Opinion
No. 63014-8-I.
Filed: December 27, 2010. UNPUBLISHED OPINION
Appeal from a judgment of the Superior Court for King County, No. 07-1-09847-6, Deborah D. Fleck, J., entered January 26, 2009.
Affirmed in part and remanded with instructions by unpublished opinion per Spearman, J., concurred in by Grosse and Schindler, JJ.
A jury found Ryan Richardson guilty of child rape in the first degree and child molestation in the second degree for two incidents involving his stepdaughter, A.C. He was given a standard-range sentence totaling 130 months to life in prison. On appeal, he asserts that the testimony of various witnesses denied him a fair trial or, in the alternative, defense counsel was ineffective for failing to object to that testimony; cumulative error deprived him of a fair trial; the sentencing court exceeded its authority in entering certain community custody conditions; and the judgment and sentence should be remanded for clarification. We remand with instructions to strike certain community custody conditions and clarify the community custody condition regarding contact with Richardson's children. We otherwise affirm.
FACTS
Ryan and Stephanie Richardson were married in March 2004. Stephanie had a daughter, A.C., from a previous marriage to a King County deputy sheriff. One evening in July 2007, when A.C. was twelve years old, she and Richardson watched a movie in the living room while lying on the hide-a-bed. Richardson gave A.C. melatonin pills because she was having difficulty sleeping. She eventually fell asleep on the hide-a-bed. She woke up on her side and felt Richardson pulling her toward him with his arms from behind. He was using his leg to hold up one of her legs. A.C. felt his hand pulling her underwear to the side and felt his penis touching the inside of her leg and the outside of her vagina. A.C. pulled away from him and went to the bathroom, then to her room. When she looked back, she saw Richardson sitting on the edge of the hide-abed.
Ryan Richardson will be referred to as "Richardson." Stephanie Richardson will be referred to as "Stephanie." No disrespect is intended.
Richardson had previously touched A.C. on one other occasion. A.C. suffered from dry skin and received help from family members in applying lotion to her back. One day in the fall of 2006, Richardson applied lotion to her back while A.C. was lying on her stomach, then he told her to turn over and proceeded to apply lotion to her stomach and chest. He then put his hand under A.C's pants and underwear and touched her vagina. A.C. got up and walked away.
Soon after the hide-a-bed incident, A.C. told her friend T.P. about it. A.C. told T.P. not to tell anyone else, saying she was scared that she would get into trouble and that no one would believe her. T.P. told her mother, Heidi P., who was friends with Stephanie Richardson. Heidi and T.P. went to A.C's house, where Heidi told Stephanie about the incident. Stephanie was upset and demanded that A.C. explain what had happened. Stephanie told A.C. that Richardson sometimes "does that stuff" in his sleep. She called Heidi later that night and said they were going to work it out within the family rather than notify authorities. She did not want to notify A.C.'s father right away.
Heidi reported A.C.'s disclosure to the King County Sheriff's Office. A.C. was interviewed by Carolyn Webster, a child interview specialist from the King County Prosecutor's Office, and Dr. Rebecca Wiester, a pediatrician. Detective Chris Knudsen interviewed Richardson in his squad car. Richardson acknowledged that he fell asleep with A.C. while watching a movie and said that he sometimes humped Stephanie in his sleep. Richardson stated that while he did not recall engaging in such behavior with A.C., A.C. was generally a good, honest kid and that if she said it happened, he had no reason not to believe that it did. He also acknowledged giving A.C. two melatonin pills. He denied any knowing or intentional sexual contact, stating that such an idea was "disgusting." Knudsen suggested that Richardson demonstrate he was telling the truth by speaking with Jason Brunson. Richardson was arrested and taken to the Regional Justice Center. He was being held in an interview room when Detective Wendy Billingsley saw him sitting with his face in his hands and began speaking with him. Richardson told Billingsley that he was not a rapist, and she asked him to tell her more. He said his wife had told him in the past that he attempted to have sex with her when he was asleep, so something like that may have happened with A.C.
