Opinion
Nos. 34312-6-II; 35261-3-II.
May 15, 2007.
Appeal from a judgment of the Superior Court for Kitsap County, No. 04-1-01178-5, Anna M. Laurie, J., entered December 16, 2005, together with a petition for relief from personal restraint.
Judgment affirmed and petition denied by unpublished opinion per Armstrong, J., concurred in by Hunt and Penoyar, JJ.
Arthur Leon Johnson appeals his convictions of first degree child rape, two counts of first degree child molestation, and two counts of bail jumping. Johnson contends that the trial court erred in allowing the State to read into the record the contents of a sexual assault interview conducted with his victim. Johnson makes additional claims of error in his personal restraint petition and his pro se brief. We affirm the convictions and deny the personal restraint petition.
Facts
When K.L.M. was eight years old, one of her neighborhood friends was Johnson's youngest daughter. K.L.M. went to Johnson's house from time to time and was occasionally alone with him.
K.L.M. eventually disclosed to her father that Johnson had touched her inappropriately. After her father contacted the police, Sasha Mangahas, a child interviewer for the Kitsap County Prosecutor's Office, interviewed K.L.M. Mangahas made a report of the interview in which she wrote down every question and answer. K.L.M. told Mangahas about instances when Johnson touched her underneath her clothing in the vaginal area, penetrated her vagina with his thumb, and kicked her in the vaginal area with his foot.
The State charged Johnson by amended information with one count of first degree child rape, two counts of first degree child molestation, one count of third degree assault of a child, and two counts of bail jumping. Following a child hearsay hearing, the trial court concluded that K.L.M. was competent to testify and that her statements to her father and Mangahas were admissible at trial subject to the relevant rules of evidence.
By the time of trial, K.L.M. was nine years old. She testified that once when she and Johnson were alone at his house, Johnson touched and rubbed her skin where she goes to the bathroom. K.L.M. denied that Johnson touched her on other occasions, or that he kicked her or put his finger in her.
Kevin, K.L.M.'s father, testified that he was driving his daughter and her brother to a church function when K.L.M. mentioned that she and Johnson had a secret. Kevin pulled to the side of the road and had K.L.M. get out of the car so that he could talk to her alone. K.L.M. was hesitant to talk to him, but Kevin told her that she could tell him any secrets she had. K.L.M. then said that Johnson had touched her private area. Kevin did not ask for details, but drove home and called the police.
We address K.L.M.'s father by his first name to protect his daughter's identity.
The State then called Sasha Mangahas, the child interviewer. Before she testified, the State addressed how best to present her testimony about the interview with K.L.M. The State first proposed providing copies of her report to the jury as he and Mangahas read it aloud, with the copies collected at the end of the reading. The defense objected and the court agreed that providing copies of the report would unnecessarily highlight the testimony. The State then suggested that the contents of the report were admissible under the "past recollection recorded" exception to the hearsay rule and said it could lay a foundation under that rule or simply read the report to the jury. Report of Proceedings (RP) at 119.
The court ruled that it would allow the State to lay a foundation as to how the report was created and then read the interview questions, with Mangahas reading K.L.M.'s answers. The defense made no objection.
Mangahas explained to the jury the procedure she followed in interviewing K.L.M. and creating her "near-verbatim" report. RP at 131-32. She stated that "near-verbatim recording" means that she would write down every question she asked and every answer the child gave as close to verbatim as possible. Mangahas identified the report she made following her interview with K.L.M. and stated that it represented the near-verbatim notes of that interview. She remembered interviewing K.L.M., but she needed to refer to the report to recall the date of the interview. After Mangahas identified her report and the State asked the court for permission to read it, defense counsel made the following objection: "At this point, your Honor, for the record, object to hearsay, confrontation, and ER 403." RP at 134. The court noted the objection and told the State to proceed. At the end of the reading, Mangahas stated that it was an accurate, near-verbatim recording of her interview with K.L.M.
Damion Hart, a former cellmate of Johnson's at the Kitsap County Jail, testified that Johnson had told him about touching a little girl's vagina. Johnson took the stand and denied molesting, raping, or assaulting K.L.M.
During closing argument, the State displayed some of K.L.M.'s statements from the Mangahas report on a screen and read them to the jury. When the defense objected on the ground that the report had not been admitted into evidence, the court responded that the display was "proper demonstrative evidence." RP at 320.
The jury convicted Johnson on all counts except the assault.
On the day of the sentencing hearing, Johnson filed a motion for relief from judgment pursuant to CrR 7.8, and attached an affidavit from his daughter Erin. Erin claimed that when K.L.M.'s mother nodded or shook her head during her daughter's testimony, K.L.M. changed her answer. Erin did not describe how K.L.M. changed her testimony.
Approximately one month later, Johnson filed an affidavit from his brother Patrick. Patrick stated that he noticed K.L.M. looking at her mother while she testified, and he claimed he saw the mother shaking her head. Patrick stated, however, that the question he recalled K.L.M. being asked at the time was whether Johnson had "touched her down there," and that K.L.M. had answered "no." Clerk's Papers (CP) at 286. He also recalled the prosecuting attorney asking if Johnson kicked her, to which K.L.M. had answered "no." CP at 286-87.
At the hearing that followed, the trial court held that the affidavits were not sufficient to support the extraordinary relief that Johnson was seeking. The court held that there was both an insufficient factual declaration and an insufficient showing of prejudice, as Johnson's own affiant had stated that K.L.M. answered "no" to two material questions that related to two charges. The trial court denied the motion without requiring a further evidentiary hearing.
Johnson now appeals.
Analysis I.
Johnson's principal claims of error focus on the trial court's decision to allow the State to read the report of K.L.M.'s interview into the record. An appellant may argue to the appellate court only the specific grounds for an objection made at trial; we will not consider an argument presented by appellant for the first time on appeal. State v. Mathes, 47 Wn. App. 863, 868, 737 P.2d 700 (1987). There is an exception to this rule for constitutional issues. See RAP 2.5(a)(3). With this exception apparently in mind, Johnson alleges that several "trial irregularities" took place during his trial that denied him his constitutional right to a fair trial. See State v. Condon, 72 Wn. App. 638, 647, 865 P.2d 521 (1993) (an irregularity in trial proceedings is grounds for reversal when it is so prejudicial that it deprives the defendant of a fair trial).
We decline to review the issues raised under this standard. A trial irregularity occurs when evidence is inadvertently introduced despite the trial court's efforts to exclude it. See State v. Escalona, 49 Wn. App. 251, 253-56, 742 P.2d 190 (1987) (finding trial irregularity where witness referred to matter excluded by motion in limine); State v. Weber, 99 Wn.2d 158, 164-66, 659 P.2d 1102 (1983) (finding no trial irregularity even though witness volunteered information that had been ordered suppressed). Here, one judge admitted statements that a different judge had found admissible. We see no irregularity and review the issues raised under the abuse of discretion standard typically reserved for evidentiary issues. See State v. Markle, 118 Wn.2d 424, 438, 823 P.2d 1101 (1992) (trial court's rulings regarding the admissibility of evidence may be reversed only upon a manifest abuse of discretion).
The first issue is whether the trial court properly allowed the State and one of its witnesses to read the report of her interview with K.L.M. into the record.
Following the child hearsay hearing, the trial court concluded that K.L.M.'s statements to Mangahas were admissible at trial subject to relevant rules of evidence. When the State sought to introduce those statements by means of the Mangahas report, it argued that the report was admissible under the past recollection recorded rule of evidence. Although the trial court did not expressly rule that the report was admissible under this rule, we may affirm a ruling on any basis the record supports. State v. Norlin, 134 Wn.2d 570, 582, 951 P.2d 1131 (1998).
The State referred to ER 804(a)(5); the proper citation is ER 803(a)(5).
