Opinion
No. 51343-5-I
Filed: November 15, 2004 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No: 02-1-02468-4. Judgment or order under review. Date filed: 10/14/2002. Judge signing: Hon. Robert Alsdorf.
Counsel for Appellant(s), Nancy Emmet Horgan, Attorney at Law, PO Box 60637, Pasadena, CA 91106.
Counsel for Respondent(s), Prosecuting Atty King County, King Co Pros/App Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Seattle, WA 98104.
Timothy John Leary, Attorney at Law, W554 King Co Cthse, 516 3rd Ave, Seattle, WA 98104-2385.
Thanh Tran appeals his conviction for two counts of first degree child molestation. Tran claims the trial court erroneously admitted ER 404(b) evidence of Tran's lustful disposition towards his daughter, erroneously admitted evidence of her disclosures that Tran molested her, and erred when it failed to give a limiting instruction. Tran contends his defense counsel was ineffective in failing to object to the lustful disposition and fact of complaint evidence or request a limiting instruction, the prosecutor committed misconduct during the questioning of a witness, and cumulative error denied him a fair trial. Tran also argues his conviction should be vacated and the case remanded for a new trial because there is no transcript of closing argument. We affirm Tran's conviction for two counts of child molestation in the first degree and deny his motion to vacate.
FACTS
L.T. lived in Ballard with her mother, Kim Do, her father, Thanh Tran, and her younger brother. L.T.'s parents separated in 1996, when she was eight years old, and her father moved to a house the family owned in West Seattle.
According to L.T., before her parents separated, her father would come into her bedroom early in the mornings, get into bed with L.T. and rub her breasts and 'private parts' over her underwear. L.T. would pretend to be asleep and hope her father would stop. L.T. testified that her father did this 'maybe once a week.'
RP (8/8/02) at 133.
RP (8/8/02) at 135. L.T. also testified that when she was five or six years old, Tran pulled down her pants and licked her vagina.
After her parents separated, L.T. spent the night at Tran's house in West Seattle a few times. L.T. testified about two occasions at the West Seattle house when Tran molested her. On the first occasion, Tran entered L.T.'s bedroom early in the morning, lay on top of her, touched her breasts and rubbed her 'private parts.' He stayed approximately half an hour, then went into the kitchen and made breakfast. On the second occasion, Tran again entered her bedroom and lay on top of her. L.T. said she had decided she needed to say something to make her father stop. When he started touching her breasts, L.T. said '[D]ad.' Tran got up and left shortly thereafter. At trial, L.T. said the reason she did not say anything else was that, 'I still love my dad, and I didn't want him to be mad at me or go to jail or something like that.'
L.T. testified that she stayed at Tran's West Seattle home on a few occasions within the first year or year and a half after Tran moved in mid to late 1996.
RP (8/8/02) at 143.
RP (8/8/02) at 145.
RP (8/8/02) at 148.
Sometime in 1999 or 2000, L.T. told her best friend Rachel LeCoump that her father had molested her when she was younger. In early 2001, L.T. told her boyfriend Michael Grandpre that her father had molested her.
L.T.'s mother Kim Do is a Boeing engineer who works in Everett. In late 2001, Do was concerned that L.T. was spending too much unsupervised time at home alone with her boyfriend, Michael Grandpre, and her friends. Do decided to move from Ballard to Everett so she could be closer to home. In December 2001, Do told L.T. they were going to move to Everett. L.T. was upset about moving and skipped school the next day. Do came home early from work to make sure L.T. was not with her boyfriend. When Do got home, she and L.T. fought. When Do asked L.T. why she was so upset, L.T. told her mother Tran had molested her. But almost immediately, L.T. said it did not happen and to forget about it.
The next day, L.T. told her friend Rachel that she wanted to kill herself. Rachel went to the school counselor to report what L.T. said. When the counselor and L.T. met, L.T. told the counselor her father had molested her. The counselor contacted the police to report L.T.'s disclosure. Shortly after these events, L.T. attempted suicide. She was admitted to a children's group home for mental health treatment and released after a few days.
