Opinion
No. 28391-3-II.
September 17, 2003. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION
Appeal from Superior Court of Pierce County. Docket No: 99-1-04011-4. Judgment or order under review. Date filed: 01/25/2002.
Counsel for Appellant(s), Pattie Mhoon, Attorney at Law, 949 Market St. Ste 488, Tacoma, WA 98402-3600.
Counsel for Respondent(s), Alicia Marie Burton, Pierce County Prosecutors Office, 930 Tacoma Ave S Rm 946, Tacoma, WA 98402-2171.
Anthony Q. Blackwell appeals four convictions for first degree child molestation. Holding that the trial court improperly admitted a nurse practitioner's opinion that the victim had probably been sexually assaulted and, further, that the error was not harmless, we reverse and remand for a new trial.
FACTS
The State charged Anthony Q. Blackwell with four counts of first degree child molestation for conduct occurring between September 10, 1996, and June 26, 1998. Although the State used identical charging language to describe each count, the evidence at trial was that each of the four charges occurred in a different location (1) Blackwell's bedroom; (2) his living room; (3) his stepdaughter's bedroom; and (4) his car. Blackwell cared for his niece, A.C., after school while her parents were at work. At trial, Lisa Abernathy, A.C.'s mother, described disclosures that A.C. had made. A.C. told her mother that Blackwell had been making A.C. touch him inappropriately since A.C. was in kindergarten. Lisa Abernathy recounted three specific incidents that A.C. had described to her.
First, during an incident in Blackwell's bedroom; Blackwell told A.C. to touch his private part but made her stop and leave after telling her: "You ain't doing it right." Report of Proceedings (RP) at 547. Second, during an incident in Blackwell's living room, Blackwell was wearing a robe. He opened it and then told A.C. to touch his private part, and "asked her if it was big or small." RP at 548. The third incident occurred in Blackwell's stepdaughter's bedroom when A.C. was sleeping. Blackwell woke A.C. up and "made her touch his {private part}." RP at 548. Lisa Abernathy told A.C.'s stepfather, Victor Abernathy, about A.C.'s disclosures; he then asked A.C. about the allegations and consoled her by telling her it was not her fault and that he trusted her and believed her. The Abernathys called the police, and a detective scheduled an exam for A.C. at Mary Bridge Hospital Sexual Assault Clinic.
At the Clinic, Nurse Practitioner Diane Elliott spoke with and examined A.C. Because at the time of trial Elliott no longer worked at the Clinic, Dr. Yolanda Duralde, the medical director of the child abuse intervention department, testified about Elliott's record of A.C.'s exam. Reading from Elliott's record, Duralde said that A.C. told Elliott that Blackwell made her touch his private part, that it was "Hard," but that nothing "had come out of the private part." RP at 594-95. The results of Elliott's physical examination of A.C. were "totally normal." RP at 597. Duralde also read Elliott's conclusion that based on A.C.'s disclosures and the physical exam, A.C. "had probably been sexually assaulted." RP at 600.
Blackwell stipulated "that a record was made that this doctor normally and typically relies on documents made within her clinic, and can speak from that clinic record on this matter." RP at 590-91.
Michelle Osborn, a child forensic interviewer with the Pierce County Prosecutor's Office testified about a meeting she had with A.C. three days after the examination at the clinic. A.C. told Osborn that when she was six years old, Blackwell made her "move" her hand around on the skin of his "private," each time asking if it was "big or small," but that nothing ever came out of the "private." RP at 331-32, 335. Osborn testified that when she asked A.C. "to point for {her} where his private is," A.C. pointed to her "vaginal area." RP at 331. A.C. said that this happened "{a} lot," "{o}nce a day," and that it happened in Blackwell's room, his stepdaughter's room, in the car, and in his living room when he was in a robe "playing a game." RP at 332, 334, 340, 347.
Blackwell moved to exclude any "child hearsay" statements. Clerk's Papers at 7. But the trial court determined that A.C.'s statements to her mother, to Elliott, and to Osborn were reliable and admissible under RCW 9A.44.120's hearsay exception for statements made by children about sexual abuse.
A.C. also testified at trial. She said that more than once Blackwell opened his pants in the car and made her touch "his private on the skin." RP at 665. She also claimed that the same thing happened in Blackwell's room. Blackwell testified that he did not sexually assault A.C. The jury found Blackwell guilty as charged. On appeal, he argues that (1) the trial court improperly admitted Elliott's opinion that A.C. had been sexually assaulted; (2) the trial court improperly admitted A.C.'s statements to her mother, to Elliott, and to Osborn because they lacked sufficient indicia of reliability; (3) Victor Abernathy, Elliot, and Osborn gave improper opinion testimony that A.C. was telling the truth; (4) the evidence was insufficient to support the convictions; and (5) cumulative error requires a new trial.
DISCUSSION I. Nurse Elliott's Opinion
Blackwell argues that the trial court improperly admitted Elliott's medical opinion that A.C. had probably been sexually assaulted. The State concedes that it was error to admit this evidence, but it argues that the error was harmless.
The State asked Dr. Duralde: "What was the overall assessment that {Elliott} made for {A.C.}?" RP at 597. Blackwell objected and, outside the jury's presence, argued that the State's question appeared to be asking for a legal conclusion as to an ultimate issue of fact. He requested that the State's inquiry be limited to Elliott's "medical assessment." RP at 598.
The State agreed and, after the jury returned, it asked: "Dr. Duralde, I was asking you what was your overall medical assessment — excuse me. Not your overall medical assessment, but Ms. Elliott's medical assessment of this child?" RP at 600. Dr. Duralde answered: "Ms. Elliott felt that the child had probably been sexual {sic} assaulted, based on the fact that she gave a clear disclosure of what had occurred; that she had a normal exam which was consistent with her disclosure." RP at 600 (emphasis added). Blackwell did not object to Dr. Duralde's answer. When the State asked Dr. Duralde what type of physical evidence she would expect to accompany A.C.'s disclosures, Duralde answered: "You would expect the child to have a normal exam because what she disclosed was having to do with a sexual act to someone else, but not having anything done to her personal body." RP at 600-601.
During cross examination, Blackwell asked: "{Nurse Elliott's} assessment of probable sexual abuse is based entirely upon the disclosure of the child, correct?" RP at 604. Dr. Duralde answered: "That's correct, along with that her exam fits that picture as well." RP at 604.
An expert's opinion on an ultimate issue of fact that is "based solely on the expert's perception of the witness' truthfulness" is not admissible because it takes an ultimate issue of fact from the jury. State v. Alexander, 64 Wn. App. 147, 154, 822 P.2d 1250 (1992) (citing State v. Fitzgerald, 39 Wn. App. 652, 657, 694 P.2d 1117 (1985)); State v. Carlson, 80 Wn. App. 116, 123-29, 906 P.2d 999 (1995); State v. Florczak, 76 Wn. App. 55, 74, 882 P.2d 199 (1994). The admission of such testimony is constitutional error. Florczak, 76 Wn. App. at 74. Here, where A.C.'s physical exam was normal, the only basis for Elliott's opinion that A.C. was probably sexually assaulted was A.C.'s statements to her. Thus, admission of Elliott's opinion was constitutional error.
In State v. Fitzgerald, the court stated:
Although generally expert witnesses may give an opinion on an ultimate issue of fact, . . . {i}t is improper for an expert to base an opinion about an ultimate issue of fact solely on the expert's determination of a witness's veracity. . . . Dr. Griffith's opinion is based solely on her evaluation of the children's version of the events. "An expert may not go so far as to usurp the exclusive function of the jury to weigh the evidence and determine credibility." 39 Wn. App. 652, 657, 694 P.2d 1117 (1985) (citations omitted).
We presume that an error infringing on a constitutional right is prejudicial, and the State has the burden of proving that the error was "harmless beyond a reasonable doubt." State v. Miller, 131 Wn.2d 78, 90, 929 P.2d 372 (1997). An error is harmless if there is "overwhelming untainted evidence" that persuades us that the jury would have reached the same result without the erroneous introduction of evidence. State v. Guloy, 104 Wn.2d 412, 426, 705 P.2d 1182 (1985).
For example, in Carlson a pediatrician based her opinion that a child was sexually abused solely on her view of the child's veracity in the assessment interview. 80 Wn. App. at 122-29. We held that it was error to admit the opinion and that the error was not harmless because "{t}he case boiled down to {the victim's} word against Carlson's word. There was no physical evidence and no independent witness to the charged events." Carlson, 80 Wn. App. at 129.
Here also, the case boiled down to A.C.'s word against Blackwell's. As the State admits, the only evidence that Blackwell sexually abused A.C. was her testimony and her statements to her mother, to Elliott, and to Osborn. Blackwell testified that he did not sexually assault A.C. And there was no physical evidence or independent witness to the charged events. Thus, as in Carlson, admitting Nurse Elliott's assessment was not harmless. The State argues that Blackwell failed to preserve this issue for review because he did not object when the State questioned Dr. Duralde about Elliott's "medical assessment" and he did not object to Dr. Duralde's answer. Respondent's Brief at 23. But we will review an alleged error not raised at trial if it is a "manifest error affecting a constitutional right." RAP 2.5(a)(3); Florczak, 76 Wn. App. at 72. A constitutional error is "manifest" if it prejudices the defendant. State v. McFarland, 127 Wn.2d 322, 333, 899 P.2d 1251 (1995). Because admitting Elliott's opinion was both constitutional error and prejudicial, Blackwell's failure to object does not preclude our review.
The State also argues that under the doctrine of invited error, we should not consider Blackwell's challenge. It argues that by suggesting that the State ask for Elliott's "medical assessment" rather than her "overall assessment," Blackwell was responsible for soliciting Elliott's inadmissible response. RP at 598.
Under the doctrine of invited error, a party may not set up a trial court error and then use this error to support its appeal. State v. Henderson, 114 Wn.2d 867, 868-71, 792 P.2d 514 (1990). But the invited error doctrine applies only if the defendant took knowing and voluntary actions to set up the error. In re Thompson, 141 Wn.2d 712, 724, 10 P.3d 380 (2000). In Thompson, the State argued that the defendant invited the error of an invalid charge by pleading guilty to the charge. 141 Wn.2d at 719, 724. But because the State provided no evidence that the defendant knowingly pleaded to an invalid charge, the Thompson court declined to apply the invited error doctrine. 141 Wn.2d at 725.
Similarly here, the record does not show that Blackwell took knowing and voluntary action to solicit Elliott's opinion as to the probability of the abuse. The State initially asked Dr. Duralde for Elliott's "overall assessment" and we see nothing in the record suggesting that Dr. Duralde's response would have been different had Blackwell not proposed that the State ask for Elliott's "medical assessment" as opposed to her "overall assessment." RP at 598. Nor does the record suggest that Blackwell knew that his proposed change to the question's wording would solicit Elliott's opinion of A.C.'s credibility. Thus, the invited error doctrine does not preclude Blackwell's right to a new trial.
II. A.C.'s Hearsay Statements
Blackwell also challenges the admission of A.C.'s disclosures to her mother, to Osborn and to Elliott. He argues that the statements lacked sufficient indicia of reliability and, thus, failed to meet the hearsay exception in RCW 9A.44.120. Because this issue may arise on remand, we address it here.
The trial court admitted Elliott's testimony under RCW 9A.44.120 and under ER 803(a)(4), which allows the trial court to admit hearsay statements made for purposes of medical diagnosis or treatment, without first finding indicia of reliability. See ER 803(a)(4). Because Blackwell does not challenge Elliott's testimony under ER 803(a)(4), we assume that the trial court properly admitted A.C.'s hearsay statements to Elliott under that rule. Thus, we need not address the admissibility of this testimony under RCW 9A.44.120.
RCW 9A.44.120 governs the admissibility of a child victim's out of court hearsay statements. See ER 807. It provides that statements of sexual abuse by a child under the age of ten are admissible if the trial court finds that the child's statements are reliable and the child either testifies at trial or is unavailable as a witness.
