Opinion
No. 31421-5-II
Filed: March 30, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Mason County. Docket No. 03-1-00313-1. Judgment or order under review. Date filed: 02/05/2004. Judge signing: Hon. James B II Sawyer.
Counsel for Appellant(s), Joseph Orry-Leroy Baker, Stenberg Law Office, 707 Pacific Ave, Tacoma, WA 98402-5207.
Counsel for Respondent(s), Monty Dale Cobb, Mason County Prosecutors Office, 521 N 4th Ave Ste a PO Box 639, Shelton, WA 98584.
In this appeal from a bench trial, Kevin Arthur Davis asks us to review his conviction for first degree child molestation. He alleges (1) that the evidence is insufficient to support the conviction, (2) that the trial court improperly presumed a fact, (3) that his trial counsel was ineffective, (4) that the trial court admitted improper opinion testimony, and (5) that cumulative error denied him a fair trial. We affirm. On September 4, 2003, Davis, Andrea Kuerst, Andrea's children, and Charlie Alefteras were sharing a home in Shelton, Washington. Davis' half-sister, Kim Johnson, arrived and entered without knocking. She observed Davis on the couch and K, age 3, up against him. Davis had his arm around K and his hand `tucked underneath her legs — between her legs.' When Davis saw Johnson, he pushed K off the couch, put the TV remote in his lap, and kept his hands `right between his legs' as if attempting to conceal an erection. Johnson took K into the kitchen and spoke with Alefteras, who was nearby in the laundry room. When Johnson returned to her own home, she called Kuerst and reported what she had seen. Kuerst then called the police.
Report of Proceedings (RP) at 60.
RP at 60-62.
The State charged Davis with molesting K, and a bench trial ensued. Kuerst testified that she was five years younger than Davis, that she was 32, and that K had been born in 2000. Detective Scott Brown testified that he had been at the home and that Johnson could have seen the couch from its entry:
Q: What is your opinion as to whether or not what Ms. Johnson told you she saw could have been seen from her vantage point through that port hole?
A: Yes. It was very feasible that she could have easily seen what she reported to me she saw.
RP at 105.
Brown also testified that he had interviewed Davis and doubted Davis' truthfulness based on `neurolinguistics.' Brown said:
A: [D]uring the initial part of the interview where the questions were somewhat direct and generic, his answers were very straight forward, very open, and very — very quick to respond. During the process of the interview, especially when we got to these concessions or these elaborations, as we got further and further into the interview when he would make these comments or these concessions in his statement to me, he would become very furtive in his movements and his glances and would somewhat be closed.
Q: Okay. Was there more eye contact with you on generic questions than there was on direct questions?
A: Yes. . . . I noted in my report in relation to a concept of interview that's referred to as neurolinguistics, which basically is a study or an observation method of a person's physical reactions or outward appearance during the time of questioning that it helps an interview. It's not a clear determination, but it helps an interviewer during the course of interview to determine at which point the subject that's being interviewed might be under stress that would be indicative of possible deception or withholding information.
Q: And did he at any time show indication of stress?
A: Yes, he had obvious indications from my training and experience were indicative of stress.
Q: Now did you ask him if Kim Johnson came to the house that day?
A: Yes, I did. . . . he stated that she had.
Q: And what was his demeanor when he answered that question?
A: . . . referring to my report here, . . . `When asked whether Kim Johnson walked into the room Davis would answer me `Yes,' that she had by looking me straight in the eye with a normal tone and without hesitation. When I asked him if he had any conversation with Johnson, which he had stated he had not, Davis would look slowly to the right and down, draw a couple deep breaths, and then provide a stammered or broken response that was inconsistent. One time he stated that she said `hi' and that he said `hi' back, but later withdrew this stating that on her way out he simply asked her something about why she was there, supposedly looking for a Super Soaker squirt gun.'
Q: Okay. What was his demeanor when you asked questions about his finger placement on [K]?
A: Well, that was — his demeanor was still he would be subdued and quiet and hesitant in his responses. But when we got down to the specific questioning regarding his finger placement on the child, he exhibited some physical appearances, some actual manifestations about his person, that were obvious enough that I took note of them and noted them in my report.
Q: And can you describe those manifestations for us?
A: Yes. In my report I refer to — says, `During pertinent questions about his conversation and about his finger placement on [K], that Davis's skin tone would flush, turn increasingly red around his lower neck and collar and that his carotid pulse would be visible through his skin, indicating an increase in heart rate.'
. . .
Q: And when you probed him for placement of his fingers, what was his demeanor?
A: Well, when I would prod or probe further into exactly where his fingers were, he would again start to manifest these signs of being uncomfortable, hesitant, and somewhat withdrawn, just general overall stress indicators during the time he was trying to provide answers to my questions regarding that.
RP at 112-15.
Johnson testified that she had arrived at the home alone, and that her young son, Jonas, had not been with her.
Testifying on his own behalf, Davis said that Johnson and Jonas had arrived together. He denied being sexually excited, having his hand between K's legs, pushing K off the couch, or trying to hide an erection. He said that K had voluntarily left the couch to play with Jonas. The defense did not call Alefteras, and nothing in the record shows what Alefteras would have said.
At the end of the bench trial, the court found Davis guilty and entered written findings of fact and conclusions of law. It stated, among other things, that Johnson was a credible witness. After sentencing, Davis filed this appeal.
I.
Davis argues that the evidence is insufficient to support his conviction. Evidence is sufficient if a rational trier of fact taking it in the light most favorable to the State could find beyond a reasonable doubt each element of the crime charged. Evidence is sufficient to support a conviction of child molestation in the first degree only if it shows, among other things, that `the perpetrator is at least thirty-six months older than the victim.' Sexual contact is `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.'
State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980); State v. Smith, 124 Wn. App. 417, 426, 102 P.3d 158 (2004).
Davis claims that the evidence is insufficient because it will not support a finding that he was more than three years older than K. Kuerst testified that she was 32, that Davis was older than she was, and that K was three. Taken in the light most favorable to the State, this evidence shows that Davis was at least 36 months older than K.
Davis claims that the evidence is insufficient because he denied having his hand between K's legs and `denied that he attempted to conceal his groin area.' Johnson testified to the contrary, and the trial judge credited her testimony. Taken in the light most favorable to the State, the evidence shows that Davis had his hand between K's legs and then tried to conceal his groin area. Accordingly, the evidence is sufficient to support Davis' conviction.
Br. of Appellant at 18.
II.
Davis next argues that the trial court presumed sexual gratification and improperly shifted to him the burden of proving that fact. He relies on the following statements from the trial judge's oral ruling:
Having been the father, and being the father of children myself, I can think of circumstances where placing your hand in that situation would not be for sexual gratification. But that also would require the Court to have some further information to conclude that it was anything but for sexual gratification.
RP at 159.
Davis takes these statements out of context. To put them back in context is to observe that just after the statements on which Davis relies, the judge said:
If there had been no furtive movement, if there had not been a significant changing of position with respect to the contact, which I believe lends credibility to the statements of Kim Johnson and to the interpretation of the purpose for the hand being in the position that it was observed, and for that purpose I will specifically find that I am finding Kim Johnson to be a credible witness whose testimony was not detracted from by the cross examination of counsel.
I would have a reasonable doubt as to whether or not the Defendant was guilty of the crime of Child Molestation in the First Degree. However, given the totality of the evidence in this case, given the clear distinction in the testimony, and the Court would indicate that the difference in testimony with respect to the presence of Jonas I think again is another indicator. Because if you think about what Kim Johnson testified to, her immediate response she indicates was to have [K] come into the kitchen with her. That's inconsistent with the statement made by Mr. Davis that `I leaned over to talk with Jonas about his new shirt.'
RP at 159-60.
Reading the judge's oral ruling as a whole, we observe that rather than presuming sexual contact, he inferred it from the evidence presented. We also observe that rather than shifting the burden of proof from the State to the defense, the judge merely weighed conflicts in the evidence, found Johnson's testimony credible, and rendered his verdict accordingly. Taking his ruling as a whole, we perceive no error.
III.
Davis next argues that his counsel rendered ineffective assistance by not calling Alefteras as a witness. To prove ineffective assistance, he must show (1) deficient performance and (2) resulting prejudice. Given that the record omits what Alefteras would have said if called, he has not shown either here.
State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995).
IV.
Davis next argues that the trial court improperly allowed Brown to give two pieces of lay opinion testimony. The defense objected only to the first. ER 701 vests a trial court with discretion to allow lay opinion so long as that opinion is supported by personal knowledge.
ER 701; State v. Kunze, 97 Wn. App. 832, 850, 988 P.2d 977 (1999), review denied, 140 Wn.2d 1022 (2000).
Davis claims that Brown should not have been allowed to testify about what Johnson could have seen when she entered the house through the front door. As already seen, Brown testified:
Q: What is your opinion as to whether or not what Ms. Johnson told you she saw could have been seen from her vantage point through that port hole?
A: Yes. It was very feasible that she could have easily seen what she reported to me she saw.
RP at 105.
Although the prosecutor's question was muddled, Brown had been to the house and had personal knowledge about what could be seen from the front door; thus, he could properly state what he had seen, or what a person entering the house could see. He could not properly opine about what Johnson could have seen when she entered on September 4, as he was not there at that time, but the trial court could easily have corrected that problem if an objection had been made. In this bench trial, any error was technical, not preserved for review, and, even if preserved, harmless beyond a reasonable doubt.
Additionally, Davis claims that Brown should not have been allowed to doubt Davis' truthfulness based on `neurolinguistics.' The State concedes error but argues it was harmless. Davis does not reply to the State's claim of harmless error.
See State v. Barr, 123 Wn. App. 373, 378-83, 98 P.3d 518 (2004).
In a bench trial, `we presume the trial judge did not consider inadmissible evidence.' `A defendant can rebut the presumption by showing the verdict is not supported by sufficient admissible evidence, or the trial court relied on the inadmissible evidence to make essential findings that it otherwise would not have made.' Here, the judge announced his reasoning in some detail, both orally and in written findings, but never alluded to Brown's improper testimony. He did not even rule that the improper testimony was admissible, for it was admitted without objection. Although the State obviously should not have offered such testimony, nothing shows that the judge considered it, and the remainder of the evidence is clearly sufficient. We conclude that Brown's improper testimony was harmless.
State v. Read, 147 Wn.2d 238, 244, 53 P.3d 26 (2002); State v. Melton, 63 Wn. App. 63, 68, 817 P.2d 413 (1991), review denied, 118 Wn.2d 1016 (1992).
Read, 147 Wn.2d at 245-46.
V.
Davis argues that the cumulative effect of these errors denied him a fair trial. In our view, however, the only significant error was Brown's testimony about `neurolinguistics,' and that error was harmless in the bench trial we are reviewing here. We conclude that reversal is not warranted.
Affirmed.
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.
HOUGHTON, J. and ARMSTRONG, J. Concur.