In January 2002, a Seattle Police Department detective interviewed Tran. Tran told the detective that he had never had physical contact of any kind with L.T. and L.T. had never spent the night at his house in West Seattle. Tran was charged with one count of child molestation in the first degree. The State alleged that during the three years between January 1, 1995 and December 31, 1997, Tran had sexual contact with L.T. By amended information, the State charged Tran with two counts of child molestation in the first degree for sexual contact with L.T. alleged to have occurred between July 29, 1996 and October 29, 1997. A jury convicted Tran on the charged counts of child molestation in the first degree. He appeals.
ANALYSIS ER 404(b) Lustful Disposition Evidence
Tran argues the trial court erred in admitting 'lustful disposition' evidence without engaging in an ER 404(b) analysis and in failing to give a limiting instruction.
The State charged Tran with sexually molesting his daughter when he was living at the West Seattle house between July 29, 1996 and October 29, 1997. Pretrial, the State moved under ER 404(b) and State v. Ray, 116 Wn.2d 531, 806 P.2d 1220 (1991), to admit evidence of Tran's history of sexual abuse of L.T. when he lived at the house in Ballard to establish Tran's lustful disposition toward his daughter. The State in its offer of proof said L.T. would testify that before her parents separated, Tran would go into L.T.'s bedroom once or twice a week, lay on top of her with an erection and rub her breasts. The court granted the State's motion to admit L.T.'s testimony to establish Tran's lustful disposition towards her.
The trial court's decision to admit ER 404(b) evidence is reviewed for abuse of discretion. State v. Campbell, 78 Wn. App. 813, 821, 901 P.2d 1050 (1995). Discretion is abused if it is exercised on untenable grounds or for untenable reasons. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).
Under ER 404(b):
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
Tran argues the trial court erred in admitting lustful disposition evidence without engaging in the analysis required for ER 404(b). In exercising its discretion to admit or exclude evidence under ER 404(b), the trial court should state the reasons for its decision. State v. Tharp, 96 Wn.2d 591, 597, 637 P.2d 961 (1981). To admit evidence under ER 404(b), the trial court must (1) find by a preponderance of the evidence that the misconduct occurred; (2) identify on the record the purpose for which it admits the evidence; (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. State v. Pirtle, 127 Wn.2d 628, 649, 904 P.2d 245 (1995).
But even where the trial court fails to articulate its ER 404(b) analysis for the record, if the reviewing court can decide the issue of admissibility on the basis of the record as a whole without the help of a record of the trial court's analysis, it should do so. State v. Gogolin, 45 Wn. App. 640, 645, 727 P.2d 683 (1986).
Evidence is relevant if the purpose for admitting it is of consequence and makes the existence of the identified fact more probable. State v. Powell, 126 Wn.2d 244, 259, 893 P.2d 615 (1995).
The Washington State Supreme Court 'has consistently recognized that evidence of collateral sexual misconduct may be admitted under ER 404(b) when it shows the defendant's lustful disposition directed toward the offended female.' Ray, 116 Wn.2d at 547; see also State v. Camarillo, 115 Wn.2d 60, 70, 794 P.2d 850 (1990); State v. Ferguson, 100 Wn.2d 131, 133-34, 667 P.2d 78 (1983). The key inquiry is whether the evidence demonstrates sexual desire for the particular victim. Id.
In deciding to admit evidence of Tran's pattern and history of sexually abusing L.T. to show lustful disposition, the trial court cited and relied on the Supreme Court's decision in State v. Ray, 116 Wn.2d 531. While the court acknowledged that lustful disposition evidence is prejudicial, it concluded the probative value outweighed prejudice because the evidence related exclusively to his daughter.
