Opinion
66826-9-I
12-17-2012
STATE OF WASHINGTON, Respondent, v. GERALD WILSON, Appellant.
UNPUBLISHED OPINION
Spearman, A.C.J.
Gerald Wilson was convicted of one count of first degree rape of a child and one count of second degree rape of a child. On appeal, he argues that the evidence is insufficient to support unanimous verdicts for his convictions, that the prosecutor committed misconduct during closing argument, that counsel was ineffective, and that the trial court improperly admitted "hue and cry" evidence of the victim's report of the rapes to her boyfriend. We reject his arguments and affirm.
FACTS
A.D. was born on June 3, 1991 to alcohol and drug addicted parents. She was raised by her grandparents until her grandfather had a stroke, at which point she moved in with her aunt, Cecile Batacan-Wilson and Cecile's husband, Gerald Wilson. She was 8 years old at the time. A.D. testified that initially it was a very loving household, but that before her fifth grade year, the relationship between her and Wilson became inappropriate. While A.D. could not remember the first instance of sexual abuse, she testified that Wilson considered the two of them to be in a relationship, with him calling her babe and honey and having sexual intercourse and oral sex with her repeatedly over many years. A.D. testified that the sexual intercourse hurt, and that she asked Wilson if they could stop until she was older. She said sometimes Wilson used K-Y jelly; had her drink kahlua; and offered her wine in an attempt to help with the pain.
A.D. testified that her relationship with Wilson soon became a part of her everyday life. A.D. described how Wilson would come into the bathroom while she was showering just to talk with her. Wilson talked to her about his concern that she might become pregnant, and he even bought her a pregnancy test. Over the years, the two had sexual encounters all over the house, although most incidents occurred in A.D.'s bedroom. When A.D. was 12 years old, Wilson and Cecile had a daughter of their own, Brianna.
While A.D. was in the eighth grade and first part of her freshman year, her aunt and Wilson fought frequently, often about A.D. The relationship between A.D. and Wilson deteriorated substantially. Wilson called A.D. a whore and told her that she was going to end up on the streets like her father.
A.D. left the home at age 14, and moved in with another aunt and uncle, Cresencia and Robert Jones. In the summer of 2009, A.D. told her boyfriend Patrick Jackson that she had been sexually abused. The trial court permitted Jackson to testify about this incident. Patrick testified that when A.D. told him she had been sexually abused, she was "terrified, scared" and "crying, " and that he encouraged her to tell the Joneses.
A.D. told the Joneses only after she learned that Cresencia's daughter Jessica had visited the Wilson's home. The Joneses told Cecile about the abuse and contacted the police. The police arrested Wilson, and the State charged him with three counts of rape of a child as follows:
Count I: First Degree Rape of a Child, June 3, 2002 through June 2, 2003, A.D. less than 12 years of age.
Count II: Second Degree Rape of a Child, June 3, 2003 through June 2, 2005, A.D. 12 years of age or greater and less than 14 years of age.
Count III: Third Degree Rape of a Child, June 3, 2005 through October 31, 2006, A.D. 14 years of age or greater and less than 16 years of age.
A jury found Wilson guilty on counts I and II, and not guilty on count III. Wilson appeals.
DISCUSSION
Sufficiency of the Evidence to Support Unanimous Verdicts
Wilson first argues that the evidence is insufficient to support his convictions for first and second degree rape of a child because there was no testimony that two separate and distinct acts of sexual intercourse occurred, or that they occurred within the charging periods. The State responds by citing A.D.'s testimony that sexual intercourse occurred frequently during the periods charged. We agree with the State and hold that the evidence was sufficient to support the convictions.
Evidence is sufficient to support a conviction if, after 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); State v. Rempel, 114 Wn.2d 77, 82, 785 P.2d 1134 (1990). This court defers to the trier of fact regarding conflicting testimony, the weight to be given to evidence, and reasonable inferences to be drawn therefrom. State v. Gerber, 28 Wn.App. 214, 622 P.2d 888 (1981). Thus, "'all reasonable inferences from the evidence must be drawn in favor of the State and interpreted most strongly against the defendant.'" State v. Joy, 121 Wn.2d 333, 339, 851 P.2d 654 (1993) (quoting State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992)).
