Opinion
No. 21863-5-III
Filed: March 15, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Klickitat County. Docket No. 01-1-00139-8. Judgment or order under review. Date filed: 03/03/2003. Judge signing: Hon. E. Thompson Reynolds.
Counsel for Appellant(s), Dennis W. Morgan, Attorney at Law, 120 W Main Ave, Ritzville, WA 99169-1408.
Counsel for Respondent(s), Shawn N. Anderson, Klickitat County Pros Office, M/S-Ch-18, 205 S Columbus Ave, Goldendale, WA 98620-9289.
David Brian Trefry, Attorney at Law, 211 W Augusta Ste a Spokane, WA 99205.
Curt Alan Pederson was convicted of four counts of first degree child rape and two counts of first degree child molestation. Contending the evidence was insufficient to support one conviction for first degree child molestation and the trial court erred when it (1) declined to sever the counts, (2) determined a child was competent to testify, (3) admitted child hearsay testimony under RCW 9A.44.120, (4) allowed a third amended information, (5) gave certain jury instructions, and (6) denied his motion for a new trial and to arrest judgment, he appeals. In his statement of additional grounds for review, Mr. Pederson raises several other issues. We affirm.
In December 2001, A.H. and her brothers T.H. and D.H. told their mother, Cathy H., that they had been sexually abused by Curt Pederson, her boyfriend. When Ms. H.'s cousin, Kasey C., went to Ms. H.'s home later that day, she noticed A.H., T.H, and D.H were upset and crying. Kasey C. was told that she needed to talk to her daughters, N.A. and A.C.
At home, Kasey C. asked her daughters if they had been touched by Mr. Pederson. N.A. told her Mr. Pederson had touched her breasts at Ms. H.'s home. A.C. said Mr. Pederson 'had touched her private area' and 'touched his private to her private.' Report of Proceedings (RP) at 573. Kasey C. then told Ms. H.'s coworker, Tanya C., about her daughters' disclosure. Tanya C.'s children sometimes played with Ms. H.'s children. Tanya C. asked her daughter, C.C., if Mr. Pederson had ever touched her. C.C. told her mother he had touched her 'down the front of her pants.' RP at 632.
On December 14, 2001, Mr. Pederson was charged with one count of first degree child rape, two counts of second degree child rape and one count of first degree child molestation. On December 6, 2002, the information was amended to charge Mr. Pederson with six counts of first degree child rape, one count of attempted first degree child rape, two counts of second degree child rape, one count of third degree child rape, five counts of first degree child molestation and one count of second degree child molestation. At trial, the information was amended to conform to the evidence. This amended information changed the dates originally stated in the first degree child molestation charge involving N.A. as well as the dates stated for all the charges involving A.C.
Prior to trial, the court held a combined child competency and child hearsay hearing. Detective Michael Kallio testified that on December 12, 2001, he interviewed A.C. and N.A. after their mother had called the sheriff's office advising that her daughters may have been sexually abused by Mr. Pederson. A.C. told the detective Mr. Pederson had taken off her pants and touched her between the legs nine times. RP at 149. A.C. said Mr. Pederson had touched her in his room. Each time Mr. Pederson took her into his room, he touched her and one time it hurt her. A.C. explained two different incidents when Mr. Pederson had taken her into his room, took her pants off, and touched her. N.A. told the detective she was lying on the couch at Ms. H.'s house with her eyes closed when Mr. Pederson went inside her shirt and touched her chest.
Detective Kallio further testified that on January 2, 2002, he and Sergeant Eric Anderson interviewed C.C. Sergeant Anderson testified that C.C. said Mr. Pederson had touched her in the privates while she was at Ms. H.'s house. C.C. told him they would be watching a children's movie in Mr. Pederson and Ms. H.'s room and he 'would dig in her privates.' RP at 129. C.C. said this happened probably about 20 times and Mr. Pederson also touched 'inside her butt.' RP at 129-30.
Robin Light, a victim witness administrator and senior investigator for the Yakima County Prosecuting Attorney's Office, interviewed A.C. on January 8, 2002. A.C. stated spontaneously to her that Mr. Pederson had touched her. A.C. said Mr. Pederson was Ms. H.'s husband and, without Ms. Light asking her a question, A.C. stated she was in Mr. Pederson's bedroom. Ms. Light took out a piece of paper and asked A.C. to draw the bedroom. A.C. drew an elongated square and said she and Mr. Pederson were in the bedroom. They were on Mr. Pederson's bed. A.C. told Ms. Light she was going into the living room to sit with A.H., when Mr. Pederson grabbed her by the arm and said to get up. A.C. said Mr. Pederson took her into the bedroom and touched her 'in the private spot.' RP at 197. A.C. then pointed to her genital area. Ms. Light took out a blank body map drawing and asked A.C. to put an 'X' on the drawing where Mr. Pederson had touched her. A.C. put an 'X' on the center of the private spot and then drew a line from it, saying it was a 'pee-pee' or 'a private' where Mr. Pederson had touched her. RP at 198. A.C. told Ms. Light that he had touched her with both of his hands in a rubbing up and down motion.