Well, as I understand it under State v. Ray there is some room for the State to introduce evidence relating to a claim of lustful disposition on the part of the alleged perpetrator. And that then would be permissible even if it is not a direct part of the alleged offenses, and the jury would then judge on the credibility. It may well be the jury will conclude that the victim is making up some or all of this, but that would be a factual determination the jury can make. I think it would be a very different matter if we would question the alleged wrongful acts by the defendant with other females. But when we are talking about a particular victim and, in this sort of situation, it does appear to me that that would be admissible as evidence even if it is no longer a specific criminal charge.
RP (8/6/02) at 23-24.
Tran also contends the trial court should have held a hearing to determine whether the other uncharged acts of molestation occurred. The trial court is not required to hold an evidentiary hearing for ER 404(b) evidence in every case. State v. Kilgore, 147 Wn.2d 288, 295, 53 P.3d 974 (2002). In Kilgore, the Supreme Court held the trial court has the discretion to decide whether ER 404(b) acts occurred based on an offer of proof or to hold a pretrial evidentiary hearing. Kilgore, 147 Wn.2d at 295. Here, the trial court decided the State's offer of proof established by a preponderance of the evidence that the prior acts occurred. The trial court did not abuse its discretion when it decided based on the offer of proof to admit the lustful disposition evidence.
Tran does not present argument about how the trial court's decision to admit the lustful disposition evidence would have been different if the court held a hearing or required more information. Parties are required to present arguments to support their contentions on appeal. RAP 10.3(a)(5); Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992).
Tran claims the trial court erred by failing to give a limiting instruction regarding the lustful disposition evidence because there is a substantial likelihood the jury convicted him based on uncharged ER 404(b) acts of sexual molestation. Tran contends the jury could have been confused about which acts of molestation were the subject of the two charged counts and a limiting instruction was necessary.
The trial court was not asked to give a limiting instruction for the ER 404(b) lustful disposition evidence. Where a party does not request a limiting instruction, it is not error for the court to fail to give one. State v. Myers, 133 Wn.2d 26, 36, 941 P.2d 1102 (1997); State v. Hess, 86 Wn.2d 51, 52, 541 P.2d 1222 (1975). But Tran requested that the court give a jury instruction that specifically stated the charged incidents occurred in Tran's West Seattle home. Tran argued the court should give his proposed instruction to make it clear to the jury that the two charged incidents occurred in the West Seattle home, as opposed to in the Ballard home. The trial court refused to give Tran's jury instruction. The court concluded the specific location of the offense did not relate to the legal definition of the crime.
Tran's proposed instruction states, in part:
To convict the defendant of the crime of child molestation in the first degree, as charged, each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That during a period of time intervening between July 29, 1996 through October 29, 1997, the defendant had sexual contact with Lisa Tran;
(2) That Lisa Tran was less than twelve years old at the time of the sexual contact and was not married to the defendant;
(3) That the defendant was at least thirty-six months older than Lisa Tran; and
(4) That the acts occurred at the defendant's house located at 5447 23rd AV SW, SEATTLE WA 98106, identified as the house in Southwest Seattle and located in the State of Washington.
CP at 29.
Tran's argument that there is a substantial likelihood the jury was confused and convicted him of uncharged crimes is unpersuasive. The 'to convict' instructions for both count I and count II specifically required the jury to find beyond a reasonable doubt that Tran had sexual contact with L.T. during a specific time period.
To convict the defendant of the crime of child molestation in the first degree as charged in Count I, each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That on a period of time intervening between July 29, 1996 through October 29, 1997, but on an occasion separate and distinct from that charged in Count II, the defendant had sexual contact with Lisa Tran. For you to return a verdict of guilty, all twelve jurors must agree that the same incident of sexual contact has been proved beyond a reasonable doubt;
(2) That Lisa Tran was less than twelve years old at the time of the sexual contact and was not married to the defendant;
(3) That the defendant was at least thirty-six months older than Lisa Tran; and
(4) That the acts occurred in the State of Washington.