"To convict a criminal defendant, a unanimous jury must conclude that the criminal act charged has been committed." State v. Hayes, 81 Wn.App. 425, 430, 914 P.2d 788 (1996) (citing State v. Petrich, 101 Wn.2d 566, 569, 683 P.2d 173 (1984), overruled on other grounds by, State v. Kitchen, 110 Wn.2d 403, 756 P.2d 105 (1988)). In most cases where several acts are alleged, any one of which could constitute the crime charged, the jury must unanimously agree on the act or incident that constitutes the crime. Hayes, 81 Wn.App. at 430 (citing Petrich, 101 Wn.2d at 572; Kitchen, 110 Wn.2d at 411). In such cases, Washington courts generally apply the "either or" rule:
either the State [must] elect the particular criminal act upon which it will rely for conviction, or ... the trial court [must] instruct the jury that all of them must agree that the same underlying criminal act has been proven beyond a reasonable doubt.Hayes, 81 Wn.App. at 430-31 (citing Kitchen, 110 Wn.2d at 411; Petrich, 101 Wn.2d at 572). Here, the State did not elect any particular act, and the trial court gave a Petrich instruction.
Jury Instruction No. 5 told the jury:
Wilson's central argument on appeal is that the evidence here is insufficient for two reasons: first, because although Wilson was convicted of both first and second degree rape of a child, there was specific evidence of only one incident of sexual intercourse introduced at trial; and second, that the evidence does not specify when the rape occurred, so it is not possible to determine A.D.'s age at the time of the act, and therefore it is not possible to determine whether the crime committed was first or second degree rape of a child.
We reject this argument because it ignores portions of A.D.'s testimony. Wilson's argument rests on the premise that A.D. testified about only "four incidents", just one of which amounts to sexual intercourse. But Wilson is mistaken. A.D. also testified that Wilson had sexual intercourse with her during the entire period she was in 5th, 6th, 7th, and 8th grades:
Q: Okay. And in terms of – "inappropriate" can mean different things to different people, so trying to clarify, what was going on between you and the defendant?
A: Um, well, from before fifth grade, to when I moved out, he molested me for years while living there.
Q: And when you use the term, "Molesting, " can you describe what was actually happening?
A: Every sexual activity.
Q: Okay. And again, I'm just trying to be as specific as possible. When you say, "Sexual activity, " what are you referring to?
A: Intercourse, oral, touching, being naked. I mean, an inappropriate relationship.
. . .
Q: Okay. Okay. And when you indicated quite frequently, what I was looking for was, what does, "Quite frequently" mean to you? I mean, how many times? Would it be every day, you know, to the best of your –
A: I can't say if it happened every day, but it was every day normal for me. I didn't – I couldn't – couldn't go out to my friend's house. My friends, it was every day for me. So I mean, that's – that was my life for four years, was dealing with the relationship that my uncle and I had built. So it was every day for me, every – frequently for me.
Q: Okay. Okay. And the way you are remembering or
describing, are you just remembering or describing every day the physical or the emotional, or are you combining both?
A: I'm combining both . . .
. . .
Q: Is it fair to say that you had sexual intercourse with your uncle prior to fifth grade, or around fifth grade?
A: Yes.
Q: Okay. How about, were you having sexual intercourse with your uncle in sixth grade?
A: Yes.
Q: How about in seventh grade?
A: Yes.
Q: Eighth grade?
A: Yes.Verbatim Report of Proceedings (VRP) 2/1/2011 at 114, 118, 128-29.
