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State v. Curtis

The Court of Appeals of Washington, Division Two
Apr 25, 2006
132 Wn. App. 1040 (Wash. Ct. App. 2006)

Opinion

No. 32308-7-II.

Filed: April 25, 2006.

Appeal from Superior Court of Thurston County. Docket No: 03-1-02154-1. Judgment or order under review. Date filed: 09/24/2004. Judge signing: Hon. Christine A. Pomeroy.

Counsel for Appellant(s), Thomas Edward Doyle, Attorney at Law, PO Box 510, Hansville, WA 98340-0510.

Patricia Anne Pethick, Attorney at Law, PO Box 7269, Tacoma, WA 98406-0269.

Counsel for Respondent(s), James C. Powers, Thurston County Prosecuting Attorney Ofc, 2000 Lakeridge Dr SW, Olympia, WA 98502-6001.


UNPUBLISHED OPINION


Bradley James Curtis appeals his conviction for first degree child molestation arguing that (1) the court allowed impermissible opinion testimony from two witnesses; (2) his counsel was ineffective for failing to object to the opinion testimony; and (3) insufficient evidence supports his conviction. Finding no reversible error, we affirm.

FACTS

C.W. was born in 1992. Her parents, Don and Nicole Willyard separated in 1998. Don moved to Montana; Bradley James Curtis, Nicole, and the two children lived together at the home of Robert Fromm in Lacey, Washington.

During the summer of 2003, when C.W. was 10 years old, she, her mother, and her brother went to stay with Don in Fromberg, Montana. One morning, while talking with C.W., Don discovered a computer disk (CD) with pornographic images on the cover near Nicole's computer. When he tried to conceal the CD from C.W., she told him, `It's okay, Dad. [Curtis] has showed me these before.' Report of Proceedings (RP) at 37. Don then questioned C.W about whether Curtis had improperly touched her. C.W. said he had but she did not want Curtis and Nicole to get in trouble for it. Don immediately called the police, who began an investigation.

As part of this investigation, Georgia Cady, and a sheriff's deputy, Josh McQuillan, interviewed C.W. Afterwards, they took her for a physical examination with Dr. William Oley, who found no physical signs of abuse.

At trial, C.W. testified that Curtis touched her with his penis on two different occasions. She testified that one night during the summer before she moved to Montana, when Curtis was living with her mother, she was feeling ill and so she went to sleep in bed with Nicole and Curtis. When she woke up, her mother was rubbing `gross lotion' on her legs. RP at 87. Then either her mother or Curtis removed her underwear and her mother held C.W.'s legs apart and Curtis inserted his penis `a little' into her vagina. RP at 89-90. She told him `to quit,' which he did after she told him the third time. RP at 91.

C.W. also testified to an incident that occurred two years earlier in Dayton. She testified that on the day before her birthday, Nicole told her she could open some of her birthday presents if she first touched Curtis's penis. After C.W. did this, Nicole was being `really gross' touching Curtis's penis. RP at 95. Then Nicole persuaded C.W. to lie down on the bed. Curtis tried to put his penis inside her vagina but she said no and he stopped.

Dr. Oley testified that he found no physical signs of sexual abuse. But he also explained that the tissues in that area are very elastic and heal very fast when there is an injury. He admitted that it would not be unusual for a 10-year-old child to experience slight penetration by an adult male penis and two weeks later show no signs of injury.

Dr. Yolanda Duralde, a medical director at the child abuse intervention department with Mary Bridge Hospital in Tacoma, also testified. She did not examine C.W., but after reviewing Dr. Oley's report, she corroborated that even if there were small marks or superficial abrasions at the time of the incident, they would have healed by two weeks.

The following exchange occurred between Dr. Duralde and the prosecution at trial:

A [Dr. Duralde]: The predominant reasons are the kind of injuries that happen, most of the pediatric sexual abuses are touching, licking, looking kind of stuff. And even in [C.W.'s] case she talked about sort of an attempt at penetration, but it hurt her, and she asked him to stop and he did. So you know, she doesn't give the history of a full penetration, and so you're not really expecting to see a lot because really in her stage of sexual development the hymenal tissue is very sensitive so it's going to hurt even with just pressure on it. So she probably, you know, felt this pressure and it hurt and said stop.