RCW 9A.44.120 provides that A statement made by a child when under the age of ten describing any act of sexual contact performed with or on the child by another, describing any attempted act of sexual contact with or on the child by another, or describing any act of physical abuse of the child by another that results in substantial bodily harm as defined by RCW, not otherwise admissible by statute or court rule, is admissible in evidence in dependency proceedings under Title RCW and criminal proceedings, including juvenile offense adjudications, in the courts of the state of Washington if:
(1) The court finds, in a hearing conducted outside the presence of the jury, that the time, content, and circumstances of the statement provide sufficient indicia of reliability; and (2) The child either: (a) Testifies at the proceedings; or (b) Is unavailable as a witness: PROVIDED, That when the child is unavailable as a witness, such statement may be admitted only if there is corroborative evidence of the act.
A statement may not be admitted under this section unless the proponent of the statement makes known to the adverse party his or her intention to offer the statement and the particulars of the statement sufficiently in advance of the proceedings to provide the adverse party with a fair opportunity to prepare to meet the statement.
When the State seeks to introduce a child victim's hearsay statements under RCW 9A.44.120, the court must determine if the time, content, and circumstances of the statements provide sufficient indicia of reliability. RCW 9A.44.120(1). A reviewing court will overturn a trial court's determination that hearsay statements are reliable only upon a showing of a manifest abuse of discretion. State v. Swan, 114 Wn.2d 613, 665-67, 790 P.2d 610 (1990). "This is because the trial court is 'in a prime position to observe and evaluate the demeanor of witnesses.'" Swan, 114 Wn.2d at 666 (quoting State v. Miller, 22 Wn. App. 960, 963, 593 P.2d 177 (1979)). State v. Ryan, 103 Wn.2d 165, 691 P.2d 197 (1984), and its progeny identified nine nonexclusive factors to assist courts in making this reliability determination: (1) did the declarant have a motive to lie; (2) what is the general character of the declarant; (3) did more than one person hear the statement; (4) was the statement spontaneous; (5) when was the statement made and what is the relationship between the declarant and the witness; (6) was the statement an express assertion about past facts; (7) could cross examination show the declarant's lack of knowledge; (8) is there merely a remote possibility that the declarant's recollection is faulty; and (9) were the circumstances surrounding the statements conducive to reliability. Ryan, 103 Wn.2d at 176. Applying these factors, A.C.'s statements to her mother and to Osborn were sufficiently reliable. The first Ryan factor is inconclusive because there is conflicting testimony as to A.C.'s motive to lie. Specifically, the Abernathys testified that A.C. did not like to go to Blackwell's house, suggesting that A.C. had a motive to lie to avoid visiting the house. But Lisa Abernathy testified that A.C. did not want to tell her about the sexual abuse "because {A.C.} felt that if — even if she told {Lisa}, that she would have to go back {to Blackwell's house} one day." RP at 170.
As to the second factor, the declarant's general character, the trial court had evidence that A.C.'s character was trustworthy. A.C. testified that it is better to tell the truth, and when asked why, she answered: Because if you tell a lie, eventually somebody's going to find out, and the consequence is just going to be even worse than telling the truth.
If you're doing something bad and you tell the truth about it, you still get in trouble, but if you lie about it, you get in even more trouble. So, better to just tell the truth.
RP at 37-38.
Further, Victor Abernathy testified that he had not experienced "any problem about {A.C.} telling the family lies{,} . . . any complaints from her school about her lying{,} . . . {or} any complaints from any of {A.C.'s} — parents of any of {A.C.'s} friends about her lying." RP at 127. And Lisa Abernathy testified to the same effect. Regarding the third factor, whether more than one person heard the statement, A.C. first disclosed only to her mother but then she repeated her accusations to both Abernathys together. This suggests trustworthiness. But Osborn interviewed A.C. alone, which weighs against trustworthiness.