Wilson responds that these "generic" statements that sexual intercourse occurred are insufficiently specific for a jury to reach unanimous verdicts as to what occurred. Wilson cites Hayes for the proposition that the evidence must always clearly show "specific and distinct" incidents. See Opening Brief at 24 (quoting Hayes, 81 Wn.App. at 431). Wilson is mistaken. That portion of Hayes refers to a situation where the State has charged multiple identical counts alleged to have occurred within the same charging period:
In sexual abuse cases where multiple counts are alleged to have occurred within the same charging period, the State need not elect particular acts associated with each count so long as the evidence "clearly delineate[s] specific and distinct incidents of sexual abuse" during the charging periods. The trial court must also instruct the jury that they must be unanimous as to which act constitutes the count charged and that they are to find "separate and distinct acts" for each count when the counts are identically charged.Hayes, 81 Wn.App. at 431 (emphasis added) (quoting State v. Newman, 63 Wn.App. 841, 851, 822 P.2d 308 (1992) and State v. Noltie, 116 Wn.2d 831, 842-43, 809 P.2d 190 (1991)). Unlike the situation described above in Hayes, the jury here did not have to distinguish between multiple acts constituting identical counts during the same charging period. Rather, in this case, the State alleged a single count for each time period; the first time period constituted the single first-degree rape count, and the second time period constituted the single second-degree rape count. Thus, the portion of Hayes cited by Wilson refers to a situation not applicable here, and is of no help to Wilson.
The latter portion of the Hayes case, however, makes it clear that the State may indeed rely upon "generic" child testimony in multiple count sexual assault cases. "Multiple count sexual assault convictions have been affirmed under Washington case law notwithstanding the State's reliance on 'generic' child testimony." Hayes, 81 Wn.App. at 435. In Hayes, this court examined the State v. Brown case and the rationale behind permitting "generic" testimony:
In Brown, the defendant challenged the use of "generic" testimony in support of a conviction for two counts of indecent liberties and four counts of statutory rape. The victim's testimony was limited to estimates of the number of times the defendant molested her, and general descriptions of the frequency of particular acts, such as "sometimes, " and "just about every day." She did not specify dates, but described in detail the defendant's usual conduct.
The Brown court first acknowledged the problems inherent in prosecuting cases of sexual molestation against children when the perpetrator is a "resident molester." Recognizing that Washington courts have approved of such "general" testimony in the context of its admissibility, the court reiterated that "'[t]o require [the victim] to pinpoint the exact dates of oft-repeated incidents of sexual contact would be contrary to reason.'" The court then cited a California decision, concluding that
[r]endering such testimony as was given here inadequate even under a unanimity instruction would force prosecutors to make an election that the Petrich court described as 'impractical.' With the exception of those who happen to select victims with better memories or who are 1-act offenders, the most egregious child molesters effectively would be insulated from prosecution.Hayes, 81 Wn.App. at 435-36 (quoting State v. Brown 55 Wn.App. 738, 741-42, 747, 749, 780 P.2d 880 (1989); State v. Ferguson, 100 Wn.2d 131, 139, 667 P.2d 68 (1983); People v. Obremski, 207 Cal.App.3d1346, 255 Cal.Rptr. 715, 719 (1989)).
The Hayes court also discussed People v. Jones, 51 Cal.3d 294, 792 P.2d 643 (1990), which was decided after Brown. In Jones, the California Supreme Court approved use of "generic" testimony in some multiple count sexual abuse cases, affirming convictions for six counts of lewd conduct committed against one child. Hayes, 81 Wn.App. at 436-37 (citing Jones, 270 Cal.Rptr. at 614-15). The victim in Jones testified that the defendant "molested him once or twice a month, recalled five different locations where he was molested, and testified that the defendant molested him eight to ten times in the shower or bathroom." Hayes, 81 Wn.App. at 437 (citing Jones, 270 Cal.Rptr. at 614-15). The Hayes court approvingly cited the rationale in Jones for permitting such generic testimony:
Cautioning that "it is not a proper appellate function to reassess the credibility of the witnesses, " the court noted that specifics regarding date, time, place, and circumstance are factors regarding credibility and are not necessary elements that need to be proved to sustain a conviction. Rather, the court concluded, the evidence need only be specific as to the type of act committed, the number of acts committed, and the general time period.Hayes, 81 Wn.App. at 437 (quoting Jones, 270 Cal.Rptr. at 623).
In other words, due process does not require unanimity as to all details of specific acts when the true question is not about such details, but is instead about whether the victim's story as a whole is credible. Such is the case here. The State charged only one count for each relevant time period, and the dispute at trial was not over which particular act constituted the crime, but over whether any of the acts occurred at all.
The Hayes court formulated a three-part test to determine whether such generic testimony is proper:
To hold as a matter of law that generic testimony is always insufficient to sustain a conviction of a resident child molester risks unfairly immunizing from prosecution those offenders who subject young victims to multiple assaults. The challenge is to fairly balance the due process rights of the accused against the inability of the young accuser to give extensive details regarding multiple alleged assaults. We believe the proper balance is struck by requiring, at a minimum, three things. First, the alleged victim must describe the kind of act or acts with sufficient specificity to allow the trier of fact to determine what offense, if any, has been committed. Second, the alleged victim must describe the number of acts committed with sufficient certainty to support each of the counts alleged by the prosecution. Third, the alleged victim must be able to describe the general time period in which the acts occurred. The trier of fact must determine whether the testimony of the alleged victim is credible on these basic points.Hayes at 438.
Regarding the first element of this test, A.D. testified that Wilson had "sexual intercourse" with her. Wilson contends this is nothing but a "legal conclusion". We disagree. The question here is whether A.D.'s testimony that Wilson had "sexual intercourse" with her is sufficiently specific to allow the jury to determine what offense was committed. Wilson was charged with first, second, and third degree rape of a child, all of which required "sexual intercourse" as an element. According to the jury instructions, sexual intercourse "means that the sexual organ of the male entered and penetrated the sexual organ of the female and occurs upon any penetration, however slight or any act of sexual contact between persons involving the sex organs of one person and the mouth or anus of another . . . ." It is clear from AD's testimony that she was using the term "sexual intercourse" to refer to penetration, as opposed to oral sex or some other sexual act:
Q: Okay. And again, I'm just trying to be as specific as possible. When you say, "Sexual activity, " what are you referring to?
A: Intercourse, oral, touching, being naked. I mean, an inappropriate relationship.2/1/2011 VRP at 114. Viewing the evidence in a light most favorable to the State, A.D.'s testimony is sufficiently specific to allow the jury to determine whether Wilson had sexual intercourse with A.D. as that term is defined in the instructions.
The second element of the test, that "the alleged victim must describe the number of acts committed with sufficient certainty to support each of the counts alleged by the prosecution[, ]" Hayes, 81 Wn.App. at 438, has no application here, because the State did not charge multiple counts of the same offense. Rather, the State charged only one count for each degree of rape of a child, where the degree of the crime is distinguished by A.D.'s age. A.D.'s testimony about numerous rapes over the years was sufficiently certain to support a single count of first degree rape of a child and a single count of second degree rape of a child. Thus, the only question remaining is regarding the third element, whether A.D. sufficiently described the general time period in which the acts occurred. We conclude she did. Again, A.D. testified that Wilson had sexual intercourse with her during the entire period she was in 5th, 6th, 7th and 8th grade.
Wilson argues for the first time in his reply brief, that the State's focus during closing argument on four "specific" incidents amounts to the State electing those specific incidents as criminal acts upon which the State relied for conviction. Generally, this court does not review arguments raised for the first time in a reply brief. Cowiche Canyon, 118 Wn.2d 801, 809, 828 P.2d 549 (1992); RAP 10.3(c). But even if we were to consider the argument, it fails. A review of the State's closing argument shows the State was not, as Wilson contends, electing the four "specific" incidents described by A.D. Rather, counsel for the State discussed nearly all of A.D.'s testimony during closing argument, including her "generic" testimony, and also spoke about a wide range of specific incidents for the purpose of arguing A.D.'s story was credible:
You heard her testimony, and you heard her talk about the fact that the defendant had sexual intercourse with her from fifth grade, sixth grade, seventh grade, eighth grade, and maybe the summer into her ninth grade. By that time, their relationship, as she put it, was terrible. Let's listen to what [A.D.] talked about "It hurt all the time." She would beg him to wait until she was older because it hurt too bad.
