Opinion
C078450
05-26-2017
THE PEOPLE, Plaintiff and Respondent, v. JAMES DIXON MILLER, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 13F00204)
A jury convicted defendant James Miller of six counts of lewd and lascivious conduct with two different children under the age of 14. The victims were his adopted granddaughters, Ka.T. and Ke.T., and the incidents occurred when the girls were ages 6 and 7, respectively. The trial court sentenced defendant to three consecutive 15-year-to-life sentences for counts one through three, and three concurrent 15-year-to-life sentences for counts four through six.
Defendant argues there was insufficient evidence to support his conviction on count three--an allegation that he touched the vaginal area of Ke.T. a second time. He also argues the trial court erred when it excluded evidence regarding Ke.T.'s previous sexual conduct. His final argument is that this court is required to review Ka.T.'s and Ke.T.'s therapist records to determine whether the trial court erred in withholding the information as immaterial. We have reviewed the therapist record, but conclude there was no error on this or any other point raised by defendant, and shall affirm the judgment.
DISCUSSION
I
Substantial Evidence of Two Vaginal Touchings
We shall relay the factual background only to the extent necessary to address defendant's arguments.
Defendant was convicted in counts two through six of lewd and lascivious conduct with the older sibling, Ke.T. Count two alleged that the act consisted of rubbing the vaginal area the "first time." Count three alleged the act consisted of rubbing the vaginal area the "last time." Defendant contends there was insufficient evidence he touched Ke.T.'s vaginal area a second time.
"On appeal, we review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] ' "[I]f the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness's credibility for that of the fact finder." ' [Citation.]" (People v. Snow (2003) 30 Cal.4th 43, 66.)
A. SAFE Interview
Both Ke.T. and Ka.T. underwent a Special Assault Forensic Examination (SAFE) interview. During Ke.T.'s SAFE interview, she stated that the first time something happened with her "Grandy," she was sitting on the couch watching television. Her brothers and Ka.T. were there as well. After she got up to go to the bathroom, defendant told her to sit on his lap. She sat on his lap facing the television, and then he started to touch her "private." She also said that the next day he started to touch her some more. The first time, he used his hand and touched her "middle," which was her word for vagina. He touched under her underwear, inside her vagina, and touched both the inside and outside of her vagina. He told her it was their "little secret." Ke.T. also said that when it happened the first time they were alone because everyone else was sleeping in their rooms. There is no explanation in her statement as to what happened to her brothers and Ka.T. between watching television and the touching incident.
The thing that happened with her grandpa happened more than one time. The interviewer asked, "the other times with grandpa was it exactly the same as you told me about before? [¶] . . . [¶] . . . Was it exactly the same as what you told me before? Anything ever happen that was different?" Ke.T. responded, "[n]o." The interviewer asked: "So each time that something happened with grandpa um-um, did something happen to your body?" Ke.T. said that it had. The interviewer asked, "what did he use each time to do something to your body?" Ke.T. responded that defendant had used his hand. The interviewer asked, "what part of your body would he touch with his hand those different times?" Ke.T. responded, "My middle." The interviewer asked whether those different times were on the inside or outside of her clothes, and she responded, "Inside and outside." She confirmed he had touched her "middle" on the outside of her clothes, but could not remember a specific incident.
Ke.T. described another incident when she had been sitting next to defendant on the couch instead of on his lap and he touched her "boobs," another incident when he touched her "bottom" both inside and outside her butt cheeks, and yet another incident when he kissed her on the lips for a long time and she could feel his tongue in her mouth. Ke.T. said she thought defendant had done something to her fewer than five times. The interviewer said, "okay so you told me about the time you were watching sports when he touched your middle. You told me about a time that you were, um, sitting next to him on the couch. You told me about a time that he touched your bottom and about a time that he used his lips to kiss your lips, right? Okay. Anything else happen?" Ke.T. responded, "no."
B. Mother's Testimony
Ke.T.'s adopted mother testified that when she asked Ke.T. if Grandy had ever done anything to make her feel uncomfortable she said, "when you and daddy are not home, sometimes Grandy touches my private parts." When the mother asked what private parts, Ke.T. responded her vagina, bottom, and breasts. The mother asked if it had happened just one time or more than one time, and Ke.T. responded it had happened more than one time. Ke.T. stated that each time it happened on the couch in the living room.
C. Ke.T.'s In-court Testimony
In court, Ke.T. testified that the very first time defendant had done anything to her she had been in her bedroom with Ka.T. and her cousin. She went to the bathroom, and when she came out defendant was standing by the bathroom door. She testified that he had touched her breasts under her shirt. She did not remember him touching any other part of her body that time. When asked how many times defendant had touched her breasts, she said only once. When asked how many times he had touched her bottom, she said one time. When asked how many times defendant had touched her vagina, she said she did not remember. Ke.T. repeatedly said she did not remember as an evasive response in an effort to avoid having to respond specifically about defendant's conduct.