Brunson conducted a polygraph test on Richardson. An order in limine prohibited mention of the polygraph but Brunson was permitted to testify as an "interview specialist." Brunson violated the order by mentioning during redirect examination that "[Richardson] felt okay to take the test." The trial court struck redirect in its entirety and instructed the jury to disregard it.
A few months later, A.C. wrote a letter to her advocate stating that Richardson had actually been asleep during the hide-a-bed incident and retracted her statement that Richardson had inserted his finger into her vagina during the lotion incident. The letter stated that she liked how things were without Richardson in the house and liked having her mother to herself. In the letter, she apologized for lying.
Richardson was charged with one count of child rape in the first degree and one count of child molestation in the second degree. A.C. testified at trial that Richardson had been awake during the hide-a-bed incident. When asked whether Richardson's finger went inside her vagina during the lotion incident, she initially responded, "I don't remember." The prosecutor then directed A.C. to the point of her interview with Carolyn Webster at which she stated that Richardson had put his finger inside her vagina. She later responded "yes" when asked if Richardson had put his finger in her vagina. She testified that she had written the recantation letter because she "wanted it to be over."
Richardson testified that he had been asleep during the incident on the hide-a-bed and that he did not remember anything. He testified that he was known to walk and talk in his sleep. He denied inserting his finger in A.C.'s vagina while applying lotion on her, accidentally or on purpose. He testified that A.C. rolled on top of his hand as he was getting ready to apply lotion to her back, causing his hand to come in contact with her vagina. He did not remember telling Brunson that his finger went inside A.C. but that it was accidental. He claimed that when he spoke with detectives, he was exhausted, partly from working a double shift the day before.
A jury found Richardson guilty as charged. He was sentenced to a standard-range sentence totaling 130 months to life in prison.
DISCUSSION
On appeal, Richardson claims that the testimony of various witnesses denied him a fair trial or, in the alternative, defense counsel was ineffective for failing to object to that testimony; cumulative error deprived him of a fair trial; the sentencing court exceeded its authority in entering certain community custody conditions; and the judgment and sentence should be remanded for clarification. We remand with instructions to strike certain community custody conditions and clarify the community custody condition regarding contact with Richardson's children. We otherwise affirm.
Testimony of Chris Knudsen, Wendy Billingsley, Jason Brunson, and Dr. Rebecca Wiester Manifest Error
Richardson claims that certain testimony of detectives Chris Knudsen and Wendy Billingsley, "interview specialist" Jason Brunson, and Dr. Rebecca Wiester amounted to improper opinion testimony on guilt and is manifest constitutional error that he may raise for the first time on appeal. He claims that this testimony denied him a fair trial. In support of this argument, he cites State v. Saunders, 120 Wn. App. 800, 86 P.3d 232 (2004) and State v. Demery, 144 Wn.2d 753, 30 P.3d 1278 (2001).
During Detective Chris Knudsen's testimony, the prosecutor asked how Brunson's interview of Richardson at the Regional Justice Center progressed. Knudsen testified:
Mr. Richardson's demeanor was a lot different than when I talked to him. He was quieter, you know, he was kind of leaning over in his seat as he talked, I'm sorry, as they talked. He at one point actually had put his face in his hands. And he initially, well, he told the same story that he had of what happened on the hide-a-bed to Jason Brunson as he had to me; that he didn't remember what happened, but didn't doubt what [A.C.] had to say about regarding the incident with the lotion. You know, he was a bit more honest than he had been earlier. And Jason Brunson asked him, you know, he was asked if he ever put his finger in [A.C.]'s vagina what would he say. And Mr. Richardson answered that he would say yes, but that he was adamant that it had been an accident and — (emphasis added).
During Detective Wendy Billingsley's testimony, the prosecutor asked about Richardson's demeanor when Billingsley spoke with him:
Q: In general what was [Richardson's] demeanor and what were his emotions such that you could see?
A: His emotions?
Q: Yes.