Ms. Light then took out a second body map drawing and asked A.C. to put an 'X' on the part of the body where Mr. Pederson had touched her. A.C. put an 'X' on both of the hands and said Mr. Pederson touched her with his index finger. A.C. told Ms. Light that he had touched inside her private spot. A.C. demonstrated this touching with 'an in and out motion with her finger.' RP at 199. A.C. said Mr. Pederson had touched her more than one time and it happened on more than one day. He had made her touch his private and his butt. He also had put his private inside of her private. A.C. also told Ms. Light that Mr. Pederson was on top of her on the bed and he had made her suck 'his pee-pee.' RP at 210.
Kasey C. then testified that she asked A.C. and N.A. if Mr. Pederson had touched them. She said N.A. was hysterical and told her he had touched her breasts. Kasey C. then asked A.C. the same question. A.C. was crying. She told her mother Mr. Pederson had touched her private areas with his hands and had touched his private areas to her private areas at Ms. H.'s house.
Tanya C. testified she asked C.C. if Mr. Pederson had touched her. She said C.C. did not want to say anything right away, but then said 'yes.' RP at 268. C.C. told her Mr. Pederson had gone down the front of her pants and touched her privates.
At the conclusion of the hearing, the trial court found A.C., N.A., and C.C. competent to testify. The trial court also found the hearsay statements were admissible.
All six children testified at trial. A.H. testified Mr. Pederson first touched her when she was 11 years old. A.H. was sleeping when he got on top of her and put his penis in her vagina.
T.H. testified he was first touched by Mr. Pederson when he was between 11 and 12 years old. T.H. was in the living room when Mr. Pederson put him on the couch. He pulled down T.H.'s pants, put his hand on T.H's 'private,' and moved his hand 'up and down' for about one minute. RP at 522. T.H. said Mr. Pederson had most recently touched him in December 2001, while he was on the bed in Ms. H.'s bedroom. Mr. Pederson again put his hand on T.H.'s 'private' and moved his hand 'up and down.' RP at 525.
D.H. testified he was between the ages of seven and eleven when Mr. Pederson touched him. The first time Mr. Pederson touched him, he was in Ms. H.'s bedroom watching a movie. Mr. Pederson touched his 'privates.' RP at 554-55. D.H. did not keep count how many times Mr. Pederson had touched him, but the last incident occurred when he was in the fifth grade.
N.A. testified Mr. Pederson touched her while she was spending the night at Ms. H.'s house. She was lying on the couch when he put his hand under her shirt and touched her chest.
A.C. testified Mr. Pederson touched her 'in the private' at Ms. H's house before she was six years old. RP at 605. Mr. Pederson touched her more than 13 times. A.C. went into Ms. H.'s bedroom when Mr. Pederson asked her if she wanted to watch a movie. He touched A.C. while she was in the bedroom. A.C. also testified Mr. Pederson touched her 'with his private.' RP at 615.
C.C. testified she was at Ms. H.'s house playing with A.H. when Mr. Pederson touched her in the kitchen. C.C. said she was six years old when he put her on his lap and put his hands down the front of her pants. C.C. said Mr. Pederson was 'inside,' 'feeling around,' and that it felt 'uncomfortable.' RP at 647.
At the end of the State's case, Mr. Pederson moved to dismiss all charges. The court dismissed both second degree child rape charges involving A.H., one count of attempted first degree child rape involving A.C., one count of first degree child rape involving C.C., three counts of first degree child molestation involving D.H. and T.H., one count of second degree child molestation, and one count of third degree child rape. The jury found Mr. Pederson not guilty of one count of first degree child rape involving A.H., but guilty of the remaining counts — one count of first degree child molestation involving N.A., three counts of first degree rape involving A.C., one count of first degree molestation involving A.C., and one count of first degree rape involving C.C. He appeals.
