Opinion
No. 18957-1-III, consolidated with 18958-9-III
Filed: October 18, 2001. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.
Appeal from Superior Court of Chelan County, No. 98-1-00589-1, Hon. Lesley A. Allan, December 8, 1999, Judgment or order under review.
Counsel for Appellant(s), Lenell R. Nussbaum, Attorney At Law, Market Place Two, Ste. 200, Western Ave., Seattle, WA 98121.
Counsel for Respondent(s), Roy S. Fore, Chelan County Courthouse, 401 Wn. St Po Box 2596, Wenatchee, WA 98807.
Eric C. Biggar, Douglas County Prosecutor's Office, P.O. Box 360, Waterville, WA 98858.
K.M. accused her uncle, Michael Yacinich, of having sexual relations with her and giving her nude pictures of himself. The jury found Mr. Yacinich guilty of two counts of child molestation and one count of communicating with a minor for immoral purposes in Chelan County, and one count of child molestation in Douglas County. He appeals contending the court erred by (1) excluding evidence of K.M.'s impermissible entries into the Yaciniches' bedroom, (2) not limiting the charging period to what the State charged in the bill of particulars, (3) counting the two Chelan County felony convictions as separate crimes, (4) excluding evidence of K.M.'s reputation for untruthfulness, (5) excluding evidence of Mr. Yacinich's good character regarding relations with children, and (6) denying him the right to record the defense's interview with K.M.; and, in addition, (7) the prosecutor committed misconduct by arguing a lack of evidence when his own motion kept the evidence from the jury, (8) the instructions on communicating with a child for immoral purposes permitted conviction on something other than the charged crime, (9) there was insufficient evidence to support the Douglas County conviction, and (10) the instructions were an impermissible comment on the evidence. We affirm Mr. Yacinich's convictions but remand for resentencing.
FACTS
Michael and Sharon Yacinich were married in 1997. They lived with Sharon's son, Ryan, in East Wenatchee. Sharon's sister, Denise M., also lived in East Wenatchee with her husband, Ted, and their daughters, K.M., born 10/19/84 and D.M., born 1/13/87.
Ms. Yacinich suffers from multiple sclerosis. During the summer of 1997, K.M. and D.M. spent many days and nights at the Yacinich house in order to assist Ms. Yacinich. Sometimes, Mr. Yacinich played with the children — particularly basketball. K.M. was a good basketball player and large for her age, so she often played one-on-one with Mr. Yacinich. K.M. developed a crush on Mr. Yacinich and often followed him around and talked to him.
In February 1998, Ted and Denise M. moved into a new house in Entiat. Ms. M. continued to drive K.M. to Wenatchee to finish the school year. In August 1998, K.M. started eighth grade at Entiat. After the summer of 1997, K.M. did not go to the Yacinich house very much, but she continued frequent telephone contact with Mr. Yacinich.
On December 1, 1998, M.G. and P.V. told a teacher at Entiat Junior High School that K.M. was involved in a sexual relationship with Mr. Yacinich and that the two were meeting after school. M.G. and P.V. reported that Mr. Yacinich had given nude photographs of himself to K.M., which she had shared with them. The photographs were given to the teacher, who repeated the story to the school counselor, Corky Elliott.
Laurie Alexander of Child Protective Services (CPS) and Detective Ron Martin investigated. Ms. Alexander and Detective Martin first went to the Entiat School where they talked with Mr. Elliott. CPS then contacted K.M.'s father and asked him to bring K.M. to the CPS office. Upon arrival at CPS, K.M. was interviewed by Detective Martin and Ms. Alexander. Detective Martin and Ms. Alexander questioned K.M. about her relationship with Mr. Yacinich. Mr. Elliot subsequently gave the photographs to Detective Martin.
On December 2, 1998, K.M. requested a second interview in which she revealed more information about her relationship with Mr. Yacinich. The next day, Mr. Yacinich was arrested and charged with several sex offenses in Chelan County. Related charges were later filed in Douglas County and consolidated with the Chelan County charges of child molestation in the second degree (2 counts), child molestation in the third degree (3 counts) and communicating with a minor. Douglas County charged Mr. Yacinich with second degree child molestation.
At the trial, K.M. described the process by which she and Mr. Yacinich became close. She said at first the physical contact was innocent, like bumping while playing basketball, but over time it evolved into more intimate contact. For instance, it would occur while they were watching television or when they were riding in his truck. In addition, K.M. admitted she began touching Mr. Yacinich.
When her family moved to Entiat, K.M. stated that it was much harder to maintain her relationship with Mr. Yacinich. So, K.M. and Mr. Yacinich frequently communicated by telephone. Once the school year started, Mr. Yacinich met K.M. after school. This usually occurred on Tuesdays. K.M. would call Mr. Yacinich at noon to confirm that he was coming and then meet him after school in the parking lot. When they met, Mr. Yacinich, driving a blue Toyota pickup, would usually drive them north toward Chelan. K.M. and Mr. Yacinich would normally spend 30 to 60 minutes together, during which time sexual contact, over and under the clothes, generally occurred.
In addition, Mr. Yacinich sometimes brought nude photographs of himself which he would show K.M. and even allowed her to keep them.
On one occasion, M.G. went with K.M. and Mr. Yacinich in his blue Toyota pickup. After stopping, Mr. Yacinich handed nude photographs of himself to K.M., who kept some and returned the rest. M.G. saw Mr. Yacinich touch K.M. on her breasts and genitals, over her clothes. Likewise, she saw K.M. touch Mr. Yacinich's genitals, over his clothes.
Finally, M.G. saw Mr. Yacinich and K.M. holding hands, interlacing their fingers.
Substantial evidence corroborated K.M.'s account of her relationship with Mr. Yacinich. Other children saw Mr. Yacinich with K.M. in Entiat. A school counselor once recorded the license number from Mr. Yacinich's vehicle after he saw the vehicle at the school. Other witnesses described the relationship between Mr. Yacinich and K.M. and how inappropriate it appeared.
There was also documentary evidence. Mr. Yacinich's employment records for the fall of 1998 were admitted. These records indicated that on Tuesdays, Mr. Yacinich left work early in the day. Further, cellular phone records established that Mr. Yacinich made a number of telephone calls to K.M. during the fall of 1998 and, moreover, that on December 1, 1998, Mr. Yacinich tried to contact K.M. at 6:08 p.m. and 6:10 p.m., shortly after allegedly dropping his stepson off for a karate lesson. Significantly, Mr. Yacinich always called K.M. on her bedroom phone, rather than on the house phone.
K.M.'s younger sister, D.M., testified that she and her sister spent a lot of time at Mr. Yacinich's house during the summer of 1997. They spent time together, but she perceived that her sister's relationship with Mr. Yacinich was different than her relationship with him. This included unusual physical contact.
Mr. Yacinich's defense was to deny most of the State's evidence. Ms. Yacinich testified that K.M. was rarely alone with Mr. Yacinich. She also testified that she took the nude photographs of Mr. Yacinich and they were kept in their bedroom.
Mr. Yacinich described how he was a swimming coach for children. He denied giving the nude photographs to K.M. He also denied going to the Entiat school and having lengthy telephone conversations with K.M.
The jury found Mr. Yacinich guilty of two counts of third degree child molestation and one count of communicating with a minor for immoral purposes in Chelan County, and one count of second degree child molestation in Douglas County. He appeals. The Chelan County and Douglas County appeals were consolidated.
ANALYSIS
Exclusion of Evidence Regarding K.M.'s Unauthorized Entries into the Yaciniches' Bedroom. In a pretrial proceeding, the court considered a motion in limine to suppress evidence indicating that K.M. had previously entered Mr. Yacinich's bedroom without permission, motivating him to put locks on the bedroom doors. The defense argued that the evidence was relevant to prove knowledge, opportunity, and motive. The defense maintained that during her unauthorized entries into the Yaciniches' bedroom, K.M. discovered and stole the nude photographs. It was the defense's theory that K.M.'s allegations regarding sexual misconduct were a cover for her unauthorized possession of the nude photographs. The court granted the motion, holding that Mr. Yacinich could substantiate his theory of the case through other evidence and that this evidence was inadmissible character evidence under ER 404(b).
ER 404(b) states: `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.'
