Opinion
No. 36208-2-II.
November 4, 2008.
Appeal from a judgment of the Superior Court for Pierce County, No. 06-1-04015-7, Vicki L. Hogan, J., entered March 23, 2007.
Affirmed by unpublished opinion per Houghton, J., concurred in by Bridgewater and Armstrong, JJ.
UNPUBLISHED OPINION.
David Melancon appeals his conviction of third degree assault of a child, arguing the trial court made evidentiary and instructional errors. We affirm.
FACTS
During summer 2006, Heather J. and her two minor daughters, M.J. and L.J., lived with Karen Hoye. On July 24, Heather and her daughters stayed the night at Melancon's apartment in Lakewood, as they had done previously. Melancon and Heather were dating during that time.
We refer to Heather J. by her first name, intending no disrespect.
M.J. was born on February 9, 1998, and L.J. was born on January 19, 2000.
On the evening of July 24, Heather was cleaning M.J.'s ears in Melancon's bathroom when M.J. ran out of the bathroom screaming that her ears hurt. When M.J. would not consent to having her ears cleaned, Heather and Melancon became angry with her. Melancon then disciplined M.J. by striking her across the buttocks and legs with a plastic wand used to open and close venetian blinds.
The parties disputed the method of discipline at trial. While Heather testified that she "spanked" M.J. with a venetian blind wand two to four times, M.J. testified that her mother never hit her, and Deputy Bryan Cline testified that M.J. never mentioned during his investigation that her mother had "spanked" her. Furthermore, Albert Ernest, M.J.'s biological father, testified that M.J. never told him that Heather struck her.
In the following days, Hoye noticed scratches and bruising on M.J.'s legs near her buttocks. She testified that M.J. wanted her to call her uncle because "Dave" had "spanked" her. III Report of Proceedings at 188. M.J.'s uncle, Harold McMillan, arrived at the house after Hoye called him, and he took pictures of M.J.'s injuries with his cellular phone camera. McMillan then took M.J. to stay with Albert Ernest, her biological father.
Ernest called Child Protective Services (CPS) after seeing M.J.'s injuries. Acting on CPS's recommendation, Ernest took M.J. to Auburn General Hospital's emergency room where Dr. Michael Beins treated her. Beins testified that M.J. had bruises on her buttocks, broken skin on her thigh, and distinct marks where the plastic wand struck her. He further testified that the person who struck M.J. would have needed to use moderate to severe force to inflict the injuries.
Beins called CPS and the police to report suspected child abuse. Deputy Bryan Cline investigated the incident later that night at Ernest's home, interviewing both M.J. and Ernest. The State then charged Melancon with second degree assault of a child.
Before trial, the trial court held a hearing on the State's motion to determine the admissibility and use of child hearsay statements with respect to professional and nonprofessional witnesses. With regard to the professional witnesses, the court reserved ruling on the matter until trial. With regard to the nonprofessional witnesses, the court reviewed each of the Ryan factors on the record and ruled M.J.'s statements admissible. State v. Ryan, 103 Wn.2d 165, 175-76, 691 P.2d 197 (1984).
Defense counsel called Melancon's sister, Paula Curle, and asked, "Did [Heather] say anything to you?" and the State objected on hearsay grounds. IV RP at 382. The trial court sustained the objection, rejecting defense counsel's argument that he intended to use the testimony for impeachment purposes.
The trial court declined to give Melancon's proposed instruction on fourth degree assault because it determined, that although there may have been a legal basis for the instruction, no factual basis existed. The jury found Melancon guilty of third degree assault of a child. He appeals.
ANALYSIS Child Hearsay Statute
Melancon first contends the trial court erred in failing to enter separate reliability findings for each of M.J.'s statements before ruling them admissible. RCW 9A.44.120 governs the admissibility of hearsay when the declarant is a child victim of sexual or physical abuse and provides in relevant part:
A statement made by a child when under the age of ten describing any act of . . . physical abuse of the child by another that results in substantial bodily harm as defined by RCW 9A.04.110, not otherwise admissible by statute or court rule, is admissible in evidence in . . . criminal proceedings . . . if:
(1) The court finds, in a hearing conducted outside the presence of the jury, that the time, content, and circumstances of the statement provide sufficient indicia of reliability; and
(2) The child either:
(a) Testifies at the proceedings; or
(b) is unavailable as a witness.
Under the statute, the proponent of the statement must notify the adverse party of its intent to offer the statement and advise the adverse party of the statement's content before the hearing. RCW 9A.44.120.
The trial court employs a nine-part test to judge the reliability of the child's statements: "'(1) whether there is an apparent motive to lie; (2) the general character of the declarant; (3) whether more than one person heard the statements; (4) whether the statements were made spontaneously; . . . (5) the timing of the declaration and the relationship between the declarant and the witness; . . .' (6) the statement contains no express assertion about past fact[;] (7) cross-examination could not show the declarant's lack of knowledge[;] (8) the possibility of the declarant's faulty recollection is remote[;] and (9) the circumstances surrounding the statement . . . are such that there is no reason to suppose the declarant misrepresented defendant's involvement." Ryan, 103 Wn.2d at 176-76 (quoting State v. Parris, 98 Wn.2d 140, 146, 654 P.2d 77 (1982) and Dutton v. Evans, 400 U.S. 74, 88-89, 91 S. Ct. 210, 27 L. Ed. 2d 213 (1970)).
Melancon asserts that the trial court "is required to enter separate findings of reliability for each statement and it is error to enter blanket findings related to all statements." Appellant's Br. at 24. He relies on State v. Stevens, an inapposite case, to support his arguments. 58 Wn. App. 478, 794 P.2d 38 (1990). Stevens does not apply because Melancon failed to object at the Ryan reliability hearing.
In Stevens, Division One held that the trial court should have entered findings on the individual Ryan factors for each statement made by the child under RCW 9A.44.120. Stevens, 58 Wn. App. at 487. Division One did not reverse on that basis, however, because defense counsel failed to object at the time of the trial court's ruling. Stevens, 58 Wn. App. at 485-87. Therefore, although Stevens supports Melancon's argument that the trial court should have analyzed each statement made by M.J., Stevens also directly undercuts Melancon's position because he failed to object.
We do not consider evidentiary objections for the first time on appeal unless the admission of that evidence constitutes a manifest error affecting a constitutional right. RAP 2.5(a). The confrontation clause of the Sixth Amendment provides the accused with the right to confront all witnesses. U.S. Const. amend. VI. Because of this right, "a hearsay statement that is 'testimonial' is inadmissible unless the defendant has an opportunity to cross-examine the witness either before or at trial." State v. Watt, 160 Wn.2d 626, 630, 160 P.3d 640 (2007) (quoting Crawford v. Washington, 541 U.S. 36, 68, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004)). Here, M.J. testified both at the admissibility hearing and at trial, thus providing Melancon with the opportunity for confrontation.
Notwithstanding the trial court's failure to enter individual findings of fact for each of M.J.'s statements, any possible error did not result in a manifest error affecting a constitutional right as M.J. was an available declarant subject to cross-examination. Thus, Melancon's failure to properly raise his objection to the trial court's findings of reliability precludes appellate review.
Hearsay
Melancon next contends the trial court erred in its ruling on a State hearsay objection when defense counsel asked Curle, "Did [Heather] say anything to you?" and the court sustained the State's hearsay objection. IV RP at 382.
We review the trial court's evidentiary rulings for abuse of discretion. State v. Vreen, 143 Wn.2d 923, 932, 26 P.3d 236 (2001). A trial court abuses its discretion when it bases its decision on unreasonable or untenable grounds. State v. Powell, 126 Wn.2d 244, 258, 893 P.2d 615 (1995). Hearsay is an out of court statement offered to prove the truth of the matter asserted and is not admissible except as provided for by evidence rules, court rules, or statute. ER 801(c), 802.
Here, the trial court sustained the State's objection and reaffirmed its ruling after defense counsel explained he was trying to impeach the witness. When the court ruled against the State's hearsay objections, defense counsel made no offer of proof to allow the trial judge to determine whether the question called for hearsay. Thus, under ER 102(a)(2), an error may not be predicated on the trial court's ruling in this instance. Melancon's arguments that the trial court denied him the ability to present a defense by sustaining the State's hearsay objection fails.
Jury Instructions
Melancon further contends that the trial court erred in instructing the jury. He asserts that the trial court should have instructed the jury on the lesser included offense of fourth degree assault of a child. We review the trial court's decisions on which instructions to provide the jury for abuse of discretion. State v. Walker, 136 Wn.2d 767, 771-72, 966 P.2d 883 (1998). Sufficient jury instructions are those that permit each party to argue its theory of the case and properly inform the jury of the applicable law. State v. Riley, 137 Wn.2d 904, 909, 976 P.2d 624 (1999).
Additionally, an instruction regarding a lesser included offense is warranted when two conditions are met: (1) each of the elements of the lesser offense is a necessary element of the charged offense and (2) the evidence must support an inference that the lesser crime was committed. State v. Fernandez-Medina, 141 Wn.2d 448, 454, 6 P.3d 1150 (2000).
Here, the parties dispute the factual prong of the two-part Workman test with regard to Melancon's proposed jury instruction for fourth degree assault. State v. Workman, 90 Wn.2d 443, 447-48. In determining whether the trial court met this prong, we review the evidence in the light most favorable to Melancon, as he was the party requesting the instruction. Fernandez-Medina, 141 Wn.2d at 455-56.
The Fernandez-Medina court explained "the factual test includes a requirement that there be a factual showing more particularized than that required for other jury instructions. Specifically, we have held that the evidence must raise an inference that only the lesser included/inferior degree offense was committed to the exclusion of the charged offense." 141 Wn.2d at 455.
Third degree assault occurs when a person, acting with criminal negligence, "causes bodily harm to another person by means of a weapon or other instrument or thing likely to produce bodily harm." RCW 9A.36.031 (1)(d). Fourth degree assault occurs only "under circumstances not amounting to assault in the first, second, or third degree, or custodial assault." RCW 9A.36.041(1). After reviewing the record, both parties agree that the evidence introduced at trial establishes that M.J. suffered injuries.
Defense counsel did not present the jury or trial court with a theory that M.J.'s injuries had been caused by the "spanking" Heather claims to have administered.
But Melancon argues that a jury could have concluded that although the "injuries were caused by Mr. Melancon, the bruising did not constitute bodily harm, and that Mr. Melancon did not act recklessly in disciplining M.J." Appellant's Br. at 29. His reasoning fails because under his scenario, the jury would need to ignore the court's instruction on bodily harm, instruction 18, which reads: "Bodily injury, physical injury or bodily harm means physical pain or injury, illness or an impairment of physical condition." Clerks Papers at 129. As M.J. suffered bruising caused by a weapon or instrument, an instruction on fourth degree assault was not warranted.
Cumulative Error
Melancon contends last that cumulative error denied him a fair trial. The cumulative error doctrine applies to instances where there have been several trial errors that, standing alone, may not be sufficient to justify reversal; but when combined may deny a defendant a fundamentally fair trial. State v. Greiff, 141 Wn.2d 910, 929, 10 P.3d 390 (2000). As we find no accumulated error, Melancon's argument fails.
Affirmed.
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.
BRIDGEWATER, J. and ARMSTRONG, J., concur.