Opinion
No. 36602-9-II.
April 21, 2009.
Appeal from a judgment of the Superior Court for Pierce County, No. 05-1-02947-3, Vicki L. Hogan, J., entered July 13, 2007.
Affirmed by unpublished opinion per Armstrong, J., concurred in by Penoyar, A.C.J., and Bridgewater, J.
UNPUBLISHED OPINION
Jason Alan Swan appeals his conviction of first degree child molestation, arguing that (1) his counsel ineffectively represented him, (2) the trial court erred in admitting hearsay evidence, (3) the evidence was insufficient to support his conviction, and (4) cumulative error entitles him to relief. Finding no error, we affirm.
FACTS
Swan has two daughters with Shawnte Papac. One of them, M.P., was born on December 24, 1994. During the summer of 2004, M.P. visited Swan every other weekend at his aunt's house. During these weekends, M.P. shared a bed with Swan. Swan sometimes straddled M.P. while they were in bed and "humped" her, pressing his pelvis into hers while both were clothed.
During the final visit, Swan and M.P. were in bed watching television. Swan began rubbing M.P.'s back and slipped his hand down to her shorts. He moved his hand under her underpants, touched her buttocks, and then fondled her vagina. After he put his index finger into M.P.'s vagina and wiggled it, she pretended that she had been sleeping and was just waking up. Swan stopped touching M.P. and she moved to the floor, where she slept for the rest of the night.
The next day, M.P. told her mother about the incident. Papac reported it to Child Protective Services (CPS) and took M.P. to the hospital for an examination. Pediatric practitioner Michelle Breland found no physical evidence of sexual abuse, but M.P. told Breland that Swan "was basically humping me" and that he had touched her genital area. 4 Report of Proceedings (RP) at 131-32, 137. Magdeline Wettig, a CPS case worker, also interviewed M.P. M.P. told Wettig that her father had been humping her for about 12 weeks and that he had touched her private area once. Keri Arnold-Harms, a child interviewer in the Pierce County prosecutor's office, also spoke with M.P. M.P. told Arnold-Harms that Swan had humped her and touched her buttocks and vagina.
The State charged Swan with one count of first degree child molestation committed between June 1 and July 30, 2004. Following a child hearsay hearing, the trial court ruled that M.P.'s statements to Breland, Arnold-Harms, and her mother were admissible. The trial court also admitted the tape of the Arnold-Harms's interview.
Wettig could not attend this hearing, so the trial court determined the admissibility of M.P.'s statements to her at a separate hearing held during trial.
The State then sought to admit the "humping" evidence to show Swan's lustful disposition toward M.P. In conjunction with this motion, the State proposed an instruction informing the jury that it could consider evidence that Swan straddled his daughter only for the limited purpose of showing his lustful disposition toward her. The defense argued against both the evidence and the limiting instruction, contending that the latter did not go far enough. The defense acknowledged that the State's motion was largely superfluous if the jury heard the tape of M.P.'s interview with Arnold-Harms, but it continued to argue against the "lustful disposition" characterization. The trial court ruled that M.P. could report what had happened to her, including the humping, but that the State could not describe that behavior as evidence of lustful disposition.
At trial, M.P., Papac, Breland, and Arnold-Harms testified to the above facts, and the jury heard the tape of Arnold-Harms's interview with M.P. On cross examination, Papac admitted that she had asked the courts to prevent Swan's contact with their children not once but several times. On redirect, Papac explained that she had sought to limit Swan's contact because of his drug and alcohol use. When the State asked for an example of such behavior, Swan objected, but the trial court ruled that he had opened the door to this line of inquiry. Papac then testified that she had been concerned for the children's safety when Swan showed up intoxicated for a meeting with a guardian ad litem.
The trial court subsequently found M.P.'s statements to Wettig admissible following another child hearsay hearing, and the jury also heard the tape of Wettig's interview. During that interview, M.P. told Wettig that her father was an alcoholic and that he drinks beer.
Swan denied ever humping or touching M.P. inappropriately. He admitted to having been arrested for driving while intoxicated but said he would never consume alcohol and jeopardize his children. He also admitted that he started treatment for alcoholism in 2002, had a relapse later that year, and had also battled drug addiction.
During closing argument, the State asserted that Swan's touching of M.P.'s buttocks and vagina satisfied the sexual contact element of first degree child molestation. The jury found Swan guilty as charged, and the trial court imposed a standard range sentence.
ANALYSIS I. Ineffective Assistance of Counsel
To prevail on a claim that counsel ineffectively represented him, Swan must show both deficient representation and resulting prejudice. State v. Thomas, 109 Wn.2d 222, 225, 743 P.2d 816 (1987). Our review is highly deferential to counsel's representation; we presume that counsel provided reasonable assistance. Thomas, 109 Wn.2d at 226. Swan can show prejudice if he establishes a reasonable probability that, but for counsel's unprofessional errors, the result of the trial would have differed. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). If counsel's conduct can be characterized as legitimate trial strategy or tactics, we will not find it ineffective. State v. Day, 51 Wn. App. 544, 553, 754 P.2d 1021 (1988). Swan makes three separate claims of ineffective assistance of counsel.
