Opinion
No. 35762-3-II.
February 26, 2008.
Appeal from a judgment of the Superior Court for Clallam County, No. 06-1-00260-1, Kenneth D. Williams, J., entered December 28, 2006.
Reversed and remanded by unpublished opinion per Penoyar, J., concurred in by Van Deren, A.C.J., and Bridgewater, J.
The jury found Robert Chesney guilty of first degree child rape and first degree incest. Chesney's eleven year old daughter, AC, testified that Chesney sexually abused her beginning when she was three years old until she was nine years old. Chesney appeals, claiming (1) that the testifying pediatrician, Dr. Harrington, improperly commented on Chesney's guilt and AC's veracity; (2) that the evidence was insufficient to prove beyond a reasonable doubt that one of the alleged crimes occurred within the charging period; (3) that the trial court erred in permitting the jury to review, during deliberation, an unredacted video interview between Chesney and police; and (4) that he was denied a fair trial through ineffective assistance of counsel. We reverse and remand for a new trial because the trial court should not have admitted Dr. Harrington's comments.
FACTS
In June 2006, AC, an eleven year old girl, told two family friends about a number of memories she had of her father, Chesney, sexually abusing her as a child. The family friends contacted AC's school, which in turn notified the police.
On June 6, Deputy Gerald Swayze contacted AC at her school and took her to the police station for further interviewing. After AC failed to return home from school by 3:00 pm, Chesney phoned the school. The principal of AC's school told Chesney that AC was at the police station and that the police would like to speak with him.
Chesney was administered his Miranda warnings and asked if he wanted a lawyer upon arrival at the police station. He indicated that he understood the warnings and did not want a lawyer. Chesney then agreed to be interviewed by Detective Robert Ensor and agreed to have the interview recorded on DVD.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Police arrested Chesney after the interview and charged him with two counts of first degree child rape and two counts of first degree incest. A jury trial followed where both AC and Chesney testified, as did Dr. Harrington and two police officers. The jury found Chesney guilty of one count of child rape and one count of incest. This appeal followed.
I. AC's Testimony
AC testified that Chesney began to abuse her when she was three years old. The first specific incident she recalled occurred when she returned home from kindergarten to find her father lying on the couch. She testified that Chesney removed her underwear and skirt as well as his pants and "rubbed me all over his body from his chest to his feet." Report of Proceedings (RP) (Nov. 14, 2006) at 41. She claimed that Chesney's penis made contact with her vaginal area several times. AC recounted that during this incident her father also inserted his pointer and middle finger inside her vagina slightly and that he smelled of alcohol.
In a second instance, AC described crawling into bed with her father after having a nightmare. She remembered being eight years old at the time. AC recalled that her father was naked and that he "moved [her] underwear to the side" and pressed "his penis against [her] vagina." RP (Nov. 14, 2006) at 43-44. AC remembers that after this incident her father told her "don't tell anyone . . . this is our little secret." RP (Nov. 14, 2006) at 56-57. She described a similar instance of molestation while on family vacation in Mexico.
This incident was not charged due to jurisdictional issues.
AC also testified that Chesney never "fully" inserted his penis into her vagina on any occasion but that his penis definitely touched the "inside of [her] vaginal area." RP (Nov. 14, 2006) at 97.
II. Dr. Harrington's Testimony
Dr. Harrington testified to her diagnostic impressions after interviewing AC. Dr. Harrington testified that she found no physical symptoms of sexual abuse but after her interview with AC, she concluded that AC suffered from "sexual, physical, [and] emotional abuse by her father." RP (Nov. 15, 2006) at 27. In coming to this conclusion, Dr. Harrington admitted on cross-examination that the medical history provided by AC in her interview was a very important part of her overall analysis.
III. Detective Ensor's Testimony
Detective Ensor testified that he read Chesney his Miranda warnings on June 6, 2006, and subsequently interviewed him. During Detective Ensor's testimony, the State introduced the DVD recording of the interview into evidence and played it in its entirety to the jury. Defense counsel did not object when the DVD was offered into evidence or when it played to the jury during trial.
The DVD recording showed Chesney and Detective Ensor conversing for approximately 35 minutes. Chesney answered almost all questions posed and laughed several times during the interview. Detective Ensor discussed AC's allegations with Chesney and asked him questions about whether the events described by AC occurred. Responding to Detective Ensor's question regarding any attempt to have "full blown sex" with AC, Chesney replied, "I'd better not have!" Further, when asked if AC was making everything up, Chesney said that he would not "call her a liar" but that he could not "recall" if anything she described actually happened. Detective Ensor asked if it was possible that the inappropriate behavior occurred, and Chesney responded, "it's a possibility, sure . . . anything is a possibility, come on. . . ." DVD (digital versatile disc) Ex. 34, at 20:45 (hereinafter DVD).
