Opinion
C078823
07-03-2018
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL ALAN RUMRILL, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 13F5469)
Defendant Michael Alan Rumrill molested his girlfriend's daughter repeatedly. He contends insufficient evidence supports five of his 11 convictions of oral copulation with a child and three of his five convictions of providing lewd material to a minor. He also contends the trial court erred when it (1) refused to admit evidence of his girlfriend's mental health history; (2) forbid a defense expert witness from basing her opinion on defendant's statements to her; and (3) did not provide the jury with transcripts of videotaped interviews of the victim during its deliberations.
We reject defendant's contentions and affirm the judgment.
FACTS AND PROCEEDINGS
A.H. and her daughter E. moved in with defendant in 2009. E. was four-years old. Defendant was 52.
On August 14, 2013, A.H. planned to go to the store with E. E. went to defendant's detached workshop to show him her outfit and say goodbye. A.H. waited for E. in her truck, but when E. didn't come, she drove up to the workshop. As she opened the shop's door, E. jumped off of defendant's lap "very quickly." A.H. noticed defendant's partial erection underneath his pants.
A.H. drove E. a short distance, stopped, and asked her what happened in the shop. E. said defendant sucked on her ear and touched her "privates."
Nine-years old at trial, E. testified defendant first touched her "privates" when she was six years old. Saying the names of genitals embarrassed E., so in their place, she used the word "privates." One time, she was in his shop; she was hanging on a rope and defendant pulled her up and down. She sat on one of his shop chairs, and he touched her privates. Defendant touched E.'s privates in his shop more than five times.
E. touched defendant's "privates" in the shop. It looked like a "flattened crayon." This happened more than once. Liquid would come out of his privates once she was done touching. Defendant was not wearing clothes on those occasions.
At times in the shop, defendant rubbed his privates on her privates. When that happened, she would sit on one of the shop chairs wearing no clothes. This happened twice.
Defendant also molested E. in his bedroom inside the house. Defendant had her shower, and then he showered. Afterward, he took her into his room and they laid on defendant's bed. He rubbed her privates and had her rub his. He rubbed her privates in the house more than five times, and she rubbed his four times.
In the shop, defendant had E. put her mouth on his private. This happened at least three times. Sometimes, he had it in too far and it hurt her throat. Once, white "stuff" came out of his private and went in her mouth. It was hot. E. had originally gone to the shop to tell defendant dinner was ready or there were messages from her mom.
Also in the shop, defendant put his tongue on her privates. This happened more than five times. Afterward, white liquid came out of his private every time. Sometimes the liquid splashed on her clothes. Before the liquid came out, defendant shook his private with his hands.
E. watched movies with defendant. They showed naked adults who did the things defendant did to her. She watched these movies more than once. After watching, defendant did the things they saw in the movies on her.
E. kissed defendant at times. Sometimes, the kisses would be like those she gave her mom. Other times, defendant put his tongue in her mouth.
Defendant kept a container in his shop that held a clear gel. Defendant rubbed the gel on his privates and once or twice on her privates.
Once, defendant used a pink vibrator on E.'s privates outside her clothes while she was lying on her bed.
The last time defendant touched E., she had gone to his shop to show him her outfit before she went to the store. While she played with a portable electronic game, he rubbed her privates with his hand over her clothes and sucked her ear. He stopped when her mom walked in.
Detective Lisa Orner of the Shasta County Sheriff's Department interviewed E. on two occasions. The interviews were videotaped, and the recordings were played to the jury. The first interview occurred on August 19, 2013, five days after A.H. had walked in on defendant and E. in defendant's shop. E. recalled the molestations began when she was six years old. She asked defendant how she was born. He answered her and showed her his penis. It looked like a flattened crayon. His penis also touched her vagina. Defendant licked her vagina approximately five times in the house and 10 times in his shop.