Mr. Mestel: Objection. The Court: Sustained. Mr. Powers: Understood.

Q [Mr. Powers resuming]: In a situation where a child did feel this kind of pressure, what would be the kind of feelings generated then?

A: It would hurt. That's the history that was given. You know, also if there were any abrasions, the mucosa, particularly in that part of the body, is very similar to the tissue in your mouth, and it's very vascular. It's got lots of blood vessels and heals very quickly. Does not leave scars really.

RP at 201-02.

On cross-examination, Dr. Duralde testified that she did not know whether C.W. was lying or telling the truth and that she was giving no opinion about that. And she admitted that if C.W. had never been touched, she could look exactly the same as if somebody attempted to penetrate her.

Detective Shannon Barnes testified that when she interviewed Curtis, he consistently denied abusing C.W. But when she asked him why she should believe him over a 10-year-old girl, Curtis said, `[Y]ou shouldn't.' RP at 236. She also testified that as she was leaving the interview, Curtis claimed that Nicole had `done it' to C.W. RP at 237. Detective Miller, who was present during the interview, corroborated that Curtis made these statements and added that his reaction to Curtis's comment, `you shouldn't,' was `wow, he did it.' RP at 259. Defense counsel objected to this testimony; the court sustained the objection and directed the jury to disregard the comment.

ANALYSIS I. Opinion Testimony

Curtis argues that the trial court erred in allowing Dr. Duralde and Detective Miller to opine that Curtis was guilty.

No witness may testify as to an opinion about the defendant's guilt or veracity; such testimony is unfairly prejudicial because it violates a defendant's constitutional right to a jury trial. State v. Demery, 144 Wn.2d 753, 759, 30 P.3d 1278 (2001) (citing City of Seattle v. Heatley, 70 Wn. App. 573, 577, 854 P.2d 658 (1993)); State v. Kirkman, 126 Wn. App. 97, 105, 107 P.3d 133 (2005) (citing State v. Carlson, 80 Wn. App. 116, 123, 906 P.2d 999 (1995)), review granted, 155 Wn.2d 1014 (2005). Impermissible opinion testimony may be directly stated or implied. See State v. Black, 109 Wn.2d 336, 348, 745 P.2d 12 (1987).

In determining whether statements constitute impermissible opinion testimony, a court will generally consider all of the circumstances, including "the type of witness involved . . . the specific nature of the testimony . . . the nature of the charges . . . the type of defense, and . . . the other evidence before the trier of fact." Demery, 144 Wn.2d at 759 (quoting Heatley, 70 Wn. App. at 579).

A. Dr. Duralde's Testimony

Curtis contends that Dr. Duralde inferred that she believed C.W.'s allegations, thereby bolstering C.W's credibility and opining that Curtis was guilty. We disagree.

Curtis points to the following exchanges as those that gave rise to the impermissible comments:

Q: So generally speaking would you describe what the reasons — unless you have already — with regard to why it is . . . the case that there are so seldom any sign of injury even when such a thing [i.e. slight penetration] has occurred[?]

A: The predominant reasons are the kind of injuries that happen, most of the pediatric sexual abuses are touching, licking, looking kind of stuff. And even in [C.W.'s] case she talked about sort of an attempt at penetration, but it hurt her, and she asked him to stop and he did. So you know, she doesn't give the history of a full penetration, and so you're not really expecting to see a lot because really in her stage of sexual development the hymenal tissue is very sensitive so it's going to hurt even with just pressure on it. So she probably, you know, felt this pressure and it hurt and said stop.

Mr. Mestel: Objection. The Court: Sustained. Mr. Powers: Understood.

Q [Mr. Powers resuming]: In a situation where a child did feel this kind of pressure, what would be the kind of feelings generated then?

A: It would hurt. That's the history that was given. You know, also if there were any abrasions, the mucosa, particularly in that part of the body, is very similar to the tissue in your mouth, and it's very vascular. It's got lots of blood vessels and heals very quickly. Does not leave scars really.

Br. of Appellant at 7-8 (citing RP at 201-02) (emphasis added).

Curtis maintains that the court erred in allowing this testimony. He argues that even though the court sustained his objection, the harm could not be cured `particularly given the subsequent question by the State in which Dr. Duralde again committed the same impermissible error by referencing C.W.'s `history as given' as being consistent with C.W.'s allegation of abuse and ultimately an opinion on Curtis's guilt.' Br. of Appellant at 9. He likens this case to State v. Kirkman, 126 Wn. App. 97, 107 P.3d 133 (2005), and State v. Carlson, 80 Wn. App. 116, 906 P.2d 999 (1995), two cases in which this court found that doctors had given impermissible opinion testimony.

In Kirkman, where there were no physical signs of rape, the State asked the doctor for his `general assessment of the case.' Kirkman, 126 Wn. App. at 102. The doctor replied that:

[T]he physical examination did not confirm anything, but A.D. gave a clear and consistent history of sexual touching with appropriate affect (`. . . sad when one would expect her to be sad, and reluctant to talk about things that were embarrassing . . . and the vocabulary seemed to be appropriate for a young lady of her age') and her history was `clear and consistent' with plenty of detail.

Kirkman, 126 Wn. App. at 102-03. We held that `[t]he physician was clearly commenting on [the victim's] credibility.' Kirkman, 126 Wn. App. at 104.

Similarly, in Carlson, the State asked the victim's treating physician for her `assessment based upon a medical certainty on the issue of child sexual abuse.' Carlson, 80 Wn. App. at 121-22. The doctor replied that she had `concluded that [the victim] had been sexually abused.' Carlson, 80 Wn. App. at 122. On cross-examination, the doctor clarified that this opinion was based primarily on information provided by the victim and other witnesses. Carlson, 80 Wn. App. at 122. We held that this was improper opinion testimony. Carlson, 80 Wn. App. at 123-24.

This case is unlike Carlson because Dr. Duralde never stated directly that her opinion was based on C.W.'s story. And while at first glance her comments are similar to those of the doctor in Kirkman, the circumstances distinguish them. First, the court sustained defense counsel's objection to the first comment. Then, on cross-examination, defense counsel clarified that Dr Duralde was not expressing an opinion as to credibility or guilt:

Q: Doctor [Duralde], you never met this girl?

A: I did not.

Q: You never spoke to her?

A: I did not.

Q: You didn't try to interview her by telephone?

A: No.

Q: You don't know if she's telling the truth or lying.

A: No.

Q: And you're not here suggesting she's telling the truth or lying, are you?

A: That's not my decision to make, no.

Q: You're talking in generalities about what might happen if somebody is attempted to be penetrated.

A: Correct.

Q: You're not here giving an opinion that she was attempted to be penetrated.

A: Correct.

Q: You're simply repeating things that you've read in reports; is that right?

A: That's correct.

Q: And what you're telling us is that if she had never been touched, she could look exactly the same as if somebody attempted to penetrate her.

A: That's correct.

Q: Thank you.

RP 202-03.

By this testimony, Dr. Duralde unequivocally stated that she was expressing no opinion on the credibility of C.W., that she did not know whether C.W. was lying or telling the truth, and that she could not verify abuse from the results of Dr. Oley's report. No reasonable jury could mistake her responses on cross to mean anything else.

Furthermore, unlike in Kirkman, the prosecutor never sought the doctor's `general assessment' of the case. Instead, the prosecutor sought information about what pressure from slight penetration would feel like for a girl of C.W.'s age. Any inferable opinion that Dr. Duralde may have initially given was an inadvertent consequence of the nature of her testimony; her answers on cross-examination clarified that she did not know whether C.W. was lying and she was offering no opinion on that issue.

B. Detective Miller's Testimony

Curtis also contends that Detective Miller improperly expressed his opinion that Curtis was guilty.

Curtis identifies the following as the source of his complaint:

Q: And what was [Curtis's] response to the accusations that were being made against him?

A: He denied it. He said he didn't do it, and —

Q: And then after he made his denial do you recall Detective Barnes asking him a question about how she should react to that?

A: Yes, sir. Detective Barnes said, `Why should I believe you over a ten-year-old girl?

Q: And what was Mr. Curtis's response to that?

A: He stated, `You shouldn't.'

Q: Okay. Now, when you heard that, what was your reaction to hearing him say that?

Mr. Mestel: Objection, your honor.

The Court: I'll allow it, his reaction, if any.

