Opinion
No. 51764-3-I.
Filed: June 7, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Snohomish County. Docket No: 02-1-00328-6. Judgment or order under review. Date filed: 12/20/2002. Judge signing: Hon. Ellen J. Fair.
Counsel for Appellant(s), Washington Appellate Project, Attorney at Law, Cobb Building, 1305 4th Avenue, Ste 802, Seattle, WA 98101.
Sharon Jean Blackford, Attorney at Law, 1218 3rd Ave Ste 1800, Seattle, WA 98101.
Oliver Ross Davis, WA Appellate Project, Cobb Bldg, 1305 4th Ave Ste 802, Seattle, WA 98101-2402.
Bruce Dennis Kellerman (Appearing Pro Se), Doc# 848434, Wa St. Dept of Corrections, P.O. Box 900, Shelton, WA 98584.
Elaine L Winters, WA Appellate Project, Cobb Bldg, 1305 4th Ave Ste 802, Seattle, WA 98101-2402.
Counsel for Respondent(s), Mary Kathleen Webber, Snohomish County Prosecutors Office, Msc 504, 3000 Rockefeller Ave, Everett, WA 98201-4061.
After his conviction for third degree child molestation, Bruce Kellerman claims that various evidentiary errors and prosecutorial misconduct cumulatively denied him his right to a fair trial. We disagree, and affirm Kellerman's conviction.
FACTS
Bruce Kellerman was charged with third degree child molestation of K.V., a 14-year-old girl, in violation of RCW 9A.44.089. K.V. and her family had known Kellerman and his family for 12 or 13 years. K.V. had been to the Kellerman's home on many occasions, and had spent the night with the Kellerman's daughter, A.K., many times prior to the incident that gave rise to the charges. On April 12, 2001, K.V. was once again to stay overnight with A.K.
RCW 9A.44.089(1) (`A person is guilty of child molestation in the third degree when the person has, or knowingly causes another person under the age of eighteen to have, sexual contact with another who is at least fourteen years old but less than sixteen years old and not married to the perpetrator and the perpetrator is at least forty-eight months older than the victim.'); RCW 9A.44.010(2) (``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.').
Kellerman picked K.V. up and drove her to the Kellerman home, where K.V.'s mother had arranged to pick her up the next day. K.V. testified that neither A.K. nor A.K.'s mother was present when they arrived. K.V. stated that she watched a movie downstairs while Kellerman worked on the computer in the same room. K.V. stated that after a while, Kellerman came over to the sofa where she was sitting and asked for a hug, which was not unusual because K.V. often exchanged hugs with the Kellerman family. K.V. said that when Kellerman hugged her this time, he held her arm against his chest and did not let her go even though she tried to lean back and get away. K.V testified that Kellerman asked K.V., `Isn't this nice? Don't you like this?' K.V. responded that she was uncomfortable, but Kellerman then put his hands down the back of her pants and began rubbing her buttocks. K.V. testified that Kellerman then put his hand under her bra, and put one of her legs between his legs. K.V. stated that Kellerman then rolled her partially off the couch, pulled up her shirt and touched her breasts with his hands and mouth. K.V. testified Kellerman again asked, `Isn't this nice?' When Kellerman lifted his body off K.V., she moved away from him and said, `No, this is wrong. You shouldn't do this.'
K.V. decided that she wanted to go home, and called her mother. K.V. stated that Kellerman followed her upstairs and watched as she talked to her mother on the phone. K.V. told her mother that she was feeling sick and wanted to go home. Because the families lived so far apart, K.V.'s mother encouraged her to stay with the Kellermans until the next day. K.V. testified that she felt like she couldn't tell her mother what happened because Kellerman was right next to her, so she agreed to stay. K.V.'s mother subsequently testified that K.V. had never before called to ask to come home early from the Kellerman's house.
K.V. testified that Kellerman then said they were going to meet A.K. and her mother at a restaurant for dinner. At the restaurant, K.V. again tried to call her mother but was unable to do so because the pay phones were out of order. When she returned to the table, Kellerman informed her that Mrs. Kellerman had called and said they were not coming to the restaurant. K.V. and Kellerman returned to the Kellerman's home, and A.K. and her mother arrived soon thereafter. K.V. testified that she tried a couple of times to tell A.K. what happened, but that Kellerman was always around or would show up when she started to talk to A.K. in private.
K.V. testified that Kellerman came home from work early the next day, took the girls to the mall and gave them both fifteen dollars. K.V. testified that it was unusual for Kellerman to give her money and that she gave the money to A.K. because she believed it was a pay off. K.V.'s mother testified that her daughter was ready to go when she picked her up from the Kellerman's home, which was unusual for K.V., and that K.V. acted strangely around Kellerman
K.V. waited until her mother drove away from the house and then told her mother what had happened. K.V.'s mother called the police on her cell phone. They met the police at a nearby parking lot, followed them to the police station, and gave their respective statements.
During cross-examination of K.V., the defense elicited her testimony that she had not taken the opportunity the next day to call her mother again, or the police, even when the defendant went off to work. The defense then asked K.V. whether she and A.K. were playing games the night of the incident. K.V. asserted that they hadn't played any games that evening. The defense asked K.V. if she played or was familiar with a game called `Telepathic Liar,' or a game that she introduced A.K. to that involved making up stories. K.V. said she had not heard of these games and had not introduced A.K. to a game that involved making up stories. K.V. also testified that she had not played a game of that nature with A.K. on the night in question.
Prior to trial, the defense objected on hearsay grounds to K.V.'s mother testifying as to the content of K.V.'s initial disclosure to her. The trial court ruled that the State would be able to present testimony from K.V.'s mother to show that a disclosure was made and the timing of it, but not the details of the disclosure. At trial, K.V.'s mother and the prosecutor engaged in the following colloquy:
[STATE]: And after you got, drove that distance, did [K.V.] say something upsetting to you?
A: Yeah. She, she kind of looked at me and then she looked down and she said, `Mom, I have something kind of embarrassing to tell you.' And just the way she said it, I knew that it wasn't just [DEF]: Objection. Your Honor, could I just have a continuing objection at this point to hearsay?
COURT: Yes. That objection will be noted. [court recess]
[STATE]: Okay. And not going into the details of what she said, did she tell you something about a sexual assault-type thing that had happened to her?
A: Yes. She had, she described something that had happened between her and Bruce in his den.
2 Report of Proceedings at 212-14. The State also asked K.V.'s mother if K.V. required counseling after the incident. Over a defense objection as to relevance, K.V.'s mother answered affirmatively.
On cross-examination, the defense asked K.V.'s mother if she believed her daughter when she called to say that she was sick. The mother answered that she had not believed her, and that K.V. had used that excuse before, to get out of doing things that she did not want to do. The defense then asked K.V.'s mother if she was familiar with a game her daughter played called Pathological Liar, or a game involving telling lies. K.V.'s mother responded that she had never heard of those games.
On re-direct examination, the State asked K.V.'s mother several questions about the games:
[STATE]: Mr. Friedman's been asking about games that [K.V.] played, may play about lying or anything like that. Have you ever heard anything like that?
A: I have absolutely no idea what this game is. I have never seen anybody play it or I haven't even heard of it.
[STATE]: Any problems with [K.V.] lying about really serious stuff —
A: No.
[STATE]: — in your life with her?
A: She doesn't lie about anything that matters. I mean, she's pretty forthright with me even when she knows she's going to get it. And I knew the minute that she said what she said —
[DEF]: Objection as to her opinion as to her daughter's credibility in general or specific.
COURT: Sustained.
[STATE]: You haven't had any problem with her lying about something very serious like this; is that your testimony?
A: No.
[DEF]: Objection as to relevance. Improper —
COURT: It's asked and answered.
[DEF]: Thank you. I don't have any other questions.
2 Report of Proceedings at 226-27.
Officer John T. Hendrickson, one of the officers who responded to K.V's mother's call, testified that he escorted K.V. and her mother to the police station so that they could give their statements, and that he also conducted follow-up investigation on the complaint, including telephoning Mrs. Kellerman to get a statement about the incident. Officer Hendrickson testified that Mrs. Kellerman was not willing to speak to him by phone and wanted to call her lawyer. The defense did not object to this testimony and re-elicited the same evidence on cross-examination of Officer Hendrickson and on direct examination of Mrs. Kellerman.
Mrs. Kellerman testified that K.V. was a friend of her family and her daughter, A.K., and that K.V. had spent the night at her home many times. Mrs. Kellerman asserted that she had not noticed anything unusual about K.V.'s behavior when she and A.K. returned home on the night in question, or during the following morning. Mrs. Kellerman additionally testified that on the night in question K.V. and her daughter played a game which involved making up stories called `Prevaricator.'
A.K. also testified that she had not observed any unusual behavior on K.V.'s part after she and her mother returned home on the night in question, and that K.V. had not acted strangely toward her father the next day. A.K. also stated that she and K.V. had played a game called `Pathological Liar' that night; a game that involved seeing which player could make up the most believable lie for a period of a day or two. However, A.K. admitted that the game she and K.V. played had never involved making up a lie that would last for a year and a half. Neither A.K. nor her mother claimed that this game had ever involved making up false sexual allegations about another person.
In closing argument, the State pointed out that K.V.'s version of the events of April 12, 2001, had remained consistent, and there was no indication that K.V. had any motive to lie. The State asserted that all of K.V.'s actions, including going to counseling, were consistent with a teenager reporting something disturbing done to her by a trusted person. The defense countered that Kellerman's wife and daughter had not noticed anything out of the ordinary in K.V.'s behavior because the defendant was innocent, and that the lying game would explain K.V.'s allegations.
The jury convicted Kellerman as charged, and he appeals.
DISCUSSION I. Witness Comment on K.V.'s Credibility
Kellerman first argues that the court erred in allowing K.V.'s mother to testify regarding the credibility of her daughter because K.V.'s character for truthfulness had not been attacked. We disagree. The entire defense theory of the case was that K.V. was lying about what took place in the Kellerman home on April 12, 2001, that her character for truthfulness was bad as illustrated by (1) the game involving lying that she played with A.K., and (2) by the fact that she sometimes lied to her mother about being sick when she did not want to do something.
Kellerman also argues that even if K.V.'s character for truthfulness was attacked, the mother's testimony constituted an impermissible opinion. Again, we disagree. The defense attacked K.V.'s character for truthfulness by eliciting specific instances of her conduct playing the lying game and lying about being sick when she did not want to do something. By doing so, the defense opened the door to rebuttal evidence regarding specific instances of conduct. The trial court is granted discretion under ER 608(b)(2) to permit inquiry into specific instances of conduct, if probative of truthfulness or untruthfulness, `concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.' Here, on cross-examination, the defense elicited testimony from K.V.'s mother that K.V. had lied in the past about being sick in attempts to get out of doing something that she did not want to do which constituted testimony regarding specific conduct by K.V. In light of this, the trial court did not err by permitting the State to inquire as to whether there had been any problem with K.V. lying about `really serious stuff.'
The defense did not immediately object to the mother's testimony that K.V. does not lie about anything that matters, `even when she knows she's going to get it.' The objection came when the mother attempted to go further: `And I knew the minute that she said what she said . . .' The defense objection at that juncture on the basis that the mother was about to give opinion evidence was proper, and the trial court properly sustained the objection, thus preventing the opinion from being stated. Later, the prosecutor asked the mother again whether her testimony was that there had been no problem with K.V. lying about something very serious like the molestation charges, and the mother answered no. After the answer had already been given, the defense did object, on grounds of relevance. The trial court overruled the objection because the question had been both asked and answered thus the objection came too late. This was not an abuse of discretion.
Generally, the credibility of a witness may be attacked or supported by evidence in the form of the witness's reputation within a specific community, but subject to the following limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by reputation evidence or otherwise. ER 608(a)(2); State v. Land, 121 Wn.2d 494, 497, 851 P.2d 678 (1993). This rule parallels the general rule that evidence that might otherwise be inadmissible is admissible if a witness opens the door to the evidence and the evidence is relevant to some issue at trial. See, e.g., State v. Gefeller, 76 Wn.2d 449, 455, 458 P.2d 17 (1969) (elicitation from police officer that defendant was `cooperative' during lie detector test opened door to introduction of results of test); State v. Gallagher, 112 Wn. App. 601, 609, 51 P.3d 100 (2002), review denied, 48 Wn.2d 1023 (2003); State v. Stockton, 91 Wn. App. 35, 40, 955 P.2d 805 (1998). Where a witness testifies as to his or her own good character on direct, the opposing party is entitled to make further enquiries on the subject on cross-examination. Stockton, 91 Wn. App. at 40 (citing Gefeller, 76 Wn.2d at 455).
The determination of whether a witness's character was brought into question by the opponent by reputation evidence or `otherwise,' so as to open the way to evidence of good character in denial under ER 608 depends on the nature of the opponent's impeaching evidence. In the case of a direct assault on a witness's truthful character, no doubt exists that character has been attacked. State v. Harper, 35 Wn. App. 855, 860, 670 P.2d 296 (1983) (citing 4 John Henry Wigmore, Evidence 235 sec. 1105 (1972 rev. ed.)).
It is clear that Kellerman `otherwise' attacked K.V.'s character for truthfulness, thus opening the door to further testimony on the subject. The entire thrust of the defense's cross-examination of both K.V. and her mother focused on K.V.'s credibility and her character for truthfulness. The defense questioned K.V. about her behavior after the incident and pointed out that she did not try to call her mother or the police after the incident when Kellerman was not present. The defense asked both K.V. and her mother several times about K.V.'s involvement in a game where the participants competed to make up the most believable lie. The defense also asked K.V.'s mother if she believed K.V. when she called to say she was sick. The logical purpose of these questions was to undermine K.V.'s credibility, not by community reputation, but by suggesting that she felt comfortable with lying and had fabricated the story. Thus, by `otherwise' attacking K.V.'s credibility and suggesting her participation in a lying game, the prosecution opened the door to re-direct examination of the issue of her credibility.
However, after the character of a witness for truthfulness is attacked, evidence of the truthful character of a witness may be introduced in the form of reputation evidence, not in the form of an opinion. ER 608(a)(2); State v. Smith, 56 Wn. App. 909, 912, 786 P.2d 320 (1990), abrogated on other grounds by State v. Thomas, 98 Wn. App. 422, 989 P.2d 612 (1999). K.V.'s mother's statement that she had not heard of the games that the defense referred to was not an opinion on K.V.'s credibility. Thus, this was not erroneously admitted. Further, to the extent that K.V.'s mother's statements that K.V. `doesn't lie about anything that matters' and was `pretty forthright' may have constituted personal opinions on K.V.'s credibility, rather than comments on her reputation for truthfulness in the community of her family, the defense failed to object on that basis; thus any error was not preserved for this appeal.
Kellerman cites several cases for the proposition that the comments made by K.V.'s mother constituted constitutional error. These cases do not discuss witness answers, but establish that a prosecutor may not ask a witness if he or she believes the victim is telling the truth about the charged incident. See State v. Jerrels, 83 Wn. App. 503, 507-09, 525 P.2d 209 (1996); State v. Suarez-Bravo, 72 Wn. App. 359, 366, 864 P.2d 426 (1994). Although Kellerman does not clearly argue the prosecutorial misconduct issue, and did not object to the questions the first time that they were asked, he did, belatedly, object the second time, on grounds of relevance. To prevail on a prosecutorial misconduct allegation, a defendant must show both improper conduct and prejudicial effect. State v. Pirtle, 127 Wn.2d 628, 672, 904 P.2d 245 (1995). If error occurred, reversal is required if there is a substantial likelihood that the jury's verdict was affected by the error. Pirtle, 127 Wn.2d at 672; Suarez-Bravo, 72 Wn. App. at 366-67. Asking a witness to judge whether or not another witness is lying is improper because it invades the province of the jury. Suarez-Bravo, 72 Wn. App. at 366. However, the questions asked here were not of the type condemned by Jerrels and Suarez-Bravo. Here, the prosecutor asked K.V.'s mother if K.V. generally lied about things that mattered, not whether she was lying in the present case.
As discussed above, K.V.'s character for truthfulness was initially attacked by the defense. Defense questions suggested that she fabricated the charges against Kellerman. When K.V.'s mother attempted to give improper opinion testimony, a defense objection to further testimony was sustained, and the opinion was not stated. The defense thereafter bolstered its case that K.V. had fabricated the story by questioning both A.K. and A.K.'s mother about a game that the girls allegedly played that involved making up lies. Thus, the jury heard evidence that indicated both that K.V. was truthful and evidence that she was not. We hold that there exists no substantial likelihood that the jury's verdict was affected by any erroneous admission of opinion testimony after potentially improper prosecutorial questions. Reversal is not required on the issue of prosecutorial misconduct.
II. `Hue and Cry' or Fact of the Complaint Exception to Hearsay
The `hue and cry,' or the fact of complaint, rule is an exception to the general rule which excludes hearsay and allows the State to introduce evidence in sexual assault cases that the victim made a timely complaint to someone after the assault. The rule excludes details of the act, including the identity of the offender and the nature of the act. State v. Ferguson, 100 Wn.2d 131, 136, 667 P.2d 68 (1983); State v. Murley, 35 Wn.2d 233, 237, 212 P.2d 801 (1949). See also, State v. Ackerman, 90 Wn. App. 477, 481, 953 P.2d 816 (1998). The State does not assert that Kellerman failed to preserve this issue for appeal.
Prior to trial, the defense moved to exclude hearsay testimony about K.V.'s disclosure and the court ruled that the State would be able to present testimony from K.V.'s mother to show that a disclosure was made and the timing of it, but not the details of the disclosure. Kellerman argues that the prosecutor exceeded this `hue and cry' exception to the hearsay rule during direct examination of K.V.'s mother by eliciting the defendant's name from the witness and mentioning the `sexual nature' of the crime. Even if these comments constituted error, they did not harm the defendant. Where the `hue and cry' rule has been exceeded, the weight of the harm may be too slight to constitute reversible error. Ferguson, 100 Wn.2d at 136 (citing State v. Conklin, 37 Wn.2d 389, 223 P.2d 1065 (1950)). For instance, a witness's mere reference to the defendant's identity when testifying about the victim's complaint constitutes harmless error where the defendant's identity is not at issue. Ferguson, 100 Wn.2d at 136; State v. DeBolt, 61 Wn. App. 58, 63, 808 P.2d 794 (1991); State v. Fleming, 27 Wn. App. 952, 957-58, 621 P. 2 779 (1980). The defendant does not claim mistaken identity, thus K.V.'s mother's identification of the defendant was harmless.
Further, in applying the `hue and cry' rule, Washington courts have previously admitted witness testimony that the victim told them of the sexual nature of the act. State v. Ragan, 22 Wn. App. 591, 597, 593 P.2d 815 (1979) (citing to 5 R. Meisenholder, Washington Practice sec. 545, at 504 (1965) (asserting that the testimony may include the general nature of the crime, the court allowed testimony by a witness who said the victim reported that he was raped by a man); Fleming, 27 Wn. App. at 958-59 (allowing testimony from witness that victim reported she was raped). See also, Ackerman, 90 Wn. App. at 482 (holding statements by witness that victim reported that she was `abused' were properly admitted by trial court under `hue and cry' exception).
We believe that a mere reference by the prosecutor to the type of crime committed, not its details, did not constitute reversible error on the facts presented here. Mere mention of the type of alleged crime could not possibly have bolstered K.V.'s testimony where the jury was already aware of the nature of the charges against the defendant. Finally, the defense provides no citation to authority for its argument that the State's reference in closing argument that K.V. `promptly told her mother the facts about what happened to her' constituted a violation of the hearsay rule. Therefore, we hold that any error was harmless.
III. Exclusion of Evidence of Prior Assault on K.V.
Kellerman also asserts that the trial court erroneously excluded evidence of a prior assault on K.V. The assault happened when K.V. was 10 years old and involved a mailman who arrived intoxicated at K.V.'s house, held K.V., and wouldn't let her go. The mailman made some kind of sexual comment to K.V. The mailman was charged with fourth degree assault and was fired. The State argued that the mailman incident was not relevant because it happened four years prior to the current incident. The defense argued it was relevant to show that K.V. was unduly sensitive to hugs, and that she misconstrued or exaggerated Kellerman's actions in giving K.V. a friendly family hug. The court granted the State's motion to exclude, stating that the incident was too remote in time and irrelevant to the current charges. The court explained that K.V. was a child at the time of the previous assault and may not have understood what had happened, but was a teenager at the time of the current incident. The court stated that it would consider a future motion by the defense to include evidence of the assault if it somehow became relevant during trial.
Evidentiary rulings are within the discretion of the trial court and will not be disturbed on appeal absent an abuse of that discretion. State v. Ellis, 136 Wn.2d 498, 504, 963 P.2d 843 (1998). A trial court abuses its discretion when its decision is manifestly unreasonable or based on untenable grounds or for untenable reasons. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971). Evidence is relevant, and admissible, if it has a tendency to make the existence of any fact of consequence more or less probable than it would be without the evidence. ER 401. The fact of consequence here is whether Kellerman had sexual contact with K.V. `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). Kellerman continues to assert that the evidence of a prior assault on K.V. was relevant to show K.V.'s sensitivity to an innocent hug, and was thus necessary to his defense that he did not commit the charged crime.
A court violates the defendant's due process rights when it improperly excludes relevant evidence offered by the defendant in his or her defense. State v. Austin, 59 Wn. App. 186, 194, 796 P.2d 746 (1990). Here, Kellerman provided no evidence that indicated that K.V. was in fact overly sensitive to hugs or that she would likely misunderstand the nature of Kellerman's hug on the night in question because of the previous incident. To the contrary, K.V. testified that she did not consider Kellerman's request for a hug to be unusual, in that hugs were common in the Kellerman household. It is also not clear how an incident with a drunken stranger, which did not involve sexual contact, would be relevant to the charges against Kellerman that he fondled K.V.'s breasts with his hands and mouth. We hold that the court did not abuse its discretion or violate Kellerman's right to due process in initially excluding the evidence where the defendant did not show that it was relevant to the current charges.
Moreover, although the court permitted Kellerman to make a future motion to admit the evidence if it became relevant during trial, the defendant never did so. To the extent that the court's ruling in limine was a tentative ruling, subject to future evidence developed at trial, Kellerman waived his right to appeal the suppression of the evidence of the prior assault because he did not renew his motion to include the evidence during trial. See, e.g., State v. Jamison, 105 Wn. App. 572, 586, 20 P.3d 1010 (2001) (defendant did not preserve evidentiary issue for appeal where he failed to obtain a final ruling on the issue after a tentative ruling by the trial court in limine and exclusion of the evidence did not constitute a manifest error affecting a constitutional right).
IV. Admitted Testimony of K.V.'s Counseling
Kellerman additionally claims that the trial court improperly allowed irrelevant and prejudicial evidence when it permitted K.V.'s mother, over defense objection, to answer `yes' to the State's question about whether K.V. had obtained counseling, and then allowed the State to briefly mention the counseling in closing. As discussed above, evidence is relevant, and generally admissible, if it has a tendency to make the existence of any fact of consequence more or less probable. ER 401.
At issue here was whether the conduct between K.V. and Kellerman constituted sexual contact and whether K.V. was lying about the incident. The defense focused its strategy on undermining K.V.'s credibility by suggesting that she played a lying game, by pointing out that she had previously lied to her mother about feeling ill, and by asserting that K.V. did not act differently toward Kellerman after the incident or try to call her mother or the police when Kellerman was not present. Because the defense focused so much on K.V.'s credibility and her actions after the event, we believe that the counseling evidence was relevant to show that she did not make up the charges against Kellerman and that she acted in a manner consistent with someone who had been assaulted by a trusted friend. Further, even if the evidence was erroneously admitted, it was harmless. Evidentiary errors that are not of constitutional magnitude are harmless where, within reasonably probability, the outcome of the trial would not have been materially affected absent the error. Cf., State v. Smith, 106 Wn.2d 772, 780, 725 P.2d 951 (1986) (where his identity was a crucial issue at trial of defendant charged with rape, admission of other unrelated crimes constituted prejudicial and reversible error).
Here, the State did not rely solely on the counseling issue to show that K.V. was credible. It focused on her consistent story, her reports to her mother and police the day after the crime, and the unlikelihood that K.V. would have misunderstood an innocent hug from a long-time family friend. If irrelevant, the primary impact of the counseling testimony would be to cause the jury to feel sympathy for K.V. However, the court's instructions directed the jury to permit neither sympathy nor prejudice to influence its determination that Kellerman was guilty or not guilty, and juries are presumed to follow the court's instructions. State v. Hanna, 123 Wn.2d 704, 711, 871 P.2d 135 (1994). We hold that it is clear, within reasonable probabilities, that the outcome of the trial would not have been different if evidence of K.V.'s counseling had not been admitted. Thus, any error was harmless.
V. Defendant's Wife's Refusal to Talk to Police
Kellerman also argues that the prosecutor improperly elicited irrelevant and prejudicial evidence from Officer Hendrickson that the defendant's wife would not talk to him about the incident but wanted to call a lawyer. The State asserts that even if the questioning constituted misconduct, Kellerman did not object at trial and cannot now show prejudice.
To prevail on a prosecutorial misconduct allegation, a defendant must show both improper conduct and prejudicial effect. Pirtle, 127 Wn.2d at 672; State v. Furman, 122 Wn.2d 440, 455, 858 P.2d 1092 (1993). Prejudice is established by showing a substantial likelihood that the misconduct affected the jury's verdict. Pirtle, 127 Wn.2d at 672. Absent a proper objection, a defendant cannot raise the issue of prosecutorial misconduct on appeal unless the misconduct was so flagrant and ill intentioned that no curative instruction would have eliminated the prejudice. State v. Hoffman, 116 Wn.2d 51, 93, 804 P.2d 577 (1991).
Kellerman first asserts that the testimony unfairly used his wife's lawful refusal to speak to police to show his guilt. However, a defendant cannot assert a witness's Fifth Amendment privileges. State v. McIntyre, 39 Wn. App. 1, 4, 691 P.2d 587 (1984) (holding that defendant could not argue that police questioning of witness about his presence violated her Miranda rights) (citing State v. Dickens, 66 Wn.2d 58, 64, 401 P.2d 321 (1965)). Thus, Kellerman has not shown that the prosecutor's questioning of the officer on this topic was improper.
However, Kellerman argues that the evidence was irrelevant and unfairly prejudicial because it was likely to provoke an emotional response. ER 403; State v. Rice, 48 Wn. App. 7, 13, 737 P.2d 726 (1987) (where other admitted evidence showed the victim claimed money was swindled by defendant during a drug deal, not during a burglary as the victim claimed during trial, trial court did not err in excluding as unfairly prejudicial evidence of victim's assault and abduction of defendant's brother for drug deal swindle). Thus, he asserts that no curative instruction would have obviated the prejudice the irrelevant testimony created.
It is not clear that the testimony was entirely irrelevant. Mrs. Kellerman's refusal to talk to police about the incident shortly after it happened, paired with her claim at trial that she did not even hear about the incident until just before trial, illustrated her bias toward protecting her husband Evidence of interest or bias is relevant to a witness's credibility. State v. Lubers, 81 Wn. App. 614, 623, 915 P.2d 1157 (1996) (citing State v. Whyde, 30 Wn. App. 162, 632 P.2d 913 (1981) (exclusion of evidence of victim's intent to sue landlord after rape allegation against tenant was relevant to victim's bias and constituted reversible error)).
Further, even if the admitted evidence was either irrelevant or prejudicial, Kellerman has not shown that the prosecutorial misconduct, if any, in eliciting the evidence was so flagrant or ill-intentioned that an instruction would not have obviated the prejudice. The questions and comments during closing were brief. The court, if requested, could have instructed the jury that it was not to consider Mrs. Kellerman's refusal to talk to police about the incident. This would have been a simple instruction to follow. Thus, Kellerman has not shown that a proper instruction would not have obviated the error.
Finally, the defense re-elicited the testimony about Mrs. Kellerman's refusal to talk to police, both on cross-examination of Officer Hendrickson and direct examination of Mrs. Kellerman. Thus, Kellerman's claim that this error, if any, was solely due to prosecutorial misconduct is incorrect. Any prosecutorial misconduct was not prejudicial and was, therefore, harmless.
VI. Cumulative Error
Kellerman finally argues that cumulative error denied him of his right to a fair trial. Cumulative effects of errors may require reversal even if, on their own, they may otherwise be considered harmless. State v. Russell, 125 Wn.2d 24, 93-94, 882 P.2d 747 (1994). A defendant must first establish actual error before a reviewing court can measure cumulative effect. State v. Clark, 143 Wn.2d 731, 771-72, 24 P.3d 1006 (2001). Constitutional error is harmless if the conviction is supported by overwhelming evidence. Russell, 125 Wn.2d at 94. Nonconstitutional error requires reversal only if within reasonable probabilities it materially affected the trial's outcome. Id.
Here, the court did not err in excluding evidence of the prior assault on K.V. Further, Kellerman has not shown that any of the remaining potential errors were of constitutional magnitude. Thus, we need only determine if, within reasonable probabilities, the potential errors materially affected the outcome of the trial. We hold that they did not.
The potential opinion testimony was harmless because K.V.'s credibility was attacked and the defense thereafter bolstered its version of events by questioning both Mrs. Kellerman and A.K. about the lying game that K.V. had allegedly played. The prosecutor's mention of the nature of the incident in eliciting the evidence of hue and cry was harmless because there was no question about the nature of the allegations against Kellerman. Evidence of K.V.'s counseling was harmless because the instructions directed the jury to permit neither sympathy nor prejudice to influence their verdict. Finally, the prosecutor's questions regarding Mrs. Kellerman's contacts with police were not so flagrant and ill-intentioned that a proper instruction could not have cured any potential error. As mentioned, the defense neither objected nor requested a curative instruction and actually re-elicited the responses during cross- and direct-examination. Even without these claimed errors the evidence overwhelmingly illustrated to the jury that K.V.'s story remained detailed and consistent, that she reported the event to her mother the next day, and that she had no motivation to lie about an embarrassing sexual incident with a trusted family friend. The only motivation offered was that K.V. engaged in a lying game, a game that both K.V. and her mother denied knowing about, and that even A.K. admitted had never lasted longer than a few days. In sum, we find that it is not clear, within reasonable probabilities, that the potential errors materially affected the outcome of the trial. Thus, reversal is not required and we affirm the defendant's conviction and sentence for third degree child molestation.
COLEMAN and AGID, JJ., concur.