Trial courts have broad discretion in ruling on evidentiary matters and will not be overturned on appeal unless the trial court abused its discretion. State v. Ellis, 136 Wn.2d 498, 523, 963 P.2d 843 (1998) (citing State v. Hamlet, 133 Wn.2d 314, 324, 944 P.2d 1026 (1997)); Sintra, Inc. v. City of Seattle, 131 Wn.2d 640, 662-63, 935 P.2d 555 (1997) (citing Indus. Indemn. Co. v. Kallevig, 114 Wn.2d 907, 926, 792 P.2d 520, 7 A.L.R.5th 1014 (1990)). A trial court abuses its discretion when a decision is manifestly unreasonable or based on untenable grounds or untenable reasons. State v. McDaniel, 83 Wn. App. 179, 185, 920 P.2d 1218 (1996); In re Marriage of Littlefield, 133 Wn.2d 39, 46-47, 940 P.2d 1362 (1997). The exclusion of evidence which a defendant has a constitutional right to elicit is an unreasonable exercise of discretion. Ellis, 136 Wn.2d at 523.
A criminal defendant has a Sixth Amendment right to confrontation and cross-examination of adverse witnesses. However, the right to confront witnesses is subject to the following limitations: (1) the evidence must be relevant; and (2) the defendant's right to introduce relevant evidence must be balanced against the State's interest in precluding evidence so prejudicial that it disrupts the fairness of the factfinding process. If the defendant shows that the evidence is minimally relevant, the evidence must be admitted unless the State can demonstrate a compelling state interest for excluding the evidence. State v. Hudlow, 99 Wn.2d 1, 16, 659 P.2d 514 (1983).
The crucial issue is whether the probative value of this evidence outweighs its prejudicial impact. Evidence that K.M. was observed snooping around the Yaciniches' bedroom is probative of Mr. Yacinich's contention that K.M. learned about the photographs during her unauthorized visits to his bedroom, that she had the opportunity to steal the photographs during those visits, and that she fabricated the stories regarding sexual misconduct in order to explain her possession of the photographs. The same evidence is prejudicial because it casts doubt upon the character of the 13- year-old alleged victim. The trial court emphasized that there was other evidence that K.M. had opportunities to enter the Yaciniches' bedroom. Ms. Yacinich testified that the children had free run of her house and that she was concerned about the children going into the bedroom and removing items.
The standard of review is abuse of discretion and we cannot hold that the trial court abused its discretion. In other words, the decision is not unreasonable or based upon untenable grounds or untenable reasons. The trial court did not abuse its discretion by excluding the evidence.
Prosecutorial Misconduct
Mr. Yacinich contends the prosecutor committed misconduct by arguing lack of evidence when it was the prosecutor's own motion that kept the evidence from the jury. More specifically, Mr. Yacinich notes the prosecutor prevailed in his motion in limine to exclude the evidence that K.M. frequently went into the Yaciniches' bedroom without permission. Then, Mr. Yacinich states, the prosecutor argued to the jury that K.M. lacked the opportunity to steal the photographs and that there was no credible evidence that the photographs were stolen.
In his closing argument, the prosecutor stated as follows:
The real question here is the defense position, the theory that they [the photographs] were stolen by [K.M.]. You have the scantiest circumstantial evidence that that occurred. All you can say is that she was at the house on occasions, nothing to support that they were actually stolen by [K.M.], but you have direct evidence that they were in fact given to her by the testimony of [M.G.] and [K.M.]. They have not an iota of credible evidence suggesting that these photographs were stolen.
Report of Proceedings (RP) at 1226. Mr. Yacinich did not object to the prosecutor's argument.
In general, a prosecutor may not argue in a way that calls the jury's attention to the defendant's failure to testify or produce evidence. See State v. Fleming, 83 Wn. App. 209, 215, 921 P.2d 1076 (1996); State v. Fiallo-Lopez, 78 Wn. App. 717, 728-29, 899 P.2d 1294 (1995); State v. Cleveland, 58 Wn. App. 634, 647, 794 P.2d 546 (1990). Absent a proper objection, a request for a curative instruction or a motion for mistrial, the issue of prosecutorial misconduct is waived unless it was so flagrant or ill-intentioned that the prejudice could not have been cured by an instruction. State v. Belgarde, 110 Wn.2d 504, 507, 755 P.2d 174 (1988).
