Opinion
No. 25183-3-II.
Filed: December 19, 2001. UNPUBLISHED OPINION
Appeal from Superior Court of Cowlitz County, No. 99-1-00455-5, Hon. Randolph Furman, October 12, 1999, Judgment or order under review.
Counsel for Appellant(s), James K. Morgan, Attorney At Law, 1555 3rd Ave Ste A, Longview, WA 98632-3228.
Counsel for Respondent(s), Susan I. Baur, Cowlitz County Prosecuting Attorney, Hall of Justice, 312 S.W. 1st, Kelso, WA 98626.
Daniel Salamanca appeals his conviction of second degree child molestation, asserting that the trial court erred (1) in admitting his written statement, which he claims he made under duress; (2) in admitting the examining physician's testimony about the victim's statements; and (3) in denying his motion for a mistrial after the victim mentioned his gang affiliation. He also argues insufficiency of the evidence of molestation. Finding no reversible error, we affirm.
FACTS
Salamanca agreed to give 13-year-old J.R. a tattoo. At the time, they were in J.R's basement with several other young people. J.R. then put on her swimsuit bottom and told Salamanca that she wanted the tattoo on her upper right thigh just below her panty line.
Salamanca told the others to leave because they made him nervous. Meanwhile, J.R. knelt on the floor with her forearms on a couch. As Salamanca taped the image of a heart onto J.R.'s leg, he rubbed J.R.'s buttocks and then "shoved" his fingers into her vagina.
When J.R. asked him what he thought he was doing, Salamanca put his fingers in his mouth and said, "Sh." Report of Proceedings (8/9/99) (RP) at 29. J.R. then put shorts on over her swimsuit and ran out of the basement and across the street where her friend was waiting for a turn to get a tattoo. When J.R.'s brother heard what had happened, he told his parents who reported the incident to the police.
When the police interviewed Salamanca a couple of weeks later, he confirmed that J.R. had asked for a heart tattoo on her "butt" and that he asked everyone to leave because he was nervous and did not want to mess up the tattoo. According to Salamanca's oral statements, J.R. was naked from the waist down when she knelt in front of the couch. Salamanca admitted that he felt her "butt" and that he was getting "turned on"; he thought J.R. was getting "turned on" as well and that she was okay with the touching. He initially denied touching J.R.'s vagina but later admitted that he may have touched it a "little."
Salamanca eventually agreed to give the interviewing officer a written statement; but he asked the officer to write it for him. The officer wrote down what Salamanca said, read the statement back to him, and had him read the finished statement. Salamanca agreed that it was correct and he signed the statement in which he admitted that he felt J.R.'s buttocks and that he got "turned on." He did not state that he touched J.R.'s vagina.
The State charged Salamanca with one count of second degree rape of a child and one count of second degree child molestation. After a CrR 3.5 hearing, the trial court found that Salamanca's oral and written statements to the police were voluntary and admissible at trial. The jury did not reach a verdict on the child rape count but found Salamanca guilty on the child molestation charge.
DISCUSSION I. Voluntary Confession
Salamanca contends that his statements were involuntary because the interviewing officer obtained them under duress, threatening to put him in prison for 10 years if he did not sign a written statement and promising to release him if he did.
To determine whether a confession is coerced, the trial court looks to the totality of the circumstances including the defendant's condition, the defendant's mental abilities, police conduct, and any promises or misrepresentations. State v. Broadaway, 133 Wn.2d 118, 132, 942 P.2d 363 (1997) (citing State v. Rupe, 101 Wn.2d 664, 678-79, 683 P.2d 571 (1984)).
There must also be a causal relationship between the promise and the confession indicating that the defendant's "will was overborne." Broadaway, 133 Wn.2d at 132.
Salamanca does not assign error to the trial court's findings of fact entered after the CrR 3.5 hearing. Thus, they are verities on appeal. Broadaway, 133 Wn.2d at 131.
The trial court found that the officer properly advised Salamanca of his Miranda rights; that Salamanca acknowledged and understood those rights but was willing to talk to the police; and that the officer did not promise to release Salamanca if he signed a written statement. Based on these findings, the court concluded that Salamanca understood his Miranda rights, that he waived those rights, and that he "freely, voluntarily, and intelligently" provided statements "without improper inducement." Clerk's Papers at 61.
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
Because Salamanca fails to challenge the trial court's finding that the officer did not promise to release him if he signed a statement, his claim of error fails. See Broadaway, 133 Wn.2d at 132-33 (defendant's failure to challenge trial court's finding that there was no promise inducing the defendant's confession was fatal to claim, but court reviewed claim because of previous confusion regarding need to challenge findings entered after a CrR 3.5 hearing). Further, substantial evidence supports the trial court's findings regarding the lack of any promise or other improper inducement. See Broadaway, 133 Wn.2d at 131 (challenged findings of fact are verities if supported by substantial evidence). The interviewing officer testified that he read Salamanca the Miranda rights at their first contact; that Salamanca independently reviewed and then signed the form, indicating a willingness to speak to the police; and that the officer neither threatened Salamanca nor made any promises to induce his oral and later written statements.
The fact that Salamanca testified about promises and threats does not change our analysis. The trial court is the judge of witness credibility and, as such, could choose to believe the officer and disbelieve Salamanca. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990). Thus, the trial court did not err in admitting Salamanca's statements.
II. Sufficiency of the Evidence
Salamanca argues that there is no evidence to support the child molestation conviction other than the evidence supporting the child rape charge. He contends that because the jury failed to find him guilty of rape, it could not consider evidence of digital penetration to support the molestation charge.
In a sufficiency challenge, we must view the evidence in the light most favorable to the State to determine whether any rational trier of fact could have found the crime's essential elements beyond a reasonable doubt. State v. Joy, 121 Wn.2d 333, 338, 851 P.2d 654 (1993). We must draw all reasonable inferences from the evidence in the State's favor and interpret them most strongly against the defendant. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). Credibility determinations are the sole province of the trier of fact. Camarillo, 115 Wn.2d at 71.
To convict Salamanca of child molestation, the State had to prove that he had sexual contact with J.R., that J.R. was at least 12 years old but younger than 14, that Salamanca was at least 36 months older than J.R., and that they were not married. See RCW 9A.44.086. The only challenged element, "sexual contact," is defined as "any touching of the sexual or other intimate parts of a person done for the purpose of gratifying sexual desire of either 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). J.R. testified that Salamanca rubbed her buttocks and inserted his fingers into her vagina. Salamanca admitted to police that he felt J.R.'s buttocks, that he was getting "turned on," and that he may have touched J.R.'s vagina a "little." Either alone was sufficient to support the jury's guilty verdict on the child molestation charge. See State v. Whisenhunt, 96 Wn. App. 18, 24, 980 P.2d 232 (1999) (sufficient proof of sexual gratification where defendant had no caretaking role and he touched child's genital area under her skirt but over her body suit on three separation occasions).
III. ER 803(a)(4) — Physician's Testimony
Salamanca asserts that the trial court erred in admitting the examining physician's testimony about J.R.'s statements to him. He contends that the testimony did not satisfy ER 803 (a)(4) because J.R.'s examination was normal and the physician did not recommend any treatment. Salamanca also challenges J.R.'s statement to the physician that the person who touched her threatened her. Finally, he challenges a comment on J.R.'s veracity.
ER 803(a)(4), the "medical diagnosis or treatment" exception to the hearsay rule, provides that:
The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
. . . .
. . . Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.
This exception is not limited to physical injuries; it applies to all statements that are "reasonably pertinent to diagnosis or treatment." State v. Woods, 143 Wn.2d 561, 602, 23 P.3d 1046, cert. denied, 122 S.Ct. 374 (2001). It also applies to treating physicians and physicians who are consulted for the purpose of enabling the physician to testify. In re Dependency of Penelope B., 104 Wn.2d 643, 656, 709 P.2d 1185 (1985).
Because J.R.'s statements were reasonably pertinent to diagnosis or treatment, the trial court did not err in admitting them under ER 803(a)(4). See Woods, 143 Wn.2d at 602 (determination of admissibility under this exception reviewed for abuse of discretion). Salamanca challenges the admission of J.R.'s statement to the physician that the person who touched her also threatened her. He seeks to limit the ER 803(a)(4) exception to physical injuries and physical treatment. But in sexual abuse cases, the patient's welfare includes "mental, physical health and well being." RP at 5. See also In re Dependency of M.P., 76 Wn. App. 87, 92, 882 P.2d 1180 (1994) ("Those who treat child abuse must be attentive to emotional and psychological injuries as well as physical harm."). The physician needed to assess J.R.'s mental state to determine her psychological needs. See Woods, 143 Wn.2d at 601-02 (statements to emergency room physician that perpetrator showed victim her friend's beaten body and then threatened to give her the same treatment was relevant to assessing need for counseling).
Finally, Salamanca contends that the physician improperly commented on J.R.'s veracity. The physician explained that a follow-up examination for J.R. was unnecessary because J.R.'s description of the incident did not suggest the possibility of a sexually transmitted disease or pregnancy. He then testified that he "got the sense that [J.R.] was being quite frank with me." RP at 12. Although it is misconduct for a prosecutor to elicit a witness's opinion as to whether another witness is telling the truth, Salamanca failed to object to the physician's explanation of his reason for not recommending a follow-up examination. State v. Jerrels, 83 Wn. App. 503, 507, 925 P.2d 209 (1996). Although Salamanca had earlier made a continuing objection to the physician's testimony about J.R.'s statements, this was insufficient to alert the trial court to his objection to the physician's appraisal of J.R.'s candor. As the purpose of an objection is to give the court an opportunity to prevent or cure error, the objection here was inadequate to accomplish this purpose. See State v. Guloy, 104 Wn.2d 412, 422, 705 P.2d 1182 (1985) (party may assign error in appellate court only on specific ground of evidentiary objection made at trial). See also State v. Avendano-Lopez, 79 Wn. App. 706, 710, 904 P.2d 324 (1995) (purpose of requiring specific objection is to offer trial court the opportunity to correct any error). Further, as Salamanca has failed to show that a curative instruction would not have obviated any resulting prejudice, he has waived his objection. See Jerrels, 83 Wn. App. at 508 (misconduct reversible error absent objection only if material to trial's outcome and could not have been remedied).
IV. Gang Affiliation Testimony
Salamanca also contends that the trial court erroneously denied his motion for a mistrial after J.R. mentioned his alleged gang affiliation.
We review a trial court's decision to deny a motion for a mistrial for an abuse of discretion. State v. Lewis, 130 Wn.2d 700, 707, 927 P.2d 235 (1996). The court should grant a mistrial "only when the defendant has been so prejudiced that nothing short of a new trial can insure that the defendant will be tried fairly." Lewis, 130 Wn.2d at 707. "The trial judge is best suited to judge the prejudice of a statement." Lewis, 130 Wn.2d at 707.
Here, J.R. testified as follows:
[State] Did you ever tell your mom and dad what happened?
[J.R.] No.
[State] Why not?
[J.R.] Because I was afraid they would say something to [Salamanca] and he'd come after me.
[State] What made you think he would come after you?
[J.R.] Because he had talked about being involved in gangs and stuff.
RP at 30-31. The trial court immediately sustained Salamanca's objection.
The court later denied his motion for a mistrial but it instructed the jury to disregard the testimony.
Salamanca has not shown that the trial court abused its discretion in denying his mistrial motion. The challenged testimony was brief and somewhat ambiguous; the trial court immediately sustained Salamanca's objection; and the court instructed the jury to disregard the statement. See State v. Southerland, 109 Wn.2d 389, 391, 745 P.2d 33 (1987) (court presumes jury follows its instructions). Given this record and the trial court's superior ability to gauge the prejudicial effect of such a statement, there is no indication that a new trial was necessary. Additionally, the record does not support Salamanca's suggestion that the State intentionally elicited this improper testimony. The prosecutor told the court that J.R. had previously told her something different when she asked why J.R. was afraid of Salamanca and, thus, she did not expect the gang affiliation answer. The State's explanation is reasonable and the trial court did not find any intentional improper behavior.
Finding no error, we affirm.
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, P.J. and HOUGHTON, J. concur.