Mr. Pederson contends the trial court erred in denying his motion to sever. He made a pretrial motion to sever the counts as to each victim and renewed the motion at the close of the State's case. The court denied the motions and all counts were tried together. Mr. Pederson asserts the trial court abused its discretion by denying his motions to sever.
We review the trial court's denial of a motion to sever multiple charges for manifest abuse of discretion. State v. Markle, 118 Wn.2d 424, 439, 823 P.2d 1101 (1992). Joinder of counts is authorized when the offenses '[a]re of the same or similar character' or '[a]re based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan.' CrR 4.3(a). The court should sever charges only if trying the offenses together will prejudice the defendant. State v. Russell, 125 Wn.2d 24, 62-63, 882 P.2d 747 (1994), cert. denied, 514 U.S. 1129 (1995). 'Prejudice may result from joinder . . . if use of a single trial invites the jury to cumulate evidence to find guilt or infer a criminal disposition.' Id. In determining whether the potential for prejudice requires severance, a trial court must consider these factors: '(1) the strength of the State's evidence on each count; (2) the clarity of defenses as to each count; (3) [the] court['s] instructions to the jury to consider each count separately; and (4) the admissibility of evidence of the other charges even if not joined for trial.' Id. at 63. Moreover the court must weigh any residual prejudice against the need for judicial economy.
Mr. Pederson concedes that clarity of defenses is not at issue. We need only address the three remaining Russell factors.
Mr. Pederson first asserts that because the court dismissed nine of the sixteen counts for insufficient evidence, the remaining counts were not strong enough to stand on their own merits in one trial. But the evidence supporting those counts was substantial. The State's evidence consisted of N.A.'s testimony that Mr. Pederson had touched her chest. A.C. testified Mr. Pederson had touched inside her privates and had touched her with his private. C.C. testified Mr. Pederson put his hands down the front of her pants and was 'inside' and 'feeling around.' RP at 647. A.C. and N.A.'s testimony was also supported by child hearsay evidence from their mother, Detective Kallio, and Ms. Light. The strength of the charges was similar and there was no risk of trying a weak count against a strong one.
Mr. Pederson next asserts the jury instructions were confusing and misleading. They were not. The court instructed the jury that '[a] separate crime is charged for each count. You must decide each count separately. Your verdict on one count should not control your verdict on any other count.' Clerk's Papers (CP) at 133. Juries are presumed to follow the court's instructions. State v. Johnson, 124 Wn.2d 57, 77, 873 P.2d 514 (1994). Moreover, courts have repeatedly approved and relied on essentially the same instruction in upholding decisions denying severance. State v. Bythrow, 114 Wn.2d 713, 723, 790 P.2d 154 (1990); State v. Cotten, 75 Wn. App. 669, 688, 879 P.2d 971 (1994), review denied, 126 Wn.2d 1004 (1995); State v. Herzog, 73 Wn. App. 34, 51, 867 P.2d 648, review denied, 124 Wn.2d 1002 (1994).
Mr. Pederson also argues that when multiple counts are joined in a single information and a defendant is subjected to one trial, an ER 404(b) balancing test must be applied if the defendant files a severance motion. He cites State v. Saltarelli, 98 Wn.2d 358, 364-65, 655 P.2d 697 (1982), to support this proposition.
In Saltarelli, the Supreme Court discussed whether evidence of a prior attempted rape of a woman 4-years before was properly admitted to show the defendant's motive or intent to rape. Id. at 359. But Saltarelli is on point because the issues there did not involve severance. Furthermore, Mr. Pederson's argument fails to acknowledge that '[s]everance questions involve considerations of the judicial economy gained when cases can be tried together; these considerations are not present in a pure ER 404(b) case.' Bythrow, 114 Wn.2d at 722 (quoting State v. Gatalski, 40 Wn. App. 601, 609 n. 6, 699 P.2d 804, review denied, 104 Wn.2d 1019 (1985)).
Here, although the evidence of the abuse of each child would likely not be admissible in separate trials on the other counts, the court expressly stated that '[f]or the sake of judicial economy, I think it's — it certainly would be beneficial to have these — all these counts tried together, since they are of similar character, and they all involve child abuse, sexual abuse.' RP at 324. Bythrow notes that an absence of cross-admissibility is not fatal to a severance analysis. 114 Wn.2d at 722. The court's consideration of judicial economy was not outweighed by any prejudice from the lack of any cross-admissibility.