E. told Detective Orner that defendant had her touch his penis with her hand, showed her pornographic movies in the house and in his shop, and put his penis in her mouth. Sometimes when he rubbed his penis on her vagina, it would hurt a little, like a pinch. Once, she had to get on her knees when defendant put his penis in her mouth. Afterward, as she walked out, "white stuff" came out of his penis. E. never told defendant "no" because she was afraid. She wanted to tell her mother, but she was afraid her mother would get mad at her.
Detective Orner interviewed E. a second time on August 27, 2013. E. recounted the sexual molestations. E. believed defendant rubbed her vagina when they were in his bedroom "maybe ten" times, and he molested her in the garage "around 20" times. He showed her pornographic movies five or six times.
Detective Orner also participated in searching defendant's home. In defendant's bedroom, she saw a jar of Vaseline with a blue lid in the master bedroom on the bed's right side. She also found boxes of several different kinds of pornographic CDs and DVDs interspersed with children's videos.
Defendant testified. He denied ever touching E. inappropriately or showing her pornographic movies. We will discuss additional evidence as needed.
A jury found defendant guilty of 11 counts of oral copulation with a child 10 years of age or younger (Pen. Code, § 288.7, subd. (b); statutory section references that follow are to the Penal Code unless otherwise stated), 10 counts of committing a lewd or lascivious act on a child under 14 years of age (§ 288, subd. (a)), and five counts of providing lewd material to a minor (§ 288.2, subd. (a)). The jury also found true that defendant had substantial sexual contact with a victim under 14 years of age on each of the lewd act counts. (§ 1203.066, subd. (a)(8).)
The trial court sentenced defendant to prison for 29 years four months plus 165 years to life. It calculated the sentence as follows: eight years on one of the lewd act counts plus consecutive two-year terms for each of the remaining nine lewd act counts, consecutive eight-month terms for each of the five counts of providing lewd material to a minor, and consecutive terms of 15 years to life for each of the 11 oral copulation counts.
DISCUSSION
I
Sufficiency of the Evidence
Defendant contends insufficient evidence supports three of his five counts of providing lewd material to a minor and five of his 11 counts of oral copulation with a child. He asserts E. did not describe the criminal acts with sufficient certainty to support the convictions. In particular, she did not know how many times they happened. We conclude sufficient evidence supports all of the convictions.
"[I]n determining the sufficiency of generic testimony, we must focus on factors other than the youth of the victim/witness. Does the victim's failure to specify precise date, time, place or circumstance render generic testimony insufficient? Clearly not. . . . [T]he particular details surrounding a child molestation charge are not elements of the offense and are unnecessary to sustain a conviction. [Citations.]
"The victim, of course, must describe the kind of act or acts committed with sufficient specificity, both to assure that unlawful conduct indeed has occurred and to differentiate between the various types of proscribed conduct (e.g. lewd conduct, intercourse, oral copulation or sodomy). Moreover, the victim must describe the number of acts committed with sufficient certainty to support each of the counts alleged in the information or indictment (e.g., 'twice a month' or 'every time we went camping'). Finally, the victim must be able to describe the general time period in which these acts occurred (e.g., 'the summer before my fourth grade,' or 'during each Sunday morning after he came to live with us') to assure the acts were committed within the applicable limitation period. Additional details regarding the time, place or circumstance of the various assaults may assist in assessing the credibility or substantiality of the victim's testimony, but are not essential to sustain a conviction." (People v. Jones (1990) 51 Cal.3d 294, 315-316, original italics.)
Defendant does not contend E.'s testimony insufficiently described the kinds of acts committed or the general time period in which they occurred. Rather, he asserts E. did not describe the number of acts committed with sufficient certainty to support five of the oral copulation convictions and three of the convictions for providing lewd material. Her testimony as to the number of incidents was inconsistent. "Such indecisive, equivocal, uncertain testimony," defendant argues, "is insufficient to support a conviction."