CP at 47. The 'to convict' instruction for count II is identical. See CP at 48.
The jury is presumed to follow the court's instructions. State v. Grisby, 97 Wn.2d 493, 509, 647 P.2d 6 (1982). By identifying the specific dates for the charging period that related to when Tran lived in West Seattle and requiring the jury to agree that the same incident of sexual conduct was proved beyond a reasonable doubt, there is no substantial likelihood that the jury convicted Tran of uncharged crimes that occurred when he lived in Ballard. We conclude the trial court did not abuse its discretion in failing to give a limiting instruction.
Fact of Complaint Evidence
Tran claims the trial court erred in admitting fact of complaint testimony that L.T. disclosed that her father molested her to Michael Grandpre, Rachel LeCoump, and her mother, Kim Do. Tran contends L.T.'s disclosures were not timely and testimony of the witnesses exceeded the scope of the fact of complaint exception.
Tran also states in his brief that the trial court erred in admitting the fact of complaint evidence because the court failed to determine whether that evidence related to the charged acts. Tran does not present any argument on this issue in his brief. Where a party fails to present any relevant argument on an issue to which it has assigned error, that issue is effectively abandoned and the court need not address it. RAP 10.3(a)(5); R.A. Hanson Co., Inc. v. Magnuson, 79 Wn. App. 497, 505, 903 P.2d 496 (1995).
Pretrial, the State moved to admit evidence under the 'hue and cry' or fact of complaint exception that L.T. told her friends and her mother that Tran sexually molested her. Tran objected on the grounds of timeliness because L.T.'s disclosures were 'way after the fact.' Tran's defense at trial was that L.T. was a rebellious teenager who was not credible and not truthful. The trial court ruled the State could present limited testimony to show that L.T. told the three witnesses that Tran sexually molested her, but Tran was not similarly restricted in his cross examination of the witnesses.
RP (8/6/02) at 26.
And if your defense is in part that she has a pattern of making up these sorts of things because she is troubled, then it would not be inconsistent with your defense and a jury might well believe your cross-examination on this point.
So at this point it would appear, unless there's something else you haven't presented on behalf of the defense, that the fact of her making claims of prior sexual abuse would be admissible; that she would be examined and cross-examined on the facts of the report; that the State would not be able to get anything in other than essentially a yes or no, did she report her sexual assault, and then some description of her demeanor at the time, and then [D]efense could cross-examine on whatever the [D]efense believes is appropriate. But based on the nature of the defense here, it does appear that that type of evidence, limited in that fashion, would be admissible.
RP (8/6/02) at 27-28.
At trial, Grandpre testified that L.T. told him she had been sexually molested by her father and that L.T. was both mad and sad when she told him about the abuse. LeCoump also gave limited testimony on direct examination about L.T.'s disclosures. When LeCoump started to describe how the issue of what happened between L.T. and her father came up, the court instructed LeCoump that she could not repeat what L.T. said. The State then asked a series of questions regarding L.T.'s demeanor when she talked about what happened with her father. During Kim Do's testimony the State asked Do what L.T. told her. The State said 'I don't want to know what she actually said, but do you remember her reporting that to you?' Do said L.T. told her that Tran sexually molested her but then said 'forget about it.' Do testified she told L.T. that she had to take some action if what she said was true. Do said she took no action.
The court interjected warnings when questions called for hearsay or got into the substance of L.T.'s conversations with LeCoump.
RP (8/8/02) at 45.
RP (8/8/02) at 47.
During cross examination, Do testified L.T. was a rebellious teenager who frequently lied. Do said she 'caught [L.T.] not telling the truth several times.' Do also testified about why L.T. was upset the day she told Do about the abuse.
RP (8/8/02) at 58.