. . .
Also, if you look at the to-convict, as we call them, it gives you all the elements of the crime. That it happened in King County, Washington, that on a particular date, that it happened. Okay. Those are checked off. Clearly we have our time frames down because that's when she was living there. We also have the issue of he wasn't married to her. Well, pretty clear he wasn't married to her, he was married to Cecile, and she was ten, eleven, twelve, thirteen, fourteen, so there was no marriage. So the issue then becomes whether or not she was raped. [A.D.] talked to you about some very specific incidents. She remembers graphically about throwing up popcorn after the defendant came in her mouth. She remembers the defendant drawing a dog on her boob. She remembers when her Aunt Cecile came home and she was shaking because the defendant was on top of her, naked, and they heard the door. He ran into the shower and [A.D.] got dressed. She remembers the Viagra, she remembers the KY, even to the point of oh, "Hey, maybe my DNA is on there." She remembers specifically that it was happening before she began her period which is, I think she said, September 3rd of her sixth grade year. That's also her aunt and uncle's anniversary. . . . She would also talk about what would happen during those times. She would talk about this mostly happened in her room. She would talk about that he would actually try sometimes to have sex with her, that sometimes it just wouldn't go in because she was too little.
. . .
And let's talk a little bit about briefly, why now? Why did [A.D.] come forward when she did? She finally – and she said to you, "I didn't have the balls to come forward before." Pretty bold statement, but fair. She came forward because her little cousin, her little sister came home, said, "Hey, I was just over at Auntie Cow's and Uncle Gerry's house." [A.D.] freaked out in her head, and thought, "If I don't stop this, he could do it to her." She was out of the home for four years, she had nothing to gain. She had nothing to prove, she wasn't going back.2/3/2001 VRP at 198-201.
In sum, viewing the evidence in a light most favorable to the State, the evidence is sufficient to support unanimous verdicts for Wilson's convictions for first and second degree rape of a child.
Prosecutorial Misconduct
Wilson argues the prosecutor committed misconduct during closing argument by incorrectly stating that A.D. testified Wilson was on top of her on the occasion her aunt arrived home early and almost caught them together. To prevail on a claim of prosecutorial misconduct, the defendant must show the impropriety of the remark and the prejudicial effect. State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997). Allegedly, improper comments are considered under the context of the entirety of the argument, the issues in the case, the evidence, and the court's instructions. State v. Russell, 125 Wn.2d 24, 85-86, 882 P.2d 747 (1994).
To demonstrate prejudice, the defendant must show a "substantial likelihood" that the misconduct affected the trial's outcome. Brown, 132 Wn.2d at 561. However, if the defense fails to properly object and request a curative instruction, the issue of misconduct is waived unless the comment was so flagrant or ill-intentioned that an instruction could not have cured the prejudice. State v. Charlton, 90 Wn.2d 657, 661, 585 P.2d 142 (1978).
Wilson is correct that AD did not testify Wilson was on top of her when her aunt arrived home early. While this fact appeared in the initial certification for determination of probable cause, AD testified at trial that she did not remember their positions during this incident. Wilson did not object to this comment at trial, so we first review whether it was improper and if so determine whether it was so prejudicial that a curative instruction could not have fixed it.
A prosecutor may not argue that evidence not in the record provides additional grounds for a conviction. Russell, 125 Wn.2d at 87. To the extent the prosecutor incorrectly characterized A.D.'s testimony, it was improper. Wilson fails however, to show any prejudice resulting from the comment. Wilson's and A.D.'s relative positions on one occasion when A.D.'s aunt arrived home early is inconsequential compared to A.D.'s actual testimony that Wilson repeatedly had penetrative and oral sex with A.D. from the time she was in fifth grade through eighth grade. Furthermore, the trial court's instructions informed the jury that statements made by attorneys during closing argument were not evidence and directed it to disregard any statements by the attorneys that were not supported by the evidence or the law in the court's instructions. We presume the jurors followed the court's instructions. State v. Lough, 125 Wn.2d 847, 864, 889 P.2d 387 (1995).