1. Unanimity Instruction
Swan argues initially that his attorney's failure to propose a unanimity instruction deprived him of his constitutional right to a unanimous verdict.
A criminal defendant is constitutionally entitled to a unanimous jury verdict. State v. Smith, 159 Wn.2d 778, 783, 154 P.3d 873 (2007); U.S. Const. amend. VI ; Wash. Const. art. I, § 21. When the prosecutor presents evidence of several acts that could form the basis of one count, the State must tell the jury which act to rely on in its deliberations or the court must instruct the jury to agree on a specified criminal act. State v. Crane, 116 Wn.2d 315, 325, 804 P.2d 10 (1991). In multiple act cases, when the State fails to elect which incident it relies on or the trial court fails to instruct the jury that it must agree that the same underlying act has been proved beyond a reasonable doubt, we will find the error harmless only if the evidence is sufficient to prove each incident beyond a reasonable doubt. Crane, 116 Wn.2d at 325.
Swan argues that three separate acts could have supported his first degree child molestation conviction: the humping, the touching of M.P.'s buttocks, or the touching of her vagina. He contends that the evidence was insufficient to support the humping incidents and, thus, we cannot find the claimed error harmless. See State v. Coleman, 159 Wn.2d 509, 150 P.3d 1126 (2007) (in absence of unanimity instruction, reversal of child molestation convictions was required where State conceded that there was reasonable doubt that one of multiple acts described actually occurred).
The State responds that the prosecuting attorney elected which act it was relying on for Swan's conviction. The State had to prove that Swan had sexual contact with M.P. to convict him of child molestation, and the prosecuting attorney told the jury during closing argument that Swan's touching of M.P.'s buttocks and vagina satisfied the sexual contact element. In responding to the defense argument that the State had not shown proof of sexual desire, the prosecuting attorney argued on rebuttal that "anytime you touch a 9-year[-]old girl on her buttocks and move around to her vagina and wiggle a finger around there, common sense tells you that's done for sexual gratification, sexual contact, and when they are under the age of 12 that is child molestation in the first degree." 5 RP at 279. The State did not refer to the humping behavior during closing argument. The record shows that the State was relying on Swan's touching to support his conviction. Swan does not show that his attorney was deficient in failing to propose a unanimity instruction.
There was no need to specify whether the touching of M.P's buttocks or vagina supported Swan's conviction because it constituted a continuing course of conduct. See State v. Craven, 69 Wn. App. 581, 587-88, 849 P.2d 681 (1993).
2. Limiting Instruction: Lustful Disposition Evidence
Evidence of a defendant's prior sexual acts against the same victim is admissible to show the defendant's lustful disposition toward that victim. State v. Guzman, 119 Wn. App. 176, 182, 79 P.3d 990 (2003). To admit evidence of other wrongs under ER 404(b), the trial court must (1) find by a preponderance of the evidence that the misconduct occurred, (2) identify the purpose for which the evidence is sought to be introduced, (3) determine whether the evidence is relevant to prove an element of the crime charged, and (4) weigh the probative value of the evidence against its prejudicial effect. Guzman, 119 Wn. App. at 182. When a court admits evidence of other wrongs under ER 404(b), it must give the jury a limiting instruction. State v. Foxhoven, 161 Wn.2d 168, 175, 163 P.3d 786 (2007). Swan asserts that the State failed to propose a limiting instruction when it sought to admit the humping evidence, and he adds that his attorney should have proposed his own limiting instruction to ensure that the jury did not misuse this evidence. Swan reasons that defense counsel's failure to obtain a limiting instruction permitted the jury to consider the humping evidence as substantive evidence of the crime charged.
But as we explained above, the State informed the jury that the sexual contact at issue was the touching of M.P.'s buttocks and vagina. Moreover, in seeking to admit the humping evidence, the State proposed a limiting instruction to which the defense objected because Swan did not want any evidence to be considered as proof of his lustful disposition. The defense argued that the humping evidence did not show illegal conduct and was unduly prejudicial. Defense counsel also observed that he normally would be the party proposing a limiting instruction and argued that the State's instruction did not protect his client's right to a fair trial. The trial court agreed that the evidence was prejudicial. But having concluded that M.P.'s statements to her interviewers were admissible, the trial court declined to excise some of those statements. The court ruled that M.P. could testify as to what had happened, including the humping behavior, but that the State could not describe it as evidence of lustful disposition.
