Opinion
No. 53599-4-I
Filed: November 22, 2004 UNPUBLISHED OPINION
Appeal from Superior Court of Snohomish County. Docket No. 03-1-00485-0. Judgment or order under review. Date filed: 12/03/2003. Judge signing: Hon. Richard J Thorpe.
Counsel for Appellant(s), Washington Appellate Project, Attorney at Law, Cobb Building, 1305 4th Avenue, Ste 802, Seattle, WA 98101.
Corey Marika Endo, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA 98101-3635.
Counsel for Respondent(s), Rebecca Jane Quirk, Attorney at Law, Pr Aty of Miss Bldg Ms504, 3000 Rockefeller Ave, Everett, WA 98201-4046.
Nineteen-year-old Christopher Dominguez was charged with second degree child molestation for having sexual contact with a young girl. At trial, Dominguez did not dispute the sexual contact, but asserted the defense in RCW 9A.44.030 that he reasonably believed the 13-year-old girl to be older because of her false declarations as to age. Although the jury was instructed on that statutory defense, it nonetheless found Dominguez guilty. In this appeal, Dominguez contends the trial court violated his constitutional rights by limiting the impeachment testimony of a defense witness and by instructing the jury on the meaning of `declaration.' Finding no reversible error, we affirm.
FACTS
One summer afternoon, Dominguez attended a picnic for the employees of the audio and video store where he worked. At some point during the party, Dominguez had sexual contact with 13-year-old A.H. When Dominguez was later interviewed by police about the incident, Dominguez admitted that they fondled one another and that the touching was for sexual gratification. Having previously acknowledged that he did not ask A.H. how old she was and that he mistakenly believed she was between 14 and 16 years of age based on her physical appearance, Dominguez stated that the sexual encounter was `[b]ad judgment on [his] part.' Dominguez was thereafter charged with one count of child molestation in the second degree.
At trial, A.H. testified that she and an 11-year-old companion, A.M., convinced Dominquez to let them sit in his `really nice' car and listen to music during the party. Several hours later, Dominguez returned to the car whereupon A.H. moved from where she had been sitting in the driver's seat to the passenger seat and A.M. ended up sitting on A.H.'s lap. A.H. testified that she and Dominguez then played the game `Truth or Dare' during which they kissed and she agreed to give him a `hand job.' Although A.M. had closed her eyes at the request of both Dominguez and A.H., she was still sitting on A.H.'s lap when A.H. rubbed Dominguez' penis until he ejaculated. According to A.H., she and A.M. then got out of the vehicle and Dominguez drove off. A.H. stated that, although she asked Dominguez several times if she could drive his car, she never told him that she had a driver's license. When A.H. was asked on cross whether she ever told a classmate that she lied to Dominguez about her age, A.H. replied, `No, I did not.' A.H. testified that she happened to see Dominguez a couple of months later when he was `DJ'ing' at a birthday party and that she may have asked him again about driving his car.
The adult who brought both A.H. and A.M. to the gathering testified that she introduced the children and gave their ages upon arriving at the party. A.M. stated that Dominguez was present during this introduction. Dominguez' statements to police were also admitted into evidence.
Dominguez admitted the sexual encounter took place, but stated he believed A.H. was at least 16 years of age based on the fact that A.H. told him she had a driver's license. The defense also called A.H.'s classmate who testified that A.H. told her about meeting Dominguez. When asked if A.H. ever said anything about what she told Dominguez about her age, the witness testified:
She met him — she said that she saw him at — he was DJ'ing and she had told him she liked his care or something, and she told him that she had just got her license and she wanted to drive. And so — I don't remember he telling me exactly what age she told him she was, but she did say she was an age old enough to drive a car.
As defense counsel attempted to explore the details of the conversation further, the State objected. The objection was sustained.
The trial court gave the following instruction on Dominguez' affirmative defense:
It is not a defense to the charge of child molestation in the second degree that at the time of the offense the defendant did not know the age of A.H. or that the defendant believed her to be older.
It is, however, a defense to the charge of child molestation in the second degree that at the time of the offense the defendant reasonably believed that A.H. was at least 14 years of age, or was less than thirty-six months younger than the defendant based upon declarations as to age by A.H.
The defense must be established by a preponderance of the evidence. Preponderance of the evidence means that you must be persuaded, considering all the evidence in the case, that it is more probably true than not true. If you find that the defendant has established this defense, it will be your duty to return a verdict of not guilty.
During deliberations, the jury submitted the following inquiry to the court:
The Jury is requesting clarification as to what a declaration as to age by [A.H.] must constitute. Can her appearance, behavior, and suggestive statements be considered a declaration by her that she was 14 or older?
After receiving the court's response, the jury found Dominguez guilty. This appeal followed.
The court instructed the jury as follows: `A declaration is a spoken utterance, not conduct.'
DECISION
Trial courts have broad discretion when deciding whether to admit or exclude evidence. State v. Reed, 101 Wn. App. 704, 708, 6 P.3d 43 (2000). Such rulings are generally reviewed for manifest abuse of discretion. State v. Markle, 118 Wn.2d 424, 438, 823 P.2d 1101 (1992). A trial court abuses its discretion when its decision is manifestly unreasonable, or is exercised on untenable grounds or for untenable reasons. State v. Blackwell, 120 Wn.2d 822, 830, 845 P.2d 1017 (1993).
Dominguez contends his constitutional rights to present a defense and to confront witnesses were violated when the trial court placed a limitation on the testimony of A.H.'s classmate. According to Dominguez, the proffered testimony would have successfully impeached A.H.'s credibility. Thus, Dominguez argues his conviction must be reversed. We disagree.
Dominguez' argument is based on a faulty premise. It presumes that the proffered testimony `would have contradicted A.H.'s testimony that she had not told Mr. Dominguez the day of the picnic that she had her driver's license.' The law is well established that criminal defendants must be given a meaningful opportunity to present a complete defense. State v. Wittenbarger, 124 Wn.2d 467, 474, 880 P.2d 517 (1994). `A defendant's right to impeach a prosecution witness with evidence of . . . a prior inconsistent statement is guaranteed by the constitutional right to confront witnesses.' State v. Johnson, 90 Wn. App. 54, 69, 950 P.2d 981 (1998). Under ER 801, a prior out-of-court statement is not hearsay and is admissible for impeachment purposes if it is offered only to show that the statement was made and not to prove the truth of the matter asserted. While Dominguez would have preferred to inquire further into the nature of the inconsistency between the testimony of A.H. and the testimony of her classmate, the inquiry is unnecessary and would serve only to buttress Dominguez' version of the facts. Impeaching and contradictory statements are, however, admissible only to discredit the declarant and not to substitute his or her testimony. State v. Johnson, 40 Wn. App. 371, 379, 699 P.2d 221 (1985).
Appellant's Opening Brief at 15.
Here, Dominguez was allowed to impeach A.H. with her classmate's testimony. The minor limitation placed on the examination of A.H.'s classmate was not unreasonable, since the classmate was not present when A.H. allegedly made the statements to Dominguez. We find no abuse of discretion.
Dominguez next contends the trial court erroneously instructed the jury on the meaning of `declaration.' By instructing the jury that it could only consider whether A.H. had made a `spoken utterance' as to her age, Dominguez argues the trial court improperly limited the scope of evidence the jury could consider in evaluating Dominguez' defense. Because the jury instruction precluded the jury from considering all other assertive conduct in violation of his due process and other constitutional rights, Dominguez argues, reversal is required. This argument is not persuasive.
Jury instructions may be tailored to the facts of a given case. Instructions satisfy the fair trial requirement when, taken a whole, they properly inform the jury of the law, are not misleading, and permit the parties to argue their theories of the case. State v. Kennard, 101 Wn. App. 533, 536-37, 6 P.3d 38 (2000). `The wording of jury instructions is left to the discretion of the trial court.' Kennard, 101 Wn. App. at 537.
Dominguez was convicted of child molestation in the second degree. It is a defense to this sex offense that the defendant reasonably believed the alleged victim to be at least 14 `based upon declarations as to age by the alleged victim.' RCW 9A.44.030(2) and (3)(f). For the statutory defense to apply, there must have been some kind of explicit assertion of age by the victim. State v. Bennett, 36 Wn. App. 176, 182, 672 P.2d 772 (1983).
When viewed in proper context, the definition of `declaration' in the instruction afforded Dominguez a full and fair opportunity to argue his theory of the case. And while it is true that the declarations by a victim under the age of consent may theoretically encompass nonverbal conduct and written assertions as well as spoken words, the defense in this case turned solely on whether or not the jurors believed A.H. told Dominguez she had a driver's license prior to the sexual contact. Nor do we find the clarifying instruction to be a comment on the evidence. The trial court offered no opinion regarding the credibility, sufficiency, or weight of the relevant trial testimony. `An impermissible comment is one which conveys to the jury a judge's personal attitudes toward the merits of the case or allows the jury to infer from what the judge said or did not say that the judge personally believed the testimony in question.' State v. Swan, 114 Wn.2d 613, 657, 790 P.2d 610 (1990).
See Bennett, 36 Wn. App at 182 n. 4.
We emphatically reject Dominguez' claim that an underage victim's appearance and behavior alone can constitute a declaration for purposes of the statutory defense. See Bennett, 36 Wn. App. at 181-82.
In any event, an error in an instruction does not necessarily render the defendant's jury trial fundamentally unfair. An erroneous jury instruction that misstates the law is subject to harmless error analysis. State v. Thomas, 150 Wn.2d 821, 844, 83 P.3d 970 (2004). Here there is nothing to indicate the clarifying instruction on the meaning of `declaration' had any effect on the final outcome of Dominguez' trial. There was no reversible error.
Affirmed.
APPELWICK, J, SCHINDLER, J. and COX, J.