Opinion
No. 25908-1-III.
April 3, 2008.
Appeal from a judgment of the Superior Court for Benton County, No. 05-1-01352-8, Craig J. Matheson, J., entered February 7, 2007.
Affirmed by unpublished opinion per Sweeney, C.J., concurred in by Korsmo, J., and Thompson, J. Pro Tem.
This appeal follows a conviction for first degree rape of a child. The trial court refused to let the defendant's brother testify about the victim's propensity to tell the truth and her sexual precociousness. The court's refusal was well within the court's discretionary authority. The defendant also claims that the State impermissibly vouched for the credibility of the child victim. We conclude that the remarks, even if construed as a comment on credibility, are not so flagrant as to warrant reversal. We then affirm the conviction.
FACTS
Amador M. Camacho and his wife and children lived next door to seven-year-old D.C. and D.C.'s family. D.C. played regularly with Mr. Camacho's children while Mr. Camacho was home. D.C. told her mother that Mr. Camacho touched her private parts. D.C.'s mother called police. The State later charged Mr. Camacho with one count of first degree rape of a child.
Excluded Evidence. The State moved to exclude anticipated testimony of a defense witness, Mr. Camacho's brother, Daniel Camacho. Daniel Camacho was prepared to testify that D.C. told police in December 2004 that he french kissed her and that the allegation was false. The court concluded there was no clear evidence that the allegation was false and that the proposed testimony was irrelevant and barred by Washington's rape shield statute, RCW 9A.44.020.
Later the court also rejected defense arguments that the proposed testimony showed that Mr. Camacho was not the source of the victim's knowledge of sex. The court again refused the offer. It reasoned that the testimony was irrelevant and inadmissible under the rape shield statute because D.C. was too young to consent and therefore D.C.'s conduct toward other individuals was not probative. Moreover, the court stated that Mr. Camacho's jury should not determine what happened between Daniel Camacho and D.C. because doing so would confuse the jury, cause it to speculate, and lead it astray of the issues in Mr. Camacho's case. Finally, the court excluded the testimony as irrelevant because Daniel Camacho would testify that D.C.'s allegation against him was false, which did not tend to prove that D.C.'s sexual knowledge came from someone other than Mr. Camacho.
State's Closing Argument. The State told the jury, during closing argument, that the disputed issue was whether Mr. Camacho had sexual intercourse with D.C. The prosecutor argued that the verdict in a sex case generally hinges upon the credibility of the victim and the accused. She then urged the jury to think critically about D.C.'s and Mr. Camacho's testimonies:
You're supposed to be the sole judge of the credibility of all of the witnesses that come before you. You have to look at why a seven-year-old, an eight-year-old now, would continue to tell you the story. Because it happened to [D.C.] This is what happened. For you to believe the defendant's arguments . . . I was going to go through what you would have to believe if you believe the defendant's version.
Report of Proceedings (RP) at 418 (emphasis added). The prosecutor then argued that the jury would have to believe that D.C. plotted the alleged rape in her mind if it were to believe Mr. Camacho's version of the facts. She argued that the jury would have to believe that D.C. lied:
Defense counsel wants you to believe that [D.C.] even held strong on this lie when [D.C.] went to Kids Haven when Miss Murstig testified she told [D.C.], "You . . . could tell the truth in here, no matter what." And [D.C.] says in [D.C.'s] little mind, "I'm still going to lie. I'm going to lie, lie, lie, because I want to ruin my best friend's dad's life." That's what you have to believe to believe the defendant's story, ladies and gentlemen.
RP at 420 (emphasis added). The prosecutor concluded her argument by stating that the credibility of D.C.'s testimony was unaffected by her mother's assault on Mr. Camacho's wife during trial:
Ladies and gentlemen, we don't condone what [D.C.'s] mom did outside. It's a shame that she couldn't control herself. Is it understandable? Perhaps. The defendant raped her daughter. . . . That doesn't affect . . . what [D.C.] told you in court. What [D.C.] told you is still the same. It's what happened to [D.C.], ladies and gentlemen.
RP at 420-21. Defense counsel did not object to the State's closing argument. The jury convicted Mr. Camacho.
DISCUSSION
Excluded Evidence
Mr. Camacho first argues that the trial court should have admitted Daniel Camacho's testimony because it was relevant and not barred by the rape shield statute. He contends the testimony would have shown that D.C. had been sexually abused before, rebutting the inference that D.C. would not know how to describe the alleged sexual acts unless she had experienced them with Mr. Camacho.
