Opinion
No. 32752-0-II.
June 20, 2006.
Appeal from a judgment of the Superior Court for Lewis County, No. 04-1-00331-2, David R. Draper, J., entered January 6, 2005.
Counsel for Appellant(s), Jodi R. Backlund, Backlund Mistry, 203 4th Ave E Ste 404, Olympia, WA 98501-1189.
Manek R. Mistry, Backlund Mistry, 203 4th Ave E Ste 404, Olympia, WA 98501-1189.
Counsel for Respondent(s), Jeremy Richard Randolph, Attorney at Law, Ms: pro01, 360 NW North St, Chehalis, WA 98532-1925.
J. Andrew Toynbee, Lewis County Prosecuting Atty Ofc, M/S Pr001, 360 NW North St, Chehalis, WA 98532-1925.
Affirmed by unpublished opinion per Quinn-Brintnall, C.J., concurred in by Houghton and Armstrong, JJ.
A jury convicted Michael John Mullins of one count of first degree child rape and five counts of first degree child molestation in violation of RCW 9A.44.073 and 9A.44.083. On appeal, Mullins argues that the trial court: (1) violated his right to effectively cross-examine the complaining witnesses about other sexual misconduct accusations that he alleges the girls made; (2) denied him the right to a jury trial by failing to instruct on jury nullification; and (3) miscalculated his offender score. We affirm.
In his opening brief, Mullins argued that the trial court impermissibly commented on the evidence when it added to the statutory definition of first degree child rape that the phrase 'by an object' may include a finger. Supp. Clerk's Papers (CP) at 31. But Mullins withdrew this issue at oral argument citing State v. Tili, 139 Wn.2d 107, 126, 985 P.2d 365 (1999) (informing the jury that an object may include a finger is a correct statement of the law and thus not an impermissible comment on the evidence).
FACTS
On July 15, 2004, the State charged Mullins with one count of first degree rape of a child and five counts first degree child molestation for acts occurring between September 1, 2001 and May 1, 2002. The charges involved his twin stepdaughters, C. and R., who were born April 30, 1991. The girls were 13 years old at the time of trial. The rape charge and four of the molestation charges involved C. (Counts I, II, IV, V, and VI) and one molestation charge involved R. (Count III).
C. testified that during the period in question she, R., and her mother lived with Mullins in Randle, Washington. C. said Mullins touched the girls' breasts and vaginal areas. She did not know exactly how many times the touching occurred, but she testified that Mullins touched her vaginal area more than three times and less than twenty.
On cross-examination, she gave some conflicting testimony about the number of occurrences but said she told the truth.
Specifically, C. testified that when she was 10 years old, she and Mullins went on a hunting trip. The two were walking together with Mullins's arm resting on her shoulder. Mullins then 'touched [her] breast. . . . [he] just like grabbed it for a couple of minutes, [squeezed it a little bit] and then he let go.' 1 Report of Proceedings (RP) at 66-67.
During another hunting trip, Mullins touched her breast saying his hands were cold and put his hand up her shirt, under her bra, and placed his hand on her breast. C.'s mother testified that C. told her about this incident.
C.'s mother also testified that C. told her about 'probably four or five' other incidents with Mullins. 2 RP at 181.
A short while later, when C. was 10 or 11 years old, Mullins molested her again. This time she was sleeping in her top bunk bed with her sister sleeping below; she awoke to Mullins standing beside the bed with his finger inside her vagina.
Mullins repeated digital penetration on at least two other occasions. On one occasion, C. and her sister were sharing a bed and Mullins reached over the sleeping sister to insert his finger into C.'s vagina. On another occasion, when she was 11 years old, Mullins again inserted his finger in C.'s vagina when she was sleeping.
On yet another occasion, C. recounted that Mullins woke her up, carried her into the living room, told her that her body is her own and that if anyone touches her, she should tell an adult. He then proceeded to touch her breasts.
R. testified that while living in Randle, Mullins touched her vagina while she was sleeping and that this occurred three times: two of which were in one night. R. also testified that she saw Mullins touch C. on two occasions: one time when he was reaching over her to touch her sister and the second time when both girls were on the hide-a-bed.