Here, the prosecutor was not commenting on Mr. Yacinich's failure to produce evidence. The prosecutor was stating that the evidence did not show that K.M. stole the photographs, but merely that she may have had access to steal them. Even if the evidence that was excluded had been admitted, this would have been an accurate statement. The defense did not have a witness who saw K.M. steal the photographs.
Mr. Yacinich also claims it was improper for the prosecutor to question when K.M. would have had the opportunity to steal the photographs. This was not misconduct, but a valid comment on the evidence. There was evidence that the photographs were last seen in the fall of 1998 and K.M. had not been at the Yacinich house, unsupervised, since the prior spring. During closing arguments, counsel has wide latitude to draw and express reasonable inferences from the evidence. State v. Harvey, 34 Wn. App. 737, 739, 664 P.2d 1281 (1983). The prosecutor did not argue that the evidence excluded by his motion in limine was lacking. He could have made the same arguments if the evidence had been admitted. There was no prosecutorial misconduct.
Communicating with a Minor for Immoral Purposes. The `to convict' instruction for the communicating with a minor for immoral purposes charge did not specify the alleged act upon which the charge was based. The information alleged that Mr. Yacinich provided K.M. with `sexually explicit photographs of himself.' Clerk's Papers (CP) at 113. However, Mr. Yacinich notes that there was evidence presented regarding other `communications' during the charging period. For instance, K.M. and M.G. testified that Mr. Yacinich showed them an adult magazine. Mr. Yacinich assigns error to this instruction because it allowed the jury to convict him even if the jury believed that K.M. had stolen the photographs.
An accused has a right to be informed of the nature of the offense against which he or she must be prepared to defend at trial. See Const. art. I, § 22 (amend. 10). `As a general rule, therefore, a defendant can be convicted of only those crimes of which he or she is charged in the information.' State v. Lucky, 128 Wn.2d 727, 731, 912 P.2d 483 (1996); accord State v. Pelkey, 109 Wn.2d 484, 487, 745 P.2d 854 (1987).
We need not reach this contention because the error, if any, was harmless beyond a reasonable doubt. "A constitutional error is harmless if the appellate court is convinced beyond a reasonable doubt that any reasonable jury would have reached the same result in the absence of the error." State v. Hoffman, 116 Wn.2d 51, 97, 804 P.2d 577 (1991) (quoting State v. Guloy, 104 Wn.2d 412, 425, 705 P.2d 1182 (1985)). '[A]n instructional error is harmless if it is `trivial, or formal, or merely academic, was not prejudicial to the substantial rights of the party assigning it, and in no way affected the final outcome of the case." State v. Garcia, 65 Wn. App. 681, 688, 829 P.2d 241 (1992) (quoting State v. Brown, 45 Wn. App. 571, 576, 726 P.2d 60 (1986)). In State v. Moton, 51 Wn. App. 455, 458-59, 754 P.2d 687 (1988), the court found that where the information charged the defendant with assaulting a named person during a burglary, but the burglary `to convict' instruction did not specify the person assaulted, any error was harmless beyond a reasonable doubt where all the evidence and both parties' arguments referred to the same person as the victim of the assault.
Here, counsel for both parties made it clear in their opening statements and closing arguments that the only conduct at issue with respect to the communicating charge involved the photographs. It was made clear to the jury that it was the photographs that were the basis for the communicating charge. There is no possibility that the jury convicted Mr. Yacinich of a crime other than that for which he was charged. Any error, therefore, was harmless beyond a reasonable doubt and does not require reversal.
Sufficiency of the Evidence. The Douglas County information charged Mr. Yacinich with second degree child molestation that occurred `on or about September 1, 1997 through October 18, 1998.' CP at 28-29. At the defense's request, the State provided a bill of particulars which stated Son or between the dates of September 1, 1997 and October 18, 1998.' CP at 26. K.M. testified that the incident with Mr. Yacinich, involving oral sex and digital penetration, occurred during the summer of 1997. Mr. Yacinich contends that `summer' ended in August when K.M. started school, so the incident of second degree child molestation occurred before the time delineated in the bill of particulars or the charging period defined for the jury. Thus, he argues, he cannot be convicted for any incident that occurred before September 1, 1997.
