Opinion
No. 33081-4-II.
November 28, 2006.
Appeal from a judgment of the Superior Court for Mason County, No. 00-1-00472-9, Katherine M. Stolz, J., entered March 11, 2005.
Counsel for Appellant(s), Stephanie C Cunningham, Attorney at Law, Seattle, WA.
Counsel for Respondent(s), Kathleen Proctor, Tacoma, WA.
Affirmed by unpublished opinion per Penoyar, J., concurred in by Armstrong and Quinn-Brintnall, JJ.
Gary Curtis Tanner appeals his two convictions for first degree child molestation. He claims that the trial court erred in allowing the victim to testify about uncharged incidents of sexual assault. He also claims that the trial court erred in allowing prejudicial and confusing testimony, that the expert witness testimony was inadmissible, and that he did not receive effective assistance of counsel. We affirm.
FACTS I. Background
In September 1998, JR moved into the Rainier Apartments with her mother, Maria her younger brother and sister; and her mother's boyfriend, Tanner. JR considered Tanner her father, although he was only her younger sister's biological father. JR (born in 1992) was in the first grade when her family moved into the Rainier Apartments. She lived there until she was placed in foster care in February 2003. JR's mother, who suffered from schizophrenia that prevented her from working, also used methamphetamine and crack cocaine.
We use her first name here to protect the victim's identity. We intend no disrespect.
JR testified that they were in the Rainier Apartments the first time that Tanner touched her inappropriately. She recalled that Tanner molested her on several different occasions but she could not recall which incident happened first. On one occasion, he offered to do her hair. He sat on the couch and, while she sat on the floor in front of him, he reached down her pants and started rubbing her vagina.
On another occasion, JR and her siblings were watching television while Tanner stood in the closet looking at a Playboy magazine. Tanner then came over, sat next to JR, and started touching her vagina under her clothes.
J.R. also described an incident when she and Tanner were lying next to each other on the futon watching television alone together. Tanner then grabbed her and started rubbing his penis against her vagina.
At another time, JR wanted to watch television but was sent to bed because it was bedtime. Tanner woke her a while later and said that it was alright for her to watch television. JR sat on her mother's bed watching television while Tanner lay down on the bed beside her. Tanner then rubbed JR's vagina under her clothes.
Finally, JR described an incident when she and Tanner were sleeping together on the futon while her mother, brother, and sister were all sleeping together on their mother's bed. JR awoke to find Tanner touching her buttocks under her clothes. JR said that her mother awoke to get a drink of water and saw Tanner touching her but did not do anything.
Throughout her testimony, JR was not able to say when any of these incidents took place nor did she remember the order in which they occurred.
A few months after she was placed in foster care, JR told her foster sister about the molestation and her foster sister told JR's foster mother. The foster mother reported the disclosures to Child Protective Services (CPS). JR was eleven at the time.
Dr. Yolanda Duralde at Mary Bridge Children's Hospital interviewed JR and performed a physical exam on April 23, 2003. During the interview, JR named Tanner and answered Dr. Duralde's specific questions about how he molested her. Dr. Duralde was not able to find physical evidence of molestation but did not consider that unusual.
Jennifer Knight, a child interview specialist at Mary Bridge Child Advocacy Center, interviewed JR on April 30, 2003. JR also disclosed the sexual abuse to her.
CPS referred the case to law enforcement. Fircrest police sergeant John Villamor arrested Tanner based on the information from Knight's report. Tanner denied touching JR inappropriately.
The State charged Tanner with two counts of first degree child molestation. It based count one on the incident where Tanner awoke JR to let her watch television. It based the other count on Tanner fondling JR's buttocks while her mother and sister were asleep in the other bed. The charging period was March 2, 2000 to March 1, 2002.
