Opinion
No. 22313-2-III
Filed: March 29, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Ferry County. Docket No. 02-1-00033-9. Judgment or order under review. Date filed: 07/28/2003. Judge signing: Hon. Rebecca M. Baker.
Counsel for Appellant(s), Paul J. II Wasson, Attorney at Law, 2521 W Longfellow Ave, Spokane, WA 99205-1548.
Counsel for Respondent(s), James Alan Von Sauer, Ferry County Prosecuting Attorney, 350 East Delaware Ste 11, Republic, WA 99166-0566.
William Harshbarger was convicted in a jury trial of third degree rape of a child. On appeal, he contends the trial court erred in admitting evidence of prior uncharged offenses and in excluding testimony regarding his good character. He also assigns error to certain jury instructions, challenges his exceptional sentence and one of the conditions of community supervision, and contends he had ineffective assistance of counsel. We find no error justifying reversal of his conviction. However, because his exceptional sentence is constitutionally invalid, we remand for resentencing.
Facts
In October 2002, Mr. Harshbarger was charged by information in Ferry County with one count of third degree rape of a child. RCW 9A.44.079. The charge arose from alleged acts of sexual penetration committed upon Mr. Harshbarger's 14-year-old cousin, CE, in March 2002. At the time of the offense, Mr. Harshbarger was in his late thirties.
Before trial, the State moved to exclude testimony regarding Mr. Harshbarger's general character. Defense counsel explained that these witnesses would testify that Mr. Harshbarger had contact with other children, yet was never accused of inappropriate behavior with them. He also explained that these witnesses would testify that CE gave inconsistent stories, was raised permissively by her parents, and used attention seeking tactics like dressing inappropriately. The trial court concluded that the evidence of Mr. Harshbarger's character was inadmissible and that evidence regarding CE's lifestyle was not probative and was too prejudicial for admission. Her inconsistent statements, on the other hand, could be admitted.
Defense counsel moved to exclude testimony regarding prior allegations of sexual abuse involving EM, the minor daughter of Mr. Harshbarger's former girl friend. Finding by a preponderance of the evidence that these prior acts occurred, the trial court concluded they were admissible to show Mr. Harshbarger's motive or a common scheme. CE's testimony of prior incidents of sexual abuse was also ruled admissible.
At trial, the State presented evidence that Mr. Harshbarger took advantage of CE when she came to baby-sit or spend the night with Mr. Harshbarger's daughter, AH. CE described numerous incidents of sexual touching, penetration with fingers and penis, and oral sexual contact. She explained that she did not report the abuse earlier because her father was struggling with cancer and she did not want to burden her mother. EM, AH's older half-sister, testified that Mr. Harshbarger began touching her sexually in 1994. (After her mother and Mr. Harshbarger broke up, Mr. Harshbarger gained custody of AH.) EM explained that he would fondle her and perform sexual acts with her when she came to spend the night with AH. Although EM reported this abuse after she attempted suicide, no charges were filed following the police investigation.
Mr. Harshbarger's defense was that he did not commit any sexual offenses and that he was unjustly accused by family members who were angry with him or who wanted to take custody of his daughter. His witnesses testified that the family had experienced a religious disagreement in 2001 that had resulted in a permanent rift between Mr. Harshbarger and his aunt, CE's mother. They also described frequent occasions when CE sought out Mr. Harshbarger for rides into town or otherwise interacted with him normally.
Defense counsel had no objections to the trial court's jury instructions, including an instruction limiting the use of the evidence of prior uncharged offenses. The jury returned a verdict of guilty as charged. Citing the aggravating factors of particular vulnerability, multiple incidents of sexual abuse over a long period of time, and abuse of a position of trust, the trial court imposed an exceptional sentence upward of 24 months. This appeal timely followed.
Evidence of Prior Bad Acts and Good Character
Mr. Harshbarger first assigns error to decisions by the trial court admitting evidence of prior acts of sexual misconduct and excluding testimony regarding his general 'lifestyle.' Report of Proceedings (RP) at 46. He contends testimony concerning earlier incidents involving CE and EM were unfairly prejudicial and of low probative value. He also argues pro se that character evidence offered by defense witnesses should have been admitted as highly relevant. We review the trial court's decisions to admit or exclude such evidence for abuse of discretion. City of Kennewick v. Day, 142 Wn.2d 1, 5, 11 P.3d 304 (2000); State v. Guzman, 119 Wn. App. 176, 182-83, 79 P.3d 990 (2003), review denied, 151 Wn.2d 1036 (2004).
I. Prior bad acts testimony. Evidence of prior bad acts is generally inadmissible in court to show that a defendant has a criminal propensity. ER 404(b); State v. DeVincentis, 150 Wn.2d 11, 17, 74 P.3d 119 (2003). Such evidence may be admissible, however, 'for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.' ER 404(b). In determining whether to admit evidence of prior wrongs under ER 404(b), the trial court must (1) find that the prior acts were proved by a preponderance of the evidence; (2) identify the purpose for the evidence; (3) determine whether the evidence is relevant to an element of the crime or to rebut a defense; and (4) balance the probative value of the evidence against its prejudicial effect. Guzman, 119 Wn. App. at 182.
In this case, the trial court found that the prior acts of misconduct against CE and EM were proved by a preponderance of the evidence. This determination was made from the State's offer of proof, which indicated that CE would testify regarding additional incidents, and that EM had previously reported similar incidents. The State offered the prior sexual misconduct involving CE as evidence of Mr. Harshbarger's 'lustful disposition' (RP at 71) toward her and offered the prior sexual misconduct involving EM as evidence of a common scheme, plan, or motive.
'[E]vidence of a defendant's prior sexual acts against the same victim is admissible to show the defendant's lustful disposition toward that victim.' Guzman, 119 Wn. App. at 182. The trial court here found that CE's description of Mr. Harshbarger's prior sexual misconduct was relevant to show his lustful disposition toward her. The court also found that the evidence was highly probative and not unfairly prejudicial. Due to the trial court's careful consideration of the four analytical steps for admission of CE's testimony, we find no abuse of discretion.
As for EM's testimony, the trial court found that Mr. Harshbarger's alleged acts of sexual misconduct against EM were relevant to show the existence of a common scheme, plan, or motive. Evidence of a pattern of past behavior that exhibits a design or scheme to fulfill sexual compulsions is probative of the issue whether a crime of sexual misconduct actually occurred. DeVincentis, 150 Wn.2d at 17-18. This evidence of prior sexual misconduct toward a person other than the current victim must show a substantial similarity to the current charged crime. Id. at 21. 'Sufficient similarity is reached only when the trial court determines that the 'various acts are naturally to be explained as caused by a general plan.'' Id. (quoting State v. Lough, 125 Wn.2d 847, 860, 889 P.2d 487 (1995)).
In this case, the State explained that EM would testify that Mr. Harshbarger's daughter, AH, would ask EM to spend the night and that Mr. Harshbarger would sexually abuse EM while she was asleep at his house on these occasions. She would also testify that Mr. Harshbarger told her not to tell her mother. The State argued that this behavior was a pattern that was followed in Mr. Harshbarger's sexual abuse of CE. The trial court's conclusion that EM's testimony of prior sexual acts showed a common scheme, plan, or motive is supported by the evidence. The court also weighed this 'highly probative' evidence against its prejudicial effect and found that the balance weighed heavily in favor of the state. As with the admission of CE's evidence of prior sexual misconduct, we find no abuse of discretion.
II. Defense witnesses on the character of Mr. Harshbarger. Evidence of a defendant's good character may be admitted under ER 404(a)(1), which authorizes the admission of evidence of a pertinent trait of character offered by an accused. Mr. Harshbarger sought to present the testimony of family members and friends who would testify regarding his lifestyle and general behavior around other children who came to spend the night with his daughter. Whether his lifestyle or general behavior is pertinent to the crime of third degree rape is the key question here.
Generally the term 'pertinent' is synonymous with 'relevant.' Day, 142 Wn.2d at 6. A pertinent trait is one that tends to make the existence of a fact material to the charged crime more or less probable. Id. (quoting State v. Eakins, 127 Wn.2d 490, 495-96, 902 P.2d 1236 (1995)). In a strict liability case, however, in which no affirmative defenses are available and the sole question is whether the accused committed the forbidden act, character evidence is irrelevant. Id. at 9. Third degree rape is a strict liability crime. State v. Clemens, 78 Wn. App. 458, 467, 898 P.2d 324 (1995); State v. Saiz, 63 Wn. App. 1, 4, 816 P.2d 92 (1991). Although this court has held that evidence of a defendant's sexual morality is a pertinent character trait in cases involving sexual offenses against minors (see, e.g., State v. Woods, 117 Wn. App. 278, 280, 70 P.3d 976 (2003), review denied, 151 Wn.2d 1012 (2004); State v. Griswold, 98 Wn. App. 817, 829, 991 P.2d 657 (2000)), the current case is distinguishable. Mr. Harshbarger's offer of proof relates to general moral character rather than sexual morality. Griswold, 98 Wn. App. at 829. Evidence of his general lifestyle and behavior around other children is not pertinent to the issue of whether he sexually abused CE. The trial court did not abuse its discretion in excluding this character evidence.
Jury Instructions
Mr. Harshbarger next assigns error to two jury instructions. Neither of them was challenged in trial court. We generally will not consider an error raised for the first time on appeal unless it is a manifest error affecting a constitutional right. RAP 2.5(a)(3); State v. McFarland, 127 Wn.2d 322, 332-33, 899 P.2d 1251 (1995). A manifest error is one that actually prejudices the defendant's case. Id. at 333-34. If we find that Mr. Harshbarger's challenges to the jury instructions raise issues of manifest constitutional error, we will review the instructions de novo. State v. Pirtle, 127 Wn.2d 628, 656, 904 P.2d 245 (1995). He was entitled to instructions that, taken as a whole, properly instructed the jury on applicable law, were not misleading, and allowed him to argue his theory of the case. State v. Redmond, 150 Wn.2d 489, 493, 78 P.3d 1001 (2003).
Mr. Harshbarger first argues that instruction 9 is an unconstitutional comment on the evidence. In its entirety, the instruction states that '[i]n order to convict a person of Rape of a Child in the Third Degree it shall not be necessary that the testimony of the alleged victim be corroborated.' Clerk's Papers (CP) at 79. Because Mr. Harshbarger alleges that the instruction violates article IV, section 16 of the Washington Constitution, and because judicial comments on the evidence are presumptively prejudicial, this issue is one of manifest constitutional error that is reviewable for the first time on appeal. McFarland, 127 Wn.2d at 332-33. However, the issue is without merit. A similar instruction was challenged on the same basis in State v. Malone, 20 Wn. App. 712, 582 P.2d 883 (1978). As Malone held, the instruction is a correct statement of the law and is pertinent when corroboration of an alleged sexual offense victim's testimony is at issue. Id. at 714-15. See also RCW 9A.44.020(1) (to convict a person of a sexual offense, 'it shall not be necessary that the testimony of the alleged victim be corroborated'). Because the instruction 'does not convey an opinion of the alleged victim's credibility,' it is not a comment on the evidence. Malone, 20 Wn. App. at 714.
'Judges shall not charge juries with respect to matters of fact, nor comment thereon, but shall declare the law.' Wash. Const. art. IV, sec. 16.
State v. Lane, 125 Wn.2d 825, 838, 889 P.2d 929 (1995).
Instruction 11B, also challenged by Mr. Harshbarger, is the instruction drafted to limit the jury's consideration of his prior bad acts. The instruction covers the testimony of EM and CE's testimony regarding earlier acts of sexual misconduct:
Evidence has been introduced in this case on the subject of defendant's alleged prior sexual misconduct with [EM]. The purpose of this testimony is limited. You may only consider it for the purpose of showing a common plan and scheme, motive, opportunity and/or design by the defendant. It is not to be used for the purpose of showing the defendant in fact committed the crime charged.
Evidence has also been introduced in this case on the subject of defendant's alleged prior sexual misconduct with the victim, [CE], occurring prior to the incidents alleged in March, 2002. This testimony is limited to showing defendant's lustful inclination for or to [CE]. You must not consider this evidence for the purpose of showing the defendant in fact committed the crime charged.
CP at 83. This type of limiting instruction on the proper use of ER 404(b) evidence should be given whenever requested by the defendant after evidence of prior bad acts has been admitted. DeVincentis, 150 Wn.2d at 23 n. 3 (citing State v. Saltarelli, 98 Wn.2d 358, 362, 655 P.2d 697 (1982)). Defense counsel agreed that this instruction must be given.
On appeal, Mr. Harshbarger simply challenges the admission of the evidence of prior bad acts and argues that the record does not therefore justify this instruction. Because this issue does not implicate manifest constitutional error, it will not be addressed for the first time on appeal. McFarland, 127 Wn.2d at 332-33.
Sentence
Mr. Harshbarger received an exceptional sentence double the low end of the standard range for his offense. He was also ordered to serve from 36 to 48 months of community custody, during which time he is prohibited from possessing or consuming alcohol. He challenges both the exceptional sentence and the alcohol restriction.
During the pendency of this appeal, the United States Supreme Court decided Blakely v. Washington, ___ U.S. ___, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). Under Blakely, any fact, other than the fact of a prior conviction, that increases the penalty for a crime beyond the statutory sentencing range, must be proved to a jury beyond a reasonable doubt. Id. at 2536. Mr. Harshbarger's exceptional sentence was based on findings by the trial court that CE was particularly vulnerable, that the offense included multiple incidents against CE over a lengthy period of time, and that Mr. Harshbarger abused a position of trust (among other factors). None of the facts used to support his exceptional sentence were found by a jury beyond reasonable doubt. Consequently, his sentence must be remanded to the trial court for resentencing subject to Blakely.
The State contends the issue of Mr. Harshbarger's exceptional sentence is moot because he has already served the entire period of his confinement. In re Det. of LaBelle, 107 Wn.2d 196, 200, 728 P.2d 138 (1986) (when the appellate court can no longer provide effective relief, the appeal is moot). However, the record does not indicate whether Mr. Harshbarger has completed his period of community custody. It is not likely he has done so. Consequently, the issue of his proper sentence is not moot.
Indeed, one of the conditions of Mr. Harshbarger's community custody is also at issue: the prohibition against possession or consumption of alcohol. Mr. Harshbarger argues pro se that this condition is not a proper crime-related prohibition because the record does not indicate any alcohol use related to the circumstances of his crime. His contention is without merit.
RCW 9.94A.715(2)(a) provides that conditions of community custody may include conditions provided for in RCW 9.94A.700(5), which includes the following special condition: 'The offender shall not consume alcohol.' RCW 9.94A.700(5)(d). Because other special conditions in RCW 9.94A.700(5) include the words 'crime-related,' while the prohibition against alcohol does not, the 'legislature manifested its intent that a trial court be permitted to prohibit the consumption of alcohol regardless of whether alcohol had contributed to the offense.' State v. Jones, 118 Wn. App. 199, 206, 76 P.3d 258 (2003). The trial court here was authorized by RCW 9.94A.715(2)(a) to prohibit Mr. Harshbarger from possessing or consuming alcohol during the period of his community custody.
Assistance of Counsel
Finally, Mr. Harshbarger contends he had ineffective assistance of trial counsel. He argues he was prejudiced by counsel's unreasonable failure (1) to object to the instructions challenged above; (2) to challenge inconsistencies in the findings supporting the exceptional sentence; (3) to object to the ruling excluding the character witnesses; (4) to interview the State's witnesses before trial; and (5) to object to the shackling of Mr. Harshbarger during the sentencing proceedings.
To prove ineffective assistance of counsel, Mr. Harshbarger must demonstrate that trial counsel's performance fell below an objective standard of attorney reasonableness and that counsel's errors changed the outcome of the trial. State v. Varga, 151 Wn.2d 179, 198, 86 P.3d 139 (2004). We assume effective assistance of counsel; 'this presumption will only be overcome by a clear showing of incompetence.' Id. at 199. Competency is determined based upon the entire record. McFarland, 127 Wn.2d at 335.
Mr. Harshbarger fails to overcome the presumption of competence here. As discussed above, the jury instructions challenged on appeal were supported by the record and the law; consequently an objection to these instructions likely would have been futile. The inconsistencies between the trial court's oral findings and the written findings supporting the exceptional sentence are not prejudicial because the entire exceptional sentence must be remanded for resentencing.
Mr. Harshbarger's pro se contentions that defense counsel failed to interview the State's witnesses, failed to object to his shackling during sentencing, and failed to object to the exclusion of his character witnesses are not supported by the record. In any event, he cannot show prejudice. Defense counsel skillfully cross-examined the State's witnesses and objected vigorously to the prosecutor's leading questions. Although physical restraints on a defendant are potentially prejudicial during any criminal proceedings before a jury, In re Personal Restraint of Davis, 152 Wn.2d 647, 694, 101 P.3d 1 (2004), the wearing of shackles during the sentencing phase of a trial before a sentencing judge presumably has no effect on the resulting sentence. Consequently, Mr. Harshbarger cannot show that trial counsel's failure to object to the imposition of shackles at sentencing was prejudicial. His contention that defense counsel failed to object to the exclusion of his character witnesses is belied by the record, which shows that counsel argued against the State's motion to exclude these witnesses.
To summarize, Mr. Harshbarger shows neither deficient performance nor prejudice. Accordingly, we find that he had effective assistance of counsel.
Judgment affirmed; remanded for resentencing.
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.
KATO, C.J. and BROWN, J., Concur.