The admission of statements under ER 803(a)(5) is proper when the following factors are met: (1) the record pertains to a matter about which the witness once had knowledge; (2) the witness had an insufficient recollection of the matter to provide truthful and accurate trial testimony; (3) the record was made or adopted by the witness when the matter was fresh in the witness's memory; and (4) the record reflects the witness's prior knowledge accurately. State v. Alvarado, 89 Wn. App. 543, 548, 949 P.2d 831 (1998).
Mangahas could remember interviewing K.L.M., but she had to consult the report to determine when the interview occurred. She interviewed K.L.M. on June 7, 2004, and she testified on November 9, 2005. Mangahas testified that she interviews approximately 20 children a month. She explained that with the system of "near-verbatim" reporting that was in place when she interviewed K.L.M., she was trained to write down every question she asked and every answer given as close to verbatim as she could. RP at 132. "You just have to make sure you are as accurate as possible." RP at 133.
While this is the barest of foundations to support the criteria under ER 803(a)(5), we deem it sufficient to warrant the admission of the report pursuant to that rule.
Johnson argues that even if the report was properly admitted under ER 803(a)(5), it could be read to the jury only in part. As support, he cites the following language from Mathes: "Evidence admitted under ER 803(a)(5) may be read into evidence in pertinent part, not admitted into evidence as a whole." Mathes, 47 Wn. App. at 868 n. 1 (citing Wilson v. Key Tronic Corp., 40 Wn. App. 802, 814, 701 P.2d 518 (1985)). In both Mathes and Wilson, however, the writing was admitted in its entirety as an exhibit rather than read into the record, either in whole or in part. ER 803(a)(5) expressly forbids the admission of the report as an exhibit unless it is offered by the adverse party. We do not see these cases as forbidding the reading of an interview into the record, particularly where no objection was made on this basis prior to that reading. The trial court did not abuse its discretion in admitting the contents of the sexual assault interview report into evidence.
II.
In a related argument, Johnson contends that the trial court erred in allowing the State to read portions of the Mangahas report to the jury during closing argument.
The State apparently had portions of the report on some sort of screen in front of the jury, and when it referred to the screen, the defense objected on the grounds that "this has not been admitted." RP at 319. The court overruled the objection: "It is not going to the jury, but it is proper demonstrative evidence." RP at 320. Johnson now argues this was error because the report was not demonstrative evidence. The demonstrative evidence the court was describing was the manner in which the report was being displayed to the jury. It is clear that demonstrative evidence may refer to evidence that "shows" rather than "tells;" e.g., videotapes, charts, and maps. 5 Karl B. Tegland, Washington Practice: Evidence § 402.17, at 265 (4th ed. 1999). Such evidence, however, is assumed to have been admitted. See 5 Tegland § 402.17, at 266 (individual items of demonstrative evidence are called exhibits). Here, the means by which the report was displayed was not admitted as evidence.
Any error in the court's characterization of the display, however, is harmless. The State read portions of testimony that the jury had already heard, and their display was not improper. See State v. Huckins, 66 Wn. App. 213, 219, 836 P.2d 230 (1992) (proper for State to write jury instruction on chart for use as visual aid during closing argument).
III.
Johnson raises one main claim in the personal restraint petition consolidated with his appeal and refers to another that he also addresses in his statement of additional grounds (SAG). See RAP 10.10. His principal argument is that a detective's false reporting of his statements during an initial investigatory interview was used to convict him of crimes of which he is innocent. (Johnson raises the same or a related issue in his statement of additional grounds.)
Johnson's only support for this claim of falsehood is his own conclusory affidavit. He does not supply the offending report or identify its errors. More significant, however, is the fact that he was convicted without the introduction of the alleged report into evidence and without any testimony from the detective in question. We find this claim without merit.
Johnson's other claimed error here concerns the "coaching" that prompted his motion for relief from judgment. SAG at 8. He provides no new information but again makes general allegations that K.L.M.'s mother influenced her daughter's testimony. We affirm the trial court's conclusion that any such influence was not prejudicial, given the substance of K.L.M.'s testimony and the rest of the State's case. With regard to Johnson's claims in his pro se brief that K.L.M.'s grandfather also tried to influence her, any such evidence is outside the record and beyond this court's ability to consider. See State v. McFarland, 127 Wn.2d 322, 338, 899 P.2d 1251 (1995) (on direct appeal, appellate court will not consider matters outside the record).
Johnson raises more than thirty additional claims in his nine-page pro se brief. Several, like the claim just mentioned, depend on evidence outside the record and cannot be considered here. These claims include the following: he was unable to see the witnesses who testified against him at trial; the State did not allow for proper "pre-screening" of its witnesses (SAG at 2); one of the State's witnesses remained in the courtroom during trial; he never signed the speedy trial waiver; his attorney's scheduling error caused the first bail jumping charge; two people were selected as jurors even though Johnson said he knew them; his attorneys refused his request to ask K.L.M. whether she had been coached; he was denied access to the law library and to eyeglasses; a former indecent liberties charge was improperly resurrected; he was forced to wear a jail identification bracelet that the jury could see; the prosecuting attorney slandered him in the courtroom before trial; he was never given his Miranda rights; and the prosecuting attorney rolled his eyes when cross examining Johnson.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
We decline to consider other claims because they are totally without reasoned argument. See State v. Johnson, 119 Wn.2d 167, 171, 829 P.2d 1082 (1992). These include Johnson's assertion that the burden shifted to the defense when he testified, as well as his complaint about the trial court allowing the State to give rebuttal during closing argument. They also include his claims that he received only part of the record in his case; that references to K.L.M.'s coaching and other irregularities have been deleted from the record; that the State thwarted his attempt to advance his theory during his cross examination; that the statement in his forensic mental health report ruling out pedophilia was not used in his defense; that all of the attorneys who represented him breached the rules of attorney-client privilege and confidentiality; that all of his attorneys dismissed his theory; that he was held in jail over 350 days and given credit for only the time after his conviction; that the State allowed Damion Hart to testify untruthfully; that defense counsel referred during closing argument to the State's goal of putting a child molester away; and that the elements of motive and intent were not used during his prosecution.
Johnson also argues that the State often asserted that he was guilty and that "several cites" show that his pretrial detention violated his right to a speedy trial. SAG at 5. These assertions require us to search the record to find the necessary support, which we are not obligated to do. See RAP 10.10(c). Johnson also claims that K.L.M. was not sworn in before she testified. Because he failed to raise this objection below, we find this evidentiary issue waived. See ER 603 (before testifying, every witness is required to take an oath to testify truthfully); State v. Dixon, 37 Wn. App. 867, 876, 684 P.2d 725 (1984) (where witness is a child, rule is satisfied when child demonstrates an understanding of the difference between truth and falsity, is apprised of the importance of telling the truth, and declares that she will do so).
Johnson also contends that his bail was excessive. As there is no relief that this court can provide regarding this issue, it is moot. See State v. Turner, 98 Wn.2d 731, 733, 658 P.2d 658 (1983). He argues in addition that there was no probable cause to support his bail jumping charges. The State presented evidence to support those charges, and a jury found him guilty beyond a reasonable doubt. We need not address this issue further.
Finally, Johnson argues that he was incompetent to stand trial because of confusion he suffered as a result of attention deficit disorder. After a court-ordered evaluation, the trial court found him competent to stand trial. Johnson appeared able to track and answer questions from both his attorney and the prosecuting attorney during his direct and cross examination, and he exercised his right of allocution during sentencing in a coherent manner. His current claim that had he been on different medication, the outcome of his trial would have been different, is not persuasive.
We affirm Johnson's convictions and deny his personal restraint petition.
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.
We concur:
Hunt, J.
Penoyar, J.