A: He was nervous. He was upset, which was very understandable, given the allegations; and he would — his emotions would peak and valley. So, he would — emotions were he was very upset and audibly crying and sniffling and he had tears on his face. Other times where he just looked very nervous or stressed out where he would be sweating. At other times I felt that he wasn't being as forthright or as honest. He wouldn't make eye contact with me. His voice would get softer. He would just keep his eyes turned away at times.
Q: What were you — what were you discussing when you noticed that, do you recall, when he was looking away from you?
A: Most of the time he would not make eye contact with me was when we would discuss very direct questions or my very direct, probing about potential of him accidentally touching his daughter's vaginal area when I use the spectrum example, when he talked about — when he had an initially blurted out that he may have, you know, accidentally approached his daughter or attempted to enter his penis in his daughter in his sleep, he seemed to be not as willing to make direct, full eye contact with me at those times. (emphasis added).
Brunson conducted a polygraph test on Richardson. He was permitted to testify as an "interview specialist." Describing the conversation after Richardson acknowledged that he may have touched A.C.'s vagina while applying lotion on her, Brunson testified:
Q: Did you wind up talking with [Richardson] about how likely you thought it was that he had accidentally placed his finger in his daughter's vagina?
A: Yeah, I expressed to him that I did not feel it was likely that it was an accidental slip.
Q: How did he respond to that?
A: He told me that he would never — he would never admit that he did it intentionally or purposefully.
Q: Had you, umm — so when you told him what you just told the jury, I don't think it was — doesn't sound likely that you would do that, was it exactly how you said it to him or was it more involved than that?
A: Yeah, basically, I just — it was more disbelief, you know, the way that I recall explaining this is that, you know, I have been a detective, I've investigated a lot of, you know, similar types of cases, and it didn't make sense to me that you're applying lotion to this girl's, you know, leg, she moved and your thumb slipped into her vagina. It didn't make sense to me. I thought that there was more to it than that.
Dr. Rebecca Wiester, who spoke with A.C. and Stephanie Richardson, testified as follows:
Q: I'm not going to ask you to go into all the details about what you learned that
[A.C.] had told Ms. Richardson, but did you have concerns with regard to how Ms. Richardson was responding to these allegations?
A: Well, I think that my concerns — this is certainly coming from the record, my concern was that the information that Mrs. Richardson was giving me was concerning for child sexual abuse, more so than an accidental event.
. . .
Q: Did you ever ask [A.C.], did she think that the finger causing pain to her vagina was an accident?
A: No.
Q: Why not?
A: When I'm taking a history from children, even if it's not forensic history, it's medical history, I don't — it is not — I want to ask the child what happened to them, what they remember, what they perceived, and to sort of specifically medically kind of what happened, I think that it is not, umm, I don't think that many children have any, know of what a motive may or may not be for adult behavior, so asking a child why or what happened, if they volunteer that, it's fine, but I don't ask them to explain motives for other people's behaviors.
Q: Certainly, if the touching of her vagina was entirely inadvertent, that would be something that would be relevant to you, wouldn't it, in trying to determine what recommendations to give the child and her mother; isn't that true?
A: If this — yes, if an incident were an accidental incident, certainly, it would be, umm, it would mean something very different.
Q: What would you need to hear to follow up to determine if it was inadvertent?
A: Well, I think in this kind of a setting with the history that the child has given me and the age that this child is, I can't, umm — I can't personally come up with an explanation that would make this an accidental event.
Q: I'm sorry, the information you're basing that conclusion on, umm, I assume that at least includes [A.C.]'s statements, correct?
A: Absolutely.
Q: Is that the universe of what you're considering?
. . .
A: I'm considering — I think that what [A.C.]'s telling me is, to me, the most important part of the information.
Q: Certainly you'd need to view it through your perception as a person who's experienced in this area; is that fair?
A: Correct.
Q: Was there anything that she told you that led you to believe, I need to investigate whether or not this was inadvertent touching?
A: Umm, well, I'm not — I think that — that, uh, like I said, inadvertent accidental touching, umm, I'm not sure, I mean, I asked — the information I had was from her mother who thought perhaps it was, and had reasons that she believed that it was, but I don't — I think that the description that [A.C.] had about what had happened, her age, the setting, umm, makes it very hard for me to have an explanation that would be accidental.