We disagree. Even though E.'s testimony at trial and her statements to Detective Orner were at times inconsistent, "the inconsistency went only to the weight and credibility of the evidence and, on appeal, we do not disturb the jury's resolution of that inconsistency." (People v. Tompkins (2010) 185 Cal.App.4th 1253, 1260, 1261 [court upheld convictions for 11 counts of lewd acts on a minor because the victim testified defendant molested her "more than once but less than 50 times" and told an investigator he molested her " 'on many occasions' " over two years].)
E. testified oral copulation occurred many times. In the shop, defendant put his penis in her mouth more than once and at least three times. Sometimes, the penetration hurt her throat. Once, ejaculate went into her mouth. Defendant licked her vagina in the shop more than once and more than five times. Afterward, defendant would ejaculate, and sometimes it would splash on her clothes.
E. told Detective Orner in the first interview that defendant licked her vagina in the house "maybe a little bit more" than five times and licked her in the shop about 10 times. E. also remembered an incident when he had her get on her knees in order to copulate him orally.
From this evidence, the jury could have reasonably concluded defendant orally copulated E. 15 times and had her orally copulate him three times. Sufficient evidence as to the number of incidents of oral copulation thus supports defendant's 11 convictions of the crime.
Sufficient evidence also supports defendant's five convictions of providing lewd material. E. testified she watched pornographic movies with defendant more than once but could not remember how many times. In her first interview with Detective Orner, E. said she watched pornographic movies in the house and sometimes in his shop.
Earlier in the interview, E. answered questions about colors using seven crayons. Detective Orner asked her if the number of times she watched pornographic movies was more than the seven crayons. E. said, "maybe more—less than that."
In the second interview, E. stated she did not remember watching pornographic movies in the house. However, she said she watched the movies "five or six times."
From this evidence, the jury could reasonably conclude defendant showed E. pornographic movies at least five times, the number of convictions defendant received for this crime. Sufficient evidence thus supports all of defendant's convictions for oral copulation and providing lewd material to a minor.
II
Evidence of Mental Health History
Defendant contends the trial court abused its discretion and denied him his constitutional rights when it denied his request to impeach A.H.'s testimony with evidence of her mental health history. He claims A.H. was a crucial prosecution witness, and evidence of her mental health would have cast doubt on her credibility and her ability to observe, remember, and relate relevant information.
The trial court did not abuse its discretion. Defendant introduced no evidence establishing how the mental health history was relevant to impeach A.H.'s ability to receive, recall, or describe the events in question.
A. Background
The prosecution sought to exclude evidence of A.H.'s prior drug use and alleged psychiatric problems. Defendant opposed and argued the evidence was relevant to impeach her credibility. He sought to introduce a letter purportedly written by A.H. in 2008 in which she stated she suffers from "depression, anxiety disorder, post traumatic stress syndrome, and mood swings."
The trial court denied defendant's request. The information in the letter was not relevant to A.H.'s ability to tell the truth. The letter was apparently written in 2008, and defendant did not know where it actually came from. In the letter, A.H. related the physical effects she experienced from taking medications, and she asked for treatment by a different doctor. "There is no indication," the court stated, "that any of that has affected her ability to perceive or be truthful."
Defendant also sought to admit a document entitled "Statement of Parental Incapacity," dated October 29, 2008, which purported to be an application by A.H. for child care and development services due to a medical condition that rendered her incapable of caring for E. On the form, A.H. indicated she suffered from "post-traumatic stress disorder with mood swings, depression, hypomania, lack of self confidence and severe anxiety."
The trial court refused to allow defendant to introduce this document. It said, "I'm not going to allow you to go into that line of questioning either. It is not relevant to these proceedings."
B. Analysis
Defendant asserts the court erred when it refused to admit the two documents. It did not.
