Opinion
No. 58564-9-I.
November 19, 2007.
Appeal from a judgment of the Superior Court for King County, No. 05-1-11665-6, Gregory P. Canova, J., entered June 26, 2006.
Affirmed by unpublished per curiam opinion.
Timothy Pendleton (Pendleton) appeals his convictions for unlawfully possessing a firearm, child rape in the third degree, child molestation in the third degree, and sexual exploitation of a minor. He argues that the State did not prove his antique Japanese rifle met the statutory definition of a firearm, and that ineffective assistance of counsel and improperly admitted hearsay deprived him of a fair trial. Because the challenged testimony was admissible and sufficient evidence supports finding the rifle was a firearm, we affirm.
FACTS
In September 2005, when Pendleton was 28 years old, his 14-year-old niece J.P. and her friends A.D. and S.S. frequently visited him at his home. When the school year began, J.P. brought a new friend, S.G. S.G. visited Pendleton approximately ten times over the next few weeks. During the visits, Pendleton provided the girls with marijuana and cocaine. S.G testified that she did not remember ever being at Pendleton's house without being high. On S.G.'s third visit, as Pendleton watched, J.P. used Pendleton's Polaroid camera to take photographs of S.G. nude. In later visits, S.G. testified that Pendleton performed oral sex on her on two occasions and she manually stimulated Pendleton's penis on two occasions. When S.G.'s mother suspected drug and sexual activity, she contacted the police, who interviewed S.G. S.G. ran away from home and informed Pendleton of the investigation. Shortly before his arrest, Pendleton destroyed the nude photographs and gave his guns and drug paraphernalia to friends to hide.
Pendleton was charged with child rape in the third degree, child molestation in the third degree, sexual exploitation of a minor, three counts of first degree unlawful possession of a firearm, and two counts of Violation of the Uniform Controlled Substances Act. The jury returned a verdict of guilty on all charges. Pendleton appeals.
ANALYSIS
Firearm Possession
Pendleton admits owning several guns, including a World War II era Japanese rifle he claims he never fired because the barrel is cracked. Pendleton stipulated that he had been previously convicted of a serious offense making possession of a firearm unlawful under RCW 9.41.040(1). But because the State's firearms expert did not actually fire a bullet from Pendleton's antique Japanese rifle out of fear the rifle would blow up, but instead tested the rifle using a modified bullet with the gunpowder removed, Pendleton claims the State presented insufficient evidence that the rifle met the statutory definition of "firearm."
"`Firearm' means a weapon or device from which a projectile or projectiles may be fired by an explosive such as gunpowder." RCW 9.41.010(1). Evidence is sufficient to support a conviction if, after viewing the evidence in the 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. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
While "a gun rendered permanently inoperable is not a firearm under the statutory definition[,]" a gun that is temporarily malfunctioning, requires assembly, or lacks bullets meets the statutory definition of a firearm. State v. Padilla, 95 Wn. App. 531, 535, 978 P.2d 1113 (1999) (emphasis in original); State v. Berrier, 110 Wn. App. 639, 645, 41 P.3d 1198 (2002); State v. Faust, 93 Wn. App. 373, 381, 967 P.2d 1284 (1998). Whether a gun can be operated safely is not an element of the statutory definition. See Berrier at 646 n. 6 ("That [the defendant] may have hurt himself, such as sustaining a hand or trigger finger injury shooting the shotgun . . . does not make it inoperable")
Here, the State presented sufficient evidence to support the jury's finding that Pendleton's antique Japanese rifle was a firearm. The State's firearms expert testified that when he pulled the trigger the rifle's firing pin hit the primer and caused it to ignite, which he described as "the equivalent of firing the gun." Although firing the rifle was unsafe, the expert testified that the rifle was operable and could fire a projectile. See Berrier at 646 n. 6. On this record, a rational trier of fact could find that Pendleton's Japanese rifle was capable of firing projectiles. We affirm his conviction for unlawfully possessing a firearm because it is supported by sufficient evidence.
Out-of-Court Statements
Pendleton alleges the trial court committed prejudicial error by admitting out-of-court statements during the testimony of Pendleton's niece J.P. and her friend A.D. The trial court has broad discretion regarding the admissibility of evidence and will not be reversed absent manifest abuse of discretion. Northington v. Sivo, 102 Wn. App. 545, 8 P.3d 1067 (2000). "The credibility of a witness may be attacked by any party[.]" ER 607. "Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny [it. . . .]" ER 613. Hearsay is not admissible unless subject to a specific exception. ER 802.
The trial court allowed the State to impeach A.D. with statements she made in an interview with defense counsel. In the interview, A.D. said she became angry with S.G. when J.P. told her that S.G. was having sex with Pendleton. Because A.D. affirmatively asserted no illegal activity occurred at Pendleton's, the statement was relevant to attack A.D.'s credibility by establishing bias against S.G. See State v. Hancock, 109 Wn.2d 760, 767, 748 P.2d 611 (1988) ("Since she did give testimony which affirmatively supported the defense, the subsequent impeachment of her testimony was proper"). After A.D. testified she did not get angry with S.G., her interview was admissible for the limited purpose of impeachment under ER 613(b). To ensure the jury considered the testimony only for its impeachment, not substantive, value, the court specifically advised the jury during the disputed testimony that the evidence was not being offered to prove the truth of the matter asserted. The trial court did not abuse its discretion in admitting prior inconsistent statements by A.D.