. . .
Q: What did you do after speaking to [A.C.]?
A: Then after speaking to [A.C.] then, umm, I spoke with her mother.
Q: Why did you speak with her mother?
A: Umm, I always speak with the parents after I evaluate children.
Q: What was your concern, or what concerns did you have at that point?
A: Well, umm, I usually speak with parents to let them know what my concerns are and to answer any questions that they hadn't asked previously. And if they've had an exam, to go over what the examination was and what it means.
What I — and I'll have to refer to my notes, what I discussed with her, umm, is that I felt differently about the description of the events than perhaps she did because of the information that I had from [A.C.], from talking to [A.C.], is that, umm, that I found the description by [A.C.] of what had gone on to be far more concerning for child sexual abuse than accidental events.
. . .
On cross-examination, the following testimony took place:
Q: Have you ever had a case where there was actually false accusations?
A: Umm, yes.
Q: And — let's see. And based on the information that you had, and her interview, you can't say for sure that she was or was not sexually assaulted; is that correct?
A: Umm, well, I think that's a difficult statement. I think what I can say is that the information that she gave me I would find to be concerning for child sexual abuse and not consistent with accidental events.
The State argues that Richardson fails to show manifest constitutional error and that this court should not consider these claims for the first time on appeal. It concedes that certain remarks were not proper but contends that Richardson fails to demonstrate that they had "practical and identifiable" consequences at trial, given the strength of the evidence and record as a whole. The State disputes the helpfulness of Saunders, noting that although the court there found that an officer's testimony that the defendant's answers "weren't always truthful" was not appropriate, the court nonetheless found the error to be harmless.
Specifically, Billingsley's statement "At other times I felt that he wasn't being as forthright or as honest," and Knudsen's statement "You know, he was a bit more honest than he had been earlier."
The State also argues that the Saunders court employed the wrong analysis, by finding the error manifest without a showing of identifiable consequences — an approach explicitly rejected by the Washington Supreme Court in State v. Kirkman, 159 Wn.2d 918, 934-35, 155 P.3d 125 (2007).
Under RAP 2.5(a), a party may raise manifest error affecting a constitutional right for the first time on appeal. This court, in State v. Lynn, 67 Wn. App. 339, 345, 835 P.2d 251 (1992), held:
In reviewing RAP 2.5 and [State v. Scott, 110 Wn.2d 682, 757 P.2d 492 (1988)], we conclude that the proper approach in analyzing alleged constitutional error raised for the first time on appeal involves four steps. First, the reviewing court must make a cursory determination as to whether the alleged error in fact suggests a constitutional issue. Second, the court must determine whether the alleged error is manifest. Essential to this determination is a plausible showing by the defendant that the asserted error had practical and identifiable consequences in the trial of the case. Third, if the court finds the alleged error to be manifest, then the court must address the merits of the constitutional issue. Finally, if the court determines that an error of constitutional import was committed, then, and only then, the court undertakes a harmless error analysis.
Constitutional error requires reversal unless it is harmless beyond a reasonable doubt. See State v. Banks, 149 Wn.2d 38, 44-45, 65 P.3d 1198 (2003). It is harmless beyond a reasonable doubt if the untainted evidence alone is so overwhelming as to necessarily lead to a finding of guilt. State v. Smith, 148 Wn.2d 122, 138-39, 59 P.3d 74 (2002).
On the specific issue of whether the admission of opinion testimony on an ultimate fact, without objection, is reviewable as a "manifest" constitutional error, the Washington Supreme Court has held:
"Manifest error" requires a nearly explicit statement by the witness that the witnessbelieved the accusing victim. Requiring an explicit or almost explicit witness statement on an ultimate issue of fact is consistent with our precedent holding the manifest error exception is narrow. . . . [It] is also consistent with this court's precedent that it is improper for any witness to express a personal opinion on the defendant's guilt.
