Opinion
No. 57963-1-I.
August 13, 2007.
Appeal from a judgment of the Superior Court for Snohomish County, No. 05-1-00284-5, Larry E. McKeeman, J., entered March 22, 2006.
Affirmed by unpublished per curiam opinion.
A jury found Michael Hasbrouck guilty of two counts of second degree child rape. We find no reversible error in the trial court's in camera review, the jury instructions, closing argument, or in sentencing. We also reject Hasbrouck's statement of additional grounds for review.
Accordingly, we affirm.
FACTS
Michael Hasbrouck was charged with three counts of second degree child rape, one count of first degree child molestation, and one count of second degree child molestation. The three child rape counts involved Hasbrouck's 11-year-old step-niece C.S. The two child-molestation counts were based on allegations that Hasbrouck caused C.S. and her 11-year-old boyfriend B.K. to have sexual contact.
At trial, C.S. testified that she was born on November 3, 1991, and lived in an Everett apartment complex with her mother, step-father, and two step-sisters. C.S. and her family regularly visited her step-father's brother, appellant Hasbrouck, who lived in the same complex with his two children. In the summer of 2003, the summer before she started sixth grade, C.S. would spend one or two nights in Hasbrouck's apartment each month.
C.S. recalled that sometime in August 2003, Hasbrouck asked her "all of a sudden" if she would like to have sex with him. When C.S. replied that she did not know, Hasbrouck began showing her pornographic movies. Hasbrouck eventually removed C.S.'s clothes, rubbed her vagina, and had vaginal intercourse with her on the couch.
After the first incident, according to C.S., Hasbrouck would have intercourse with her once or twice a month when she spent the night. Each time, Hasbrouck would first perform oral sex on her and then have vaginal intercourse, using a condom. On one occasion, C.S. performed oral sex on Hasbrouck. C.S. said that the last sexual contact with Hasbrouck occurred in January 2005, when he attempted to have anal intercourse with her.
C.S. also described an incident involving her boyfriend B.K. that happened shortly after the first sexual contact with Hasbrouck. B.K and C.S. were at Hasbrouck's apartment when B.K. expressed a desire to have sex with C.S. Hasbrouck agreed to purchase condoms at a nearby store and then gave them to B.K. Both C.S. and B.K. testified that after they had sex in the living room, they went into Hasbrouck's room and found him masturbating. According to B.K., Hasbrouck then watched a pornographic movie with C.S. and B.K. During the movie, Hasbrouck sucked on C.S.'s breast and licked her vagina.
A short time later, C.S. told her mother about having sex with B.K., but did not reveal the contact with Hasbrouck until January 2005. At that time, C.S. told her mother she was concerned she might be pregnant. When C.S.'s mother asked if she was having sex with anyone other than B.K., C.S. revealed the contact with Hasbrouck.
Hasbrouck denied having any sexual contact with C.S. or supplying condoms to B.K. and C.S. Hasbrouck acknowledged that he found B.K. and C.S. naked together under a blanket when they spent the night in his apartment. The two were watching a pornographic video. Hasbrouck suspected that C.S. and B.K. had taken the video from his bedroom or the video had been left out by C.S.'s mother.
The child molestation counts were dismissed at the close of the State's case. The jury found Hasbrouck guilty as charged of two counts of second degree child rape, committed between August 2003 and December 2004, and not guilty of the remaining count of child rape, which was alleged to have occurred between August 2003 and November 2004.
DECISION
Hasbrouck first contends the trial court erred in limiting access to C.S.'s medical and counseling records and Child Protective Services records. After conducting an in camera review of the materials, the trial court disclosed some but not all of the documents. Hasbrouck now asks this court to conduct a de novo review of the sealed record to determine whether any additional documents should have been disclosed.
Due process requires the trial court to undertake an in camera review of privileged or confidential records if the defendant makes a plausible showing that the material is both material and favorable to the defense. State v. Gregory, 158 Wn.2d 759, 791, 147 P.3d 1201 (2006). But Hasbrouck cites no relevant authority for his claim that an appellate court should conduct a de novo review of the sealed documents. Rather, we review the trial court's determination of which documents should be disclosed for a manifest abuse of discretion. See State v. Stevens, 58 Wn. App. 478, 484, 794 P.2d 38 (1990); cf. State v. Casal, 103 Wn.2d 812, 823, 699 P.2d 1234 (1985). After reviewing the sealed record, we conclude the trial court did not abuse its discretion in determining which documents to disclose. See Stevens, 58 Wn. App. at 485.
Hasbrouck next contends the reference to C.S.'s date of birth in the to-convict instructions defining second degree child rape constituted an unconstitutional comment on the evidence. He argues that he is entitled to a new trial because C.S.'s age was an element of the offense and the reference to her date of birth could have contributed to the jury's finding of guilt.
"A jury instruction referencing a victim's birth date is an improper judicial comment when an element of the crime is the victim's minority." State v. Zimmerman, 135 Wn. App. 970, 973, 146 P.3d 1224 (2006), (citing State v. Jackman, 156 Wn.2d 736, 132 P.3d 136 (2006)). A judicial comment on the evidence is presumed prejudicial, and the State must demonstrate that the defendant was not prejudiced by the comment, unless the record affirmatively shows that no prejudice occurred. State v. Levy, 156 Wn.2d 709, 723, 132 P.3d 1076 (2006).
Here, the to-convict instructions for second degree child rape informed the jury that the State was required to prove, among other elements, that Hasbrouck had sexual intercourse with C.S. between August 2003 and December 2004, when C.S. was "at least twelve years old but was less than fourteen years old." See RCW 9A.44.76. The references to C.S.'s date of birth in the instructions were comparable to those in other cases found to be improper comments on the evidence. See Jackman, 156 Wn.2d at 745 (the fact of the victim's minority was a crucial element of the charged offense); Zimmerman, 135 Wn. App. at 975 (inclusion of victim's birth date in instructions for first degree child molestation constituted judicial comment on the evidence). But we disagree with Hasbrouck that the inclusion of C.S.'s birth date was prejudicial under the circumstances of this case.
In Jackman, a jury found the defendant guilty of multiple counts of sexual exploitation of a minor, communication with a minor for immoral purposes, furnishing liquor to a minor, and patronizing a juvenile prostitute. In each case, the State was required to prove that the victim was under 18 at the time of the offense. The defendant claimed that he had done everything possible to ascertain the victims' ages, and two of the victims admitted that they had lied about their age to the defendant. Our supreme court held that the record did not affirmatively show the absence of prejudice because even though the defendant neither challenged nor stipulated to the victims' ages, it was still conceivable that the jury could have determined the victims were not minors at the time of the charged incidents if their birth dates had not been specified in the instructions. Jackman, 156 Wn.2d at 745.
Here, unlike Jackman, there was no dispute at any point regarding C.S.'s age; Hasbrouck was well acquainted with C.S., who was his step-niece. C.S. testified that she was born on November 3, 1991, and that her first sexual contact with Hasbrouck occurred in August 2003. C.S.'s mother testified that C.S. was 14 at the time of trial, which occurred in January 2006. Consequently, there was no basis in the record for the jury to find that C.S. was over the threshold age of 14 during the charging period of August 2003 to December 2004. Moreover, Hasbrouck flatly denied having any sexual contact with C.S. Under these circumstances, we can find no rational possibility that the inclusion of C.S.'s date of birth affected the jury's verdict or relieved the State of its burden to prove C.S.'s age during the charging period. Because the record affirmatively shows the absence of prejudice, reversal is not required. See State v. Zimmerman, 135 Wn. App. at 975-76 (inclusion of victim's birth date in to-convict instruction for first degree child molestation was harmless error).
Because we conclude that any instructional error was harmless, we do not address the State's claim that Hasbrouck was precluded from raising this challenge by the invited error doctrine.
Hasbrouck next contends that he was denied effective assistance when, during closing argument, defense counsel made the following remarks:
You also know a little bit about Mike and his background, and you might speculate reasonably that Mike's going to make some dumb decisions in his testimony. Even if he thinks he's innocent, he might feel like he needs to embellish. He might feel like he has something to answer for, something to tell differently.
I think that you think he's lying. I do. I think most of you do think he's lying about what he's telling you. Does that mean he's guilty? No, it does not. A[n] innocent person of a limited capacity, who is being accused of outrageous crap, might just feel like he needs to scramble and tell a lie. Does that mean he's guilty? No.
Hasbrouck maintains that defense counsel essentially characterized his testimony as not credible and thereby violated his duty of loyalty, denying him a fair trial.