Pendleton also argues that J.P.'s testimony that S.G. said she was having sex with Pendleton was inadmissible hearsay. But because S.G.'s statement that was made before police or her parents knew of the allegations is admissible as a prior consistent statement "offered to rebut an express or implied charge against the declarant of recent fabrication[,]" the court did not abuse its discretion in admitting the statement. See ER 801(d)(1).
Ineffective Assistance of Counsel
In the alternative Pendleton claims his right to effective assistance of counsel was violated because his trial counsel did not object to, or ask for a limiting instruction concerning, J.P.'s testimony or the impeachment testimony of two detectives.
To establish ineffective assistance of counsel, Pendleton must show both deficient performance and resulting prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed.2d 674 (1984); In re T.A.H.-L., 123 Wn. App. 172, 97 P.3d 767 (2004). Deficient performance occurs when counsel's performance falls below an objective standard of reasonableness. State v. Stenson, 132 Wn.2d 668, 705-06, 940 P.2d 1239 (1997), writ of habeas corpus denied, 2007 U.S. App. LEXIS 22612 (9th Cir. 2007). Prejudice occurs if, but for the deficient performance, there is a reasonable probability that the outcome of the proceedings would have been different. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). There is a strong presumption of effective assistance, and the defendant bears the burden of demonstrating the absence in the record of a strategic basis for the challenged conduct. McFarland, 129 Wn.2d at 335-36.
When the two detectives interviewed Pendleton's friend Keith Dillenburg (Dillenburg) shortly after Pendleton was arrested, Dillenburg said Pendleton showed him nude photographs of S.G. At trial, after Dillenburg testified that he was unsure who the nude girl was in the photographs, the State called the detectives to impeach his testimony. The detectives each testified that, in the interview, Dillenburg identified S.G. as the girl in the photographs. Because their testimony was admissible to impeach Dillenburg, there is no reasonable probability the outcome would have been different but for defense counsel's failure to object. Likewise, we presume that counsel decided not to ask for a limiting instruction as a trial tactic to avoid reemphasizing damaging evidence. State v. Donald, 68 Wn. App. 543, 551, 844 P.2d 447 (1993). Pendleton fails to overcome the presumption of effective assistance. And because J.P.'s testimony was also admissible, Pendleton has failed to show prejudice.
Additional Grounds
Pendleton raises five issues in a pro se statement of additional grounds for review. First, Pendleton claims the trial court failed to maintain the appearance of fairness and impartiality by commenting, outside the jury's hearing, on the truthfulness of witnesses and by instructing the jury that they were "officers of the court." We disagree. Statements the judge made while the jury was not present could not taint the jury, and the judge's instructions to the jury were proper. See 11 Washington Practice: Washington Pattern Jury Instructions Criminal (WPIC) 1.02 at 11 (2d ed. 1994) ("You are officers of the court and must act impartially. . . ."). Nothing in the record supports Pendleton's claim that the trial court's action created an appearance of partiality.
Pendleton also asserts the trial court's failure to record two sidebars precludes fair appellate review. As in State v. Nguyen, 134 Wn. App. 863, 871-72, 142 P.3d 1117 (2006), rev. pending, 2007 Wash. LEXIS 102 (Jan. 30, 2007) (because nothing in the record suggests Pendleton asked to place sidebar discussions on the record, the issue is not preserved for review.
The record reflects one sidebar.
Pendleton challenges the sufficiency of the evidence for child rape and molestation because the four people S.G. testified were present during one sex act testified that it never happened. The jury is free to believe some witnesses and disbelieve others, however, and the jury's credibility determinations will not be disturbed on appeal. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990). Furthermore, there was ample evidence of other acts that would constitute child rape and molestation.
Next, Pendleton challenges the sufficiency of the evidence for his conviction for sexual exploitation of a minor. "A person is guilty of sexual exploitation of a minor if the person: . . . [a]ids, invites, employs, authorizes, or causes a minor to engage in sexually explicit conduct, knowing that such conduct will be photographed[.]" RCW 9.68A.040(1)(b). Pendleton admits providing the camera and the venue, and J.P. testified Pendleton said he took nude photographs of S.G. Either may constitute aiding or authorizing the conduct, so the evidence is sufficient to support Pendleton's conviction.
Last, Pendleton's claim that his constitutional right to indictment by grand jury was violated is meritless. "`Prosecution by information instead of by indictment . . . is not a violation of the Federal Constitution.'" Payne v. Smith, 30 Wn.2d 646, 650, 192 P.2d 964 (1948) (quoting Gaines v. Washington, 277 U.S. 81, 48 S. Ct. 468, 470, 72 L. Ed. 793 (1928)).
We affirm Pendleton's convictions and the felony judgment and sentence.