Thus, defense counsel tried to exclude the humping evidence altogether and argued successfully against its characterization as evidence of lustful disposition. Once the trial court ruled that the evidence was admissible without the State's limiting instruction, the defense did not propose a separate limiting instruction, but that decision may have been a tactical attempt to minimize the evidence. See State v. Price, 126 Wn. App. 617, 649, 109 P.3d 27 (2005) (defense counsel's decision not to request a limiting instruction regarding the use of ER 404(b) evidence of prior bad acts can be characterized as trial strategy or tactics). Swan does not show that his attorney ineffectively represented him by failing to propose a limiting instruction.
3. Limiting Instruction: Intoxication Evidence
At issue here is Papac's testimony, offered on redirect, that she asked for limitations on Swan's visitation with their daughters in part because he once showed up intoxicated at a meeting with a guardian ad litem. Swan argues that because defense counsel failed to obtain a limiting instruction, the jury was free to consider this evidence for substantive purposes and could have concluded that he was a poor father because he was a drunk.
Here again, the failure to seek a limiting instruction may well have been a strategic attempt to avoid emphasizing this testimony. See State v. Barragan, 102 Wn. App. 754, 762, 9 P.3d 942 (2000) (can presume counsel decided not to request a limiting instruction regarding the proper use of ER 404(b) evidence because to do so would reemphasize this damaging evidence). Moreover, any argument that this evidence was unduly prejudicial must fail in light of the considerable additional evidence that Swan had a history of alcohol and drug addiction. Swan does not show deficient representation or prejudice because his attorney failed to propose a limiting instruction addressing Papac's testimony.
II. Admission of Hearsay Evidence
Swan next argues that the trial court erred in admitting Papac's testimony concerning his intoxication at the guardian ad litem meeting because the evidence was irrelevant and unfairly prejudicial. We review a trial court's decision to admit evidence for an abuse of discretion. State v. Thomas, 150 Wn.2d 821, 856, 83 P.3d 970 (2004). And we will reverse such a decision only if no reasonable person would have decided the matter as the trial court did. Thomas, 150 Wn.2d at 856.
In cross examining Papac, defense counsel elicited that she had contacted CPS instead of the police when M.P. made her allegations and that she had asked the court several times over the last several years to keep Swan from having contact with their daughters. On redirect, the State pursued this line of questioning, asking whether Papac had wanted to eliminate contact between her daughters and Swan and then, when she said, "No," asking why she had wanted limited contact. 3 RP at 101. Papac replied that she wanted her daughters to be safe from Swan's use of drugs and alcohol. When the State asked for an example of Swan's objectionable behavior, the defense objected. The trial court ruled that the defense had opened the door to this testimony and that it was admissible:
I'm going to allow it. You opened the door . . . when you asked about the call between CPS versus the police, and the witness testified it was the best way to keep her safe; and then you went into, on cross, additional opportunity to try to find out how many times, and suggested more than one time that she asked for no contact.
3 RP at 104.
Although Swan asserts on appeal that it is unclear how the trial court justified the admission of this evidence, the analysis just quoted makes that justification clear. Generally, when a party opens up a subject of inquiry on direct or cross examination, the court may permit further cross examination or redirect examination to explore the subject. State v. Gefeller, 76 Wn.2d 449, 455, 458 P.2d 17 (1969). Here, the defense asked Papac about her attempts to restrict Swan's contact with the children over "the past several years," and the State sought to show, on redirect, why she had made these attempts. Moreover, Papac's testimony that Swan was intoxicated was based on her own observations and was not inadmissible hearsay. See State v. Powell, 126 Wn.2d 244, 265, 893 P.2d 615 (1995) (if witness testifies on the basis of her own observation, that statement is not hearsay). Given Swan's admission that he had a history of drug and alcohol problems, this testimony was not unduly prejudicial and its admission did not constitute an abuse of discretion.
III. Sufficiency of the Evidence
Evidence is sufficient to support a conviction if, viewed in the light most favorable to the prosecution, it permits any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). "A claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom." Salinas, 119 Wn.2d at 201. We consider circumstantial and direct evidence equally reliable. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). We defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence. State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533 (1992).
Swan does not contend that the State failed to prove he touched M.P.'s buttocks and vagina. Rather, he argues that because there was insufficient evidence that he "humped" his daughter, the jury might have incorrectly based his conviction on that behavior. As we explained above, the State told the jury to base any conviction on Swan's touching of M.P.'s buttocks and vagina. M.P. consistently described that touching to four adults before trial. Those descriptions were admitted at trial, and her testimony reinforced them. Swan's claim of insufficient evidence fails.
IV. Cumulative Error
Based on the above analysis, we find no error that entitles Swan to relief under the cumulative error doctrine. See State v. Greff, 141 Wn.2d 910, 929, 10 P.3d 390 (2000) (cumulative error doctrine applies where combined errors denied defendant a fair trial).
Affirmed.
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.
BRIDGEWATER, J. and PENOYAR, A.C.J., concur.