Kirkman, 159 Wn.2d at 936-37, (internal citations omitted). In State v. Montgomery, 163 Wn.2d 577, 595, 183 P.3d 267 (2008), the same court held that certain trial testimony of police officers was improper opinion testimony on guilt, but was not manifest error that the defendant could raise for the first time on appeal. "[The manifest error] exception is a narrow one, and we have found constitutional error to be manifest only when the error caused actual prejudice or practical and identifiable consequences." Id. at 595. The court noted, "Important to the determination of whether opinion testimony prejudices the defendant is whether the jury was properly instructed." Id. It pointed out that there was no written jury inquiry or other evidence that the jury was unfairly influenced and explained that it presumed the jury followed the court's instructions absent evidence to the contrary. Id. at 596. Once it found the error was not manifest, the court inquired no further. See id.
We conclude that certain statements contained in the testimony of Wendy Billingsley, Jason Brunson, and Chris Knudsen constituted improper opinion testimony. We also conclude, however, that the improper testimony does not rise to the level of manifest constitutional error that Richardson may raise for the first time on appeal, because he does not demonstrate actual prejudice or point out any practical and identifiable consequences that the testimony had on the trial. Moreover, we note that even if any of the testimony at issue was manifest error, such error was harmless beyond a reasonable doubt because the untainted evidence was "so overwhelming that it necessarily leads to a finding of guilt." Smith, 148 Wn.2d at 138-39 (citing State v. Gilroy, 204 Wn.2d 412, 426, 705 P.2d 1182 (1985). We will address the witnesses' testimony in turn. The testimony of Dr. Rebecca Wiester was not an explicit or near-explicit opinion on guilt or veracity. "[T]estimony that is not a direct comment on the defendant's guilt or on the veracity of a witness, is otherwise helpful to the jury, and is based on inferences from the evidence is not improper opinion testimony." City of Seattle v. Heatley, 70 Wn. App. 573, 578, 854 P.2d 658 (1993). Richardson argues that Wiester's testimony constituted expert testimony that sexual abuse occurred, amounting to a direct opinion on guilt. But "[t]he fact that an opinion encompassing ultimate factual issues supports the conclusion that the defendant is guilty does not make the testimony an improper opinion on guilt." Heatley, 70 Wn. App. at 579. Wiester's testimony may have contradicted Richardson's defense that he accidentally touched A.C. during the lotion incident, but she did not testify directly that she believed that Richardson was guilty or that A.C. was telling the truth. Instead, her testimony related her concerns and observations and was based on her inferences from the evidence: her conversations with A.C. and Stephanie. Moreover, one of Wiester's remarks was elicited on cross-examination.
Certain statements of Billingsley, Knudsen, and Brunson amounted to improper opinion testimony, but do not constitute manifest error that Richardson may raise for the first time on appeal. The State concedes that testimony from Billingsley and Knudsen may have been improper opinion testimony, and we agree. We also conclude that Brunson's testimony that he expressed "disbelief" regarding Richardson's account of the incident, that it "didn't make sense" to him, and that he "thought that there was more to it than that" offered an improper opinion on Richardson's veracity. However, Richardson does not show that any of these three witnesses' testimony "caused actual prejudice or practical and identifiable consequences." Montgomery, 163 Wn.2d at 595. As in Montgomery, the trial court instructed the jury members that they were "the sole judges of the credibility of each witness" and were "not bound" by the opinions of expert witnesses. See Montgomery, 163 Wn.2d at 595-96. Regarding Billingsley's testimony, Richardson contends that in his case it went unchallenged, whereas in Montgomery the testimony was challenged on cross-examination. Montgomery, 163 Wn.2d at 588. But a review of the record shows that counsel questioned her several times about Richardson's adamant and repeated denials of intentionally putting his finger inside A.C.'s vagina and his statement of being asleep during the alleged incident on the couch. This cross-examination countered the inference created by the improper testimony.