Q: (By Mr. Powers). If any.

Mr. Mestel: The officer's reaction?

The Court: Yes.

Q: (By Mr. Powers). In your mind, what was your reaction?

A: I was like, wow, he did it.

Mr. Mestel: Move to strike, your Honor. Jury should disregard it.

The Court: Sustained. You should disregard this.

Q: (By Mr. Powers). Detective, what I mean is were you surprised by the fact that he would say something like that?

A: Yes, I was surprised.

Q: And after Mr. Curtis made that kind of response to the question did he continue to deny his own involvement?

A: Yes. After he said that he said that — something to the effect that I had nothing to do with it. Nicole was the one that did it to her.

Br. of Appellant at 10-11 (citing RP at 259-60) (emphasis added).

In addition, Curtis complains of the following:

Q: And with regard to the statement that — statements that you have referred to of Mr. Curtis that he shouldn't be believed and that [C.W.] — Nicole was the one that did this to [C.W.], is there any . . . particular statements that have stuck in your mind about this matter?

A: Yes, sir. Right after —

Q: Let me stop you for a second. And is that because of the nature of what was said?

A: That and —

Br. of Appellant at 11-12 (citing RP 260-61) (emphasis added).

At this point the court interrupted, excused the jury, and explained, `I want to make sure that what the detective says is not a comment on the evidence, and at this point I'd ask for an offer of proof to see where you are going.' RP at 261. After the prosecution's offer of proof, the court clarified:

So there will be three [questions]. Was that startling to you, yes or no, did you take particular note of [the comment], yes or no, did you and Detective Barnes talk about this after, yes or no. Those are the three questions. Do I hear you right?

RP at 264. Counsel agreed.

To this ruling, defense counsel argued that the question had already been asked and answered and that it was inappropriate to visit the issue again. The court allowed the State to continue after cautioning Detective Miller that `[r]eactions are surprise, dismay, [and] upset. . . . You cannot say what your thoughts are.' RP at 265.

When the jury returned, the State continued:

Q: (By Mr. Powers) Detective, with regard to your recollection of what was said in this interview, the statements that Mr. Curtis made that he shouldn't be believed and that Nicole had done this to [C.W.], were those statements that were particularly startling to you during the interview?

A: Yes, they were.

Q: And given the purpose for which you were there to interview Mr. Curtis, did you have reason to take particular note of those comments?

A: Yes, I did.

Q: Now, after the interview took place did you and Detective Barnes discuss those particular responses that Mr. Curtis had made?

A: Yes, we did.

Q: Thank you. I have no other questions, your Honor.

RP at 266.

Curtis denied saying, `You shouldn't [believe me].' He testified that he said, `Maybe you shouldn't [believe me].' RP at 334. And he maintained that he was innocent.

Curtis argues that even though the court sustained his objection to and struck Detective Miller's statement, `he did it,' the harm remained, particularly when the State was allowed `to revisit this testimony . . . inferentially.' Br. of Appellant at 13.

1. First Statement `I was like, wow, he did it.'

Admitting improper opinion testimony is constitutional error; in reviewing such error for possible reversal, we ask whether it was harmless beyond a reasonable doubt. See State v. Weber, 99 Wn.2d 158, 163, 659 P.2d 1102 (1983). But here, the court did not admit the opinion testimony; it sustained defense counsel's objection and instructed the jury to disregard it. The harmless error-reasonable doubt analysis `does not . . . lend itself to problems involving trial irregularity.' See Weber, 99 Wn.2d at 163 (emphasis added). Instead, we ask what effect the irregularity had on the trial. Weber, 99 Wn.2d at 164 (citing State v. Nettleton, 65 Wn.2d 878, 880, 400 P.2d 301 (1965)). Specifically we ask, `[W]hether the remark when viewed against the backdrop of all the evidence so tainted the entire proceeding that the accused did not have a fair trial.' Weber, 99 Wn.2d at 164 (citing Nettleton, 65 Wn.2d at 880).

In answering this question, we consider:

(1) the seriousness of the irregularity, (2) whether the statement in question was cumulative of other evidence properly admitted, and (3) whether the irregularity could be cured by an instruction to disregard the remark.

State v. Condon, 72 Wn. App. 638, 647, 865 P.2d 521 (1993) (citing State v. Escalona, 49 Wn. App. 251, 254, 742 P.2d 190 (1987)); see also Weber, 99 Wn.2d at 164-65. Generally, we presume that jurors follow instructions to disregard improper evidence. State v. Russell, 125 Wn.2d 24, 84-85, 882 P.2d 747 (1994) (citing State v. Swan, 114 Wn.2d 613, 661-62, 790 P.2d 610 (1990)); see also Condon, 72 Wn. App. at 647.

2. Seriousness of the Irregularity

Here, there was no physical evidence or eyewitness testimony. The verdict depended on the jury's credibility determination on whether it believed C.W. or Curtis. Thus, any comment giving the jury reason to believe one witness over the other was serious.

3. Cumulative Evidence

Detective Miller's interpretation of the implied meaning of Curtis's alleged statement added nothing substantive to the evidence; and the rest of his testimony was cumulative. Specifically, Detective Barnes also testified that Curtis said, `[Y]ou shouldn't [believe me over a 10-year-old girl].' RP at 236. And she testified that as she was leaving the interview, Curtis claimed that Nicole had done it to C.W. Detective Miller added nothing to this evidence other than his personal inference about Curtis's `you shouldn't' statement. The jury was capable of making its own inference about the meaning of that statement. It did not need Detective Miller's interpretation to come to the same conclusion. And unlike Detective Miller, the jury had volumes of testimony from other witnesses to form its inference, including testimony from C.W., Curtis, Detective Barnes, Dr. Oley, and Dr. Duralde among others. We conclude that no reasonable jury would have been influenced by Detective Miller's inference, especially in light of the other evidence and the court's instruction to disregard his improper statement.

Again, in Kirkman, we commented that `a police officer's testimony may particularly affect a jury because of its `special aura of reliability." Kirkman, 126 Wn. App. at 105 (quoting Demery, 144 Wn.2d at 765); State v. Saunders, 120 Wn. App. 800, 813, 86 P.3d 1194 (2004). There, the detective `told the jury that he tested [the victim's] competency and her truthfulness.' Kirkman, 126 Wn. App. at 105. He also testified that he obtained her promise to tell the truth before she related what had happened to her. Kirkman, 126 Wn. App. at 101. He then related the story she told him, which matched the story she told her aunt and a doctor. Kirkman, 126 Wn. App. at 101-02. We held that `[i]n essence, he told the jury that [the victim] told the truth when she related the incriminating events to him.' Kirkman, 126 Wn. App. at 105.

Ultimately, this court found that because there was no physical evidence or eyewitness testimony, the constitutional errors were not harmless. Kirkman, 126 Wn. App. at 99. Specifically, the court stressed:

At best, the evidence is that [the victim] repeated the same factual recitation to her aunt, the physician, and the policeman. Her credibility is for the jury to decide. Because there was not overwhelming untainted evidence of Kirkman's guilt, the improper opinion evidence invaded the province of the jury.

Kirkman, 126 Wn. App. at 107.

While there was also no physical or eyewitness evidence in this case, it is distinguishable from Kirkman. First, defense counsel did not object to the opinion evidence in Kirkman. Here the trial court sustained defense counsel's objection and directed the jury to disregard the statement. Thus, Kirkman concerned a constitutional error, not a trial irregularity. Second, Detective Miller's testimony lacked the aura of reliability of the detective's testimony in Kirkman. Detective Miller testified that he was simply observing the interview with Curtis; the detective in Kirkman was intimately involved in the case and had spent significant time with the victim. And Detective Miller had no special knowledge about the case; in fact, he testified, `I didn't know a whole lot about it . . . [Detective Barnes] was the lead detective and I pretty much went up to accompany her to the interview.' RP at 258. He also testified that he believed he asked no questions at the interview. And he admitted on cross-examination that he was `there as a warm body,' and that he was not from the sexual assault unit. RP at 267. In fact, he stated that he was there `just to tag along with [Officer Barnes]' as a back-up. RP at 267-68. The testimony of a detective under these circumstances would not, realistically, have the same aura of reliability and trustworthiness as the detective's testimony in Kirkman.