On cross-examination, she said she saw Mullins touch her sister once.
In February 2002, the twins and their mother moved out of the residence they shared with Mullins.
Mullins maintained his innocence throughout and sought to impeach C. and R.'s testimony with evidence that the girls had made false allegations of sexual abuse against two other people. But the trial court ruled that the defense had not made a prima facie showing that the prior allegations were false and granted the State's motion in limine prohibiting the defense from cross-examining the girls about the other allegations.
During closing arguments, the prosecutor explained to the jurors that they were being asked to consider six counts against Mullins and that five of those counts involved C. Specifically, the State explained that: (1) Count I was a rape charge, supported by C.'s testimony about the times Mullins entered her room and inserted his finger in her vagina; (2) Count II was a molestation charge supported by evidence of the first incident that C. testified to when she and Mullins were hunting; (3) Count IV, another molestation charge, was supported by evidence of the second hunting incident; (4) Count V, another molestation charge, corresponded with C.'s testimony about the incident with Mullins on the hide-a-bed; and (5) Count VI, another molestation charge, was supported by the several incidents testified as having occurred both in the bedroom and when Mullins brought C. into the living room and touched her breasts. Count III's molestation charge involved Mullins's molestation of R.
The court gave the following pertinent instructions:
A separate crime is charged in each count. You must decide each count separately. Your verdict on one count should not control your verdict on any other count.
Supp. CP at 28 (Instruction No. 3).
There are allegations that the defendant committed acts of Child Molestation in the First Degree on multiple occasions. To convict the defendant, one or more particular acts must be proved beyond a reasonable doubt and you must unanimously agree as to which act or acts have been proved beyond a reasonable doubt. You need not unanimously agree that all the acts have been proved beyond a reasonable doubt.
Supp. CP at 29 (Instruction No. 4).
A person commits the crime of Rape of a Child in the First Degree when that person has sexual intercourse with another person who is less than twelve years old and who is not married to the perpetrator and the perpetrator is at least twenty-four months older than the victim.
Supp. CP at 30 (Instruction No. 5).
Sexual intercourse means any penetration of the vagina or anus, however slight, by an object, when committed on one person by another, whether such persons are of the same or opposite sex. The phrase 'by an object' may include a finger.
Supp. CP at 31 (Instruction No. 6).
In addition, the court gave a separate standard 'to-convict' instruction for each count charged.
The jury found Mullins guilty on all counts. On January 5, 2005, the trial court calculated Mullins's offender score at 15 and sentenced him to concurrent standard range sentences of 297 months on Count I and 174 months on Counts II through VI.
Mullins's appeal presents the following issues for our review: First, did the trial court err by prohibiting Mullins from cross-examining the complaining witnesses about prior allegedly false accusations of sexual misconduct by others? Second, did the trial court's failure to inform the jury of its nullification power deprive Mullins of his right to a jury trial? And third, did the trial court properly calculate Mullins's offender score at 15?
Mullins raises several additional issues in his statement of additional grounds. RAP 10.10.
ANALYSIS
Confrontation Clause/Prohibiting Cross-Examination About Prior
Allegations
At trial, Mullins sought to cross-examine his stepdaughters about false allegations of sexual abuse they had allegedly made about others. Mullins's counsel proposed to ask C. and R. the following questions: 'Is it true that you had falsely accused your school personnel of sexually assaulting you, and also isn't it true that you falsely accused [Z.P.] of sexually assaulting you on the school bus?' 1 RP at 12. The State moved in limine to exclude the questions until the falsity of the girls' prior allegations had been proved.
The record states that Z.P. is a 'local boy.' 1 RP at 19.
The State maintained that the girls never made any accusations about school personnel. The State asserted that during Mullins's investigation, the girls' mother said that the girls had made prior allegations. But the school knew of no such allegation. The State argued that the mother likely told police this false allegation story to protect Mullins and that she had later admitted that the girls had never said these things.