We also conclude that even if any of the witnesses' testimony was manifest error, Richardson's claim fails because such error was harmless beyond a reasonable doubt. Although the case turned on the credibility of the witnesses, Richardson's credibility was highly damaged because critical assertions he made were contradicted by other witnesses. First, Richardson was the only person who testified that A.C. had dry skin everywhere on her body. According to A.C., she had dry skin on her back and the back of her arms, but not on her legs, chest, or stomach. According to A.C.'s mother, Stephanie Richardson, A.C. only received Stephanie's help in putting lotion on her back, not anywhere else. Thus, Richardson's explanation for why he had applied lotion to the front of A.C.'s body during one incident — including her stomach, legs, chest, and upper thighs — was not credible. Second, Richardson claimed that immediately after the lotion incident, he talked to Stephanie about what had happened and told her that she needed to check on A.C. to make sure A.C. was fine. He testified that Stephanie spoke with A.C. for approximately five minutes about the incident and that afterward, Stephanie told him that A.C. understood that what happened had been an accident. Yet A.C. testified that the first time she spoke about that incident was with Carolyn Webster. Stephanie testified that she could not recall having such a conversation with Richardson, nor could she remember having a conversation with A.C. about Richardson accidentally touching her while applying lotion. Third, according to Richardson, he was exhausted when he spoke with detectives because he worked the double shift the day before and had slept a total of two or three hours over the two previous days. This was one of the explanations he gave for why he would have admitted to accidentally placing his finger inside A.C.'s vagina when at trial he claimed that he had not intentionally or accidentally done such a thing. But the evidence from his employer was that he did not work two shifts the day before he spoke with detectives. Fourth, Stephanie denied having to place a pillow between herself and Richardson when they slept together, something he claimed she did because of his alleged tendency to attempt to have sex with her in his sleep. Additionally, any evidence of A.C.'s motive to lie about the two incidents was equivocal, and was overwhelmed by evidence that she stayed quiet about the first incident for months, told her friend T.P. about the second incident only after obtaining T.P.'s promise not to tell anyone, was generally well-behaved, and had a good relationship with Richardson. Furthermore, during the investigation, Richardson told officers that he applied lotion to A.C. up to her crotch area and that he accidentally inserted his finger inside A.C.'s vagina. At trial, he denied that he did either of these things. But he did not claim that he was subjected to interrogation that compelled him to say things against his will. He testified, for instance, that during his interview with Brunson, the latter did not yell, threaten, assault, or accuse him. Finally, the State's closing argument focused on the credibility of A.C.'s and Richardson's accounts, and did not emphasize the testimony at issue. Thus, even if any of the witnesses' testimony was constitutional error, it was harmless beyond a reasonable doubt.
Ineffective Assistance
To prevail on an ineffective assistance claim, Russell must satisfy the two-prong test under Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052, 80 L.Ed.2d 674 (1984). If a defendant fails to establish either prong, the court need not inquire further. State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563 (1996). First, he must show that trial counsel's representation fell below an objective standard of reasonableness. Id. Second, he must show that the deficient performance was prejudicial. Id. Defense counsel's failure to object constitutes ineffective assistance where (1) the failure was not a legitimate strategic decision, (2) an objection likely would have been sustained, and (3) the jury verdict would have been different had the evidence not been admitted. In re Personal Restraint of Davis, 152 Wn.2d 647, 714, 101 P.3d 1 (2004).
Richardson argues that even if the testimony of Knudsen, Wiester, Brunson, and Billingsley was not manifest error, defense counsel was ineffective for failing to object. The State argues that this claim fails because defense counsel's decision not to object was a tactical decision, and because he cannot demonstrate prejudice. It argues that he cannot establish that an objection would have been sustained, and that even with regard to the concededly improper remarks, he fails to establish a reasonable probability that the outcome of the trial would have been different had the remarks been stricken. It contends that the evidence against Richardson was "very strong and compelling" and that the jury was able to judge his credibility firsthand because he testified. Id.
Regarding Wiester's testimony specifically, the State argues that defense counsel had legitimate tactical reasons not to object. It points out that counsel obtained a concession that Wiester saw cases involving false accusations and that she answered counsel's question whether she knew for a fact A.C. had been abused by saying that A.C.'s account gave her cause for concern. The State contends this amounted to answering the question in the negative, as counsel intended.
