Opinion
No. 25512-3-III.
August 14, 2008.
Appeal from a judgment of the Superior Court for Yakima County, No. 04-1-01228-2, Ruth Reukauf, J., entered October 13, 2006.
Affirmed by unpublished opinion per Kulik, A.C.J., concurred in by Sweeney and Korsmo, JJ.
Alejandro Antonio Guzman appeals his convictions for two counts of second degree rape and two counts of practicing a profession (massage therapist) without a license. We conclude that Mr. Guzman's assertions of error are without merit and affirm the convictions.
FACTS
Alejandro Guzman was charged with two counts of second degree rape and two counts of practicing a profession without a license. Prior to trial, on April 6, 2006, Mr. Guzman moved to sever the second degree rape charges from the practicing a profession without a license charges. The court denied the motion to sever.
T.W. testified as the State's first witness. In July 2003, T.W. went to Le Gardin Spa in Yakima for hair care and massage services. As T.W. entered the business, Mr. Guzman approached her, introduced himself as "Alex," and said he would be her massage therapist. Report of Proceedings (RP) (Aug. 23, 2006) at 10-11. At trial, T.W. identified Mr. Guzman as the man who performed the massage.
T.W. was led to a private room for the massage. Mr. Guzman explained to T.W. the different types of massages available and T.W. agreed to a full body massage. Mr. Guzman then instructed her to get undressed and to cover herself with a sheet. Mr. Guzman began the massage with T.W. lying on her back and proceeded to massage T.W. from head to toe. After that, Mr. Guzman asked T.W. to turn over and lie on her stomach so that he could massage her back.
Mr. Guzman massaged her arms, and legs down to her feet. As Mr. Guzman worked back up her legs, T.W. felt pressure on the inside of her thighs, like he was spreading her thighs apart. T.W. testified that the touching did not feel like the touching that Mr. Guzman had used for the massage. Then T.W. felt Mr. Guzman's fingers go inside of her vagina. T.W. described being shocked and taken by surprise. At that point, Mr. Guzman stopped and said that the massage was done. T.W. testified to feeling anxious, confused, frustrated, and overwhelmed after the incident.
After lying on the massage table for a period of time, T.W. got dressed and went out the door to her car. As T.W. drove out of the spa driveway, Mr. Guzman yelled for T.W. to stop and told her to come back. T.W. described herself as being disoriented and confused, but she went back inside.
Marsha Deutcher a hair stylist, spoke briefly with T.W. and scheduled a hair appointment. T.W. testified that she had no intention of keeping the appointment or going back to the spa. She was not comfortable telling Ms. Deutcher what had just happened because there were other people in the room. T.W. cancelled the hair appointment when she returned home.
T.W. then took a shower and called a friend. Within two hours after the incident, T.W. called her then boyfriend, Eric Walls, and told him what had happened at the spa. Mr. Walls was a Yakima police officer. T.W. had been crying since her drive home and was still upset and crying during the telephone calls. The next day, T.W. reported the incident to Detective Raynaldo Garza. Detective Garza investigated the allegations.
A second witness, B.S.M., testified that on the afternoon of December 31, 2002, she and her then boyfriend, and now husband, Justin Mallonee, went to the Le Gardin Spa for the purpose of getting massages together. Mr. Mallonee was a police officer.
When they first walked into the business, Mr. Guzman approached the couple and introduced himself as "Alex." RP (Aug. 23, 2006) at 77. Because of Mr. Mallonee's work schedule, his massage was first. Then, B.S.M. returned to Le Gardin for her massage. B.S.M. was taken back into a room where she undressed and put a sheet over herself. Mr. Guzman then came back into the room and began the massage.
The massage started with B.S.M. lying on her back, facing up. Mr. Guzman massaged her legs, neck, and shoulders. During this time, the sheet slipped off so that her breasts were exposed. B.S.M. then pulled up the sheet and Mr. Guzman continued with the massage. As Mr. Guzman was massaging her neck, he started to go down her arms. Instead of moving around to the other side of her, he stretched his body over the front of her head, causing his pants to come up over her face. B.S.M. felt very uncomfortable.
Mr. Guzman then asked B.S.M. to roll over onto her stomach. Mr. Guzman started massaging her back and neck. He then went to her legs and started going up closer to her thighs. While he was massaging her thighs, B.S.M. felt Mr. Guzman insert his finger into her vagina. B.S.M. felt tense and as if she could not move or talk. At that point, the massage was over and Mr. Guzman told her to get dressed.
B.S.M. got dressed and left a check on the cash register. When she walked to the door, B.S.M. discovered the door was locked and that she and Mr. Guzman were alone in the spa. The keys were in the top part of the door but by the time she reached them, Mr. Guzman was there. Mr. Guzman laughed and said "[w]here do you think you're going — you know — You're not going anywhere." RP (Aug. 23, 2006) at 85. B.S.M. testified that she was scared and just wanted to get out. Mr. Guzman then unlocked the door and B.S.M. went straight to her car and drove to her apartment, about one mile away. At her apartment, B.S.M. called her boyfriend from her cell phone and told him what had happened. At trial, B.S.M. identified Mr. Guzman in the courtroom as the man who had performed the massage.
Mr. Mallonee and Mr. Walls testified at trial. Mr. Mallonee identified Mr. Guzman as the man who performed his massage. The day of the incident, Mr. Mallonee and B.S.M. exchanged several telephone calls. The telephone calls occurred between approximately 4:50 pm and 9:04 pm. Mr. Mallonee testified that during a telephone conversation with B.S.M. following the incident, she was quiet and he believed that something was bothering her. Mr. Mallonee was then asked about his observations of B.S.M. during a conversation they had later that evening, just before bedtime. He described B.S.M. as quiet but added that "it sounded like she was probably crying on the phone." RP (Aug. 23, 2006) at 135. At that point, he asked her if something had happened during the massage.
The prosecutor then asked Mr. Mallonee what B.S.M. had said to him about the incident. Defense counsel objected, asserting that the testimony was hearsay. The prosecutor argued that the testimony was admissible as an excited utterance. The court overruled the objection, finding that the statement was an operative fact as to what Mr. Guzman did. Mr. Mallonee then testified: "She told me that while she was receiving the massage, that Alex, the masseuse, had inserted one of his fingers into her vagina." RP (Aug. 23, 2006) at 137. Neither side requested a limiting instruction nor was one given.
Mr. Walls testified next. Mr. Walls first described his relationship to T.W. and described a telephone call from her. The prosecutor asked Mr. Walls: "[W]hat did she tell you happened to her?" RP (Aug. 24, 2006) at 50. Defense counsel made a hearsay objection. Based on further testimony from Mr. Walls, the court admitted the statement under the excited utterance exception.
Donald Painter, a chief investigator for the Department of Health testified that individuals practicing as massage therapists, or masseuses, must be licensed. He also testified that massage therapists are considered health care providers within the State of Washington. Mr. Painter's investigation revealed that Mr. Guzman had never held a license to practice as a massage therapist or practitioner. He also testified that Mr. Guzman admitted to him that he was not licensed.
Officer Jeff Guilland of the Yakima Police Department searched the Le Gardin Spa and found a folder containing altered documents from the Department of Health, Washington State Board of Massage regarding "Alex A. Guzman." RP (Aug. 24, 2006) at 36-40. The officer found copies of Mr. Guzman's test results with the word "failed" whited-out along with a small cut out of the word "pass." RP (Aug. 24, 2006) at 37.
The defense called Guillermo Llamas to testify. Mr. Llamas was a licensed massage therapist who worked with Mr. Guzman at Le Gardin. Mr. Llamas testified that he and Mr. Guzman both performed massages and shared a massage room.
Mr. Llamas testified that he was working at the spa on December 31, 2002, the day of B.S.M.'s massage. Mr. Llamas stated that Mr. Guzman was working with another customer during the time the incident was alleged to have occurred. Mr. Llamas concluded by process of elimination that because Mr. Guzman was with another customer, Mr. Llamas would have performed any massage that B.S.M. received at that time. However, Mr. Llamas stated that he could not remember B.S.M. being at the spa or seeing her.
The court granted the State's motion to exclude Detective Garza's conclusion that T.W.'s allegations were "unfounded" due to two discrepancies in her statements. RP (Aug. 25, 2006) at 5. The court did, however, permit the detective to testify as to the discrepancies in T.W.'s statements.
The jury found Mr. Guzman guilty on all counts. This appeal followed.
ANALYSIS
Motion to Sever. Mr. Guzman contends the trial court erred by denying his motion to sever the counts involving T.W. from the counts involving B.S.M. CrR 4.3(a) authorizes joinder of counts where the offenses "(1) are of the same or similar character, even if not part of a single scheme or plan, or (2) [a]re based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan." However, offenses must be severed if the trial court determines "that severance will promote a fair determination of the defendant's guilt or innocence of each offense." CrR 4.4(b).
A trial court's ruling regarding severance will be reversed only for abuse of discretion. State v. Herzog, 73 Wn. App. 34, 51, 867 P.2d 648 (1994). An abuse of discretion occurs when the trial court refuses to sever offenses after the defendant demonstrates that joinder creates prejudice against him or her despite curative instructions. State v. Redd, 51 Wn. App. 597, 603, 754 P.2d 1041 (1988). "Prejudice may result from joinder if the defendant is embarrassed in the presentation of separate defenses, or if use of a single trial invites the jury to cumulate evidence to find guilt or infer a criminal disposition." State v. Russell, 125 Wn.2d 24, 62-63, 882 P.2d 747 (1994).
In his Brief of Appellant at 19, Mr. Guzman erroneously argues that the standard of review regarding the denial of a motion to sever is de novo, citing State v. Cotten, 75 Wn. App. 669, 879 P.2d 971 (1994). In fact, that case states: "A trial court's refusal to sever counts under CrR 4.4(b) is reviewed for manifest abuse of discretion, and the defendant has the burden of demonstrating that abuse on appeal." Id. at 686-87.
In evaluating whether the potential for prejudice requires severance, "a trial court must consider (1) the strength of the State's evidence on each count; (2) the clarity of defenses as to each count; (3) court instructions to the jury to consider each count separately; and (4) the admissibility of evidence of the other charges even if not joined for trial." Id. at 63. In addition, a defendant "seeking severance must not only establish that prejudicial effects of joinder have been produced, but they must also demonstrate that a joint trial would be so prejudicial as to outweigh concern for judicial economy." State v. Bythrow, 114 Wn.2d 713, 722, 790 P.2d 154 (1990).
First, Mr. Guzman contends that the State's evidence was relatively weak on all counts. We disagree. Both complaining witnesses testified that when they entered the spa, Mr. Guzman immediately approached them and introduced himself as "Alex." RP (Aug. 23, 2006) at 10-11, 77. Both women identified Mr. Guzman as the person who did their massage. Similarly, both women testified as to the manner in which they were massaged and as to how the vaginal penetration occurred. The court in Bythrow recognized that "[w]hen the State's evidence is strong on each count, there is no necessity for the jury to base its finding of guilt on any one count on the strength of the evidence of another." Bythrow, 114 Wn.2d at 721-22.
Second, Mr. Guzman argues that the difference in facts and circumstances between the two incidents complicated his right to testify on his own behalf and the presentation of his defense. Mr. Guzman asserts that while he did not plan to testify with respect to B.S.M.'s case because of his alibi defense, he would have testified concerning T.W.'s case had the counts been properly severed. Mr. Guzman argues that he decided not to testify as to either of the women's claims "because of the possibility the jury might mistake his reasons for not testifying as to [B.S.M.'s] claims . . . and thus assume this was an admission of guilt." Br. of Appellant at 14.
