Opinion
No. 25174-8-III
August 23, 2007.
UNPUBLISHED OPINION
A jury convicted Gabriel Ramirez Cueva of first and second degree child molestation. Mr. Cueva's trial started after his speedy trial time expired because of the unavailability of counsel and the judge. The State presented evidence that Mr. Cueva was previously convicted of second degree assault with sexual motivation regarding his daughter, L.C., to show his lustful disposition toward her. Mr. Cueva asserts his speedy trial rights were violated, the prior conviction should not have been admitted, the jury instruction regarding the prior conviction was misleading, and there was insufficient evidence to support his convictions. We affirm the convictions.
FACTS
Gabriel Ramirez Cueva was charged with first degree child molestation and second degree child molestation. A trial date was set for January 23, 2006. The trial did not start on this date for reasons not apparent in the record. The speedy trial time expired on February 6. A pretrial hearing was held on February 13. The court determined that both attorneys and the judge had been in other trials from February 6 through February 10, and the first date all parties were available was February 13. The court concluded that Mr. Cueva's speedy trial rights were not violated. Defense counsel noted an objection for the record.
The State proposed ER 404(b) evidence, asking the court to allow evidence of Mr. Cueva's 2000 conviction, obtained on an Alford plea, for second degree assault with sexual motivation. The State sought to use this evidence to show Mr. Cueva's lustful disposition toward L.C., who was the victim in both the prior incident and here. The court conducted a hearing to determine if the evidence was admissible. The court entered findings of fact and conclusions of law stating the previous acts were proven by a preponderance of the evidence, the evidence of the prior bad act was offered for the purpose of proving a common plan or scheme, and to show Mr. Cueva's lustful disposition toward L.C. The court concluded the probative value of the evidence outweighed the prejudicial impact to Mr. Cueva, and the evidence should be admitted.
North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).
Once the trial started, defense counsel moved the court to reexamine the decision to admit ER 404(b) evidence, but the court maintained its decision.
L.C. testified that her birthday was January 11, 1992, and that she lived in Toppenish, Washington, when these incidents occurred. She knew the difference between a good touch and a bad touch and said that her dad had given her a bad touch with his hands. Her dad would come into her bedroom when her mom was at work and touch her private parts, meaning her bottom and her private female part. The last time this happened was in the summer of 2005. This same thing also happened three to four years earlier.
L.C.'s testimony was inconsistent at times. L.C. testified that her dad touched her this way more than five times. Later, she said the touching happened more than 10 times. In a previous statement, she said it happened two to three times per week for "[k]ind of" a long time. Report of Proceedings (RP) at 102. L.C. testified that her dad took his clothes off when he touched her, and then he would touch himself and white stuff would come out of his private part. Later, L.C. read from a report where she stated that her dad had not taken off his clothes, but reaffirmed that she now remembered that he did take off his clothes. L.C. also testified inconsistently about whether her dad touched her under her clothes or on top of them.
L.C. tried to push her father away whenever he tried to touch her. L.C. stated that she had been told to say something different than what had happened and that she had lied before, but she was not lying at trial.
Sergeant Adam Diaz testified that, when he interviewed L.C., she was hesitant and cried when she talked about the incidents. Sergeant Diaz testified that Mr. Cueva was born on December 14, 1964, and that L.C. was Mr. Cueva's daughter.
Defense witness, Dr. Kevin Walsh, testified that L.C. told him there had been no recent sexual contact between L.C. and her dad, but there had been in the past. L.C. also said she had no concern regarding sexual contact with Mr. Cueva.
Mr. Cueva was convicted of first and second degree child molestation by a jury. He appeals.
ANALYSIS
Speedy Trial
A defendant in custody shall be brought to trial within 60 days after the commencement date unless there is a period of time that falls under an exclusion. Former CrR 3.3(c)(1), (d)(8) (2000). Unavoidable or unforeseen circumstances that are beyond the control of the court and affect the trial date are excluded periods. Former CrR 3.3(d)(8). Unavailability of counsel is an unavoidable or unforeseen circumstance and can warrant a trial extension. State v. Carson, 128 Wn.2d 805, 814, 912 P.2d 1016 (1996).
Here, the speedy trial deadline was February 6. The attorneys for both sides, as well as the judge, were in court on other matters on February 6 through February 10. The trial commenced on February 13, the first day counsel and the judge were available.
The trial court did not abuse its discretion by finding that the unavailability of the attorneys and the judge was an unforeseen or unavoidable circumstance. Id. Prior Conviction — ER 404(b)
A trial court's decision to admit evidence under ER 404(b) is reviewed for an abuse of discretion. State v. Cook, 131 Wn. App. 845, 850, 129 P.3d 834 (2006). Discretion is abused when it is exercised in a manifestly unreasonable way or based on untenable grounds or reasons. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971). The appellant bears the burden of proving abuse of discretion. State v. Sponburgh, 84 Wn.2d 203, 210, 525 P.2d 238 (1974).
Evidence of prior crimes may be used to show "proof of motive, opportunity, intent, preparation, [or] plan." ER 404(b). Evidence admitted under ER 404(b) is also subject to ER 403 which provides that relevant evidence may be excluded if its probative value is outweighed by unfair prejudice, if the evidence could mislead the jury, or confuse the issues.
Here, the evidence in dispute is Mr. Cueva's prior conviction for second degree assault with sexual motivation. The trial court entered findings of fact that Mr. Cueva admitted he sexually touched his daughter's private parts. Another finding of fact stated that L.C. had recanted her testimony regarding the sexual touching, but had done so as a result of being told to change her story. In its conclusions, the court found by a preponderance of the evidence that the prior acts (the 2000 conviction) had occurred, that the evidence of the prior bad act was admissible for the purpose of proving a common scheme or plan, and to show Mr. Cueva's lustful disposition toward L.C. The trial court concluded that the probative value of the evidence outweighed the prejudicial impact.
The evidence of Mr. Cueva's prior conviction properly fell under ER 404(b) and ER 403. The evidence was admitted to show a common scheme or plan and the probative value was found to outweigh the prejudicial impact. The trial court did not exercise its discretion in a manifestly unreasonable way or base it on untenable grounds or reasons. See State v. Camarillo, 115 Wn.2d 60, 69-70, 794 P.2d 850 (1990).
Mr. Cueva also argues that the prior conviction was based on an Alford plea in which he pleaded guilty but did not admit his guilt. Convictions obtained through Alford pleas are admissible under ER 404(b). State v. Price, 126 Wn. App. 617, 636, 109 P.3d 27, review denied, 155 Wn.2d 1018 (2005). Additionally, here, the trial court considered the evidence and concluded that Mr. Cueva was found guilty by a preponderance of the evidence on the previous charge of second degree assault with sexual motivation. Because the trial court determined there was sufficient evidence to support the previous assault charge, it does not matter that Mr. Cueva had entered an Alford plea. The trial court did not abuse its discretion.
Jury Instruction
Mr. Cueva asserts the ER 404(b) jury instruction was insufficient and misleading. "Instructions are sufficient if they (1) permit each party to argue his theory of the case, (2) are not misleading, and (3) when read as a whole, properly inform the trier of fact of the applicable law." Brown v. Spokane County Fire Prot. Dist. No. 1, 100 Wn.2d 188, 194, 668 P.2d 571 (1983).
The jury instruction on ER 404(b) reads:
Instruction No. 10. Evidence that the defendant has previously been convicted of a crime is not evidence of the defendant's guilt in this case. Such evidence may be considered by you for the limited purpose of determining if the defendant had a lustful disposition toward [L.C.] and for no other purpose.
RP at 231.
In this case, the purpose of the jury instruction was to inform the jury about ER 404(b). The evidence surrounding the prior conviction could only be admitted to show Mr. Cueva's lustful disposition toward L.C. The wording "[e]vidence that the defendant has previously been convicted" was inclusive of the testimony regarding the prior conviction and not just the conviction itself. RP at 231. The instruction was clear that the prior conviction, and the evidence surrounding it, could only be used to determine Mr. Cueva's lustful disposition toward L.C. and for no other reason. The instruction was sufficiently limiting. The jury instruction was not misleading and it properly informed the jury of the applicable law.
Sufficiency of the Evidence
Evidence is sufficient when, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found guilt beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). When considering the sufficiency of the evidence, all reasonable inferences must be drawn in favor of the State and interpreted most strongly against the defendant. State v. Partin, 88 Wn.2d 899, 906-07, 567 P.2d 1136 (1977). Significantly, credibility determinations are for the trier of fact and cannot be reviewed on appeal. Camarillo, 115 Wn.2d at 71.
A person is guilty of child molestation in the first degree if he has sexual contact with a person who is less than 12 years old, is not married to the perpetrator, and is at least 36 months younger than the perpetrator. RCW 9A.44.083. For second degree child molestation, the perpetrator has to have sexual contact with a person who is older than 12 but younger than 14, is not married to the perpetrator, and is at least 36 months younger than the perpetrator. RCW 9A.44.086. "Sexual contact" is "any touching of the sexual or other intimate parts of a person done for the purpose of gratifying sexual desire of either party." RCW 9A.44.010(2).
Here, L.C. and Mr. Cueva were not married and Mr. Cueva was more than 36 months older than L.C. The period of time over which these incidents occurred spanned from when L.C. was 11 to when she was 13. L.C. testified that Mr. Cueva touched her private parts and that, when he did, he would touch himself and a white substance would come out of his private part. L.C.'s testimony contradicted itself in places, but the essential elements of the offense are never contradicted. Furthermore, we defer to credibility determinations made by the trier of fact. See Camarillo, 115 Wn.2d at 71. With all reasonable inferences drawn in favor of the State, a rational trier of fact could have found Mr. Cueva guilty of first and second degree child molestation. We affirm.
A 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
BROWN, J., SWEENEY, C.J., concur.