Opinion
67595-8-I
01-28-2013
STATE OF WASHINGTON, Respondent, v. EDUARDO CAZADORES-VALDEZ AKA MARIO VALDEZ RUVALCABA, Appellant.
UNPUBLISHED OPINION
Grosse, J.
Before a trial court considers a motion for a new trial based on a victim or witness' recantation, the court must first decide whether that recantation is credible. Here, the trial court found the recantations not credible and thus did not abuse its discretion in denying the defendant's motion for a new trial. Likewise, the defendant's claims of evidentiary errors are without merit. Accordingly, we affirm the judgment and conviction.
FACTS
In December 2008, Andrea Robles was living in SeaTac with her six children and Eduardo Cazadores-Valdez, aka Mario Valdez Ruvalcaba, (Cazadores). Cazadores was the father of the three youngest children. The three oldest children R.R., M.R., and D.R. were from a previous marriage. At the time R.R. was 16, M.R. 13, and D.R. 9 years old.
Robles, who speaks no English, requested a meeting with the school counselor, Bonnie Paasche. Robles' daughter, D.R., also attended the meeting on December 10, 2008. Paasche testified that both the mother and child appeared nervous. During the meeting D.R., who spoke English, told Paasche that her stepfather, Cazadores, had taken his privates out and asked her to touch them. D.R. also told the counselor that Cazadores had put his hands down her pants. D.R. said that it started happening when her mother was pregnant and that it happened many times a day. When the counselor told Robles that she would have to notify the police, Robles expressed fear that she would lose the children.
Yvonne Gonzales, an ESL (English as a second language) teacher, who interpreted for Spanish-speaking families, was present at the meeting on December 10 and also translated for both the police and the counselor. She described Robles as distraught and crying during the meeting with Paasche. Gonzales described D.R. as quiet and embarrassed, not wanting to talk about it, but Robles assured D.R. in Spanish that it was okay.
Detective Louis Perez responded to the call from the school and spoke with the counselor. Later, he also drove D.R., her sister M.R., and Robles to be interviewed by Carolyn Webster, a child interview specialist. Detective Perez observed the interview through a two-way mirror.
On December 11, 2008, Detective Perez met with Chuck Sergis of the prosecuting attorney's office and audio recorded M.R.'s interview with Martha Maginniss, a legal advocate for the King County Sexual Resources Center. Detective Perez also drove Robles, D.R., and M.R. to Harborview Medical Center to meet with Dr. Naomi Sugar, director of the sexual assault unit. Detective Perez also took a written statement from R.R. who had seen Cazadores with his penis exposed in D.R.'s presence while D.R.'s pants were down around her knees.
Webster, the child interview specialist, testified that she video and audio recorded her interview with D.R. on December 11, 2008. During the interview, D.R. made several drawings which were collected at the end of the interview. The drawings and the audio and video recordings were admitted as exhibits.
Robles, M.R., and D.R. testified that they did not remember anything about the meetings with the school counselor, the child interview specialist, or Dr. Sugar. Robles denied that D.R. or M.R. told her that their stepfather had touched them inappropriately. Robles remembered that she spoke with Dr. Sugar, the medical director at the center of sexual abuse and traumatic stress, but did not remember what they spoke about.
Dr. Sugar examined both M.R. and D.R. in December 2008. Dr. Sugar testified that Robles said that D.R. told her that Cazadores was showing his privates to her and that she had reported this to the school counselor. M.R. recounted to Dr. Sugar that Cazadores touched her inappropriately (grabbing her breasts and touching her vagina with his hand). This started when she was 12 years old. M.R. was now 13 1/2 years old. D.R. told Dr. Sugar that Cazadores was in jail for doing bad things to her: "[H]e put his nuts in my ass." Robles' only indication that something was wrong was that the children were afraid and did not want her to go to work. There was no physical evidence of assault.
Cazadores was charged with three counts of first degree rape of a child, one count of first degree child molestation, one count of first degree attempted child molestation (all for victim D.R.), and one count of second degree child molestation of M.R. In May 2011, the jury found Cazadores guilty on all counts. Subsequently, Cazadores made two motions for a new trial based on CrR 7.4., 7.5, and 7.8. The trial court denied both motions. Cazadores appeals the denial of those motions as well as evidentiary rulings regarding the admission of child hearsay statements.
ANALYSIS
Cazadores first claims that the trial court erred in not granting a new trial when both child-victims recanted their pretrial interviews and a witness to one abusive event recanted his testimony.
Cazadores' first motion for a new trial was based on recorded statements made by D.R. and M.R. In those interviews both D.R. and M.R. claimed the abuse never happened. The trial court found those recantations to be unreliable and denied the motion. Cazadores made a second motion for a new trial for newly discovered evidence based on CrR 7.4, 7.5, and 7.8. This motion was based on the recanted testimony of R.R. in which he denied seeing Cazadores expose himself to D.R. while her pants were down around her knees. The trial court also found this recantation unreliable and denied the motion.
CrR 7.8(b)(2) allows the trial court to grant a party relief from a final judgment based on newly discovered evidence. A trial court's ruling on a CrR 7.8 motion for relief from judgment is reviewed for abuse of discretion.Recantation testimony may be considered "'newly discovered evidence'" to support a motion for relief from judgment. But "[r]ecantation testimony is inherently questionable, " and does not necessarily entitle the defendant to a new trial.
State v. Robinson, 104 Wn.App. 657, 662, 17 P.3d 653 (2001).
State v. Macon, 128 Wn.2d 784, 799-800, 911 P.2d 1004 (1996); CrR 7.8(b)(2).
Macon, 128 Wn.2d at 801.
In State v. Macon, our Supreme Court recognized that "[i]t is for the trial court to determine whether the original testimony of a recanting witness was perjured and, if so, whether the jury's verdict was likely influenced by it." The court also clarified that whether there is independent evidence to support the recanting witness's original testimony is not a controlling factor in the trial court's determination. Rather, the court observed, "'[w]hen the trial court, after careful consideration, has rejected such testimony, or has determined that it is of doubtful or insignificant value, its action will not lightly be set aside by an appellate court.'" Thus, the court concluded, "the trial court does not abuse its discretion if it determines the recantation is unreliable and denies the defendant's motion for a new trial."
128 Wn.2d 784, 801, 911 P.2d 1004 (1996).
Macon, 128 Wn.2d at 804.
Macon, 128 Wn.2d at 804 (alteration in original) (quoting State v. Wynn, 178 Wash. 287, 289, 34 P.2d 900 (1934)).
Macon, 128 Wn.2d at 804 (emphasis omitted).
Here, the trial court determined that the recantations were not credible because of the circumstances under which those recantations were made. After the jury verdicts, Delmis Jaimes, the defendant's sister-in-law, tried to arrange a meeting between defense counsel and the girls. Defense counsel informed Jaimes that there was no point in meeting with the girls if they continued to say that they just did not remember. This telegraphed to Jaimes that there was no hope unless the girls stated something different. After this conversation, Jaimes met with M.R. D.R. still refused to speak to her. After several meetings and telephone calls, M.R. recanted in her mother's presence and stated that the abuse did not occur. Only after several additional telephone calls and meetings between the families did D.R. tell Jaimes that the abuse did not occur. Both girls recanted their testimony at defense counsel's office with a recorder present.
At that time, R.R. refused to go to defense counsel's office. Eventually, however, R.R. too recanted and made a recorded statement denying that he had seen any inappropriate behavior between Cazadores and D.R. The circumstances under which the already-suspect recantations were made render those recantations unreliable. The evidence demonstrated that the witnesses were contacted repeatedly by the defendant's family, who ultimately succeeded in getting them to defense counsel's office to recant. Jaimes confirmed that she had multiple telephone conversations and visits with Robles and the children before they finally agreed to give statements that nothing had happened.
Additionally, the trial court found that the evidence was not newly discovered. The jury heard the mother and two children testify. Their testimony is best described as reluctant as they all claimed no memory of what had happened at the school with the counselor, the doctor, and the interview specialist. Defense counsel had an opportunity to cross-examine. Indeed, M.R.'s testimony that, if she had been abused, it would be something that she would have remembered is akin to an affirmative statement now that she remembered she was not abused. Because the trial court found the recantations unreliable, they are "not material, and [do] not provide a basis for granting a new trial." Cazadores next argues that the trial court incorrectly admitted child hearsay evidence.
State v. Eder, 78 Wn.App. 352, 361, 899 P.2d 810 (1995).
RCW 9A.44.120 governs the admissibility of a child victim's out of court hearsay statements. The statute provides:
ER 807.
A statement made by a child when under the age of ten describing any act of sexual contact performed with or on the child by another, describing any attempted act of sexual contact with or on the child by another, or describing any act of physical abuse of the child by another that results in substantial bodily harm as defined by RCW 9A.04.110, not otherwise admissible by statute or court rule, is admissible in evidence in dependency proceedings under Title 13 RCW and criminal proceedings, including juvenile offense adjudications, in the courts of the state of Washington if:
(1) The court finds, in a hearing conducted outside the presence of the jury, that the time, content, and circumstances of the statement provide sufficient indicia of reliability; and
(2) The child either:
(a) Testifies at the proceedings; or
(b) Is unavailable as a witness: PROVIDED, That when the child is unavailable as a witness, such statement may be admitted only if there is corroborative evidence of the act.
A statement may not be admitted under this section unless the proponent of the statement makes known to the adverse party his or her intention to offer the statement and the particulars of the statement sufficiently in advance of the proceedings to provide the adverse party with a fair opportunity to prepare to meet the statement.
In State v. Ryan, the court identified nine factors useful in determining reliability under RCW 9A.44.120. These factors are (1) whether the child had an apparent motive to lie, (2) the child's general character, (3) whether more than one person heard the statements, (4) whether the statements were spontaneous, (5) whether trustworthiness is suggested from the timing of the statement and the relationship between the child and the witness, (6) whether the statement contains express assertions of past fact, (7) whether the child's lack of knowledge could be established through cross-examination, (8) whether the possibility of the child's recollection being faulty is remote, and (9) whether the surrounding circumstances suggest that the child misrepresented the defendant's involvement. As noted in State v. Woods, "[n]ot every factor need be satisfied; it is enough that the factors are 'substantially met.'"
103 Wn.2d 165, 175-76, 691 P.2d 197 (1984).
State v. Woods, 154 Wn.2d 612, 623, 114 P.3d 1174 (2005).
154 Wn.2d 612, 623-24, 114 P.3d 1174 (2005) (quoting State v. Swan, 114 Wn.2d 613, 652, 790 P.2d 610 (1990)).
Here, the trial court found all but one of the factors to be present. Cazadores argues that the recantations of D.R., M.R., and R.R. established a motive to lie about the alleged sexual abuse when being interviewed by law enforcement. The trial judge specifically found that in terms of the documentation and exhibits he reviewed, he was satisfied that there was no apparent motive to lie in the statements made to the school counselor, child interview specialist, and the doctor. The defense theory was that there was a history of domestic violence and the children lied to get Cazadores removed from the home. But this is contradicted by the evidence that D.R. and Robles were upset when the counselor informed them that the police would have to be called. Both feared that the children would be removed from the mother if the police were called. Such a reaction is against the defense's position that D.R. lied to get the defendant out of the house.
With regard to the second factor—the child's general character—the court noted that there was no history of acting out or lying or any problems at school or home that indicated otherwise. The third factor is met because more than one person heard the disclosure. Here, there were four people: two school employees, the child interview specialist, and Dr. Sugar. Fourthly, the disclosures were spontaneous and made to the mother, the school, the child interview specialist, and Dr. Sugar all within a short period of time. There were no leading questions that elicited the disclosure. With respect to the fifth factor, there was no connection between the declarant and the school employees, the child interview specialist, and the doctor. The trial court expressed confusion over the sixth factor's requirements and noted that not all factors needed to be present for the statements to be admissible. The trial court also found that the testimony met the seventh factor because all the witnesses were subject to cross-examination which had the effect of testing the declarant's knowledge. With regard to the eighth factor, the trial court found that although there were some discrepancies in the time frames described by D.R., the statements were largely consistent and thus the possibility of a faulty memory was remote. Lastly, the trial court found that D.R. was able to differentiate between what had occurred with Cazadores and an isolated incident that had occurred with another relative.
See State v. Young, 62 Wn.App. 895, 902, 802 P.2d 829 (1991) (holding that State v. Strange, 53 Wn.App. 638, 769 P.2d 873 (1989) "essentially wrote the past facts out of Ryan so long as other factors indicating reliability are considered."); see Strange, 53 Wn.App. at 647 ("an assertion as to past fact should be seen as part of the risk of admitting child hearsay statements, rather than as an evaluative factor"); see also Swan, 114 Wn.2d at 652.
Cazadores next argues that the trial court failed to conduct an ER 403 balancing test. Under ER 403, relevant "evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury." Child hearsay is admissible even when the child is available and competent to testify and even though the evidence is overlapping or repetitive. But this evidence is subject to exclusion under ER 403 if its probative value is substantially outweighed by the danger of unfair prejudice from the needless presentation of cumulative evidence. This court reviews admission of evidence challenged as cumulative for abuse of discretion. A trial court abuses its discretion only when its decision is manifestly unreasonable or based on untenable grounds.
State v. Dunn, 125 Wn.App. 582, 588-89, 105 P.3d 1022 (2005).
State v. Bedker, 74 Wn.App. 87, 93, 871 P.2d 673 (1994).
Dunn, 125 Wn.App. at 588.
State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).
In State v. Dunn, the State charged Dunn with multiple counts of rape of a child and child molestation. The child victim testified in detail about the abuse. Additionally, everyone to whom the child had disclosed the abuse, including her parents, a police investigator, and a medical professional, testified and related her statements to the jury. The court found that the repetitiveness of the child hearsay statements "stemmed largely from the logical sequence and timing of events" and was not needlessly cumulative or prejudicial.
125 Wn.App. 582, 105 P.3d 1022 (2005).
Dunn, 125 Wn.App. at 588. [20] State v. Butler, 53 Wn.App. 214, 216, 766 P.2d 505 (1989).
Similarly, here, the State presented testimony from people who interacted with D.R. at various points in time, from her initial disclosure to her mother, the school counselor, police, medical personnel, and the child interview specialist. As in Dunn, the challenged hearsay testimony provided different perspectives and information about the order of events. Moreover, here, three of the four witnesses gave general and relatively brief accounts of D.R.'s disclosures. The only comprehensive hearsay evidence was D.R.'s interview with Carolyn Webster. The trial court considered the evidence, weighed the Ryan factors, and concluded that D.R.'s hearsay statements were reliable, corroborated, and probative. The court did not abuse its discretion by permitting the hearsay statements of these witnesses.
Cazadores next argues that the trial court erred in permitting Dr. Sugar to testify under ER 803(a)(4) about M.R. and D.R.'s statements identifying him as the abuser. ER 803(a)(4) permits the admission of hearsay testimony if the statement was made for the purpose of a medical diagnosis or treatment. Normally, such testimony is not admissible where it identifies the abuser, but an exception to this rule exists where the victim is a child. In State v. Butler, this court upheld the admission of a 2 1/2-year-old boy's statement to a hospital nurse that "his daddy had thrown him off the bunk bed and kicked him, " as relevant to the cause or external source of the boy's head injuries. The court also reasoned that the treating physician must be attentive to treating the emotional and psychological injuries that accompany child abuse, and that the statement of fault could be important in preventing a recurrence of injury.Similarly, here, the victim lived in the accused's home. M.R. had been determined to be the victim of probable abuse, raising questions of possible psychological injuries, as well as concerns about her safety. Under these circumstances, the trial court did not abuse its discretion in admitting the evidence.
Butler, 53 Wn.App. at 222.
Finally, Cazadores contends that the trial court erred in permitting the jury to hear the recorded statement M.R. made to the prosecutor and Detective Perez.
ER 803(a)(5) provides that the following is not excluded by the hearsay rule, even though the declarant is available as a witness: . . . .
A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness' memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.ER 803(a)(5) permits a recorded recollection for a witness who previously remembered the subject matter but could not remember at the time of trial. Here, M.R. testified that she did not remember what had happened. Cazadores objected to the admission of M.R.'s recorded statement. In finding the recorded statement admissible as a past recorded recollection, the court relied on State v Alvarado in making its ruling. The Alvarado case listed additional factors which demonstrate a statement's reliability:
(1) the declarant made the statement close in time to the recorded event;
(2) the recording process was reliable;
(3) the statement describes the events coherently and in detail;
(4) an officer's interview with other witnesses corroborate the statement; and
(5) the declarant never disavowed the statement's accuracy.
89 Wn.App. 543, 949 P.2d 831 (1998).
Alvarado, 89 Wn.App. at 551-52.
Here, the recording itself was redacted. Both the prosecution and the defense made arguments and agreed upon the redactions to the recording that the jury was going to hear. The jury heard the recording and was given a transcript of that redacted recording. The transcript was not admitted as an exhibit but the redacted recording was.
Although the State concedes that the evidence rules allow only the reading of the recording, not its admission as an exhibit, the State maintains that Cazadores did not preserve the issue for appeal. We agree. Cazadores objected to the admission of M.R.'s statements as a recorded recollection because the requisite foundation had not been laid; he did not object to the procedure utilized when the recording was published to the jury. Given that both parties helped in the redaction of the actual recording and knew at the time that it would be published as a recording to the jury, Cazadores cannot now claim for the first time on appeal that the trial court erred. This court will not consider a claim for the first time on appeal unless it concerns a manifest error affecting a constitutional right.
RAP 2.5; State v. Robinson, 171 Wn.2d 292, 304, 253 P.3d 84 (2011).
Even if the issue had been preserved for appeal, any error was harmless. Here, the court admitted the recording, as appropriately redacted. Had it not admitted the actual recording, the jury would have heard the exact same evidence, just in a different format. Nor is there any merit to Cazadores' argument that this recording was the only evidence supporting his conviction of molesting M.R. Dr. Sugar testified that M.R. told her that she was molested when she was 12 years old when Cazadores grabbed her breasts and touched her crotch. Accordingly, any error was harmless.
Affirmed.