In addition, important considerations in reviewing severance decisions are the degree to which the evidence on the joined counts can be compartmentalized by the jury to decide each count separately. 'When the issues are relatively simple and the trial lasts only a couple of days, the jury can be reasonably expected to compartmentalize the evidence.' Bythrow, 114 Wn.2d at 721. The court here stated, 'I don't believe that the jury should have much difficulty sorting things out, as far as to the individual alleged victims.' RP at 324. Moreover, the trial only lasted about three days; the issues and Mr. Pederson's defense of general denial on all the counts were straightforward; and the trial court instructed the jury to decide each count separately. Indeed, the fact that the jury found Mr. Pederson not guilty on one count supports the fact that the jury could and did compartmentalize the evidence. The trial court did not abuse its discretion by denying the severance motions.
Mr. Pederson next contends the trial court erred in concluding A.C. was competent to testify. 'The determination of whether a child witness is competent is within the sound discretion of the trial court and will not be disturbed on appeal absent a manifest abuse of discretion.' State v. Pham, 75 Wn. App. 626, 629, 879 P.2d 321 (1994), review denied, 126 Wn.2d 1002 (1995). Discretion is abused only when no reasonable person would accept the view adopted by the trial court. State v. Blight, 89 Wn.2d 38, 41, 569 P.2d 1129 (1977).
Witnesses who appear incapable of receiving just impressions of the facts or relating them truly are deemed not competent to testify. RCW 5.60.050(2). But the age of the child is not determinative of his or her capacity as a witness. Pham, 75 Wn. App. at 630. A child's intelligence, not age, is the proper criterion to be used in determining competency. Id. The test for determining the competence of a young child as a witness requires consideration of the following factors: (1) does the child have an understanding of the obligation to tell the truth when testifying; (2) did the child have the mental capacity at the time of the event about which he or she will testify to receive an accurate impression of it; (3) does the child have sufficient memory to retain an independent recollection of the occurrence; (4) can the child express his or her memory of the event; and (5) can the child understand simple questions about the event. State v. Swan, 114 Wn.2d 613, 645, 790 P.2d 610 (1990), cert. denied, 498 U.S. 1046 (1991). The determination of the child's ability to meet the requirements of this test rests primarily with the trial judge who sees the child, notices his or her manner, and considers his or her capacity and intelligence. State v. Allen, 70 Wn.2d 690, 692, 424 P.2d 1021 (1967). Trial courts are given great discretion in this area because these are matters which are not reflected in the written record for appellate review. Id.
Mr. Pederson claims A.C.'s memory was not sufficient to retain an independent recollection of any specific occurrence and her mental capacity was limited. But A.C. was able to accurately testify as to her age, her living arrangements, and the city where she lived. She was also able to identify colors and responded appropriately to a truth/lie example. A.C. gave accurate impressions and understood her obligation to tell the truth. She expressed her memory about the events to others and appeared to understand questions about the abuse. A.C. met all the Swan factors for competency. The court did not abuse its discretion by finding her competent to testify.
Mr. Pederson contends the trial court erred by admitting A.C.'s hearsay statements under RCW 9A.44.120. An out-of-court statement by a testifying victim of child abuse younger than age 10 is admissible in a criminal proceeding if '[t]he court finds . . . that the time, content, and circumstances of the statement provide sufficient indicia of reliability.' RCW 9A.44.120(1). The trial court's determination of reliability under RCW 9A.44.120 is subject to review for abuse of discretion. Pham, 75 Wn. App. at 631.
In determining reliability, the trial court should examine: "(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; and (5) the timing of the declaration and the relationship between the declarant and the witness." State v. Ryan, 103 Wn.2d 165, 175-76, 691 P.2d 197 (1984) (quoting State v. Parris, 98 Wn.2d 140, 146, 654 P.2d 77 (1982)). The court also should consider whether (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 (citing Dutton v. Evans, 400 U.S. 74, 88-89, 91 S. Ct. 210, 27 L. Ed. 2d 213 (1970)). The final four factors 'are not very helpful in assessing the reliability of child hearsay statements in most sexual abuse cases.' State v. Henderson, 48 Wn. App. 543, 551 n. 5, 740 P.2d 329, review denied, 109 Wn.2d 1008 (1987). It is not necessary that every factor be satisfied; a court properly exercises its discretion if the factors are 'substantially met.' Swan, 114 Wn.2d at 652.
