Opinion
No. 31278-6-II
Filed: May 17, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Pierce County. Docket No: 03-1-01067-9. Judgment or order under review. Date filed: 12/12/2003. Judge signing: Hon. Katherine M Stolz.
Counsel for Appellant(s), Rebecca Wold Bouchey, Attorney at Law, PO Box 1401, Mercer Island, WA 98040-1401.
Counsel for Respondent(s), Donna Yumiko Masumoto, Attorney at Law, Pierce Co Prosc Atty Ofc, 930 Tacoma Ave S, Tacoma, WA 98402-2171.
Mark A. Beeson appeals his convictions for three counts of first degree child molestation. He asserts that the trial court erred when it (1) denied his motion to compel the victim to submit to a psychological examination; and (2) did not allow him to present a meaningful defense. He also argues that cumulative error requires a new trial. Finding no error, we affirm.
FACTS
Beeson and his wife, Crystal, were together for approximately three years. They lived with their son and four children from prior relationships, including K.E. Ten-year-old K.E. was Crystal's natural daughter and Beeson's stepdaughter.
On December 7, 2002, K.E. told her mother that Beeson had pulled down her pants and `licked around [her] TT.' 2 Report of Proceedings at 293. Immediately after this disclosure, K.E.'s mother took her to Mary Bridge Children's Hospital. Jennifer Knight, a counselor at Mary Bridge, interviewed K.E. and Michelle Breland performed a forensic physical examination.
The State charged Beeson with three counts of first degree child molestation. Prior to trial, Beeson moved to compel a psychological examination of K.E. at State expense. Beeson argued the evaluation was necessary because K.E. had a psychological impairment. The defense investigator submitted a declaration stating that he believed K.E. may have an organic or neurological defect based on memory difficulties she experienced during the defense interview. The trial court denied the motion, finding no compelling reason to conduct an evaluation.
The amended information states that all three counts occurred between May 1, 2001 and December 7, 2002.
Beeson moved for a competency determination. He argued that because K.E. had trouble remembering specific details, she could not express what happened and was therefore incompetent to testify. The trial court noted that K.E. was in mainstream classes at school, ruled that K.E. is presumed to be competent, and denied the motion.
No assignment of error has been made to this ruling. Only the denial of the motion to compel the victim's psychological evaluation has been appealed.
At trial, K.E. testified that Beeson licked her vagina while she was lying on the bed in her mother's bedroom. She testified that on at least two different occasions Beeson rubbed under her underwear and touched her breast while they were on the couch in the living room, watching television. Further, K.E. testified that on one occasion Beeson attempted to make her touch his crotch, but she refused. Though K.E. recalled few specific details surrounding these incidents, she recalled where she was living when the abuse occurred.
Knight, who interviewed K.E. after the initial disclosure of molestation, testified that a child's inability to recall specific details is common when the abuse occurs over a period of time.
Breland, who conducted the forensic physical, testified that K.E. appeared to be a normal 10-year-old child.
Beeson denied the allegations against him. The jury returned guilty verdicts on all three counts. Beeson appeals.
ANALYSIS I. Psychological Evaluation of Victim
Beeson argues that the trial court erred by denying his motion for K.E.'s psychological examination because evidence of an underlying psychological condition existed and any psychological impairment was relevant both to her competency and to her credibility.
The trial court has discretion to grant or deny a motion for the mental examination of a complaining witness. State v. Demos, 94 Wn.2d 733, 738, 619 P.2d 968 (1980); State v. Braxton, 20 Wn. App. 489, 492, 580 P.2d 1116 (1978). The trial court's decision will not be reversed on appeal absent an abuse of discretion, which exists only when no reasonable person would have taken the position adopted by the trial court. State v. Castellanos, 132 Wn.2d 94, 97, 935 P.2d 1353 (1997). The appellant must clearly establish substantial prejudice. State v. Stamm, 16 Wn. App. 603, 605, 559 P.2d 1 (1976).
A mental examination may be ordered when a compelling reason for one exists. Demos, 94 Wn.2d at 738. A compelling reason does not exist as a matter of law simply because it is a case of `his word against hers.' State v. Tobias, 53 Wn. App. 635, 637, 769 P.2d 868 (1989). When no compelling reason for a psychiatric examination can be shown, traditional means of assessing witness credibility and perceptual ability are sufficient. Tobias, 53 Wn. App. at 637.
The State must pay for expert witnesses for an indigent defendant only where such services are necessary to an adequate defense. CrR 3.1(f); State v. Niemczyk, 31 Wn. App. 803, 805, 644 P.2d 759 (1982).
Here, allegations of K.E.'s psychological impairment were based largely on the impressions formed by the defense investigator, who believed K.E. might have an organic or neurological defect due to her memory difficulties at the defense interview. Beeson also provided evidence that medication for Attention Deficit Disorder (ADD) had been prescribed for K.E. in the past. But Knight and Breland testified that there was nothing out of the ordinary about K.E.
