Opinion
64901-9-I 64604-4-I
07-30-2012
STATE OF WASHINGTON, Respondent, v. STEVEN JAMES MONTGOMERY, Appellant.
UNPUBLISHED OPINION
Leach, C.J.
Steven Montgomery appeals his conviction for third degree child molestation, challenging the sufficiency of the evidence and the performance of trial counsel. Because the State presented sufficient evidence to support the child molestation conviction and because Montgomery fails to show ineffective trial representation, we affirm.
Montgomery's current counsel on appeal did not participate in the trial of this case.
FACTS
On July 13, 2008, 15-year-old C.H. babysat for Steven Montgomery and his wife, who were longtime family friends. At the end of the night, Montgomery drove C.H. home. Once in the car, Montgomery offered C.H. two wine coolers, which she accepted and drank. He started talking about sexually explicit topics, and when C.H. looked over, she saw Montgomery masturbating. He took her left hand and tried to draw it toward his crotch, but she pulled it away. Several minutes later, Montgomery reached across and touched C.H.'s left breast with his hand. C.H. quickly brushed his hand away and scooted farther away from him in her seat.
When she arrived home, C.H. told her mother what just happened. Together they confronted Montgomery's wife by telephone that night, but C.H.'s mother did not notify the police. Six weeks later, C.H. disclosed the event to her high school guidance counselor, who contacted the authorities. After a police investigation, the State charged Montgomery with third degree child molestation and communicating with a minor for immoral purposes. A jury convicted him of both counts. Montgomery appeals the molestation conviction.
ANALYSIS
Montgomery argues that the State presented insufficient evidence to sustain a third degree child molestation conviction. When reviewing a claim of insufficient evidence, this court must decide "'whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" In challenging the sufficiency of evidence, the defendant admits the truth of the State's evidence and all inferences that reasonably can be drawn from it.
State v. Ortiz, 119 Wn.2d 294, 311-12, 831 P.2d 1060 (1992) (internal quotation marks omitted) (quoting State v. Bingham, 105 Wn.2d 820, 823, 719 P.2d 109 (1986)).
State v. Spruell, 57 Wn.App. 383, 385, 788 P.2d 21 (1990).
To prove Montgomery guilty, the State had to show that he had "sexual contact with another who is at least fourteen years old but less than sixteen years old and not married to the perpetrator and the perpetrator is at least forty-eight months older than the victim." The only element at issue here is whether the State proved "sexual contact." By law, sexual contact means "any touching of the sexual or other intimate parts of a person done for the purpose of gratifying sexual desire of either party or a third party."
Montgomery argues that no reasonable juror could have found a sexual contact occurred based on C.H.'s testimony of how quickly the contact began and ended. To this end, he relies on State v. R.P., in which the defendant held the victim down while he kissed her neck long enough to leave a hickey. The court stated, "Since sexual contact in this case is measured in terms of what is 'intimate, ' the offensiveness of the contact may ultimately depend upon not only the area of the body touched but also the duration of the contact."
67 Wn.App. 663, 838 P.2d 701 (1992).
R.P., 67 Wn.App. at 669.
But that case did not involve a touching of the breasts. In In re Welfare of Adams, we held that contact to the genital organs or breasts, even if the contact occurs over the clothing, is "sexual contact" as a matter of law. Because touching a female's breasts is a sexual contact as a matter of law, we reject Montgomery's proposed durational test and find that the State's evidence that Montgomery touched C.H.'s breast is sufficient, in and of itself, to support his conviction.
24 Wn.App. 517, 519, 601 P.2d 995 (1979).
Montgomery also alleges ineffective assistance of counsel. He makes two separate arguments: (1) that his attorney improperly opened the door to C.H.'s testimony that Montgomery made sexual advances to other women in her family and (2) that the attorney failed to object to C.H.'s mother's testimony that she believed her daughter's disclosure completely. Additionally, he alleges that the failure to object to this opinion testimony denied him a fair trial.
Claims of ineffective assistance present mixed questions of fact and law that we review de novo. To prevail on a claim of ineffective assistance, a defendant must show both deficient performance and resulting prejudice.Counsel's performance is deficient if it fell below an objective standard of reasonableness. Our scrutiny of defense counsel's performance is highly deferential, and we employ a strong presumption of reasonableness. "To rebut this presumption, the defendant bears the burden of establishing the absence of any 'conceivable legitimate tactic explaining counsel's performance.'" To establish prejudice, a defendant must show a reasonable probability that the outcome of the trial would have been different absent counsel's deficient performance. Failure on either prong of the test is fatal to a claim of ineffective assistance of counsel.