Mr. Pederson first asserts that A.C.'s statements were not spontaneous. Essentially, he argues A.C.'s declarations were given in response to Ms. Light's leading questions. A child's statements are considered spontaneous if they are responses to questions that are not leading or suggestive. State v. Young, 62 Wn. App. 895, 901, 802 P.2d 829, 817 P.2d 412 (1991); Henderson, 48 Wn. App. at 550. A.C.'s statements were made to Ms. Light during a formal interview at the sheriff's office. The record indicates Ms. Light did not coax the allegations from A.C. Ms. Light asked her relatively open-ended questions, although they were guided by the context of the interview. Ms. Light's questions were not overly suggestive. The evidence shows A.C.'s statements were spontaneous in that they were not the result of coaxing or leading questions.
Mr. Pederson next asserts A.C.'s statements contained express assertions of past fact. Although A.C.'s statements clearly related to past facts disfavoring admission, this factor does not carry any significant weight because most statements offered for admission under RCW 9A.44.120 are assertions about past facts. See State v. Karpenski, 94 Wn. App. 80, 110 n. 125, 971 P.2d 553 (1999) (citing State v. Leavitt, 111 Wn.2d 66, 75, 758 P.2d 982 (1988); In re Dependency of S.S., 61 Wn. App. 488, 498, 814 P.2d 204, review denied, 117 Wn.2d 1011 (1991); State v. Stange, 53 Wn. App. 638, 644-47, 769 P.2d 873, review denied, 113 Wn.2d 1007 (1989)).
Finally, Mr. Pederson asserts A.C.'s declarations were the result of Ms. Light's improper interviewing techniques that implicate Ryan factors (5), (8), and (9). See In re Dependency of A.E.P., 135 Wn.2d 208, 231, 956 P.2d 297 (1998). Mr. Pederson apparently concedes Ms. Light's introductory questioning of A.C. was proper. Nevertheless, he contends A.C.'s statements to her were the result of leading questions. They were not.
Mr. Pederson contends RCW 9A.44.120 is contrary to the fact of complaint doctrine. The fact of complaint doctrine is a decisional law exception to the hearsay rule allowing the State to present evidence that a rape victim complained to someone after an assault. State v. Ferguson, 100 Wn.2d 131, 135, 667 P.2d 68 (1983). The exception is relatively narrow and allows into evidence only the fact of the complaint and that it was 'timely made.' Id. at 135-36. 'Excluded is evidence of the details of the complaint, including the identity of the offender and the nature of the act.' Id. at 136; State v. Murley, 35 Wn.2d 233, 237, 212 P.2d 801 (1949). The testimony is admissible for the sole purpose of rebutting the inference that the complaining witness was silent following the attack. State v. Fleming, 27 Wn. App. 952, 957, 621 P.2d 779 (1980), review denied, 95 Wn.2d 1013 (1981).
Mr. Pederson, however, fails to indicate how RCW 9A.44.120 is contrary to the fact of complaint doctrine or how it is applicable here. None of the testimony complained of was admitted under that exception to the hearsay rule. Rather, it was admitted under RCW 9A.44.120. The child hearsay statute expressly authorizes the admission of child hearsay statements when the child is available and competent to testify. RCW 9A.44.120. The purpose of the statute is to alleviate the problems of proof that often frustrate the prosecution of child sexual abuse cases. State v. Jones, 112 Wn.2d 488, 493-94, 772 P.2d 496 (1989). Whether the fact of complaint doctrine is contrary to RCW 9A.44.120 has no bearing on the issues here.
Mr. Pederson also argues Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), renders RCW 9A.44.120 unconstitutional because the statute allows the use of a child's hearsay statements whether or not the child is available for cross examination. But in the circumstances here, no Crawford confrontation issue exists because A.C. was a witness at trial and Mr. Pederson was afforded the opportunity to cross-examine her.
Mr. Pederson next contends that because the trial judge asked A.C. and C.C. to promise to tell the truth to him rather than the truth in general, the court personally vouched for the testimony of A.C. and C.C. At trial, the court asked A.C., 'Will you promise me that everything you say when you're sitting there in that chair will be true?' RP at 600. The court also asked C.C., 'Now, will you assure me and promise me that everything you say when you sit in that chair will be the absolute truth?' RP at 641. Mr. Pederson asserts that by having the trial judge direct the promise to himself, the court impermissibly commented on the evidence.
According to Article IV, section 16 of the Washington Constitution, '[j]udges shall not charge juries with respect to matters of fact, nor comment thereon, but shall declare the law.' State v. Lane, 125 Wn.2d 825, 838, 889 P.2d 929 (1995). 'The purpose of prohibiting judicial comments on the evidence is to prevent the jury from being influenced by the trial judge's opinion of the evidence submitted.' State v. Hansen, 46 Wn. App. 292, 300, 730 P.2d 706, 737 P.2d 670 (1986). Because comments on the evidence violate the Constitution, the issue may be raised for the first time on appeal. Id.
