Opinion
No. 31716-8-II
Filed: May 24, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Lewis County. Docket No: 03-1-00603-8. Judgment or order under review. Date filed: 05/12/2004. Judge signing: Hon. David R. Draper.
Counsel for Appellant(s), Jodi R. Backlund, Backlund Mistry, 203 4th Ave E Ste 217, Olympia, WA 98501-1187.
Manek R. Mistry, Backlund Mistry, 203 4th Ave E Ste 217, Olympia, WA 98501-1187.
Counsel for Respondent(s), J. Andrew Toynbee, Attorney at Law, M/S Pr001, 360 NW North St, Chehalis, WA 98532-1925.
Fernando Arroyo Cervantes appeals his conviction of voyeurism, arguing that the charging document and the jury instructions were defective and that the trial court erred in admitting extrinsic impeachment evidence. We affirm.
Cervantes lived with his wife, his stepdaughter M.Z., and his two daughters. In July 2003, M.Z. told her cousin, her mother, and the police that Cervantes had molested her by grabbing her breasts and that she had seen a video camera recording through a hole in the bathroom wall.
An officer searched a trailer on the property and found several videotapes, one of which showed scenes of the bathroom. The officer also found several marijuana plants on the property. Cervantes admitted setting up the camera because he had gotten `a little crazy in the head' after watching pornographic movies.
Report of Proceedings (RP) (March 24, 2004) at 213.
The State charged Cervantes with third degree child molestation, voyeurism, and possession of marijuana. M.Z. testified that she saw a blinking light on the camera through a hole in the bathroom wall and heard a whirring noise, and she denied giving Cervantes permission to watch or record her while she was in the bathroom. Cervantes's wife Maria testified for the State but acknowledged having mixed emotions about her testimony. Although Maria admitted telling M.Z. that the family would lose their house and their father if M.Z. persisted with her story, she denied telling M.Z. to `clean up' her testimony for Cervantes's benefit. M.Z. then returned to the stand and testified that her mother had told her to alter her testimony so that Cervantes would not go to jail.
The jury found Cervantes guilty as charged. He now appeals only his voyeurism conviction.
Cervantes argues initially that the information was constitutionally defective in charging him with voyeurism because it stated that a person commits voyeurism by viewing another without that person's knowledge or consent and because it failed to identify the victim.
RCW 9A.44.115(2) provides in part that a person commits voyeurism `if, for the purpose of arousing or gratifying the sexual desire of any person, he or she knowingly views, photographs, or films: (a) Another person without that person's knowledge and consent while the person being viewed, photographed, or filmed is in a place where he or she would have a reasonable expectation of privacy[.]' (Emphasis added.) The second amended information charged Cervantes with committing voyeurism by viewing, photographing, or filming another person `without that person's knowledge or consent.'
Clerk's Papers (CP) at 47 (emphasis added).
A charging document must describe the essential elements of a crime with reasonable certainty such that the accused may prepare a defense and plead the judgment as a bar to any subsequent prosecution for the same offense. The essential elements rule requires that the information `allege facts supporting every element of the offense, in addition to adequately identifying the crime charged.'
City of Seattle v. Termain, 124 Wn. App. 798, 802, 103 P.3d 209 (2004).
State v. Leach, 113 Wn.2d 679, 689, 782 P.2d 552 (1989) (emphasis in original).
Where, as here, a defendant challenges an information for the first time on appeal, we construe it liberally. When a defendant challenges an information after entry of a verdict, we ask `(1) do the necessary facts appear in any form, or by fair construction can they be found, in the charging document; and, if so, (2) can the defendant show that he or she was nonetheless actually prejudiced by the inartful language which caused a lack of notice?'
State v. Kjorsvik, 117 Wn.2d 93, 102, 812 P.2d 86 (1991).
Kjorsvik, 117 Wn.2d at 105-06.
Cervantes argues first that the information misinformed him of the offense charged and failed to charge a crime because it stated that voyeurism occurs when the unlawful viewing takes place without the victim's `knowledge or consent' instead of the victim's `knowledge and consent.' We agree with the State that the use of `or' instead of `and' in this instance was insignificant and did not misrepresent the crime charged.
See Kjorsvik, 117 Wn.2d at 108 (precise language of statute is not necessary; test is whether elements appear `in any form').
Cervantes does not argue that the use of `or' instead of `and' was prejudicial, and no prejudice is apparent. Cervantes argued at trial that although his placement of the camera may have proven an attempt to commit voyeurism, there was no proof that he succeeded in committing the crime because the only persons seen on the videotapes were himself and his youngest daughter. He does not explain how his defense would have differed had the information stated that the viewing must occur without the victim's `knowledge and consent.'
Cervantes also challenges the information on the basis that it failed to identify the victim of the voyeurism charge. He cites no authority for the proposition that the victim's name is an essential element of the crime of voyeurism. Division One recently distinguished between crimes such as voyeurism, that concern acts involving another person, and crimes that involve a specific person, such as violation of a no-contact order. The court stated that criminal statutes that protect a particular class of persons do not require that the particular victim be named in an information. By contrast, an information charging violation of a no-contact order must identify the victim or the order violated or set forth the relevant facts.
See Termain, 124 Wn. App. at 805.
Termain, 124 Wn. App. at 805.
Termain, 124 Wn. App. at 805.
Because voyeurism does not require a specific victim, the victim's identity is not an essential element that must be included in the information. Rather, any confusion concerning the victim may be clarified by requesting a bill of particulars. The following language from State v. Noltie is instructive:
Washington courts have repeatedly distinguished informations which are constitutionally deficient and those which are merely vague. If an information states each statutory element of a crime but is vague as to some other matter significant to the defense, a bill of particulars can correct the defect. In that event, a defendant is not entitled to challenge the information on appeal if he or she has failed to timely request a bill of particulars.
116 Wn.2d 831, 843-844, 809 P.2d 190 (1991).
Because the failure to identify the victim did not render the voyeurism charge constitutionally deficient, and because Cervantes did not request a bill of particulars, we do not consider this issue further.
Cervantes next argues that he was prejudiced by errors in Instructions 9 and 10. Instruction 9 defined voyeurism and Instruction 10 was the `to convict' instruction that set forth the elements of the crime. Cervantes contends that the reference in Instruction 10 to the victim's lack of `knowledge or consent' improperly allowed a finding of guilt if only lack of knowledge or lack of consent, but not both, were proven. Cervantes contends that this error was compounded by the fact that Instruction 9 defined voyeurism as a viewing of another person `without that person's consent.'
CP at 37, 38.
A `to convict' instruction must contain all of the elements of the crime because it serves as a `yardstick' by which the jury measures the evidence to determine guilt or innocence. The failure to instruct the jury on every element of the crime charged is an error of constitutional magnitude that may be raised for the first time on appeal. Where an element is omitted from or misstated in a jury instruction, the error is harmless if that element is supported by uncontroverted evidence.
State v. Lorenz, 152 Wn.2d 22, 31, 93 P.3d 133 (2004).
State v. Deryke, 110 Wn. App. 815, 819, 41 P.3d 1225 (2002), aff'd, 149 Wn.2d 906, 73 P.3d 1000 (2003).
State v. Brown, 147 Wn.2d 330, 341, 58 P.3d 889 (2002).
Here, the failure of the instructions to refer to voyeurism as a viewing that occurs without the victim's `knowledge and consent' was clearly harmless. It was uncontroverted that the bathroom videotaping took place without M.Z.'s knowledge and without her consent. Finally, Cervantes contends that the trial court erred in allowing the State to introduce collateral evidence to impeach Maria's testimony. After Maria testified that she did not tell M.Z. to change her testimony, the court overruled the defense objection and allowed the State to recall M.Z. to rebut that testimony.
Q: [C]an you tell us what your mother told you regarding your testimony today?
A: Mm-hmm, she told me to make my stepdad kind of look better than what I've said, like clean up my testimony, not to do anything bad, like don't make him look worse than what he already did.
Q: And did she say why?
A: `Cause she didn't want him to go to jail.
RP (March 24, 2004) at 221.
Cervantes argues that this evidence was inadmissible because a witness cannot be impeached upon matters collateral to the principal issues being tried. The State contends that M.Z.'s testimony was exempt from this rule because it was offered to show Maria's bias.
State v. Oswalt, 62 Wn.2d 118, 120, 381 P.2d 617 (1963).
Bias may be shown by either the witness's own statements in response to questions on cross-examination, or by extrinsic evidence. Evidence establishing a witness's bias is not considered impeachment on a purely collateral matter. Nor is it inadmissible hearsay. Accordingly, the trial court did not err in admitting M.Z.'s impeachment testimony.
5A Karl B. Tegland, Washington Practice sec.607.9, at 331 (4th ed. 1999).
State v. Jones, 25 Wn. App. 746, 751, 610 P.2d 934 (1980); see also State v. Lubers, 81 Wn. App. 614, 623, 915 P.2d 1157, review denied, 130 Wn.2d 1008, 928 P.2d 413 (1996).
State v. Spencer, 111 Wn. App. 401, 408, 45 P.3d 209 (2002), review denied, 148 Wn.2d 1009, 62 P.3d 889 (2003).
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.
HOUGHTON, and QUINN-BRINTNALL, C.J. JJ., Concur.