Regarding the fourth factor, A.C.'s statements to her mother were spontaneous but Osborn solicited her statements by questioning. As for the fifth factor, A.C.'s relationship with her mother suggests that the statements to her mother were trustworthy. Statements to friends suggest trustworthiness. State v. Whelchel, 115 Wn.2d 708, 723, 801 P.2d 948 (1990). Osborne was a stranger to A.C. and we do not know what explanation A.C. received about why she was meeting with Osborne. Thus, this factor is inconclusive as to Osborne.
The sixth factor, whether the statements were express assertions of past fact, is of little use when applying RCW 9A.44.120, for most statements offered under that statute are express assertions of past fact. State v. Karpenski, 94 Wn. App. 80, 109 n. 125, 971 P.2d 553 (1999). Regarding the seventh factor, A.C. testified and was cross examined. The eighth factor, the possibility that A.C.'s recollection was faulty, suggests trustworthiness. A.C. told her mother about Blackwell's conduct "recently" after the last incident occurred, and she spoke with Osborn one month later, minimizing the possibility of a faulty recollection. RP at 171.
Finally, the ninth factor, the general circumstances, suggests trustworthiness. Neither Lisa Abernathy nor Osborn asked questions suggesting that A.C. had been sexually abused or suggesting a perpetrator. Yet A.C. described the assault to Osborn, identified Blackwell as her assailant, and never said that someone other than Blackwell had assaulted her. Similarly, Lisa Abernathy testified that she did not frame her questions to A.C. in a way that suggested to her daughter that she had been sexually assaulted or who was responsible.
Although only some of the factors suggest trustworthiness, it is not error to find that a child's hearsay statement is reliable even if it does not satisfy every Ryan factor. Swan, 114 Wn.2d at 652. The factors simply help the court decide "whether the comments and circumstances surrounding the statement indicate it to be reliable." Swan, 114 Wn.2d at 648. Here, where numerous indicators pointed to reliability, we cannot say that the trial court abused its discretion by finding A.C.'s hearsay statements reliable and, thus, admissible.
III. Testimony About A.C.'s Credibility
Blackwell next argues that Victor Abernathy, Osborn, and Elliott improperly testified as to their opinions about whether A.C. was telling the truth. Specifically, he challenges the admissibility of: (1) Victor Abernathy's testimony that after A.C. disclosed Blackwell's alleged misconduct, he consoled her by "let{ting} her know that we trusted her, we believed her", and that before her court appearances, he spoke with her to "{make} sure she felt comfortable with what she was doing, and if it was true, again, reiterate, you know, the importance of what she was saying"; (2) Osborn's testimony that she told A.C. "that it's important everything we talk about today be the truth," that A.C. promised to tell the truth, and that at the end of the interview A.C. indicated that the things she had said were true; and (3) Dr. Duralde's testimony about Elliott's assessment that A.C. had probably been sexually assaulted, which Blackwell argues implied that A.C. was telling the truth. RP at 271, 289, 329. Again, because this alleged error may arise on remand, we address it here.
The State argues that Blackwell failed to properly object to these statements, but because improper testimony about a witness's credibility is a constitutional error, it is reviewable for the first time on appeal if prejudicial. RAP 2.5(a)(3); See also State v. Jones, 71 Wn. App. 798, 812, 863 P.2d 85 (1993) (opinion testimony as to the credibility of a witness is inadmissible because it impinges on the defendant's constitutional right to have a jury make an independent determination of the facts); State v. McFarland, 127 Wn.2d 322, 333, 899 P.2d 1251 (1995) (A claim of error may be raised for the first time on appeal if it affects a constitutional right and is prejudicial).
A witness may not express an opinion of another witness's credibility because doing so impinges on the defendant's constitutional right to have a jury make an independent determination of the facts. Carlson, 80 Wn. App. at 123; State v. Jones, 71 Wn. App. 798, 812, 863 P.2d 85 (1993). But it is clear that Victor Abernathy's consoling comments were intended merely to reassure and encourage A.C., not to represent an opinion regarding credibility. See Jones, 71 Wn. App. at 812 (testimony about statement to child that "I believe you" was admissible because the statement was intended to reassure the child and encourage the child to respond, rather than amounting to an opinion on the child's credibility). Likewise, Osborn's testimony did not express her opinion as to whether A.C. was telling the truth.
