Opinion
No. 36371-2-II.
August 12, 2008.
Appeal from a judgment of the Superior Court for Mason County, No. 04-1-00392-0, James B. Sawyer II, J., entered May 21, 2007.
Affirmed by unpublished opinion per Quinn-Brintnall, J., concurred in by Van Deren, C.J., and Bridgewater, J.
A jury found David M. Brissette guilty of two counts of molesting his stepdaughter, J.L.H., and two counts of molesting his daughter, S.L.B. At trial, J.L.H. testified that Brissette had fondled and raped her and that S.L.B. disclosed Brissette had fondled her as well. J.L.H.'s testimony regarding S.L.B.'s disclosure was the only corroboration of S.L.B.'s allegations. After the verdict, but before sentencing, J.L.H. recanted. At the subsequent hearing on Brissette's motion for a new trial, J.L.H. testified that she had lied when she testified that (1) Brissette fondled and raped her and (2) S.L.B. had told her that Brissette molested her. The trial court found J.L.H.'s recantation credible and eventually ordered a new trial on all counts.
The procedural history for this case is unusual. Following a hearing on Brissette's motion for a new trial, the trial court concluded that J.L.H.'s recantation was credible. It ordered a new trial for counts I and II, involving J.L.H., but initially denied a new trial on counts IV and V, involving S.L.B. The State voluntarily dismissed counts I and II. Brissette then appealed the denial of his new trial motion on counts IV and V to this court and we granted the trial court permission to enter findings of fact and conclusions of law. The trial court then reconsidered its earlier ruling and ordered a new trial on counts IV and V. We dismissed Brissette's appeal as moot because the trial court had granted the relief that Brissette requested of this court, a new trial on counts IV and V. Then the State filed the current appeal to challenge the grant of a new trial on counts IV and V.
The State appeals the order for a new trial on counts IV and V, involving second degree child molestation of S.L.B. Because the trial court did not abuse its discretion when it held that J.L.H.'s false testimony was material to counts IV and V, involving S.L.B., and prejudiced the reliability of the jury verdict, we affirm the trial court and remand for a new trial on counts IV and V.
FACTS
The State charged Brissette with first degree child molestation of J.L.H. (count I), second degree child molestation of J.L.H. (count II), third degree child rape of J.L.H. (count III), and two counts of second degree child molestation of S.L.B (counts IV and V). Seventeen-year-old J.L.H. testified that Brissette, her stepfather, molested her countless times and raped her once. And 15-year-old S.L.B. testified that Brissette, her father, fondled her several times. J.L.H. also testified that, after being removed to their aunt and uncle's house in California, S.L.B. told her that Brissette had fondled her.
The State amended the information before it rested its case, adding count V in order to conform to S.L.B.'s testimony.
Brissette testified on his own behalf and denied his daughters' allegations. His defense theory was that J.L.H. wanted to run away to escape their restrictive and poverty-stricken home environment and because she wanted to attend school, which she had not done since first grade. J.L.H. had asked a family friend to help her run away, but the friend said she could not help unless Brissette was molesting her. Brissette theorized that J.L.H. falsified the allegations in order to fulfill her desire to leave home and repeated her allegations because they accomplished her goal — she was sent to live with her relatively wealthy aunt and uncle in California where the rules were less restrictive and she happily attended school. At trial, J.L.H. admitted that she had recanted her allegations twice before trial, including during a phone call to Brissette's attorney. But she testified that the recantations were false and motivated by pressure she felt to reunite her now-divided family.
Brissette's case theory regarding S.L.B. was that she was close to her sister and falsified the allegations to conform to what J.L.H. was saying. There were no witnesses or physical evidence of the alleged sexual assaults except a medical finding regarding J.L.H. that was inconclusive (but possibly indicative) of sexual intercourse. The jury found Brissette guilty on all counts except count III, child rape.
Before the trial court entered convictions or sentenced Brissette, J.L.H. recanted her testimony. She was appointed an attorney who informed her that recantation could subject her to a conviction and jail time for perjury. Nevertheless, she testified that Brissette had never molested or raped her and that she made up the allegations in order to run away. She also testified that S.L.B. had never told her Brissette molested her and instead said he had not done so.
Following a hearing on Brissette's motion for a new trial, the trial court concluded that J.L.H.'s recantation was credible. It ordered a new trial for counts I and II, involving her, but initially denied a new trial on counts IV and V, involving S.L.B. The State voluntarily dismissed counts I and II. The trial court eventually ordered a new trial on counts IV and V. The State appeals the grant of a new trial on counts IV and V.
ANALYSIS
The State argues that the trial court abused its discretion when it granted Brissette's motion for a new trial on counts IV and V, which relate to S.L.B. The State does not appeal the trial court's finding that J.L.H.'s recantation was credible or that a new trial is warranted for counts I and II, which relate to J.L.H. Rather, the narrow question on appeal is whether the trial court abused its discretion when it held that J.L.H.'s recantation testimony would likely change the result of the jury's verdict on counts IV and V, which relate to S.L.B. Standard of Review
As the State concedes, whether J.L.H.'s recantation was credible is not appealable because credibility determinations are reserved for the trier of fact. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990). And if a defendant's conviction is based solely on a recanting witness's testimony and the trial court finds the recantation reliable, the trial court must grant the defendant's motion for new trial. State v. Macon, 128 Wn.2d 784, 800, 911 P.2d 1004 (1996). Brissette's convictions on counts I and II rested solely on J.L.H.'s testimony, which the trial court held was credible and, therefore, the trial court was required to grant a new trial regarding those counts. On the State's motion, it later dismissed these two counts.
The trial court is vested with broad discretion in granting motions for new trial. State v. Marks, 71 Wn.2d 295, 302, 427 P.2d 1008 (1967). We will not disturb an order granting a new trial absent clear abuse of discretion. Marks, 71 Wn.2d at 302. In this context, a trial court abuses its discretion only if "`no reasonable judge would have reached the same conclusion.'" State v. Bourgeois, 133 Wn.2d 389, 406, 945 P.2d 1120 (1997) (quoting Sofie v. Fibreboard Corp., 112 Wn.2d 636, 667, 771 P.2d 711, 780 P.2d 260 (1989)). "A much stronger showing of an abuse of discretion ordinarily will be required to set aside an order granting a new trial than one . . . denying it." State v. Crowell, 92 Wn.2d 143, 145-46, 594 P.2d 905 (1979) (citing Worthington v. Caldwell, 65 Wn.2d 269, 278, 396 P.2d 797 (1964)).
A trial court may grant a new trial when it affirmatively appears that a defendant's substantial right was materially affected by "[n]ewly discovered evidence material [to] the defendant, which the defendant could not have discovered with reasonable diligence and produced at the trial." CrR 7.5(a)(3). Recantation is generally considered newly-discovered evidence for purposes of a new trial motion. State v. Macon, 128 Wn.2d 784, 799-800, 911 P.2d 1004 (1996).
When deciding whether to grant a new trial based on newly-discovered evidence, a trial court considers five requirements:
"(1) [T]he evidence must be such that the results will probably change if a new trial were granted; (2) the evidence must have been discovered since the trial; (3) the evidence could not have been discovered before the trial by exercising due diligence; (4) the evidence must be material and admissible; and (5) the evidence cannot be merely cumulative or impeaching."
State v. Eder, 78 Wn. App. 352, 357, 899 P.2d 810 (1995) (emphasis omitted) (quoting State v. Davis, 25 Wn. App. 134, 138, 605 P.2d 359 (1980)), review denied, 129 Wn.2d 1013 (1996).
"The absence of any one of the five factors is sufficient to deny a new trial." Eder, 78 Wn. App. at 357 (citing State v. Williams, 96 Wn.2d 215, 223, 634 P.2d 868 (1981)). The State challenges the trial court's order on only the first and fourth requirements. To determine whether newly-discovered evidence is such that the results will probably change if a new trial were granted, the trial court must determine the proffered evidence's credibility, significance, and cogency. State v. Goforth, 33 Wn. App. 405, 409, 655 P.2d 714 (1982). The trial court may use the knowledge that it gained from presiding at the trial. Goforth, 33 Wn. App. at 409.
Notably, the State does not contend that the recantation was "merely cumulative or impeaching." Suppl. Clerk's Papers at 6. The trial court concluded it was not and the State does not assign error to this conclusion.