Defendant argues the evidence is insufficient to show that he touched Ke.T. on her vagina more than once, thus insufficient to support two convictions on the basis of such facts. It is true that Ke.T. was not the clearest witness due to her age and embarrassment with the subject of her testimony. However, she indicated in her SAFE interview that defendant had touched her more than once, and most important, when she was asked what part of her body defendant had touched "those different times" she responded that he had touched her vagina. She also responded that on "those different times" he had touched her both inside and outside her clothes. It was for the jury to determine Ke.T.'s reliability and credibility as a witness. (People v. Zamudio (2008) 43 Cal.4th 327, 357.) It was also for the jury to resolve conflicts in the evidence. (People v. Solomon (2010) 49 Cal.4th 792, 818.) Ke.T.'s response in her SAFE interview that defendant touched her vagina at different times was sufficient evidence to support a conviction on two counts, even if she was unable to consistently recall other details of individual incidents.
II
Exclusion of Evidence
In a hearing outside the presence of the jury, the victims' mother testified that approximately three years prior to the trial, well before the allegations against defendant, Ke.T. had asked both Ka.T. and their younger brother to touch her vagina. Ka.T. had not complied, and had told their mother. The children received counseling, and precautions were put in place, such as not letting the children play without adult supervision, and removing Ka.T. from Ke.T.'s bedroom.
Defendant filed a written motion pursuant to Evidence Code section 782 to allow introduction of this evidence as evidence of prior sexual conduct of a complaining witness. In the motion, defendant argued the evidence was relevant to rebut any inference that a child as young as Ke.T. was so sexually naïve that she would not have fabricated such a charge.
The prosecutor argued that the type of prior conduct involved here was not so outside the norm for children exploring their sexuality that it would give rise to the inference defendant sought to rebut by admitting the evidence, and that the prosecution would not be arguing any such inference. The prosecutor argued the evidence was therefore irrelevant.
The trial court concluded that the prior conduct did not demonstrate any specialized knowledge of sexual activity, did not explain any otherwise unexplainable injury to Ke.T.'s vaginal area, and therefore was not relevant to the jury's determination of Ke.T.'s credibility. The trial court further concluded that having analyzed the evidence under Evidence Code section 352, it concluded the probative value of the evidence was outweighed by the substantial prospect of confusing the issues and misleading the jury. Defendant argues the trial court erred to his prejudice by excluding the evidence, and that its exclusion rendered his trial fundamentally unfair.
"Evidence of prior sexual activity of a crime victim is generally excluded. (Evid. Code, § 1103, subd. (c)(1); see 1 Witkin, Cal. Evidence (4th ed.2000) Circumstantial Evidence, § 61, pp. 394-395.) A limited exception to these general rules exists for prior molestation incidents involving child victims. (Evid. Code, § 782.) The theory behind the admission of a molestation victim's prior molestation is that a child would not have knowledge of certain sexual practices other than as a result of the prior molestation." (People v. Woodward (2004) 116 Cal.App.4th 821, 831.)
We agree with the trial court that the type of prior sexual activity at issue here is common enough among children that it would not have informed the jury's determination of Ke.T.'s credibility, and was therefore irrelevant. Even if the prior activity had been relevant, the trial court did not abuse its discretion in excluding the evidence as more confusing and misleading than probative under Evidence Code section 352. "Under Evidence Code section 352, the trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time. [Citation.] Where, as here, a discretionary power is statutorily vested in the trial court, its exercise of that discretion 'must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.]' [Citation.]" (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.) There has been no such showing here, and we will not disturb the judgment.
Finally, we have held that the exclusion of evidence that is the subject of an Evidence Code section 782 motion does not deny a defendant a fair trial. "There is no fair trial problem with exclusion of all such evidence under Evidence Code section 1103. 'That limited exclusion no more deprives a defendant of a fair trial than do the rules of evidence barring hearsay, opinion evidence, and privileged communications.' (People v. Blackburn (1976) 56 Cal.App.3d 685.) Therefore, because the trial court may properly exclude all such evidence without violating a defendant's fair trial rights, there is no merit in the argument that not admitting some of the evidence under Evidence Code section 782 deprives the defendant of a fair trial." (People v. Mestas (2013) 217 Cal.App.4th 1509, 1517.)
III
Review of Ka.T.'s and Ke.T.'s Therapy Records
Defendant subpoenaed records of the therapist who treated Ka.T. and Ke.T. The purpose of the subpoena was to determine whether any records supported the defendant's "theory that the victims' disclosures in the current case stem[med] from a base of knowledge of sexual conduct gained through acts perpetrated on them by their biological father." The trial court reviewed the records in camera and concluded no records were relevant to the issue presented. The trial court ordered the records remain sealed in the court file subject to further order.
After the court learned of the information that was the subject of the Evidence Code section 782 motion (see section II above) the trial court reviewed the records a second time to determine whether there were records relevant to that issue. The trial court found three documents were relevant and qualified for disclosure to counsel, and provided those documents to counsel. The trial court then considered the Evidence Code section 782 motion and concluded the evidence of prior sexual conduct was inadmissible.
Defendant now requests that this court review "the documents" to determine whether they are relevant to either issue. We have reviewed the documents submitted, and have found no error. The trial court disclosed all of the relevant records.
We augmented the record on our own motion to include all of the victims' therapy records that were subpoenaed because the only documents initially in the record were the three that the trial court provided to both counsel. --------
DISPOSITION
The judgment is affirmed.
/s/_________
BLEASE, J. We concur: /s/_________
RAYE, P.J. /s/_________
MAURO, J.