We agree with the State insofar as Richardson does not demonstrate that the jury verdict would have been different had the witnesses' testimony been stricken. The evidence against Richardson, even without the testimony at issue, was substantial. His claim fails under Strickland's prejudice prong, and we do not inquire into whether counsel's performance was deficient.
Testimony of Heidi P. and Melinda Larrison
Richardson claims that defense counsel provided ineffective assistance by failing to object to certain testimony of Heidi P. and Melinda Larrison. He argues that "[t]he jury could easily draw an inference from such testimony that these witnesses believed Richardson was guilty." Furthermore, he argues that "[e]ven assuming Stephanie's reaction to A.C.'s disclosures was pertinent to a fact of consequence at trial, Larrison and Heidi P.'s opinion on Stephanie's reaction was irrelevant and unfairly prejudicial."
Stephanie Richardson's friend Heidi P. testified as follows:
Q: Were you aware of Stephanie's opinion with regard to the charges in the month following her finding out what happened?
A: Yes. I was still in communication with her at that time.
Q: In general was she consistent with what she knew; how she felt about the charges?
A: No.
Q: Can you describe what she felt going back and forth?
A: She went back and forth from believing that this actually happened and it was intentional on Ryan's part and believing that it was an accident.
Q: Did there come a time when you stopped associating with her back there and why?
A: When I found out that she was going to visit him in jail I quit communicating with her.
Social worker Larrison testified:
Q: Why was this [CPS] dependency file started [on A.C.]?
A: The dependency was filed based on the alleged abuse of [A.C.].
Q: And why was there ongoing involvement by CPS with [A.C.]?
A: There was a question as to whether or not [A.C.]'s mom could protect her.
Q: What was the basis of concern for trying to — that [A.C.]'s mom [might] not be protecting her? Was it that she was physically incapable of protecting her or ?
A: According to the record there Ms. Richardson's behavior around the investigation did not indicate an emotional support of her daughter.
. . .
Q: When you deal with these [CPS] cases do you have in person contact with the parents of the children who suffered this abuse?
A: I do.
Q: Is that what you are basing what you were going to say about, well, normally how do mothers react when their children have this type [of], suffer this type of abuse?
A: My experience with parents and not just mothers, fathers as well, if it's a — if the abuse has occurred by a stranger, both parents could have the same reaction and the moral outrage that I was talking about, the sense of unfairness. Why does my daughter have to go through that? What happens now? Seeking out counseling and just making sure that their child is taken care of.
Q: What was your concern with regard to Ms. Richardson?
A: I got no response from her literally whatsoever. . . .
The State argues that this evidence was admissible, because A.C.'s credibility and the issue of whether her letter recanting her account of abuse was truthful were important issues at trial. Therefore, it was entitled to put forth evidence that A.C.'s mother was angry with her and believed Richardson did not knowingly abuse A.C., as this was evidence explaining why A.C. wrote the recantation letter. Where this evidence was admissible, the State argues, Richardson cannot demonstrate ineffective assistance for failure to object.
We conclude that defense counsel was not ineffective. First, the testimony was admissible. The State's case relied heavily on A.C.'s credibility. The issues of why she wrote the recantation letter and whether her remarks at trial were more believable than her statements in the letter were important, and the probative value was not substantially outweighed by the danger of unfair prejudice. Nor did Heidi P. or Larrison offer improper opinion testimony on an ultimate issue of fact. Moreover, even if the evidence was not admissible and even if an objection was likely to have been sustained, Richardson fails to show that the verdict would have differed had the remarks been stricken, in light of the weight of the evidence against him.
Cumulative Error
Cumulative errors that by themselves do not individually require reversal may nonetheless deny a defendant a fair trial. State v. Perrett, 86 Wn. App. 312, 322, 936 P.2d 426 (1997). Reversal is warranted when the cumulative effect of errors affects the trial outcome. State v. Russell, 125 Wn.2d 24, 93, 882 P.2d 747 (1994). Richardson claims that the testimony of the foregoing witnesses and defense counsel's failure to object constituted cumulative error that deprived him of a fair trial. The State points out that reversal due to cumulative error is an extraordinary remedy.
We reject this claim. Even if one or more of the witnesses' remarks were error, they were not likely to have affected the trial outcome, where A.C. testified that Richardson inserted his finger inside her vagina and was awake during the incident on the hide-a-bed and Richardson testified at length in his own defense. The jury was able to weigh the credibility of the various witnesses. We also note that our analysis regarding why any error in the testimony of Billingsley, Knudsen, Brunson, and Wiester was harmless beyond a reasonable doubt applies here.
Community Custody Provisions
A trial court imposing conditions of community custody must comply with former RCW 9.94A.700 and also, where Richardson was convicted of sex offenses, former RCW 9.94A.712. "Under RCW 9.94A.712(6)(a), the trial court may order the defendant to 'perform affirmative conduct reasonably related to the circumstances of the offense, the offender's risk of reoffending, or the safety of the community.' Under RCW 9.94A.700(5)(e), the trial court may also order the defendant to 'comply with any crime-related prohibitions.'" State v. O'Cain, 144 Wn. App. 772, 775, 184 P.3d 1262 (2008).
RCW 9.94A.700 was recodified as RCW 9.94B.050 by Laws 2008, ch. 231, § 56.
RCW 9.94A.712 was recodified as RCW 9.94A.507 by Laws 2008, ch. 231, § 56.
The trial court ordered Richardson to undergo a substance abuse evaluation at his own expense and follow any recommended treatment if directed to do so by his sexual deviancy provider or CCO. It also ordered him not "'to purchase, possess, or use alcohol (beverage or medicinal), and submit to testing and reasonable searches of your person, residence, property and vehicle by the [CCO] to monitor compliance.'" Finally, it ordered him not to access the internet without the prior approval of his CCO and treatment therapist. Richardson argues that Condition 18 and the portions of Condition 20 that involve restrictions on alcohol are invalid and should be stricken. He contends that there was no evidence that he consumed alcohol or controlled substances, let alone evidence that they contributed to the commission of the charged offenses. Richardson also objects to Condition 27 because there was no evidence of a connection between the offenses and his internet use.
The State agrees that the trial court lacked authority to impose the portions of Condition 20 prohibiting the purchase or possession of alcohol, and that Condition 27 is not "statutorily authorized as worded." It agrees to strike Condition 27 and Condition 20 in part, leaving intact the prohibition on use of alcohol. The State argues that Condition 18 is valid and should not be stricken. It contends that the DOC and the ISRB are authorized to impose conditions of community custody, whether or not such conditions are crime-related. It points out that this condition simply authorizes the DOC to take future action that is already within its power, and is contingent upon proper action by the DOC. The State concedes, nonetheless, that this condition is superfluous.
The State requests that this court strike any provisions without prejudice so as not to disturb the DOC's authority to impose any conditions it deems necessary to protect community safety.
We remand with directions to strike Conditions 27 and 18 in their entirety, and to modify Condition 20 insofar as it prohibits the purchase and possession of alcohol. Condition 18 is stricken because it is superfluous. Regarding Condition 20, the State is correct in that former RCW 9.94A.700 (recodified as RCW 9.94A.700(5)(d)) permits the court to order an offender not to consume alcohol. Our directions should not be interpreted to preclude DOC from imposing any other conditions authorized by statute.
Community Custody Provision Regarding Contact with Minors
Section 4.6 of the judgment and sentence states that Richardson is prohibited for life from contact with minors without the supervision of a responsible adult with knowledge of his conviction, but excludes Richardson's children from this prohibition. However, Appendix H of the judgment and sentence includes a community custody prohibition on contact with the victim or any minor-age children without the prior approval of his CCO. There is no stated exemption for Richardson's children. The State agrees that the inconsistency requires clarification as to whether the condition should also contain an exception for Richardson's children. We remand with instructions to clarify this condition.
The court also noted this exception in its oral rulings.
We remand with instructions to strike, clarify and modify community custody conditions as specified above. We otherwise affirm.
WE CONCUR: