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State v. Arias

The Court of Appeals of Washington, Division One
Mar 7, 2011
160 Wn. App. 1023 (Wash. Ct. App. 2011)

Opinion

No. 64141-7-I.

Filed: March 7, 2011.

Appeal from a judgment of the Superior Court for King County, No. 08-1-09614-5, Bruce E. Heller, J., entered September 8, 2009.


Affirmed by unpublished opinion per Appelwick, J., concurred in by Dwyer, C.J., and Lau, J.


Arias was convicted of rape of a child in the second degree, child molestation in the second degree, and communication with a minor for immoral purposes. He argues that there was insufficient evidence to support the first two convictions and that the trial court committed evidentiary error. The evidence was sufficient to support the convictions, and any error was harmless. We affirm.

FACTS

Silvia Loya has three daughters, A.M., F.M., and M.M., who were 17, 15, and 11 respectively, at the time of trial in 2009. Loya met Ignacio Arias in December 2005, and they began dating shortly thereafter. In 2006, Arias, Loya, and the three girls moved into a house in Auburn, Washington. During that year, A.M. moved out to live with her father since she and Loya were not getting along.

In 2007, Arias and Loya moved into a trailer in SeaTac. Then they moved to a different trailer in Kent, while the remaining two girls, F.M. and M.M., went to live with their father in Renton.

A.M. testified that on several occasions while she was living in the Auburn house, Arias entered her room in the early morning as she slept and put his hand under her clothes to fondle her inner thigh and vagina. A.M. did not tell anyone since she was scared and was worried they would not believe her. She also did not tell her sisters because she did not want to scare them.

While F.M. and M.M. lived with their father, they still spent many weekends at the SeaTac trailer with Loya and Arias. According to the State's evidence, it was during the summer of 2007 when Arias began sexually abusing F.M., starting with an incident at the SeaTac trailer. Loya, Arias, and F.M. had been watching movies in the living room and they all fell asleep. F.M. testified that when she woke up, Arias had his hand down her pants, and he then put his finger inside her vagina. F.M. was afraid and pretended to still be asleep. Arias continued to digitally rape F.M. for five minutes. F.M. told her best friend, A.S., what had happened the next time she saw her.

F.M. testified to being abused in a similar fashion on several other occasions that summer — she would be asleep in the living room and Arias would again put his hand down her pants and fondle her. F.M. confided in A.S. after each incident when Arias abused her. On one occasion, when F.M. was having a sleepover with three of her friends, A.S. actually witnessed an incident, when Arias again put his hand down F.M.'s pants and briefly fondled her vagina over her underwear. A.S. testified that she could feel the blankets moving and that it was pretty obvious to her what Arias was doing to F.M. F.M. squeezed A.S.'s hand as Arias was fondling her.

In the summer of 2008, A.M. told her sister F.M. that Arias had touched her, and F.M. eventually told her sister what she had experienced as well. They decided to tell their mother Loya at that point. Loya and Arias were no longer dating at that time, though they continued to live in the same house. On July 24, 2008, Loya, A.M., and F.M. reported the abuse to police.

The State charged Arias with four crimes including: (1) child molestation in the third degree (victim A.M.); (2) rape of a child in the second degree (victim F.M.); (3) child molestation in the second degree (victim F.M.); and (4) communication with a minor for immoral purposes (the victim, J. G.-M. was a friend of A.M.'s).

Before the jury trial began, the trial court ruled that A.M., F.M., and Loya could testify about the circumstances of the girls' disclosure of the abuse to their mother on July 24, 2008. The court also ruled that Arias could not impeach Loya during cross-examination with allegations that Loya had used a false social security number to apply for benefits from the Department of Social and Health Services (DSHS) to which she was not entitled. The jury acquitted Arias of the first charge for molestation of A.M.L., but convicted him for the other three charges. The trial court imposed a standard range sentence. Arias appeals.

DISCUSSION

I. Sufficiency of the Evidence of Non-Marriage

Arias alleges that there was insufficient evidence to prove all of the essential elements of either the rape of a child charge or the child molestation charge against him. The State bears the burden of proving each element of a charged crime beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970); City of Seattle v. Gellein, 112 Wn.2d 58, 61, 768 P.2d 470, 775 P.2d 448 (1989). For both of these charges, one of the included elements is that the victim is "not married to the perpetrator." RCW 9A.44.086(1); .076(1). It is this element that Arias alleges the State failed to prove.