Regarding the fourth requirement, evidence is "material" if it has "some logical connection with the consequential facts." Bryan A. Garner, A Dictionary of Modern Legal Usage, at 550 (2nd ed. 1995). Recantation is not material if the trial court finds that it is not credible. State v. Ieng, 87 Wn. App. 873, 875, 942 P.2d 1091 (1997), review denied, 134 Wn.2d 1014 (1998). But newly-discovered evidence that a key witness perjured herself, if true, may constitute a material fact. State v. Rolax, 84 Wn.2d 836, 838, 529 P.2d 1078 (1974), overruled on other grounds by Wright v. Morris, 85 Wn.2d 899, 540 P.2d 893 (1975). Effect of J.L.H.'s Recantation on Charges Involving S.L.B.
The trial court properly held that J.L.H.'s recantation was material to, and likely would have changed, the outcome on counts IV and V. Accordingly, the trial court did not err when it granted a new trial for counts IV and V.
The record reveals several ways in which J.L.H.'s recantation would affect the jury's verdict on counts IV and V and is material to those counts. We focus on two. First, J.L.H.'s perjured testimony was the sole evidence corroborating S.L.B.'s testimony. There was no medical evidence, no witnesses, and no reports of abuse to neighbors, friends, or authorities.
Further, at trial, S.L.B. admitted that her allegations to a social worker were not true. A family friend also testified that he explained J.L.H.'s allegations to S.L.B. and asked if Brissette touched her in an inappropriate manner. S.L.B. reportedly said that nothing like that had happened to her.
J.L.H. testified at trial:
Q [by prosecutor] [D]id you talk to [S.L.B.] about what had happened to you?
A She had asked me `cause I was crying one night. And she asked me why and I told her what had happened. I didn't go in detail, or anything. I just — I told her.
Q What in general did you tell her?
A That [my] stepdad would just rub me. Every time I would sit on his lap he would rub me. I didn't like it when he'd be in the same room if we took baths.
Q What did [S.L.B.] do when you disclosed that to her?
A She started bawling. And she had told me that [Brissette's] been touching her too. And that he would rub powder on her back, or start rubbing her body with the powder. And I was to[o] mad to even think about it, so I went and told [my cousins] that [S.L.B.] kept crying and she — that [Brissette] touched her too.
Q Do you know if [S.L.B.] told anyone besides you?
A She hasn't told anyone at all.
Q Has [S.L.B.] ever told you before that nothing had happened? A Yes, but I think it was because she was scared.
2 Report of Proceedings (RP) at 104-05.
J.L.H. recanted this portion of her corroborating trial testimony:
Q [by defense] When you left the foster home and then got to California, was your sister [S.L.B.] already there?
A Yeah.
Q And did she ever tell you whether or not she had been sexually abused by your stepfather?
A No.
Q She told you — she never told you she had or had not?
A No, she never told me that she had.
Q She never told you that she had been abused?
A Yeah.
. . . .
Q Did she ever — did your sister [S.L.B.] ever tell you that — down in California that [Brissette] had not touched her in any sexual way?
A Yes, she had.
10 RP at 916-17 (emphasis added). This portion of the recantation goes to the heart of counts IV and V, showing that the jury's deliberation on those counts was impermissibly tainted by J.L.H.'s perjured testimony that her sister reported sexual abuse to her. J.L.H.'s recantation is, therefore, both material and likely to influence the outcome of those charges.
Brissette submitted a statement of additional authority citing Division Three's recent decision, State v. Babcock, No. 23491-6-III, 2008 Wash. App. LEXIS 1440 (June 19, 2008). Read broadly, Babcock supports Brissette's claim but we decline to address Babcock's reasoning because, given J.L.H.'s perjured testimony about S.L.B.'s disclosure, the trial court clearly did not abuse its discretion.
The State argues that the trial court abused its discretion because it had earlier instructed the jury that "[a] separate crime is charged in each count. You must decide each count separately. Your verdict on one count should not control your verdict on any other count." Clerk's Papers at 101. We assume the jury followed this instruction and, thus, did not find Brissette guilty on the counts involving S.L.B. solely because it found him guilty on the counts involving J.L.H. But the jury was not prohibited from considering J.L.H.'s perjured testimony about Brissette's abuse of her when it determined S.L.B.'s credibility. And the jury was not prohibited from considering J.L.H.'s testimony that S.L.B. disclosed to J.L.H. that Brissette had molested her. Accordingly, assuming as we do that the jury followed the court's instructions, this instruction does not prevent the jury from considering S.L.B.'s perjured testimony when it entered a verdict on counts IV and V and, thus, did not render the trial court's decision an abuse of its discretion. 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.
BRIDGEWATER, J., VAN DEREN, C.J., concur.