[W]hen I say that I will move to Everett, that's the night she called her friend, boyfriend, told her boyfriend that mom will move out. She told me that that's mean, I cannot see my boyfriend. I said well, you can make arrangement. I can bring you back here, but you can not have something like, you know, just walking out of the house and go. So, she upset. She upset a lot, and she say that's why she skipped the school. I told you earlier she skipped the school, and I had to go home and ask her why, what happen? And she, she mad with me, and she mad at me and tell me, at the same time she tell me that thing about dad, you know, molested her.
RP (8/8/02) at 65-66.
The trial court's rulings regarding the admission of evidence will not be reversed absent an abuse of discretion. State v. Brown, 132 Wn.2d 529, 578, 940 P.2d 546 (1997). Discretion is abused if it is exercised on untenable grounds or for untenable reasons. State ex rel. Carroll, 79 Wn.2d at 26. A court's decision is manifestly unreasonable if it is outside the range of acceptable choices, given the facts and the applicable legal standard; it is based on untenable grounds if the factual findings are unsupported by the record; it is based on untenable reasons if it is based on an incorrect standard or the facts do not meet the requirements of the correct standard. State v. Rundquist, 79 Wn. App. 786, 793, 905 P.2d 922 (1995).
In criminal trials for sex offenses, the State can present evidence that the victim complained to someone after the abuse. State v. Ferguson, 100 Wn.2d 131, 135, 667 P.2d 68 (1983); see also State v. Ackerman, 90 Wn. App. 477, 481, 953 P.2d 816 (1998). This narrow exception to the hearsay rule only allows evidence establishing that a complaint was made. Evidence of the details of the disclosure, including the specifics of the act and the identity of the offender, is not admissible. Ferguson, 100 Wn.2d at 136. Where identity is not an issue, testimony about the identity of the perpetrator is harmless error. Ferguson, 100 Wn.2d at 136.
Evidence of when a witness complains is admissible because one of the underlying questions in a sexual offense case is the credibility of the victim. State v. Murley, 35 Wn.2d 233, 237, 212 P.2d 801 (1949); State v. Alexander, 64 Wn. App. 147, 152, 822 P.2d 1250 (1992). In Murley, the court explained the history of the fact of complaint or 'hue and cry' doctrine, as it was formerly known.
This doctrine rests on the ground that a female naturally complains promptly of offensive sex liberties upon her person and that, on trial, an offended female complainant's omission of any showing as to when she first complained raises the inference that, since there is no showing that she complained timely, it is more likely that she did not complain at all the therefore that it is more likely that the liberties upon her person, if any, were not offensive and that consequently her present charge is fabricated. Thus, formerly, to overcome the inference, it became essential to the state's case-in-chief to prove affirmatively that she made timely hue and cry.
Murley, 35 Wn.2d at 237 (citations omitted) (emphasis in original). Although the state is no longer required to prove that the victim timely complained, because the inference of fabrication exists, evidence of when the victim complains is still admissible. Id.; Alexander, 64 Wn. App. at 152.
Tran's argument that the disclosure must be made within a short time after the sexual offense is based on the premise that a victim promptly complains about a sexual offense. Murley, 35 Wn.2d at 237. This premise was unequivocally rejected in Murley and recent cases and experts refute this argument and recognize many reasons why a victim may wait to report sexual abuse. See, e.g., State v. Petrich, 101 Wn.2d 566, 569, 575-76, 683 P.2d 173 (1984) (delayed reporting was found in more than 50% of child sex abuse cases and the length of the delay correlates with the relationship between the abuser and the child); State v. Holland, 77 Wn. App. 420, 423, 427-28, 891 P.2d 49 (1995) (it is not uncommon for child victim of sex abuse to delay reporting); State v. Claflin, 38 Wn. App. 847, 852, 690 P.2d 1186 (1984) (late reporting was not unusual among sexually abused children).
Here, Tran's defense was that L.T. was not credible and she lied. L.T. testified about an ongoing pattern of sexual abuse occurring over several years. The trial court allowed Tran leeway to cross examine the three witnesses beyond the strict limits for fact of complaint evidence and Tran was able to present evidence that L.T. lied to her mother, was rebellious, attempted suicide several times, and was not credible in part because of the delay between when she reported the abuse and when it was disclosed. The trial court's decision to admit fact of complaint testimony and to allow Tran to cross examine the witnesses beyond the limited scope of the exception was not an abuse of discretion. The trial court's decision was not outside the range of acceptable choices and was not manifestly unreasonable.
The fact of complaint evidence from the three witnesses was also admissible under ER 801(d)(1)(ii).
Ineffective Assistance of Counsel
Tran claims defense counsel was ineffective in failing to object to the admission of the lustful disposition and fact of complaint evidence or to request a limiting instruction. Tran argues defense counsel's ineffective assistance resulted in a reasonable probability that he was convicted of an uncharged crime.
Washington has adopted the two-prong test in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), for determining whether counsel was ineffective. State v. Leavitt, 111 Wn.2d 66, 758 P.2d 982 (1988). To establish ineffective assistance of counsel, a defendant must show both deficient performance and resulting prejudice. State v. Turner, 143 Wn.2d 715, 730, 23 P.3d 499 (2001). Deficient performance is shown if counsel's conduct fell below an objective standard of reasonableness. State v. Stenson, 132 Wn.2d 668, 705-06, 940 P.2d 1239 (1997). To satisfy the prejudice prong, a defendant must show that counsel's deficient performance was so inadequate that there exists a 'reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.' Strickland, 466 U.S. at 694; State v. West, 139 Wn.2d 37, 42, 983 P.2d 617 (1999). 'A reasonable probability is a probability sufficient to undermine confidence in the outcome.'
Strickland, 466 U.S. at 694. If the defendant fails to satisfy either part of the test, the inquiry goes no further. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563 (1996).
A strong presumption exists that counsel provided effective assistance. State v. Tilton, 149 Wn.2d 775, 784, 72 P.3d 735 (2003). If defense counsel's trial conduct can be characterized as legitimate trial strategy or tactics, it cannot provide a basis for a claim of ineffective assistance of counsel. State v. Aho, 137 Wn.2d 736, 745, 975 P.2d 512 (1999).
Tran claims his lawyer was ineffective in failing to object to the lustful disposition and fact of complaint evidence. To establish ineffective assistance for failure to object, Tran must show (1) an absence of legitimate strategic or tactical reasons supporting the challenged conduct; (2) that an objection to the evidence would likely have been sustained; and (3) that the result of the trial would have been different had the evidence not been admitted. State v. Saunders, 91 Wn. App. 575, 578, 958 P.2d 364 (1998), citing State v. McFarland, 127 Wn.2d 322, 336 and 337 n. 4, 899 P.2d 1251 (1995), and Hendrickson, 129 Wn.2d at 80. Tran's attorney objected to admitting the lustful disposition evidence under ER 404(b) and objected to the fact of complaint evidence as untimely. Both the lustful disposition and fact of complaint evidence were properly admitted. Tran fails to show that any other objections to either the lustful disposition or fact of complaint evidence would have been sustained. See Saunders, 91 Wn. App. at 578 (defendant must show that an objection would have been sustained). Tran has also not shown that defense counsel's decision not to object to the lustful disposition and fact of complaint evidence was anything but a legitimate trial strategy. There were legitimate strategic reasons to cross examine the witnesses about L.T.'s disclosures. Tran's cross examination supported his theory at trial by attacking L.T.'s credibility and showing inconsistencies in her statements to other witnesses.
Tran claims his counsel was ineffective when he failed to request a limiting instruction regarding the lustful disposition and fact of complaint evidence. Tran's lawyer asked the trial court to instruct the jury that in order to convict they had to find that the charged offenses occurred at Tran's West Seattle house. The trial court refused to give that instruction. Tran has not shown that his lawyer's failure to propose any other instruction regarding lustful disposition or fact of complaint evidence was anything but a tactical decision. We presume trial counsel's decision not to request a limiting instruction on lustful disposition or fact of complaint evidence is a tactical decision made to avoid highlighting the evidence. See State v. Barragan, 102 Wn. App. 754, 762, 9 P.3d 942 (2000); State v. Donald, 68 Wn. App. 543, 551, 844 P.2d 447 (1993).