Where a party challenges the sufficiency of evidence at trial, this court reviews the evidence in the light most favorable to the prosecution to determine whether any rational fact finder could have found the essential elements of the crime beyond a reasonable doubt. State v. Engel, 166 Wn.2d 572, 576, 210 P.3d 1007 (2009). In applying this test in a criminal case, all reasonable inferences from the evidence must be drawn in favor of the State and interpreted most strongly against the defendant. State v. Joy, 121 Wn.2d 333, 339, 851 P.2d 654 (1993).

Circumstantial evidence can be used to prove a lack of marriage. State v. Rhoads, 101 Wn.2d 529, 532, 681 P.2d 841 (1984). Indeed, circumstantial evidence is not any less reliable or probative than direct evidence in reviewing the sufficiency of the evidence supporting a jury verdict. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). Here, where the State did not provide direct evidence that the parties were not married, the question is whether the circumstantial evidence presented was adequate to support the jury's conclusion.

Washington case law recognizes the sufficiency of circumstantial evidence in similar cases. See, e.g., Rhoads, 101 Wn.2d at 532 (testimony that the victim and the rapist were strangers was adequate proof that they were not married); State v. Shuck, 34 Wn. App. 456, 458, 661 P.2d 1020 (1983) (it was reasonable to infer that that there was no marriage since the victims were in the ninth grade, their entire acquaintance with the defendant lasted only one month, one of the girls had a boyfriend, and they had never spent the night at the defendant's house); State v. May, 59 Wash. 414, 415, 109 P. 1026 (1910) (evidence that the victim was under 14 years old, lived at home with her father and mother, maintained her maiden name, and was "a mere schoolgirl", was adequate circumstantial evidence to prove the lack of marriage).

The same reasoning applied in those cases applies here. Loya, F.M., and A.M. each testified without dispute that Arias was Loya's live-in boyfriend. F.M. was only 13 at the time of the sexual contact, while Arias was an adult male. F.M. testified about when Arias first sexually assaulted her, stating that she thought it might have been a mistake — that she thought Arias may have confused her with her mother. When Loya went out of the country, F.M. lived with her father rather than with Arias, who continued to live in the trailer. Evidence that F.M. was only 13 and lived with her parents, coupled with the fact that Arias was living with and dating F.M.'s mother, was adequate, particularly when viewed in the light most favorable to the State, to support the jury's conclusion, beyond a reasonable doubt, that Arias and F.M. were not married.

II. The Fact of Complaint Rule

Arias argues that the trial court erred by allowing testimony about the girls' disclosure of the abuse to their mother in the summer of 2008, since that disclosure was not made in a timely manner. The trial court admitted statements from both F.M. and Loya about the circumstances of the girls' complaint to their mother, under the long-established "hue and cry" or "fact of complaint" doctrine. This doctrine was first announced in State v. Hunter, 18 Wash. 670, 52 P. 247 (1898), and allowed the prosecution in a forcible rape case to present evidence of the fact that the victim made a complaint. State v. Bray, 23 Wn. App. 117, 121, 594 P.2d 1363 (1979). Such evidence has been treated as hearsay, but has been generally admissible under a hearsay exception, because it is introduced for the purpose of bolstering the victim's credibility and is not substantive evidence of the crime itself. Id. But, as Arias points out, this exception to hearsay bears its own requirements, one of which is that the complaint be timely made. See, e.g., State v. Murley, 35 Wn.2d 233, 237, 212 P.2d 801 (1950) ("[a victim's credibility] may be supported by evidence of her timely prior out-of-court complaint"); State v. Alexander, 64 Wn. App. 147, 151, 822 P.2d 1250 (1992) ("[T]his narrow exception allows only evidence establishing that a complaint was timely made.") The timeliness requirement has been in place from the doctrine's earliest days. For example, in State v. Griffin, 43 Wash. 591, 598, 86 P. 951 (1906), the Supreme Court held that "evidence of the complaint should be excluded whenever from delay or otherwise it ceases to have corroborative force." The Griffin court went on to hold that a complaint made six months after the alleged incident was not sufficiently timely to qualify for this hearsay exception. Id. at 599. The timeliness requirement, while old, has not been overturned by any subsequent Washington case. The State concedes as much, acknowledging that the doctrine, as it exists today, still has this timeliness requirement, which likely was not met by a complaint that occurred more than a year after the abuse.

The State notes in a footnote of its brief that: "Although the case law refers to the `fact of complaint' doctrine as a hearsay exception, evidence admitted under this doctrine is not actually hearsay. . . . [since it is] not offered to prove the truth of the complaint. . . . Rather, `fact of complaint' evidence is admitted to prove only the fact that a complaint was actually made." The State supports this assertion with an observation made by the Supreme Court in State v. Pugh, 167 Wn.2d 825, 842, 225 P.3d 892 (2009): "The fact that a complaint was made was considered to be original evidence, not hearsay." But, while there may be merit to the State's assertion, the fact of complaint doctrine, treating such testimony as hearsay has not been overturned. The rule, as it was originally announced and contemplated in cases like Hunter and Griffin, remains in place. Binding precedent will not be overruled sub silentio. State v. Studd, 137 Wn.2d 533, 548, 973 P.2d 1049 (1999). The court in Pugh did not address the fact of complaint doctrine, except in dicta as an observation unrelated to the case's holding. The Supreme Court has also recently addressed the showing that is required before it will change a rule of law. State v. Barber, No. 83640-0, 2011 WL 172088 (Wash. Jan. 20, 2011). There must be "a clear showing that an established rule is incorrect and harmful before it is abandoned." In re Rights to Waters of Stranger Creek, 77 Wn.2d 649, 653, 466 P.2d 508 (1970). Here, where the Supreme Court has not undertaken such an analysis or overturned the fact of complaint doctrine, it remains in force.

Evidentiary rulings are within the sound discretion of the trial court. State v. Atsbeha, 142 Wn.2d 904, 913, 16 P.3d 626 (2001). Here, where over a year elapsed before the complaint was made, we hold that the trial court erred in its application of the fact of complaint doctrine, and abused its discretion by admitting F.M. and Loya's testimony about that complaint. Nevertheless, the State asserts that even if the trial court erred, that error was harmless and the convictions should be affirmed. We agree.

Under the applicable standard of review, an erroneous evidentiary ruling is reversible only if there is a reasonable probability that the error materially affected the outcome of the trial. State v. Calegar, 133 Wn.2d 718, 727, 947 P.2d 235 (1997). Arias assigns particular importance to this testimony since it was a way for Loya to implicitly corroborate the claims of her daughters in the eyes of the jury. Arias further asserts that, despite the intention of the trial court (and of the fact of complaint rule generally) to sterilize testimony and limit it so as to avoid any detail beyond the circumstances of the children's reporting, this testimony was nonetheless emotionally and factually charged in a way that may have improperly impacted the jury. We find this reasoning unpersuasive, however. Loya's testimony did not materially impact the outcome of the trial. First, Loya's testimony was effectively limited by the trial court to the fact of the complaint; in relevant part, Loya testified only that F.M. came to her and reported having been "sexually assaulted." Loya did not testify to the content of her daughters' complaint. The fact that F.M. told someone about the assault would hardly be compelling in and of itself. The jury would be expected to infer the child told someone, absent a third party witness or confession by the perpetrator, or it would not have come to the attention of the authorities. Second, as the State points out, while F.M. may not have made a timely disclosure to her mother, she did make timely disclosures to her best friend, A.S., following each of the instances of abuse and both F.M. and A.S. testified to those disclosures before the jury. A.S. was also present during one of the instances of abuse, and her testimony corroborates that of F.M. Even without Loya's or F.M.'s testimony about the fact or circumstances of the 2008 complaint, the evidence was sufficient to support the jury's ultimate conclusion beyond a reasonable doubt. Accordingly, we hold that while the trial court erred in its application of the fact of complaint rule, the error did not create a reasonable probability that the outcome of the trial would have been different. Any error was harmless.

III. Impeachment of Loya with her Prior Misconduct

Arias next contends that his right to a fair trial was violated when the trial court prohibited his impeachment of Loya with her alleged prior misconduct. Specifically, Arias wanted to cross-examine Loya with evidence suggesting that she had used a false social security number and that she had applied for benefits from DSHS to which she was not entitled. The trial court considered arguments on this matter in motions in limine before ultimately concluding that Arias could not conduct impeachment on these matters, based on an application of ER 608 and ER 403.

Evidence Rule 608(b) provides:

Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' credibility, other than conviction of crime as provided in rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross examination of the witness (1) concerning the witness' character for truthfulness or untruthfulness.

Arias also cites to case law elaborating on the application of that rule. For example, he quotes State v. York, which explains that the rule allows a party to challenge the veracity of a witness by inquiring about any fact "`which goes to the trustworthiness of the witness . . . if it is germane to the issue.'" 28 Wn. App. 33, 36, 621 P.2d 784 (1980) (emphasis added). Arias asserts that the prohibited cross-examination would have impacted Loya's credibility, that the requirements of ER 608(b) were satisfied, and that it was error to deny the cross-examination.

The trial court, however, conducted exactly such an analysis, thoughtfully and on the record, before reaching its conclusion that such an impeachment did not satisfy either the ER 608 or the ER 403 tests. The trial court explained: "[T]he Court has to look into whether the alleged misconduct used to impeach is one relevant to the witness's veracity; and second, is it germane to the issues presented at trial." See, e.g. State v. Gregory, 158 Wn.2d 759, 798, 147 P.3d 1201 (2006) ("In exercising its discretion, the trial court may consider whether the instance of the witness's misconduct is relevant to the witness's veracity on the stand and whether it is germane or relevant to the issues presented at trial.") The trial court agreed with Arias on the first part of the ER 608(b) test, conceding that the impeachment evidence was relevant to Loya's truthfulness. But, the court expressly concluded that such evidence was not germane to the main issue in the case. Loya's testimony was not focused on whether the sexual abuse actually occurred, nor did she present any details about the reported abuse. Instead, it focused on the fact that her daughters complained to her, and on basic factual background information such as birthdates and addresses. She was not a witness to the central issue at trial. Moreover, Loya's testimony on the fact of the complaint was corroborated by both F.M. and A.M.

Even if the trial court's application of ER 608(b) yielded the conclusion that impeachment on these matters would have been admissible, the trial court was within its discretion to preclude such impeachment under ER 403 alone. State v. Wilson, 60 Wn. App. 887, 893, 808 P.2d 754 (1991). The court considered that evidence relating to the possible use of a false social security number, while probative of untruthfulness, had less of a connection to her testimony about her family situation, and more to do with her immigration status. The trial court also weighed the fact that Arias's evidence on Loya's alleged misconduct was vague, and stated that there was "a real danger of a minitrial occurring" on these collateral issues that had no bearing on whether the abuse occurred. The court further found that there was "a significant potential for jury prejudice against her based on hostility towards undocumented immigrants." The court thus carefully explained its reasoning under both ER 608(b) and ER 403, for prohibiting Loya's impeachment on these collateral matters.

We hold that the trial court did not abuse its discretion.

IV. Cumulative Error

Arias alleges that even if none of the above errors warrant reversal individually, reversal is still required based on the cumulative effect of those errors. The cumulative error doctrine applies only if there were several trial errors, none of which standing alone is sufficient to warrant reversal, that when combined may have denied the defendant a fair trial. State v. Hartzell, 156 Wn. App. 918, 948, 237 P.3d 928 (2010). Here, while Arias may have shown that the trial court erred in its admission of certain testimony by Loya, he has not shown that there were several trial errors. Arias was not deprived of his right to a fair trial. The cumulative error doctrine does not apply here. We affirm.


Summaries of

State v. Arias

The Court of Appeals of Washington, Division One
Mar 7, 2011
160 Wn. App. 1023 (Wash. Ct. App. 2011)
Case details for

State v. Arias

Case Details

Full title:STATE OF WASHINGTON, Respondent, v. IGNACIO LEON ARIAS, Appellant

Court:The Court of Appeals of Washington, Division One

Date published: Mar 7, 2011

Citations

160 Wn. App. 1023 (Wash. Ct. App. 2011)
160 Wash. App. 1023