Evidence Code section 780 states: "Except as otherwise provided by statute, the court or jury may consider in determining the credibility of a witness any matter that has any tendency in reason to prove or disprove the truthfulness of his testimony at the hearing, including . . . . [¶] . . . [¶] (c) The extent of his capacity to perceive, to recollect, or to communicate any matter about which he testifies." "[T]he mental illness or emotional instability of a witness can be relevant on the issue of credibility, and a witness may be cross-examined on that subject, if such illness affects the witness's ability to perceive, recall or describe the events in question." (People v. Gurule (2002) 28 Cal.4th 557, 591-592, italics added.) The trial court has "broad discretion" to determine whether to admit such evidence. (People v. Herring (1993) 20 Cal.App.4th 1066, 1072.)
" 'Factors a court should consider in allowing in such evidence are the nature of the psychological problem, the temporal recency or remoteness of the condition, and whether the witness suffered from the condition at the time of the events to which she is to testify.' [Citation.] For example, a mental illness that causes hallucinations or delusions is generally more probative of credibility than a condition causing only depression, irritability, impulsivity, or anxiety. [Citations.] And a trial court generally may preclude cross-examination about psychiatric treatment occurring many years before the trial or hearing at which the witness testifies and long before the events to which the witness testifies. [Citations.]" (People v. Anderson (2001) 25 Cal.4th 543, 608-609 (conc. opn. of Kennard, J.).)
The court did not abuse that discretion by excluding the documents. The mere existence of mental illness is not enough to justify cross-examining a witness on that history. Defendant must also show the illness or history affects the witness's ability to perceive, recall, or describe the events. Defendant made no showing that A.H.'s depression, anxiety, post-traumatic stress disorder, mood swings, hypomania, and lack of self confidence in 2008 affected her ability to perceive, recall, or describe the events she saw and heard in 2013 and testified to in 2014.
Other factors support the trial court's decision. Both documents were dated some five years before A.H. knew defendant was molesting E. There was also no evidence A.H. suffered from any conditions at the time she became aware of the abuse and afterward that affected her cognitive abilities. Because there was no evidence that A.H.'s mental health history was relevant to her credibility, the court did not abuse its discretion or violate defendant's constitutional rights in excluding the documents.
III
Limitation on Expert's Testimony
Defendant contends the trial court erred when it ruled a defense psychologist could not rely on his statements to her as a basis for her expert opinion regarding his sexual deviancy. Despite the trial court's ruling, however, the expert stated she did in fact rely on defendant's statements in part to reach her conclusions. Thus, even if the trial court erred, a point we do not decide, defendant cannot show prejudice.
A. Background
Defendant filed a pretrial motion to introduce expert testimony of his character for nondeviant sexual behavior. The prosecution asked the court to limit the expert witness's testimony. It argued the expert should not be allowed to testify concerning the contents of defendant's statements to her, as that would present inadmissible hearsay to the jury. It also argued the expert should not be allowed to rely on defendant's statements as a basis for her opinion, as his statements were inherently unreliable and self-serving.
The trial court agreed with the prosecution on these points. It would not allow the expert to testify to defendant's statements to her because those statements were hearsay. It also would not allow her to base her opinion on defendant's statements. She could base her opinion only on the testing she performed on defendant. The court stated, "I don't think there is any problem with her saying she interviewed the defendant. [¶] . . . [¶] She just can't go into what he said."
At trial, defendant's expert witness, Dr. Baljit Atwal, a psychologist, testified she administered objective psychological tests to defendant. Defendant tested low in sexual deviancy and low on measures of criminal behavior and psychopathy. One test showed his "drug scale" was elevated, which, Dr. Atwal said, "was consistent with" "his clinical history that he had told me. His self-report."
Dr. Atwal concluded the testing was consistent. She stated she relied on multiple sources of information to reach her conclusion, including the test data, defendant's clinical history, and other relevant sources.
On cross-examination, Dr. Atwal said she spent a total of six hours interviewing defendant and administering the tests. She uses psychological tests in part to determine how truthfully a client is reporting and speaking to her. When she reports the test findings, she is "purely" reporting those findings, independent of what defendant said to her. However, her "final conclusions put all the pieces together so it's like the pieces of a puzzle."
