Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Appeal from a judgment of the Superior Court of Orange County, Richard W. Stanford, Jr., Judge, Super. Ct. No. 05NF0204
Michael A. Younge, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Pamela Ratner Sobeck and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
O’LEARY, J.
Christopher Barnes appeals from his conviction on multiple counts of committing lewd and lascivious acts upon a child under the age of 14 in violation of Penal Code section 288, subdivision (a). The victim’s were his daughter and stepdaughter. He contends there is insufficient evidence to support the jury’s verdicts and the trial court erred by excluding evidence that would have impeached the credibility of one of his victims. We find no merit in his contentions and affirm the judgment.
All further statutory references are to the Penal Code, unless otherwise indicated.
FACTS
Jane Doe 1
Jane Doe 1, Barnes’s stepdaughter, testified about sexual abuse she endured from Barnes throughout 2003. She was nine years old when her mother and Barnes married, and she and her mother moved in with Barnes in early 2003.
Jane Doe 1 was often left home alone with Barnes. One day when Barnes was alone with Jane Doe 1, he came to her wearing only a towel and told her to “lotion him” up. After she finished rubbing lotion on him, Barnes told Jane Doe 1 she “‘didn’t get everywhere[,]’” removed his towel, and directed her to rub lotion on his erect penis. She did not want to do it, but Jane Doe 1 complied. Afterwards, Barnes told her to not tell her mother “‘because she will kill me.’” Later that day, Barnes told Jane Doe 1 to lie on her bed on her stomach. He pulled her bottoms to the side and pushed his penis against her anus, asking her if it felt good. He stopped when she told him to get off.
One evening around Christmas time, Barnes followed Jane Doe 1 into the garage, turned off the lights, came up behind her, and removed her belt. Barnes said he was “‘going to show [her] what grinding means[.]’” He stuck his tongue in her mouth and touched her breasts. On two other occasions, Barnes took Jane Doe 1’s hand and rubbed it on his penis. Another time, Barnes took Jane Doe 1 into the bathroom, exposed his penis, and began masturbating in front of her.
One morning before school, Barnes came into Jane Doe 1’s room, woke her, and told her to take her pants off. She did. He put his tongue in her vagina. Later the same day, Barnes exposed his penis to Jane Doe 1, and told her “to lick it[.]” When Jane Doe 1 asked “why[,]” Barnes said, “‘because [your stepsister, i.e., Jane Doe 2] and your mom does it.’” Jane Doe 1 told Barnes to leave, and he did, but he returned shortly and put her down on the ground telling her to “hump him real quick.” Jane Doe 1 tried to break free, but Barnes held her for a few minutes, during which time Jane Doe 1 could see that Barnes’s penis was red and “clear stuff” was coming out.
On another morning before school, Barnes again entered Jane Doe 1’s room and woke her. He pulled up her nightgown, pulled down her underpants, and attempted to insert his penis into her vagina, but could not.
Jane Doe 1 testified Barnes tried unsuccessfully about 13 times (over the year she lived with Barnes) to insert his penis into either her vagina or her anus, on occasion telling Jane Doe 1 that her stepsister (i.e., Jane Doe 2) “‘did this [and] she made me feel good.’” Jane Doe 1 testified it hurt when Barnes tried to penetrate her.
Jane Doe 1’s mother testified when she learned about the sexual abuse, she confronted Barnes. He cried and said he could not remember anything, because he was high on cocaine or drinking. He apologized saying “he never meant to hurt nobody[,]” which the mother understood as an admission he had been molesting Jane Doe 1. Barnes told his wife he was “sick” and threatened her for “not sticking by [his] side.” In a meeting with their pastor, Bobby Newman, when Barnes said he could not remember anything because he was high, the pastor told Barnes “‘if you don’t know, say no and stick with no.’”
Jeanie Ming was the pediatric nurse practitioner who conducted a sexual abuse examination on Jane Doe 1 in April 2004. During the examination, Ming inserted examination applicators about one-half of an inch into Jane Doe 1’s vagina and anus. Both times Jane Doe 1 said, “that’s how it felt” when Barnes attempted to insert his penis into her.
Jane Doe 2
Jane Doe 2, Barnes’s daughter, testified her father repeatedly molested her from 1999 to 2003, beginning when she was in the fourth grade and ending around the eighth grade. The first occurrence was on Christmas Eve 1999 when Jane Doe 2 was 10 years old. She was on the floor, when Barnes came up to her with his pants off and “rubbed his penis on [her] behind.” After he ejaculated on her, Barnes instructed Jane Doe 2 to change her clothes. He later said he was sorry.
Jane Doe 2 testified the first instance of vaginal intercourse with her father occurred in her bedroom. Barnes entered the room while Jane Doe 2 was asleep, pulled down her covers, and “had sex with [her.]” Jane Doe 2 testified that over the course of three years, Barnes had vaginal intercourse with her many times. She lost count, but it was more than 30 times. Jane Doe 2 testified Barnes inserted his penis into her anus on three occasions and it was painful. Barnes frequently fondled Jane Doe 2’s breasts and often had her orally copulate him.
The last occurrence of sexual molestation by Barnes was in the summer of 2003 when Jane Doe 2 was 13 years old. Afterwards, Jane Doe 2 told Barnes she “didn’t want him as [her] father any more.” Jane Doe 2 felt so badly she “want[ed] to commit suicide[.]” Finally, in 2004, Jane Doe 2 told her mother about the abuse.
Karen Katz was the pediatric nurse practitioner who examined Jane Doe 2 in February 2004. Katz performed most of the child sexual and physical abuse examinations in the hospital at which she worked—having performed thousands of such examinations over the past 20 years.
In her examination of Jane Doe 2, Katz saw no signs of vaginal trauma. Katz did not find that unusual “since [the] molestation had been chronic over a few years and there had been nothing real recent. We don’t expect, unless you have had recent bleeding, to see anything because most things heal within a couple weeks.” Katz explained the hymen is a “mucous membrane” and although it can tear during intercourse, within a couple of weeks it can be completely healed and “you really can’t tell that anything has happened or that it has been torn.”
Veronica Thomas, a clinical psychologist, testified about Child Sexual Assault Accommodation Syndrome (CSAAS). The typical CSAAS victim is a girl who has been molested by her father. Children who have been abused by a familiar adult (such as a parent) will often not report the abuse because they think they will not be believed. CSAAS victims can become “psychologically confused,” will rarely provide “whole disclosure,” and sometimes it can take years for them to tell about the abuse even in a limited way. Thomas said it is not uncommon for such victims to “tak[e] back” what they previously disclosed, or “to tell one thing one day and tell something else on another[.]”
Defense
Barnes presented expert testimony from a gynecologist, Dr. Gunther Bauer. Bauer testified based on a hypothetical, that if an adult male was having repeated vaginal intercourse with a nine or 10-year-old girl, he would expect to see permanent vaginal scarring. The lack of evidence of vaginal scarring on either Jane Doe 1 or Jane Doe 2 made him doubt there had been vaginal penetration. On cross-examination, Bauer conceded he had no familiarity with pediatrics. He was completely unfamiliar with any of the studies concerning the healing of genital trauma in child sexual abuse victims because “they are all pediatric articles.”
Barnes’s pastor denied that Barnes suggested he might have molested Jane Doe 1. A social worker testified that in April 2004, Jane Doe 1’s mother told her Jane Doe 2 had “a history of making outrageous lies,” had once falsely accused her own mother of physical abuse, and was upset that Barnes had recently stopped giving her money. Barnes’s cousin testified that Jane Doe 1 had told her about being asked by Barnes to rub lotion on him, but Jane Doe 1 never said anything about putting lotion on Barnes’s penis. The cousin also testified Jane Doe 2 never said anything to her about being molested.
Procedural Facts
A felony complaint charged Barnes with multiple felony counts of committing lewd and lascivious acts upon a child under the age of 14 in violation of section 288, subdivision (a)— three counts as to Jane Doe 1 and four counts as to Jane Doe 2. Each count carried with it allegations of multiple victims and substantial sexual conduct making Barnes ineligible for probation pursuant to section 1203.066, subdivision (a)(7) and (8). A jury found Barnes guilty of all seven counts as charged and found all the special allegations to be true. Barnes was sentenced to a total term of 18 years in prison.
DISCUSSION
1. Sufficiency of Evidence
Barnes raises four separate arguments concerning the sufficiency of the evidence supporting his convictions. None are supported by any legal analysis or supporting authorities. We describe each argument separately, but consider them collectively and reject his contentions.
Barnes’ first argument is that there is insufficient evidence supporting the Jane Doe 1 counts (counts 1-3) because the child lacked credibility. Jane Doe 1 testified that on several occasions Barnes attempted to penetrate her vagina and her anus with his penis. But Barnes’s expert, Bauer, testified that had vaginal penetration occurred, he would expect to see permanent signs of injury. Barnes argues the fact the examination reports did not indicate any permanent physical injury, shows Jane Doe 1 was lying about there having been vaginal or anal penetration and thus about the sexual abuse.
Barnes’s second argument is that there is insufficient evidence supporting the Jane Doe 2 counts (counts 4-7) because Jane Doe 2 also lacked credibility. Barnes argues Jane Doe 2’s testimony about numerous instances of vaginal and anal penetration by Barnes was inherently unbelievable because “it is extremely remarkable that [he] would have sexual intercourse and anal intercourse with two teenage girls.” He again argues the lack of evidence of permanent physical injury to Jane Doe 2 demonstrates she too was lying.
Barnes’s third argument is that both victims lacked credibility because neither went immediately to their mothers to complain about the sexual abuse. Jane Doe 1 testified she did not tell her mother because she feared her mother would not believe her. Barnes argues the mere fact Jane Doe 1 thought her own mother would not believe her “should’ve spoken volumes to the jury” demonstrating how preposterous the child’s testimony was. Barnes asserts Jane Doe 2 had numerous opportunities to tell her mother about the sexual abuse, but similarly did not. Furthermore, during the years of the alleged abuse, Jane Doe 2 was alternately living with her mother and with Barnes. Barnes argues his daughter could have told her mother she did not want to live with her father, but she did not, proving he had done nothing improper.
Barnes’s final argument is that because there was no evidence of permanent physical injury to corroborate the girls’ claims of vaginal and anal penetration, and the girls did not immediately report the alleged sexual abuse to their mothers, “[t]here was more than reasonable doubt in this case” of his guilt. And, because due process precludes conviction except on proof beyond a reasonable doubt, Barnes’s convictions must be reversed.
a. Standard of Review
“The standard of review is well settled: On appeal, we review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible and of solid value —from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] ‘“[I]f the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness’s credibility for that of the fact finder.”’ [Citation.]” (People v. Snow (2003) 30 Cal.4th 43, 66.) “Before the judgment of the trial court can be set aside for the insufficiency of the evidence, it must clearly appear that on no hypothesis whatever is there sufficient substantial evidence to support the verdict of the [finder of fact]. [Citation.]” (People v. Hicks (1982) 128 Cal.App.3d 423, 429.)
A judgment is presumed correct, and “it is the appellant’s burden to affirmatively demonstrate error. [Citation.] Thus, when a criminal defendant claims on appeal that his conviction was based on insufficient evidence of one or more of the elements of the crime of which he was convicted, we must begin with the presumption that the evidence of those elements was sufficient, and the defendant bears the burden of convincing us otherwise. To meet that burden, it is not enough for the defendant to simply contend, ‘without a statement or analysis of the evidence, . . . that the evidence is insufficient to support the judgment[ ] of conviction.’ [Citation.] Rather, he must affirmatively demonstrate that the evidence is insufficient.” (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573.) To do that, “the defendant must set forth in his opening brief all of the material evidence on the disputed elements of the crime in the light most favorable to the People, and then must persuade us that evidence cannot reasonably support the jury’s verdict.” (Id. at p. 1574.)
Barnes has completely failed to demonstrate error. As the Attorney General aptly notes, Barnes has simply “presented [us] with a very unpersuasive ‘closing argument’ . . . .”
Barnes was convicted of violating section 288, subdivision (a), which provides, “Any person who willfully and lewdly commits any lewd or lascivious act . . . upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony . . . .” Substantial evidence supports the convictions.
Jane Doe 1 testified to repeated acts of sexual abuse she endured from Barnes during 2003 when she was nine years old. She testified that on one occasion, Barnes directed her to rub lotion on his erect penis. Later that same day, he pulled her bottoms aside and pushed his penis against her anus. Once, he approached her saying he was “‘going to show [her] what grinding means,’” stuck his tongue in her mouth and touched her breasts. On other occasions, he placed her hand on his penis and masturbated in front of her. Jane Doe 1 testified to several encounters with her stepfather in which he attempted to insert his penis into her vagina, or her anus, but could not.
Jane Doe 2 testified about repeated acts of molestation by Barnes from 1999 through 2003. The occurrences began when she was 10 years old with Barnes rubbing himself against her. Jane Doe 2 testified to numerous incidents in which Barnes penetrated her vagina and anus with his penis. She testified Barnes frequently fondled her breasts and had her orally copulate him.
