Opinion
29888-4-III
11-27-2012
STATE OF WASHINGTON, Respondent, v. WILLIAM T. MILLER, Appellant.
UNPUBLISHED OPINION
Sweeney, J.
The test for "substantial evidence" is modest. State v. Henjum, 136 Wn.App. 807, 810, 150 P.3d 1170 (2007). The State must produce evidence that supports the elements of the crimes charged, here four counts of second degree child molestation and two counts of third degree child molestation. The contest on appeal is over disputed evidence of the victim's age—was she at least 12 but less than 14 or wasn't she. The victim testified that the defendant started to molest her when she was in the sixth grade; she celebrated her twelfth birthday that year. And the abuse continued through the seventh and eighth grades, ending before her freshman year in high school. Of course, this evidence is sufficient to support the elements of the crime of second degree child molestation. And we therefore affirm the convictions.
FACTS
Mr. Miller began dating K.C.'s mother in 2004. He moved in with K.C.'s mother and K.C. Mr. Miller molested K.C. while he lived there. K.C. moved out to live with her father in 2010. K.C.'s father found letters from K.C. that reported that Mr. Miller had molested her. K.C.'s father called police. Police investigated. The State charged Mr. Miller with four counts of second degree child molestation and two counts of third degree child molestation.
The case proceeded to a trial before a jury. K.C. testified that the sexual contact occurred throughout her middle school years and that the abuse began when she was in sixth grade. K.C. celebrated her twelfth birthday that year. She stated that the abuse continued frequently through seventh and eighth grade and ended prior to her freshman year in high school. Mr. Miller testified that he was 56 years old at the time of trial.
The jury found Mr. Miller guilty of four counts of second degree child molestation and not guilty of third degree child molestation. The court entered judgment on the verdict and imposed sentence.
DISCUSSION
Mr. Miller contends that the evidence is insufficient to show that K.C. was less than 14 years old at the time of his crimes.
The State's burden of proof includes a burden of production and a burden of persuasion. Henjum, 136 Wn.App. at 810. We decide whether the burden of production has been met; it is a question of law that we review de novo. State v. Zamora, 6 Wn.App. 130, 133, 491 P.2d 1342 (1971). The jury decides, or more accurately already decided, whether the State has met its burden of persuasion. State v. Huff, 64 Wn.App. 641, 655, 826 P.2d 698 (1992).
To prove second degree child molestation, the State had to show that the defendant knowingly had sexual contact with the victim who was not his wife, when the victim was at least 12 years old but less than 14 years old. RCW 9A.44.086(1).
K.C. testified that she was definitely 12 years old when Mr. Miller molested her. She testified that the sexual contact began when she was in the sixth grade, the year of her twelfth birthday. She testified that the acts continued during her seventh and eighth grade school years, and ended before her freshman year in high school. We conclude that this is a sufficient showing to support the elements of the crime of second degree child molestation. And the jury concluded that the State met its burden of persuasion with this showing.
STATEMENT OF ADDITIONAL GROUNDS FOR REVIEW
Mr. Miller has asked that we consider additional claims of error in his statement of additional grounds and we do so. We do our best to identify his contentions, articulate the issues they raise, and address them.
RIGHT TO AN UNBIASED JURY
Whether the trial court erred by denying a new trial based on juror misconduct is a question we will review for abuse of discretion. State v. Cho, 108 Wn.App. 315, 320, 30 P.3d 496 (2001).
Article I, section 21 of the Washington Constitution provides that "[t]he right of trial by jury shall remain inviolate." The right to trial by jury means a trial by an unbiased and unprejudiced jury, free of disqualifying jury misconduct. Alexson v. Pierce County, 186 Wash. 188, 193, 57 P.2d 318 (1936). It is, however, incumbent upon a defendant to appropriately challenge a juror for implied bias to preserve that error for appeal. See Ottis v. Stevenson-Carson Sch. Dist. No. 303, 61 Wn.App. 747, 760-61, 812 P.2d 133 (1991). And he bears the burden of proving the juror misconduct. State v. Barnes, 85 Wn.App. 638, 668-69, 932 P.2d 669 (1997). Mr. Miller must show more than just a mere possibility that the juror was prejudiced. State v. Stackhouse, 90 Wn.App. 344, 350, 957 P.2d 218 (1998).
Mr. Miller suggests that jurors 4 and 8 knew him but he presents nothing to support that assertion. And without that we are hard pressed to pass on his complaint. Moreover, he makes no showing of any juror bias, actual or implied. See Cho, 108 Wn.App. at 320-27. He says only that he recognized jurors 4 and 8 because they worked together. Legally, the question then for us becomes so what? Apparently, this was not a concern at trial because no one challenged the jurors. And without that challenge, we will not review a claim of actual bias. See State v. Clark, 143 Wn.2d 731, 763-64, 24 P.3d 1006 (2001).
Mr. Miller also urges that the court should have dismissed the jury after juror 41 heard another potential juror make a comment on how the juror knew the defendant and how to save the county money. First, management of this problem is vested in the discretion of the trial judge, not us. Hough v. Stockbridge, 152 Wn.App. 328, 340, 216 P.3d 1077 (2009). But more to the point here, there is nothing in this record for us to consider, specifically the context, the judge's handling of the matter, and any objections express or implied.
ADMISSION OF EVIDENCE—RECORDED TELEPHONE CONVERSATION, TAPED INTERVIEW, NOTEBOOK PAGES, AND LETTERS
Mr. Miller next challenges the admission of a recorded telephone call, a taped interview, and notes by K.C. But again no one objected at trial and for good reason, the evidence was admissible. Mr. Miller stipulated to the admission of the recorded interview before trial. The decision reflected a bit of good lawyering, since it avoided the need to address the matter in front of the jury. In fact, counsel worked with the State to avoid objections in front of the jury. And Mr. Miller introduced K.C.'s spiral notebook notes. So he is hard pressed to object here on appeal. See Sullins v. Sullins, 65 Wn.2d 283, 285, 396 P.2d 886 (1964). Finally, "[w]hether a prior statement is admissible under ER 801(d)(1)(ii) is within the trial court's discretion and will not be reversed absent a showing of manifest abuse of discretion." State v. Makela, 66 Wn.App. 164, 168, 831 P.2d 1109 (1992).
We will review challenges to the admission of evidence only if there was an objection lodged at trial, unless there is a manifest error affecting a constitutional right. State v. Brush, 32 Wn.App. 445, 456-57, 648 P.2d 897 (1982).
A statement is not hearsay if the declarant testifies at trial and is subject to cross-examination concerning the statement, and the statement is consistent with his testimony and offered to rebut an express or implied charge of recent fabrication. ER 801(d)(1)(ii).
Mr. Miller objected to the admission of the letters written by K.C. He urges that the letters contained hearsay statements and were not needed to show her state of mind. He argues that it was K.C.'s duty to show she was molested and the letters should not have been used in place of her testimony. The court admitted the letters pursuant to ER 801(d)(1)(ii) to rebut an expressed or implied charge of fabrication against K.C. This is most certainly a tenable ground to admit this evidence.
Mr. Miller's cross-examination of K.C. implied that K.C. instigated the charges against Mr. Miller for revenge. The letters rebutted claims that K.C. lied to get back at Mr. Miller. That is a good reason to admit those letters. ER 801(d)(1)(ii).
SEARCH WARRANT—TELEPHONE CALL
Mr. Miller next contends that the application to intercept the telephone conversation was invalid. But again, Mr. Miller did not try to suppress the taped telephone call and so any challenge here on appeal is waived. State v. Sengxay, 80 Wn.App. 11, 15, 906 P.2d 368 (1995). Moreover, we will affirm a magistrate's order to intercept a telephone call if the facts set out in the application are minimally adequate to support the magistrate's decision to grant the order. State v. Porter, 98 Wn.App. 631, 634, 990 P.2d 460 (1999). A magistrate has discretion to determine whether the statutory safeguards required to issue the order have been met. Id. We will defer to that magistrate.
EXCLUSION OF THE EXPERT WITNESS
Mr. Miller maintains that the exclusion of his expert witness violated his right to confront witnesses; a right guaranteed by the confrontation clause of the Sixth Amendment to the United States Constitution. Here, the expert witness(es) was/were apparently to be called to rebut K.C.'s testimony and to comment on the police investigation and interview techniques.
There are two problems with Mr. Miller's objections. First skillful and experienced lawyers elect not to call an expert for the simple reason that the witness may not help and may even hurt the defense's case. Second, and more significantly here, there was no denial of Mr. Miller's right to confront witnesses, which is his essential complaint. Under the Sixth Amendment to the United States Constitution, "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." Along with the opportunity to be confronted, the amendment also gives a criminal defendant the opportunity to confront witnesses who are against him or her. State v. Clark, 139 Wn.2d 152, 158, 985 P.2d 377 (1999). The proposed witness was his witness. He was not denied the right to confront witnesses by his lawyer's decisions not to call expert witnesses on his own behalf.
SPEEDY TRIAL
Mr. Miller contends that the trial court violated his right to a speedy trial by granting multiple continuances.
We review the judge's decision to continue a trial for an abuse of discretion. State v. Flinn, 119 Wn.App. 232, 243, 80 P.3d 171 (2003) (quoting CrR 3.3), aff'd, 154 Wn.2d 193, 110 P.3d 748 (2005). And moving to continue "by or on behalf of any party waives that party's objection to the requested delay." CrR 3.3(f)(2). Mr. Miller requested three of those continuances. And he did not object to the other continuance requested by the State; indeed, he agreed to it. Mr. Miller then waived his right to complain about not being brought to trial in a timely manner. He was brought to trial in a timely manner according to CrR 3.3.
INEFFECTIVE ASSISTANCE OF COUNSEL
Finally, Mr. Miller claims that his lawyer did not effectively represent him. The specifics of why track his earlier claims of error in this statement of additional grounds. A defendant may claim ineffective assistance of counsel for the first time on appeal because the claim of error is of constitutional magnitude. State v. Greiff, 141 Wn.2d 910, 924, 10 P.3d 390 (2000).
But Mr. Miller must show that (1) defense counsel was deficient, and (2) that the deficient performance by counsel prejudiced the defense. State v. Denison, 78 Wn.App. 566, 574-75, 897 P.2d 437 (1995). Deficiencies by defense counsel must involve "'errors so serious that counsel was not functioning as the "counsel" guaranteed . . . by the Sixth Amendment.'" Id. at 575 (quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). "[P]rejudice is defined as 'errors . . . so serious as to deprive the defendant of a fair trial.'" Id. (quoting Strickland, 466 U.S. at 687).
Again, Mr. Miller's contention involving juror bias and ineffective assistance of counsel cannot be addressed because Mr. Miller did not show any juror bias.
Nor was counsel's performance deficient regarding K.C.'s letters. He objected and his objection was overruled.
Counsel was not ineffective in offering into evidence K.C.'s notes. Counsel offered this to show that K.C. changed her testimony between the time she wrote the notes and the time of trial. A comparison of the notes and her testimony shows this discrepancy. Part of counsel's strategy, apparently, was to show that K.C. fabricated the allegations. Counsel also did not act ineffectively by agreeing to admit the recorded telephone call and interview. Both of these tended to support Mr. Miller's claims of innocence.
Also we have addressed counsel's decision not to call the expert witness(es) and pointed out that it may well have been tactical but that there was no denial of his right to confront witnesses in any event. Moreover, Mr. Miller makes no showing by affidavit or otherwise as on exactly what and how this expert might have supported his case.
Mr. Miller's counsel requested continuances because he needed additional time to prepare. The other continuances, one by defense and the other by the prosecution, involved medical issues. Defense counsel did not act ineffectively by requesting or agreeing to the continuances.
Because Mr. Miller fails to show that his counsel acted deficiently, his claim for ineffective assistance fails.
We affirm the convictions for four counts of second degree child molestation.
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 RCW 2.06.040.
WE CONCUR: Korsmo, C.J. Siddoway, J.