However, Mr. Yacinich overlooks K.M.'s testimony that the oral sex incident occurred while K.M. was in school. Since `summer' continues until September 21, and the incident occurred after August 27 when K.M. started school, it was reasonable for the jury to convict Mr. Yacinich of second degree child molestation occurring after September 1, 1997.
Jury Inquiry. During deliberations, the jury sent the following inquiry to the court:
#5 — Douglas County — Instruction — `That on or about Sept 1, 97 —' How long a period does the court consider `about' means — ?
CP at 21. The court responded:
Words in the instructions must be given their ordinary meaning unless otherwise defined.
CP at 21. Mr. Yacinich contends the court erred by not correcting the instruction to conform with the language in the bill of particulars and read `on or between.'
Mr. Yacinich was not prejudiced by the use of `on or about' in the instructions. `A defendant may not be convicted for a crime with which he or she was not charged. But where time is not a material element of the charged crime, the language `on or about' is sufficient to admit proof of the act at any time within the statute of limitations, so long as there is no defense of alibi.' State v. Hayes, 81 Wn. App. 425, 432, 914 P.2d 788 (1996) (footnote omitted). `Time is not of the essence in sexual assault charges. . . .' Id. at 441. Also, Mr. Yacinich made a general denial to the allegations without asserting an alibi defense to this charge.
Even if the court had changed the instruction to read `on or between,' there was evidence from which the jury could have concluded that the sexual assault occurred after September 1, 1997.
Comment on the Evidence
Mr. Yacinich assigns error to five jury instructions, contending that the instructions constitute an impermissible comment on the evidence. Two of the instructions define the crimes of child molestation in the second degree and child molestation in the third degree. The remaining instructions are `to convict' instructions for child molestation in the third degree. The two instructions defining child molestation contain the words `perpetrator' and `victim.' The `to convict' instructions contain the words `victim.' Mr. Yacinich argues that the use of these words convey to the jury that the judge believes K.M. was a victim and that Mr. Yacinich was a perpetrator.
A judge is prohibited from conveying to the jury the judge's opinion concerning the merits of the case. State v. Becker, 132 Wn.2d 54, 64, 935 P.2d 1321 (1997). `Article IV, section 16 of the Washington Constitution prevents judges from commenting to the jury on matters of fact.' State v. Dewey, 93 Wn. App. 50, 58-59, 966 P.2d 414 (1998), review denied, 137 Wn.2d 1024 (1999).
The two instructions defining child molestation are simply definitional and do nothing more than explain to the jury that for the crime of child molestation to occur, there is a `perpetrator' and there is a `victim.' There is no indication that Mr. Yacinich is the perpetrator and K.M. is the victim. A jury instruction that does no more than accurately state the law pertaining to an issue does not constitute an impermissible comment on the evidence by the trial judge. State v. Woods, 143 Wn.2d 561, 591, 23 P.3d 1046, petition for cert. filed, (U.S. Aug. 20, 2001) (No. 01-5921). The judge was simply apprising the jury of the nature of the crime of child molestation. This was not an impermissible comment on the evidence.
The use of the word `victim' in the `to convict' instructions is a little more problematic. These instructions state as follows:
To convict the defendant of the crime of child molestation in the third degree as charged in Count I [Count III] of the Information, each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That on or between the 19th day of October, 1998, and the 24th day of November, 1998 [about the 24th day of November, 1998], the defendant had sexual contact with K.M. [M.G.];
(2) That the victim was at least fourteen years of age but less than sixteen years of age at the time of the sexual contact and was not married to the defendant;
(3) That the defendant was at least forty-eight months older than the victim[.]
CP at 135, 137 (emphasis added).
In the `to convict' instructions for second degree child molestation, `K.M.' is substituted for `the victim.' It appears that the court simply overlooked changing the wording of these three instructions. When the instructions are read as a whole, it is clear that the use of the word `victim' was not an indication of the judge's opinion, but an inadvertent mistake. These instructions did not convey the court's attitude toward the merits of the case to the jury. In addition, the court instructed the jury as follows:
The law does not permit a judge to comment on the evidence in any way.
A judge comments on the evidence if the judge indicates, by words or conduct, a personal opinion as to the weight or believability of the testimony of a witness or of other evidence. Although I have not intentionally done so, if it appears to you that I have made a comment during the trial or in giving these instructions, you must disregard the apparent comment entirely. CP at 78.
When placed in the context of the entire trial, the reference to `victim' is harmless error beyond a reasonable doubt.
Offender Score
Mr. Yacinich contends that the sentencing court erred by counting his two Chelan County felony convictions as separate crimes. He maintains that the two counts of third degree child molestation should have constituted the same criminal conduct and, thus, his offender score should be 3 instead of 6.
A defendant may challenge an illegal or erroneous sentence for the first time on appeal even where the parties agree at trial with the sentencing court. State v. Ford, 137 Wn.2d 472, 477-78, 973 P.2d 452 (1999); State v. Rowland, 97 Wn. App. 301, 304, 983 P.2d 696 (1999). We apply an abuse of discretion or misapplication of law standard to review a determination of whether multiple crimes constituted the same or different criminal conduct. State v. Tili, 139 Wn.2d 107, 122, 985 P.2d 365 (1999) (citing State v. Walden, 69 Wn. App. 183, 188, 847 P.2d 956 (1993)); State v. Grantham, 84 Wn. App. 854, 857, 932 P.2d 657 (1997).
If some or all of the current offenses that a defendant is convicted of encompass the same criminal conduct, then those offenses shall be counted as one crime for sentencing purposes. RCW 9.94A.400(1)(a). Same criminal conduct means `two or more crimes that require the same criminal intent, are committed at the same time and place, and involve the same victim.' RCW 9.94A.400(1)(a); accord Grantham, 84 Wn. App. at 857-58.
We construe the phrase `same criminal conduct' narrowly. Grantham, 84 Wn. App. at 858. The absence of any one of these prongs precludes a finding of same criminal conduct. Id. Yet, "there is one clear category of cases where two crimes will encompass the same criminal conduct — the repeated commission of the same crime against the same victim over a short period of time."' State v. Palmer, 95 Wn. App. 187, 191 n. 3, 975 P.2d 1038 (1999) (emphasis omitted) (quoting State v. Porter, 133 Wn.2d 177, 181, 942 P.2d 974 (1997)).
Mr. Yacinich could be convicted of third degree child molestation if, among other elements, he had sexual contact with K.M. The State argued to the jury that it could convict Mr. Yacinich of two counts of third degree child molestation if, during one ride, Mr. Yacinich touched K.M.'s genitals and K.M. touched his genitals. These are both incidents of sexual contact with K.M. committed at the same time and place, and involving the same victim. These two crimes encompass the same criminal conduct and should have been counted as one crime for sentencing purposes.
Reputation Evidence
The defense attempted to present evidence that K.M. had a reputation to lie through testimony from M.L., who went to school with K.M. during the first through seventh grades. The State elicited testimony showing that the `reputation' was based on opinion within a small group of friends at school, rather than a generalized reputation in the school. The witness also indicated that the `reputation' existed at least two years prior to trial. The court excluded the evidence, finding that it was too remote in time and that it was not general reputation evidence.
Mr. Yacinich contends this evidence should not have been excluded because K.M.'s seventh grade year was one of the years of the charging period and her reputation at school was relevant because the school was her community. We review the trial court's decision regarding the sufficiency of foundation to support the admission of reputation testimony for abuse of discretion. State v. Land, 121 Wn.2d 494, 500, 851 P.2d 678 (1993). A trial court abuses its discretion when it acts in a manner that is manifestly unreasonable or based on untenable grounds. Id.
ER 608(a) allows the admission of evidence as to a witness's reputation for truthfulness. The application of ER 608(a) has been broken down into five elements: The first element is the foundation for the testimony — the knowledge of the reputation of the witness attacked. Second, the impeaching testimony must be limited to the witness's reputation for truth and veracity and may not relate to the witness's general, overall reputation. Third, the questions must be confined to the reputation of the witness in his community. Fourth, the reputation at issue must not be remote in time from the time of the trial. Finally, the belief of the witness must be based upon the reputation to which he has testified and not upon his individual opinion. State v. Lord, 117 Wn.2d 829, 873, 822 P.2d 177 (1991) (citing 5A Karl B. Tegland, Washington Practice, Evidence § 231 at 202-04 (3d ed. 1989)).
In excluding M.L.'s testimony, the trial court considered the following information: (1) M.L. was not a friend of K.M.'s but an acquaintance who had gone to school with her in the first through seventh grades; (2) M.L.'s opinion that K.M. lied was mostly based on what several of her friends told her; (3) M.L. could not remember any specific incidents of lying because they happened too long ago; (4) The reputation that M.L. spoke of was K.M.'s reputation at least two years before the trial; and (5) Even though K.M.'s seventh grade year was included in the charging period, it was two years before the time of trial and was too remote in time to indicate her truthfulness when testifying. The trial court did not abuse its discretion because its decision was not manifestly unreasonable or based upon untenable grounds or untenable reasons.
Character Evidence
Mr. Yacinich was allowed to testify that he taught swimming and helped coach 8 to 13 year olds to swim. He was not allowed to bring in an additional witness to testify about his involvement in youth activities and swimming. The court excluded it as good character evidence. Mr. Yacinich contends he should have been allowed to introduce this evidence to show he had demonstrated the character of not taking advantage of or abusing young people.
Character evidence is generally not admissible to prove that the person acted in conformity with that character on a particular occasion. ER 404. Evidence of an accused's reputation for a `pertinent trait' is admissible, however, as is evidence of a witness's reputation for truthfulness when that witness's credibility has been attacked. ER 404(a); ER 405(a); ER 608(a).
The testimony that Mr. Yacinich was involved in youth activities was admitted. It was not abuse of discretion to exclude additional evidence of Mr. Yacinich's involvement as a swim coach.
Right to Depose Witnesses
Prior to trial, the defense moved to depose witnesses or, in the alternative, to take verbatim statements. A hearing was held at which time the State objected to entry of the requested orders because there was no basis for a deposition pursuant to CrR 4.6 and because the witnesses objected to the defense's request. The court denied the request. The court said the defense could have a note taker and could ask the witnesses if they would consent to a recording of the interview.
Mr. Yacinich contends he should have been permitted to make an accurate record of K.M.'s interview so he could confront her with what she said during his cross-examination. `Discovery in criminal cases is governed by the Superior Court Criminal Rules.' State v. Gonzalez, 110 Wn.2d 738, 743, 757 P.2d 925 (1988). '[T]he scope of discovery is within the sound discretion of the trial court and will not be disturbed absent a manifest abuse of that discretion.' State v. Mak, 105 Wn.2d 692, 704, 718 P.2d 407 (1986).
`A defendant is denied his right to counsel if the actions of the prosecution deny the defendant's attorney the opportunity to prepare for trial.' State v. Burri, 87 Wn.2d 175, 180, 550 P.2d 507 (1976) (citations omitted). Accordingly, the right of `the defense in criminal proceedings to interview witnesses before trial is clearly recognized by the courts.' Kines v. Butterworth, 669 F.2d 6, 9 (1st Cir. 1981); see, e.g., United States v. Cook, 608 F.2d 1175, 1180 (9th Cir. 1979). Further, a defendant's right to compulsory process, a fundamental component of due process, is violated by prosecutorial interference with a defendant's attempts to interview witnesses necessary to preparing a proper defense. See Burri, 87 Wn.2d at 180; State v. Clark, 53 Wn. App. 120, 124, 765 P.2d 916 (1988).
However, a defendant in a criminal case is not, as a matter of right, entitled to take the deposition of prospective witnesses before trial. CrR 4.6(a) provides that the court may order a deposition if the witness is unable to attend the trial or if the witness refuses to discuss the case with either counsel. K.M. was able to attend the trial and was willing to discuss the case. The court did not infringe upon Mr. Yacinich's right to interview a witness. The court simply refused to require K.M. to submit to giving a recorded statement in the absence of grounds for a deposition.
The court did not abuse its discretion.
Affirm but remand for resentencing.
The 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.
WE CONCUR: SWEENEY, J., KATO, J.