Mullins's defense counsel argued that the falsity of the sexual misconduct allegations could be shown through the girls' own testimony, reasoning that while on the stand, the girls would deny making any past allegations and that this would prove the falsity the court needed. Specifically regarding Z.P. and the school bus incident, defense claimed the allegations are proven to be false because the girls denied even knowing Z.P. But one of the girls allegedly had love notes referencing the boy's first name.
During arguments regarding the school personnel claims, the trial court asked defense counsel:
[O]n the school allegations, did you say that the girls . . . made allegations to the mother and then later told the mother it's not true?
1 RP at 25. The defense replied:
I don't know if they ever told her it's not true or true, but when I talked to them about if they'd ever been abused by anybody at the school, they said no, so, . . . the proof that the allegation is false comes from the girls themselves.
1 RP at 25.
The court granted the State's motion in limine, precluding Mullins from questioning the twins about these alleged prior accusations. The record suggests that the court was prepared to find that allegations were made but that the defense failed to make a prima facie showing that the allegations were false.
Just before its ruling, the court said:
The trouble I have . . . is I have seen just too many cases where children are the victims or alleged victims and they make allegations and recantations and allegations and recantations. . . . . . . . I think I have to be convinced that it didn't happen. I am not — it's too easy to say well, they said it was true and then later they said it wasn't true. That doesn't necessarily convince me that it wasn't true.
1 RP at 27.
Mullins asserts that this ruling violated his constitutional right to confront witnesses by depriving him of an opportunity to undermine the prosecution's case. Under Mullins's analysis, the twins' admission that no one at the school had sexually assaulted them was equivalent to admitting that they made such allegation and that the allegation was false. But our reading of the record suggests that the twins denied making any allegation of sexual misconduct against school personnel, that the school had never received such allegations, and that the mother admitted manufacturing the story of prior false allegations to discredit the twins' report of her husband's conduct. Thus, the trial court's ruling refusing to allow Mullins's proffered questions was proper. Moreover, in context, these questions amounted to 'have you stopped making false allegations of sexual abuse yet' and were misleading as to the non-existent school personnel accusations.
Both the federal and state constitutions guarantee defendants the right to confront and cross-examine adverse witnesses. U.S. Const. amend. VI; Const. art. I, sec. 22; State v. Darden, 145 Wn.2d 612, 620, 41 P.3d 1189 (2002). But the confrontation right and associated cross-examination are limited by general considerations of relevance. Darden, 145 Wn.2d at 621. There is no constitutional right to admit irrelevant evidence. Darden, 145 Wn. App. at 624. Generally speaking, evidence that a rape victim has accused (or been previously raped by) others is not relevant, unless the defendant can demonstrate that the previous accusation was false. State v. Harris, 97 Wn. App. 865, 872, 989 P.2d 553 (1999), review denied, 140 Wn.2d 1017 (2000) (citing State v. Demos. 94 Wn.2d 733, 736-37, 619 P.2d 968 (1980)). We review the trial court's limitation on the scope of cross-examination for manifest abuse of discretion. State v. Campbell, 103 Wn.2d 1, 20, 691 P.2d 929 (1984); see also Darden, 145 Wn.2d at 619.
Applying the abuse of discretion standard here, we hold that the trial court did not abuse its discretion by prohibiting the defense from asking the twins whether they had made false allegations of sexual misconduct against school personnel where there was no evidence that such allegations, false or otherwise, were ever made by the girls.
We turn now to the trial court's ruling prohibiting Mullins from questioning the girls about accusations against Z.P.
The court ruled that Mullins had not made an adequate showing that the Z.P. allegations were false. We agree.
Citing White v. Coplan, 399 F.3d 18 (1st Cir., 2005), Mullins argues that a criminal defendant is permitted to cross-examine an alleged sex crime victim about prior false complaints. But the Coplan court based its decision to allow the defense to cross-examine a victim-witness about prior past allegations only after the defense offered proof to a reasonable probability that the victim's prior accusations were false. 399 F.3d at 24-27.
Here, the record contains the following offer of proof regarding the school bus allegations:
There's also incidents regarding a local boy about their age molesting them on the school bus, groping, that type of thing. My client confronted the father, the father confronted the son, no, it never happened, and it was discussed with the girls, and they were confronted about the little love notes one of them was making to [Z.P.], I love [Z.P.] and all of this stuff, and that kind of was the end of it.
1 RP at 19.
Based on this alone, it cannot be said that Mullins offered proof to a reasonable probability that the victim made prior accusations that were false. And without at least a prima facie showing of falsity, Mullins's reliance on Coplan is unpersuasive. The trial court did not abuse its discretion in excluding questions suggesting prior false allegations on this self-serving and inadequate basis. Moreover, assuming without holding that the bus incident questions were improperly excluded, their relevance was too tenuous to reasonably have affected the trial outcome and error, if any, was harmless.
Jury Nullification
Mullins challenges the court's use of pattern 'to-convict' instructions as well as portions of the introductory instruction, arguing that the instructions affirmatively misled the jury into believing that it lacked the power to nullify an otherwise legally proper conviction. He reasons the use of the word 'duty' precludes a jury from acquitting him despite finding that he committed all the elements of the offense beyond a reasonable doubt. Mullins asserts that a proper instruction would include language to the effect that if the jury did not find all the elements beyond a reasonable doubt, then it must return a verdict of not guilty. He recognizes that authority upholds similar jury instructions. State v. Meggyesy, 90 Wn. App. 693, 698, 700, 958 P.2d 319, review denied, 136 Wn.2d 1028 (1998), overruled on other grounds by State v. Recuenco, 154 Wn.2d 156, 110 P.3d 188, cert. granted, 126 S. Ct. 478 (2005); State v. Bonisisio, 92 Wn. App. 783, 793-94, 964 P.2d 1222 (1998), review denied, 137 Wn.2d 1024 (1999). But he argues that Meggyesy and Bonisisio are distinguishable because in those cases each defendant asked the court to instruct the jury that it 'may' convict. Whereas here, the 'duty' language of the jury instruction misleads the jury about its power to acquit notwithstanding finding that the defendant committed all the elements charged.
He claims the following portion of Instruction No. 1 is problematic: 'It is also your duty to accept the law from the court, regardless of what you personally believe the law is or ought to be. You are to apply the law to the facts and in this way decide the case.' Supp. CP at 24.
Assuming without deciding that this issue is preserved, we have rejected the argument that the defendant in a criminal case has the right to have the jury instructed that it may refuse to follow the law and nullify an otherwise proper verdict by acquitting a defendant of a criminal charge despite finding that he committed all the elements of the offense. State v. Brown, 130 Wn. App. 767, 770-71, 124 P.3d 663 (2005). We agree with the reasons set forth in Brown, and we see no need to revisit the argument here.
Offender Score/Same Criminal Conduct
Mullins next asserts that the trial court erred in calculating his offender score at 15 because his four first degree molestation convictions involving C. are the 'same criminal conduct.' He asserts his offender score should properly be 3 instead of 15.
The State contends that Mullins waived this objection because he failed to raise this issue below. Assuming, without deciding, that Mullins may challenge the accuracy of the sentencing court's offender calculation here, we find no error.
Under RCW 9.94A.589(1)(a), current convictions count the same as prior convictions for purposes of calculating the offender score unless the court explicitly finds that the convictions are same criminal conduct. When a court does not affirmatively find that the current convictions are the same criminal conduct, the court has implicitly decided that the convictions do not constitute the 'same criminal conduct.' State v. Channon, 105 Wn. App. 869, 877, 20 P.3d 476, review denied, 144 Wn.2d 1017 (2001); State v. Anderson, 92 Wn. App. 54, 62, 960 P.2d 975 (1998), review denied, 137 Wn.2d 1016 (1999). We review the trial court's determination of whether two or more crimes are the same criminal conduct for manifest abuse of discretion and misapplication of the law. State v. Haddock, 141 Wn.2d 103, 110, 3 P.3d 733 (2000); State v. Fisher, 131 Wn. App. 125, 134, 126 P.3d 62 (2006).
RCW 9.94A.589(1)(a) states:
[W]henever a person is to be sentenced for two or more current offenses, the sentence range for each current offense shall be determined by using all other current and prior convictions as if they were prior convictions for the purpose of the offender score: [But] if the court enters a finding that some or all of the current offenses encompass the same criminal conduct then those current offenses shall be counted as one crime.
Mullins's first degree molestation convictions are not the same criminal conduct. 'Same criminal conduct' as used in RCW 9.94A.589(1)(a) means 'two or more crimes that require the same criminal intent, are committed at the same time and place, and involve the same victim.' We narrowly construe determinations of same criminal conduct. State v. Porter, 133 Wn.2d 177, 181, 942 P.2d 974 (1997). The absence of any one of the three statutory factors precludes a finding of same criminal conduct. State v. Grantham, 84 Wn. App. 854, 858, 932 P.2d 657 (1997).
Here, the molestation charges in Counts I, II, IV, V, and VI involved the same victim, but they did not occur at the same time. C. testified that Mullins molested her (1) during a hunting trip; (2) on another separate hunting trip; (3) while at home on the hide-a-bed; (4) two different occasions in her bedroom, one of which R. observed; and (5) when he carried her out into the living room.
Mullins argues that multiple sex offenses against the same victim committed over a 'short' period of time are the same criminal conduct. State v. Palmer, 95 Wn. App. 187, 975 P.2d 1038 (1999); State v. Dolen, 83 Wn. App. 361, 921 P.2d 590 (1996), review denied, 131 Wn.2d 1006 (1997); State v. Walden, 69 Wn. App. 183, 847 P.2d 956 (1993). The cases Mullins cites are distinguishable on their facts because in Palmer, Dolen, and Walden, the defendant during one period of time performed multiple sex acts on the same victim. Mullins's case involves single sex acts on multiple occasions. 95 Wn. App. at 190; 83 Wn. App. at 363; 69 Wn. App. at 184. Moreover, in Grantham, the court held that multiple rapes over the course of an evening do not satisfy the same time requirement because each act was a complete act with new criminal intent formed between each act. 84 Wn. App at 860. Likewise, multiple acts over the course of several years do not satisfy the same time requirement.
Moreover, Dolen is not instructive here. In Dolen, the defendant was charged with one count of second degree child rape and one count of second degree child molestation for acts alleged to have occurred between June 1, 1992 and June 1, 1993. 83 Wn. App. at 363.
[T]he child testified to six different incidents in which Dolen engaged in some or all of the following conduct: placing her hand on his penis; inserting his penis in her mouth; rubbing her breasts and vagina; and inserting his finger into her vagina. Each incident was continuous and of relatively short duration. Typical were the events of the following incident: one evening . . . Dolen rubbed the child's breasts and vagina, and inserted his finger in her vagina. Dolen then placed her hands on his penis and rubbed back and forth.
Dolen, 83 Wn. App. at 363. The jury found Dolen guilty of child rape and molestation. Dolen, 83 Wn. App. at 364. For sentencing purposes, the court found that the two convictions were not the same criminal conduct and counted each as another current conviction for determining Dolen's offender score. Dolen, 83 Wn. App. at 364. We observed that the record did not indicate whether the jury convicted Dolen of committing the two offenses in a single incident or in separate incidents. Dolen, 83 Wn. App. at 363. Explaining that if the jury found Dolen guilty of both charges based on one underlying incident like the one described above, the convictions should be treated as the same offense; but if they found him guilty of both charges based on two separate incidents, they would be properly characterized as separate offenses. Dolen, 83 Wn. App. at 365.
We vacated Dolen's sentence and remanded for resentencing because the sentencing court had erred in treating the two convictions as separate offenses when the State had not proved that Dolen committed the crimes in separate incidents. Dolen, 83 Wn. App. at 365. We reasoned that '[i]f the time an offense was committed affects the seriousness of the sentence, the State must prove the relevant time.' Dolen, 83 Wn. App. at 365.
Here, Mullins molested C. on different days and there is a clear separation between each incident. The acts were not part of the same criminal conduct as that term is defined under RCW 9.94A.589(1)(a) and the trial court could not have properly found that they were. Thus, the court's failure to conduct an obviously inapplicable same criminal conduct analysis on the record was not reversible error.
In addition, the State clearly outlined to the jury the evidence offered on each charge. And the court instructed the jury that it must examine each count separately and unanimously agree which acts have been proven beyond a reasonable doubt to support which charge.
Instruction No. 3 stated:
A separate crime is charged in each count. You must decide each count separately. Your verdict on one count should not control your verdict on any other count.
Supp. CP at 28. Instruction No. 4 stated:
There are allegations that the defendant committed acts of Child Molestation in the First Degree on multiple occasions. To convict the defendant, one or more particular acts must be proved beyond a reasonable doubt and you must unanimously agree as to which act or acts have been proved beyond a reasonable doubt. You need not unanimously agree that all the acts have been proved beyond a reasonable doubt. Supp. CP at 29.
The jury sent a question to the judge: 'On the Counts 2-6 are there specific incidents assigned to each count or do we just need to agree on a specific incident as we vote on each charge?' Supp. CP at 43. The judge responded, 'I cannot instruct you further.' Supp. CP at 43.
The jury could only have found Mullins guilty on all counts if it unanimously found that the acts charged were separate offenses. The trial court did not err by sentencing each count as a separate offense. Pro Se Issues
Mullins raises a number of issues in his Statement of Additional Grounds (SAG).
RAP 10.10.
Mullins contests his conviction on the basis that he was not informed of his Miranda rights. Police interviewed Mullins twice. Although it appears that Mullins was not informed of his Miranda rights on these occasions, his counsel stipulated that his conversations with the police were voluntary, non-custodial encounters that did not require Miranda warnings. Thus, this argument is without merit.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
The record also shows that the interview was taped and played at trial; also the following question from defense counsel shows that there was never an issue with Miranda: '[i]sn't it true that [Mullins] came in voluntarily and talked to you about this case on both occasions?' 3 RP at 290.
Next Mullins argues that the prosecution led witnesses. But he does not indicate which witnesses were involved or how the alleged leading questions prejudiced his case and our review of the record does not suggest that it did. RAP 10.10(c) does not require a defendant to cite the record, but we must be informed of the nature and occurrence of the alleged error in order to review it. RAP 10.10(c). Mullins has failed to do this here, thus we cannot address this issue further.
Mullins asserts that the court permitted persons observing the proceedings to talk with witnesses in the waiting room, relaying what had been said so far in the case; and that the court allowed witnesses to talk to each other. This matter appears to be based on information outside the record and thus we do not address it. State v. McFarland, 127 Wn.2d 322, 335, 338 n. 5, 899 P.2d 1251 (1995) (on direct appeal, review is limited to the appellate record; a personal restraint petition is the appropriate means of having the appellate court review matters outside the record).
Mullins asserts that witnesses admitted lying to the police in their statements and that three of the witnesses changed their statements. Questions of credibility are for the trier of fact who had the opportunity to observe the demeanor of the witnesses while testifying. We do not review credibility determinations on appeal. State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004).
Mullins asserts that the police lied about him being uncooperative. But the record on appeal does not indicate that police considered Mullins uncooperative. And to the extent Mullins's claimed error is based on evidence outside the record, we do not consider it on direct appeal. McFarland, 127 Wn.2d at 335.
Lastly, Mullins baldly asserts that he received ineffective assistance of counsel indicating that he did not believe his counsel did his job and he did not know how to fire him. RAP 10.10(c) requires Mullins to clearly identify the nature and occurrence of any alleged error. He has failed to do this. Mullins does not suggest how counsel's performance fell below the standard of a reasonable attorney or how it prejudiced his ability to present a defense and obtain a fair trial. Moreover, we find no support for Mullins's ineffective assistance of counsel claim in the record. McFarland, 127 Wn.2d at 334-35.
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.
HOUGHTON, J. and ARMSTRONG, J., concur.
(Emphasis added.)