In re Pers. Restraint of Brett, 142 Wn.2d 868, 873, 16 P.3d 601 (2001).
Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
State v. Stenson, 132 Wn.2d 668, 705, 940 P.2d 1239 (1997).
Strickland, 466 U.S. at 689; State v. McFarland, 127 Wn.2d 322, 335-36, 899 P.2d 1251 (1995).
State v. Grier, 171 Wn.2d 17, 42, 246 P.3d 1260 (2011) (quoting State v. Reichenbach, 153 Wn.2d 126, 130, 101 P.3d 80 (2004)).
State v. Thomas, 109 Wn.2d 222, 226, 743 P.2d 816 (1987).
Strickland, 466 U.S. at 697.
We reject the first claim—that trial counsel should not have opened the door to C.H.'s prejudicial testimony about other incidents of sexual harassment—because counsel was not deficient. Montgomery's trial attorney articulated a clear trial strategy for opening the door to C.H.'s testimony and for not requesting a limiting instruction. Defense counsel elicited C.H.'s testimony that she was angry with Montgomery and that she did not like him. This allowed the prosecutor to inquire later and learn that C.H. was angry because she knew that Montgomery had made sexual advances toward her mother and her aunt in the past. The prosecutor suggested a limiting instruction, but defense counsel refused. He noted that the testimony supported the defense theory of the case—that C.H.'s anger and dislike of Montgomery gave her motive to falsely accuse him. Defense counsel also stated that a limiting instruction might do more harm than good by drawing unnecessary attention to Montgomery's behavior toward C.H.'s female relatives. "Experienced lawyers know that what may appear to be a blunder in tactics at the trial may have been deliberately undertaken with calculated risks." That occurred here. The law affords trial counsel wide latitude in the choice of tactics. The tactic chosen by trial counsel does not rise to the level of showing clear incompetence, as required by our case law. Therefore, Montgomery has not met his burden on this claim.
State v. Piche, 71 Wn.2d 583, 590, 430 P.2d 522 (1967).
Piche, 71 Wn.2d at 590.
Piche, 71 Wn.2d at 591.
The second claim—that counsel should have objected to testimony from C.H.'s mother that she believed C.H.'s accusations—fails because Montgomery fails to show prejudice. During the mother's testimony, she explained that even though she believed her daughter "100 percent, " she did not want to involve the police in this family matter. Montgomery argues that this single statement improperly bolstered C.H.'s credibility and changed the outcome of the trial. We disagree.
In general, a witness may not offer opinion testimony on another witness's credibility. However, even if the mother's testimony was objectionable, Montgomery has failed to show prejudice. Counsel for both sides argued at length about C.H.'s credibility. The prosecutor highlighted the testimony of other witnesses, including defense witnesses, and the many small details in Montgomery's voluntary statement to police that corroborated C.H.'s testimony. The defense focused on C.H.'s lack of memory of some details and her inconsistent statements to police, particularly relating to whether or not she had been drinking that night. The State never used the mother's testimony to bolster C.H.'s credibility. The only mention, by either side, was to explain why C.H.'s mother did not call the police. Viewing the mother's statement, in context of the whole record, Montgomery fails to show a reasonable probability that but for this claimed error the result would have been different.
State v. Carlson, 80 Wn.App. 116, 123, 906 P.2d 999 (1995).
Montgomery argues for the first time on appeal that counsel's failure to object denied him the right to a fair trial. Under RAP 2.5(a)(3), we only review a claim of error not raised below if it is a manifest error affecting a constitutional right. Manifest constitutional error requires a showing of actual and identifiable prejudice to the defendant's constitutional rights at trial. Because Montgomery has not shown how the alleged error actually affected his constitutional rights, he may not raise it for the first time on appeal.
State v. King, 167 Wn.2d 324, 329, 219 P.3d 642 (2009).
CONCLUSION
Because the State presented sufficient evidence that Montgomery committed third degree child molestation and because Montgomery fails to show ineffective assistance of counsel, we affirm.
WE CONCUR: