Opinion
No. 30497-0-II
Filed: November 2, 2004 UNPUBLISHED OPINION
Appeal from Superior Court of Clark County. Docket No: 02-1-02226-0. Judgment or order under review. Date filed: 05/28/2003. Judge signing: Hon. Roger a Bennett.
Counsel for Appellant(s), David Schultz, Attorney at Law, 827 Lake St S Unit 305, Kirkland, WA 98033-6481.
Counsel for Respondent(s), Kimberley Robert Farr, Attorney at Law, Clark Co Pros Attys Offc, PO Box 5000, Vancouver, WA 98666-5000.
David Michael Perrone appeals his conviction of four counts of second degree rape of a child, the terms of his community custody, and his legal financial obligations. He argues that (1) the jury instruction defining reasonable doubt was confusing, misstated the law, and amounted to a comment on the evidence; (2) the prosecutor committed misconduct by arguing in closing that the jury would have to find the prosecution witnesses were lying in order to acquit; (3) defense counsel was ineffective for failing to object to the prosecutor's closing argument and failing to properly impeach several witnesses; and (4) the trial court erred when it imposed certain community custody conditions and legal financial obligations. The State concedes that the community custody provision requiring drug evaluation and treatment and the imposition of the biological collection fee were in error. We accept the State's concessions, find that the court also had no basis for imposing restrictions on Perrone's use of cell phones or scanners, vacate the drug and alcohol evaluation and treatment and cell phone and scanner provisions and the collection fee, and remand for resentencing. We otherwise affirm.
FACTS
The State charged Perrone by second amended information with one count of first degree kidnapping and four counts of second degree rape or, in the alternative, four counts of second degree rape of a child. All charges stemmed from his contacts with A.M., his girlfriend's daughter, between May 1 and December 31, 2001. Perrone pleaded not guilty, and the case went to a jury trial.
At trial, the State presented evidence that Perrone had been involved with and lived with Lorrie Anderson and her daughter A.M. from the spring of 1998 until August 2001, when their relationship ended. A.M. was born in August 1988, and was 10 to 12 years old during this time.
A.M. alleged that Perrone had raped her four times. She testified that (1) the first and second rapes occurred before school ended in the spring of 2001, when she was home alone with Perrone after school before her mother returned from work; (2) the third occurred after she returned from a visit to her grandparents in mid-July 2001, when she was home alone with Perrone; and (3) the fourth occurred in December 2001, after Perrone forced her into his car, blindfolded her, and tied her hands.
After the doctor who later examined A.M. testified that A.M. told her that she thought she might have been drugged prior to one of the rapes, the State recalled A.M.A.M. then testified that she believed she may have been drugged prior to the second rape. Defense counsel tried to impeach A.M., asserting that she had told the doctor and the investigating detective that she was drugged during the fourth rape. A.M. did not recall what she told the doctor.
Specifically, A.M. testified as follows:
[Defense Counsel] Isn't it true that you told Detective Greer that it was on the date that you were allegedly kidnaped [sic] that you thought you'd been drugged?
[A.M.] Nope.
[Defense Counsel] You don't recall telling her that?
[A.M.] No.
[Defense Counsel] You don't recall telling the doctor that?
[A.M.] I told the doctor that I — I uh believed that I was.
[Defense Counsel] On the day you were kidnaped [sic].
[A.M.] No. I don't remember.
[Defense Counsel] You specifically told her it was the second incident at home.
[A.M.] I don't remember um when I — exactly when I told her but I know I told her.
[Defense Counsel] But you just forgot to tell us about this yesterday.
[A.M.] It slipped my mind.
Report of Proceedings (RP) (Apr. 22, 2003) at 58-59.
To further bolster A.M.'s testimony, the detective testified that A.M. had alleged during the investigation that she may have been drugged during the second rape. On cross-examination, defense counsel asked whether the detective had referenced this allegation in her report. The detective responded that she had indicated in her report that A.M. suggested she may have been drugged in the incident following the dinner (the second incident), not during the incident in the car.
