Opinion
No. 22502-0-III
Filed: May 12, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Benton County. Docket No: 02-1-00187-8. Judgment or order under review. Date filed: 09/26/2003. Judge signing: Hon. Carolyn A. Brown.
Counsel for Appellant(s), Sharon Marie Brown, Attorney at Law, PO Box 2173, Hillsboro, OR 97123-2173.
Counsel for Respondent(s), Scott Wayne Johnson, Benton County Prosecutors Office, M/S G, 7122 W Okanogan Pl, Kennewick, WA 99336.
During the jury trial of Cuauhtemoc Aleman on charges of third degree rape of a child and third degree molestation of a child, the State presented evidence of Mr. Aleman's prior `grooming' of the victim. He was convicted of all charges and now appeals, contending the trial court erred in admitting this prejudicial evidence of prior bad acts. He also challenges his exceptional sentence. We find that admission of the evidence of prior misconduct was justified because it showed Mr. Aleman's lustful disposition toward the victim. However, we additionally find that the exceptional sentence violates Blakely v. Washington, U.S., 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), and therefore reverse and remand for resentencing.
Facts
Mr. Aleman lived with Martha Gomez and Ms. Gomez's three children in Mexico; Phoenix, Arizona; and Prosser, Washington. In February 2002, Ms. Gomez's 16-year-old daughter, D.B., reported to Detective Lee Cantu of the Benton County sheriff's office that Mr. Aleman had initiated sexual contact with her in Mexico when she was six years old. She stated that Mr. Aleman began fondling her breast area at that time. By the time she was 12 or 13 and living in Phoenix and Prosser, he was having her perform oral sex on him. On December 23, 2000, the day after her fifteenth birthday, Mr. Aleman reportedly first had sexual intercourse with D.B. They continued having sexual intercourse at least once a week from late December 2000 to early December 2001, when D.B. moved out of her home and into the home of a family friend in the Wenatchee area.
Detective Cantu arrested Mr. Aleman on February 23, 2002. In a statement recorded on that day, Mr. Aleman admitted having a sexual relationship with D.B. that began when she was 15 and he was 27. He stated that they had sexual intercourse once or twice every day for almost a year, and that they were in love.
Mr. Aleman was charged by second amended information with 1 count of third degree child molestation, RCW 9A.44.089, and 10 counts of third degree child rape, RCW 9A.44.079. At trial, D.B. claimed she could not remember much of what she had told Detective Cantu. She initially testified Mr. Aleman first touched her breast when she was about 14 and stated they did not have sexual intercourse many times. On cross-examination, she said he did not touch her sexually until she was 16.
Following this testimony, the State requested a bench conference and told the court D.B.'s backpedaling necessitated the presentation of evidence to show that she had been groomed by Mr. Aleman and was now attempting to protect him. The trial court granted the State's motion to admit Mr. Aleman's prior acts of misconduct, noting that although such evidence is ordinarily excluded, it was relevant here to show Mr. Aleman's lustful disposition toward D.B. The State then elicited from D.B. that she could not remember telling Detective Cantu that Mr. Aleman touched her private parts in Mexico, that he touched her sexually when she was 14, or that she was 15 when she first had sexual intercourse with him. Although she admitted telling Detective Cantu that Mr. Aleman had threatened her if she told anyone about the sexual intercourse, she claimed she did not remember what she told the deputy about the extent of the threats.
Detective Cantu testified that he had audio taped an interview with D.B. in which she described sexual contact with Mr. Aleman from the time she was 6 in Mexico until she moved from her home in Prosser when she was 16. The detective also discussed Mr. Aleman's signed statement, wherein he admitted having sexual intercourse with D.B. every day throughout her fifteenth year. On cross-examination, Detective Cantu stated he did not notice any signs that Mr. Aleman was intoxicated during his interview and statement.
When Mr. Aleman took the stand, he testified that he first had sexual contact with D.B. just before her sixteenth birthday and began having sexual intercourse with her after she turned 16. He claimed that he was intoxicated when he gave the statement to the police. On re-direct, Detective Cantu testified that D.B. had already moved out of her home by the time of her sixteenth birthday and had no contact with Mr. Aleman after that time.