Outside the presence of the jury, Dr. Atwal stated that during the interview, she took a "psycho-social history" of defendant. She said a psycho-social history "is the autobiography or the biography and the key events in that individual's life. [¶] . . . [¶] [It] is pretty much what he told me about his life." It included his sexual history.
B. Analysis
Defendant asserts the trial court's decision not to allow Dr. Atwal to rely on his statements as a basis for her opinion was prejudicial error because it "reduced the weight and convincing nature" of Dr. Atwal's opinion. He argues her opinion that he tested low for sexual deviancy would have carried more weight had the jury known it was based on her conversations with him.
The jury, however, knew Dr. Atwal's final opinion was based in part on his statements to her. Dr. Atwal explained that the testing, including the test regarding defendant's sexual deviancy, did not rely on defendant's statements to her. That was not because of a court order. Rather, she reports the test's findings independent of what defendant told her. Then, when she makes her final conclusions, she puts "all the pieces together." Those "pieces" included defendant's clinical history, which Dr. Atwal told the jury was the information defendant told her, his "self-report." She informed the jury she relied on "multiple sources" to reach a conclusion, including defendant's clinical history. And she used the tests in part to check how truthfully defendant had spoken with her.
Contrary to defendant's assertions, the jury knew Dr. Atwal relied on defendant's statements to reach her final conclusion. Armed with that information, it nonetheless found defendant guilty. Defendant thus cannot show he was prejudiced by the trial court's ruling, for had the court allowed Dr. Atwal to state she relied on defendant's statements as a basis for her opinion, as she stated she did, the jury would have returned the same verdicts.
IV
Interview Transcripts
The trial court did not allow the jury to take transcripts of E.'s videotaped interviews with Detective Orner into the deliberation room. It informed the jury the transcripts were someone else's interpretation of what was said in the interview and were not admitted into evidence. It instructed the jurors to rely only on their own recollections of what was said. They could listen to the recordings again if they wanted.
Defendant contends the trial court erred when it refused to allow the transcript into deliberations. He has forfeited this contention by not raising it at trial or asking the court to provide the jury with the transcripts. (See People v. Sims (1993) 5 Cal.4th 405, 448 [failure to object to transcript's submission to jury forfeits arguments concerning its authenticity].)
Had defendant not forfeited the contention, we would reject it on its merits. A transcript of a recorded statement may be taken into the deliberation room "in order to help [the jury] understand the recording while it [is] being played." (People v. Beverly (1965) 233 Cal.App.2d 702, 718; People v. Fujita (1974) 43 Cal.App.3d 454, 473; § 1137.) Nevertheless, "what may be taken by the jury into the jury room is left to the sound discretion of the trial court." (People v Walker (1957) 150 Cal.App.2d 594, 603.)
Defendant claims the court abused its discretion. He asserts one may assume the jury listened to the recordings during deliberations, and the transcripts would have assisted the jurors in weighing the inconsistencies between the recorded evidence and the evidence presented at trial. Those inconsistencies, he argues, could have raised a reasonable doubt.
The court did not abuse its discretion. It was well within its discretion not to send the transcripts into the jury room, particularly when they were not admitted into evidence. The court correctly stated the transcripts were one person's interpretation of the interviews, and it could reasonably want the jurors to rely on their own interpretations and not be influenced by someone who was not a juror. They were able to replay the videotapes if they desired to refresh their recollections. Moreover, having heard all of the testimony, the jurors were well aware of the inconsistencies in E.'s testimony, and they still found defendant guilty beyond a reasonable doubt. Submitting the transcripts to the jury room thus would not have resulted in a more favorable verdict for defendant.
DISPOSITION
The judgment is affirmed.
HULL, Acting P. J.
We concur:
HOCH, J.
RENNER, J.