When Detective Ensor asked why Chesney would not give AC the "benefit of the doubt" with respect to her memory of what happened, Chesney said: "I will give her the benefit of the doubt . . . dammit, I just . . . I have no memory of [these events happening] . . . and . . . piss. You know? If it did happen then that's gonna be a major issue to work through. . . ." DVD at 26:00.
IV. Chesney's Testimony
In contrast, at trial, Chesney testified that he did not ever touch AC inappropriately or have sexual intercourse with her. He testified that he was "confused," in "shock," and in "disbelief" during the taped interview and that his statements concerning his inability to recall what happened were a product of "attempting to protect" his daughter. RP (Nov. 15, 2006) at 85, 58.
V. Jury Deliberations
During its deliberations, the jury asked to again see the DVD interview. Defense counsel objected, stating that he had "serious concerns that what [the jury was] looking at [was] perhaps some of the stuff that shouldn't have come in in the first place." RP (Nov. 16, 2007) at 6. Specifically, counsel was concerned that Chesney's statements in the interview where he appears to comment on AC's veracity were improper opinion testimony.
Defense counsel failed to object when the DVD was initially played to the jury. Instead, he moved for a mistrial on the morning of the second day of trial on the basis that he had failed to object to the alleged improper opinion testimony. The trial court denied his motion for mistrial.
The trial court permitted this second viewing, reasoning that the "particular statement that we are talking about — which was would you call your daughter a liar, no I wouldn't — would actually be consistent with the Defendant's testimony that 'I was thinking of my daughter, I did not want to harm her.'" RP (Nov. 16, 2006) at 6. He further reasoned that "it's not a direct comment on [AC's] credibility." RP (Nov. 16, 2006) at 6.
The jury convicted Chesney on one count of first degree child rape and one count of first degree incest. The trial court sentenced him to 123 months on the rape charge and, concurrently, 14 months on the incest charge.
ANALYSIS
I. Improper Opinion Testimony
Chesney first claims that Dr. Harrington's testimony, specifically her diagnostic impression that AC had experienced "sexual, physical, emotional abuse by her father," unfairly commented on his guilt, thereby denying him a fair trial. RP (Nov. 15, 2006) 27. Further, Chesney claims that since Dr. Harrington's impression was almost completely based on her interview with AC (and not the physical exam), her testimony is also an improper comment on AC's credibility. The State responds that Dr. Harrington was simply giving an expert opinion and that she did not testify that she believed Chesney was guilty or that AC was telling the truth. Dr. Harrington's testimony was improper and requires us to reverse and remand.
In most instances a party may assign evidentiary error on appeal only on a specific ground raised at trial. State v. Guloy, 104 Wn.2d 412, 422, 705 P.2d 1182 (1985), cert. denied, 475 U.S. 1020 (1986) (citing State v. Boast, 87 Wn.2d 447, 451, 553 P.2d 1322 (1976)). Objecting during trial gives a trial court the opportunity to prevent or cure error. Boast, 87 Wn.2d at 451. For example, a trial court may strike testimony or provide a curative instruction to the jury. In this case, although Chesney objected to Dr. Harrington's testimony, he did not object on the same grounds that he now argues on appeal and thus failed to preserve the issue for appellate review. Nonetheless, he claims they are reviewable because they are constitutional claims.
Following motions in limine, both parties were instructed to limit questioning of Dr. Harrington to matters relating to sexual abuse only. They were told not to ask about other forms of abuse, either physical or emotional, that AC discussed with Dr. Harrington. When asked by the State what her diagnostic impression was, Dr. Harrington testified that her impression "was status quo, sexual, physical, emotional abuse by [AC's] father." RP (Nov. 15, 2008) 27. Chesney's counsel objected. When asked to state the basis of his objection he stated: "Your Honor's already ruled on that prior motion in limine." RP (Nov. 15, 2006) 27. The trial court overruled the objection but cautioned State's counsel to "make sure the witness understands some of the limitations on testimony." RP (Nov. 15, 2006) 27. Defense counsel did not object on the basis of improper opinion testimony, which he now posits.
The general rule is that we will not consider issues raised for the first time on appeal. RAP 2.5(a); State v. Tolias, 135 Wn.2d 133, 140, 954 P.2d 907 (1998); State v. McFarland, 127 Wn.2d 322, 332-33, 899 P.2d 1251 (1995). A claim of error may be raised for the first time on appeal, though, if it is a manifest error affecting a constitutional right. RAP 2.5(a)(3); State v. Walsh, 143 Wn.2d 1, 7, 17 P.3d 591 (2001); Tolias, 135 Wn.2d at 140. Under RAP 2.5(a)(3), to raise an error for the first time on appeal, the error must be "manifest" and truly of constitutional dimension. State v. WWJ Corp., 138 Wn.2d 595, 602, 980 P.2d 1257 (1999); State v. Scott, 110 Wn.2d 682, 688, 757 P.2d 492 (1988). The defendant must identify a constitutional error and show how the alleged error actually affected his trial rights. It is this showing of actual prejudice that makes the error "manifest," allowing appellate review. McFarland, 127 Wn.2d at 333; Scott, 110 Wn.2d at 688. If a court determines the claim raises a manifest constitutional error, it may still be subject to harmless error analysis. State v. Lynn, 67 Wn. App. 339, 345, 835 P.2d 251 (1992).
Courts have held this "manifest error" exception to be narrow. WWJ Corp., 138 Wn.2d at 603. As noted in State v. Kirkman, however, "a nearly explicit statement by the witness that the witness believed the accusing victim" constitutes such error. 159 Wn.2d 918, 936, 155 P.3d 125 (2007). We find that Dr. Harrington's testimony constitutes a "nearly explicit" comment on both the defendant's guilt and the victim's veracity. Dr. Harrington testified that she discovered "no physical signs" of sexual abuse during her examination of AC and that to a large degree her diagnostic impression was based on her interview of AC. RP (Nov. 15, 2006) at 31. Without physical evidence to support her finding, Dr. Harrington indicated to the jury that she believed what AC told her. Doing so constitutes an explicit comment on AC's credibility as a victim, which is impermissible opinion testimony. Further, by relaying to the jury her conclusion that Chesney had abused AC, Dr. Harrington explicitly (and improperly) commented on Chesney's guilt.
In addition, Dr. Harrington's testimony directly violates the order in limine.
Even in light of the improper testimony, we could find the error harmless if convinced beyond a reasonable doubt that any reasonable jury would have reached the same result in the absence of the error. Guloy, 104 Wn.2d at 425. Where, for instance, the error relates to a matter not significant in the case or if the case is proven by other overwhelming evidence, it can be plain that the error did not affect the outcome. Guloy, 104 Wn.2d at 426. Since, however, harmless error was raised for the first time at oral argument, we need not consider the claim on appeal. RAP 12.1.
Here the error was not peripheral; AC's credibility was central to the proof of the case. While Chesney's statements to the police are not those of a blameless man, he does not admit to any specific acts. The jury heard testimony from AC, Chesney (live and a taped interview), Dr. Harrington, and two police deputies. There were no witnesses to any of the alleged crimes, no confession, and no physical signs of abuse. The jury's decision rests entirely on AC's credibility. We cannot find that any reasonable jury would have reached the same result without Dr. Harrington's testimony. Thus, the error was not harmless and we reverse and remand.
II. Sufficiency
Chesney next claims that the evidence was insufficient to prove that the "nightmare" incident AC described at trial occurred during the charging period — on or between December 3, 2002 and December 2, 2003. The State disagrees and claims that, though at times contradictory, AC's testimony is sufficient to establish when the molestation occurred. We agree with the State.
Evidence is sufficient to support a conviction if, viewed in the light most favorable to the prosecution, it permits any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). "A claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom." Salinas, 119 Wn.2d at 201. Circumstantial evidence and direct evidence are equally reliable. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). In analyzing sufficiency of the evidence, we defer to the trier of fact to resolve conflicts in testimony, determine credibility of witnesses, weigh evidence, and draw reasonable inferences therefrom. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).
AC testified that the nightmare incident happened when she was eight years old in the house on West 11th Street. This places the molestation squarely within the time frame charged. AC did make other statements that were less clear (and even conflicting) with respect to how old she was when her mother died, whether her mother was still alive when the incident occurred, and how old she was when she moved into the house on West 11th Street. Since credibility determinations are for the factfinder, the mere presence of conflicting testimony from a witness does not obviate her testimony. If believed, sufficient portions of AC's testimony support this charge. As such, dismissal of the charge is not warranted, and it may be retried on remand.
We address only the remaining issue likely to arise on remand.
III. DVD Evidence
Chesney further argues that the trial court abused its discretion by permitting the jury to view the recorded interview during their deliberations. On remand the State may once again request that the DVD be admitted as evidence and the issue of whether the jury may review it during deliberations may arise.
Chesney did not object when the interview was played to the jury during Detective Ensor's testimony, but Chesney did object when the jury asked to see the DVD for the second time. He claims that the DVD contained impermissible opinion evidence that should not have been shown to the jury. The State argues that the trial court properly admitted the DVD during trial and was correct to allow the jury to view it during deliberations. We do not make a decision here as to the propriety of admitting the DVD evidence at trial. The trial court has discretion to make this determination on remand. See State v. Frazier, 99 Wn.2d 180, 661 P.2d 126 (1983); State v. Castellanos, 132 Wn.2d 94, 935 P.2d 1353 (1997).
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.
VAN DEREN, A.C.J. and BRIDGEWATER, J., concur.