Division One of this court rejected similar arguments in State v. Watkins, 53 Wn. App. 264, 268, 766 P.2d 484 (1989). Ms. Watkins was convicted of five counts of first degree robbery. Id. at 266. On appeal, she argued that the trial court erred by denying her pretrial motion to sever the single car robbery count from the four convenience store counts. Id. at 268. In addressing the second prejudice-mitigating factor, Ms. Watkins argued that she was prejudiced in the presentation of her defenses by the court's refusal to sever. Id. at 269. Ms. Watkins asserted that she would have exercised her right to remain silent had the car robbery charge been tried separately. Id. Significantly, the
court in Watkins held:
[A] defendant's desire to testify only as to some, but not all, the counts is an insufficient reason to require severance. Severance is required only if a defendant makes a convincing showing that she has important testimony to give concerning one count and a strong need to refrain from testifying about another. In addition, mutually antagonistic defenses will not support a motion for severance unless the defendant demonstrates prejudice.
Id. at 269-70 (citations omitted).
Mr. Guzman has not demonstrated a strong need to refrain from testifying as to the charges involving T.W. or how the presentation of his defenses prejudiced him. There is no evidence, let alone a convincing showing, that Mr. Guzman had important testimony to give concerning the charges involving T.W. At trial and here, Mr. Guzman failed to establish what testimony he would have provided; rather, he has repeatedly stated that he would have asserted only a general denial of T.W.'s claims. Mr. Guzman has not sustained his burden of demonstrating that undue prejudice resulted from the joint trial.
Third, the trial court instructed the jury that a separate crime was charged in each count. The jury was told it "must decide each count separately" and not let their "verdict on one count . . . control [the] verdict on any other count." Clerk's Papers (CP) at 22. Courts have repeatedly found this instruction sufficient to mitigate any prejudice resulting Page 12 from joinder. See, e.g., Bythrow, 114 Wn.2d at 723; State v. Cotten, 75 Wn. App. 669, 688, 879 P.2d 971 (1994). "When the issues are relatively simple and the trial lasts only a couple of days, the jury can be reasonably expected to compartmentalize the evidence." Bythrow, 114 Wn.2d at 721.
Fourth, evidence of the other alleged crime would have been admissible in a separate trial under ER 404(b) even if the counts had been severed. Under ER 404(b), evidence of other crimes, wrongs, or acts of a defendant are inadmissible to show that he or she acted in conformity with those acts in committing the charged crime. See also Bythrow, 114 Wn.2d at 719. However, evidence of a defendant's prior crime or misconduct may be admissible for purposes other than to show conformity, "such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." ER 404(b).
Where the State seeks to admit evidence of prior bad acts to prove a common scheme or plan, "[t]he prior acts must be '(1) proved by a preponderance of the evidence, (2) admitted for the purpose of proving a common plan or scheme, (3) relevant to prove an element of the crime charged or to rebut a defense, and (4) more probative than prejudicial.'" State v. DeVincentis, 150 Wn.2d 11, 17, 74 P.3d 119 (2003) (quoting State v. Lough, 125 Wn.2d 847, 852, 889 P.2d 487 (1995)). The "admission of evidence of a common scheme or plan requires substantial similarity between the prior bad acts and the charged crime." DeVincentis, 150 Wn.2d at 21. But uniqueness is not required. Id. at 21. "[T]he trial court need only find that the prior bad acts show a pattern or plan with marked similarities to the facts in the case before it." Id. at 13.
Mr. Guzman performed massages on each of the women in a substantially similar fashion. Each time, after working his hands up the woman's legs, Mr. Guzman inserted his finger or fingers into the woman's vagina and ended the massage. Because there are sufficient similarities between the testimonies of both women, evidence of the other charges would have been admissible in a separate trial under ER 404(b) as evidence of a common scheme or plan.
Further, because Mr. Guzman raised accident as a defense, evidence of misconduct involving B.S.M. would be admissible to show that the penetration was not accidental or by mistake. See State v. Fitzgerald, 39 Wn. App. 652, 661-62, 694 P.2d 1117 (1985) (Evidence that defendant in statutory rape prosecution abused other girls was admissible to rebut defendant's testimony that any inappropriate touching on his part was accidental.).
The testimony was as follows:
Q Okay. Are you sure this was not an accident?
A Penetration in your vagina by his finger, if that's what you're saying, is not an accident. It was intentional.
RP (Aug. 23, 2006) at 37-38.
In light of the strength of the State's case, the ability of Mr. Guzman to raise an alibi defense, the jury instructions, and the cross-admissibility of the evidence, any prejudice to Mr. Guzman through joinder of the charges in this case was minimal. We cannot say on this record that the trial court's decision was a manifest abuse of discretion.
Detective Garza's Testimony. A pretrial hearing was held on August 18, 2006, in which the State made a motion in limine, seeking to prevent Detective Garza from testifying as to his conclusion that T.W.'s allegations were "unfounded." The detective reached that conclusion because of two discrepancies in T.W.'s statements. Eventually, another detective took over the investigation and a decision was made to bring charges against Mr. Guzman.
The State's motion was made on the basis that the proposed testimony called for a legal conclusion. The court ruled that Detective Garza could not testify that he determined that T.W.'s complaint was "unfounded." RP (Aug. 25, 2006) at 5. However, Detective Garza was permitted to testify that he concluded that there were discrepancies or inconsistencies between the statements T.W. gave when she first talked to him and the statements recorded later.
A trial court has broad discretion to determine the admissibility of evidence and its decision whether to admit or exclude evidence will not be disturbed on appeal unless the appellant can establish that the trial court abused its discretion. State v. Demery, 144 Wn.2d 753, 758, 30 P.3d 1278 (2001). An appellate court may uphold a trial court's evidentiary rulings on any proper grounds supported by the record. State v. Williams, 137 Wn. App. 736, 743, 154 P.3d 322 (2007).
The Washington Rules of Evidence permit lay testimony in the form of opinions or inferences when (a) rationally based on the perception of the witness, and (b) helpful to a clear understanding of his or her testimony or the determination of a fact in issue. ER 701; see State v. Hardy, 76 Wn. App. 188, 190, 884 P.2d 8 (1994), review granted, 126 Wn.2d 1008, 892 P.2d 1088 (1995). Further, ER 704 provides that "[t]estimony in the form of an opinion or inferences otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact."
An opinion which is not helpful to the trier of fact is not admissible under ER 701 or 702. City of Seattle v. Heatley, 70 Wn. App. 573, 579, 854 P.2d 658 (1993). Similarly, "[a]n otherwise admissible opinion may be excluded under ER 403 if it is confusing, misleading, or if the danger of unfair prejudice outweighs its probative value." Id. Moreover, while a witness may give an opinion on an ultimate issue of fact under ER 704, a witness may not testify on an ultimate issue of fact that is based solely on his or her perception of another witness's credibility. Fitzgerald, 39 Wn. App. at 657.
The State objected to Detective Garza testifying about his conclusion that T.W.'s complaint was unfounded on the basis that it addressed a conclusion of law. On appeal, the State also argues that the detective's conclusion would have amounted to no more than an impermissible opinion on the credibility of another witness. We agree.