Tran attempts to distinguish Barragan on the grounds that the court in Barragan did not admit 'direct' evidence of prior bad acts, but only evidence the defendant had talked about committing prior bad acts. In Barragan, the defendant was charged with assault and harassment. The prior bad acts testimony directly supported the harassment charge. Barragan, 102 Wn. App. at 759. Tran also attempts to distinguish Barragan on the grounds that the court offered to give a limiting instruction, whereas here the trial court did not. But the trial court's failure to offer to give a limiting instruction does not mean trial counsel's decision was not tactical.
We conclude Tran fails to show he received ineffective assistance of counsel based on his lawyer's failure to object to the admission of lustful disposition and fact of complaint evidence or to request a limiting instruction.
Prosecutorial Misconduct
Tran argues the prosecutor committed misconduct during the direct examination of Rachel LeCoump when the prosecutor asked whether L.T. mentioned her father in a conversation with LeCoump about L.T.'s virginity.
State: Was there another occasion that you talked with her where she was talking with you about her virginity?
Witness: Yes. She said —
State: Without telling us what she said, was there a conversation about virginity between you and [L.T.]?
Witness: Yes.
State: And was her father mentioned in that conversation?
Witness: Yes.
State: Was she concerned about having lost her virginity?
Court: Counsel, at this point you are getting into substance.
CP (8/8/02) at 115-16. Tran argues in his brief that there was evidence that L.T. told LeCoump that her father raped her. According to the record, there was no testimony that Tran raped L.T.L.T. testified that she told LeCoump she was afraid she might have lost her virginity to her dad if he touched her while she was asleep.
Tran also argues the prosecutor committed misconduct when he asked LeCoump whether L.T. called Child Protective Services to complain about her father's conduct.
State: Now, do you know whether or not [L.T.] had ever considered telling somebody about this before it came out in December of last year? That is she told you, but do you know whether she considered telling a counselor or CPS or the police?
Witness: She had called CPS once, and she told me that her dad got angry at her for it.
State: Do you know when that was?
Witness: She said she was really small, probably six or seven. State: Do you know whether or not [L.T.] was afraid to come forward and talk about what happened?
Witness: She said that —
Court: Counsel, this witness seems to be largely hearsay.
State: Without saying what she said, do you know from her demeanor whether she was afraid?
CP (8/8/02) at 119.
In both instances the trial court told the prosecutor his questions sought to elicit impermissible hearsay. Tran did not interject any additional objections to the prosecutor's questions.
On appeal, other than arguing that the prosecutor's questions sought to elicit hearsay, Tran does not elaborate on why the questions were improper or prejudicial. See RAP 10.3(a)(5).
A defendant alleging prosecutorial misconduct must show both improper conduct and prejudicial effect. Brown, 132 Wn.2d at 561. To establish prejudice, the defendant must show a substantial likelihood that the misconduct affected the jury's verdict. In the Matter of the Personal Restraint Petition of Pirtle, 136 Wn.2d 467, 481-82, 965 P.2d 593 (1998). If the defendant did not object at trial, prosecutorial misconduct is waived unless the misconduct was so 'flagrant and ill-intentioned that it evinces an enduring and resulting prejudice that could not have been neutralized by an admonition to the jury.' State v. Stenson, 132 Wn.2d 668, 719, 940 P.2d 1239 (1997).
Tran has not shown the prosecutor's questions were flagrant and ill-intentioned or any prejudice could not have been cured by an instruction to the jury to disregard the evidence.
