Opinion
No. 57681-0-I.
April 30, 2007.
Appeal from a judgment of the Superior Court for Snohomish County, No. 05-1-00646-8, Ellen J. Fair, J., entered January 26, 2006.
Affirmed by unpublished per curiam opinion.
A party may not challenge a jury instruction on appeal, which it proposed, absent an ineffective assistance of counsel claim. Because Nguyen does not assert ineffective assistance of counsel, he is barred from complaining that the jury instructions he proposed and the court gave commented on the evidence. The trial court was within its discretion to conclude that A.L.'s testimony at the pre-trial hearing did not qualify as a prior inconsistent statement from her testimony at trial. Finally, the trial court corrected the scrivener's error in the judgment and sentence. We affirm.
State v. Elmore, 139 Wn.2d 250, 280, 985 P.2d 289 (1999).
Mike Nguyen was charged with five counts of child molestation in the first degree against three children, A.L., K.H., and V.D., and two counts of rape of a child in the first degree against V.D.
Nguyen proposed the jury instructions at issue on appeal and the court instructed the jury based on those exact instructions. A jury convicted Nguyen of three counts of child molestation in the first degree and two counts of rape of a child in the first degree.
Nguyen appeals.
INVITED ERROR
Nguyen argues that the court unconstitutionally commented on the evidence in the to-convict instructions by referencing each child's birthdates, relieving the State of its burden to prove every element of the offense. Because Nguyen invited the error, we do not reach this issue.
The doctrine of invited error prohibits a party from challenging a jury instruction on appeal, which it proposed, even if it meets the standard under RAP 2.5. But we will review any invited instructional error in connection with an ineffective assistance of counsel argument.
State v. Gentry, 125 Wn.2d 570, 646, 888 P.2d 1105 (1995); State v. Henderson, 114 Wn.2d 867, 869-870, 792 P.2d 514 (1990).
Elmore, 139 Wn.2d at 280 (quoting Gentry, 125 Wn.2d at 646).
Here, the trial court instructed the jury with the exact instructions Nguyen proposed. Nguyen now challenges the to-convict instructions on appeal, but does not raise an ineffective assistance of counsel claim. Thus, he is barred from doing so by the invited error doctrine.
PRIOR INCONSISTENT STATEMENT
Next, Nguyen argues that he was denied his constitutional right to present a defense because the trial court ruled that A.L.'s prior testimony was not a prior inconsistent statement, and refused to allow him to impeach her with extrinsic evidence. We disagree.
A witness's prior statement is admissible for impeachment purposes if it is inconsistent with the witness's trial testimony. A witness's testimony need not directly contradict the witness's prior statement. However, inconsistency is determined from the "whole impression or effect" of the two statements. The trial court has broad discretion in determining whether a witness's prior statements are inconsistent. A trial court abuses its discretion only if its decision is manifestly unreasonable, exercised on untenable grounds, or is arbitrary.
ER 801(d)(1)(i); State v. Newbern, 95 Wn. App. 277, 292, 975 P.2d 1041 (1999).
Newbern, 95 Wn. App. at 294.
Id. (emphasis omitted).
State v. Young, 89 Wn.2d 613, 630-31, 574 P.2d 1171 (1978).
Harris v. Drake, 152 Wn.2d 480, 493, 99 P.3d 872, 878 (2004).
At the beginning of trial, A.L. testified at a child hearsay hearing. She testified that Nguyen took her to his room and then touched her inappropriately. There was no mention of a closet. On cross-examination, defense counsel asked A.L. about a closet:
Q. Now, you say that he took you into a closet. What room was this that he took you into a closet?
A. The last room.
Report of Proceedings (December 5, 2005) at 74-75.
Prior to this question, A.L. never testified about a closet or that the abuse occurred in a closet. After asking A.L. about various rooms in Nguyen's house, defense counsel asked her which bedroom she went into and she responded that she did not know. Defense counsel again asked her about the closet:
Q. Tell me about the closet. What was in the closet?
A. Some clothes.
Q. Some clothes. Was it boys' clothes or girls' clothes?
A. Girls.
Q. Which girl was it?
A. I don't remember.
Q. Okay. Did he close the door on the closet when he sat on top of you?
A. Yes.
. . .
Q. How about the door to the bedroom? Was it open or closed? Do you remember?
A. The what?
Q. The door to the bedroom?
A. I think, yeah.
Q. What was it?
A. Hmm?
Q. Was it open or closed?
A. Closed.
Report of Proceedings (December 5, 2005) at 77.
At trial, A.L. testified that the room where Nguyen touched her was the last room upstairs. She further testified that the door to the room was closed when the abuse occurred and she was lying on the floor. There was no testimony about a closet on direct-examination. On cross-examination, defense counsel asked A.L. whether she said that the abuse occurred in a closet. A.L. responded that she tried to say that the room had a closet in it. Defense counsel continued to ask her about the closet:
Q. You didn't say it occurred in the closet?
A. No.
Q. You didn't say that the closet door was closed when this happened?
A. Closet door was closed. The other door was closed.
Q. And you were in the closet; isn't that what you said?
A. No, I meant to say that the closet was in the room.
Report of Proceedings (December 7, 2005) at 23.
When questioned about the closet again, A.L. again testified that she meant to say that there was a closet in the room. Defense counsel also questioned her about her interview with the child interview specialist, Nova Robinson. Again, A.L. responded that she meant to say that there was a closet in the room. The State later admitted a recording of A.L's interview with Ms. Robinson into evidence and played it for the jury. During this interview, A.L. never said that the abuse occurred in a closet.
Defense counsel sought to admit A.L.'s prior testimony at the child hearsay hearing as a prior inconsistent statement. The court disagreed that the statements were inconsistent, and refused to allow the impeachment.
The court properly exercised its discretion in concluding that the two statements were not inconsistent. A.L. never testified that the abuse occurred in a closet. Rather, it was defense counsel that stated that A.L. said the abuse occurred in a closet. Reviewing the context of the two statements, there is no inconsistency between them. Thus, A.L.'s testimony at the pretrial hearing does not qualify as a prior inconsistent statement. The court properly declined to admit that evidence.
SCRIVENER'S ERROR
Finally, Nguyen argues that the judgment and sentence should be corrected for a scrivener's error. The trial court entered an agreed order modifying the judgment and sentence, correcting the error. Thus, the issue is moot.
We affirm the judgment and sentence.
For the Court: