Opinion
No. 30921-1-II
Filed: April 19, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Pierce County. Docket No: 02-1-05880-1. Judgment or order under review. Date filed: 09/19/2003. Judge signing: Hon. Bryan E. Chushcoff.
Counsel for Appellant(s), Mary Katherine Young High, Attorney at Law, 109 Tacoma Ave N, Tacoma, WA 98403-2631.
Counsel for Respondent(s), Kathleen Proctor, Pierce County Prosecuting Atty Ofc, Rm 946, 930 Tacoma Ave S, Tacoma, WA 98402-2102.
Alvaclyde Zanghi appeals his convictions for first and second degree child rape, arguing that (1) prosecutorial misconduct denied him a fair trial; (2) the trial court erred in admitting testimony under ER 803(a)(4); (3) two witnesses opined about his guilt; (4) the State failed to prove the chain of custody for his blood sample; (5) the court improperly commented on the evidence; (6) his child rape convictions lack sufficient evidence; and (7) cumulative errors require reversal. Finding no reversible error, we affirm.
FACTS
Zanghi's mother babysat M.K. and her sister for over five years, starting when M.K. was seven years old. Zanghi and M.K.'s families were close friends. M.K. called Zanghi 'Buddy.' 2 Report of Proceedings (RP) at 101.
On April 10, 2002, M.K. told her mom that 'Buddy' raped her. M.K. was 12 years old. That evening M.K.'s parents took her to the emergency room. The hospital referred them to its child sexual abuse center. M.K. and her parents went to this center the next day.
Michelle Breland, a pediatric nurse practitioner at the child sexual abuse center, met with M.K. and her parents. Breland stressed the importance of telling the truth and M.K. indicated that she understood. M.K.'s parents were not present when Breland interviewed M.K.
During the interview, M.K. initially would not identify who raped her because her parents told her not to, but eventually M.K. told Breland that 'Buddy' had raped her for at least three years and that the last time was '[y]esterday.' 5 RP at 550. M.K. stated that the rapes occurred when the parents were gone and that he threatened to kill her if she told anyone. M.K. cried when she talked with Breland and stated that no one had done this to her before.
Breland also performed a physical examination that indicated a possible tear in M.K.'s hymen. Breland collected M.K.'s underwear and turned it over to the police. Soon after the examination, police interviewed M.K. in her school principal's office. M.K.'s description of what happened was consistent with her statements to Breland.
M.K. was referred to Dr. Walter Teachout for counseling. M.K.'s mother told Dr. Teachout that the hospital found a tear in M.K.'s hymen. As part of the counseling, Dr. Teachout asked M.K. to write about the first time she was raped. M.K. stated that the person (1) ordered her to pull down her pants and lay on her stomach; (2) had sexual intercourse with her in a backyard clubhouse; and (3) threatened to kill her if she told anyone.
The State charged Zanghi with three counts of first degree child rape and one count of second degree child rape. The trial court denied Zanghi's motions in limine to exclude Dr. Teachout and the medical providers' statements. The court granted Zanghi's motion in limine to exclude opinions of guilt. After a CrR 3.5 hearing, the court admitted some of Zanghi's statements to police.
Zanghi does not challenge the court's rulings on: (1) the motions in limine; (2) its CrR 3.5 rulings; (3) its ruling on his motions to dismiss; (4) the court's jury instructions; or (5) the State's amendment of the information. Thus, we do not review these issues.
At trial, M.K. denied that the rapes occurred. She testified that all of her statements to Breland and other medical staff, her interview at the principal's office, and her written statement in counseling were lies. But M.K. acknowledged that these people had emphasized the importance of telling the truth before she spoke with them.
M.K.'s parents and one grandmother's trial testimony questioned M.K.'s veracity. M.K.'s mother testified that she knew few details about her daughter's rape allegations and that she did not disclose details of the rape to Breland and other medical staff. The State proffered witness testimony to impeach M.K.'s mother.
Lynne Berthiaume, a nurse examiner and certified phlebotomist, testified that she received a court order to draw Zanghi's blood for deoxyribonucleic acid (DNA) testing. Detective Bradley Graham and a Washington State Crime Lab forensic scientist testified about the chain of custody of the blood evidence. The forensic scientist also testified that the DNA from the semen in M.K.'s underwear had a probability of 1 in 290,000,000 of belonging to someone other than Zanghi.