LeCoump's testimony regarding L.T.'s statements about her virginity and about whether L.T. contacted Child Protective Services (CPS) was cumulative of L.T.'s and Do's testimony. L.T. testified she told LeCoump she was afraid she might have lost her virginity to her dad if he touched her while she was asleep and she did not wake up. Do testified that L.T. told a CPS worker Do had abandoned her.
Cumulative Error
Tran argues that the erroneous admission of evidence, ineffective assistance of counsel and prosecutorial misconduct amount to cumulative error denying him of his right to a fair trial. The cumulative error doctrine applies when several trial errors occur which, standing alone, may not be sufficient to justify reversal, but when combined, may deny defendant a fair trial. State v. Greiff, 141 Wn.2d 910, 929, 10 P.3d 390 (2000). Because we conclude there were no errors, the cumulative error doctrine does not apply.
Motion to Vacate
Finally, Tran asks this court to vacate his conviction because counsel on appeal have been unable to locate a record of closing arguments.
The motion to vacate Tran's conviction for lack of a complete record was passed to the merits by a Commissioner of this Court.
Due process requires a 'record of sufficient completeness' for review of the errors raised by a criminal defendant. Coppedge v. United States, 369 U.S. 438, 446, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962); State v. Larson, 62 Wn.2d 64, 67, 381 P.2d 120 (1963). A 'record of sufficient completeness' does not necessarily require a complete verbatim transcript. Tilton, 149 Wn.2d at 781. It is the appellant's duty to make all reasonable efforts to acquire a record of sufficient completeness for appellate review. RAP 9.1(b); State v. Miller, 40 Wn. App. 483, 698 P.2d 1123 (1985).
A report of proceedings may be a verbatim report of proceedings, a narrative report of proceedings or an agreed report of proceedings. RAP 9.1(b), 9.3, 9.4. The usual remedy for defects in the record is to supplement the record with affidavits regarding the missing information from either the trial judge or trial counsel. Miller, 40 Wn. App. at 488. A new trial will seldom be required when a report of proceedings is not recorded or is lost. Tilton, 149 Wn.2d at 785.
Tran contends this case is like Larson, 62 Wn.2d at 64, and State ex rel. Henderson v. Woods, 72 Wn. App. 544, 865 P.2d 33 (1994), where the records of proceedings from the lower courts were inadequate to enable effective review on appeal. In Larson, there was no trial record and the narrative statement of proceedings consisted solely of the trial court's notes. Trial counsel for the defendant did not participate in the preparation of the narrative statement. Larson, 62 Wn.2d at 65, 68. In Woods, no verbatim report of the proceedings had been made, and the court did not have even a summary of the witnesses' testimony. Woods, 72 Wn. App. at 546-47. Unlike Larson and Woods, here, only closing argument is missing from the verbatim report of proceedings. Although the rules of appellate procedure provide for either a narrative report of proceedings or an agreed report of proceedings where a court reporter's notes are lost or damaged, Tran has made no effort to reconstruct the record of closing argument. This case is analogous to Miller, 40 Wn. App. at 483, where the defendant complained that the record was inadequate because it did not contain the trial court's response to an inquiry from the jury. In Miller, the court held the defendant waived the inadequacy of the record when he failed to attempt to supplement the record with affidavits from the trial court and counsel. Miller, 40 Wn. App. at 488. We deny Tran's motion to vacate.
CONCLUSION
The trial court did not abuse its discretion when it admitted ER 404(b) evidence of Tran's lustful disposition toward his victim or fact of complaint evidence, and the court did not err in failing to give a limiting instruction regarding the lustful disposition evidence. We also conclude Tran's trial counsel was not ineffective, the prosecutor did not commit misconduct and the cumulative error doctrine does not apply. Because Tran failed to make any effort to reconstruct the record of closing arguments, we deny his motion to vacate his conviction for lack of a complete record.
We affirm Tran's conviction for two counts of child molestation in the first degree.
APPELWICK, and AGID, JJ., Concur.