A defense counsel's admission of guilt on behalf of the defendant during closing argument, without the client's consent, denies the defendant the right to have guilt or innocence determined by the jury as a meaningful adversarial issue and may constitute ineffective assistance of counsel. United States v. Simone, 931 F.2d 1186, 1196 (7th Cir. 1991); see also Wiley v. Sowders, 647 F.2d 642, 650 (6th Cir. 1981) (ineffective assistance where defense counsel during closing argument repeatedly stated defendant was "'guilty,'" "'guilty as charged,'" and "'guilty beyond a reasonable doubt'"). Similarly, if the defendant's own counsel expresses doubts about a significant aspect of the defendant's testimony during closing argument, then the trier of fact may question whether it can believe anything else the defendant says. See State v. Moorman, 320 N.C. 387, 358 S.E.2d 502, 511 (1987) (where, among other things, defense counsel characterized defendant's testimony that he mistook victim for someone else as not worthy of belief, confidence in trial's reliability was undermined). But admissions that involve only some of the charges or factual issues and do not amount to a complete concession of guilt may constitute legitimate trial strategy. See Simone, 931 F.2d at 1196 (defense counsel's strategy of conceding guilt on charges for which evidence was overwhelming, while arguing innocence on more serious charges, was reasonable under the circumstances).
During his testimony, Hasbrouck acknowledged that he was less certain about some details of the incident involving C.S. and B.K. than he had originally asserted. Consequently, defense counsel attempted during closing argument to offer a plausible explanation for these inconsistencies and the possibility that Hasbrouck might have "embellished" some details. But defense counsel also repeatedly stressed that any inconsistencies about some details in Hasbrouck's testimony did not mean that he was guilty of the charged crimes or that the State is relieved of its burden of proof. Defense counsel then continued his closing argument with a vigorous and lengthy challenge to the credibility of C.S. and B.K.
It is apparent that when the challenged remarks are viewed in context, defense counsel was attempting to bolster Hasbrouck's credibility, not undermine it. Under the circumstances, the comments were part of a legitimate strategy and did not amount to an abandonment of defense counsel's duty of loyalty. See United States v. Harris, 761 F.2d 394 (7th Cir. 1985) (defense counsel's statement during closing argument that defendant "was not totally honest with you" was reasonable attempt to mitigate negative effect of defendant's damaging testimony and did not constitute deficient performance).
In summary, Hasbrouck's allegations of trial error, viewed either individually or cumulatively, do not warrant reversal of his conviction.
Hasbrouck next contends that he was denied effective assistance of counsel during sentencing when defense counsel failed to argue that the two counts of second degree child rape encompassed the same criminal conduct for purposes of determining his offender score. In order to establish ineffective assistance of counsel, Hasbrouck must demonstrate (1) that his attorney's representation fell below an objective standard of reasonableness, and (2) resulting prejudice, i.e., a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different. State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995); Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
Under the Sentencing Reform Act, multiple current offenses are counted as one crime only if the trial court expressly finds that they encompass the same criminal conduct, i.e., that they involve (1) the same objective intent; (2) the same time and place; and (3) the same victim. RCW 9.94A.589(1)(a). The trial court's unchallenged calculation of Hasbrouck's offender score constitutes a determination that the two offenses did not encompass the same criminal conduct. State v. Anderson, 92 Wn. App. 54, 62, 960 P.2d 975 (1998). The trial court's determination of whether offenses encompass the same criminal conduct is reviewed for an abuse of discretion or misapplication of law. State v. Haddock, 141 Wn.2d 103, 110, 3 P.3d 733 (2000).
Relying on State v. Dolen, 83 Wn. App. 361, 921 P.2d 590 (1996), Hasbrouck argues that his offenses encompassed the same criminal conduct because it was possible the jury found him guilty of two counts of second degree child rape based on one act of oral intercourse and one act of vaginal intercourse that occurred during a single incident. In Dolen, the defendant was convicted of one count of child rape and one count of child molestation, occurring over the period of one year. At trial, the victim described six specific incidents, each of which involved multiple forms of sexual contact occurring continuously during a relatively brief period. On appeal, the court concluded that because the record failed to indicate whether the two convictions were based on separate incidents, the State had failed to satisfy its burden of proving the defendant's criminal history. The court therefore reversed the trial court's determination that the two convictions did not involve the same criminal conduct. Dolen, 83 Wn. App. at 364-65.
But the record here is less ambiguous than that in Dolen. According to C.S., Hasbrouck would first perform oral intercourse, followed by vaginal intercourse, once or twice a month when she spent the night in his apartment. As the deputy prosecutor noted during closing argument, C.S.'s testimony involved multiple acts of sexual contact during the charging period and the choice of counts involved a "representative amount." There was no evidence or argument suggesting any distinction in the general incidents of sexual contact that C.S. described as occurring during the charging period. The only additional evidence of specific incidents that may have occurred during the charging period involved a single incident of oral intercourse performed by C.S., a single attempt by Hasbrouck to perform anal intercourse, and the single incident of oral intercourse witnessed by B.K. If the jury relied on any combination of these specific incidents and the more general incidents described by C.S., the convictions necessarily did not encompass the same criminal conduct because they did not occur at the same time. Under the circumstances, there is no reasonable probability that the sentencing court would have found the offenses to encompass the same criminal conduct had defense counsel raised the issue. Accordingly, Hasbrouck was not denied effective assistance of counsel.
Hasbrouck next challenges conditions of community custody that preclude him from contact with minor children without the presence of an approved adult knowledgeable of the offense and from spending the night in a residence where minor children live or are spending the night. Hasbrouck argues that these conditions violate his fundamental right to parent to the extent they restrict contact with his own two biological children, who were about ten and nine at the time of trial.
Parents have a fundamental constitutional right to raise children without interference by the state. State v. Letourneau, 100 Wn. App. 424, 438, 997 P.2d 436 (2000). But in the criminal sentencing context, community custody restrictions of this right are permissible if they are reasonably necessary to further the government's compelling interest in protecting children. Letourneau, 100 Wn. App. at 439-42; see also State v. Riles, 135 Wn.2d 326, 350, 957 P.2d 655 (1998). In Letourneau, this court held that the State had failed to demonstrate that restrictions on the defendant's contact with her biological children were reasonably necessary to prevent her from sexually molesting them. In reaching this decision, the court noted that the evaluators were unanimous that the defendant was not a pedophile and that there was nothing in the record to indicate she posed a threat to her own children. Letourneau, 100 Wn. App. at 441-42.
The nature of Hasbrouck's offenses and the surrounding circumstances differ significantly from the facts in Letourneau. In addition, unlike the virtually unanimous recommendations in Letourneau, the record includes the presence of several specific factors suggesting a potential danger to Hasbrouck's biological children.
The evidence indicates Hasbrouck had repeated sexual intercourse with his 11-year-old step-niece when she spent the night at his apartment. On one occasion, according to C.S., Hasbrouck's children woke up and almost interrupted C.S. and Hasbrouck having sex in the living room. Hasbrouck also facilitated an act of sexual intercourse between C.S. and her 11-year-old boyfriend. Hasbrouck then had sexual contact with C.S. in front of B.K. and showed the two children pornographic movies. C.S.'s mother also reported that Hasbrouck expressed a desire for sexual contact with adolescent females in the neighborhood. On this record, we cannot say that the sentencing court abused its discretion in determining that the restrictions were reasonably necessary to protect the children from harm.
Hasbrouck next challenges the community custody condition that he "not possess or access pornographic materials, as directed by the supervising Community Corrections Officer." Relying primarily on State v. Sansone, 127 Wn. App. 630, 111 P.3d 1251 (2005), he argues that the condition is unconstitutionally overbroad and vague. But as we recently noted, such restrictions are not overbroad if they relate directly to the circumstances of the crime. See State v. Bahl, 137 Wn. App. 709, 159 P.3d 416 (2007). The evidence at trial indicated that Hasbrouck used pornography to groom his victim. Consequently, because the challenged condition was crime-related, Hasbrouck's overbreadth argument fails. See State v. Bahl, 137 Wn. App. at 715.
Moreover, unlike the defendant in Sansone, who was sentenced to additional confinement for possessing photographs of scantily-clad women, Hasbrouck has raised a pre-enforcement facial challenge for vagueness. Because the record contains no actual conduct or factual record for this court to review, and Hasbrouck has not provided any briefing addressing the underlying issues, we follow Bahl and decline to review a pre-enforcement challenge to the restriction on pornography. See Bahl, 137 Wn. App. at 719.
Finally, Hasbrouck has filed a statement of additional grounds for review as allowed by RAP 10.10. He devotes most of the document to a detailed explanation of why several of the State's key witnesses, including the victim, were not credible. But issues of credibility are reserved solely for the trier of fact and cannot be reviewed on appeal. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990). Hasbrouck also appears to allege that he was denied effective assistance of counsel. But these assertions are too conclusory to establish that defense counsel was deficient or that Hasbrouck was prejudiced by the deficiency.
Affirmed.
For the Court: