part. AS testified that when she slept over at DU's, Mr. Shafer attempted to touch her, but was unsuccessful. She stated he also grabbed her hand and tried to get her to touch him, but that it did not happen.
Dr. Roy Simms testified that he found no trauma to DU's body, but that her statements supported his diagnosis of sexual abuse. Robyn Light, an expert in interviewing child victims of sexual abuse, testified that skilled interviewers look for "sensory details" to determine whether a sexual abuse allegation should be further investigated. RP at 619. Ms. Light did not interview DU, AS, or MS herself, but she examined the statements recorded by Detective Edmond Campbell. Ms. Light related numerous instances of specific sexual conduct and graphic details contained in Detective Campbell's interviews of DU, AS, and MS.
Detective Campbell connected particular sexual acts with each victim, the time frame and the physical location. Randy U., the girls' school counselor, and the two investigating police officers related what the girls had told them about the incidents.
The defense offered only two character witnesses. Following an unsuccessful motion to dismiss, the defense rested. The State then moved to again amend the information, changing count VIII to attempted first degree child molestation. Over defense objection, the motion was granted.
The jury convicted Mr. Shafer of five counts of rape of a child, two counts of molestation, and one count of attempted molestation.
Mr. Shafer subsequently moved to set aside the judgment and sentence on the basis of newly discovered evidence — the recantation of DU. In an affidavit, DU attested that she was currently 19 years of age and that she was compelled by conscience and a sense of justice to set the record straight and to recant any and all charges, claims, and testimony which she falsely gave as a child against Mr. Shafer. She asserted that her previous claims of molestation and sexual abuse were simply not true and were made under the direction of and pressure from her parents. More specifically, she stated that her parents told her to lie to the police that Mr. Shafer had inappropriately touched her in her private areas, that he had vaginally penetrated her with his fingers and penis, that there had been oral-genital contact, and that during these incidents her mother had been present. She stated that she lied to the police because she was frightened, confused, and intimidated by her parents. She stated that the sole basis for her knowledge and familiarity with the various acts of sexual abuse which she attributed to Mr. Shafer came as a result of her molestation by her father and she believes the painful thoughts of the abuse perpetrated by her father allowed her to give the false impression to the jury that she was being forthright and honest about her accusations of abuse against Mr. Shafer.
In terms of her parents' actions, she stated that she believed that they had concerns that the police might learn of her father's proclivities toward the sexual abuse of children as the mother of AS and MS had begun making inquiries about their abuse by an adult male during a sleepover. She further stated that her mother's lies (1) were simply a delusion on her part precipitated by substance abuse; (2) were prompted by a desire for revenge because she had fallen out of a relationship with Mr. Shafer; (3) were a means for her to cover up the abuse by her father of which she was fully aware; or (4) were simply a maneuver to gain a lighter sentence on her guilty plea of being an accomplice to sexual abuse.
As for the claims of AS and MS, she stated that they never slept over at Mr. Shafer's home, but that they had, in fact, slept over with her at her father's house. Thus, any abuse they may have suffered could only have occurred at the sleepovers at her father's house. Furthermore, DU believed that MS had been abused by an uncle as a child and that could explain her knowledge and familiarity with sexual abuse as she described at Mr. Shafer's trial.
She further attested that Mr. Shafer always acted appropriately toward her and, in fact, treated her far better than her parents. She claimed that all her memories of Mr. Shafer were happy ones. She stated that he was kind to her and that he never threatened her or her family.
DU also testified at the hearing on the motion to vacate judgment and sentence. At the hearing, she testified that she had been in contact with Mr. Shafer's mother and sister and that she had decided to come forward because she felt bad that her lies had placed Mr. Shafer in prison. On direct examination, she testified consistently with her affidavit. On cross-examination, however, she testified that, because she did not have any recollection of Mr. Shafer abusing her, it must not have happened. Nor could she remember MS or AS coming over to the trailer she shared with her mother and Mr. Shafer. She also admitted that she had no idea why her mother would tell her to lie about Mr. Shafer abusing her. She admitted telling Detective Bob Udell that her mother and Mr. Shafer seemed to be doing well at the time the allegations were made, that they never fought when she was around, and they always seemed happy.
After the hearing, the trial court denied the motion for new trial holding (1) that DU's recantation was unreliable, and (2) that there was sufficient independent evidence to corroborate DU's original disclosures and testimony supporting Mr. Shafer's convictions. Mr. Shafer appeals from this order.
ANALYSIS
Mr. Shafer argues that the trial court erroneously denied his motion for a new trial which he based on the recantation evidence of DU. The trial court denied the motion on the basis of (1) the unreliability of the recantation, and (2) the sufficiency of the independent evidence corroborating the child's original disclosures and testimony supporting the convictions.
Except where questions of law are involved, we review a trial court's denial of a motion for a new trial for abuse of discretion. State v. Williams, 96 Wn.2d 215, 221, 634 P.2d 868 (1981). "To obtain a new trial based upon newly discovered evidence, a defendant must prove that the evidence: (1) will probably change the result of the trial; (2) was discovered after the trial; (3) could not have been discovered before trial by the exercise of due diligence; (4) is material; and (5) is not merely cumulative or impeaching." State v. Macon, 128 Wn.2d 784, 800, 911 P.2d 1004 (1996). All five factors must be present to justify a new trial. Id. In evaluating the trial court's decision, we consider only whether substantial evidence supports the findings of fact and, if so, whether they support the court's conclusions of law and judgment. Id. at 799.
A witness's recantation may be considered newly discovered evidence. Id. at 799-800. But it is inherently questionable and ?`does not necessarily, or as a matter of law, entitle the defendant to a new trial.'" Id. at 801 (quoting State v. Wynn, 178 Wash. 287, 288, 34 P.2d 900 (1934)). Thus, the trial court must initially make a threshold determination regarding the recantation's reliability. Macon, 128 Wn.2d at 804 (citing State v. Rolax, 84 Wn.2d 836, 529 P.2d 1078 (1974), overruled on other grounds in Wright v. Morris, 85 Wn.2d 899, 540 P.2d 893 (1975)).
In making this threshold determination, the trial court is allowed to consider the circumstances surrounding the case, including DU's possible reason for recanting, the circumstances under which she made the recantation, the time between the testimony and the recantation, and the credibility of the witnesses testifying about the recantation. Macon, 128 Wn.2d at 802-03. It is the court, not a jury, who is responsible for determining the recanting witness's credibility. See State v. Ieng, 87 Wn. App. 873, 880, 942 P.2d 1091 (1997) (trial court makes own credibility determinations without regard to whether a jury might find the witness credible), review denied, 134 Wn.2d 1014 (1998); State v. Smith, 80 Wn. App. 462, 471, 909 P.2d 1335 (1996) (trial court's credibility determination is based on the persuasive value to a reasonable juror), rev'd on other grounds, 131 Wn.2d 258, 930 P.2d 917 (1997). And ?`when the trial court, after careful consideration, has rejected such testimony, or has determined that it is of doubtful or insignificant value, its action will not lightly be set aside by an appellate court.'" Macon, 128 Wn.2d at 804 (quoting Wynn, 178 Wash. at 289).
Here, among other things, the trial court reviewed the testimony and evidence presented at the trial, examined DU's affidavits recanting her testimony, and observed DU's testimony and demeanor at the hearing on the motion for new trial. The trial court then determined that DU's recantation was unreliable.
Mr. Shafer complains of the trial court's review of Dr. Simms' testimony as it was deemed inadmissible in a prior appeal. However, this court held that Dr. Simms' testimony was inadmissible as to his diagnosis of sexual abuse based solely on DU's statements. Judge Reukauf, in her order, specifically stated that she reviewed Dr. Simms' testimony, but "only as it related to the credibility of DU's recantation testimony." Clerk's Papers at 5. Thus, it is clear from the record that Judge Reukauf did not utilize that testimony in an improper manner.
Mr. Shafer asserts that several of the court's "findings" are in actuality conclusions of law. To the extent these findings are in reality conclusions of law improperly designated as findings of fact, they have been reviewed as if they were questions of law. See Dullanty v. Comstock Dev. Corp., 25 Wn. App. 168, 171, 605 P.2d 802 (1980).
In so finding, the trial court noted that DU's testimony at the hearing was inconsistent with the statements made in her affidavit and the statements she made to Detective Udell; yet her testimony at trial was consistent with the testimony of her mother and the other victims. The court further stated that DU was unable to maintain eye contact when asked if she was being truthful, although she had had no problem maintaining eye contact previously. Additionally, DU was unable to adequately explain why her mother would risk prison for something that was not true and why MS and AS would testify falsely that they were abused by Mr. Shafer. The trial court properly considered these facts when ruling on the reliability of DU's recantation. A review of the record before us reveals that these findings and conclusions are sufficiently supported by the record. As substantial evidence supports the court's findings of fact and those findings, in turn, support the court's conclusions of law (even those improperly designated as findings of fact), the trial court did not abuse its discretion.
Additionally, there is sufficient corroborating evidence to support DU's original trial testimony. First, Lisa U. testified that she witnessed the abuse suffered by DU at the hands of Mr. Shafer. She even pleaded guilty as an accomplice to this abuse. And her recitation of the events was strikingly similar to the recitation given by DU. Second, DU originally testified that she believed that Mr. Shafer abused MS and AS while they attended a sleepover at Mr. Shafer's trailer. This was confirmed by the testimony of MS and AS. Finally, at trial, Lisa U. identified a purple vibrator she stated Mr. Shafer used to molest DU. The vibrator was admitted into evidence and DU and MS both confirmed that Mr. Shafer used that vibrator on them.
On these facts, it is clear that Mr. Shafer's conviction was not based solely upon the testimony of DU. "[W]hen there exists independent evidence corroborating that of the witness who later seeks to recant his testimony, it is within the sound discretion of the trial court to determine whether to grant a new trial." Rolax, 84 Wn.2d at 838; see also State v. Shaffer, 72 Wn.2d 630, 635, 434 P.2d 591 (1967). The trial court did not abuse its discretion here.
Next, Mr. Shafer contends that DU's recantation calls into question the veracity of the claims of MS and AS against him. He argues that, if MS and AS never visited nor stayed overnight in Mr. Shafer's trailer as they originally claimed, then the claims against him are suspect and patently unfounded. As a result, the remaining two counts of molestation and attempted molestation of MS and AS should also be reversed.
However, DU's recantation as it relates to the claims of MS and AS would serve only to impeach their testimony and credibility. Under the test set forth in Macon, the evidence submitted must not be presented only to impeach or discredit evidence presented at trial. State v. Edwards, 23 Wn. App. 893, 898, 600 P.2d 566 (1979). That is exactly what DU's recantation does. As a result, Mr. Shafer's arguments on this issue must also fail.
In his statement of additional grounds, Mr. Shafer argues that the trial court erred in denying his motion for a new trial. He first alleges that the State misrepresented the basis for DU's recantation. More specifically, he claims that the State represented that DU was recanting in order to gain favor with Mr. Shafer's family because she was pregnant and needed help when, in fact, DU was not pregnant at the time she submitted the affidavits recanting her trial testimony. Even assuming the truth of this allegation, Mr. Shafer cannot show prejudice. The trial court's written findings and conclusions do not even mention DU's pregnancy as a factor in its decision.
Next, he claims that the only evidence used to convict him was DU's false testimony which was "parroted" by other witnesses. Statement of Add'l Grounds at pg. 3. As discussed above, there was other sufficient evidence to support her previous testimony including the eyewitness testimony of Lisa U., and the corroborating testimony of MS and AS confirming that they had been abused by Mr. Shafer as revealed by DU. MS, like DU, also testified at trial that Mr. Shafer had utilized a purple vibrator during the abuse. Thus, there was other sufficient evidence of abuse to support the conviction as well as other evidence corroborating DU's previous testimony.
Finally, he argues that the trial court improperly ruled on DU's credibility. He asserts that credibility determinations lie with the jury not the trial court. However, it is the court, not the jury, who is responsible for determining the recanting witness's credibility. See Ieng, 87 Wn. App. at 880 (trial court makes own credibility determinations without regard to whether a jury might find the witness credible); Smith, 80 Wn. App. at 471 (trial court's credibility determination is based on the persuasive value to a "reasonable juror"). Thus, his argument must fail.
Next, Mr. Shafer argues that the prosecutor should not have been allowed to address this case due to a conflict of interest. Mr. Shafer claims he filed a federal lawsuit against the prosecutor in 2001, but later obtained a dismissal without prejudice pending a vacation of his wrongful conviction and sentence in this case. This argument, however, refers to matters outside of the record and is beyond this court's ability to review. On appeal, we limit our review to issues contained in the record. See State v. McFarland, 127 Wn.2d 322, 338 n. 5, 899 P.2d 1251 (1995) ("a personal restraint petition (PRP) is the appropriate means of having the reviewing court consider matters outside the record").
He further alleges prosecutorial misconduct. More specifically, he argues that the prosecutor, in collusion with the trial court, unethically changed the trial judge one hour before the hearing, knowing that the change would prejudice him. However, RCW 4.12.050 permits a party to change judges once as a matter of right, by way of a timely motion and affidavit of prejudice, without substantiating the claim of prejudice . State v. Dominguez, 81 Wn. App. 325, 328, 914 P.2d 141 (1996). Additionally, the record merely indicates that the trial court was advised of the impending affidavit of prejudice before it was filed and prepared for the upcoming hearing under the assumption that she would be hearing the matter. Nothing on these facts suggests any improper conduct on the part of the prosecutor or the trial court.
He also alleges prosecutorial misconduct asserting that the prosecutor altered the trial transcripts to hide a previous recantation by DU on the second day of his trial and subsequently lied to hide her misconduct. But, assuming Mr. Shafer's allegations are true, and DU did recant at trial, then his claims that this subsequent recantation is "newly discovered evidence" entitling him to a new trial must necessarily fail.
Finally, Mr. Shafer questions the assignment of this case to Prosecutor Ramm who was not present at the hearing as well as the reason for the delayed entry of findings of fact and conclusions of law. First, there is no evidence in the record that Prosecutor Ramm's conduct in the case is in any way questionable. Second, although the practice of submitting late findings and conclusions is disfavored by this court, entry of findings of fact and conclusions of law — even as late as during the pendency of a criminal appeal — does not require reversal unless the delayed entry was prejudicial to the defendant and the findings and conclusions have been altered to address issues and arguments raised by the appeal. State v. Cannon, 130 Wn.2d 313, 329-30, 922 P.2d 1293 (1996) (citing State v. McGary, 37 Wn. App. 856, 861, 683 P.2d 1125, review denied, 102 Wn.2d 1024 (1984)). Here, it is apparent that no prejudice flowed to Mr. Shafer because of the late filing of the findings and conclusions. The findings were filed prior to the filing of his brief on appeal, thus he cannot complain that the State tailored or altered the findings and conclusions to meet arguments raised by his brief. Additionally, the written findings and conclusions are consistent with the trial court's oral ruling. Therefore, Mr. Shafer is not prejudiced by their delayed entry.
We affirm.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040. Schultheis, A.C.J., Kulik, J., concur.