It is well established that "questions of fact are to be determined by a jury, and that all matters of law are to be determined and declared by the court." Ball v. Smith, 87 Wn.2d 717, 723, 556 P.2d 936 (1976). Therefore, as a general rule, "a witness is not permitted to give his opinion on a question of [] law or upon matters which involve questions of law." Id. In fact, such testimony is barred under ER 701 because it is not helpful to a clear understanding of the witness's testimony, nor does it help the jury resolve an issue of fact. 5B Karl B. Tegland, Washington Practice: Evidence § 704.5, at 267 (5th ed. 2007). Similarly, testimony involving a conclusion of law by an expert witness is barred under ER 702, because it does not "assist the trier of fact to understand the evidence or to determine a fact in issue." Id.; see Heatley, 70 Wn. App. at 579.
A reviewing court may consider the purpose for which a statement was offered at trial. Demery, 144 Wn.2d at 761. Here, it would have been improper for the detective to testify regarding his conclusion that T.W.'s allegations were unfounded.
The record suggests that the detective's opinion would have been offered for the purpose of casting doubt on whether T.W.'s complaint had merit, as the timing of the police department's decision to investigate and ultimately charge Mr. Guzman was not at issue at trial. Whether or not the charges against Mr. Guzman had merit was a matter exclusively for the jury to determine. State v. Hardy, 133 Wn.2d 701, 710, 946 P.2d 1175 (1997).
Moreover, testimony regarding the detective's conclusion would have amounted to an opinion on T.W.'s credibility. In general, witnesses are not permitted to testify, whether by direct statement or inference, regarding the veracity of another witness because such testimony invades the fact-finding province of the jury. Demery, 144 Wn.2d at 764. "Testimony from a law enforcement officer regarding the veracity of another witness may be especially prejudicial because an officer's testimony often carries a special aura of reliability." State v. Kirkman, 159 Wn.2d 918, 928, 155 P.3d 125 (2007); Demery, 144 Wn.2d at 765.
The issue of T.W.'s credibility was for the jurors alone to decide and any indirect statement or inference as to her credibility would have been improper. Heatley, 70 Wn. App. at 577. The trial court's decision to exclude a portion of Detective Garza's testimony was not an abuse of discretion.
Testimony of Mr. Mallonee and Mr. Walls. Next, Mr. Guzman contends that the trial court erred by allowing the respective boyfriends of B.S.M. and T.W. — Mr. Mallonee and Mr. Walls — to testify about statements the women made to them about the incidents. Mr. Guzman objected at trial, arguing the trial court improperly admitted hearsay testimony.
The State argues that the hearsay statements were admissible under the excited utterance exception to the hearsay rule, ER 803(a)(2). ER 803(a)(2) allows for the admission of an out-of-court statement offered proving the truth of the matter asserted if the statement relates to "a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition."
We review whether there is substantial evidence to support the court's initial finding that T.W. was still under the influence of the startling event when she talked to her boyfriend, Mr. Walls. State v. Freigang, 115 Wn. App. 496, 503-04, 61 P.3d 343 (2002).
Mr. Walls testified that T.W. was upset and crying throughout the telephone call in which she told him about what happened to her during her massage. Mr. Walls testified as follows:
Q Was [the event] something that was traumatic, something that was painful, something that was startling?
A I would consider it traumatic and painful.
Q Okay. But you heard her crying?
A Yes.
Q You indicated she appeared during the phone conversation to be upset?
A Very upset.
Q Okay. Did it appear that she was under the stress of the excitement?
A Yes.
Q And was the stress and excitement — did it appear to be caused by the event she was describing?
A Yes.
Q And you indicated earlier that this was an incident she was referring to occurred recently?
A Yes.
RP (Aug. 24, 2006) at 53. He further testified that this conversation occurred between one-half hour and two hours after the incident.
The record establishes that T.W. was still under the stress and influence of the event when she made the statements to Mr. Walls. Accordingly, the admission of T.W.'s statement was not an abuse of discretion.
Mr. Guzman likewise challenges the admissibility of the statements B.S.M. made to Mr. Mallonee. At trial, the court questioned whether B.S.M.'s statements qualified as an excited utterance but found that because she had already testified, Mr. Mallonee's testimony was not being offered for the truth of the matter asserted. Rather, the court found that the statements were being offered as an "operative fact" to show what transpired when Mr. Mallonee was told about the incident and how he reacted to hearing her allegations against Mr. Guzman. RP (Aug. 23, 2006) at 136-37. On that basis, the court overruled the objection and admitted the testimony. Mr. Guzman correctly argues that this was an improper basis for admission because any fact concerning how Mr. Mallonee reacted was irrelevant under ER 401.
Alternatively, the State argues that the statements were admissible under ER 801(d)(1)(ii). ER 801(d)(1)(ii) provides that a statement is not hearsay if the declarant testifies at trial and is subject to cross-examination concerning the statement, and the statement is "consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive." Here, the defense's attempt to question the credibility of B.S.M. did not raise an inference of recent fabrication. Thus, the statements were not admissible under ER 801(d)(1).
When a trial court makes an erroneous evidentiary ruling, the question on appeal becomes "whether the error was prejudicial, for error without prejudice is not grounds for reversal." Brown v. Spokane Fire Prot. Dist. No. 1, 100 Wn.2d 188, 196, 668 P.2d 571 (1983). An error will not be considered prejudicial, and is harmless unless it affects or presumptively affects the outcome of the case. Id. Consequently, reversal is required only "where there is any reasonable possibility that the use of inadmissible evidence was necessary to reach a guilty verdict." State v. Guloy, 104 Wn.2d 412, 426, 705 P.2d 1182 (1985).
Here, Mr. Mallonee's hearsay testimony consisted of a single statement in the course of a multiple-day trial. B.S.M. had already testified to the incident and Mr. Mallonee's testimony was consistent with her statements. Further, Mr. Mallonee had also testified as to his girl friend's demeanor after the incident and to the fact that she had talked to him about what had happened at the spa.
"The improper admission of evidence constitutes harmless error if the evidence is of minor significance in reference to the overall, overwhelming evidence as a whole." State v. Bourgeois, 133 Wn.2d 389, 403, 945 P.2d 1120 (1997). On this record, this court can conclude that the jury verdict would have been the same had the error not occurred. Accordingly, the error was harmless.
Transcript Inaudibles. Mr. Guzman next contends that because of the number of inaudibles in the transcribed report of proceedings, his appellate counsel was unable to determine whether or not additional issues for appeal may have been raised. He contends that this flawed record denied his due process right of appeal. Mr. Guzman's argument is unpersuasive.
"A criminal defendant is constitutionally entitled to a 'record of sufficient completeness' to permit effective appellate review of his or her claims." State v. Thomas, 70 Wn. App. 296, 298, 852 P.2d 1130 (1993) (quoting Coppedge v. United States, 369 U.S. 438, 446, 82 S. Ct. 917, 8 L. Ed. 2d 21 (1962)). "A 'record of sufficient completeness' does not translate automatically into a complete verbatim transcript." State v. Tilton, 149 Wn.2d 775, 781, 72 P.3d 735 (2003) (quoting Mayer v. City of Chicago, 404 U.S. 189, 194, 92 S. Ct. 410, 30 L. Ed. 2d 372 (1971)). The absence of a portion of the record is not reversible error unless the defendant can demonstrate prejudice. State v. Miller, 40 Wn. App. 483, 488, 698 P.2d 1123 (1985).
Where a record contains defects, it is well established that an appellant must attempt to cure them. Id. The usual remedy for curing defects is to supplement the record with appropriate affidavits from the trial judge or trial counsel if possible. Id. The failure of appellate counsel to attempt to provide the reviewing court with affidavits from the trial court and counsel concerning missing portions of the record, as allowed by RAP 9.3, constitutes waiver of the defendant's right to a complete record. Miller, 40 Wn. App. at 488. Here, there is no evidence in the record or in Mr. Guzman's brief indicating that he has made any attempt to obtain the appropriate affidavits in an effort to cure any defects in the record.
