Opinion
No. 25064-4-III.
April 10, 2007.
Appeal from a judgment of the Superior Court for Ferry County, No. 05-1-00019-8, Allen Nielson, J., entered March 17, 2006.
Affirmed by unpublished opinion per Kato, J. Pro Tem., concurred in by Schultheis, A.C.J., and Kulik, J.
Tony L. Strode appeals his conviction of one count of third degree child rape. He contends the court erred by admitting hearsay statements and he was denied effective assistance of counsel. Mr. Strode also raises two issues in his statement of additional grounds for review. We affirm.
On April 25, 2003, Police Chief Nicholas Merritt was asked to investigate a complaint from W.B.'s foster parent, Don Kuchenmeister, involving Mr. Strode and W.B. Chief Merritt set up an initial interview between W.B. and a detective. At the interview, W.B. told the detective that she lived with Mr. Strode and that he had not done anything to make her feel uncomfortable. Because there was no disclosure from W.B., police closed the case as inactive.
In March 2005, W.B. told police that Mr. Strode had molested her. Police set up an interview between W.B. and a forensic interviewer. At the interview, W.B. disclosed that Mr. Strode had sexual intercourse with her. He was charged with one count of third degree child rape. The case proceeded to jury trial.
At trial, W.B. testified she moved in with Mr. Strode in 2002. She knew Mr. Strode's daughter, T.S. W.B. said she was 14 years old. The first week she was living with Mr. Strode, he asked her to have sex with him. W.B. told Mr. Strode "no." Report of Proceedings (RP) at 35.
In May 2002, W.B. said she had sex with Mr. Strode in his living room for "10 to 20 minutes." RP at 36. She did not want to have sex with him.
The next day she told T.S.
The State then called T.S. to testify. Over objection from defense counsel, T.S. testified that W.B. had told her she had sexual intercourse with Mr. Strode. T.S. said W.B. told her the day after it happened.
The State also called Joyce McCamey to testify. Ms. McCamey testified that in 2002, W.B. told her she was having sexual intercourse with Mr. Strode.
Defense counsel objected to Ms. McCamey's testimony as hearsay.
The jury convicted Mr. Strode as charged. This appeal follows.
Mr. Strode contends the court erred when it allowed T.S. and Ms. McCamey to testify that W.B. said she had sexual intercourse with him. He argues that this testimony constituted inadmissible hearsay. Mr. Strode cites ER 801(d)(1)(ii), which states in relevant part:
A statement is not hearsay if —
(1) Prior Statement by Witness. The declarant testifies at the trial or hearing and is subject to cross examination concerning the statement, and the statement is . . . (ii) consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive.
He argues the statements were hearsay because there was no inference of fabrication by W.B. to allow such testimony to be admissible. But here, W.B. testified before T.S. and Ms. McCamey took the stand. During cross examination, defense counsel asked W.B. questions designed to show that she fabricated her story. Defense counsel asked W.B. why she did not report Mr. Strode to the police until 2005 and why she did not make any comments to anyone until 2005 about having intercourse with Mr. Strode. Defense counsel asked W.B. why she did not tell the police in 2002 about Mr. Strode wanting to Page 4 have sex with her when she reported the drug use of him and his son. As a result, the statements from T.S. and Ms. McCamey were used to show W.B.'s prior consistent statements to rebut any allegation of fabrication. This testimony was admissible. The court did not err by admitting the statements from T.S. and Ms. McCamey.
Mr. Strode next contends he was denied effective assistance of counsel. During trial, Chief Merritt testified as follows:
[Prosecutor]: In April of 2003, did you investigate a disclosure regarding [W.B.] and Mr. Tony Strode?
[Chief Merritt]: Yes I did.
[Prosecutor]: And how did that matter come to your attention?
[Chief Merritt]: I had received a complaint from foster parent Don Kuchenmeister.
[Prosecutor]: [W.B.] didn't complain to you?
[Chief Merritt]: No.
[Prosecutor]: As a result of receiving that complaint, what did you do?
[Chief Merritt]: At that time, without a report or an actual disclosure from a victim, I set up an interview here in-county with Detective Sharp who is a state certified forensic interviewer.
RP at 79.
[Prosecutor]: Did the victim make a disclosure at a subsequent time?
[Chief Merritt]: Yes she did.
[Prosecutor]: And when was that?
[Chief Merritt]: It was in March of 2005.
[Prosecutor]: And as a result of that disclosure, what did you do?
[Chief Merritt]: That disclosure, because the victim had actually made a disclosure of an inappropriate touching, molestation, we set up an interview with Karen Winston in Spokane.
RP at 81.
[Prosecutor]: Now, when the interview occurred, was a complete disclosure made?
[Chief Merritt]: Yes there was.
RP at 82. Defense counsel did not object to Chief Merritt's testimony.
Mr. Strode argues he was denied effective assistance when his counsel failed to object to Chief Merritt's hearsay testimony. To establish ineffective assistance, Mr. Strode 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 is met by showing counsel's performance was not reasonably effective under prevailing professional norms. Hendrickson, 129 Wn.2d at 77. The second element 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) (citing Strickland, 466 U.S. at 694). If either element of the test is not satisfied, the inquiry ends. Hendrickson, 129 Wn.2d at 78.
There is a strong presumption counsel's performance was reasonable. Thomas, 109 Wn.2d at 226. 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.
"The decision of when or whether to object is a classic example of trial tactics. Only in egregious circumstances, on testimony central to the State's case, will the failure to object constitute incompetence of counsel justifying reversal." State v. Madison, 53 Wn. App. 754, 763, 770 P.2d 662 (citing Strickland, 466 U.S. 668), review denied, 113 Wn.2d 1002 (1989).
Mr. Strode's counsel did not object to Chief Merritt's testimony. Based on the record, however, the failure to object was a tactical decision. The defense's theory of the case was that the crime did not occur because it took W.B. three years to report her accusations. On cross examination, counsel asked Chief Merritt about W.B.'s nondisclosure in 2002 and her subsequent disclosure in 2005 in an attempt to bolster his theory of the case. Moreover, there was no showing of prejudice. Chief Merritt's testimony was not the only evidence linking Mr. Strode to the crime. Mr. Strode has failed to show that, without Chief Merritt's statements, the outcome of the trial would have been different. Defense counsel's failure to object was not ineffective assistance.
In his statement of additional grounds for review, Mr. Strode contends that W.B.'s testimony at trial was inconsistent. But "[c]redibility determinations are within the sole province of the jury and are not subject to review." State v. Myers, 133 Wn.2d 26, 38, 941 P.2d 1102 (1997) (citing State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990)). We, therefore, cannot review the issue. Id.
Mr. Strode also contends he requested new counsel, but his request was denied. But nothing in the record supports this claim. Because it deals with information outside of the record, the claim must be brought in a personal restraint petition.
See State v. McFarland, 127 Wn.2d 322, 338 n. 5, 899 P.2d 1251 (1995).
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, A.C.J., Kulik, J., concur.