In Demos, the Washington Supreme Court found that evidence of a victim's past mental health treatment did not constitute a compelling reason for a psychological examination. 94 Wn.2d at 738. Similarly, we find no compelling reason for a psychological evaluation here.
The jury, not a psychiatrist, is the appropriate entity to evaluate the credibility of a witness. Braxton, 20 Wn. App. at 491. A psychological examination of K.E. was not necessary for Beeson to prepare an adequate defense, and he did not demonstrate a compelling reason for the examination. Therefore, the trial court did not abuse its discretion in denying Beeson's motion to compel a psychological examination at State expense.
II. General Testimony and Due Process Right to a Meaningful Defense
Beeson contends that he was deprived of his due process right to a meaningful defense because K.E. could not specify the time or context of the alleged crimes. He argues that, due to K.E.'s lack of specificity, he was unable to argue an alibi defense and had no meaningful opportunity to cross examine the child.
Due process entitles a defendant to a meaningful opportunity to present a complete defense. U.S. Const. amend. VI; Crane v. Kentucky, 476 U.S. 683, 690, 106 S. Ct. 2142, 90 L. Ed. 2d 636 (1986); City of Auburn v. Brooke, 119 Wn.2d 623, 629-30, 836 P.2d 212 (1992). But due process is a flexible concept requiring accommodation of the competing interests involved; its procedural requisites necessarily vary, depending on the nature of those interests. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542-43, 105 S. Ct. 1487, 84 L. Ed. 2d 494 (1985); Buffelen Woodworking Co. v. Cook, 28 Wn. App. 501, 505, 625 P.2d 703 (1981). A defendant has no due process right to a reasonable opportunity to raise an alibi defense in single or multiple act sexual assault charges. State v. Cozza, 71 Wn. App. 252, 259, 858 P.2d 270 (1993).
As long as a child is able to demonstrate some independent recollection of the events in question and has the ability to describe them, the child's equivocation or inability to recall details normally goes to the weight of the testimony, rather than its admissibility. State v. Guerin, 63 Wn. App. 117, 123, 816 P.2d 1249 (1991). General testimony can be sufficient to sustain a conviction and the use of that testimony does not constitute a due process violation. State v. Brown, 55 Wn. App. 738, 748, 780 P.2d 880 (1989); State v. Hayes, 81 Wn. App. 425, 435, 914 P.2d 788 (1996). And Washington courts have determined that in sexual assault cases involving children, this kind of general testimony can be sufficient and credibility issues are best left to the trier of fact. See, e.g., Brown, 55 Wn. App. at 748; Hayes, 81 Wn. App. at 435.
In Brown, the court found sufficient evidence to convict on molestation charges despite the lack of specificity in the child victim's testimony, noting that memory problems can arise when the accused has `virtually unchecked access to the child, and the abuse has occurred on a regular basis and in a consistent manner over a prolonged period of time.' 55 Wn. App. at 746-47. In such cases, the victim may not have an adequate reference point to be able to distinguish one act from another. Therefore, the State's case must rest on `the testimony of a victim whose memory may be clouded by a blur of abuse and a desire to forget.' Brown, 55 Wn. App. at 747.
In Hayes, the court adopted a three-part test to determine if the victim's testimony is sufficiently specific to sustain the conviction. 81 Wn. App. at 438. A victim's testimony must be specific enough to: (1) describe the acts in sufficient detail to allow the jury to determine whether a crime had been committed; (2) describe the proper number of acts to support each of the charges alleged by the State; and (3) describe the general time period within which the acts occurred. The trier of fact must then determine whether the testimony of the alleged victim is credible. Hayes, 81 Wn. App. at 438.
At trial, K.E. testified about at least three distinct instances of molestation that occurred while Beeson lived with her mother. Although K.E. could not recall specifically when any of these incidents took place, she was able to identify her residence at the time of the abuse. She testified that all acts of molestation occurred at the same house where she lived at the time of trial, and K.E.'s mother testified that the family had resided in this house since May 2001. Thus, the record shows that the abuse took place between May 2001 and December 7, 2002, when K.E. first disclosed the molestation to her mother.
Here, K.E.'s testimony has adequately satisfied the three prongs of the test articulated in Hayes. First, K.E. was able to clearly describe the acts which constitute the crimes charged. Second, she was able to describe at least three different occurrences to support the three separate charges. Finally, she was able to describe the general time period within which the conduct occurred by referring to her residence at the time and testifying that all acts occurred while at that residence and during the course of her mother's relationship with Beeson.
Thus, Beeson's due process rights were not violated.
III. Cumulative Error
This court may reverse Beeson's convictions if the combined effect of trial error resulted in a fundamentally unfair trial. State v. Greiff, 141 Wn.2d 910, 928, 10 P.3d 390 (2000). Because we find no error, we deny Beeson's challenge to the trial court proceedings.
We affirm.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
ARMSTRONG, P.J. and HUNT, J., concur.