Wilson also alleges the prosecutor committed misconduct by telling the jury:
Now, you will look in your instructions there, in the Petrich instruction as we call it, which is the instruction that tells you have to agree on a count of rape for you to be able to find the person guilty. Well, you don't have to agree he raped her ten times when she's in the fifth grade. You don't have to be unanimous that, "Yes, this defendant raped her before she was twelve." "This defendant raped her before she was thirteen". [sic.] And, "This defendant raped her between thirteen and fourteen." You have to unanimously agree that, yes, that rape occurred. That's what you have to agree on.VRP 02/03/11 at 198-199.
It is improper for a prosecutor to make a statement to the jury regarding the law that is not confined to the law as set forth in the instructions given by the court. State v. Davenport, 100 Wn.2d 757, 760, 675 P.2d 1213 (1984). Because Wilson was charged with rape of a child in the first, second, and third degrees, the jury did have to be unanimous that he raped AD before she was twelve for the first degree count, when she was 12 or 13 for the second degree count, and when she was 14 or 15 for the third degree count. The prosecutor's statement that the jury did not have to be unanimous as to her age when he raped her was therefore factually incorrect and improper.
Wilson, however, did not object to this comment at trial and therefore must demonstrate that the comment was so flagrant or ill-intentioned that an instruction could not have cured the prejudice. Wilson argues that the prosecutor certainly knew the law here and that the comment was therefore flagrant and ill-intentioned. We disagree. Defense counsel responded in closing argument by pointing to the Petrich instruction, and noting the jury had to be unanimous for each count. In rebuttal closing argument, the prosecutor did not dispute this correction, and clarified the State had to prove that Wilson raped AD when she was a specific age for each count:
You look at jury instruction 5 [Petrich instruction], as the defense pointed out, again, it doesn't state that there is anything that says that you have to believe that he raped her ten times, that you have to believe that he raped her twenty times. There are three charged time periods in this case for rape of a child in the first degree, rape of a child in the second degree and rape of a child in the third degree. Those are the time frames we are looking at.2/3/2011 VRP at 221-22. This sequence of events suggests that the prosecutor's comment was not flagrant or ill-intentioned, but was merely a mistake that was corrected. Additionally, the court properly instructed the jury to disregard counsel's statements to the extent they were inconsistent with the judge's instructions on the law. Again, we presume the jurors followed the court's instructions. Lough, 125 Wn.2d at 864. We conclude the comment did not incurably prejudice Wilson and does not warrant reversal.
Finally, Wilson alleges prosecutorial misconduct for two questions during rebuttal questioning of Cresencia Jones regarding whether her sister talked to her about feeling that something was wrong between Wilson and A.D. Defense counsel objected to both of these statements at trial and the court sustained the objections. Wilson does not actually demonstrate how these questions were improper and instead implies that the proof of impropriety lies with the fact that the court sustained defense objections. Wilson suggests that the court sustained these objections because the testimony was hearsay. However, when sustaining the first objection, the court told the prosecutor that he thought she was "beyond rebuttal." 2/3/2011 VRP at 158. When sustaining the second objection, the court said, "I don't want to re-plow ground that's been testified to by people." Id. at 160. The court sustained these objections because the questions exceeded the scope of rebuttal testimony, not because they were attempts to elicit inadmissible hearsay. Wilson thus incorrectly characterizes the court's reasoning, and moreover, he does not explain how the comments were prejudicial. We reject his arguments on this issue.