Because defense counsel did not object to the evidence, and the trial court did not instruct the jury to disregard it, this court applied the usual constitutional harmless error analysis in Kirkman:

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. Guloy, 104 Wn.2d 412, 425, 705 P.2d 1182 (1985). We employ the `overwhelming untainted evidence' test to determine if the error was harmless. Guloy, 104 Wn.2d at 426. We examine whether the untainted evidence is so overwhelming that it leads necessarily to a finding of guilt. Guloy, 104 Wn.2d at 426.

Kirkman, 126 Wn. App. at 107. Because this case involves the possibility of an unfair trial based on a trial irregularity, improper opinion evidence that the jury heard but was instructed to disregard, this court should apply the Weber test instead.

In addition, the Kirkman detective's testimony was not cumulative. He alone told the jury that the victim promised to tell him the truth when she told her version of the story; and he alone related that he tested her for competency and truthfulness. This testimony gave the jury reason to believe the victim over the defendant. Here, Detective Miller interpreted the meaning of a statement that was already properly before the jury; his minor role in the interview and the case itself could not have realistically given the jury any more reason to believe C.W. over Curtis.

4. Curative Instruction

Finally, the irregularity in this case could be cured by an instruction to disregard the remark. Indeed, no instruction can "remove the prejudicial impression created [by evidence that] is inherently prejudicial and of such a nature as to likely impress itself upon the minds of the jurors." Escalona, 49 Wn. App. at 255 (quoting State v. Miles, 73 Wn.2d 67, 71, 436 P.2d 198 (1968)); see also State v. Suleski, 67 Wn.2d 45, 51, 406 P.2d 613 (1965); State v. Morsette, 7 Wn. App. 783, 789, 502 P.2d 1234 (1972). But this is not one of those cases.

In Escalona, 49 Wn. App. at 252, the State charged Escalona with second degree assault while armed with a deadly weapon, a knife. Before trial, the court granted a defense motion in limine to exclude any reference to Escalona's prior conviction for the same crime. Escalona, 49 Wn. App. at 252. But at trial, a witness volunteered that `[Escalona] already has a record and had stabbed someone.' Escalona, 49 Wn. App. at 253. Defense counsel immediately moved to strike and asked that the jury be excused. Escalona, 49 Wn. App. at 253. The judge ordered the statement stricken and excused the jury. Escalona, 49 Wn. App. at 253. Defense counsel moved for a mistrial, but the court denied it. Escalona, 49 Wn. App. at 253. When the jury returned, the judge instructed it to disregard the witness's last answer. Escalona, 49 Wn. App. at 253.

The Court of Appeals reversed, emphasizing that `no instruction can `remove the prejudicial impression created [by evidence that] is inherently prejudicial and of such a nature as to likely impress itself upon the minds of the jurors." Escalona, 49 Wn. App. at 255 (quoting Miles, 73 Wn.2d at 71) (emphasis added); see also Suleski, 67 Wn.2d at 51; Morsette, 7 Wn. App. at 789.

Here, Detective Miller added no inherently prejudicial evidence that would likely impress itself upon the minds of the jurors; he simply reported his inference about evidence that was already before the jury. Yet he admitted that he knew little about the case. The jury had the same statement before them, given by Detective Barnes and by Detective Miller, as well as testimony from other witnesses, including C.W. and Curtis. The jury had the evidence it needed to make its own independent inference about the meaning of the statement; the court's instruction to disregard Detective Miller's inference was sufficient to enable the jury to do this. Further, the court instructed the jury that it was the sole judge of credibility. We hold that the remark, when viewed against the backdrop of all the evidence, did not so taint the entire proceeding against Curtis.

5. Second Set of Statements

The testimony that followed — that Detective Miller was surprised and startled that Curtis would say that officers should not believe him over a 10-year-old-girl, that he took note of those comments, and that he and Detective Barnes discussed those comments later — was not improper. Detective Miller's comment that he was surprised by Curtis's statement simply conveyed his reaction to the statement; he offered no opinion about Curtis's guilt or credibility. His statement that he took note of the comments simply showed that he paid attention to it and sought to remember it.

II. Ineffective Assistance of Counsel

Curtis contends that his counsel was ineffective for failing to properly object to Dr. Duralde's and Detective Miller's testimony.