A phlebotomist is a person trained and skilled to make incisions in a person's vein for blood drawing purposes. Stedman's Medical Dictionary 1350 (26th ed. 1995).
The jury convicted Zanghi as charged. Before sentencing, the court dismissed Counts II and III because the evidence did not support multiple occurrences of sexual intercourse before M.K. was 12 years old. The court imposed standard range sentences for Counts I and IV.
ANALYSIS I. Prosecutorial Misconduct
Zanghi argues that the prosecutor's conduct denied him a fair trial by (1) improperly bolstering the credibility of a State witness; and (2) engaging in improper closing argument.
A prosecutor's appeal to the jury's passions and prejudices and references to matters outside the evidence are improper. State v. Belgarde, 110 Wn.2d 504, 507, 755 P.2d 174 (1988). But a prosecuting attorney has wide latitude in closing argument to draw reasonable inferences from the evidence. State v. Mak, 105 Wn.2d 692, 726, 718 P.2d 407 (1986).
A defendant arguing prosecutorial misconduct must show that the alleged error was 'both improper and prejudicial.' State v. Finch, 137 Wn.2d 792, 839, 975 P.2d 967 (1999) (emphasis added). If a proper objection occurred below, there must be 'a substantial likelihood [that] the misconduct affected the jury's verdict.' Finch, 137 Wn.2d at 839. We analyze a prosecutor's alleged improper comment or argument 'in the context of the total argument, the issues in the case, the evidence addressed in the argument, and the instructions given to the jury.' State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997) (emphasis added); see also State v. Dhaliwal, 150 Wn.2d 559, 578, 79 P.3d 432 (2003) (citing Brown, 132 Wn.2d at 561).
We presume that juries follow the court's instructions to disregard improper evidence. State v. Russell, 125 Wn.2d 24, 84, 882 P.2d 747 (1994); State v. Pastrana, 94 Wn. App. 463, 479-80, 972 P.2d 557 (1999). And defense counsel waives alleged prosecutorial misconduct by failing to object unless the misconduct is '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.' Finch, 137 Wn.2d at 839 (quoting State v. Stenson, 132 Wn.2d 668, 719, 940 P.2d 1239 (1997)).
A. Detective Graham's testimony
Zanghi focuses on two portions of Detective Graham's testimony that he contends denied him a fair trial.
Zanghi's prosecutorial misconduct argument references the State calling Deputy Prosecutor Mary Robnett as a witness; however, the State sought her testimony after Detective Graham's testimony and for the purposes of impeaching M.K. and M.K.'s parents regarding who they talked with in the prosecutor's office. The trial court did not allow Robnett's testimony because it was cumulative.
Zanghi first contends that the prosecutor improperly bolstered Detective Graham's credibility at the beginning of his testimony. But the prosecutor's initial questioning of Detective Graham merely set a foundation of his law enforcement experience and background of the case. During the prosecutor's fifth question about how long he had been an instructor at a law enforcement academy, Zanghi raised a bolstering objection, but the trial court overruled it. Nothing in this exchange between the prosecutor and Detective Graham shows that the prosecutor improperly bolstered Detective Graham's credibility.
Zanghi next challenges the following testimony:
Q [State] Do you know when this case was charged?
[Relevance objection; overruled]
A Yes.
Q When was that, sir?
A It was charged by the prosecutor's office on December 19th.
Q Was there a warrant issued on this case?
[Relevance objection; sustained]
Q Was there an arrest made of the defendant?
[Relevance objection; court instructs the jury to leave and conducts a discussion with counsel]
5 RP at 515-16.
Zanghi contends that the prosecutor's question improperly injected the prestige and credibility of the prosecutor's office by giving the jury a prejudicial impression that 'Zanghi was . . . more likely to be guilty because he was 'arrested' on a 'warrant.'' Br. of Appellant at 30. But Detective Graham did not answer the contested question. Furthermore, the testimony is not prejudicial because it was clear to the jury that Zanghi was charged with the crimes Detective Graham investigated, not unrelated crimes or charges. And the prosecutor did not follow up with more questions. The prosecutor's warrant and arrest questions were intended to establish a timeline to rebut Zanghi's claim that the State unduly delayed charging him. But the court found the prosecutor's questions cumulative and sustained the objection.
Thus, Zanghi has failed to show that the prosecutor's questioning of Detective Graham was improper or prejudicial.
B. Prosecutor's Closing Argument
Zanghi contends that six portions of the prosecutor's closing argument were so flagrant and improper that they prejudiced the verdict. But Zanghi's counsel objected to five of these statements, and the court sustained four of the five objections and specifically instructed the jury to disregard the prosecutor's arguments. We presume the jury follows the court's instructions. Russell, 125 Wn.2d at 84; Pastrana, 94 Wn. App. at 479-80. Thus, we review the two portions of the prosecutor's closing argument where Zanghi failed to object and that the trial court allowed over Zanghi's objection.
One of the four sustained objections was based on argument outside the scope of the evidence. The trial court's closing instruction to the jury cured any prejudice by requiring that the jury '[d]isregard any remark, statement or argument that is not supported by the evidence or the law as stated by the court.' Clerk's Papers at 45.
The first challenge is to the prosecutor's discussion of M.K.'s testimony denying her handwritten statement to Dr. Teachout describing the first time she was raped:
. . . [I]f [the rape] never happened, how does she know to cry at all these important moments when she is describing what happened to her? Is she so conniving and manipulative that she said to herself, you know, Self, you've got to cry at all these times because people will be moved by your tears. So you'd better cry when you tell Mom about how he raped you. You'd better cry when you're talking to the nurse. In order for you to believe that nothing happened, you have to believe that she is this type of person. And not only do you have to believe that, you have to believe that she is a demon child. No, not a child at all. Some demented, warped, twisted little fiend who would plot and calculate to come up with this horrific story about how he anally and vaginally raped her. That's what you would have to believe, and that's what you would have to conclude if you were to find that nothing happened.
7 RP at 776-77 (emphasis in original).
Zanghi did not object to this argument at trial. Zanghi now focuses on the portion of the State's argument that asserts that the jury would have to believe that M.K. is a 'demon child' and '[s]ome demented, warped, twisted little fiend' in order to believe that she fabricated a story that she was raped. 7 RP at 777. Although the prosecutor's pejorative terms were unnecessary to convey a legitimate argument that M.K. did not fabricate the accusations, M.K.'s credibility was a major issue in the case and the evidence and testimony at trial rebutted M.K.'s denial of the rape. Significantly, Zanghi fails to consider the prosecutor's discussion of this evidence before and after the challenged portion of the closing argument. This evidence included Breland's testimony from the physical examination that contradicted M.K.'s denials; the semen in M.K.'s underwear that was linked by DNA analysis to Zanghi; the possible tear in M.K.'s hymen; the contradictions in her parents' testimony denying that the rape occurred; and M.K.'s testimony that she understood the importance of telling the truth to Breland and to her therapist. See also State v. Copeland, 130 Wn.2d 244, 290, 922 P.2d 1304 (1996) ('prosecutors may argue inferences from the evidence, including inferences as to why the jury would want to believe one witness over another.').
Zanghi also challenges the prosecutor's argument that:
Counsel may argue: She didn't say [the rape] for three years. Why did she not say it for three years? Someone would have noticed something. . . . [T]he response to that is this: How does a child reconcile on the one hand knowing this person that she is supposed to trust — a child of a family friend, knowing him for years, playing with him, being around him . . . and this very same person threatening to kill her, this very same person having vaginal and anal intercourse with her? How does the child reconcile the two? If we, we adults, adults with life experience, with families, with having raised children, education, careers, if we adults can't understand why in the world he could do such a thing, how is a child supposed to understand?
7 RP at 779-80 (emphasis in original).
The court overruled Zanghi's objection to this argument. The delay in M.K.'s rape disclosure was a proper topic to address in closing argument and the prosecutor's statement reasonably addressed the credibly of the witnesses' testimony, such as M.K.'s parents and grandmother who did not support her decision to come forward and allege that a family friend raped her.
Given the totality of the prosecutor's closing argument, the contentious credibility issues, and the detailed and clear jury instructions following Zanghi's objections, Zanghi has failed to demonstrate that the prosecutor's argument was so improper that it substantially prejudiced the verdict.
II. ER 803(a)(4)
Zanghi asserts that the trial court erred in admitting testimony under ER 803(a)(4); however, many of his evidentiary challenges misconstrue the record or fail to meaningfully discuss the applicable legal principles. Trial counsel must specifically object at trial to preserve an evidentiary issue for appellate review. State v. Perez-Cervantes, 141 Wn.2d 468, 482, 6 P.3d 1160 (2000); State v. Guloy, 104 Wn.2d 412, 422, 705 P.2d 1182 (1985). And the defendant should assign error on appeal on the same specific ground as the evidentiary objection made at trial. State v. Fredrick, 45 Wn. App. 916, 922, 729 P.2d 56 (1986). Consequently, we focus on the testimony that Zanghi accurately identifies on appeal and that he objected to below on the basis of ER 803(a)(4).
Zanghi generally cites, but fails to meaningfully discuss, Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). Because all of the challenged hearsay statements derive from witnesses who testified at trial and were available for Zanghi's cross-examination, Crawford is inapplicable. Finally, we do not review Zanghi's appellate arguments under the excited utterance doctrine, ER 803(a)(2), because the trial court admitted the contested evidence under ER 803(a)(4), not ER 803(a)(2). State v. Perez-Cervantes, 141 Wn.2d 468, 479, 482, 6 P.3d 1160 (2000); State v. Fredrick, 45 Wn. App. 916, 922, 729 P.2d 56 (1986).
Zanghi's erroneous evidentiary challenges under ER 803(a)(4) include: (1) Dr. Teachout's alleged disclosure of Zanghi's identity, but Dr. Teachout did not disclose Zanghi's identity; (2) Breland's testimony that M.K. told her, '[m]y babysitter's oldest son raped me for three years.' 5 RP at 549-50. The defense did not object under ER 803(a)(4). Instead, the defense asked for a limiting instruction informing the jury that the testimony was admitted for impeachment purposes, which the court denied; and (3) Breland's testimony that M.K.'s mother told her that 'he stuck his penis in her.' This was admitted to impeach the mother's denial that she never asked M.K. about the alleged rape. 5 RP 542.
We review a trial court's evidentiary rulings for an abuse of discretion. Finch, 137 Wn.2d at 810. A court abuses its discretion when its evidentiary ruling is 'manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons.' State v. Downing, 151 Wn.2d 265, 272, 87 P.3d 1169 (2004) (citations omitted).
A hearsay statement is admissible when it satisfies the medical treatment exception under ER 803(a)(4). This rule allows: '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.' ER 803(a)(4). It 'applies to statements reasonably pertinent to diagnosis or treatment.' State v. Woods, 143 Wn.2d 561, 602, 23 P.3d 1046 (2001) (emphasis added). A party generally demonstrates a statement is reasonably pertinent when '(1) the declarant's motive in making the statement must be to promote treatment, and (2) the medical professional must have reasonably relied on the statement for purposes of treatment.' In re Personal Restraint of Grasso, 151 Wn.2d 1, 20, 84 P.3d 859 (2004) (relying on State v. Butler, 53 Wn. App. 214, 220, 766 P.2d 505 (1989)).
We recognize that Grasso is a plurality opinion; however, its analysis of ER 803(a)(4)'s elements and the Butler factors are noncontroversial.
A declarant's statement to a therapist or social worker for both emotional and physical harm falls under ER 803(a)(4). Woods, 143 Wn.2d at 602; State v. Ackerman, 90 Wn. App. 477, 482, 953 P.2d 816 (1998). Generally, statements of fault are inadmissible, but '[m]uch, of course, depends on the context in which such statements are made.' In re Dependency of Penelope B., 104 Wn.2d 643, 656, 709 P.2d 1185 (1985).
In domestic violence and sexual abuse situations, a declarant's statement of fault that discloses the identity of a closely related perpetrator is admissible under ER 803(a)(4) because part of reasonable treatment and therapy is designed to prevent the recurrence of future injury. Ackerman, 90 Wn. App. at 482; State v. Sims, 77 Wn. App. 236, 239, 890 P.2d 521 (1995); State v. Ashcraft, 71 Wn. App. 444, 456, 859 P.2d 60 (1993) (emphasizing that a child declarant's 'incriminating identification' in the ER 803(a)(4) context was admissible because 'it is important for the child to identify the abuser in seeking treatment because the child may have possible psychological injuries and also may be in further danger, due to the continued presence of the abuser in the child's home.'); see also Grasso, 151 Wn.2d at 20-21 ('Because a medical professional or therapist must be attentive to treating both the physical and the emotional injuries that result from child abuse, a child's statements as to the identity of a closely related abuser are also of the type relied upon in determining proper treatment.').
If the declarant is at least nine years old, the record must affirmatively show that the child made the statements to the medical professional or therapist with the understanding that the statements were for medical diagnosis and further treatment. State v. Carol M.D., 89 Wn. App. 77, 86-87, 948 P.2d 837 (1997), withdrawn in part on other grounds 983 P.2d 1165 (1999). This foundation helps support the reliability of the child statement under ER 803(a)(4). Carol M.D., 89 Wn. App at 87.
A. Testimony Identifying 'Buddy'
Zanghi contends that the trial court abused its discretion in admitting Breland's testimony that M.K. and M.K.'s mother told her that the perpetrator was 'Buddy.' Zanghi argues that Breland's statements improperly identified him and did not relate to medical treatment.
Breland examined M.K. the day after she disclosed that she was raped. M.K.'s parents accompanied her to the appointment and also spoke with Breland. On appeal, Zanghi challenges the following portions of Breland's testimony:
A [Breland] [M.K.] told me that the first time it happened, she was about nine.
Q [State] Did you ask her the last time that this had happened?
A I did, and she told me 'Yesterday.'
Q Did you ask her how old the babysitter's son was?
A I did, and she responded, 'I think he's 16 or 17.'
[Objection based on leading question and not medical condition; overruled]
A She said, 'My dad said I'm not allowed to tell.'
Q What did you do at this point?
A In the conversation that I had previously had with her parents, her mother indicated that —
[Objection, not medical condition; overruled]
A Her mother had indicated that his first name was 'Buddy.' I told [M.K.] that her mother said this, and [M.K.] said: 'My mom said that? Yeah, his first name is Buddy.'
5 RP at 550-51.
Later during a post-trial hearing, the court explained why it allowed this testimony:
[Zanghi's counsel] also noted in his memo that statements relating to the identity of the abuser should generally have been inadmissible because usually it is only permitted when the person is a member of the household and the circumstances are such that it might be relevant to the prevention of recurrence of the injury. And of course it seemed to me that absolutely the same concern applied here because Mr. Zanghi was a member of the household where [M.K.] was in day care, and also because there was reluctance on the part of the family members to disclose who this person was. Under all those circumstances, there certainly was the same exact kind of concern one would have in those circumstances where there indeed was a member of the household involved: That the child is going to continue to be exposed to somebody who is perpetrating a crime against them. And so there was a concern about whether or not she would be protected by her family.
7 RP at 871-72 (emphasis added).
The trial court accurately described why the identity of an alleged closely related abuser under the circumstances here was relevant to Breland's examination and therefore admissible under ER 803(a)(4). Breland testifed that M.K. told her that the perpetrator threatened to kill her if she disclosed the abuse. And Breland testified that she needed and relied on the statements to complete her assessment of continuing risk to M.K. from the perpetrator.
Furthermore, the record shows that before Breland's testimony and without objection, M.K. testified that Zanghi went by 'Buddy' and that '[h]is mother used to watch me and my sister.' 2 RP at 101. M.K. testified that she knew her examination with Breland was related to her rape disclosure the day before. Breland also testified that she explained the examination procedures to M.K., such as how she used the colposcope and other medical equipment. M.K. testified that she understood that it was important that she tell the truth to Breland, and Breland confirmed with M.K. the importance of telling the truth during the examination.
Zanghi does not persuasively respond to the court's ruling under ER 803(a)(4). Zanghi emphasizes that M.K.'s parents questioned her veracity, that at trial M.K. denied that Zanghi raped her, and that she is old enough to fabricate the rape allegations. But these arguments do not reasonably rebut the record or the trial court's decision under ER 803(a)(4) to admit the statements made to Breland the day after the last incident.
Given the record and the circumstances of Breland's testimony, the court did not abuse its broad discretion in admitting the challenged portion of evidence.
B. Statement by M.K.'s Mother to Therapist
Zanghi challenges Dr. Teachout's testimony that M.K.'s mother told him that when they went to the hospital 'a tear was found in the vaginal area.' 3 RP at 305. The trial court admitted this testimony under ER 803(a)(4). This information was clearly relevant to Dr. Teachout's psychological evaluation and treatment plan for M.K. Dr. Teachout testified that, 'I usually start out a session, I will ask, you know, what the presenting issues are, why they are here, what concerns they have.' 3 RP at 305. M.K.'s mother presented the hymen tear as one of the concerns in Dr. Teachout's treatment of M.K.
Thus, the court did not abuse its discretion in admitting Dr. Teachout's testimony under ER 803(a)(4).
III. Alleged Opinion Testimony
Zanghi argues that Detective Graham and Berthiaume opined on his guilt in a portion of their testimony. The State emphasizes that Zanghi's failure to object to this testimony at the trial court precludes appellate review under RAP 2.5(a)(3).
But Zanghi objected to the challenged portion of Berthiaume's testimony and the trial court granted Zanghi's motion in limine that objected to any opinion testimony at trial. Further, to determine whether an error raised for the first time on appeal merits review, we first evaluate whether the error 'suggests a constitutional issue' and if so, we then 'determine whether the alleged error is manifest' and has a 'practical and identifiable consequence in the trial.' State v. Lynn, 67 Wn. App. 339, 345, 835 P.2d 251 (1992). Opinion testimony raises a constitutional issue because it states or infers that a defendant is guilty, which can deny a defendant's constitutional right to an impartial jury trial. State v. Dolan, 118 Wn. App. 323, 330, 73 P.3d 1011 (2003). Thus, given Zanghi's objections below and the constitutional nature of opinion testimony, we review Zanghi's challenge; however, our review is brief because we hold that the challenged testimony in the circumstances here is neither opinion testimony nor manifest error.
The context of Zanghi's objection below to Berthiaume's testimony reasonably implies that it was based on improper opinion testimony. And we note that a motion in limine seeking to exclude evidence under ER 404(b) preserves the issue even if this evidence is not objected to during trial. State v. Powell, 126 Wn.2d 244, 256, 893 P.2d 615 (1995).
Generally, no witness may provide an opinion that directly comments or implies that the defendant is guilty. State v. Black, 109 Wn.2d 336, 348, 745 P.2d 12 (1987). Courts must carefully consider the circumstances and facts of the case as well as the challenged testimony. State v. Demery, 144 Wn.2d 753, 759, 30 P.3d 1278 (2001). Further, 'testimony that is not a direct comment on the defendant's guilt or on the veracity of a witness, is otherwise helpful to the jury, and is based on inferences from the evidence is not improper opinion testimony.' City of Seattle v. Heatley, 70 Wn. App. 573, 578, 854 P.2d 658 (1993).
Zanghi's challenge to Detective Graham's testimony contends that he opined about Zanghi's guilt when he testified that he 'referred the case to the prosecuting attorney's office at Remann Hall for review so I could get that part started.' 5 RP at 515. But Detective Graham merely described his procedure for moving a case from investigation by the police to the prosecutor's office for charging decisions. Thus, Detective Graham's testimony is not improper opinion and consequently does not have a material consequence to Zanghi's trial.
Zanghi's second challenge argues that Berthiaume suggested that Zanghi was guilty when she testified that when performing her duties as a phlebotomist, 'when court-ordered, [she would] go to either the jail or another place to draw blood on perpetrators for DNA purposes.' 2 RP at 112.
But Berthiaume's testimony failed to express or imply Zanghi's guilt because she was describing general and basic actions based on her direct knowledge of the evidence at trial and professional responsibilities. Further, the context of the prosecutor's questions concerned Berthiaume's professional tasks and responsibilities and did not invite her to opine about Zanghi's guilt. Thus, Berthiaume did not express an opinion about Zanghi's guilt and this challenged testimony does not involve a manifest error justifying further review.
IV. Chain of Custody
Zanghi contends that the State failed to prove the chain of custody of his blood sample because the witness who withdrew the blood for the DNA sample did not expressly identify him at trial.
The proponent of physical evidence in a criminal trial must establish a chain of custody by demonstrating that the proffered evidence is in the same condition as when the crime was committed. State v. Campbell, 103 Wn.2d 1, 21, 691 P.2d 929 (1984); State v. Roche, 114 Wn. App. 424, 436, 59 P.3d 682 (2002). When ruling on the admissibility of the physical evidence, the court considers factors that include the object's nature, the circumstances of its preservation, the chain of custody, and the possibility of tampering. Campbell, 103 Wn.2d at 21. Further, 'minor discrepancies or uncertainty on the part of the witness will affect only the weight of evidence, not its admissibility.' Campbell, 103 Wn.2d at 21.
Here, Berthiaume, a phlebotomist and forensic nurse examiner for sexual assault examinations, answered the following questions from the State:
Q Ma'am, was there a court order to draw the defendant's blood, Alvaclyde Zanghi's blood?
A There was.
Q And did you in fact do that, ma'am?
A I did.
2 RP at 114-15.
Berthiaume then testified that she went to Zanghi's attorney's office to draw Zanghi's blood, placed the blood in a tube, signed and dated the package, and delivered it to Detective Graham the next day. Detective Graham testified that he took it to the Washington State Crime Lab. A forensic scientist testified that the lab received the blood sample and stored it in a locked vault.
Zanghi fails to adequately respond to the foregoing testimony that demonstrates the chain of custody of the blood evidence. Notably, Zanghi did not object to the alleged insufficient identification of his blood until after Berthiaume testified. When Zanghi's counsel asserted that Berthiaume failed to sufficiently identify Zanghi, the court reviewed its notes from the testimony of Berthiaume, Detective Graham, and the forensic scientist and stated, 'There's a reasonable inference, it seems to me, from that testimony, that it was [Zanghi].' 3 RP at 375.
We agree, and conclude that the court did not abuse its discretion in admitting the challenged blood evidence.
V. Court's Comment on the Evidence
Zanghi contends that the trial court improperly commented on the evidence and denied him a fair trial.
A judge cannot convey an opinion to the jury about a case's evidence or merits under the Washington constitution. Wash. Const. art. IV, sec. 16; State v. Deal, 128 Wn.2d 693, 703, 911 P.2d 996 (1996). But a trial court may explain its reasoning in response to an evidentiary objection or attempt to clarify a witness's testimony. State v. Pockert, 53 Wn. App. 491, 495, 768 P.2d 504 (1989).
Zanghi claims two instances of improper judicial comment. The first instance involves Zanghi's examination of a victim advocate. After sustaining two objections to Zanghi's questions, the State objected again on relevance grounds. Zanghi asserted that his question was relevant, but the court stated, 'This has already been gone through. There is nothing more to be gotten from this.' 5 RP at 594. The record demonstrates that the court was explaining its ruling, not improperly commenting on the evidence.
The second instance involved Zanghi's cross-examination of a social worker at the emergency room the day M.K. disclosed she was raped. Zanghi asked the social worker whether a doctor's report '[made] any reference to what you've just testified.' 5 RP at 610. The social worker responded that the doctor's report did not and the court stated, 'Well, [counsel], how could it?' 5 RP at 610. Zanghi's counsel then rephrased his question and proceeded to ask more about the doctor's report.
Although the court's interjection was ill-considered, it is not reversible error given the entire context of Zanghi's cross-examination of this witness which demonstrates that the court's comment was directed to Zanghi's confusing questions. The comment was not a personal opinion of the evidence. And in response to the court's query, Zanghi's counsel asked more questions without interruption about the report until he was finished.
Thus, Zanghi has failed to show that the trial court committed reversible error by improperly commenting on the evidence.
VI. Sufficiency of the Evidence
Zanghi contends that sufficient evidence does not support his convictions for first and second degree child rape.
Evidence is sufficient to support a conviction if, viewed in the light most favorable to the State, it permits any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt. State v. Tilton, 149 Wn.2d 775, 786, 72 P.3d 735 (2003). 'A claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom.' State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992) (citation omitted). We consider circumstantial evidence to be as reliable as direct evidence. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). And we defer to the jury's credibility determinations of witness testimony. State v. Bencivenga, 137 Wn.2d 703, 709, 974 P.2d 832 (1999).
To prove first degree child rape under RCW 9A.44.073, the State must prove beyond a reasonable doubt that Zanghi had sexual intercourse with M.K. between June 16, 1998, and June 15, 2001; M.K. was less than 12 years old at the time of the sexual intercourse and not married to Zanghi; that Zanghi was at least 24 months older than M.K.; and that the acts occurred in Washington. The elements of second degree child rape under RCW 9A.44.076 are similar, except that the charging period was 'on or about the 10th day of April, 2002;' M.K.'s age was between 12 and 14; and Zanghi had to be 36 months older than M.K. Clerk's Papers at 36.
Here, the jury convicted Zanghi of all four counts. On appeal, Zanghi challenges the sufficiency of the evidence of sexual intercourse under Counts I and IV.
Before sentencing, the court was concerned about the evidence in support of multiple events of sexual intercourse in Counts II and III and its insufficiency. After a hearing, the court dismissed Counts II and III for insufficient evidence, but it emphasized that Zanghi was guilty of first degree rape based on evidence that included M.K.'s detailed disclosure to Dr. Teachout and Breland's testimony about M.K.'s statements of being raped for the first time when she was under 12 years old. Regarding Count IV, the court emphasized the DNA evidence that linked the semen in M.K.'s underwear to Zanghi.
Regarding Count I, Breland, the child abuse nurse examiner who met with M.K. the day after her disclosure, testified that M.K. told her that 'my babysitter's oldest son raped me for three years.' 5 RP at 549-50. M.K. stated to Breland that the perpetrator was 'Buddy' and in court, M.K. identified 'Buddy' as Zanghi. M.K. also told Breland that the perpetrator put his penis in her anus, that this person would do this at every chance he got, that he threatened to kill her if she told anyone, and that no one had ever done this to her before. Breland testified that M.K. was crying when she made these statements and that her physical examination was 'worrisome,' indicating a probability of penetration consistent with sexual intercourse. During counseling, Dr. Teachout asked her to write about the first rape. M.K. wrote a letter that detailed anal intercourse in a backyard clubhouse that included the rapist's death threats if she told anyone. M.K.'s statements to Breland and her letter to Dr. Teachout are evidence of an act of sexual intercourse with Zanghi when she was less than 12 years old and in the proper timeframe for Count I.
The court admitted this testimony as substantive evidence and overruled Zanghi's counsel's objection that this statement should be limited to use as impeachment testimony. Further, this testimony is admissible under ER 803(a)(4) for reasons previously discussed.
In regard to Count IV, M.K. disclosed that she was raped on April 10, 2002. The next day, she met with Breland, who testified that M.K. told her that she was raped '[y]esterday.' 5 RP at 550. Breland collected M.K.'s underwear and later the Washington State Crime Lab linked semen from DNA on M.K.'s underwear to Zanghi.
Zanghi does not persuasively respond to the foregoing evidence. He emphasizes that the clubhouse in M.K.'s letter does not exist and that at trial M.K. denied the rape occurred. But these facts do not effectively rebut the other accurate details corroborated by the DNA evidence and the testimony of Breland and Dr. Teachout. Further, we defer to the jury's credibility determinations of witness testimony. Bencivenga, 137 Wn.2d at 709. Given that the jury convicted Zanghi for all four counts, it appears that they found the testimony of Breland, Dr. Teachout, and other State witnesses more persuasive and credible than M.K.'s denial of the rape.
Thus, considering all of the evidence in the light most favorable to the State and giving proper deference to the jury's credibility determinations, sufficient evidence supports Zanghi's convictions for first and second degree rape.
VII. Cumulative Error
Zanghi asserts that the cumulative error doctrine mandates reversal. The cumulative error doctrine protects a criminal defendant's right to a fair trial and applies only when a trial contains numerous prejudicial and egregious errors. See, e.g., State v. Coe, 101 Wn.2d 772, 789, 684 P.2d 668 (1984); State v. Badda, 63 Wn.2d 176, 183, 385 P.2d 859 (1963); State v. Stevens, 58 Wn. App. 478, 498, 794 P.2d 38 (1990). The defendant bears the burden of proving these significant errors. In re Personal Restraint of Lord, 123 Wn.2d 296, 332, 868 P.2d 835, 870 P.2d 964 (1994). Because we reject Zanghi's claims of error, he is not entitled to relief under the cumulative error doctrine.
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.
HUNT, J. and QUINN-BRINTNALL, C.J., concur.