During closing arguments, the prosecutor argued that Mr. Aleman had been grooming D.B. as a sexual partner from the time she was 6 years old, with a steady progression in sexual contact until they had sexual intercourse when she was 15. The prosecutor explained that Mr. Aleman used this process to develop control over D.B. so that she now believed she loved him. The jury found Mr. Aleman guilty of all 11 charges. Citing the ongoing pattern of sexual abuse, the position of trust, and the multiple incidents of abuse, the trial court imposed an exceptional sentence of 360 months. This appeal followed.
Evidence of Prior Misconduct
At trial, D.B. claimed Mr. Aleman did not touch her private parts until she was 14 or 15 and did not have sexual intercourse with her until she was 16. The trial court then allowed Detective Cantu to testify that D.B. earlier reported a steady progression of sexual contact from age 6 to sexual intercourse at age 15. Although `highly prejudicial,' the trial court stated, the testimony was admissible to show Mr. Aleman's lustful disposition toward D.B. Report of Proceedings at 40. Mr. Aleman contends the trial court erred in admitting this evidence of prior bad acts in violation of ER 404(b). We review the trial court's decision to admit or exclude evidence for abuse of discretion. State v. Grant, 83 Wn. App. 98, 105, 920 P.2d 609 (1996).
Generally evidence of other crimes or misconduct is not admissible against an accused to prove his or her character or conformance with that behavior. ER 404(b). Such evidence may be admissible, however, for other reasons, `such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.' ER 404(b). Another accepted purpose for admission of prior bad acts testimony is to show the defendant's lustful disposition toward the victim. State v. Guzman, 119 Wn. App. 176, 182, 79 P.3d 990 (2003), review denied, 151 Wn.2d 1036 (2004). To admit any such evidence under ER 404(b), the trial court must (1) find by a preponderance of the evidence that the prior bad acts actually occurred; (2) identify the purpose for admitting the evidence; (3) determine the relevance of the evidence to the charged crime; and (4) balance the probative value of the evidence against its unfair prejudicial effect. State v. Kilgore, 147 Wn.2d 288, 292, 53 P.3d 974 (2002).
In this case, the trial court identified the purpose of the evidence: to show Mr. Aleman's lustful disposition toward D.B.; and its relevance: to show that Mr. Aleman acted on his lustful disposition. Although the trial court did not state on the record that it found by a preponderance of the evidence that the earlier acts of sexual misconduct actually occurred, its decision to allow this testimony implies a finding that D.B.'s earlier statement to Detective Cantu was credible. Further, defense counsel did not challenge at trial the factual basis of Detective Cantu's testimony. Consequently, further inquiry into the existence of the prior bad acts was not necessary under these circumstances. See id. at 295 (when a defendant contests a prior bad act, the trial court decides the issue on the offer of proof unless it decides an evidentiary hearing is required).
What the trial court did not do on the record was balance the probative value of the prior acts of sexual misconduct against their prejudicial effect. However, a court's failure to articulate this balancing process may be harmless if (1) the record shows that the court, after weighing the consequences, made a conscious decision to admit the evidence, or (2) the record is sufficient to determine whether the court would have admitted the evidence after conducting the proper analysis. State v. Acosta, 123 Wn. App. 424, 433, 98 P.3d 503 (2004); State v. Carleton, 82 Wn. App. 680, 685, 919 P.2d 128 (1996). The trial court expressed its awareness that prior acts of sexual misconduct were highly prejudicial and were usually excluded as a matter of course. Its decision to admit testimony regarding D.B.'s earlier statement to Detective Cantu indicates its conscious determination that the relevance of the testimony to prove Mr. Aleman committed similar acts on the dates of the charged crimes outweighed any unfair prejudice. We find no abuse of discretion.
Even if the trial court erred in failing to balance the probative value of this evidence of prior uncharged misconduct against its prejudicial effect, any error in admitting the testimony was harmless. Carleton, 82 Wn. App. at 686-87 (an error in admission of evidence is harmless if the result would have been the same without the evidence). Both D.B. and Mr. Aleman made statements to Detective Cantu that proved beyond a reasonable doubt Mr. Aleman had sexual contact with D.B. constituting third degree child molestation (sexual contact with a person 14 or 15 years old, and the perpetrator is at least 4 years older (RCW 9A.44.089)) and third degree child rape (sexual intercourse with a person 14 or 15 years old, and the perpetrator is at least 4 years older (RCW 9A.44.079)). Consequently, the jury probably would not have decided the case differently if the trial court had excluded those portions of D.B.'s statement to Detective Cantu that related to acts of sexual misconduct before she turned 14.
Exceptional Sentence
Mr. Aleman next challenges his exceptional sentence. He contends the trial court's findings in support of the exceptional sentence are not supported by the record. This court must examine the exceptional sentence in light of Blakely v. Washington, U.S., 124 S. Ct. 2531, 2536, 159 L. Ed. 2d 403 (2004), which holds that any fact (other than the fact of a prior condition) used to increase a penalty beyond the statutory maximum must first be submitted to a jury and proved beyond reasonable doubt. The trial court relied upon two aggravating factors found in RCW 9.94A.535 (former RCW 9.94A.390): (1) an ongoing pattern of sexual abuse against the victim, who was less than 18 years old (RCW 9.94A.535(2)(g)); and (2) violation of a position of trust (RCW 9.94A.535(2)(d)(iv)). In reaching its conclusions, the trial court relied upon the following findings of fact: (1) Mr. Aleman sexually assaulted D.B. from the time she was 5 years old until she was 15; (2) the `victim' (we must presume the court intended to use the term `defendant') was over 18 years old while he was sexually assaulting the victim; (3) Mr. Aleman was D.B.'s stepfather at the time; and (4) Mr. Aleman admitted sexually abusing D.B. almost daily for nearly a year. Clerk's Papers (CP) at 144.
In reaching its verdict of guilty, the jury did not find beyond a reasonable doubt that Mr. Aleman sexually abused D.B. from the age of five, that Mr. Aleman was D.B.'s stepfather, or that Mr. Aleman sexually abused D.B. almost daily. Only the fact that Mr. Aleman was at least 18 years old during the period of abuse was found beyond reasonable doubt by the jury. See Court's Instructions to the jury, CP at 59-60, 63-64. Mr. Aleman's age is not an aggravating factor justifying an exceptional sentence. Consequently, his exceptional sentence must be reversed and remanded to the trial court for resentencing.
Citing Neder v. United States, 527 U.S. 1, 9, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999), the State contends Blakely does not require reversal of Mr. Aleman's exceptional sentence because the error was harmless. In Neder, the U.S. Supreme Court adopted a harmless error analysis for non-`structural' trial errors such as omission of offense elements from jury instructions. Id. at 8. The State argues that its failure to seek a special verdict on facts necessary to support an exceptional sentence is a non-structural error when those facts are inherent in the jury's verdict. In particular, the State contends the jury's verdict of guilty on 10 counts of sexual misconduct supports beyond a reasonable doubt the aggravating factor of an ongoing pattern of sexual abuse against a victim less than 18 years old. RCW 9.94A.535(2)(g).
Distinguishing Neder, the Washington Supreme Court recently rejected a harmless error analysis in State v. Hughes, No. 74147-6, 2005 WL 851137, at *13 (Wash. Apr. 14, 2005). Hughes notes that proponents of harmless error ask the court `to speculate on what juries would have done if they had been asked to find different facts. This speculation is not permitted.' Id. We will not apply a harmless error analysis to Blakely violations. Id.
Mr. Aleman's pro se additional grounds for review attempt to reargue the facts and do not raise additional appealable issues.
Reversed and remanded for resentencing.
A majority of the panel has determined that 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.
SWEENEY, A.C.J. and KURTZ, J., Concur.