Effective assistance of counsel is guaranteed under the federal and state constitutions. See U.S. Const. amend VI; Wash. Const. art. I, sec. 22. To prove ineffective assistance of counsel, Curtis must show that (1) counsel's performance was deficient; and (2) the deficient performance prejudiced him. In re Pers. Restraint of Woods, 154 Wn.2d 400, 420-21, 114 P.3d 607 (2005) (citing State v. Hendrickson, 129 Wn.2d 61, 77-78, 917 P.2d 563 (1996)); State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987). Counsel's performance is deficient when it falls below an objective standard of reasonableness. State v. Stenson, 132 Wn.2d 668, 705, 940 P.2d 1239 (1997). Prejudice occurs when, but for the deficient performance, there is a reasonable probability the outcome would have been different. In re Pers. Restraint of Pirtle, 136 Wn.2d 467, 487, 965 P.2d 593 (1998).

Defense counsel did object to Dr. Duralde's testimony; in any event, we have held that Dr. Duralde did not improperly express an opinion. Thus, Curtis cannot show that his counsel's performance was deficient as to Dr. Duralde's testimony.

Defense counsel also objected to Detective Miller's opinion testimony; in fact, he obtained a curative instruction and moved for a new trial, arguing that the court's instruction could not cure the error. Thus, counsel effectively represented Curtis on the issue. Moreover, Curtis has not shown that he was prejudiced by the statement.

III. Sufficiency of the Evidence

Curtis maintains that the State failed to prove beyond a reasonable doubt that he committed child molestation in the first degree.

Evidence is sufficient to support a conviction if, 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, 221-22, 616 P.2d 628 (1980); see also State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992); Saunders, 120 Wn. App. at 814.

To convict of child molestation in the first degree, the State had to prove that Curtis knowingly caused C.W. to have sexual contact with him at a time when C.W. was less than 12 years old and not married to Curtis, and that Curtis was at least 36 months older than C.W. RCW 9A.44.083(1). `Sexual contact' means `any touching of the sexual or other intimate parts of a person done for the purpose of gratifying sexual desire of either party or a third party.' RCW 9A.44.010(2).

There was no dispute that C.W. was less than 12 years old at the time of the incident and that Curtis was more than 36 months older than her. And C.W. testified that Curtis deliberately touched her vagina with his penis; clearly this constitutes sexual contact. And although Curtis denied it, the jury believed C.W. over Curtis. We defer to the jury on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence. State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004) (citing State v. Cord, 103 Wn.2d 361, 367, 693 P.2d 81 (1985)). Curtis has not shown that the evidence was insufficient for a conviction.

IV. Statement of Additional Grounds for Review

Curtis has submitted a statement of additional grounds for review (SAG). In a criminal case, the defendant is entitled to file a pro se SAG to identify and discuss matters that he believes counsel has not adequately addressed. RAP 10.10(a). We will consider a SAG only if it informs us of the nature and occurrence of alleged errors. RAP 10.10(c). We are not obligated to search the record in support of a defendant's SAG claims. RAP 10.10(c).

A. Testimony about the CD

Curtis contends that the court erred when it admitted testimony about the CD Donald found the morning he spoke to C.W. about the abuse. He claims that the testimony was highly inflammatory and unduly prejudicial. SAG at 5. He identifies the following testimony:

Q: And what did you notice when one of the CDs fell out of the pile?

A: When the CDs fell to the floor, one of the CDs was a porno CD, and it had pictures all over the front of it.

Q: And when you noticed that about it, what did you do then?

A: I immediately reached as quickly as I could to pick them up so she wouldn't see it. It was too it was too late at that time.

Q: And so as you were doing that did [C.W.] say anything to you at that point?

A: Yes. [C.W.] said . . .

Mr. Mestel: Objection. It only calls for a yes or no.

The Court: Sustained.

Q: (By Mr. Powers) Did she say something to you?

A: Yes, she did.

Q: What is it that she said to you?

Mr. Mestel: Objection. It's hearsay.

Mr. Powers: Your Honor, it's only offered for the purpose of showing what led this witness to ask her further questions.

The Court: I'll allow it for that purpose.

Q: (By Mr. Powers) What.

A: She said it's okay. It's okay, Dad. Brad has showed me these before.

SAG at 3-4 (citing RP at 36-37).

Curtis emphasizes that later Donald testified that he `got rid of the disk. I held onto the disk for a few months. Nobody requested it. I didn't want it in the house, so I finally got rid of it. I didn't want the kids finding it anywhere in the house.' RP at 63-64.

Curtis did not object at trial to this evidence on the basis that it was highly inflammatory and unduly prejudicial. Generally, we will not consider errors raised for the first time on appeal unless they concern manifest errors concerning a constitutional right. RAP 2.5(a); State v. Canfield, 154 Wn.2d 698, 707, 116 P.3d 391 (2005); State v. McDonald, 138 Wn.2d 680, 691, 981 P.2d 443 (1999). Under RAP 2.5(a)(3), a defendant must show how an alleged constitutional error actually affected his rights at trial. See State v. McFarland, 127 Wn.2d 322, 334, 899 P.2d 1251 (1995)). It is this showing of actual prejudice that makes the error `manifest.' McFarland, 127 Wn.2d at 333 (citing State v. Scott, 110 Wn.2d 682, 688, 757 P.2d 492 (1988)). Curtis has not even argued let alone shown that the error, if any, affected a constitutional right or that it was manifest. Accordingly, we decline to review the issue.

B. Impeachment Evidence

Curtis points to two incidences where he contends that the court erroneously denied him the right to impeach C.W.

Curtis argues that the trial court denied him the right to impeach C.W. when it excluded `the crucial witness,' Virginia Harmon, C.W.'s great aunt, who allegedly had knowledge of C.W.'s `precociousness and sexual knowledge prior to the alleged (CD) incident.' SAG at 6-7.

But Virginia Harmon did testify in front of the jury. Curtis complains that the trial court rejected a letter Harmon apparently wrote discussing the lack of discipline and rules at Donald's house. But the letter was inadmissible hearsay. ER 801, 802. And Curtis does not discuss any possible hearsay exception that would have allowed the court to admit the letter.

We review the trial court's evidentiary rulings for abuse of discretion. In re Pers. Restraint of Davis, 152 Wn.2d 647, 691, 101 P.3d 1 (2004) (citations omitted). Because the letter was inadmissible hearsay, the trial court did not abuse its discretion in not admitting the letter into evidence. See Davis, 152 Wn.2d at 691.

Curtis also argues that the court denied him the right to confront the witness, C.W., as guaranteed by the Sixth Amendment and article I, section 22 of the Washington State Constitution; specifically, he contends the court denied him the right to cross-examine C.W. for bias. But he does not show us where in the record he was denied the right to cross-examine for bias. Our review of the record does not support Curtis's claim.

C. Admission of Hearsay

Curtis contends that the trial court erred in allowing various witnesses to testify about what Nicole said. He argues that Nicole never testified; thus, she could not be cross-examined about the statements she allegedly made to others. As a result, he was denied his right to confrontation under the United States and Washington State Constitutions.

Curtis identifies approximately eight instances of alleged hearsay testimony that violated his right to confrontation. He never objected at trial to any of the statements he identifies. Again, this court will not consider new issues on appeal unless they concern a manifest error affecting a constitutional right.

D. Ineffective Assistance of Counsel: Failure to Move for Continuance

Curtis argues that his counsel should have asked for a continuance to investigate and rebut `surprise evidence' at trial. SAG at 16. The surprise evidence he identifies is the tape of an interview and C.W.'s testimony about the incidence of abuse in Dayton. But Curtis offers no hint of what counsel would or could have found out by further investigating the Dayton incident. Accordingly, even if we assume the evidence was a `surprise' and that counsel should have asked for a continuance, Curtis has shown no prejudice.

Affirmed.

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.

BRIDGEWATER, J. and QUINN-BRINTNALL, C.J., concur.


Summaries of

State v. Curtis

The Court of Appeals of Washington, Division Two
Apr 25, 2006
132 Wn. App. 1040 (Wash. Ct. App. 2006)
Case details for

State v. Curtis

Case Details

Full title:STATE OF WASHINGTON, Respondent, v. BRADLEY JAMES CURTIS, Appellant

Court:The Court of Appeals of Washington, Division Two

Date published: Apr 25, 2006

Citations

132 Wn. App. 1040 (Wash. Ct. App. 2006)
132 Wash. App. 1040