Opinion
No. 57845-6-I.
October 1, 2007.
Appeal from a judgment of the Superior Court for Snohomish County, No. 05-1-00759-6, Ronald L. Castleberry, J., entered February 22, 2006.
Affirmed by unpublished per curiam opinion.
In this prosecution for first degree rape of a child, Carlton Paul contends the admission of child hearsay violated his right to confrontation. He also argues that several conditions of his sentence are unconstitutionally vague and/or an unlawful delegation of authority. Because these claims either cannot be raised for the first time on appeal or are not ripe for review, we affirm.
The facts are not disputed and will be repeated here only when necessary to explain our decision.
DECISION
For the first time on appeal, Paul contends the admission of the victim's hearsay statements violated his constitutional right to confrontation. Citing State v. Rohrich, 132 Wn.2d 472, 939 P.2d 697 (1997) and State v. Clark, 139 Wn.2d 152, 985 P.2d 377 (1999), he argues that an opportunity to effectively cross-examine the declarant is a constitutional prerequisite to the admission of child hearsay, and that effective cross-examination can occur only if the declarant addresses the hearsay statements on direct examination and testifies that the statements are true. Because the declarant in this case, R.F., did not address the truthfulness of her hearsay statements on direct, Paul contends he was denied his constitutional right to effective cross-examination. This contention cannot be raised for the first time on appeal.
Under RAP 2.5(a), only "manifest" constitutional errors may be raised for the first time on appeal. A "manifest" error is one that is "unmistakable, evident or indisputable." State v. Lynn, 67 Wn. App. 339, 345, 835 P.2d 251 (1992). The appellant must also make an affirmative showing of actual prejudice resulting from the alleged error. State v. McFarland, 127 Wn.2d 322, 334, 899 P.2d 1251 (1995). Neither of these characteristics is present here.
As Paul candidly admits, none of the cases he cites require child declarants to testify to the truth or accuracy of their out-of-court statements. Rather, our courts have only required that child hearsay statements be brought out by the State during the child's direct examination. Rohrich, 132 Wn.2d at 477-82; Clark, 139 Wn.2d at 161. This requirement ensures that the defendant will have an opportunity for effective cross-examination regarding the hearsay and will not have to elicit it from the declarant during that examination. Id. at 479. But our State Supreme Court has repeatedly stated that this is all that is required. In State v. Clark, 139 Wn.2d 152, 159, 985 P.2d 377 (1999), the court stated that "the admission of hearsay statements will not violate the confrontation clause if the hearsay declarant is a witness at trial, is asked about the event and the hearsay statement, and the defendant is provided an opportunity for full cross-examination." See also In re Grasso, 151 Wn.2d 1, 17, 84 P.3d 859 (2004); State v. Price, 158 Wn.2d 630, 648-50, 146 P.3d 1183 (2006). The court recently reaffirmed this rule, stating that a confrontation violation will not be found where "direct examination made the jury sufficiently aware of [the declarant's] hearsay statements . . . such that nothing prevented defense counsel from cross-examining [the declarant] about the truth of [the] statements or [his or] her lack of memory of the details." In re Grasso, 151 Wn.2d at 18. We see nothing in the authorities cited to us indicating that the alleged error here is "unmistakable, evident or indisputable." State v. Lynn, 67 Wn. App. at 345.
Paul also fails to make any showing of actual prejudice. His trial counsel cross-examined R.F. and chose not to question her at all about her hearsay statements. There is no showing that counsel was somehow restricted in this regard. Nor is any such restriction evident in the record. It is also difficult to demonstrate any likelihood of prejudice when, as here, a child victim testifies to hearsay statements that essentially mirror the child's sworn testimony in court. In such cases, it is highly unlikely that the child will swear to the truth of her incourt testimony but disavow the same allegations in her out-of-court statements. There is no basis to conclude Paul was prejudiced by the alleged error.
Accordingly, the alleged confrontation violation is not manifest constitutional error and cannot be raised for the first time on appeal. Having so concluded, we reject Paul's related assertions that the confrontation violation rendered most of R.F.'s hearsay statements inadmissible and the evidence supporting his convictions insufficient.
Paul also contends several conditions of his community custody are unconstitutionally vague and/or an unlawful delegation of authority even though he has not yet been accused of violating those conditions. The challenged conditions prohibit Paul from possessing or accessing pornographic materials as directed by his Community Corrections Officer, possessing or controlling sexual stimulus materials as defined by the CCO, or frequenting establishments whose primary business pertains to sexually explicit or erotic materials. This challenge is not ripe for review.
In State v. Bahl, 137 Wn. App. 709, 159 P.3d 416 (2007) we declined to consider a challenge to essentially identical community custody conditions. As in this case, the appellant in Bahl had not yet violated the conditions so there was no actual conduct or factual record for this court to review. In declining to reach Bahl's vagueness challenge and rejecting the State's concession of error, we indicated that this court had "not yet agreed it is appropriate to evaluate conditions of sentence for vagueness in a preenforcement challenge." We further stated we were "not inclined to do so in the absence of briefing on the pros and cons of that approach." Bahl, 137 Wn. App. at 718.
For the same reasons, we decline to address Paul's preenforcement vagueness challenges in this case. We also decline to review his improper delegation claim because it may not be raised for the first time on appeal. State v. Smith, 130 Wn. App. 721, 729-30, 123 P.3d 896 (2005), rev. denied, 157 Wn.2d 1026 (2006); Bahl, 137 Wn. App. at 719. The claims raised in Paul's pro se statement of additional grounds for review are inadequately argued and/or too conclusory to merit discussion. State v. Elliott, 114 Wn.2d 6, 15, 785 P.2d 440 (1990) (appellate court need not consider claims that are insufficiently argued); State v. Marintorres, 93 Wn. App. 442, 452, 969 P.2d 501 (1999) (appellate court need not consider pro se arguments that are conclusory); State v. Thomas, 150 Wn.2d 821, 868-69, 83 P.3d 970 (2004) (citing State v. Johnson, 119 Wn.2d 167, 171, 829 P.2d 1082 (1992) (court will not review issues that have only received passing treatment)).
Affirmed.