Moreover, a defect in the record is not reversible error unless the defendant can demonstrate prejudice. Id. Mr. Guzman argues only that the flawed record made it impossible to determine whether or not any additional issues for appeal were capable of being raised, thereby violating his due process right of appellate review. However, other than this broad assertion, Mr. Guzman fails to specify which, if any, of the inaudibles in the record caused him prejudice.
The record was sufficient to allow counsel to determine which issues to raise on appeal. Despite the inaudibles, the record — totaling more than 900 pages — was substantially complete. Mr. Guzman has not shown that the defects prevented his appellate counsel from evaluating the record for appealable error and, thus, has failed to demonstrate prejudice. Moreover, Mr. Guzman waived his right to a complete record by not attempting to obtain affidavits concerning the inaudible portions of the record. Thus, his assertion of a due process violation fails.
Right to Public Trial. On the afternoon of the first day of jury selection, August 21, 2006, the trial court asked the jurors to fill out a questionnaire. The judge informed the prospective jurors: "Now, there are going to be some of you perhaps and we won't know this until the questionnaires are filled out that may be requesting private interviews or we may want to talk to you privately outside the presence of the other jurors." RP (Aug. 21, 2006) at 40-41.
On August 22, the trial court proceeded with the jury selection. The trial court advised those present that they were on the record and that they were continuing to address the jury questionnaire comments. The following statement was made by the trial court:
THE COURT: The following folks specifically requested a private interview, heard of the case, or indicated again on the hardship question that there may be some ongoing issues for them. I'm going to suggest that we interview those people individually. That would leave us with 47 and 71 being excused, 21 people for this morning. And I'm going to give those numbers: 6, 23, 24, 31, 32, 35, 38, 39, 42, 44, 45, 49, 61, 64, 65, 69, 70, 76, 81, 86, and 89. I'm going to suggest that the other jurors we release until 1:30, and we will hold the 21 and see how far we get this morning.
Everybody leave with that?
RP (Aug. 22, 2006) at 1-2. The bailiff was instructed to line up those waiting to be interviewed on the benches outside of the courtroom. Defense counsel then asked the trial court where they would be conducting the interviews. The judge responded as follows:
THE COURT: We're going to put them right here in the jury box with the microphone and basically, I will do essentially the questioning as to whatever their concerns were first.
MR. ADAME: Okay.
THE COURT: Then I ask counsel if they have any further questions at that point, and that's how we do it.
RP (Aug. 22, 2006) at 2. At that point, the other jurors were excused until the afternoon.
After having the first prospective juror 6, brought into the courtroom to address the concerns the juror had stated in the questionnaire, the trial judge seated the juror in the jury box in the seat closest to her, and he was provided a handheld microphone. The trial court advised juror 6 that he was going to be questioned there in the courtroom because "this is our definition of private, out of the presence of the other jurors." RP (Aug. 22, 2006) at 4. The judge further stated that "[e]veryone else who is present in the courtroom we have to have here" but assured him that his request for privacy would be respected by those in the courtroom. RP (Aug. 22, 2006) at 4. The record indicates that the State and Mr. Guzman were present. The trial court proceeded to interview the remaining jurors who had requested private interviews in this manner.
The trial court also individually questioned other jurors who had indicated that they had heard of the case before or that a trial would impose a potential hardship on them. Specifically, the court explained to juror 31, who had answered on her questionnaire that she had heard of the case, that she was being questioned privately because "I tend to want to do that out of the presence of the other jurors, because we're never entirely sure of what information will be brought out." RP (Aug. 22, 2006) at 15.
Here, there is no indication in the record that the court closed the courtroom to the public. Accordingly, there is no violation of Mr. Guzman's right to public trial.
We affirm the convictions for second degree rape and practicing a profession (massage therapist) without a license.
A majority of the panel has determined 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.
SWEENEY and KORSMO, JJ., concur.