II. Procedural History A. Evidentiary Hearing
The State moved the trial court to allow testimony about the uncharged sexual abuse incidents, characterizing them as prior sexual abuse tending to prove Tanner's lustful disposition toward JR. The trial court held an evidentiary hearing at which JR testified about four incidents of sexual abuse: the hair incident, the Playboy incident, the television incident, and the incident when Tanner rubbed against her as they were sleeping on the futon. JR could not say for sure when any of these incidents took place or which ones happened first. She could only say that they all took place after the family moved into the Rainier Apartments.
The trial court excluded the testimony about prior uncharged incidents of sexual behavior because JR's time frame was too fluid. The court could not tell which events were prior and which were subsequent to the incidents charged.
The State then told the trial court that it was going to amend the information to expand the charging period from 1997 through 2002. The State also argued that JR not being able to pinpoint the dates should not mandate exclusion. The court emphasized the timing, saying: "[a]s far as the preponderance of the evidence, I'm not certain when these even occurred; or if she's remembering . . . parts or facets of what may have been part of the charged incidents but are now separate in her mind. . . . [I]t's very difficult to tell from the testimony." 2 Report of Proceedings (RP) (Jan. 19, 2005) at 84-85.
The charging information was actually amended to expand the charging period to 1998 to 2002, to include the entire time JR lived at Rainier Apartments.
The State responded that it would be submitting the issue to the jury along with a Petrich instruction requiring the jury to agree on one or two of the counts. The State argued that the three prior uncharged sex acts would now fall within the expanded charging period.
State v. Petrich, 101 Wn.2d 566, 683 P.2d 173 (1984).
Tanner responded that the evidence of uncharged acts should still be excluded. He argued: "We can't know, as the Court suggests, whether she is now compartmentalizing events and creating two out of one. It's just far too prejudicial, and the probative value is marginal because of the lack of content and detail that she can give to these events." 2 RP (Jan. 19, 2005) at 85.
The trial court responded that, because the State was amending the information, it would allow the testimony. The trial court also stated:
Certainly, there's some real serious issues here with a jury as to whether . . . the child is a credible witness, . . . whether or not the acts occurred . . . and a jury might assume they did; but whether they're going to be able to convict is a question because there is some credibility problems here [sic] which may be typical of many of these victims.
2 RP (Jan. 19, 2005) at 86.
The trial court then went through a four-step ER 404(b) analysis, finding by a preponderance of the evidence that the three uncharged acts occurred between 1997 and 2001.
ER 404(b) provides:
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. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
The amended information gives the charging period as September of 1998 through January 31, 2003. It appears the court misspoke in using 2001 as the "end date." Tanner does not challenge this aspect of the finding.
The trial court found that the testimony's purpose was permissible because it tended to show a lustful disposition toward the victim. The trial court also determined that the testimony was materially relevant because the charged acts were molestation under similar circumstances, and that the testimony was more probative than prejudicial.
The trial court then agreed to give the jury a limiting instruction regarding the uncharged allegations. The instruction, read to the jury before JR's trial testimony and included in the jury instruction packet, stated:
Evidence will be introduced in this case regarding uncharged allegations of sexual misconduct by the defendant. Although this evidence concerns criminal acts, the defendant has not been convicted of the acts and therefore he is presumed innocent of the allegations.
The prosecution has offered this evidence for a limited purpose. The prosecution offered this evidence for the limited purpose of arguing that the defendant committed the charged crime as part of a common scheme or plan. The law does not allow this evidence to be used to show that the defendant has a propensity to commit acts of this type.
You may not use the evidence for any purpose other than determining whether the defendant committed the charged crime as part of a common scheme or plan.
3 RP (Jan. 27, 2005) at 137-38; See also Clerk's Papers (CP) at 49, Instruction (Instr.) 5.
B. Petrich Instruction
The Petrich instruction, given to the jury at the end of trial, stated:
There are allegations that the defendant committed acts of child molestation on multiple occasions. To convict the defendant, one or more particular acts must be proved beyond a reasonable doubt and you must unanimously agree as to which act or acts have been proved beyond a reasonable doubt. You need not unanimously agree that all the acts have been proved beyond a reasonable doubt.
CP at 51, Instr. 7.
The State did not specify at trial which acts it believed formed the bases for the two counts. Rather, it argued that all five incidents happened, but referred to the Petrich instruction and informed the jurors that as long as they could agree that two of the incidents occurred, the jury could convict on two counts.
The jury convicted Tanner of both counts. During deliberations, the jury sent the trial court a note asking, "[d]o we need to specify on paper incidents that we may agree on?" CP at 42. The record does not reflect how the trial court addressed this question.
ANALYSIS I. Admission of Testimony about Uncharged Incidents
Tanner argues that the trial court's initial ruling excluding evidence of the uncharged acts was correct, and the court erred in changing its analysis after the State enlarged the charging period. He asserts that the trial court abused its discretion by admitting JR's testimony "despite its opinion that the acts had not been established by a preponderance of the evidence." Appellant's Br. at 8. He also claims that the testimony's "highly prejudicial impact" outweighed its relevance. Appellant's Br. at 8.
The State responds that once it enlarged the charging period to include the entire time that JR lived with Tanner at the Rainier Apartments, the three uncharged incidents no longer qualified as evidence of "other crimes, wrongs, or acts" under ER 404(b). Rather, all five alleged incidents provided a factual basis on which the jury could find Tanner guilty, as long as the jury unanimously agreed, following the Petrich instruction, on which acts he committed.
The State also claims that JR's testimony was relevant because it was direct evidence of the charged crimes. The State claims that direct evidence of the crime itself cannot be excluded as being overly prejudicial.
The admission of evidence is within the trial court's sound discretion. State v. Kleist, 126 Wn.2d 432, 436, 895 P.2d 398 (1995). An abuse of discretion occurs only where exercise of discretion is manifestly unreasonable or based on untenable grounds or reasons. Kleist, 126 Wn.2d at 436.
The trial court did not abuse its discretion in admitting testimony regarding uncharged acts of molestation. While a defendant's bad conduct is generally inadmissible under ER 404(b), an exception exists in sexual assault cases: evidence of collateral sexual misconduct may be admitted where it shows the defendant's "lustful disposition" toward the victim. State v. Ray, 116 Wn.2d 531, 547, 806 P.2d 1220 (1991). Evidence of sexual contact with the victim both before and after the acts in question is admissible. 5 Karl B. Tegland, Washington Practice: Evidence Law and Practice § 404.26 at 468 (4th ed. 1999) (citing State v. Hanson, 133 Wash. 527, 528-29, 234 P. 28 (1925); State v. Crowder, 119 Wash. 450, 452, 205 P. 850 (1922)).
When the State seeks admission of evidence under ER 404(b) that the defendant has committed bad acts that constitute crimes other than the acts charged, the trial court must (1) find by a preponderance of the evidence that the uncharged acts probably occurred before admitting the evidence, (2) identify the purpose for which the evidence will be admitted, (3) find the evidence materially relevant to that purpose, and (4) balance the probative value of the evidence against any unfair prejudicial effect the evidence may have upon the factfinder. State v. Kilgore, 147 Wn.2d 288, 292, 53 P.3d 974 (2002).
The trial court found that the uncharged incidents had been proved by a preponderance of the evidence. The record shows that the trial court's concern was the timing of the alleged incidents, not whether they actually occurred. The trial court could not determine which incidents were prior to the charged acts. When the State expanded the charging period, the trial court considered the timing issue moot. However, the timing issue was likely moot all along, as uncharged acts of sexual misconduct are admissible whether they occurred before or after the charged acts. See Crowder, 119 Wash. at 452.
The trial court properly went through a four-step analysis and found by a preponderance of the evidence that the uncharged acts occurred within the charging period, that the testimony's purpose was to show a lustful disposition toward the victim, that the testimony was materially relevant, and that its probative value outweighed its prejudice. The evidence was admitted for a proper purpose, it was relevant, and we defer to the trial court's determination of prejudicial impact. See State v. Luvene, 127 Wn.2d 690, 706-07, 903 P.2d 960 (1995).
II. Prejudicial and Confusing Testimony A. Criminal History
Tanner claims that the trial court erred in allowing testimony about his prior criminal record as well as the uncharged sexual misconduct. We have already discussed the admissibility of the latter, so the admissibility of the former is discussed below.
At a pretrial hearing, the State argued that if Tanner testified, it intended to admit evidence of his prior convictions involving crimes of dishonesty. Tanner never testified, so this issue never arose and therefore no error occurred. See State v. Brown, 113 Wn.2d 520, 540, 782 P.2d 1013 (1989) (in order to preserve an alleged error in a ruling admitting prior conviction evidence for impeachment purposes, a defendant must take the stand and testify).
B. JR's Testimony
Tanner next argues that the trial court should not have allowed JR's testimony because her testimony kept changing and was a "jumbled twisted menagerie of confusing events." Statement of Additional Grounds (SAG) at 5. He also claims that her memory of the abuse may have dimmed over time.
The issues that Tanner raises challenge JR's credibility and the weight that should be given to her testimony. These credibility determinations are for the trier of fact and are not subject to review. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990). We defer to the trier of fact, who resolves conflicting testimony, evaluates witness credibility, and generally weighs the persuasiveness of the evidence. State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533 (1992).
Tanner was free to argue at trial that JR's testimony should be given little weight, but we defer to the jury's determination that her story was credible.
III. Expert Testimony A. Dr. Duralde
Tanner takes issue with Dr. Duralde's testimony about delayed reporting of child sexual abuse. He claims that this was generalized profile or syndrome testimony that should have been excluded.
A substantial number of courts have noted that expert testimony regarding a profile or syndrome of child sexual abuse victims is not admissible to prove the existence of abuse or that the defendant is guilty. State v. Jones, 71 Wn. App. 798, 819, 863 P.2d 85 (1993). Although Tanner cites Jones, it does not address the issue he raises. In Jones, an expert testified that the child's sexual acting out indicated that she had been sexually abused. Jones, 71 Wn. App. at 803-04. No one offered this type of testimony in Tanner's trial.
At trial, Dr. Duralde testified about "false delayed reporting," a theory that explains why children often do not report sexual abuse immediately. 5 RP (Feb. 1, 2005) at 396. The State asked Dr. Duralde, based on her training and experience, how readily children are able to recall the specific dates of sexual abuse.
Tanner objected and outside the jury's presence, argued that because Dr. Duralde was qualified solely as a medical expert with an emphasis on children's sexual assault, she was not qualified to give expert opinions in the area of child psychology. He asked that the questions be more narrowly tailored on the issue of delayed reporting and that Dr. Duralde not be allowed to give an opinion as to whether JR was sexually assaulted, as Dr. Duralde's opinion would only be based on JR's self reporting.
The trial court ruled that whether JR was sexually assaulted was a question for the jury. The trial court also steered the line of questioning away from psychology and limited the State's inquiry to Dr. Duralde's own experience with children in sexual abuse interviews. Admission of Dr. Duralde's testimony was reasonable and within the trial court's discretion. We find no error.
B. Multiple Interviews
During Knight's cross examination, she (a child interview specialist) testified that using suggestive questions when interviewing child sexual assault victims may cause the child to change the story. Tanner claims that this happened here, where investigators asked JR leading questions and had JR repeat her story too many times. He also raises issues with child hearsay testimony.
Again, these questions go to JR's credibility. Tanner had the opportunity to attack JR's credibility at trial by suggesting that she had been coached or that her testimony was improperly influenced. As for the child hearsay issues, the record shows that Knight and Duralde said very little at trial about the substance of JR's accusations. During direct examination, the State instructed Knight not to tell the jury specifically what JR said. Duralde gave more specific information about what JR told her. Because Tanner did not object to Duralde's testimony as hearsay, we will not consider the issue. RAP 2.5(a); State v. Riley, 121 Wn.2d 22, 31, 846 P.2d 1365 (1993) (we do not generally review any claim of error that was not raised in the trial court).
We note, without holding, that the statements JR made to Duralde would probably fall within the hearsay exception for statements made for purposes of medical diagnosis. ER 803(a)(4).
IV. Ineffective Assistance of Counsel
Finally, Tanner claims that he received ineffective assistance of counsel in several respects.
In order to show ineffective assistance of counsel, the defendant must show both that counsel's performance was deficient and that the deficient performance prejudiced him. State v. Cienfuegos, 144 Wn.2d 222, 226-27, 25 P.3d 1011 (2001). In other words, Tanner bears the burden of showing that, but for the ineffective assistance, there is a reasonable probability that the trial's outcome would have been different. Cienfuegos, 144 Wn.2d at 227.
"Deficient performance is not shown by matters that go to trial strategy or tactics." Cienfuegos, 144 Wn.2d at 227 (quoting State v. Hendrickson, 129 Wn.2d 61, 77-78, 917 P.2d 563 (1996)). We maintain a strong presumption that counsel's representation was reasonable. State v. Brett, 126 Wn.2d 136, 198, 892 P.2d 29 (1995).
A. Attorney's Failure to Understand the Case
Tanner first claims that he did not receive effective assistance of counsel because his attorney did not understand the case "in real time." SAG at 15. He claims that she failed to develop a firm time line and that she did not review issues. He cites to numerous pages in the record as examples but says "time does not allow me to argue each one." SAG at 17.
We reviewed the pages Tanner cites but they do not reveal instances of deficient performance by his attorney. Our review of the overall record reveals that his attorney understood the issues and provided a competent defense. Therefore, we cannot review Tanner's claim because he has not sufficiently informed us of the nature and occurrence of these alleged errors. RAP 10.10(c).
B. Testimony Regarding Tanner's Invoking His Right to Counsel
Tanner claims one of the best examples of deficient performance is at Report of Proceedings pages 483-86. These pages contain a colloquy outside the jury's presence where the trial court ruled that the police could testify at trial about Tanner invoking his right to counsel. The trial court allowed this testimony, which the State subsequently presented to the jury, because Tanner's attorney had suggested that the police were sloppy in not following up with Tanner during the investigation. The State wanted to clarify that the police did not contact Tanner directly because he had invoked his right to an attorney.
The attorney's decision to try to show that the police were sloppy was a trial strategy that does not necessarily show deficient performance. Even if his attorney's performance were deficient because of this tactic, we find that allowing testimony about Tanner retaining counsel was not so prejudicial that it affected the trial's outcome.
C. Attorney's Failure to Argue that JR was Questioned Excessively
Tanner also claims that he received ineffective assistance because "[t]he issues involving the protocol involved in child sexual abuse case are [sic] clearly missing from counsels [sic] plate." SAG at 17. He then repeats his claim that JR was interviewed too many times. He claims that his attorney did not raise this at trial and that his attorney failed to enter testimony "that would reflect a view that could have produced a far different outcome." SAG at 18.
However, Tanner's attorney elicited evidence from Knight on cross examination about the potential dangers of repeatedly interviewing a child. In closing arguments, his attorney argued that JR's story kept changing and that JR embellished the stories each time she retold them. Tanner does not identify what other evidence he thinks his attorney should have admitted. Therefore, Tanner has not met his burden of demonstrating deficient performance in this respect either.
We do not find merit in any of Tanner's arguments and, accordingly, we affirm.
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 pursuant to RCW 2.06.040, it is so ordered.
QUINN-BRINTNALL, C.J. and ARMSTRONG, J., concur.