Opinion
No. 23010-4-III
Filed: August 4, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Spokane County. Docket No: 02-1-03171-5. Judgment or order under review. Date filed: 04/23/2004. Judge signing: Hon. Jerome J. Leveque.
Counsel for Appellant(s), Paul J. II Wasson, Attorney at Law, 2521 W Longfellow Ave, Spokane, WA 99205-1548.
Counsel for Respondent(s), Kevin Michael Korsmo, Attorney at Law, 1100 W Mallon Ave, Spokane, WA 99260-2043.
Andrew J. III Metts, Spokane County Pros Offc, 1100 W Mallon Ave, Spokane, WA 99260-0270.
This is a prosecution for third degree child molestation. Christopher C. VanGuilder challenges the admission of evidence at his jury trial from several witnesses who testified about statements the victim made to them out of court. He also assigns error to the unanimity instruction because some blanks in the standard WPIC form were not filled in. We hold the court admitted the witness statements under well-recognized exceptions to the hearsay rule, and the jury instructions are adequate when read as a whole. We therefore affirm the conviction.
11 Washington Pattern Jury Instructions: Criminal (2d ed. 1994).
FACTS
The State charged Christopher C. VanGuilder with one count of third degree child molestation. The victim was his then-15-year-old niece, A.W.A.W.'s mother is the sister of Mr. VanGuilder's wife. A.W. baby-sat for the VanGuilders every other weekend during the summer of 2002. The VanGuilders needed A.W.'s services early in the morning. So she often stayed overnight, sleeping on a couch in the living room.
A.W. testified that on several occasions Mr. VanGuilder crept into the room when he thought she was asleep and touched her breasts. Mr. VanGuilder would unsnap the bra she wore to bed, and then he would fondle her. He would then masturbate and leave. A.W.'s reaction was to pretend it was not happening. She did not resist, confront her uncle, or change her public behavior toward him, because she was afraid of breaking up the family. A.W.'s own mother and father were divorcing that summer, which was `devastating' for her. Report of Proceedings (RP) at 224. The second time it happened, however, she told her boyfriend. At his suggestion, she also told her grandmother who `told everybody' including her parents. RP at 137. The baby-sitting stopped.
Mr. VanGuilder was tried by jury on one count of third degree child molestation.
A.W. had told her boyfriend, her grandmother, mother, father, and a mental health counselor about the touching. The State called each to testify. Mr. VanGuilder argued pretrial that the cumulative effect of a parade of witnesses repeating the complaining witness's accusations was more prejudicial than probative. The court ruled the boyfriend and grandmother could testify under the excited utterance and `fact of complaint' hearsay exceptions and the psychologist could do so under the medical treatment exception. The court reserved ruling on the others. But at trial, all the witnesses testified without further objection or rulings.
Mr. VanGuilder denied the allegations generally. The VanGuilders both testified that A.W. did not baby-sit for them on most of the dates when abuse was alleged. At other times, Mr. VanGuilder was away from home.
The State presented evidence of four touching incidents, although only a single count was charged. The court concluded that the additional acts were evidence of collateral sexual misconduct, admissible under ER 404(b) to show the defendant's `lustful disposition' toward the victim.
The court gave the jury the standard unanimity instruction: `one or more particular acts must be proved beyond a reasonable doubt' and the jury `must unanimously agree as to which act or acts have been proved.' RP at 547 (emphasis added); 11 Washington Pattern Jury Instructions: Criminal 4.25 (2d ed. 1994) (WPIC). The defense objected to the term `act or acts,' because only a single offense was charged. RP at 546. The court did not alter the language of the pattern instruction and left the `act or acts' language intact. RP at 547-48. Both counsel approved instruction 8 as read.
The record shows that the jury received the complete instruction. The problem is that the version included in the Clerk's Papers here on appeal is the WPIC version, which contains a blank to be filled in with the particular conduct: `There are allegations that the defendant committed acts of . . . on multiple occasions.' Clerk's Papers at 41; WPIC 4.25. But the judge here filled in the blank and described the alleged conduct. Instruction 8 was read to the jury as: `There are allegations that the defendant committed acts of sexual contact with [A.W.] on multiple occasions.' RP at 557.
The jury found Mr. VanGuilder guilty.
DISCUSSION Hearsay Statements
Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. ER 801(c). It is generally not admissible as evidence. ER 802. Certain hearsay bears sufficient indicia of reliability to be admitted as an exception to the rule. ER 803. The decision to admit or exclude such evidence will be reversed only upon a showing of manifest abuse of discretion. State v. Ackerman, 90 Wn. App. 477, 481, 953 P.2d 816 (1998). A court abuses its discretion when it bases its decision on untenable grounds or reasons. State v. Michielli, 132 Wn.2d 229, 240, 937 P.2d 587 (1997).
Mr. VanGuilder challenges the grounds for admitting A.W.'s statements to her boyfriend, grandmother, mother, father, and counselor. He asserts that the child hearsay statute, RCW 9A.44.120, does not apply because the victim turned 16 years old before trial. But the child hearsay statute was not the basis of the court's rulings. In fact, it was never mentioned at this trial.
He also argues that A.W.'s statements did not qualify as non-hearsay under the prior statement by a witness exception of ER 801(d)(1)(ii) (a testifying declarant's prior statements are admissible to rebut a charge of recent fabrication). But again, no one suggests that the statements were not hearsay, and none of the witnesses here was a declarant testifying to his or her own prior statements. So ER 801(d)(1)(ii) would not apply.
As to the grounds actually relied on by the court (excited utterance, fact of complaint, medical exception), Mr. VanGuilder argues that no ER 803 hearsay exception applies. Appellant's Br. at 9. But he presents no argument and cites to no authority against the admissibility of the evidence as excited utterance or fact of complaint (hue and cry). These are the ER 803 exceptions at issue.
Evidence rule 803(a) describes hearsay statements that are admissible regardless of the availability of the declarant. Of the 23 exceptions, those most commonly cited are for present sense impression, state of mind, and excited utterance.
The State responds that Mr. VanGuilder objected at trial only to the statements of the boyfriend, grandmother, and counselor. And these were all admitted under well-settled exceptions to the hearsay rule. The State contends statements to the boyfriend and grandmother were admitted as excited utterances. A.W. told her boyfriend the same night and told her grandmother the next day. The State defends the counselor's testimony under the exception for a sexual abuse victim's statements to a counselor if made for treatment purposes. Ackerman, 90 Wn. App. at 482. The State contends all other statements were admissible under the so-called `hue and cry' doctrine: in sexual offense cases, the State may present evidence that the victim told other people about the abuse. Id. at 481.
Mr. VanGuilder also objected to the sheer number of the State's hearsay witnesses. Counsel complained that the victim's say-so was the State's entire case. And, therefore, the cumulative effect of witness after witness repeating her allegations was more prejudicial than probative. The judge acknowledged this concern and reserved his ruling on additional hearsay witnesses, including the mother and father, for trial.
But Mr. VanGuilder never raised the cumulative prejudice objection again, even though defense counsel made other appropriate objections. For example, the boyfriend began to testify about A.W.'s reply to his suggestion that she stop baby-sitting. The court sustained defense counsel's hearsay objection that `[t]his is not an exception.' RP at 187.
Moreover, defense counsel himself grilled the interviewing detective to elicit details of the allegations not mentioned on direct. Any error would thus appear to be invited. City of Seattle v. Patu, 108 Wn. App. 364, 366, 30 P.3d 522 (2001), aff'd, 147 Wn.2d 717, 58 P.3d 273 (2002). But we find no abuse of discretion in any event.
Jury Instructions
We review assignments of error to the sufficiency of jury instructions de novo. Hue v. Farmboy Spray Co., 127 Wn.2d 67, 92, 896 P.2d 682 (1995). Jury instructions are sufficient if they permit the defendant to argue his theory of the case, are not misleading, and correctly inform the jury of the applicable law. State v. Mark, 94 Wn.2d 520, 526, 618 P.2d 73 (1980). We do not review the sufficiency of a single instruction, but look at the instructions as a whole. State v. LeFaber, 128 Wn.2d 896, 900, 913 P.2d 369 (1996).
Mr. VanGuilder assigns error to blanks that appear in the unanimity instruction filed with the appellate record. He concedes that the judge read the complete instruction to the jury. He contends, however, that the written version given to the jury may not have been correct.
The State responds that the incomplete version may have inadvertently been placed in the court file when the superior court judicial clerk was fixing a problem noted by the judge on his copy. The fact that the judge read the complete instruction to the jury suggests he was looking at a correct written version. And the instruction, even if incomplete, correctly stated the requirements of State v. Petrich.
State v. Petrich, 101 Wn.2d 566, 683 P.2d 173 (1984).
Mr. VanGuilder speculates that the incomplete instruction was sent to the jury room. But we cannot tell from the record at what point the defective instruction was introduced into the file, or whether the jury's written instruction included the inserted language describing the conduct.
But, even if we assume that the defective instruction was given to the jury, the instructions here are still sufficient. Read in their entirety, the instructions tell the jury that Mr. VanGuilder is accused of multiple instances of molestation and that the jury must be unanimous as to a single instance of molestation. In addition to instruction 8, the court gave instruction 9. It defines the crime of molestation in the third degree. And instruction 10 tells the jury that to convict Mr. VanGuilder of child molestation in the third degree, it must find that he had sexual contact with A.W. between June and August 2002.
The instructions were sufficient. Moreover, the members of the jury appear to have understood the unanimity requirement and addressed it. They asked the judge for a calendar for the year 2002. They then worked on unanimity in light of the defense strategy of attempting to establish a reasonable doubt whether Mr. VanGuilder, A.W., or both, were absent on some or all of the dates alleged.
We affirm the judgment and sentence.
A majority of the panel has determined that 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.
KATO, C.J. and SCHULTHEIS, J., Concur.