A.M. further testified that she did not reveal any of the rapes to her mother until after Amy Harblin, a school friend she had told about the rapes, disclosed the alleged rapes to a school counselor. Harblin testified about A.M.'s disclosure to her. She also testified that she had seen marks on A.M.'s back that A.M. said had occurred during the rape in Perrone's car and that some of the marks appeared to have been made by a belt and some appeared to be in the form of a hand. Defense counsel tried to impeach Harblin's testimony by suggesting that Harblin had told the detective that A.M. had discussed the sexual abuse with her more than once, that A.M. told her Perrone had been having sex with her approximately twice a week, and that A.M. told her Perrone hit her with a belt when her mother was not home. Harblin denied making these statements and further testified that she concluded that the marks on A.M. were from a belt only because of their appearance, not because A.M. told her. Defense counsel did not question the detective about the statements Harblin made during the investigation.
Specifically, Harblin testified as follows:
[Defense Counsel] Did you only talk to her on one day about this or was it more than one day she talked to you about it?
[Harblin] Um nothing had been broughten [sic] up until that time but afterwards we had talked about it quite a lot.
[Defense Counsel] Okay. Do you remember talking to Detective Greer about this?
. . . .
[Harblin] Yes.
[Defense Counsel] Do you remember telling her that [A.M.] told you whenever her mom went somewhere he would hit her with a belt?
[Harblin] I don't remember her saying that.
[Defense Counsel] Do you remember saying that on one occasion you saw she had marks that were red and welted from David hitting her with a belt on her back?
[Harblin] I assumed that that was what happened.
[Defense Counsel] Did she tell you that?
[Harblin] Yes she did.
[Defense Counsel] When did she tell you that he hit her with a belt?
[Harblin] When she showed me the marks.
[Defense Counsel] When was this supposed to have happened?
[Harblin] I'm not understanding the question.
[Defense Counsel] Was it supposed to have happened a few days before? A month before?
[Harblin] I'm not honestly — she didn't tell me when it happened.
[Defense Counsel] Do you remember telling Detective Greer that she said he had intercourse with her like twice a week? She'd say he did this or that to me, he took me in the bedroom.
[Harblin] I don't remember saying that.
[Defense Counsel] Do you remember telling Detective Greer that you thought this occurred in November?
[Harblin] I'm not really quite sure of the times.
[Defense Counsel] I have no further questions.
RP (Apr. 22, 2003) at 45-47.
Although A.M. did not disclose the rapes to her mother until January 2002, her mother testified that A.M. had started exhibiting behavioral changes in the spring of 2001; that she had told her grandparents during her vacation that she was suicidal and did not want to return home; and that at the time A.M. finally disclosed to her, A.M. was in counseling.
A.M. also testified that she had told another school friend about the abuse earlier. Her friend, K.D. Lee, testified that A.M. had disclosed the molestation to her in December 2001, but that she did not say anything about this disclosure because she did not know what to do. On cross-examination, defense counsel attempted to impeach Lee with a prior statement to the detective:
[Defense Counsel] Now did you talk to Detective Greer about that incident?
[Lee] Yes I did.
[Defense Counsel] . . . And did you tell her that [A.M.] told you he tied her up with something around her mouth?
[Lee] Yes.
[Defense Counsel] And that he started using whips and stuff on her?
[Lee] I don't know exactly what it was but she said it was a whip or a belt.
[Defense Counsel] And did [A.M.] tell you that it happened again in January or February of 2002?
[Lee] No she did not.
[Defense Counsel] Do you remember telling Detective Greer that [A.M.] told you that?
[Lee] No I don't. I remember telling her that um I had seen marks on her but I never — I don't remember her saying it happened again.
[Defense Counsel] So you don't remember making that statement to Detective Greer.
[Lee] No.
RP (Apr. 22, 2003) at 53-54. Defense counsel did not present any other evidence related to Lee's discussions with the detective.
When Lee further testified that she had also seen bruises and scratches on A.M.'s back in December, defense counsel again attempted to impeach her with prior statements:
[Defense Counsel] Now you made a statement earlier and I'm not sure if I caught it right. You talked about her mom doing something to her?
[Lee] I never . . .
[Defense Counsel] Did you talk about her mom slamming her into walls?
[Lee] I never said anything of her mom slamming her into walls.
RP (Apr. 22, 2003) at 55.
Perrone denied that he had had sexual intercourse with A.M. The parties also presented substantial conflicting testimony concerning: (1) when and how often Perrone was left alone with A.M.; (2) whether he was still living with Anderson and A.M. at the time of the third rape; (3) whether he had access to medications that could have been used to drug A.M.; (4) whether Perrone had gradually increased his inappropriate behavior toward A.M. over the course of his relationship with Anderson; and (5) whether he had sought to maintain contact with A.M. and frequented her school after his relationship with Anderson ended.
Following the testimony, the trial court presented the parties with a packet of jury instruction that were not discussed on the record before this court. Defense counsel did not object to any of the instructions at that time.
Defense counsel stated that she had a brief chance to look over the packet and when the court asked if she had any exceptions she stated `No exception given. I would note for the record, I've had kind of a brief opportunity to look at them, but they do appear to be pattern and dates corrected and everything.' RP (Apr. 22, 2003) at 111.
During closing argument, both the prosecutor and defense counsel repeatedly emphasized the conflicting testimony and the fact that the jury's decision rested on whose testimony it found to be more truthful. Neither party objected to this argument.
The jury found Perrone guilty of four counts of second degree rape of a child. At sentencing, the trial court imposed a $100 biological sample collection fee, and, as conditions of community custody, ordered that Perrone undergo drug and alcohol evaluation and treatment. The trial court also imposed the following community custody condition:
Defendant shall not possess or use any paraphernalia that can be used . . . for the ingestion or processing of controlled substances or that can be used to facilitate the sale or transfer of controlled substances including scales, pagers, cellular phones, police scanners, and hand held electronic scheduling and data storage devices.
Clerk's Papers at 47. The trial court, however, did not make a finding that Perrone had a chemical dependency that contributed to the offenses.
Perrone appeals his conviction and the terms of his community custody and legal financial obligations.
DISCUSSION I. Reasonable Doubt Instruction A. Accurate Statement of the Law
Perrone first argues that his convictions must be reversed because the reasonable doubt instruction was confusing and an inaccurate statement of the law that did not comply with due process requirements. We disagree.
The State argues that the invited error doctrine precludes review of this issue because defense counsel failed to except to this instruction when the trial court asked for exceptions to its proposed packet of instructions. Although Perrone's counsel did not take exception to this instruction and appeared content to allow an instruction based on a pattern jury instruction, it is not clear from the record whether she affirmatively offered this instruction. But, because we find the jury instructions adequate and to avoid a possible claim of ineffective assistance of counsel at a later date, we presume that Perrone properly preserved this issue for appeal.
In a criminal case, the court must instruct the jury that the State has the burden to prove each essential element of the crime beyond a reasonable doubt. It is reversible error if the instructions relieve the State of that burden. State v. Pirtle, 127 Wn.2d 628, 656, 904 P.2d 245 (1995), cert. denied, 518 U.S. 1026 (1996).
Although no particular wording is required, the jury instructions must define reasonable doubt and clearly communicate the correct allocation of the burden of proof. State v. Coe, 101 Wn.2d 772, 787-88, 684 P.2d 668 (1984). The wording of an instruction is misleading if the defendant establishes that the instruction misled the jury as to its functions and responsibilities under the law. State v. Hayes, 73 Wn.2d 568, 572, 439 P.2d 978 (1968). We examine the effect of a particular phrase in an instruction by considering the instruction as a whole, and reading it in the context of all the instructions given. Pirtle, 127 Wn.2d at 656; Coe, 101 Wn.2d at 788; State v. Castle, 86 Wn. App. 48, 52, 935 P.2d 656, review denied, 133 Wn.2d 1014 (1997).
The trial court provided the jury with the following reasonable doubt instruction:
The defendant has entered a plea of not guilty. That plea puts in issue every element of the crime charged. The State is the plaintiff and has the burden of proving each element of the crime beyond a reasonable doubt. The defendant has no burden of proving that a reasonable doubt exists.
A defendant is presumed innocent. This presumption continues throughout the entire trial unless during your deliberations you find it has been overcome by the evidence beyond a reasonable doubt.
A reasonable doubt is one for which a reason exists and may arise from the evidence or lack of evidence. Proof beyond a reasonable doubt is proof that leaves you firmly convinced of the defendant's guilt. There are very few things in this world that we know with absolute certainty, and in criminal cases the law does not require proof that overcomes every possible doubt. If, based on your consideration of the evidence, you are firmly convinced that the defendant is guilty of the crime charged, you must find him guilty. If on the other hand, you think there is a real possibility that he is not guilty, you must give him the benefit of the doubt and find him not guilty.
CP at 18 (emphasis added).
Perrone argues that the first italicized portion of the instruction inadequately communicates the burden of proof because the instruction states the standard in the negative. Br. of Appellant at 14-15. He further argues that the use of the term `every possible doubt' in the first italicized section potentially contradicts the term `real possibility' in the second italicized section of the instruction. Br. of Appellant at 13-14.
Although Perrone acknowledges that Division One has approved of a similar reasonable doubt instruction in Castle, he asserts that Castle does not apply here because it `does not expressly discuss the portion of the instruction which is objected to by the defendant in this case,' and does not address the instruction's potential failure to comply with due process requirements. Br. of Appellant at 15. In Castle, Division One of this court approved of a reasonable doubt instruction almost identical to the one at issue here. But, Perrone is correct that the court's decision was based on a different challenge to the instruction. Unlike here, the court addressed the defendant's argument that the phrase `a real possibility that [the defendant] was not guilty,' improperly lowered the standard of proof. Castle, 86 Wn. App. at 51. Accordingly, Perrone is correct that Castle's analysis, although instructive, is not dispositive here.
But the instruction here, taken as a whole, clearly instructed the jury that it was the State's burden to establish guilt beyond a reasonable doubt. It also clearly defined reasonable doubt as a real possibility of innocence based on reason and evidence as opposed to any possibility of innocence, however far fetched, while still accurately emphasizing that absolute certainty was not required. See Castle, 86 Wn. App. at 58. A jury could clearly understand the meaning implied in the accurate negative definition and conclude that its verdict did not have to be made with absolute certainty or that the proof overcomes every possible doubt, but that it had to be certain that there was no doubt based on reason and the evidence.
Nor do we find the two italicized phrases contradictory. The concept that the law does not require absolute proof is not inconsistent with requiring proof that excludes any real possibility of innocence. Accordingly, this argument fails.
B. Comment on the Evidence
Perrone also argues that the instruction amounts to a comment on the evidence. Again, we disagree.
A jury instruction amounts to a comment on the evidence when it conveys `the court's attitude toward the merits of the case or the court's evaluation relative to the disputed issue.' State v. Lane, 125 Wn.2d 825, 838, 889 P.2d 929 (1995). But `[a] jury instruction that does no more than accurately state the law pertaining to an issue . . . does not constitute an impermissible comment on the evidence by the trial judge.' State v. Woods, 143 Wn.2d 561, 591, 23 P.3d 1046, cert. denied, 534 U.S. 964 (2001).
As discussed above, the jury instruction here merely stated the appropriate legal standard. And, by merely stating the standard in the negative, the instruction did not comment on the weight the jury should give the evidence or convey, in any manner, the court's attitude toward the merits of the case or the relative weight of any evidence. Accordingly, this argument also fails.
II. Prosecutorial Misconduct
Perrone next argues that the prosecutor committed misconduct by repeatedly suggesting in closing argument that the jury must find that the State's witnesses were lying in order to find him not guilty.
To establish prosecutorial misconduct, Perrone must prove both improper conduct and prejudicial effect. State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997), cert. denied, 523 U.S. 1007 (1998). Misconduct is prejudicial if the defendant shows a substantial likelihood that it affected the verdict. Brown, 132 Wn.2d at 561. Additionally, absent a proper objection to the comments at trial and a request for a curative instruction, the issue of misconduct is waived unless it was so flagrant or ill-intentioned that an instruction could not have cured the prejudice. Brown, 132 Wn.2d at 561. Furthermore, we view the prosecutor's remarks in the context of the entire argument, the issues, the evidence, and the jury instructions. Brown, 132 Wn.2d at 561.
A prosecutor commits flagrant misconduct by arguing that in order to acquit a defendant, the jury must find that the State's witnesses are either lying or mistaken. State v. Fleming, 83 Wn. App. 209, 213, 921 P.2d 1076 (1996), review denied, 131 Wn.2d 1018 (1997). But a prosecutor may properly draw inferences `from the evidence as to why the jury would want to believe one witness over another.' State v. Brett, 126 Wn.2d 136, 175, 892 P.2d 29 (1995), cert. denied, 516 U.S. 1121 (1996); see also State v. Copeland, 130 Wn.2d 244, 290, 922 P.2d 1304 (1996). Furthermore, `where a jury must necessarily resolve a conflict in witness testimony to reach a verdict, a prosecutor may properly argue that, in order to believe a defendant, the jury must find that the State's witnesses are mistaken.' State v. Wright, 76 Wn. App. 811, 826, 888 P.2d 1214 (emphasis omitted), review denied, 127 Wn.2d 1010 (1995).
Here, the prosecutor's argument was intended to assist the jury in determining the credibility of the witnesses and evaluating the conflicting testimony. In doing so, the prosecutor did no more than emphasize the substantial conflicting testimony, point out the aspects of the testimony that were inconsistent or irreconcilable, discuss the possible motives the witnesses might have had to present false testimony, and argue that the jury would have to examine the testimony to determine which testimony was most credible. In this case, although the prosecutor did suggest that to find Perrone's version of the events credible it would have to reject the State's evidence, the focus of the prosecutor's closing argument was on witness credibility, and it was not inappropriate or unduly prejudicial.
III. Ineffective Assistance of Counsel
Perrone next argues that his counsel was ineffective for failing to object to the prosecutor's closing argument and for failing to properly impeach several witnesses.
To establish that counsel was ineffective, Perrone must show that (1) his counsel's performance was deficient; and (2) the deficient performance was prejudicial. State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). Counsel's performance is deficient if her representation falls below an objective standard of reasonableness. McFarland, 127 Wn.2d at 334-35. And deficient performance is prejudicial when there is a reasonable probability that but for the deficient performance, the outcome of the case would have differed. McFarland, 127 Wn.2d at 335. We presume counsel was effective. McFarland, 127 Wn.2d at 335.
A. Failure to Object to Prosecutor's Closing Argument
Perrone argues that defense counsel's failure to object to the prosecutor's closing argument amounted to ineffective assistance. As noted above, the prosecutor's closing argument was proper. Thus, any objection would not have been successful, and Perrone cannot establish deficient performance or prejudice on this basis.
B. Failure to Properly Impeach Witness
Perrone next contends that defense counsel was ineffective because she failed to adequately impeach certain witnesses. Specifically, he argues that counsel was deficient because she did not present impeaching evidence through other testimony once a witness refused to admit they had made a prior inconsistent statement.
The record does show several instances where defense counsel attempted to impeach a witness with a prior inconsistent statement and did not follow up the attempt at impeachment with testimony from other witnesses. But, to determine whether this omission was prejudicial, Perrone must show that such testimony was available and that it would have successfully impeached the witnesses' later testimony. The record does not contain any evidence related to what the potential impeachment witnesses would have testified to. Thus, this argument requires reference to evidence outside the current record and cannot be reviewed on direct appeal. McFarland, 127 Wn.2d at 335.
IV. Conditions of Community Custody
Perrone next contends that the trial court improperly imposed the drug and alcohol evaluation and treatment condition and the cellular phone and scanner access limitations as terms of his community custody, arguing that there was no evidence that these conditions were related to the offenses. The cellular phone and scanner condition also generally limited Perrone's access to items related to the sale of control substances. The State concedes error in relation to the drug and alcohol evaluation and treatment requirement but does not address the cellular phone and scanner limitations.
The trial court did not make a finding that the use or abuse of drugs or alcohol contributed to the current offenses and the record before this court reveals no evidence relating to the role of drug or alcohol in relation to the current offenses. Thus, the trial court erred by imposing the evaluation and treatment condition and the cellular phone and scanner condition, and we vacate these conditions. State v. Jones, 118 Wn. App. 199, 76 P.3d 258 (2003); see also RCW 9.94A.700(5)(c) (court may order that offender participate in `crime-related treatment or counseling services' (emphasis added)); RCW 9.94A.700(5)(e) (court may order that offender `comply with any crime-related prohibitions' (emphasis added)).
V. Legal Financial Obligations
Finally, Perrone contends that the trial court improperly imposed a biological collection fee, arguing that the court lacked the authority to impose this fee because he committed his offenses before July 1, 2002. The State concedes error.
RCW 43.43.7541 provides in part:
Every sentence imposed under chapter 9.94A RCW, for a felony specified in RCW 43.43.754 that is committed on or after July 1, 2002, must include a fee of one hundred dollars for collection of a biological sample as required under RCW 43.43.754, unless the court finds that imposing the fee would result in undue hardship on the offender. The fee is a court-ordered legal financial obligation as defined in RCW 9.94A.030, payable by the offender after payment of all other legal financial obligations included in the sentence has been completed.
(Emphasis added). Offenses committed in 2001 clearly do not fall under this statute and imposition of this fee was in error. Thus, we accept the State's concession and direct the court to vacate that portion of the judgment and sentence.
Accordingly, we affirm the convictions, vacate the above community custody and legal financial obligations, and remand for resentencing in accordance with this opinion.
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.
MORGAN, J. and QUINN-BRINTNALL, C.J., Concur.