Finally, the trial court instructed the jurors that they were "the sole judges of the credibility of the witnesses and of what weight is to be given to the testimony of each." CP at 41. Thus, it was not error to admit Victor Abernathy's or Osborn's testimony. Because we concluded above that it was error to admit Elliott's opinion about the probability of the abuse, we need not consider whether it was also error in this context.
IV. Sufficiency of the Evidence
Blackwell argues that there was insufficient evidence that he was guilty of all four child molestation counts. In reviewing the sufficiency of the evidence, we ask whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Joy, 121 Wn.2d 333, 338, 851 P.2d 654 (1993). "A challenge to the sufficiency of the evidence or a motion having that effect admits the truth of the state's evidence and all inferences that reasonably can be drawn therefrom. Furthermore, the evidence is interpreted most strongly against the defendant and in a light most favorable to the state." State v. Holbrook, 66 Wn.2d 278, 279, 401 P.2d 971 (1965).
A person commits first degree child molestation by "{having}, or knowingly caus{ing} another person under the age of eighteen to have, sexual contact with another who is less than twelve years old and not married to the perpetrator and the perpetrator is at least thirty-six months older than the victim." RCW 9A.44.083(1). And "'Sexual contact' means any touching of the sexual or other intimate parts of a person done for the purpose of gratifying sexual desire of either party or a third party." RCW 9A.44.010(2).
During closing, the State mentioned that A.C. told Osborn "that {Blackwell}, her uncle, made her touch his private part, his penis, in the living room, in his bedroom, in his daughter's bedroom, and in his car. Four counts of child molestation in the first degree." RP at 895. The State continued:
We'd ask you to find the defendant guilty as charged on all the four counts of child molestation in the first degree: For molesting her, as she reported in the living room, in the bedroom — his bedroom, in {his daughter's} room, and fourth, in his car.
She testified it happened lots of times . . . and we're asking that you convict the defendant of the four places that it happened. We know that it happened more than four times, but she was able to tell us the different locations where he would do these things, where he would make her do these things, and we'd ask you to find him guilty as charged.
RP at 902-03.
A.C.'s aunt, Clarissa Blackwell, testified that at the time of trial Blackwell was 36 years old and A.C. was 10 years old. And A.C. testified that she had never been married.
Lisa Abernathy testified that A.C. described improper touching incidents in Blackwell's bedroom, on the floor of his living room, and in Blackwell's stepdaughter's room. Osborn testified that A.C. told her about improper touchings in Blackwell's bedroom, in his stepdaughter's bedroom, in his living room when he was wearing a robe, and in the car. A.C. told Osborn that when Blackwell took her along to pick up her "cousin" or her brother, "he would take all these shortcuts because it's not that far away from {A.C.'s} house," and that he made her touch his private, pulling his clothing down so that she could touch him on the "skin." RP at 342, 343. And A.C. testified that Blackwell took her hand and made her touch his private "in a circle" motion "more than ten times." RP at 681-82. She testified that when she and Blackwell went to pick up his stepdaughter in the car, Blackwell took her hand and made her "touch his private on the skin" while his pants were open. RP at 665. And she testified that he made her touch him when they were sitting in his bedroom on his bed. Viewing this evidence and reasonable inferences from it in the light most favorable to the State, a rational trier of fact could have found beyond a reasonable doubt the essential elements of each of the four counts of first degree child molestation.
V. Cumulative Error
Blackwell argues that the individual errors he alleges are cumulative, requiring reversal and a new trial. The cumulative error doctrine applies where there have been several trial errors, individually not justifying reversal, that, when combined, deny a defendant a fair trial. State v. Greiff, 141 Wn.2d 910, 929, 10 P.3d 390 (2000).
Because the single error in this case requires reversal, the cumulative error doctrine does not apply.
Accordingly, we reverse and remand for a new trial.
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.
MORGAN, P.J. and ARMSTRONG, J., concur.