A statement by the court will only constitute a comment on the evidence if its attitude toward the merits of the case or its evaluation of a disputed issue is inferable from the statement. Lane, 125 Wn.2d at 838 (citing Hansen, 46 Wn. App. at 300). The touchstone of error with a judicial comment on the evidence is whether the feeling of the court as to the truth value of the testimony of a witness has been communicated to the jury. Id.
Every witness must be sworn before testifying. State v. Avila, 78 Wn. App. 731, 737, 899 P.2d 11 (1995). But when the witness is a child, a trial court does not abuse its discretion by declining to administer formal oaths. Id. Although the trial court may dispense with formal oaths when the witness is a child, the trial court cannot dispose entirely of an oath to tell the truth. Id. at 737-38. 'ER 603 clearly requires the trial court to administer some type of oath to tell the truth or elicit an assurance that the witness will tell the truth before allowing the witness to testify.' Id. at 738.
Here, the trial court's method of administering the oath to A.C. and C.C. did not convey its attitude on the merits of the case. The court's questions were to elicit an assurance from the children that they would tell the truth. The questions did not communicate to the jury the judge's opinion as to the truth value of A.C. and C.C.'s testimony. Mr. Pederson contends the trial court also erred in allowing the State to amend the information at the end of its case in chief. The court's decision allowing an amendment is reviewed for abuse of discretion. State v. Johnston, 100 Wn. App. 126, 133, 996 P.2d 629, review denied, 141 Wn.2d 1030 (2000). '[T]he State is required to give formal notice by information to the defendant of the criminal charges to satisfy the Sixth Amendment and our state constitution, article I, section 22 (amend. 10).' State v. Finch, 137 Wn.2d 792, 806, 975 P.2d 967, cert. denied, 528 U.S. 922 (1999). Unless there is substantial prejudice to the defendant, the State may amend the information to correct a defect at any time before the State rests its case. State v. Vangerpen, 125 Wn.2d 782, 788-90, 888 P.2d 1177 (1995). The defendant bears the burden of demonstrating any prejudice. State v. Guttierrez, 92 Wn. App. 343, 346, 961 P.2d 974 (1998).
The original information stated that the incidents involving A.C. occurred between January 1, 2001, and February 7, 2001. At the end of the State's case in chief, an amended information was submitted stating that the incidents occurred between February 7, 2001, and December 12, 2001. Mr. Pederson asserts the amendment unfairly prejudiced him and affected his defense because it precluded him from arguing that the original time frame was a period of time when A.C. was not at Ms. H.'s home. He reasons he was therefore unable to argue the improbability of A.C.'s version of the events. But modification of the charging period does not usually affect a material element of the crime and should be allowed, absent an alibi defense or a showing of other substantial prejudice to the defendant. State v. DeBolt, 61 Wn. App. 58, 61-62, 808 P.2d 794 (1991).
Mr. Pederson did not assert an alibi defense. His defense consisted of a general denial of the charges. The amendment thus did not jeopardize his ability to defend himself. Mr. Pederson fails to show how the amendment to the information prejudiced any substantial right or how the court's decision to allow the amendment constituted an abuse of discretion. Mr. Pederson next contends jury instructions 8, 9, and 10 were deficient because the testimony was insufficient to establish three independent acts involving A.C. Because the instructions allowed the jury to speculate, he claims he was denied his right to a unanimous verdict.
Jury instruction 8 stated:
To convict the defendant of rape of a child in the first degree, as alleged in Count V, each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That between February 7, 2001, and December 12, 2001, the defendant had sexual intercourse with A.C.;
(2) That A.C. was less than twelve years old at the time of the sexual intercourse and was not married to the defendant;
(3) That the defendant was at least twenty-four months older than A.C.; and
(4) That the acts occurred in the State of Washington.
If you find from the evidence that each of these elements have been proved beyond a reasonable doubt, then it will be your duty to return a verdict of guilty.
On the other hand, if, after weighing all of the evidence, you have a reasonable doubt as to any one of these elements, then it will be your duty to return a verdict of not guilty.
CP at 136.
Jury instruction 9 stated:
To convict the defendant of rape of a child in the first degree, as alleged in Count VII, each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That between February 7, 2001, and December 12, 2001, the defendant had sexual intercourse with A.C.;
(2) That A.C. was less than twelve years old at the time of the sexual intercourse and was not married to the defendant;
(3) That the defendant was at least twenty-four months older than A.C.; and
(4) That the acts occurred in the State of Washington.
If you find from the evidence that each of these elements have been proved beyond a reasonable doubt, then it will be your duty to return a verdict of guilty.
On the other hand, if, after weighing all of the evidence, you have a reasonable doubt as to any one of these elements, then it will be your duty to return a verdict of not guilty.
CP at 137.
Jury instruction 10 stated:
To convict the defendant of rape of a child in the first degree, as alleged in Count IX, each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That between February 7, 2001, and December 12, 2001, the defendant had sexual intercourse with A.C.;
(2) That A.C. was less than twelve years old at the time of the sexual intercourse and was not married to the defendant;
(3) That the defendant was at least twenty-four months older than A.C.; and
(4) That the acts occurred in the State of Washington.
If you find from the evidence that each of these elements have been proved beyond a reasonable doubt, then it will be your duty to return a verdict of guilty.
On the other hand, if, after weighing all of the evidence, you have a reasonable doubt as to any one of these elements, then it will be your duty to return a verdict of not guilty.
CP at 138.
Mr. Pederson relies on State v. Holland, 77 Wn. App. 420, 423-25, 891 P.2d 49, review denied, 127 Wn.2d 1008 (1995), in which we held reversal was warranted where the jury instruction allowed the jury to convict the defendant on two of the three child molestation charges without requiring unanimity on the act underlying each count. Holland, however, is distinguishable because no unanimity instruction was given to the jury.
Here, instruction 12 provided:
There are allegations that the defendant committed acts of rape of child in the first degree on [A.C.] 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.
CP at 140.
The unanimity instruction properly informed the jury that to find the defendant guilty of rape of a child, it had to be unanimous in regard to each specific act. Because jurors are presumed to follow the court's instructions, Johnson, 124 Wn.2d at 77, Mr. Pederson was not denied his right to a unanimous verdict.
He further contends the evidence was insufficient to convict him of the first degree child molestation charge involving N.A. In reviewing a sufficiency of the evidence challenge, the test is whether, after viewing the evidence in a light most favorable to the State, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 220-21, 616 P.2d 628 (1980). All reasonable inferences from the evidence must be drawn in favor of the State and interpreted most strongly against the defendant. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). The trier of fact, not the appellate court, resolves conflicts in the testimony and evaluates the credibility of witnesses and the persuasiveness of evidence. State v. Carver, 113 Wn.2d 591, 604, 781 P.2d 1308, 789 P.2d 306 (1989).
To convict Mr. Pederson of first degree child molestation, the State had to prove that he had sexual contact with another who was less than 12 years old and not married to him and he was at least 36 months older than the victim. RCW 9A.44.083. Sexual contact is '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.' RCW 9A.44.010(2). 'Proof that an unrelated adult with no caretaking function has touched the intimate parts of a child supports the inference the touching was for the purpose of sexual gratification.' State v. Powell, 62 Wn. App. 914, 917, 816 P.2d 86 (1991), review denied, 118 Wn.2d 1013 (1992).
N.A. testified she was lying on the couch with her eyes closed when Mr. Pederson put his hand under her shirt and touched her chest for a few seconds. When she opened her eyes, he walked away. Viewed in the light most favorable to the State, the evidence was sufficient to support the conviction for first degree child molestation.
Mr. Pederson contends the trial court erred when it denied his motion for a new trial and to arrest judgment. A trial court may grant a new trial if a defendant's substantial right to a fair trial was materially affected. CrR 7.5(a). But we will not disturb the decision to grant or deny a new trial unless it constitutes an abuse of discretion or is based on a mistake of law. State v. Jackman, 113 Wn.2d 772, 777, 783 P.2d 580 (1989). Mr. Pederson appears to argue he was entitled to a new trial based on cumulative error. But when 'most of the claimed errors are not errors at all . . . such errors as occurred do not warrant a new trial.' State v. Copeland, 130 Wn.2d 244, 294, 922 P.2d 1304 (1996). The trial court did not abuse its discretion by denying the motion for a new trial.
Mr. Pederson assigns error to the trial court's failure to grant his motion to arrest judgment, but does not adequately argue the issue. His brief simply states: 'Mr. Pederson relies upon the preceding portions of this brief to support his argument that the motion to arrest judgment should have been granted with regard to Counts V, VI, VII and IX.' Appellant's Br. at 49. He failed to indicate what or how portions of his brief support his argument. We will not consider claims insufficiently argued by the parties. RAP 10.3(5); State v. Elliott, 114 Wn.2d 6, 15, 785 P.2d 440, cert. denied, 498 U.S. 838 (1990).
In his statement of additional grounds for review, Mr. Pederson contends the trial court erred in refusing to grant a mistrial because a prospective juror was a probation officer for the defense witness. The record, however, is silent as to what was elicited during voir dire. Because this issue refers to matters outside the record, it cannot be considered on appeal. It can, however, be raised in a personal restraint petition. State v. McFarland, 127 Wn.2d 322, 338, 899 P.2d 1251 (1995). Mr. Pederson next assigns error to several of the trial court's findings of fact and conclusions of law regarding the admissibility of child hearsay statements. This court reviews findings of fact to determine whether they are supported by substantial evidence and, if so, whether the findings support the conclusions of law. Brin v. Stutzman, 89 Wn. App. 809, 824, 951 P.2d 291, review denied, 136 Wn.2d 1004 (1998). 'Substantial evidence exists if the record contains evidence of sufficient quantity to persuade a fair-minded, rational person of the truth of the declared premise.' In re Estate of Eubank, 50 Wn. App. 611, 617, 749 P.2d 691 (1988). A trial court's conclusions of law are reviewed de novo. City of Seattle v. Megrey, 93 Wn. App. 391, 393, 968 P.2d 900 (1998). This court's function is not to substitute its judgment for that of the trial court or to weigh the evidence or credibility of witnesses. In re Marriage of Rich, 80 Wn. App. 252, 259, 907 P.2d 1234, review denied, 129 Wn.2d 1030 (1996).
Mr. Pederson assigns error to 25 of the trial court's findings of fact. He does not explain how these findings are in error. Our review is nonetheless limited to determining whether the findings are supported by substantial evidence. Brin, 89 Wn. App. at 824. The fact that the evidence may be subject to different interpretations does not permit us to substitute our findings for those of the trial court. Peter L. Redburn, Inc. v. Alaska Airlines, Inc., 20 Wn. App. 315, 318, 579 P.2d 1354 (1978). Here, the court heard testimony from the children, the police officers, and Ms. Light at the child competency hearing. Because it found these witnesses credible, substantial evidence supports the challenged findings, which in turn support the conclusions of law. There was no error.
Mr. Pederson contends the child hearsay statements made by N.A. are inadmissible because she was 10 years old when the statements were made. RCW 9A.44.120 provides for admission of a child's out-of-court statements under certain conditions. One condition is that the statement was made by the child when under the age of 10. RCW 9A.44.120. N.A.'s hearsay statements were made in December 2001. Since N.A. was born in 1992, she was under the age of 10 when the statements were made.
Mr. Pederson next contends C.C. could not provide a time frame as to when any of the alleged touching occurred. He claims the evidence was thus insufficient to support the first degree child rape conviction involving C.C. But she testified at trial that she was six years old when he put his hands down her pants and was feeling around 'inside.' RP at 647. In a sufficiency of the evidence challenge, the trier of fact, not the appellate court, determines credibility. Carver, 113 Wn.2d at 604. The evidence was sufficient to support the conviction.
Mr. Pederson also contends the State did not locate any of the pornographic material described by A.C. But this provides no basis for reversing his conviction. Whether he possessed pornography is not a necessary element of the crimes of first degree rape and first degree child molestation. Finally, Mr. Pederson contends he was denied effective assistance of counsel. To establish ineffective assistance, he must show his attorney's performance was deficient and he was prejudiced by the deficiency.
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Hendrickson, 129 Wn.2d 61, 77-78, 917 P.2d 563 (1996). The first element of Strickland is met by showing counsel's performance was not reasonably effective under prevailing professional norms. Hendrickson, 129 Wn.2d at 77. The second test is met by showing a reasonable probability that, but for counsel's unprofessional errors, the result would have been different. State v. Thomas, 109 Wn.2d 222, 226, 743 P.2d 816 (1987). There is a strong presumption counsel's performance was reasonable. Id. When counsel's conduct can be characterized as legitimate trial strategy or tactics, it cannot serve as the basis for a claim of ineffective assistance. Hendrickson, 129 Wn.2d at 77-78.
Mr. Pederson claims his counsel was ineffective because he did not call any defense witnesses regarding Ms. Light's interviewing techniques. But a decision to call or not call a witness is a matter of legitimate trial tactics and will not support a claim of ineffective assistance of counsel. Thomas, 109 Wn.2d at 230.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
SCHULTHEIS, J. and KURTZ, J., Concur.