Barnes first complains about the lack of medical evidence that either girl suffered permanent physical injury as proof no sexual molestation occurred. He points to testimony from his expert who doubted there had been vaginal penetration of either girl because of the lack of permanent vaginal scarring. But, penetration is not an element of the offense. (See People v. Martinez (1995) 11 Cal.4th 434, 452 [“[S]ection 288 is violated by ‘any touching’ of an underage child accomplished with the intent of arousing the sexual desires of either the perpetrator or the child”].)
Furthermore, Barnes completely ignores the conflicting testimony. As to Jane Doe 1, there was substantial evidence of some penetration based on the child’s testimony. (See People v. Harrison (1989) 48 Cal.3d 321, 329 [under rape and sodomy statutes any “‘penetration,’ however slight, ‘completes’ the crime”].) The gist of Jane Doe 1’s testimony was that Barnes repeated attempted to insert his penis into her vagina and anus, but was unsuccessful. Her testimony was corroborated by the sexual abuse examiner who testified that when she inserted an applicator one-half inch into the child’s vagina and anus, the child reported “that’s how it felt[]” when Barnes was touching her.
As to Jane Doe 2, the nurse practitioner who examined her had conducted thousands of such pediatric abuse examinations over the past 20 years. She testified the lack of permanent vaginal trauma was not surprising because there had not been any recent acts. The sexual abuse examiner explained that injuries can be completely healed within weeks and “you really can’t tell that anything has happened . . . .” Barnes’s expert witness testified he had absolutely no familiarity with pediatrics and had not read any of the studies on the healing of genital trauma in children.
Barnes’s assertion the victims were inherently unbelievable, as underscored by both girls’ failure to immediately inform their mothers about his sexual abuse, is similarly without merit. “[I]t is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.]” (People v. Maury (2003) 30 Cal.4th 342, 403.) Furthermore, Barnes again ignores the record. The prosecution presented testimony from a clinical psychologist about CSAAS. She explained that a child abused by a familiar adult often does not report the abuse because they think they will not be believed.
Finally, as to Barnes’s argument that we must find there is a reasonable doubt as to whether he sexually molested his daughter and stepdaughter, “[i]t is the jury, not the appellate court which must be convinced of the defendant’s guilt beyond a reasonable doubt.’” (People v. Stanley (1995) 10 Cal.4th 764, 792-793.) Our task on review is only to decide if substantial evidence supports the jury’s conclusion. Barnes has failed to demonstrate his convictions are not supported by substantial evidence.
2. Admissibility of Evidence
Barnes contends the trial court erred by precluding him from questioning Jane Doe 2 about allegations of physical abuse she had once made against her mother. We conclude Barnes has failed to demonstrate any reversible error.
We begin with factual background. At the beginning of trial, the prosecutor asked the court to preclude the defense from questioning Jane Doe 2 about a statement she had made to her psychotherapist in 2000 (when she was 10 years old) that her mother had once physically abused her. The prosecutor advised the court that when he interviewed Jane Doe 2 before trial, she said the claim was false. The court asked defense counsel what his theory of admissibility of the evidence would be, asking, “[is it] just that it’s impeachment evidence that she’s made false claims of physical abuse in the past and so, therefore, the jury should hear that when now she’s making claims of sexual abuse[?]” Counsel explained the evidence was relevant to show a pattern of Jane Doe 2 “mak[ing] these outlandish statements . . . .” The court indicated it might permit the questioning if defense counsel could come up with a theory of admissibility other than “just purely specific . . . character evidence . . . .”
During cross-examination of Jane Doe 2, defense counsel asked if she had “any problems at school or anything[]” during the time the alleged sexual abuse was taking place. Jane Doe 2 replied she “wanted to commit suicide[]” as a result of the sexual abuse.
At the beginning of the defense case, the issue of whether the court would admit evidence of Jane Doe 2’s claim her mother had physically abused her came up. The court indicated it had two documents offered by the defense obtained from Jane Doe 2’s medical records. The first was medical chart notes by a psychiatrist from 2000, in which the examiner noted the girl said that once her mother grabbed her by the arm, scratched her, and slapped her on the face when they were out shopping. The other document was a psychological evaluation questionnaire the child filled out in 2002 containing statements concerning how she felt about her parents. The court invited defense counsel to offer a basis for admitting the documents. Defense counsel argued the evidence would impeach Jane Doe 2’s testimony elicited by him on cross-examination that sexual abuse by her father caused her to contemplate suicide. Counsel explained he would recall Jane Doe 2 to the stand and question her about her real reasons for wanting to commit suicide—“was it your mother that you were concerned about or was it your father[?]” The court ruled the evidence was inadmissible, and commented the defense had no right to impeach testimony it had elicited on cross-examination. Furthermore, the court surmised the real reason for the evidence was to impeach Jane Doe 2’s character with evidence she had in the past accused her mother of an act of physical abuse. The court did not rule on the prosecution’s objection that the evidence was precluded by the psychotherapist-patient privilege. (See Evid. Code, §§ 1010-1014.)
Barnes contends the court abused its discretion by not permitting him to recall Jane Doe 2 to question her about her statement to her psychiatrist that her mother had once physically abused her. His precise argument is difficult to decipher—he relates in great detail what transpired in the trial court, but offers absolutely no legal analysis as to why the court’s ruling was in error or how he was prejudiced. We will address what we are able to glean from his brief to be his arguments: (1) evidence Jane Doe 2 told a psychiatrist she had once been hit by her mother was admissible as a prior inconsistent statement to impeach her testimony that years of sexual abuse by her father made her contemplate suicide—the statement would show her depression was due to problems the child was having with her mother and not due to “anything that the defendant did”; and (2) the evidence was admissible to impeach Jane Doe 2’s credibility as to claims of sexual abuse by her father because she had fabricated the claim about her mother.
“[A]n appellate court applies the abuse of discretion standard of review to any ruling by a trial court on the admissibility of evidence. [Citations.]” (People v. Waidla (2000) 22 Cal.4th 690, 717.) We will not disturb an exercise of discretion unless it is “arbitrary, capricious or patently absurd[.]” (People v. Jordan (1986) 42 Cal.3d 308, 316.) Furthermore, even when there is error, “In order to obtain a reversal based on the erroneous exclusion of evidence, [the appellant] must show that a different result was probable if the evidence had been admitted. [Citations.]” (Karlsson v. Ford Motor Co. (2006) 140 Cal.App.4th 1202, 1223; see Evid. Code, § 354.) Barnes has failed to demonstrate error.
The evidence was not admissible as a prior inconsistent statement. (Evid. Code, § 1235 [“[e]vidence of a statement made by a witness is not made inadmissible by the hearsay rule if the statement is inconsistent with his testimony at the hearing . . .”].) As the court questioned—what was it inconsistent with? Jane Doe 2 was never questioned about her claim she had been physically abused by her mother. On cross-examination by the defense, Jane Doe 2 said she felt suicidal because of the continuous sexual abuse by her father. Her statement to a psychiatrist that her mother had once hit her was not inconsistent with that testimony.
Barnes has also failed to establish the court abused its discretion by finding the evidence to be inadmissible character evidence. Evidence of specific instances of a person’s conduct is generally inadmissible to prove his or her conduct on a specified occasion. (Evid. Code, § 1101, subd. (a).) Although Evidence Code sections 780 allows evidence probative of a witness’s credibility, and Evidence Code section 1103, subdivision (a), allows evidence of a victim’s trait of character to prove the victim’s conduct in conformity with that trait of character, Barnes has not put forth either section as a legal basis for admitting the evidence.
Even were we able to conclude the trial court abused its discretion by excluding the evidence, Barnes has not argued (let alone demonstrated) it is reasonably probable a more favorable result “would have been reached in the absence of the erroneous exclusion.” (People v. Sanders (1995) 11 Cal.4th 475, 510; People v. Watson (1956) 46 Cal.2d 818, 836.) Barnes argues the evidence would have shown Jane Doe 2 had a propensity for making false accusations. But, the proffered evidence did not involve similar facts. Jane Doe 2’s claim against her mother was that one time she hit her; the claim against her father was that for three years he was repeatedly sexually abusing her. Jane Doe 2’s testimony about the molestation by her father is completely consistent with the sexual abuse suffered by Jane Doe 1. Both girls gave strikingly similar accounts of the molestation. Furthermore, Barnes was able to get the evidence before the jury via a social worker who testified that Jane Doe 1’s mother said Jane Doe 2 had once “made a false physical abuse report against her own mother[.]”
DISPOSITION
The judgment is affirmed.
WE CONCUR: RYLAARSDAM, ACTING P. J., BEDSWORTH, J.