Ineffective Assistance of Counsel
Wilson argues defense counsel was ineffective for failing to object to the prosecutor's alleged misconduct in misstating the requirement that the jury return unanimous verdicts, and for failing to object to lay witness testimony about how the relationship between Wilson and A.D. was "weird". In any ineffective assistance claim, we begin with the strong presumption that counsel was effective. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251. In order to demonstrate ineffective assistance, the defendant must show (1) that counsel's performance fell below an objective standard of reasonableness; and (2) that counsel's performance prejudiced the defendant to an extent that there is a reasonable probability that it affected the outcome of the proceedings. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987). A claim of ineffective assistance can be overcome by a showing that there was a possible legitimate trial strategy for counsel's actions. State v. Grier, 171 Wn.2d 17, 33, 246 P.3d 1260 (2011).
As is described above, the prosecutor incorrectly described the law regarding unanimity. The fact that defense counsel did not immediately object to this statement, however, does not mean counsel's performance fell below an objective standard of reasonableness. Indeed, defense counsel did address the issue in closing argument, pointing out that the jury had to be unanimous as to each count (quoting Petrich instruction, "You must unanimously agree which act has been proved for each count"). Counsel's decision not to object, but instead respond to the issue during closing remarks can be characterized as a legitimate trial tactic. Moreover, Wilson cannot demonstrate prejudice, given the trial court properly instructed the jury on this issue, and again, we presume the jurors followed the court's instructions. Lough, 125 Wn.2d at 864.
Nor was defense counsel ineffective for declining to object to the above-described lay witness testimony, given the testimony was not improper. Members of the extended family testified to observing A.D. sitting on Wilson's lap and that it made them uncomfortable since it felt like Wilson and A.D. were acting more like a couple than a father and daughter. Wilson concedes that it was appropriate for witnesses to testify to seeing A.D. on Wilson's lap, but that it was improper for these witnesses to offer their lay opinions on the nature of the relationship.
In analyzing whether lay opinion testimony is admissible, we begin by determining whether the opinion relates to a core element or a peripheral issue. If the opinion relates to a core issue, there must be a substantial factual basis supporting the opinion. State v. Farr-Lenzini, 93 Wn.App. 453, 462-63, 970 P.2d 313 (1999). Wilson argues that the nature of the relationship between Wilson and A.D. was a core issue in this case. The State does not contest this.
In all of the testimony, however, the witnesses offered their opinions based on their personal direct observation of the interaction between Wilson and A.D. For example, Maria Brinas-Jones, a relative, testified that she saw A.D. sitting on Wilson's lap at Thanksgiving when she was twelve and that it was "so awkward, [it] just felt uncomfortable." 2/1/2011 VRP at 43. Darlene McCulloch, Robert Jones' mother, testified that she saw them sitting on a basket together at Christmas and that "I just kind of got a chill because they looked like a family to me, instead of father and son, or father and daughter." McCulloch could not specify what gave her that feeling, just that it was "like a sixth sense or something." 1/27/2011 VRP at 172. Kari Kartes, Robert's sister, testified that she saw Wilson and A.D. at a birthday party and "he was treating her more like a girlfriend." She based this on her observation of their interactions together. Id. at 163.
Although Wilson does not specify which witnesses' testimony he objects to, the above seem to be representative of the type of testimony he argues his attorney should have objected to as opinion testimony. In all of these cases, however, the witnesses clearly based their opinions on direct observations of Wilson and A.D. As such, there was a substantial factual basis for them to describe how the relationship between the two appeared to them. Farr-Lenzini, 93 Wn.App. at 462-63.
Wilson relies solely on State v. Farr-Lenzini, 94 Wn.App. 453, 972 P.2d 531 (1999) to argue the opinions were improper. That case, however, is factually different than the situation here. In Farr-Lenzini, a state trooper testified that the defendant's driving pattern showed that she was attempting to elude him. Farr-Lenzini's state of mind was a core issue because the crime had an element of willfulness. The court held that this testimony was not admissible under ER 701 because the trooper's opinion was based only on a few incidents of aggressive accelerating and decelerating that could not adequately create a substantial basis for his opinion as to what her state of mind was or if she even noticed him behind her. In this case, relatives offered impressions of how Wilson and A.D.'s relationship appeared to them. Their own observations provide a factual basis to characterize how Wilson and A.D.'s relationship appeared to them and made them feel whereas the trooper in Farr-Lenzini had no factual basis to testify as to Farr-Lenzini's state of mind.
Even if any of the witnesses' testimony was improper, it is difficult to conclude counsel's performance fell below an objective standard of reasonableness. The decision to not object to the above-described statements can be characterized as a legitimate trial tactic, given repeated objections may well have served to highlight the testimony. Moreover, Wilson cannot demonstrate prejudice from the failure to object to this testimony, especially in light of A.D.'s far more damaging testimony that Wilson repeatedly had penetrative and oral sex with A.D. from the time she was in fifth grade through eighth grade.
We reject Wilson's arguments that he received ineffective assistance of counsel.
Admission of "Hue and Cry" Evidence
Wilson argues the trial court erroneously admitted, under the "hue and cry" or "fact of complaint" doctrine, testimony from A.D.'s boyfriend that AD reported the rapes. The general rule is that in criminal trials for sex offenses, the prosecution may present evidence that the victim complained to someone after the assault. State v. Ferguson, 100 Wn.2d 131, 135, 667 P.2d 68 (1983); State v. Goebel, 40 Wn.2d 18, 25, 240 P .2d 251 (1952), overruled on other grounds by, State v. Lough, 125 Wn.2d 847, 860 n. 19, 889 P.2d 487 (1995). The rule admits only such evidence as will establish that the complaint was timely made. Ferguson, 100 Wn.2d at 135-36. Evidence of the details of the complaint, including the identity of the offender and the nature of the act is excluded. Id. at 136; State v. Murley, 35 Wn.2d 233, 237, 212 P.2d 801 (1949).
The rule is grounded in the feudal assumption that, in forcible rape cases, the absence of evidence of a seasonable complaint creates an inference that the victim's testimony has been fabricated. See State v. Bray, 23 Wn.App. 117, 121-22, 594 P.2d 1363 (1979) (citing State v. Griffin, 43 Wash. 591, 86 P. 951 (1906)). Allowing the State to present the fact of complaint in its case-in-chief dispelled this inference. See Murley, 35 Wn.2d at 237. But, the doctrine requires that the complaint be timely in order for the State to be permitted to introduce evidence of the victim's complaint. For example, in Griffin, the Supreme Court held that "evidence of the complaint should be excluded whenever from delay or otherwise it ceases to have corroborative force." Griffin, 43 Wash. at 598.
The State concedes that the complaint in this case, which A.D. made to her boyfriend, was not timely, in that it was made years later. The State argues, however, that we should ignore the requirement, because the idea that a rape victim would only raise a "hue and cry" immediately after being raped, and would not delay reporting, is "antiquated and sexist." While this may be true, our supreme court has not overruled the timeliness requirement, as the State acknowledges, and we are bound by its precedent. See State v. Gore, 101 Wn.2d 481, 487, 681 P.2d 227 (1984).
The State argues that admission of the testimony by A.D.'s boyfriend was harmless. We agree. The test for determining whether erroneously admitted evidence requires reversal is whether, within reasonable probabilities, the trial's outcome would have been materially affected if the error had not occurred. State v. Braham, 67 Wn.App. 930, 939, 841 785 (1992). On this issue of prejudice, Wilson makes essentially no argument and cites no caselaw. Instead, he appears to imply that without the boyfriend's testimony, the jury would have assumed A.D. fabricated the rapes because "she was in trouble" with the Joneses. But this is little more than speculation, and in light of the overwhelming evidence of the rapes, we conclude Wilson has not demonstrated the outcome of the trial was materially affected by admission of the boyfriend's testimony.
Wilson also contends cumulative error warrants reversal. However, given the disposition of the other issues, we reject this argument. ---------
Affirmed.
The State alleges that the defendant committed acts of Rape of a Child on multiple occasions. To convict the defendant on any count of Rape of a Child, one particular act of Rape of a Child must be proved beyond a reasonable doubt, and you must unanimously agree at [sic] to which act has been proved for each count. You need not unanimously agree that the defendant committed all the acts of Rape of a Child.