We review a trial court's ruling on the admissibility of evidence for abuse of discretion. State v. Stubsjoen, 48 Wn. App. 139, 147, 738 P.2d 306 (1987). Exclusion of evidence under the rape shield statute is also reviewed for an abuse of discretion. State v. Hudlow, 99 Wn.2d 1, 17, 659 P.2d 514 (1983). The trial court abuses its discretion when its decision is "manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons." State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971). We may uphold a trial court's evidentiary ruling on any ground that the record supports. State v. Powell, 126 Wn.2d 244, 259, 893 P.2d 615 (1995). Rape Shield Statute
"[O]nly evidence offered to prove credibility or consent is barred by the rape shield statute. Evidence offered to prove anything else is subject only to the general relevancy requirement of ER 403." State v. Harris, 97 Wn. App. 865, 871, 989 P.2d 553 (1999). The rape shield statute does not bar evidence of similar sex abuse of the victim when offered to rebut the inference that the victim would not know about or be able to describe the alleged sexual acts unless the victim had experienced such acts with the defendant. State v. Carver, 37 Wn. App. 122, 124-25, 678 P.2d 842 (1984).
In Carver, Mr. Carver was charged with one count of indecent liberties and one count of second degree statutory rape. Id. at 123. He tried to offer evidence that the victims suffered similar sexual abuse by others to rebut the inference that they, two young girls, would have been unable to describe the abusive acts but for the alleged abuse they experienced at the hands of Mr. Carver. Id. The trial court excluded the evidence under the rape shield statute because it attacked the victims' credibility. Id. at 123-24. The Court of Appeals reversed, concluding that the rape shield statute did not apply because the evidence was prior sexual abuse, not misconduct. Id. at 124. The court also concluded that the evidence was relevant to Mr. Carver's defense because, without it, the jury could infer that the victims had sexual knowledge of the acts they testified to only because Mr. Carver was guilty as charged. Id. at 124-25.
Mr. Camacho's case is different. Here, Daniel Camacho would have testified that D.C. accused him of french kissing her before she ever alleged that Mr. Camacho raped her. This proposed testimony is not evidence of abuse similar to rape. Daniel Camacho also would have testified that D.C.'s allegation involved D.C.'s inappropriate behavior toward Daniel Camacho. This proposed testimony is evidence of D.C.'s misconduct. And the rape shield statute bars such evidence. Harris, 97 Wn. App. at 871; Carver, 37 Wn. App. at 124. The rape shield statute applies to exclude Daniel Camacho's testimony. Relevance Even if the rape shield statute did not apply, Mr. Camacho failed to establish that the testimony was relevant. A court can exclude prior accusation evidence, even if offered for a purpose other than attacking credibility, if its slight probative value is outweighed by prejudice to the victim. Harris, 97 Wn. App. at 872. "The defendant must demonstrate its relevance." Id.
Relevant evidence is evidence that tends to increase or decrease the likelihood that a material fact exists. ER 401. Material facts are those "of consequence to the determination of the action." Id. Relevant evidence is admissible unless otherwise prohibited by statute or the rules of evidence. ER 402. "Evidence which is not relevant is not admissible." Id.
Here, Mr. Camacho failed to show that D.C.'s allegation against Daniel Camacho was true or false. In fact, the record shows that Daniel Camacho would have testified that D.C.'s allegation against him was false. Testimony that Daniel Camacho did not sexually abuse D.C. does not tend to prove that D.C.'s sexual knowledge came from someone other than Mr. Camacho. Without such proof, the evidence was not relevant. The trial court's decision therefore was based upon a tenable ground that the record supports. See Powell, 126 Wn.2d at 259. Prosecutorial Misconduct
Mr. Camacho next contends that the State committed prosecutorial misconduct during closing arguments, violating his right to a fair trial. He argues that the misconduct was flagrant, ill-intentioned, and incurable by an admonition to the jury.
We review assignments of manifest constitutional error de novo. State v. Curtis, 110 Wn. App. 6, 11, 37 P.3d 1274 (2002). When a defendant argues that a manifest constitutional error occurred at the trial level, we consider first, whether the alleged error was a manifest constitutional error; second, whether there is merit to the constitutional argument; and, finally, if there was error, whether the error can be found harmless. State v. Binh Thach, 126 Wn. App. 297, 312, 106 P.3d 782 (2005).
Mr. Camacho contends that he was denied a fair trial when the prosecutor made flagrant and ill-intentioned comments during closing arguments that could not be neutralized by a curative instruction. Prosecutorial misconduct can violate a defendant's due process right to a fair trial. State v. Charlton, 90 Wn.2d 657, 664-65, 585 P.2d 142 (1978).
Manifest Constitutional Error
Generally the defendant must object at trial to preserve a claim of prosecutorial misconduct for appeal. State v. Russell, 125 Wn.2d 24, 86, 882 P.2d 747 (1994); RAP 2.5(a). We will then only review the assignment of error if it rises to the level of a manifest constitutional error, i.e., it is "'so flagrant and ill intentioned that it evinces an enduring and resulting prejudice that could not have been neutralized by an admonition to the jury.'" State v. Gentry, 125 Wn.2d 570, 640, 888 P.2d 1105 (1995) (quoting State v. Hoffman, 116 Wn.2d 51, 93, 804 P.2d 577 (1991)).
"The defendant must identify a constitutional error and show how, in the context of the trial, the alleged error actually affected the defendant's rights; it is this showing of actual prejudice that makes the error 'manifest', allowing appellate review." State v. McFarland, 127 Wn.2d 322, 333, 899 P.2d 1251 (1995) (citing State v. Scott, 110 Wn.2d 682, 688, 757 P.2d 492 (1988); State v. Lynn, 67 Wn. App. 339, 346, 835 P.2d 251 (1992)).
Mr. Camacho argues that the prosecutor told the jury that it would have to believe D.C. lied to believe Mr. Camacho's testimony. He contends that this statement misstated the law, misrepresented the jury's role, and misrepresented the burden of proof. Such a comment would constitute prosecutorial misconduct. State v. Wright, 76 Wn. App. 811, 826, 888 P.2d 1214 (1995); State v. Barrow, 60 Wn. App. 869, 875-76, 809 P.2d 209 (1991). But it would not amount to a manifest constitutional error. Barrow, 60 Wn. App. at 876 (finding that a curative instruction would have cured the prejudice engendered from similar liar arguments).
The conduct Mr. Camacho complains of was not so "flagrant" or "ill intentioned" as to be insurmountable prejudice. Mr. Camacho has not, then, shown manifest constitutional error. A nonconstitutional error which was not objected to at trial is waived on appeal and this court may discontinue its review. See Russell, 125 Wn.2d at 86.
Mr. Camacho next argues that the prosecutor committed misconduct during closing arguments when she twice vouched for D.C.'s credibility. He maintains that such misconduct was prejudicial because the case was close and witness credibility was critical. We can infer from Mr. Camacho's argument that he believes the prosecutor's statements added weight to D.C.'s credibility, violating his right to a fair trial.
Expressing a personal belief as to the credibility of witnesses constitutes prosecutorial misconduct. State v. Papadopoulos, 34 Wn. App. 397, 400, 662 P.2d 59 (1983). Such opinion "is not necessarily a ground for reversal of a judgment and may not even constitute an error in law (as distinguished from a breach of ethics). However, such a breach can, under certain circumstances, constitute prejudicial error preventing a fair trial." State v. Case, 49 Wn.2d 66, 76, 298 P.2d 500 (1956) (citing Ryan v. Ryan, 48 Wn.2d 593, 599-600, 295 P.2d 1111 (1956)).
We must then consider whether there is merit to Mr. Camacho's constitutional argument that the prosecutor improperly vouched for D.C.'s credibility.
Meritorious Constitutional Argument
Again, counsel is forbidden from clearly expressing a personal belief about the witness's credibility. Case, 49 Wn.2d at 76; State v. Sargent, 40 Wn. App. 340, 343-44, 698 P.2d 598 (1985). A prosecutor may, however, analyze a witness's apparent credibility. State v. Pacheco, 107 Wn.2d 59, 71, 726 P.2d 981 (1986). Counsel may also properly argue inferences from the evidence in the record. State v. McKenzie, 157 Wn.2d 44, 58-59, 134 P.3d 221 (2006); State v. Munguia, 107 Wn. App. 328, 337, 26 P.3d 1017 (2001). Prejudicial error does not occur until such time as it is clear and unmistakable that counsel is not arguing an inference from the evidence but is expressing a personal opinion. State v. Brett, 126 Wn.2d 136, 175, 892 P.2d 29 (1995); Papadopoulos, 34 Wn. App. at 400.
We review the comments in the context of the prosecutor's entire argument, the issues in the case, the evidence addressed in the argument, and the instructions given to the jury. State v. Bryant, 89 Wn. App. 857, 873, 950 P.2d 1004 (1998).
The prosecutor made the following statements during closing arguments:
You're supposed to be the sole judge of the credibility of all of the witnesses that come before you. You have to look at why a seven-year-old, an eight-year-old now, would continue to tell you the story. Because it happened to her. This is what happened. . . .
. . . .
. . . [D]on't punish [D.C.] because her mother could not control her anger with the defendant's wife. That is a collateral issue. That doesn't affect . . . [D.C.]'s testimony, or what [D.C.] told you in court. What she told you is still the same. It's what happened to her, ladies and gentlemen.
RP at 418, 421 (emphasis added).
These statements were not so "flagrant" or "ill intentioned" so as to amount to insurmountable prejudice either. First, the prosecutor's comments are not clear and unmistakable expressions of personal opinion when viewed in context. The comments can be easily characterized as an analysis of D.C's apparent credibility — that D.C.'s story has been consistent regardless of other's actions or the passage of time. They can also be characterized as rebutting an inference from the defense's evidence — that D.C. fabricated the story after watching adult movies and HBO. Moreover, the portion of argument involved is brief. And, finally, the court instructed the jury to disregard any remark, statement, or argument not supported by the evidence or the law. Juries are presumed to obey the court's instructions. State v. Davenport, 100 Wn.2d 757, 763, 675 P.2d 1213 (1984). Mr. Camacho's constitutional argument is without merit. He, therefore, waived his objection at trial.
We affirm the trial court's decision and the conviction.
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.
KORSMO, J., THOMPSON, J. Pro Tem., concur.